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[2012] FCA 824
Federal Court of Australia
2012-07-30
Gilmour J
Original judgment source is linked above.
The application in this court 24 While the Rules had not commenced when the Federal Magistrate's judgment was pronounced on 14 April 2010, due to the fact that this application was filed on 30 April 2012, almost two years after the pronouncement of the judgment, the Rules apply to the present application: r 1.04(1) of the Rules. 25 Pursuant to r 36.03 of the Rules, the appellant was required to file a notice of appeal within 21 days after the date on which the Federal Magistrate pronounced judgment. The appellant did not file his present application until 30 April 2012, almost two years after the relevant appeal period had expired. Accordingly, he requires an extension of time pursuant to r 36.05 of the Rules. 26 Generally, there are three relevant matters for the Court to consider in determining whether it should exercise its discretion to extend time. The first is whether an acceptable explanation for the delay has been provided; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought to be allowed to proceed; and the third is whether there would be undue prejudice to the respondent if the Court were to extend time to allow the appeal to proceed: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 27 The draft notice of appeal forming part of this application contains the following grounds: 1. The Federal Magistrate erred in finding that the Tribunal did not fail to take a relevant consideration into account and complied with s.425 of the Act. 2. The Tribunal failed to give the Applicant an opportunity for a fair hearing in accordance with s.425 by not allowing the Applicant's witness to give all his evidence in a proper and constructive manner. 28 I think it is reasonable to infer from the draft notice of appeal's content and indeed from what the appellant has said through his interpreter, that these draft grounds of appeal were formulated by a trained lawyer. 29 The appellant made reference to a barrister who he was unable to identify and who was apparently going to represent him at the hearing before me but was ill and therefore unavailable. When I pressed him to identify the name of any lawyer that was representing him he mentioned the name, Michaela. This, it transpires, is a reference to Ms Michaela Byers, a lawyer, it seems acting on instructions from Amnesty International. Ms Rayment, appearing for the Minister, informed me that she had been in touch with Ms Byers last week when Ms Byers informed her that she was so instructed and that an adjournment was being sought on behalf of the appellant for a period of one month in order for additional preparations to be made for the hearing. 30 After taking instructions, on behalf of the Minister, Ms Rayment then informed Ms Byers by email on Wednesday of last week that any application for an adjournment would be opposed by the Minister. At some stage last week Ms Rayment learned from Ms Byers that she, that is Ms Byers, had a copy of and had read the Minister's written submissions filed in opposition to the application which was before me. The appellant, through his interpreter, informed me that he had received a copy of those written submissions in or about the middle of last month and had provided a copy to Ms Byers by facsimile shortly after he had received his copy. In the context of the conversation concerning the written submissions of the Minister, Ms Byers then informed Ms Rayment that: I will let counsel and AI, Amnesty International, know of your instructions. I don't think we will be able to assist him then". 31 The application for extension of time is supported further by an affidavit of the appellant affirmed on 27 April 2012.
Delay 32 As the first respondent (the Minister) submits, and I accept, the period of delay is unwarrantable, with the appellant being unable to provide a satisfactory explanation for the delay. In his affidavit sworn on 27 April 2012, the appellant stated: he was "very afraid" when his application was dismissed as well as being frightened to appeal due to the fact that if he were to be unsuccessful, he may be liable for costs; that he had already made two unsuccessful applications under s 417 of the Act; and lodged the present application for extension of time due to the fact that he was told that if he did not he would be deported. 33 Even if the appellant had a fear of incurring further legal costs in pursuing an unsuccessful appeal, this does not adequately explain his failure to pursue an appeal for almost two years. Nor does it explain what has since changed for him to overcome that fear and risk incurring further costs after such a considerable delay by lodging the present application. 34 It is also significant that the evidence of the present appellant is that he chose not to appeal. He does not state that he was unaware of the applicable time limits and now concedes that he has lodged the present application to achieve a specific migration objective, for example, to delay a removal action against him, rather than to genuinely seek review of the Federal Magistrate's judgment. 35 The time limits imposed by the Rules are to be taken seriously. As McHugh J said, speaking of statutory limitation periods, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553: A limitation period ... represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. 36 I find that the delay of almost two years in this case is without any satisfactory explanation.
