SZOXZ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file a notice of appeal. Under O 52 r 15(1)(a)(i) of the Federal Court Rules a notice of appeal is to be filed within 21 days after judgment is pronounced. However, O 52 r 15(2) provides that, notwithstanding this time requirement, "the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal". 2 In this case the Federal Magistrates Court published its reasons for judgment, and made orders dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the RRT), on 10 June 2010 (SZOEV & Anor v Minister for Immigration & Anor [2010] FMCA 407). In that matter the Federal Magistrates Court (at [37]) explained that : At the commencement of the hearing, by consent, the Applicant was granted leave to rely on grounds contained in an amended application, filed on 21 May 2010. The Applicant confirmed that his son's claims were entirely dependent on his claims, despite the fact that the Tribunal gave some consideration to whether or not the son had any independent claims. The Applicant told the Court that he appeared on behalf of himself and his son. His son did not attend the hearing before this Court. 3 The amendment reflected the fact that the decision of the RRT related to an application by two applicants, being father and son. The RRT was not satisfied that either applicant was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (entered into force 22 April 1954) 189 UNTS 150 (as amended by the Protocol Relating to the Status of Refugees (entered into force 4 October 1967) 606 UNTS 267) (the Refugees Convention). Accordingly, the appeal to the Federal Magistrates Court, as amended on 21 May 2010, related to both father and son. 4 The father appealed against the decision of the Federal Magistrates Court. The son was not named as a party to the appeal. The appeal was dismissed on 24 September 2010 (SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045). 5 According to the son's affidavit in support of the present application, his name was omitted from his father's appeal by mistake. When this recently came to the attention of the relevant Department it was discovered that the son did not hold any form of bridging visa, apparently as a consequence of the omission of his name from his father's appeal. According to his affidavit, the son makes this application in order to "continue his legality", which I understand to mean in order to obtain a bridging visa pending the resolution of the proposed appeal. 6 The circumstances disclosed in the application and supporting documents do not indicate the existence of any "special reason" to grant an extension of time as sought. It is not necessary to invoke the principles of Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) or abuse of process by repeated litigation of matters already finally determined (Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242), on which the first respondent relies, to conclude that the present application involves no special reasons warranting an exercise of discretion in the applicant's favour. 7 To the contrary, the circumstances weigh against any exercise of discretion in the applicant's favour. The application was made in January 2011, some seven months after the decision of the Federal Magistrates Court on 10 June 2010. No explanation was offered for the delay other than the mistaken omission of the son's name from the father's appeal (see Parker v The Queen [2002] FCAFC 133 (Parker) at [6]). The RRT dismissed the claims of both father and son. The son's claims were said to be dependent on those of his father. The Federal Magistrates Court in turn dismissed the appeal of both father and son. The father appealed again, omitting the son's name by mistake from the appeal documents, and on 24 September 2010 this Court dismissed that appeal. Nothing in the son's proposed notice of appeal indicates the existence of any matter which could not have been or was not put to this Court as part of the father's appeal. As far as the son is concerned, the sole reason for instituting the appeal (as I understand it) is to obtain a bridging visa. The proposed appeal grounds are therefore weak on their face - a consideration relevant in determining whether the application for an extension of time should be granted (Parker at [6]). The applicant's oral submissions confirmed that his challenge is essentially to the merits of the RRT's decision, which is not permissible. 8 In all of the circumstances, and given that special reasons have not been shown, it would be contrary to the interests of justice for the extension of time to be granted. 9 The application should be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.