SZJSB v Minister for Immigration and Citizenship

[2008] FCA 233

FEDERAL COURT OF AUSTRALIA

SZJSB v Minister for Immigration and Citizenship [2008] FCA 233

Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)
Federal Court Rules, O 52 r 15  

SZJSB v Minister for Immigration & Anor [2007] FMCA 1001

SZJSB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1944 OF 2007

BUCHANAN J
6 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1944 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the Minister’s costs fixed in the sum of $1,500.

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 1944 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	6 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. In a detailed and comprehensive judgment delivered on 29 June 2007 (SZJSB v Minister for Immigration & Anor [2007] FMCA 1001) Emmett FM dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’). The RRT had affirmed a decision of a delegate of the Minister not to grant a protection visa to the present applicant who had arrived in Australia on 28 March 2005 and applied for a protection visa on 28 April 2005.

2. The present application seeks an extension of time in which to file and serve a notice of appeal against Emmett FM’s judgment.  It was supported by an affidavit which said the following:

   ‘1.The following appeal application is my application to the Federal Court and every words in that application is true.

   2.I didn’t receive the decision from the Federal Magistrate court until 27 August, 2007 as the first one was sent to my residential address by the officer in the Judge of Magistrate court Emmett FM.  I had given the postal address to the Magistrate court in my application.

   3.I want you to accept my application as no justice has been given to my application.’

3. It is to be taken that the complaint made in paragraph 2 of the affidavit was that sending the decision of the Federal Magistrates Court of Australia (‘FMCA’) to the applicant at his residential address was an ineffective method of service. 

4. Under O 52 r 15 of the Federal Court Rules the applicant was required to file his appeal within 21 days of delivery of the judgment of the FMCA.  Time in which to appeal expired on 20 July 2007.  No explanation was offered which would support the suggestion that a document sent to the applicant’s residential address would not be received by him personally until 27 August 2007.  No explanation was offered for the failure to make an attempt to appeal the judgment of the FMCA shortly after 27 August 2007, if the applicant was to be accepted concerning the date on which he received the judgment.  It might be noted further that although the affidavit bears a date of 17 September 2007 and the application for an extension of time to file and serve a notice of appeal is dated 19 September 2007 neither document was filed in this Court until 27 September 2007.  These delays, and each of them, required explanation.  None was given.

5. In the circumstances there was no foundation to grant an extension of time and the application was liable to be refused for that reason alone. 

6. However, the matter is more complicated.  As part of the materials in connection with the present application the file of the FMCA was sent to this Court.  That file contains two original letters sent by staff of the FMCA to the applicant as well as the envelopes in which they were sent to the applicant and returned to the FMCA.  It is not possible to know whether the envelopes were opened before, or only after, they were returned.

7. The first letter is dated 27 June 2007.  It advised the applicant that the judgment of the FMCA would be delivered on 29 June 2007.  The envelope containing this letter was marked as follows:

   ‘This person has moved out 1½ years ago.  please return.  Thank you!’

   Curiously this envelope also bears a stamp suggesting it may have been redelivered to the FMCA on 13 June 2007.  That does not seem possible.  Perhaps the date of redelivery was some time in July but any such conclusion could be merely a guess.

8. The second letter was dated 2 July 2007.  It enclosed a copy of Emmett FM’s judgment.  This letter is marked (in apparently different handwriting):

   ‘This persons’ no more living here.  Please return to …’
   (with an arrow pointing to the address of the FMCA)

   It is stamped as received by the FMCA on 20 July 2007.

9. To add to the confusion the address to which those letters were sent, and from which they were returned (endorsed with the observations that the applicant no longer lived there and had not for some time) is the same address which the applicant gave as his address in the affidavit filed in support of his present application. 

10. The applicant also gave that residential address in the following documents filed in the FMCA in relation to his proceedings in that court:

    (a)a statement of financial position dated 14 November 2006 in which the applicant said, amongst other things, ‘I live in the living room owned by Mr Ning and Mrs Luo.  They are my countrymen.  The couple have been supporting me for over seven months.  I don’t know what to do without them.’

    (b)an application for exemption or waiver of court fees dated 14 November 2006 in which the applicant represented that he lived at the same residential address;

    (c)an information form to be completed by unrepresented applicants in the FMCA dated 14 December 2006 in which the applicant gave the same address as both his home address and his postal address;

    (d)a notice to the applicant offering the assistance of the ‘RRT Legal Advice Scheme (New South Wales)’ on which, in two places, he has given the same address.  This document is also dated 14 December 2006.

11. However, the application for judicial review which the applicant filed in the FMCA clearly indicated that his address for receiving mail was a post office box at Eastwood, New South Wales.  The form he filed to commence the proceedings in the FMCA was marked with the following note immediately under the place for providing his address details:

    ‘NOTE:  All correspondence concerning the application will be sent to the applicant’s mailing address.  If this address changes, the applicant must, within seven days of the change, file a notice of the change and serve a copy on the respondents.’
    (emphasis added)

12. The applicant was entitled to expect that advice of the delivery of judgment, and a copy of the judgment, would be sent to him at the address he had given as his mailing address.  That was not done.

13. These matters might have provided a basis for some indulgence if it had appeared that it would not be futile to hear the appeal which the applicant wished to bring if an extension of time was granted. On the day fixed for hearing his application, 22 February 2008 the applicant initially did not appear. I dismissed his application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Shortly after the orders were made the applicant arrived. I resumed the hearing and set aside the orders earlier made.

14. As part of the steps taken to prepare the present proceedings for attention by a judge, a registrar of the Court made directions on 9 November 2007.  They were on that day posted to the applicant in his own name at the post office box address for service which he has given.  A subsequent letter, addressed in the same way advised the applicant when and where his application would be heard.  Amongst the directions conveyed in that manner to the applicant on 9 November 2007 was the following:

    ‘4.No later than five (5) clear working days before the hearing date the applicant file and serve full written submissions upon which the applicant seeks to rely in support of the application, and in support of any application were the Court to grant an extension of time and/or leave to application [sic], so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to application [sic].’

15. Those submissions were accordingly required by close of business on 14 February 2008.  They were not filed by that time or any time thereafter. 

16. In oral submissions made through an interpreter the applicant made no reference at all to any reason which might have prevented him from filing an appeal from the judgment of the FMCA within the time prescribed.  Nor did he make any direct suggestion that the FMCA has made an error.  He spoke only about the proceedings in the RRT, suggesting the RRT was biased against him and had proceeded on the basis of ‘personal feelings’.  No arguable case of jurisdictional error based on an allegation of bias arises simply from an assertion to that effect.  Nothing was advanced by the applicant to provide a foundation for a conclusion that an appeal would have any prospect of success.  In my view it would be futile, in those circumstances, to grant the present application and extend time for the filing of an appeal.

17. Finally, and for completeness, I should record that Emmett FM gave comprehensive reasons for concluding that the grounds for judicial review which were advanced in the FMCA should not be accepted as revealing any jurisdictional error.  No error in her Honour’s analysis has been identified.  No error in her Honour’s conclusion that the RRT committed no jurisdictional error has been identified either. 

18. In the circumstances the application must be dismissed.

19. The Minister sought an order for costs fixed in the amount of $1,500.  In accordance with Practice Note 27 an affidavit was filed in Court in support of the application.  I was assured that the amount sought did not exceed an amount which would be obtained if costs were taxed.  A proper basis has been established to make an order in the sum sought.

20. The applicant must pay the Minister’s costs fixed in the sum of $1,500.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        6 March 2008

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 February 2008
Date of Judgment:	6 March 2008