SZDTH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 891

FEDERAL COURT OF AUSTRALIA

SZDTH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 891

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 cited

SZDTH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 753 OF 2005

HELY J
16 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 753 OF 2005

BETWEEN:	SZDTH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	16 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file and serve a Notice of Appeal be dismissed with costs.

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 753 OF 2005

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

JUDGE:	HELY J
DATE:	16 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a notice of appeal from a judgment of Federal Magistrate Smith delivered on 18 April 2005 dismissing the applicant’s claim for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2. The last day for lodging an appeal was 9 May 2005.  This application for an extension of time was filed on 16 May 2005.  The applicant explains his failure to lodge a notice of appeal within the time prescribed by his lack of knowledge of Court procedures and because Smith FM’s written reasons for decision were not published until 16 May 2005.  The delay is short.  A reasonable explanation for it has been proffered and the respondent could not be prejudiced by the brief lapse of time.

3. If delay was the only problem, I would extend the time for filing a notice of appeal.  However, the Minister opposes an extension on the ground that to extend time would be an exercise in futility because the proposed appeal is hopeless.  The discretion of the Court to extend time is given for the purpose of enabling the Court to do justice between the parties.  No injustice will accrue to the applicant from a refusal of an extension of time if the proposed appeal has no prospects of success.

4. Clearly enough, it is not for me to decide whether the appeal should succeed or whether it should fail.  I do not have to be persuaded that the applicant will win his appeal, but I do need to be satisfied that some arguable case of jurisdictional error on the part of the RRT has been made out, otherwise it would be pointless to grant an extension of time.

5. Smith FM records in his decision that the application before him contained only three general assertions as grounds for the application.  These were as follows:

   ‘1.       I was denied natural justice.

   2.        RRT made decision favourable to DIMIA.

   3.        In the hearing RRT asked irrelevant question.’

6. Smith FM correctly concluded that there was no substance in any of those grounds.  If the second of those grounds was in truth an allegation of bad faith, Smith FM could not identify any proper basis for that allegation, as the only matter relied upon in support of it was the terms of the decision itself.  Clearly, it could not succeed.

7. Having dismissed the three grounds taken by the applicant, the bulk of his Honour’s decision represented a general review of the RRT’s decision, with the apparent purpose of ascertaining whether there was any jurisdictional error which could be identified on the part of the RRT, even if it had not been identified by the applicant in his application to the Federal Magistrates Court.  As a result, after a very detailed consideration of the RRT’s reasons, Smith FM said that he had not been able to find jurisdictional error affecting the RRT’s decision.

8. The draft Notice of Appeal to this Court contains two grounds of appeal.  Ground one states:

   ‘The Single judge of the Federal Magistrates Court In her Honour Judgment delivered on the 18 April 2005 failed to find error of law Jurisdictional error Procedural fairness and relief under section 39B of the Judiciary Act (1903).’

9. It is clear that Smith FM failed to find these matters for the reason that none of these matters had been made out.  No arguable ground of appeal has been shown to exist in that respect.

10. The second ground is as follows:

    ‘The grounds and relief is very much similar with a recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review - Nature and extent of obligation - Migration Act (1958) (Cth), ss 148(3), 424(1).’

11. This ground follows a form which by now has become familiar to judges of this Court.  It is a ground which is raised in many of these cases even though it bears no conceivable relationship to the circumstances of the particular case.  Two things should be said about this ground in this case.  First, it was not a matter raised before Smith FM, hence it cannot be raised before this Court, but second and more importantly, the factual foundation for the operation of the principle established in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 has not been laid in the present case.

12. The two grounds of appeal contained in the draft Notice of Appeal have no prospect of success.  I explained to the applicant when this matter first came before me that he needed to show that there was some utility in granting an extension of time.  I adjourned the matter until today to give him the opportunity of putting before me anything that he wished to put to me to show that his appeal had some viable ground.  He produced a written document of some six pages in length styled ‘Applicant’s Submission’ and dated 16 June 2005 which I have placed with the papers.  I do not propose to go through that document line for line.  My ultimate conclusion is that the applicant’s position is not improved when regard is had to this document in addition to the terms of the draft Notice of Appeal.

13. I should, however, refer to some features of the applicant’s submissions.  First, the applicant claims that the RRT was induced or affected by actual bias.  As I said, it is by no means clear that a case to this effect was sought to be made before Smith FM but if it was, Smith FM correctly concluded that it was without foundation.  Second, there are assertions, which take various forms, that the RRT came to the wrong conclusion because the applicant is a genuine refugee and that the RRT did not accept, but should have accepted, that the applicant’s claims were genuine and true.  By putting these matters the applicant impermissibly seeks to have the Court engage in a merits review of the RRT’s decision and it is beyond argument that the Court has no such power.  On page three of the document there is an attempt to introduce unparticularised fresh grounds which were not the subject of the original application and which are without any indication that they are of any substance. 

14. In subsequent pages there are unparticularised general assertions of error on the part of the RRT which are outside the scope of the original application.  Finally, on page five of the document the proposition is put that the Court should listen to the audio recording of the RRT hearing whereupon I ‘will easily find the error of law’.  However, the audio cassettes were not in evidence before Smith FM and in any event, there is no indication as to how listening to them would expose an error of law.  In my view, the document which has been placed before me this afternoon, far from demonstrating that the applicant has an arguable case of error on the part of Smith FM or jurisdictional error on the part of the RRT, really exposes that he has no such case.  The document is no more than a collocation of general or generic complaints which really have nothing to do with the circumstances of the applicant’s particular case.

15. I agree with the submissions of the solicitor for the Minister that the appeal would be hopeless, that there is simply no point in granting an extension of time, and that it would be a misuse of the discretion to extend time merely to allow a hopeless appeal to go forward.  For those reasons, I dismiss the application.

16. The usual practice of the Court in a case such as this is to order an unsuccessful applicant to pay the respondent’s costs of the application.  There is no reason for departing from that ordinary practice.  I therefore order the applicant to pay the respondent’s costs of the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             30 June 2005

The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 June 2005
Date of Judgment:	16 June 2005