SZEFA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 602

FEDERAL COURT OF AUSTRALIA

SZEFA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 602

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

SZEFA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 314 OF 2005

CONTI J
10 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 314 OF 2005

BETWEEN:	SZEFA 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 to apply for leave to appeal be dismissed.

2.      The application for leave to appeal be dismissed.

3.      The applicant to pay the respondent’s costs of the applications.

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	314 OF 2005

BETWEEN:	SZEFA 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 the judgment of a Federal Magistrate made and given on 9 February 2005, which dismissed the application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 21 June 2002 and handed down on 16 July 2002.  I record that the applicant has a long history of appeals from this decision.  Madgwick J dismissed an earlier application for review initiated by the applicant on 26 November 2002:  Applicant NARO of 2002 v MIMIA [2002] FCA 1465. His Honour’s decision was upheld on appeal by a Full Federal Court (comprising Carr, Kiefel and Allsop JJ) on 21 May 2003: Applicant NAROof 2002 v MIMIA [2003] FCAFC 101. The applicant then sought leave to appeal to the High Court, that application was later abandoned.

2. The genesis of the present proceeding lies in a yet further application for review of the Tribunal's decision made by the applicant to the Federal Magistrates Court on 18 August 2004. The Federal Magistrate summarily dismissed this application on the ground that the Court was not competent to hear the application, since s 477(1A) of the Migration Act 1958 (Cth) requires that an application to the Federal Magistrates Court for review of a Tribunal decision must be made within 28 days of notification of the decision. The Federal Magistrate acknowledged that there exists no legislative basis for an enlargement of the period of time within which such a review could be sought. Having concluded that the Court lacked jurisdiction to hear an application brought out of time, his Honour did not consider the submissions made by counsel for the Minister relating to abuse of process and Anshun estoppel. 

3. The Federal Magistrate’s judgment, involving as it does a summary dismissal, did not determine the legal rights of the parties and was therefore interlocutory:  Re Luck (2003) 203 ALR 1. Hence the applicant needed to seek leave to appeal within seven days: Federal Court Rules Order 52 rule 10(2)(b).  The applicant must also seek an extension of time within which to make the application, since the same was filed outside of the seven day period mandated by Order 52 rule 10(2)(b) of the Federal Court Rules.  I could not confirm with the applicant whether this was her intention, as she did not attend today’s hearing, supposedly by reason of an unparticularised illness.  Given the procedural history of this litigation, I determined to rule on the application in her absence. 

4. Unlike Order 52 rule 15(2), which expressly 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 Court of the Federal Court in Deighton v Telstra Corporation Limited (unreported, Lee, Heerey and R D Nicholson JJ, 17 October 1997) considered (at page 4) the discretion to grant an extension pursuant to Order 52 rule 10(2), and concluded that by parity of reasoning, and by reference to the structure and content of the Federal Court 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 did the grant of an extension of time to file a notice of appeal.  Those principles are 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 if an extension be granted, leave would be given:  Kalaba v The Queen (unreported, Federal Court of Australia, Finn J, 13 September 1996). All that requires consideration as to whether ‘sufficient doubt’ attends the decision from which leave to appeal is sought and whether ‘substantial injustice’ would result were that decision ex hyposesi to have been wrong:  Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397.

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

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

   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.

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

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

   I did not attend the hearing because I think that my hearing date is 15/03/2005. I will tale more later.

   My application is out of time because I do not know the prescribe time limit to file the appeal.  I am unrepresented.  No barrister or solicitor assists me.

   Considering the circumstances stated above, I am expecting the Federal Court will make favourable decision in relation to my appeal.’

6. It is clear from the terms of that affidavit, such as they are, that just as in her litany of review applications and subsequent appeals, the applicant seeks to argue matters of fact going to the merit of her claims based on the present political situation in Bangladesh, as the respondent has submitted.  This application (and the appeal sought to be initiated thereby) is without a scintilla of merit.  By means of her readily apparent abuse of the Australian court system, the applicant has occasioned not inconsiderable public expenditure, as well as needlessly occupying of the time of a Federal Magistrate and several Federal Court judges.  The application must be dismissed, and the applicant must pay the costs of the Minister.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             13 May 2005

The Applicant did not appear
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005