SZKLW v Minister for Immigration and Citizenship

[2008] FCA 288

FEDERAL COURT OF AUSTRALIA

SZKLW v Minister for Immigration and Citizenship [2008] FCA 288

Jess v Scott (1986) 12 FCR 187, considered

SZKLW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2368 OF 2007

LOGAN J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2368 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application is dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application to be taxed, if not agreed.

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	NSD2368 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. On the 3 September 2007, a Federal Magistrate dismissed an application by the present Applicant for the review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 26 February 2007.  That Tribunal decision affirmed an earlier decision of a delegate of the Minister to refuse the Applicant’s application for a protection visa.

2. The applicant was entitled to appeal against the Federal Magistrate’s decision, but that appeal had to be lodged within 21 days after the date when the judgment appealed from was pronounced.  The Applicant was personally present in court when the Federal Magistrate pronounced an order of dismissal.  The appeal period therefore expired 21 days after 3 September 2007.

3. It is possible under the rules of court for an extension of that 21 day period to be granted.  The rules of court require that a special reason form the basis of any such extension.  The leading authority in relation to whether or not to grant an extension is a decision of the Full Court in Jess v Scott (1986) 12 FCR 187.

4. In essence, special reason is intended to distinguish a particular case from the usual course, according to which the time limit is 21 days.  Under the rules of court, I have a discretion to exercise, if satisfied that there is a special reason which justifies departure from the general rule in a particular case.  I also remind myself that the rules of court are meant to be a servant of justice, rather than a master of justice.  An application for extension of time was not lodged in court until 30 November 2007.

5. The Applicant has, by his affidavit, sworn that he did not receive the judgment until 23 October 2007 when he personally got it from the Federal Court Registry in Queens Square.  I take it that what is meant by this, is that he did not get a written copy of the Magistrate’s decision and reasons until then.  That particular statement is not challenged by the Minister. I accept that it was not until 23 October 2007 that the Applicant received the written version of the Court’s decision and reasons.  Even allowing for that, more than 21 days expired prior to the application for an extension of time. 

6. I do take into account that there are difficulties in relation to language.  I also take into account the grounds of appeal as set out in the affidavit and in a draft notice of appeal attached to that affidavit.  They do not disclose, in my opinion, a reasonable prospect of success in an appeal.  That is because the Federal Magistrate seems to me to have correctly determined that questions as to whom to believe were matters for the Tribunal.

7. Under our legal system in Australia, in relation to this type of case, it is not for the Federal Magistrates Court to make its own decision as to who to believe.  The Federal Magistrates Court is entitled and obliged to set aside a decision of the Tribunal if there is a legal error in the way in which the Tribunal has gone about its task, but merely preferring or not preferring particular evidence does not give rise to a legal error, and that is why it seems to me that it is unlikely that an appeal from the Federal Magistrate would enjoy reasonable prospects of success.

8. The difference in role between the Federal Magistrates Court and the Refugee Review Tribunal is difficult for someone without legal training to understand, but the Australian Parliament has made it plain that it is for the Tribunal to make value judgments about which facts it accepts.  Taking into account the sheer length of time that passed between 3 September 2007 and 30 November 2007 and even allowing for the difficulties that must have been present for someone who was not fluent in English, as well as the lack of reasonable prospects, it seems to me that this is not a case where an extension of time should be given. 

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

Associate:

Dated:       6 March 2008

Counsel for the Applicant:	The Appellant appeared in person
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	5 March 2008
Date of Judgment:	5 March 2008