SZCKN v Minister of Immigration and Multicultural and Indigenous Affairs

[2005] FCA 604

FEDERAL COURT OF AUSTRALIA

SZCKN v Minister of Immigration & Multicultural & Indigenous Affairs

[2005] FCA 604

MIGRATION – application for leave to appeal – no issue of principle

SZCKN V MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 431 OF 2005

CONTI J
10 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 431 OF 2005

BETWEEN:	SZCKN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	10 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file an application for leave to appeal and the application for leave to appeal are dismissed.

2.        The applicant is to pay the respondent’s costs fixed at $1,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 431 OF 2005

BETWEEN:	SZCKN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	10 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the decision and reasons for judgment of a Federal Magistrate made and given on 16 February 2005, which summarily dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 17 November 2003.  The Tribunal upheld the decision of a delegate of the Minister to refuse the applicant a protection visa.  The Federal Magistrate dismissed the application for review on the ground that it disclosed no reasonable cause of action:  Federal Magistrates Court Rules 2001 (Cth) Rule 13.10(a). Although the Federal Magistrate considered at length the reasons given by the Tribunal for its decision, as well as the numerous grounds raised, or possibly raised, by the applicant’s review application, the decision to dismiss the same for lack of a reasonable cause of action carries the consequence that the legal rights of the parties were not effectively determined, and that therefore the Federal Magistrate’s judgment was interlocutory in nature: Re Luck (2003) 203 ALR 1.

2. Since the Federal Magistrate’s judgment was interlocutory, rather than final, the applicant was required to apply for leave to appeal within seven days of judgment delivery:  Federal Court Rules Order 52 r 10(2)(b).  The application was filed outside of that seven day period.  I infer therefore from the present application, which purports to apply also for an extension of time to file and serve a notice of appeal, that the applicant intends to apply for an extension of time in which to file an application for leave to appeal.  I have not had the opportunity to verify this with the applicant, who did not attend the hearing today.  No reason has been provided to the Court for his absence. 

3. Unlike Order 52 rule 15(2) which explicitly provides that ‘special reasons’ must exist before an extension of time is granted to file an notice of appeal, Order 52 rule 10(2) does not require specification of the grounds upon which an extension of time may be granted to file an application for leave to appeal from an interlocutory judgment.  The Full Court of the Federal Court in Deighton v Telstra Corporation Limited (unreported, Lee, Heerey and R D Nicholson JJ, 17 October 1997) considered the scope of the discretion to grant extensions contained in Order 52 rule 10(2), and concluded [at page 4] that by parity of reasoning, and by reference to the structure and content of the rules, the same principles guide the exercise of the discretion to grant an extension of time to file an application for leave to appeal as do the grant of an extension of time to file a notice of appeal.  That is to say, there must be a satisfactory explanation for any delay, there must be ‘special reasons’ that take the matter outside the ‘usual course’ to justify the extension, and there must be reasonable prospects that were an extension to be granted, leave would be given:  Kalaba v The Queen (unreported, Federal Court of Australia, Finn J, 13 September 1996). All that in turn requires consideration as to whether ‘sufficient doubt’ attends the decision for which leave to appeal from is sought, and whether ‘substantial injustice’ would result were that decision to have been wrong: Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397.

4. The applicant filed an affidavit in support of his application which reads as follows (read literally):

   ‘1.  I am a Bangladesh citizen by birth and came to Australia and I applied for protection visa under Determination of Refugee Status in Australia.

   2. The delegate of the Minister for Immigration and Multicultural Affairs refused to grant my protection visa. I applied for review with the Refugee Review Tribunal, Sydney. The refugee Review Tribunal affirms the delegate’s decision. I lodged application for judicial review under the Judiciary Act 1903. I am not satisfied with the Federal Magistrates decision of my. The honourable Federal Magistrates did not consider my groupings.

   3.  Prior to my departure from Bangladesh.  I was living in Bangladesh.  I was problem while I was in Bangladesh.

   4.  I require Leave to Appeal and extension of time to file & serve Notice of Appeal.

   5.  In the fix hearing date I attained in the court.  I did not understand English very well.  I think that the registry will send the copy of the judgement.   If required appeal I need to lodge appeal application after I receive the copy of the judgment.  I am sorry for misunderstanding.

   6.  I above circumstance please consider my request and accept my NOTICE OF APPEAL.

   7.  I do not know the federal court procedure. I am unrepresented.

   8.  Considering the circumstance stated above, I am expecting that Federal Court will make favourable decision in relation to my appeal. I will provide details later.’

5. The applicant also filed a draft notice of appeal.  I will not reproduce the content thereof, since it is of even less assistance that the affidavit in support.  The draft notice of appeal is a document of a variety that I have seen often before in this jurisdiction, and bears the hallmarks of a pro forma document drafted by a migration agent who is able at least to refer to the supported case law authority.  It has little or no bearing to the decisions of either the Tribunal or of the Federal Magistrate. 

6. The applicant has not provided any material in support of his application and as I have stated, he did not even attend the hearing of this application.  The applicant has been unable to identify any jurisdictional error in the Tribunal’s decision, either to me or before to the Federal Magistrate, who considered thoroughly his claims.  Furthermore, the applicant has not even vaguely purported to identify any error in the reasons for judgment of the Federal Magistrate.  In those circumstances, it is impossible to see how any application for leave to appeal could conceivably succeed on the footing of the tests identified in Décor and relied upon by the Minister. 

7. For those reasons I dismiss the application for an extension of time to apply for leave to appeal and I would dismiss any application for leave to appeal, should one implicitly hereby be thought to have been made.  The applicant is ordered to pay the costs of the Minister fixed at $1,500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             12 May 2005

The Applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005