SZHSS v Minister for Immigration and Multicultural Affairs

[2006] FCA 1513

FEDERAL COURT OF AUSTRALIA

SZHSS v Minister for Immigration and Multicultural Affairs [2006] FCA 1513

Migration Act 1958 (Cth)

Jess v Scott (1986) 12 FCR 186

SZHSS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD1254 OF 2006

JESSUP J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1254 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSS
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application 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	NSD1254 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSS
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant filed an application for an extension of time to file and serve a Notice of Appeal from a judgment of the Federal Magistrates Court given on 24 April 2006 against him and in favour of the respondent Minister.  The applicant is from India.  He entered Australia on 19 June 2005 and shortly thereafter applied for a protection visa under the Migration Act 1958 (Cth). That application was refused by a delegate of the Minister, and the delegate's decision was subsequently affirmed by the Refugee Review Tribunal. The application in the Federal Magistrates Court was based, as it had to be, upon an allegation that the Tribunal erred in point of jurisdiction in the way it disposed of the application before it.

2. The applicant needs an extension of time to appeal from the Federal Magistrate's judgment because the time limited by the Rules of Court is 21 days, and he did not file his application for an extension until some six weeks after the expiration of that period.  Notwithstanding the 21-day period fixed by the Rules of Court, under O 52 r 15(2) the court has a discretion, where special reasons are shown, to permit the applicant to file and serve a Notice of Appeal.  The rule requires an application such as the present to be accompanied by an affidavit showing the nature of the case, the questions involved and the reason why leave should be granted.

3. In an affidavit made on 29 June 2006, the applicant said that he did not receive judgment of the Federal Magistrate until 28 June 2006; that he got the judgment when he went to the court on that day; and that he strongly and firmly believed that he had legitimate claims for a protection visa.  The applicant represented himself before me today with the assistance of an interpreter.  He explained his failure to lodge a Notice of Appeal within the required time by reference to the circumstance to which he referred in his affidavit, namely, that he had not received a letter from the court informing him of the Federal Magistrate's judgment and reasons.  However, he also made it clear, as appears from the record, that he represented himself before the Federal Magistrate, and was present when the Federal Magistrate gave his reasons and pronounced his judgment.  Indeed, the applicant told me that he had the assistance of an interpreter in that process, and that the terms of the Federal Magistrate's judgment and reasons were interpreted for him. 

4. The approach which the court should take in an application such as the present was established some years ago in Jess v Scott (1986) 12 FCR 187 at 195. The court said:

   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 that the use of the expression 'for special reasons' implies something narrower than this.

5. I am not persuaded that the circumstances to which the applicant has referred in explanation for his failure to file an appeal within 21 days are such as would take the case out of the ordinary within the terms of the court's pronouncement in Jess v Scott.  I do not accept as a legitimate explanation for failure to act within time that the applicant was entitled to do nothing until the court itself sent him a copy of its reasons and judgment.  He was present in court when those reasons were given and that judgment was delivered, and he understood the purport thereof.  I accept, of course, that he may not have known that the time within which he ought to file his appeal was 21 days but, by the same token, neither did he have any legitimate reason to assume that it was some longer period of time.  If he felt that he could wait indefinitely before lodging his appeal, I do not accept that as a legitimate way to proceed on his part.  Neither do I regard his presumption that in due course the court would send him a document and that he need do nothing until that document arrived as justifiable, even in the case of someone who does not know the actual terms of the Rules of Court.  We are all presumed to know the law, although it is notorious that many of us do not, at least in matters of detail such as that now at issue.  I do not consider that the circumstance that the applicant is from an overseas country with little or no command of English takes him out of the general body of assumptions which are appropriate to be made in cases such as the present.  I think the circumstances of the applicant are those of a person who has not shown a conscientious and interested concern as to the protection of his own rights in circumstances where a very important application had been decided against him by the Federal Magistrate. 

6. I take account also of the prospects of success of an appeal, should one be lodged after an extension of time.  Although the Federal Magistrate dealt with a number of matters, it is evident that the central thrust of the applicant's case was that he had been denied the opportunity to attend before the Tribunal in person and to state his case.  This is an aspect which was fully ventilated before the Federal Magistrate and dealt with, I observe, adequately and fairly by his Honour.  I need not recite what the Federal Magistrate said about this aspect as it is set out clearly in his reasons given in the matter, recorded at SZHSS v MIMA [2006] FMCA 593, particularly at [6] - [10].

7. The applicant has not been able to enlighten me with respect to any mistake which the Federal Magistrate made, and I had the distinct impression from the way he put his case before me this afternoon that he was simply concerned to take the next appellate step and to make the same complaint about the Tribunal's failure to hear him as he made before the Federal Magistrate.  As I explained to him, the function of this court is not to hear again de novo, as it were, his application as made before the Federal Magistrate.  This is a court of appeal and its first function is to identify error on the part of the Federal Magistrate.  Although I take into account the applicant's manifest lack of familiarity with the legal principles which informed the way in which the Federal Magistrate disposed of the matter before him, for my own part, I have not been able to discern anything in the nature of an error by the Federal Magistrate.  Ms Radich, who has represented the respondent Minister this afternoon, has likewise submitted that a fair reading of the Federal Magistrate's reasons fails to disclose anything would amount to an error.

8. I am not persuaded that this is a case in which I should find special reasons within the terms of O 52 r 15(2) of the Rules of Court, and I shall dismiss the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        17 November 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	A Radich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006