SZRFX v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time to appeal against an order of the Federal Magistrates Court dismissing the applicants' applications for review of a decision of the Refugee Review Tribunal refusing the applicants protection visas. The Federal Magistrates Court published its reasons for decision on 21 August 2012 (SZRFX v Minister for Immigration [2012] FMCA 779) and made its orders dismissing the application on the same day. Under r 36.03 of the Federal Court Rules 2011 (the Rules) any appeal was required to have been filed and served within 21 days after 21 August 2012, that is, by 11 September 2012. No notice of appeal was filed and served within that 21 day period. Rather, an application for an extension of time to appeal was filed on 7 November 2012, nearly two months after the expiry of the 21 day period. 2 The Court may grant an extension of time in which to file a notice of appeal under r 36.05 of the Rules. The relevant legal principles were explained by Bromberg J in SZQEH v Minister for Immigration and Citizenship [2012] FCA 127 and Katzmann J in Dunlop v Fishburn (No 3) [2012] FCA 315. In short, key considerations as to whether or not an extension of time should be granted are whether there is an adequate explanation for the delay in making the application and whether there is a prospect of success in the substantive appeal. 3 As to the first issue, the explanation for the delay, there is an affidavit explaining that the first applicant, who is an infant, had been ill and his parents, the second and third applicants, had no money to pay legal fees or medical fees. The explanation is not adequate in the sense that the affidavit does not demonstrate why the illness of the first applicant or the financial condition of his parents prevented or affected the capacity to file and serve a notice of appeal. Nevertheless if I were satisfied that the substantive appeal had any prospect of success, the lack of an adequate explanation would not have persuaded me not to extend time given the relatively short extension which is required, the attempt which has been made to explain the delay, and the lack of any prejudice to the Minister which would be caused by granting the extension. 4 The second issue, the prospects of success of the substantive appeal, is determinative against the grant of an extension. As explained in the reasons for judgment of the Federal Magistrates Court all but the first applicant had already exhausted their rights of application and review before they purported to lodge another application including an application for their infant son, the first applicant. This included the second, third and fourth applicants applying for but being refused special leave to appeal to the High Court of Australia. For this reason the Refugee Review Tribunal determined (correctly) that it had no jurisdiction to carry out any further review in respect of the second, third and fourth applicants. Insofar as the first applicant is concerned the Federal Magistrates Court noted at [6] that the claims made on behalf of the first applicant were "merely an iteration of the parents' claims". The Federal Magistrates Court at [7] - [11] explained the reasons of the Refugee Review Tribunal for not accepting the parents' claims. At [13] the Federal Magistrates Court identified the three grounds put on behalf of the first applicant as to why the Refugee Review Tribunal had made jurisdictional errors in its decision. The essence of the allegations were the Refugee Review Tribunal failed to consider matters which it plainly did consider. As the Federal Magistrates Court stated at [14] the Refugee Review Tribunal "dealt with each of the claims made by the applicant and explained why it was unable to accept them". 5 At [19] the Federal Magistrates Court noted that the parents of the first applicant had sought to adduce evidence from two witnesses from India and "that the Tribunal did not consider any of their evidence". Although I do not have a transcript of the hearing before the Federal Magistrates Court I infer from [19] that the Federal Magistrates Court did not permit the parents to adduce further evidence. This was appropriate given that the issue before the Federal Magistrates Court was whether the Refugee Review Tribunal had made jurisdictional errors. The Federal Magistrates Court at [19] also said that the submission of the parents that the Tribunal had not considered any of their evidence was incorrect for the reasons which had already been given by the Federal Magistrates Court. 6 In the proposed appeal to this Court there are five grounds none of which are properly particularised and none of which, in my view, can be sustained having regard to the reasons for judgment of the Federal Magistrates Court. The parents of the first applicant noted that they did not have a solicitor because they did not have the money to pay for a solicitor's services. Accepting this to be so does not alter the fact that I am unable to see any error in the reasons for judgment of the Federal Magistrates Court. 7 In these circumstances it would not be in the interests of justice to grant to the first applicant (still less, the second, third and fourth applicants) the extension of time to appeal. Orders will be made accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.