SZRQZ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time and leave to appeal from the decision of a Federal Magistrate made on 19 November 2012. 2 On 19 November 2012, a Federal Magistrate ordered that the applicants' application for judicial review of a decision of the Refugee Review Tribunal be dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (FMC Rules): SZRQZ v Minister for Immigration [2012] FMCA 1141. The provision referred to in the order permits the Federal Magistrates Court to dismiss an application if it is not satisfied that it raises an arguable case for the relief claimed. Relevantly, r 44.12(2) of the FMC Rules provides that an order made under r 44.12(1)(a) is interlocutory in nature. 3 Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicants require leave to appeal from the Federal Magistrate's decision. 4 Rule 35.13(a) of the Federal Court Rules 2011 (Rules) requires that an application for leave be filed within 14 days after the date on which the judgment was pronounced or the order was made. 5 The applicants filed a notice of appeal in this Court on 7 December 2012 without first seeking leave. An objection to competency was filed by the Minister and the applicants discontinued their appeal on 31 December 2012. On the same day the applicants filed an application for an extension of time and leave to appeal. 6 In accordance with r 35.14(3)(c) of the Rules, the application was accompanied by an affidavit. Such an affidavit is required to state "briefly but specifically, the facts on which the application relies" and "why the application for leave to appeal was not filed within time". The affidavit of the first applicant reads, in its totality (excluding formal parts): 1. I am the applicant in these procedigs; 2. I received the decision after two weeks;. 3. I field a notice of appeal with the Federal Court on 7 December 2012; 4. I did not that the application will be lodged within 2 weeks from the date of the decision. 5. Further to this , I am very sick when I attend the Court Registry I became unconscious and the Court officers sent me Sydney Hospital. (Errors in the original) 7 Contrary to the requirements of the balance of r 35.14(3) - a draft notice of appeal, the judgment or order from which leave to appeal is sought and the reasons for that judgment or order were not provided. Nevertheless, the judgment and reasons have subsequently been filed by the Minister's representative. In the absence of a draft notice of appeal or submissions from the appellants suggesting proposed grounds I am prepared to take the original notice of appeal filed in the now-discontinued proceedings NSD2041/2012 as the draft notice of appeal to be relied upon should leave to appeal be granted. In the absence of a request for the application to be heard on the papers, it proceeded to this hearing. 8 At the hearing of the application, the first applicant appeared unrepresented with the assistance of an interpreter and sought to represent the second and third applicants. In light of the requirements of r 4.01 of the Rules, I declined to allow the first applicant to appear on behalf of her husband, the second applicant. However, consistently with the approach taken by the Federal Magistrate, I permitted her to appear on behalf of her child (the third applicant) as the child's litigation representative. In doing so, I indicated that I would make an order dispensing with compliance with the relevant parts of Div 9.6 of Pt 9 of Ch 2 of the Rules. 9 The principles guiding the discretion to grant an extension of time and leave to appeal are well known and were set out at paragraphs [26]-[31] of the Minister's written submissions (without alteration except for the inclusion of the substance of footnotes throughout the text): 26 The discretionary power to extend time is now addressed by r 35.14 of the Federal Court Rules 2011. It formerly had its counterpart in respect to applications for leave to appeal from interlocutory judgments in Order 52 r 10(2A) of the now-repealed Federal Court Rules. It is well established that a "casual disregard of the requirements of the Rules" is "inappropriate" [Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] per Moore, Bennett and Buchanan JJ; SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814 at [18] per Logan J; SMS Technology Australia Pty Ltd v Abdullah M Al Hamed [2009] FCA 451 at [11] per Logan J], and that the grant of an extension of time is not "automatic" [Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458]. 27 The considerations relevant to the exercise of the Court's discretion to extend time have been formulated as: … the court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349. [SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21] per Cowdroy J; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12] per Flick J] 28 The discretionary power to grant leave to appeal from an interlocutory decision is also not a power to be "automatically" exercised upon application being made [SZQZJ v Minister for Immigration and Citizenship at [16] per Flick J]. Section 24(1A) of the Federal Court of Australia Act confers on the court "an unfettered discretion" in "unqualified terms" [DÉcor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ]. In order for the Court to grant leave to appeal the applicant must satisfy the Court of the cumulative test set out in DÉcor Corporation Pty v Dart Industries [at 398-399], namely: (a) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and (b) whether substantial injustice would result if leave were refused supposing the decision would be wrong. 29 There two considerations are not unrelated [Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ]. The "sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments" [Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908 at 910 per Burchett J]. In CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5] Keane CJ and Jacobson J observed that [g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice … . 30 It is for the applicant seeking leave to appeal to satisfy the Court of these matters [Ogawa v The University of Melbourne (No 2) [2004] FCA 1275]. If, however, the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then the application for leave to appeal should not be granted. 31 Any discretion must always be exercised by reference to the relevant facts and circumstances of each individual case. In the present proceeding, there is an overlap in the considerations which guide the exercise of both discretionary powers now in issue. Such overlap is not surprising given that the discretionary powers conferred upon the Court are primarily directed to ensuring the proper administration of justice [Outboard Marine Australia Pty Ltd v Byrnes: Baukenecht (Third Party) [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA]. Compliance with the rules of the Court, however, extends beyond the immediate litigious interests of the parties to the public interest in the orderly administration of justice [McGrath and Honey in their capacity as liquidators of Pan Pharmaceuticals Ltd (In Liquidation) v Australian Naturalcare Products Pty Ltd [2006] FCA 1843 at [14] per Allsop J; Von Arnim v Medfin Australia Pty Ltd [2008] FCA 472 at [13]; R v Meyboom [2012] ACTCA 2 at [63], 256 FLR 450 at 460 per Refshauge J]. 10 The explanation provided by the applicants, albeit in short form, in the affidavit accompanying the application for leave may be sufficient in the ordinary course. The fact that the order is interlocutory in nature means that the appeal period is reduced to 14 days. Had the order been final, rather than interlocutory, the notice of appeal would have been within time. This is an explicable and understandable error on the part of an unrepresented litigant. However, exercising the discretion to extend time in an unmeritorious case would be futile. 11 The applicants were put on notice that the grounds of the application for judicial review before the Federal Magistrate (extracted at [15] of the Federal Magistrate's reasons) were deficient from the outset. The Federal Magistrate advised the applicant of his view, referred them to the "RRT Legal Advice Scheme" where they met with, and received advice from, a legal practitioner. An opportunity was also given to them to file an amended application. The applicants did not take up that invitation. 12 The reasons of the Federal Magistrate indicate that he was of the view that the grounds of application simply sought to attack the Refugee Review Tribunal's findings of fact and invite the Court to undertake, impermissibly, merits review. That opinion was correct in my view. 13 Furthermore, the grounds of appeal in the draft notice of appeal simply re-agitate these issues. This Court would be left in the same position as the Federal Magistrate at first instance should the extension of time and leave to appeal be granted. 14 I am not satisfied that there is any merit in the grounds of appeal whatsoever. The applicants have not articulated and prosecuted any permissible grounds for judicial review and accordingly I am not satisfied the decision is attended with sufficient doubt to warrant reconsideration on appeal. In such circumstances I decline to allow the extension of time or grant leave to appeal. 15 I order that: 1. Compliance with rr 9.63, 9.64 and 9.66(3) of the Federal Court Rules 2011 is dispensed with and the first applicant is appointed the litigation representative of the third applicant, a child. 2. The application for extension of time and leave to appeal is dismissed. 3. The first applicant pay the costs of the first respondent. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.