An Extension of Time?
19 But such matters may be left to one side. Before the Applicant can advance any of his proper Grounds of Appeal, he must first obtain an extension of time in which to appeal. In the present proceeding the decision of the Federal Magistrate was published on 7 April 2011. The Application for an Extension of Time was filed in this Court on 6 May 2011.
20 Order 52 r 15 provides that an appeal is to be filed within 21 days, although a discretion is also there conferred to extend time. Rule 15 provides as follows:
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 was pronounced;
(ii) the date when leave to appeal was granted; or
(iii) 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 54A; 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.
(4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must:
(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.
21 No appeal was filed within 21 days after 7 April 2011. The Application for an Extension of Time was filed approximately one week after that 21 day period expired. The extension of time which is sought is thus comparatively short.
22 But before any extension is granted rule 15(2) requires there to be "special reasons". That is an expression which has been considered generally in relation to appeals and in the specific context of appeal from decisions of a Federal Magistrate in respect to migration cases.
23 The onus of demonstrating "special reasons" falls upon the person applying for leave to file and serve a notice of appeal after the expiration of the relevant time limit: Narain v Euroasia (Pacific) Pty Ltd [2010] FCA 1352 at [11] per Gray J. What is intended to be embraced by the expression "special reasons" is simple enough. It is an 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: Jess v Scott (1986) 12 FCR 187 at 195. The expression does not imply "something narrower than this". See also Perpetual Trustee Company Ltd v Smith [2010] FCAFC 91 at [13], 186 FCR 566 at 572 to 573 per Moore and Stone JJ. The discretion is conferred for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, RD Nicholson and Finkelstein JJ.
24 An extension of time, even an extension of a few days, may be refused where an appeal has no prospects of success: e.g., Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J. "Little injustice", it has been said, "may be occasioned if an appeal were hopeless": SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J.
25 Also of relevance when exercising the discretion to extend time is any explanation that may be proffered for the delay: cf Spires v Secretary, Department of Family and Community Services [2002] FCA 578 at [1], 68 ALD 577 at 578 per Mansfield J.
26 Notwithstanding the shortness of the period of time for which an extension is sought in the present proceeding, it is nevertheless considered that an extension of time should be refused because:
although considerable reservation is expressed as to the reasons proffered by the Applicant for the delay in filing any appeal, it may be accepted that an explanation has been provided;
but that:
none of the proposed Grounds of Appeal have any merit.
27 Reservation is expressed as to the reasons advanced for the delay in filing a Notice of Appeal within time. It may be accepted that the decision of the Federal Magistrate was given on 7 April 2011 and that on 20 April 2011 there were considerable disturbances at the Villawood Detention Centre. It may further be accepted that those detainees who were not involved in those disturbances may have been themselves considerably distressed by those disturbances. There was, nevertheless, no attention directed by the Applicant to any steps taken between 7 and 20 April 2011 to secure advice as to the possible grounds upon which the Federal Magistrate's decision could potentially be reviewed. And it may further be queried as to whether an officer of the Department would have provided advice that an appeal may be lodged within 35 days - a discrepancy between 21 and 28 days, on the other hand, is frequently experienced.
28 Such reservations were shared by the solicitor appearing on behalf of the Respondent Minister.
29 For the purposes of resolving the Application for an Extension of Time, however, the basis upon which the extension was sought may be accepted. The primary basis upon which the Respondent Minister opposed the extension of time was the lack of any prospects of success, even should the time be extended.
30 The first proposed Ground of Appeal alleges bias and a lack of fairness - not on the part of the Federal Magistrate - but on the part of the Tribunal. No appellable error is said to have been committed by the Federal Magistrate. To the extent that the Ground of Appeal can perhaps be construed as a complaint that the Federal Magistrate erroneously rejected a like allegation as to bias on the part of the Tribunal, it is without merit. The approach to be adopted when considering an allegation of bias on the part of the Tribunal has been expressed by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425 as follows:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
In applying this decision, the reasons of the Federal Magistrate were as follows:
[45] … In my opinion, the Tribunal's decision shows generally that it carefully considered all the evidence of the applicant and weighed its particular merits and demerits, insofar as it reflected on the applicant having a genuine religious commitment in China and in Australia.
[46] The applicant's eighth point, which he raised in several of his previous points, including his seventh point, was that the defects in the Tribunal's procedures and its reasoning which he pointed to showed that it had assessed his case with a closed mind or, in his words, that it was biased against him.
[47] I have considered all the points that the applicant made to illustrate or explain his concern about bias, but I am unpersuaded that he has pointed to any evidence giving substance to a concern that the Tribunal might not have assessed his evidence with a mind open to persuasion prior to reaching its decision (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425).
[48] Taking into account all that the applicant has said to me today, I am not persuaded that any jurisdictional error has been identified in the evidence before me, or indeed pointed to in the submissions of the applicant which were unsupported by evidence. For that reason, I must dismiss his application.
Such reasoning, it may be said, is less than fulsome and may be the inevitable product of an ex tempore judgment. Divorced from its context, it progresses little beyond a statement that the argument as to bias is rejected. The source of any criticism, however, need not necessarily be attributable to the Federal Magistrate. Frequently it is the unrepresented litigant who fails to articulate the case sought to be advanced under the rubric of "bias". Whatever may be the difficulties presented by an individual case, it is preferable to at least set forth in sufficient detail the basis upon which an argument is advanced and the basis upon which it is either accepted or rejected. The litigant then has the satisfaction of knowing that his argument has been understood and considered. Ex tempore reasons provided by a Federal Magistrate which do not fully explain the basis upon which relief has been refused only have the potential to transfer the review function entrusted to that Court by the Legislature to this Court and to impermissibly transform the appellate function of this Court into a Court at first instance. Notwithstanding the less than fulsome manner in which the reasons have presently been expressed, it is nevertheless considered that they do not expose appellable error.
31 The second Ground of Appeal may be construed as a complaint founded in the delivery of an ex tempore judgment by the Federal Magistrate. Reservation has elsewhere been expressed as to the delivery of ex tempore reasons of a Federal Magistrate for decisions arising under the Migration Act: SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [17] to [19]. Notwithstanding such reservation, it must necessarily be accepted that there can be no universal approach to be applied in all cases. The delivery of ex tempore reasons has both advantages and disadvantages: Kirby J, 'Ex Tempore Reasons' (1992) 9 Australian Bar Review 93. But there is nothing in the circumstances of the present case to warrant any conclusion that the Federal Magistrate did not "fairly" consider the arguments being advanced before him for resolution.
32 The third and final Ground of Appeal is an impermissible attempt to seek merits review.
33 Each of the proposed Grounds of Appeal lack such merit as may otherwise have warranted an extension of time in which to appeal.
34 There is no reason why the normal 21 day period prescribed by the Rules should not apply as the Grounds of Appeal sought to be advanced are without merit. Left to one side in reaching this conclusion is whether or not the Grounds have been drafted by someone who has given any attention at all to the issues to be resolved by the Federal Magistrate and to be raised on appeal to this Court, or drafted by someone who has regurgitated a set format of Grounds invoked in any and all proceedings in which her so-called "advice" or "assistance" has been sought - and, hopefully, not paid for.