SZNSB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China. After arriving in Australia on a tourist visa she unsuccessfully applied to the Minister, the first respondent, for a protection (class XA) visa. She failed to have that decision set aside by the Refugee Review Tribunal, the second respondent, and lost her application for judicial review before Emmett FM in the Federal Magistrates Court. 2 She now applies for an extension of time to file and serve a notice of appeal from the judgment of Emmett FM. The application is only just out of time. The judgment was delivered on 11 March this year and the application filed on 7 April, which means that the application was made less than a week after the time to appeal expired. 3 In a letter submitted with her application for a protection visa the applicant stated that she feared persecution by Chinese authorities because, over the weekend of 7 and 8 September 2008, she had assisted a childhood friend to print 1000 pamphlets "about Bible knowledge" for a priest, who was arrested by the Public Service Bureau, and whom she feared would divulge her and her friend's involvement. In the Tribunal she raised, in addition, and for the first time, a claim that she was, and had been since 1997, a Falun Gong practitioner and had a police record. The Tribunal did not believe her, so it could not be satisfied that she had a well-founded fear of persecution on any ground that would entitle her to a protection visa. 4 The application for leave is governed by O 52 r 15, of the Federal Court Rules (Rules) which relevantly provides: Time for filing and serving notice of appeal (1) The notice of appeal shall be filed and served: (a) within 21 days after (i) the date when the judgment appealed from pronounced; (ii) the date when leave to appeal was granted; or (ii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (3) An application for leave under subrule (2) must: (a) be in accordance with form 54(a); and (b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and (c) be accompanied by an affidavit setting out: (i) the nature of the matter; and (ii) the factual and legal issues in dispute; and (iii) the reasons why leave should be given. 5 In the present case the affidavit does not conform to the requirements of O 52 r 15(3), in that it does not include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing and, more importantly, the affidavit filed in support does not describe either the nature of the matter or the factual and legal issues in dispute. Nevertheless, no point was taken about these deficiencies and they are inconsequential in the scheme of things. Bearing in mind the fact that the applicant is unrepresented, I am prepared to ignore them. However the application was not filed within 21 days of judgment and no motion was filed so as to invoke sub-rule 1(b), the applicant first has to demonstrate the existence of special reasons. 6 In Jess v Scott (1986) 12 FCR 187 the Full Court considered the meaning of the expression "special reasons." At 195 the Court said that, in the context in which the expression "special reasons" appears, it: is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. 7 However, as the Court makes clear, even where special reasons are established, there is no entitlement to an appeal. Whether or not an application should be granted is a matter for the Court's discretion. The principles affecting the exercise of that discretion are canvassed in a number of cases in this Court, most particularly in Parker v The Queen [2002] FCAFC 133 at [6]. Relevant considerations include the nature of the explanation, if any, for the delay, the length of the delay, any question of prejudice to the other party (although want of prejudice will not compel a successful outcome) and the merits of the proposed appeal. 8 Whether or not the discretion should be exercised in the applicant's favour is now also affected by the terms of s 37M of the Federal Court of Australia Act 1975 (Cth) (Act). Thus, the power must be exercised in such a way as best promotes the overarching purpose of the Act and Rules; that is, the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. 9 The applicant filed her application on 7 April 2010. The application was supported by an affidavit, in which the applicant supplied the following reason for missing the time limit (without alteration): I apply for extension of time to file and serve notice of appeal because I can't know my application will delay and beyond your Court's time limited. I don't know English and no skills so, I can only find an odd job. I have no money to pay the Court's fee. I applied for waiver of it when I first lodged my application on 18 March 2010 to your Court. A week later my application was returned to me asking to provide to support documents. I asked my boss to write a letter introduing about my job and salary. My landlord wrote a letter certifying my rent. I lodged my second application to your Court. Your officer again returned it to me saying my boss and landlord must provide statutory statements. Unfortunately, my boss family already went China for holidays. Therefore, I can't provide the statement required by your Court. I have to beg my fellow townsmen to assistat me by lending money for the application fee. All the twice applications lasted more than two weeks. So