SZKMU v Minister for Immigration and Citizenship

[2008] FCA 301

FEDERAL COURT OF AUSTRALIA

SZKMU v Minister for Immigration and Citizenship [2008] FCA 301

Migration Act 1958 (Cth)
Federal Court Rules, Order 52, rule 15(2)

Jess v Scott (1986) 12 FCR 187, considered

SZKMU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2401 OF 2007

LOGAN J
6 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2401 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKMU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The application for extension of time is dismissed.

2.The applicant is ordered to pay the costs of the First Respondent, which are fixed in the sum of $944.

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	NSD2401 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKMU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant is a citizen of the People’s Republic of China.  He sought a protection visa under Australia’s Migration Act on 26 September 2006.  The application for that visa was based on his membership of Falun Gong and referred to harassment by the police and dismissal from employment on the basis of that membership.  A delegate of the Minister for Immigration refused that application in November 2006. 

2. As was his right, the Applicant sought the review of the decision of the Minister’s delegate by the Refugee Review Tribunal (“Tribunal”). That Tribunal is a body established by the Australian Parliament which has the task of giving independent review of decisions by the Minister and his delegates.  The Tribunal is empowered, even though the Minister or a delegate has refused an application, to grant a protection visa.  For that purpose, the Tribunal is able to make its own decision on which facts it believes, irrespective of whatever view the Minister or a delegate had. In this case, the Tribunal, in exercising its jurisdiction, decided to confirm the decision that the Minister’s delegate had made.  The Tribunal did that for reasons that were published, and which are detailed and extensive. Those reasons disclose that the Tribunal believed some parts of the Applicant’s claim, but not others. 

3. It is possible to challenge a decision of the Tribunal by way of an application for judicial review by the Federal Magistrates Court.  That right of challenge is limited, though, to what may be described as administrative law error grounds.  Those grounds do not include the ability to seek to have the Magistrates Court form its own view about which facts to believe.  It is a distinction between the role of the Tribunal and the role of the Magistrates Court, that questions as to which facts to believe and accept are for the Tribunal, not the Court.  If the Court finds an administrative law error, the Court is empowered to set aside the Tribunal’s decision and to require that the case be heard again by the Tribunal.  In this instance, the Federal Magistrates Court, having heard the Applicant’s judicial review application, refused that application on 23 October 2007 for reasons that were then published. 

4. The Applicant had conducted his own case before the Federal Magistrates Court, but was not present at the time when the decision was pronounced and the reasons were handed down.  English is not his first language and he is not fluent in it.  His affidavit, read before me, discloses that he was receiving assistance of some sort in relation to his application from a migration agent.  After his case was heard, and as his affidavit records in a way which is not challenged, he called his agent in September and October asking about the Magistrates Court decision.  The advice he received from the agent was to be patient. 

5. Eventually, on 28 November 2007, perhaps because his patience was wearing thin, he asked a person who knew English to try his best to help him.  It was through assistance so provided, that he came to find out that the Magistrates Court had dismissed his judicial review application on 23 October.  The Applicant states in his affidavit that this made him “sad”.  I infer from this that he was disappointed, not just in the result of the Magistrates Court decision, but also that he had not been told by his agent about that result. 

6. The Applicant moved quite quickly, once he had found out about the result in the Magistrates Court, to commence a proceeding for an extension of time within which to appeal.  He filed an application for an extension of time within which to appeal, together with his affidavit, on 7 December 2007.  The time within which a notice of appeal from a Federal Magistrates Court decision must be filed is within 21 days of the pronouncement of that decision, or within such further time as the Court may grant.  More particularly, Order 52, rule 15(2) of the Federal Court Rules provides that the appeal period may be extended, or in other words, the time within which to file and serve a notice of appeal may be extended for “special reasons”.  That means that I have a discretion to exercise. 

7. The leading authority in relation to the exercise of that discretion is a decision of the Full Federal Court in Jess v Scott (1986) 12 FCR 187. At page 195 in that case, it is observed that the term “special reasons” is “an elastic test suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period”.  I remind myself also that the rules of Court are meant to be a servant of justice, not its master. 

8. Later cases have highlighted a number of considerations that are relevant to the granting of an extension of time within which to appeal.  These are:

   (a)the length of the delay involved in the filing of the notice;

   (b)where there is an acceptable explanation for that delay;

   (c)whether the respondent will suffer prejudice by reason of the delay; and

   (d)the nature of the injustice to the applicant if an extension is not granted.

9. As to the last of these considerations, it can, in particular cases, be relevant to consider the merits of the proposed appeal having regard to the draft notice of appeal grounds.  There is no asserted prejudice to the Minister or, for that matter, the Executive Government of the Commonwealth, in relation to the granting of an extension.  Further, I can well understand the difficulties faced by a person whose first language is not English and whose command of English is, at best, very limited. 

10. It does appear that the Applicant was relying, in terms of at least a translation of immigration processes and outcomes, on the services of a Migration Agent, and I am prepared to assume that he has, unfortunately, been let down by his agent in terms of being notified promptly of the result in the Federal Magistrates Court.  I also see this as a case where the Applicant has not rested on his rights.  By that I mean that, with all the difficulties that a person who does not have English as a first language, he has tried to find out the result in the Magistrates Court as best he could.  Further, when he did find out that result, and again bearing in mind the difficulties he must have faced without legal representation, and without a command of English, he moved very quickly to commence proceedings in this Court. These matters count in the Applicant’s favour.  That means that this is a case where it is particularly relevant and apt to have regard to the grounds in the draft notice of appeal. 

11. There is really only one foreshadowed ground in the draft notice of appeal.  It is expressed as follows:

    In the Federal Magistrates Court, I argued that the tribunal, in the course of finding that “the applicant does not have a genuine fear if he were to return to China now or in the foreseeable future,” made no reference in its decision to the promptness with which I applied for a protection visa following my arrival in Australia.  I argued that, in the circumstances, the tribunal failed to take into account a consideration or evidence which it is required to take into account, giving rise to jurisdictional error.

12. On behalf of the Minister, it is submitted that this is a ground which was not taken before the Federal Magistrates Court.  The Magistrates Court’s reasons, at paragraphs 8, 9 and 10, record grounds which were either formally, or informally, taken in the judicial review proceeding.  The ground identified in the draft notice of appeal is not amongst them.  That, in itself, does not count against the granting of an extension of time, if truly there were a basis for concluding that the Tribunal had not discharged the jurisdiction assigned to it. 

13. The difficulty is most particularly that the Tribunal was not obliged as a matter of law to refer to the promptness of the seeking of a protection visa.  The Tribunal certainly could take such a matter into account, but it was not obliged by the Migration Act to do so.  In those circumstances, the prospective appeal does not seem to me to raise an arguable case.  That being so, to grant an extension in the circumstances would seem to me to be an exercise in futility. 

14. I therefore dismiss the application for an extension of time.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        7 March 2008

Counsel for the Applicant:	The Appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 March 2008
Date of Judgment:	6 March 2008