SZLIX v Minister for Immigration and Citizenship

[2008] FCA 1892

FEDERAL COURT OF AUSTRALIA

SZLIX v Minister for Immigration and Citizenship [2008] FCA 1892

Federal Court Rules O 52 r 15(2)

Briginshaw v Briginshaw (1938) 60 CLR 336 cited

Jess v Scott (1986) 12 FCR 187 applied
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 referred to

SZLIX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1786 of 2008

PERRAM J

4 DECEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1786 of 2008

BETWEEN:

SZLIX
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	4 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first respondent.

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 1786 of 2008

BETWEEN:

SZLIX
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	4 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve an application for leave to appeal.  The underlying decision to which that application is appurtenant is a judgment given by a federal magistrate on 2 July 2008.  By that decision, the federal magistrate dismissed the applicant’s application for prerogative writs in relation to a decision given by the Refugee Review Tribunal.

2. The federal magistrate had previously dealt with the matter in a way which was beneficial to the applicant.  However, that initial determination was set aside by a Full Court of this Court in Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501. In the first of his judgments the learned federal magistrate had determined that the applicant was entitled to prerogative writs on the basis of the fraud of a migration agent. He was able to identify sufficient elements in the evidence before him to make good that determination of fraud. The Full Court held that the evidence which was before the federal magistrate could not, at the requisite Briginshaw v Briginshaw (1938) 60 CLR 336 standard, make good the fraud allegation. The Court remitted the matter back to the federal magistrate to be determined in accordance with its reasons. The federal magistrate then conducted a rehearing. At the rehearing, some additional material was placed before the federal magistrate. Some of that material was accepted. Part of that material was rejected.

3. The part of the material which was rejected consisted of an affidavit of Mr Wang.  Mr Wang, I am prepared to assume, would have given evidence which may have assisted the applicant in making good his claim of fraud.  Mr Markus, who appeared for the Minister, informed the Court that the only part of that affidavit which was relevant to the fraud case was a hearsay statement that the agent was not registered.  I do not need to determine whether that is so or not, but I make the assumption in favour of the applicant that the affidavit would have been of assistance.

4. Mr Wang was not available at the hearing.  This was because, so the applicant submitted, he was in hiding due to difficulties obtaining in respect of his own immigration status.  It is apparent from the reasons of the federal magistrate that the affidavit was rejected because of the unavailability of Mr Wang for cross-examination.  There are circumstances in which an affidavit made by a witness who is not available may, nevertheless, be admitted into evidence despite the fact that the other parties are thereby deprived of the opportunity to cross-examine the witness.  One can understand, in a practical sense, that the immigration status and personal position of Mr Wang may well have provided, in a layman’s sense, a practical reason for why he could not be available at the hearing.

5. However, I do not think that that practical reason can amount to a legal reason as to why the witness should not come to Court.  It would be a surprising result that a witness, who had concerns about being located by the Department, could, by reason of those concerns, justifiably not appear in Court proceedings.  Accordingly, it seems to me that there is no argument of substance in relation to the rejection of that affidavit by the learned magistrate.

6. The question of whether I should grant leave to file and serve an application for leave to appeal or whether I should grant that leave to appeal or even allow the appeal itself all have a common question and that is an assessment of the prospects of the appeal.

7. The situation before the Court is a little unusual in that the matter has been heard twice.  A Full Court of this Court on the first occasion determined that the evidence before the federal magistrate was not sufficient to draw the conclusion of the alleged fraud.  It seems to me, looking at the reasons of the federal magistrate on the second occasion, that there has been no substantive alteration to the evidentiary position.  For that reason, the application to this Court has no prospects of success.  That is a factor which is relevant to the exercise of each of the discretions which the applicant seeks to have utilised in his favour.

8. The primary application before me is, of course, an application pursuant to Order 52 rule 15(2) of the Federal Court Rules to allow the filing and service of the notice of appeal out of time.  That rule is only activated if there are present special reasons.  What is connoted by the concept of special reasons is discussed in the Full Court’s decision in Jess v Scott (1986) 12 FCR 187 at 195 in the following terms:

   … an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

9. I do not think that the explanation which has been proffered for the delay constitutes special circumstances.  The affidavit material proffered by the applicant this morning did not disclose anything other than that he had missed the time limit because he had made an ongoing ministerial intervention request.  That would not constitute a special reason.  The mere fact that one avenue is being pursued does not justify not pursuing another.  Certainly, even to the extent that it could, that extent could not be described as constituting special reasons.

10. When the matter came before me this morning the applicant also relied on some correspondence which was tendered.  That correspondence does not establish anything other than that he sought to withdraw his application for a bridging visa.  That does not constitute special reasons or, indeed, any reasons at all.  In all those circumstances, but particularly having regard to the apparent futility of the proposed appeal, it is inappropriate to exercise the discretion in the applicant’s favour.  It follows that the application for an extension of time pursuant to Order 52 rule 15(2) must be dismissed.

11. The applicant is to pay the first respondent’s costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        17 December 2008

The applicant appeared in person.
Counsel for the First Respondent:	Mr A Markus of the Australian Government Solicitor

Date of Hearing:	4 December 2008
Date of Judgment:	4 December 2008