SZKNT v Minister for Immigration and Citizenship

[2008] FCA 410

FEDERAL COURT OF AUSTRALIA

SZKNT v Minister for Immigration and Citizenship [2008] FCA 410

SZKNT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2353 OF 2007

GRAHAM J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2353 OF 2007

BETWEEN:

SZKNT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the applicant’s application for an extension of time to file and serve a Notice of Appeal be adjourned for hearing before the duty judge on a date and time and at a place to be fixed by the Court and notified to the applicant at his address for service and also to the Minister at his address for service.

2.Directs that the respondent Minister cause a letter confirming the listing details to be courier delivered to the applicant’s address for service five clear days before the listing of the matter before the duty judge.

3.Orders that the respondent Minister’s costs of today be reserved.

4.Refers the applicant, in accordance with Order 80 rule 4(1) of the Federal Court Rules,  to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance in relation to the application filed 26 November 2007 and any subsequent appeal that may be instituted.

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 2353 OF 2007

BETWEEN:

SZKNT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is an application for an extension of time within which to file and serve a Notice of Appeal from a judgment of Lloyd-Jones FM of 25 October 2007 (SZKNT v Minister for Immigration & Anor [2007] FMCA 1725). The application is brought pursuant to Order 52, rule 15(2) of the Federal Court Rules. 

2. Order 52, rule 15(1), provides for a Notice of Appeal to generally be filed and served within 21 days after the date when the judgment appealed from was pronounced.  Order 52, rule 15(2) qualifies subrule (1) by providing:

   ‘15(2)Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal’

3. I am satisfied that reasonable steps were taken to notify the applicant that his application for an extension of time to file and serve a Notice of Appeal would be heard before me at 10.15 am today in the Law Courts building at Queens Square, Sydney. 

4. The application filed by the applicant on 26 November 2007 bears a stamp reading, ‘Date and time to be advised by the registry’ in relation to the hearing of the application.  The Court file includes a copy of a letter dated 14 January 2008 apparently sent by the National Appeals Registrar to the applicant at the address for service provided by him at the foot of his application.  A copy of another letter has also been put in evidence by the Minister, being a letter from the respondent Minister’s solicitors to the applicant of 25 February 2008, said to have been sent by Express Post to the address for service provided by the applicant in his application filed 26 November 2007, under cover of which a copy of the respondent Minister’s submissions were forwarded to the applicant.  That letter also confirmed the time, place, and date for hearing. 

5. When the matter was called this morning at about 10.28 am, the name of the applicant was called, as was the pseudonym by which he is known for the purpose of these proceedings.  Notwithstanding that his name was so called three times outside the Court, he did not appear.  In the circumstances, Ms Allars of counsel, who appears for the respondent Minister, has asked the Court, in the exercise of its discretion, to make an order under Order 35A, rule 3(1)(a) of the Federal Court Rules.  That rule provides:

   ‘3(1)    If an applicant is in default, the Court may order that:

   (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant …’

6. The relevant default, in this instance, is said to be the failure of the applicant to prosecute his application with due diligence.  The respondent Minister contends that the non-attendance of the applicant has constituted such a default.  I am satisfied that the failure of the applicant to attend did constitute a default within the meaning of Order 35A, rule 2(1)(f) of the Federal Court Rules and accordingly, that the Court has power to order that the proceeding be dismissed as to the whole of the relief claimed by the applicant. 

7. The question for the Court is whether or not it should exercise its discretion to make such an order in the circumstances of this case.  For an order to be made under Order 52, rule 15(2) of the Federal Court Rules, special reasons must be established by an applicant.  Reasons will be special reasons in the normal case if a satisfactory explanation for the delay is provided and there is some reasonable basis for the matter proceeding to a hearing pursuant to a draft notice of appeal. 

8. The affidavit filed on 26 November 2007 in support of the application for an extension of time has not, in the absence of the applicant, been formally read, but I note that it provides an explanation for the failure of the applicant to lodge an appeal against the judgment of the learned Federal Magistrate within time.  The suggestion is that the applicant knew nothing about the orders that had been made dismissing his application in the Federal Magistrates Court of Australia until he received a letter from the respondent Minister’s solicitors dated 13 November 2007 on 15 November 2007.  His application for an extension of time was, as previously indicated, filed on 26 November 2007.  The affidavit in support was apparently sworn or affirmed on 22 November 2007, and the draft Notice of Appeal, which was filed with the other documents, was itself dated 17 November 2007. 

9. Were the only matter of concern, an explanation for the delay in filing the Notice of Appeal, it would seem to me almost irresistible that an order granting an extension of time should be given.  It would, of course, be necessary for the applicant to also demonstrate special reasons, and this is a matter which has not been ventilated before the Court in relation to the question of the merit, or possible merit of any appeal which may be instituted. 

10. The respondent Minister acknowledges that the record before the learned Federal Magistrate included what is called the Court Book, which apparently became Exhibit A before the Federal Magistrate’s Court (see SZKNT v Minister for Immigration [2007] FMCA 1725 at [3]).

11. The draft Notice of Appeal, which has been filed with the Court, nominates three grounds of appeal which, if I may say so, do not assist in revealing the case which the putative appellant would wish to bring, in great detail.  The grounds were expressed to be:

    ‘1.     The Refugee Review Tribunal had jurisdictional errors in its decision.  It did not consider all the evidence before it made its decision.

    2.      The Refugee Review Tribunal has failed to carry out its responsibilities and I face real danger if I go back to my country.

    3.      The Refugee Review Tribunal’s decision was based on unwarranted assumptions.’

12. Given the state of the authorities as to what may constitute jurisdictional error, it does not seem to me to be beyond argument that this may be a case where jurisdictional error has occurred.  Obviously, at this stage I cannot form any view as to whether or not there is sufficient merit, or arguable merit, to warrant an extension of time being granted.  However, I think that the possibility of an arguable case being advanced is one which the Court should have regard to in deciding whether or not, in the exercise of its discretion, it should dismiss the application presently before the Court, in the absence of the applicant, or adjourn the matter for hearing on another occasion when, if I may use the expression, the applicant be given a ‘last chance’ to argue his application.  In my opinion, the Court should adjourn the application, rather than dismiss it. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       28 March 2008

The Applicant did not appear.
Counsel for the First Respondent:	M N Allars
Solicitor for the First Respondent:	Sparke Helmore
The Second Respondent filed a submitting appearance.
Date of Hearing:	29 February 2008
Date of Judgment:	29 February 2008