SZMJT v Minister for Immigration & Citizenship - [2009] FCA 163

FEDERAL COURT OF AUSTRALIA
SZMJT v Minister for Immigration & Citizenship [2009] FCA 163
Federal Court Rules O 52 r 15
Migration Act 1958 (Cth)
Jess v Scott (1986) 12 FCR 189 at 195
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZMJT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1871 of 2008
BUCHANAN J
26 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1871 of 2008

BETWEEN:
SZMJT
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

26 FEBRUARY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve a notice of appeal is dismissed with costs.

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 1871 of 2008

BETWEEN:
SZMJT
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BUCHANAN J

DATE:

26 FEBRUARY 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BUCHANAN J:

The applicant in this matter seeks an extension of time in which to appeal against a judgment of the Federal Magistrates Court of Australia (“the FMCA”) delivered on 24 October 2008 (SZMJT v Minister for Immigration & Anor [2008] FMCA 1465). Under O 52 r 15 of the Federal Court Rules an appeal was required to be filed within 21 days. That was not done. Rather, on 3 December 2008 the applicant filed an application for an extension of time to file and serve a notice of appeal. Such an application may be granted “for special reasons” (see O 52 r 15(2)).
The first question to be addressed, therefore, is whether “special reasons” have been demonstrated. A special reason is one which takes the case out of the ordinary (see Jess v Scott (1986) 12 FCR 187 at 195 and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59). The reason given by the applicant, in an affidavit filed in support of her application for an extension of time, is that she “did not receive the whole of the judgment of Federal Magistrates Court of Australia until 18 November 2008”. Thereafter, accepting this statement at face value for the moment, a further substantial period of time elapsed. It is also well established that an extension of time will not readily be granted to prosecute an appeal which has no apparent prospects of success. I shall return in due course to further consideration of these two issues.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 10 August 2007 and applied for a protection visa on 21 September 2007. Her application for a protection visa was accompanied by a typed statement in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SZMJT v Minister for Immigration & Citizenship

Details

AGLC: SZMJT v Minister for Immigration & Citizenship [2009] FCA 163
Case: [2009] FCA 163
Decision Date: 26 February 2009

CaseChat Overview and Summary

In the case of SZMJT v Minister for Immigration & Citizenship, the applicant, a non-citizen, sought an extension of time to lodge a notice of appeal against a decision to cancel his visa. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the applicant had demonstrated sufficient grounds to justify the extension of time, considering the established criteria for such extensions under the law.

The court examined the criteria for extending time in appellate proceedings, which include whether the applicant had acted with reasonable diligence, and whether there were exceptional circumstances warranting an extension. The applicant argued that delays were due to his illness and misunderstanding of procedural requirements. The court considered the evidence provided by the applicant but found that the explanations given did not sufficiently address the need for an extension under the relevant legal standards.

In its judgment, the court held that the applicant had not demonstrated sufficient grounds to justify an extension of time. The court found that the applicant's actions did not meet the threshold for exceptional circumstances and that the applicant had not acted with the requisite diligence. As a result, the application for an extension of time was dismissed. The court further ordered that the applicant pay the costs of the application.

Orders

Orders of the court

1. The application for an extension of time in which to file and serve a notice of appeal is dismissed with costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BUCHANAN J

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Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1871 of 2008

JUDGE:	BUCHANAN J
DATE OF ORDER:	26 FEBRUARY 2009
WHERE MADE:	SYDNEY

JUDGE:	BUCHANAN J
DATE:	26 FEBRUARY 2009
PLACE:	SYDNEY