my application was beyond the Court's time limited. I beg the Court officer could consider my difficulties and situation and accept my application. I (sic) 10 Although she did not attach this correspondence to her affidavit, the Court file contained correspondence which was exhibited before me, and which tends to confirm this account. It is clear that the applicant applied for a fee waiver for a notice of appeal in an application received by mail in the Court's registry on 23 March 2010, but she had not answered all the questions, or provided relevant documents to support that application. A notice of appeal was received by mail in the Court on 31 March, one day before the time ran out. In a letter to the applicant bearing the same date, the Court wrote to the applicant in these terms, and I quote: I refer to the Notice of appeal received by mail on 31 March 2010. In your statement of financial affairs you must support the information provided with relevant documentations (there seems to be some pages missing). I refer to the letter I've sent out to you on 23 March 2010 requesting all relevant supporting documents (copy attached). I enclose a new form for you to fill out. 11 It would appear that the registry rejected the notice of appeal for filing, pending receipt of the relevant fee or satisfaction that the fee ought to be waived. 12 I am satisfied that the explanation the applicant gave in her affidavit is likely to be true, and that it provides special reasons within the meaning of O 52 r 15. In the circumstances of her case I would grant leave, unless the prospects of success of the proposed appeal were so weak that it would be futile to do so. She has given an acceptable explanation for the delay. She is only a week late. The Minister would suffer no prejudice if I were to grant the application. 13 I now turn to the appeal itself. 14 In a draft notice of appeal attached to her affidavit, the applicant nominated the following grounds, which I set out without alteration: 1. I was unfortunate in involvement in the printing of anti-government and religious materials of some kinds, as a result of which I was wanted by the local police. 2. The Refugee Review Tribunal hsd biad aagainst me and failed to tske all my cliams into account According to S91R of the Migration Act 1958. 3. The Federal Magistrate EMMETT failed to find the above mentioned jurisdictional errors. 15 The first two grounds were those upon which the applicant relied before the Federal Magistrate. 16 Ground 1 raised no jurisdictional error, but the contentions in ground 2 clearly do. 17 In support of her contention that the Tribunal was biased, the applicant provided no particulars and offered no evidence. When the Federal Magistrate asked her why she made such an allegation, she replied that the Tribunal did not look at the law, and she was not (sic) a refugee. In support of her allegation that the Tribunal had failed to take all her claims into account, she told the Federal Magistrate it had not considered her claim that she was wanted by the police. 18 As the Federal Magistrate correctly observed, rarely is bias established on the face of the decision maker's reasons: cf. SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] (relating to an allegation of bad faith). The same is true of apprehended bias. Yet, no transcript of the Tribunal hearing was submitted to the Court, and no evidence apart from the Tribunal's reasons was before the Federal Magistrate. Her Honour had invited the applicant to put on such evidence at a directions hearing, but she did not take up the invitation. 19 Neither will the mere expression of adverse reasons give rise to an apprehension of bias. The Federal Magistrate observed that, on a fair reading of the Tribunal's decision, the allegation that the Tribunal did not look at the law was unfounded. Her Honour said that the Tribunal accurately summarised the relevant law and the applicant's written claims. Her Honour also noted that after considering her application for review, the Tribunal issued two invitations to the applicant for new information, documents, or written arguments that might assist her, but she did not accede to either of them. 20 Significantly, in view of the applicant's grievance, the Federal Magistrate mentioned that the Tribunal recorded that it had asked the applicant whether the police had been looking for her, and questioned her at some length about that issue. 21 The Federal Magistrate, in her reasons, scrutinised the Tribunal's decision in some detail. She found that the Tribunal's findings were open to it on the evidence and that the applicant's assertion that the Tribunal failed to consider her claim to have been wanted by the police amounted to no more than a disagreement with its factual findings, and was thus an impermissible exhortation for review on the merits. 22 She also found no basis for any apprehension of bias. Her Honour correctly referred to (and applied) the relevant legal principles and the leading authorities. In the circumstances, any appeal would be doomed to fail. For this reason, I refuse the application. 23 In my view, there being no complexity involved in the present proceedings, the appropriate order for costs is that costs be fixed at the rate provided for by O 62 r 40C(2) and Schedule 2, item 43F of the Rules, and I so order.