SZIDL v Minister for Immigration and Citizenship

[2008] FCA 1703

FEDERAL COURT OF AUSTRALIA

SZIDL v Minister for Immigration and Citizenship [2008] FCA 1703

MIGRATION - application for extension of time to file a notice of appeal

Held: application dismissed

Federal Court Rules

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZHYP v Minister for Immigration and Citizenship [2007] FCA 183
SZIDL v Minister for Immigration & Anor [2007] FMCA 776

SZIDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1082 OF 2008

JAGOT J

13 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1082 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	13 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to extend time to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of Australia delivered on 28 May 2007 is dismissed.

2.The applicant is ordered to pay the first respondent’s costs fixed in the amount of $1,365.00.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1082 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	13 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to extend time to file and serve a notice of appeal against a judgment of the Federal Magistrates Court of 28 May 2007 (SZIDL v Minister for Immigration & Anor [2007] FMCA 776).

2. Order 52 rule 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed within 21 days of the date on which the judgment appealed from was pronounced.  In this case the period of 21 days expired on 18 June 2007.  However, under order 52 rule 15(2) the Court for special reasons may at any time give leave to file and serve a notice of appeal. 

3. The applicant filed the application for an extension of time on 15 July 2008.  The application is accompanied by an affidavit from the applicant stating that he received the judgment “very late” and attaching a statement explaining the reasons for his delay. 

4. According to the attached statement the applicant was informed by the Court that judgment would be delivered on 28 May 2007.  I infer that the applicant did not attend the Court to hear the orders being pronounced.  The primary judge made orders on 28 May 2007 in which, amongst other things, the appeal was dismissed.  The applicant waited for a copy of the decision but did not receive a copy.  He called the Registry on 13 June 2007 to request a copy.  The Registry said they would send a copy by Express Post but the applicant says he received nothing.  He called again on 20 June 2007 and was told a copy would be sent that day or the next day.  The Court officer then tried to call the applicant but he was unavailable.  When the applicant managed to contact the officer it was to seek confirmation of his mailing address.  After more delay and calls the applicant received the judgment on 28 June 2007.  The applicant was distressed because this was outside the 28 day period in which to appeal.  He rang the Court officer to ask about the 28 day period and was given another number to call.  The people the applicant called said they could not do anything.  He called the Court officer back who put him through to the Registry and the person he was connected to would not listen to him. 

5. The statement contains no explanation of why it took the applicant until 15 July 2008 (more than 12 months after he received a copy of the judgment) to apply for an extension of time to file a notice of appeal.

6. The applicant’s draft notice of appeal identifies two appeal grounds.  First, that the applicant still does not feel safe if he returns to India.  Secondly, that the applicant’s family in India was having the same problems.

7. The Full Court of the Federal Court explained the meaning of “special reasons” in Jess v Scott (1986) 12 FCR 187 at 195 as follows:

   ...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.

8. Relevant factors have been identified as including the explanation for the delay, other actions taken by the applicant contesting the decision, any prejudice to the respondent, any public interest considerations or impacts on third parties, the merits of the substantial application, and considerations of fairness as between the applicants and other persons otherwise in a like position (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349).

9. In his submissions today the applicant explained that, after receiving the judgment, he made continuous attempts to obtain legal assistance but was always rejected.  No one told him that he could appeal to this Court.  He found out by accident when he went to the counter as a last resort.  The applicant said he had hundreds of letters that he sent for legal assistance but had not brought them with him.  He also said that, after lodging the application for an extension of time on 15 July 2008, he was diagnosed with two life threatening illnesses and needed to remain in this country to receive treatment.  The present case involves an application for leave to extend time to appeal against a decision refusing a protection visa having regard to the applicant’s claims of a fear of persecution in India by reason of political activities.  As the first respondent submitted the issue of the applicant’s health and need for ongoing medical treatment (which arose after the application for an extension of time) cannot be relevant to the merits of the application to extend time.  If the applicant has such serious medical issues then this might enable different applications on different grounds to be lodged.  But that is not an issue before me today.

10. Once the confines of the particular case are recognised it is apparent that, in this case, the most important factors are the length of the delay, the adequacy of the applicant’s explanation for the delay, the strength of the applicant’s substantive application, and considerations of fairness as between the applicants and other persons otherwise in a like position.

11. The delay is lengthy (a year even allowing for the period during which the applicant did not have a copy of the judgment).  The applicant’s explanation for the delay is inadequate.  It accounts for the delay up to 28 June 2007 but thereafter the explanation is unconvincing.  Despite knowing that today was his opportunity to put before the Court all matters relevant to his application to extend time the applicant did not mention his legal assistance applications in his affidavit or bring the supporting documents with him. 

12. The grounds of appeal to the Federal Magistrates Court and this Court are also weak.  The primary judge reviewed in detail the applicant’s claims and Tribunal’s reasons for affirming the decision of the first respondent’s delegate refusing a protection visa.  The primary judge found (correctly in my view) that it was open to the Tribunal to ask the applicant an open-ended question about any experiences in India that he thought involved persecution or now made him a refugee and to reject those claims.  The primary judge also identified (again, correctly in my view) that most of the applicant’s other claims amounted to a disagreement with the unsuccessful outcome of his application for review by the Tribunal or an invitation to review factual findings that were open to the Tribunal on all of the material before it.  Complaints of this nature cannot amount to jurisdictional error invalidating a decision not to grant a protection visa (noting that s 474 of the Migration Act protects “privative clause decisions” from challenge other than on the grounds of jurisdictional error). 

13. The primary judge also observed that, irrespective of the Tribunal’s primary findings, the Tribunal also decided that it would be reasonable for the applicant to relocate within India.  The primary judge was satisfied that the Tribunal carried out its assessment in this regard consistently with the principles discussed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. I agree with the primary judge’s conclusion with respect to this issue.

14. The primary judge considered an issue that arose during the hearing about s 424A of the Migration Act (which requires the Tribunal to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review).  Referring to SZHYP v Minister for Immigration and Citizenship [2007] FCA 183 at [9], [11] – [12] and NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] the primary judge said that it is a matter for an applicant to establish breach of s 424A. The applicant had not adduced any evidence about the course of the hearing before the Tribunal (such as the transcript). The Tribunal also noted that the applicant’s claims remained those as set out in his protection visa application. The primary judge (correctly) decided that there was no issue arising on the material under s 424A for the first of these reasons (there being no evidentiary basis for any such conclusion).

15. I am unable to discern any potential issue of concern in the reasons for decision of the Tribunal or primary judge.  Hence, the applicant’s prospects of success on the substantive application, taken together with the length of the delay and the inadequate explanation for the delay, weigh strongly against the grant of leave to the applicant for an extension of time to file an appeal.  Considerations of fairness to others in the same or a similar position as the applicant are also relevant.  Nothing in the material relied on by the applicant indicates the existence of a reason that amounts to a special reason or justifies the extension of time sought.  The application for leave is dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        13 November 2008

The Appellant appeared in person.
Solicitor for the First Respondent:	Ms J Dinihan, Clayton Utz
The Second Respondent did not appear.
Date of Hearing:	13 November 2008
Date of Judgment:	13 November 2008