No prospects of success and prejudice to the respondent 37 The Minister submitted that there is nothing in either the comprehensive reasons of the Federal Magistrate or the appellant's draft notice of appeal that expose any basis to justify an extension of time. The grounds in the draft notice of appeal lack particulars to make them meaningful and in substance simply re-agitate the complaints argued by the appellant before the Federal Magistrate. 38 As the Minister submits, and I agree, the appellant's first purported ground of appeal fails to identify the relevant consideration that the Tribunal allegedly failed to take into account. If the appellant seeks to argue that the Tribunal failed to take into account one of the three sets of particulars to ground one addressed by the Federal Magistrate, then he cannot succeed. As I have said, no error is apparent in the Federal Magistrate's finding that the Tribunal did not fail to take into account any relevant consideration. 39 The proposed second ground of appeal identifies no error with the judgment of the Federal Magistrate. The ground is also misconceived because it suggests that in discharging its obligation under s 425 of the Act, the Tribunal owed particular duties to the appellant's witness. No such duties exist. The Tribunal's obligation under s 425 of the Act is to invite the appellant to a hearing in circumstances where the Tribunal is unable to make a decision favourable to the applicant "on the papers". The hearing must be a meaningful opportunity for the applicant to give his evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, and, in conducting that hearing, the Tribunal is required to expose those determinative issues on the review that were not dispositive before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. 40 Furthermore, the appellant may request the Tribunal to call a witness pursuant to s 426(2) of the Act but the Tribunal is not required to obtain evidence from the appellant's witness under s 426(3) of the Act. Nor is there any requirement that any enquiry made by the Tribunal pursuant to s 424 of the Act be made in a particular way: Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489. 41 The appellant also does not explain how his witness (presumably Mr Raheem) was not permitted "to give all his evidence in a proper and constructive manner". To the extent that he seeks to argue the same complaints raised in the Court below, there is no error in the findings of the Federal Magistrate in rejecting the appellant's complaints about the manner in which the Tribunal approached the evidence of Mr Raheem and which are set out at [12] and [13] above. 42 The appellant's proposed grounds of appeal are highly generalised and fail to identify any error in the decision of the Federal Magistrate. There is no merit in the proposed appeal to justify an extension of time. The Minister ought not to be subjected to the prejudice of defending unmeritorious proceedings if time was extended. 43 For these reasons, the application for an extension of time to file and serve a notice of appeal will be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
SZOBL
Minister for Immigration & Citizenship
REASONS FOR JUDGMENT 1 The appellant has applied for an extension of the time to file and serve his notice of appeal from the judgment of the Honourable Federal Magistrate Nicholls delivered on 14 April 2010: SZOBL v Minister for Immigration [2010] FMCA 255. The present application was filed on 30 April 2012, almost two years after the expiration of the time within which the appellant was permitted by the Federal Court Rules 2011 (the Rules). 2 By the judgment which is challenged, the Federal Magistrate dismissed an application made by the appellant under the Migration Act 1958 (Cth) (the Act), seeking review of the decision of the Refugee Review Tribunal (the Tribunal) made on 11 November 2011, by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa.
Particular 1 12 His Honour identified two limbs to the first particular of ground 1. The first asserts that the Tribunal failed to consider, and make proper enquiry of Mr Raheem regarding the appellant's duties and tasks while working for him. His Honour found that the first limb could not be made out, observing that that the Tribunal had made enquiries with Mr Raheem in the form of a telephone call from the Department of Foreign Affairs and Trade (DFAT). Furthermore, his Honour did not accept the appellant's submission that the Tribunal failed to take into account a relevant consideration by failing to consider that Mr Raheem was contacted by DFAT while driving, resulting in him being unable to "properly answer" DFAT's questions. His Honour found that the fact that Mr Raheem was driving was clearly considered and well understood by the Tribunal. In any event, his Honour concluded this it was open to the Tribunal, for the reasons it gave, to reject the assertions made by the appellant and Mr Raheem, and to instead rely upon the details provided by DFAT. 13 The second limb of the appellant's first particular to ground one asserted a breach of procedural fairness by the Tribunal for failing to give Mr Raheem another opportunity to provide further comments. His Honour rejected this submission, observing that: (a) Section 422B of the Act was an exhaustive statement of the natural justice hearing rule, and nothing in Div 4 of the Act compelled the Tribunal to give Mr Raheem a further opportunity to give evidence; (b) Mr Raheem was given further opportunity to expand on his letter of support by a telephone call from DFAT; (c) there is no general obligation or duty on the Tribunal to make enquiries in the statutory context under which the Tribunal is required to operate: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; and (d) no special or rare circumstances were apparent in this case that might otherwise require the Tribunal to make further enquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
[2012] FMCA 255
(1996) 186 CLR 541
(1984) 3 FCR 344
(2009) 238 CLR 489
(2003) 128 FCR 553
(2006) 228 CLR 152
(2004) 207 ALR 12
(1985) 6 FCR 155