SZHRW v Minister for Immigration and Citizenship

[2007] FCA 1202

FEDERAL COURT OF AUSTRALIA

SZHRW V Minister for Immigration & Citizenship [2007] FCA 1202

SZHRW AND SZHRX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1061 OF 2007

JESSUP J
7 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1061 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHRW
First Applicant

SZHRX
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applications for extensions of time to file and serve Notices of Appeal be dismissed.

2.The applicants pay the costs of the first respondent fixed in the sum of $1150.

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	NSD1061 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHRW
First Applicant

SZHRX
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	7 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are applications for extensions of time within which to file and serve Notices of Appeal against a judgment of the Federal Magistrates Court of Australia given on 19 April 2007 dismissing applications for judicial review of a decision of the Refugee Review Tribunal made on 12 October 2005, and handed down on 3 November 2005, affirming a decision of a delegate of the respondent Minister to refuse to grant protection visas to the applicants pursuant to s 36 of the Migration Act 1958 (Cth). The Magistrate’s judgment was pronounced on 19 April 2007, but according to the certificate of his Associate, it was only on 13 June 2007 that he published his reasons and judgment in written form.

2. In his affidavit in support of the applications, the first applicant said that he received a copy of the Magistrate’s decision on 30 May 2007, a circumstance which I am unable readily to reconcile with the Associate’s certificate.  However that may be, on any view, it was more than 21 days after the judgment of the Federal Magistrate that a written version of that judgment was available to the applicants.  The first applicant has told me from the bar table today that, upon receiving the written reasons of the Federal Magistrate, he showed or sent them to a friend of his who advised him that he could appeal to this court from the judgment.  The applicants’ applications for extensions of time were made on 13 June 2007. 

3. The question whether an extension of time should be given in circumstances such as the present falls to be decided under O 52 r 15(2) of the Federal Court Rules.  That subrule gives the court, or a Judge, the power to extend time for the filing and service of a Notice of Appeal where a case is made out for the exercise of that power according to special reasons.  The requirement for special reasons was the subject of the following observation of the Full Court in Jess v Scott (1986) 12 FCR 187 at 195:

   What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”.   It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days.  In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression “for special reasons” implies something narrower than this. 

4. Whatever may have been the actual circumstances leading to an intending appellant’s failure to file his or her Notice of Appeal within the 21 days prescribed by the Rules, it seems that a consideration of the intending appellant’s prospects of successfully prosecuting the intended appeal will, perhaps always, be an element of any case for an extension: see WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. In the circumstances, it is appropriate that I deal both with the reasons advanced by the applicants as to why they did not file their Notice of Appeal within time, and with the apparent prospects of success which their intended appeal would have.

5. While I can understand that an intending appellant, particularly someone without a command of English such as the present applicants might think it appropriate to await the arrival of written reasons from the Federal Magistrate before turning his or her mind to the question of an appeal, nonetheless, I do not accept, as a general proposition, that such an intending appellant is entitled to proceed in this way, or that the court should regard the absence of written reasons within the 21-day period as necessarily constituting a special circumstance.  The Federal Magistrates Court is a court in which, whatever the nature of its jurisdiction, justice should be dispensed promptly, and many judgments are given ex tempore as apparently was the judgment in the present case.  The first applicant was present when the judgment was given by the Federal Magistrate, and he made it clear today that he understood the nature of that judgment and that he had been unsuccessful.  For me to accept that the applicants were, in effect, entitled to do nothing until the written reasons had been provided seems to involve an assumption that they might be taken to be aware of the circumstance that an appeal lay to this court but not aware of the circumstance that the appeal should be lodged within 21 days of the pronouncement of the judgment against them.  I am not prepared to proceed according to those assumptions.  The fact is that an appeal did lie, but it lay only on the condition that the right to appeal was exercised within 21 days. 

6. I am not prepared to recognise what would, in effect, be a prima facie entitlement of these or any other intending appellants to do nothing until written reasons arrived.  However, I do not base my decision today upon that circumstance alone.  Mr Leerdam, who represented the respondent Minister, emphasised the lack of apparent merits in the appeal which the applicants propose.  In their draft Notice of Appeal accompanying their applications for extensions of time, the applicants have given no indication of the grounds upon which they would wish to say that the Federal Magistrate was in error.  Neither did the first applicant say anything about the subject of the Federal Magistrate’s error in his submissions before me today.  I have looked at the Federal Magistrate’s reasons and I have had the assistance of submissions, both written and oral, on behalf of the respondent Minister.  I am satisfied that the Magistrate’s reasons are free of any apparent error of the kind that might found the basis of an appeal.  I consider therefore that the appeal, if lodged within time, would have had poor prospects of success, and that for that reason the applicants would suffer no injustice if their application for an extension of time were refused. 

7. For the above reasons, I intend to dismiss the applications.

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

Associate:

Dated:        9 August 2007

Counsel for the Applicants:	The first applicant appeared in person and on behalf of the second applicant
Counsel for the Respondents:	Mr L Leerdam
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007