SZCTJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 598

FEDERAL COURT OF AUSTRALIA

SZCTJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 598

MIGRATION – application for leave to appeal from Federal Magistrate – no issue of principle

SZCTJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 244 OF 2005

CONTI J
10 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 244 OF 2005

BETWEEN:	SZCTJ 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 of an extension of time and for leave to appeal is dismissed.

2.        The applicant pay the respondent’s costs fixed at $600.00.

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	N 244 OF 2005

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

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

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a Federal Magistrate’s summary dismissal of an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 19 December 2003 and handed down on 16 January 2004, which refused the applicant’s application for review of the decision of the Minister’s delegate made on 31 March 2003.  The Federal Magistrate dismissed the application for review of the Tribunal’s decision on the ground that the applicant had failed to comply with an earlier order of the Court to file an amended application specifying the grounds relied upon, as well as an affidavit in support of the application.  This judgment did not determine the legal rights of the parties and was therefore interlocutory:  Re Luck (2003) 203 ALR 1. As such, the applicant was required to seek leave to appeal from that judgment within seven days: Federal Court Rules Order 52 rule 10(2)(b).  I will assume for the purposes of this application that the applicant also seeks an extension of time within which to make the same.

2. 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 specify the grounds upon which an extension of time may be granted to file an application to file leave to appeal from an interlocutory judgment.  The Full 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 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 in the case of the grant of an extension of time to file a notice of appeal.  Those principles in summary were that there must be a satisfactory explanation for the 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). The applicable principles therefore require that consideration of whether ‘sufficient doubt’ attends the decision from which leave to appeal is sought, and whether ‘substantial injustice’ would result were that decision be found to have been wrong: Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397.

3. The affidavit of the applicant filed in support of the application for leave to appeal is as follows (read literally):

   1.  (A) I am a FaLun Gong Practioner

   (B) I would be prosecuted if I return to China, because I believe in Falun DaFa and practise Falung Gong

   (C) I was arrested and been jailed by Chinese Authorities, because I practised Falun Gong and took part in activities of Falun Gong.

4. The applicant also filed a draft notice of appeal, which is in precisely the same terms as the affidavit.  Neither document even purportedly attempted to account for the applicant’s delay in filing the application for leave.  Nor was there anything to suggest that special circumstances exist which would justify the grant of an extension of time within which to file an application for leave to appeal.  The applicant failed moreover to provide the Federal Magistrate with any justifiable basis for review of the Tribunal’s decision.  The draft notice of appeal to this Court does not identify any ground of appeal in the conventional sense from either the Tribunal’s decision or that of the Federal Magistrate below.  The applicant has not filed any written submissions or any other document identifying a particular ground or error upon which an appeal might proceed or be founded.  Instead, the applicant seeks merely to agitate supposed absence of merits appearing in the Tribunal’s decision. 

5. In my opinion the application (and the appeal which it seeks consequentially to bring) is totally without merit.  When invited to address the legal basis or merits of the appeal, the appellant was unable to satisfactorily do so.  The application must plainly be dismissed, and the applicant must pay the respondent’s costs, which have been assessed at $600.00. 

I certify that the preceding five (5) 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:	Australian Government Solicitor
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005