SZNBO v Minister for Immigration & Citizenship

INTRODUCTION 1 This is an application for an extension of time to file and serve notice of appeal from a judgment of the Federal Magistrate's Court dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). Extempore judgment was delivered on 26 February 2009. The applicant was present in court when judgment was delivered. Pursuant to O 52 r 15(1)(a)(i) of the Federal Court of Australia Rules ('the Rules'), the applicant had until 19 March 2009 to appeal from the judgment. The applicant did not file an application for an extension of time to file and serve a notice of appeal until 6 April 2009. This was some 18 days beyond the time period that is provided for in the Rules. 2 In an affidavit sworn 6 April and filed with his application for extension of time, the applicant deposes as follows: 1. My application to appeal in the Federal Magistrates Court for refusal of my application by the Refugee Review Tribunal has been dismissed. 2. I wish to appeal to the Federal Court about the refusal decision made by the Federal Magistrates Court. I thought I should lodge this application within 28 working days. However, now I am told I should lodge my application within 21 days of the decision date by the Federal Magistrates Court. Now it is out of the 21 working days. 3. I therefore apply for extension of time to file and serve the notice of appeal. 3 Accompanying his application for extension of time, and the supporting affidavit, was a draft notice of appeal which included the following grounds: 1. Decision made by the Federal Magistrate Court is not fair. 2. Decision made by the Refugee Review Tribunal is not fair as I have never received the notice letter from the Tribunal inviting me to attend at the scheduled hearing. 4 The time prescribed by O 52 r 15(1)(a)(i) is the subject of a general discretion to extend time to be found in O 52 r 15(2) which provides: Notwithstanding anything in the preceding sub-rule, a court or a judge for special reasons may at any time give leave to file and serve a notice of appeal. 5 In the case of Jess v Scott (1986) 12 FCR 187, the Full Court, at 195, referred to the requirement for special reasons: [A]n expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 6 In Howard v The Australian Electoral Commission [2000] FCA 1767, Branson J said at [7] that: [E]ven where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought. Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal (Jess v Scott at 188). 7 In response to the material to be found in the applicant's affidavit in support of his application for an extension, the first respondent accepts that a non-English speaking unrepresented applicant may not be aware, or appreciate the importance, of compliance with the Rules. Whether that be so or not, in view of the fact that the application for an extension of time was made by such an applicant within 18 days of the time prescribed by the Rules for filing and serving a notice of appeal I would not, on that ground alone, decline to grant the extension applied for. On the other hand, the first respondent submits that the Court should refuse to grant the extension sought because the proposed appeal is, by reference to the grounds contained in the draft notice of appeal which accompanied the applicant's application, manifestly hopeless. 8 My review of these grounds in the context of the reasons for judgment of the Federal Magistrate compels me to say that I cannot but agree with this submission. The Federal Magistrate addressed the grounds raised in the applicant's draft notice of appeal. His Honour held that the Tribunal was entitled to proceed to make its decision without making any further inquiry in accordance with s 426A of the Migration Act 1958 (Cth), referring to the authority of SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 at [32], a judgment of Bennett J who, in that same judgment, referred to the authority of NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184, a judgment of the Full Court. 9 In the circumstances, I would conclude that there is no merit in the grounds raised in the draft notice of appeal, and no appellable error in the Federal Magistrate's decision, and no reviewable error in the Tribunal's decision. It follows that the circumstances do not warrant the grant of an extension of time to file and serve a notice of appeal. The application for an extension of time to file and serve a notice of appeal in the form of the draft accompanying the applicant's application must therefore be refused. 10 The application is dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.