Application to this Court
13 The applicant relies on one ground of appeal in his notice of appeal:
That the Federal Circuit [sic] of Australia made an error in finding that there is no jurisdictional error.
14 I accepted the Minister's submission that the judgment in SZTOJ (No 3) is interlocutory: see SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391 at [32] per Cowdroy J. Leave was therefore required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), which provides than an appeal "shall not be brought from a judgment … that is an interlocutory judgment unless the Court or a Judge gives leave to appeal". I therefore treated the application to this Court as an application for extension of time to apply for leave to appeal the primary judge's judgment on the ground set out in the notice of appeal.
15 I explained at the beginning of the hearing that on an application for extension of time I needed to consider the length of the delay and the reasons for it and any prejudice to the respondent arising from the delay. I would also need to consider the merit of the proposed grounds of appeal. There is an overlap between the considerations which guide the exercise of the powers to grant an extension of time for leave to appeal and the grant of leave to appeal. That is, both decisions require consideration of whether there is any merit in the appeal should the extension of time and leave to appeal be granted: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18] per Flick J. I invited the applicant to make his submission having regard to these considerations.
16 The applicant apologised for the delay. He provided the following explanation for the delay in his affidavit supporting his application (without alteration):
I had a hearing on 15 October 2014 in the Federal Circuit court of Australia. We know that there are 28 days' time limits to appeal against any decision. I was waiting for the decision letter from the Federal Circuit Court of Australia. So that I can include the Federal Circuit Court decision with my Federal court application with in the 28 days' time limitation. I received the Federal Circuit Court decision letter on 04 /11/2014. On the 13/11/2014 I intended to lodge my notice of appeal to the Federal Court of Australia and came to know that I had to appeal not 28 days. If I knew this earlier, I would apply before 21 days. I
I apologise for this mistake.
17 The Minister correctly submitted that the delay was in fact 19 days, as the application for leave to appeal the primary judge's decision must be filed within 14 days after the primary judge pronounced the judgment under r 35.13(a) of the Federal Court Rules 2011 (Cth). The Minister did not seek to press any prejudice to it caused by the delay and submitted the main issue was that the proposed grounds had no merit and there was therefore no utility in an extension.
18 The parties accepted that the applicant's proposed ground sought to re-agitate the three grounds of his application to the Federal Circuit Court set out at [9] above. The applicant was invited to, and did address, each of the grounds in oral submissions. However his submission in relation to each ground was, in essence, a complaint that the Tribunal did not believe him. The applicant accepted that he had had a hearing in the Tribunal at which he had an opportunity to present evidence and arguments and he did so. On that basis, the applicant invited impermissible merits review of the Tribunal's decision which was wholly within its jurisdiction to make.
19 Having reviewed the Statement of Decision and Reasons of the Tribunal, I accept the Minister's submission that the Tribunal was thorough and careful in its consideration of the applicant's evidence and submissions and in setting out its reasons for its credibility finding and its refusal to accept the applicant's claims for protection. I perceive no jurisdictional error by the Tribunal.
20 The primary judge, in both SZTOJ (No 2) at [30]-[37] and in SZTOJ (No 3) at [8]-[17], also carefully considered the applicant's grounds for review and submissions made at the hearing on 15 October 2014 and with respect I do not see any appellable error by the primary judge.
21 The ground proposed by the applicant, re-agitating his grounds for review of the Tribunal decision made to the Court below, has no prospect of success. There is no utility in granting an extension of time for leave to appeal and for that reason there is no substantial injustice to the applicant in declining to do so.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.