SZMTC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 This is an application for an extension of time in which to file and serve a notice of appeal against a judgment of the Federal Magistrates Court of Australia ("the FMCA") (SZMTC v Minister for Immigration & Anor [2008] FMCA 1424). 2 The applicant is a citizen of the People's Republic of China. She arrived in Australia on 7 November 2007 and on 20 December 2007 applied for a protection visa. The application was refused by a delegate of the Minister on 25 February 2008. On 19 March 2008 the applicant applied to the Refugee Review Tribunal ("the RRT") for a review of the delegate's decision. In a decision handed down on 26 August 2008 the RRT affirmed the delegate's decision to refuse to grant a protection visa. 3 On 15 September 2008 the applicant filed an application in the FMCA seeking judicial review of the decision of the RRT. The applicant failed to appear when the matter came before the FMCA on 7 October 2008 and the Federal Magistrate dismissed the application due to the non-appearance of the applicant. On 9 October 2008 the applicant sought to have the orders made on 7 October 2008 set aside but on 13 October 2008 the FMCA found there was no arguable case to justify setting aside the earlier orders and dismissed the application with costs. The judgment of the FMCA on 13 October 2008 gave consideration to the reasons which were given by the applicant for her failure to appear on 7 October 2008. The Federal Magistrate concluded that the applicant's evidence to the FMCA was not truthful and that no weight should be placed on the applicant's affidavit or oral evidence. Despite finding that the applicant had, accordingly, not provided a satisfactory explanation for her failure to attend the hearing on 7 October 2008 the Federal Magistrate went on to consider whether there was an arguable case to be tried and concluded that the applicant was able to demonstrate "no more than a disagreement with the findings and conclusions of the Tribunal". 4 I agree with submissions made on behalf of the Minister that the orders made on 13 October 2008 were interlocutory in nature. Leave was required to appeal against those orders. Moreover, any application for leave to appeal was required to be filed within 21 days (see O 52 r 5 of the Federal Court Rules). The application for an extension of time to file and serve a notice of appeal was made some eight weeks after the orders in question. 5 Under O 52 r 15 an extension of time in relation to an ordinary appeal, not requiring leave, may be granted "for special reasons". It has been held that no lesser test should be employed when considering an application for an extension of time in which to seek leave to appeal (see Deighton v Telstra Corp Ltd [1997] FCA 1568 and Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 ("Sharman") at [20]). A special reason is one which takes the case out of the ordinary (see Jess v Scott (1986) 12 FCR 187 at 195 and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59). 6 In Sharman, Lindgren J distilled the requirements to be met in such circumstances in the following way (at [20]): 20 In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied: 1. There must be a satisfactory explanation for the delay beyond the seven-day time limit fixed by O 52 r 10(2)(b) (see, for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997)); 2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the 'arguable error' question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. 3. Since an applicant for extension of time within which to appeal as of right must show 'special reasons' (O 52 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above). (Emphasis added.) [For leave to appeal from a judgment of another court O 52 r 5 fixes 21 days rather than 7]. 7 In support of her application for an extension of time the applicant filed an affidavit which suggested, apart from alleging error on the part of the RRT, that the FMCA did not give her a chance to explain her claim. There is no substance in that allegation. Furthermore, despite the fact that directions were made on 17 December 2008 that the applicant file written submissions in support of her application she did not do so. At the hearing of her application I asked the applicant why she had not acted earlier. She said that she had left everything to her migration agent but Ms Rayment who appeared for the Minister told me that no registered migration agent has been notified to the Department as acting for the applicant. 8 In my view special reasons to grant an extension of time have not been established and the application for an extension of time in which to file and serve a notice of appeal is liable to be dismissed upon that basis alone. 9 Moreover, in my view there is no prospect that leave to appeal would be granted. The draft notice of appeal contains the following three grounds: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not consider my application fairly. The Judge refused my application at the hearing. It is not fair. I am Falun Gong practitioner. I will be persecuted if I return to China. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I even did not receive my green book. (Original emphasis removed.) 10 The test for whether leave to appeal would be granted is that stated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 namely, whether the decision at first instance was attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong. 11 In my view that test is not met in the present case. The grounds of appeal do not identify any jurisdictional error in decision or processes of the RRT. Identification of such an error is the minimum condition to be met to render an appeal to this Court useful. Mere allegations of bias are insufficient. No other assistance was provided by the applicant which might overcome this basic defect in her application. 12 The fact that leave to appeal would not be granted is a further reason not to grant an extension of time to file and serve a notice of appeal. 13 In the circumstances the appropriate order is that the application for an extension of time to file and serve a notice of appeal be dismissed. There is no reason why costs should not follow the result. I will order that the application for an extension of time to file and serve a notice of appeal be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.