SZNSN v Minister for Immigration and Citizenship
[2010] FCA 167
FEDERAL COURT OF AUSTRALIA
SZNSN v Minister for Immigration and Citizenship [2010] FCA 167
Citation: SZNSN v Minister for Immigration and Citizenship
[2010] FCA 167Appeal from: SZNSN v Minister for Immigration & Anor
[2009] FMCA 1193Parties: SZNSN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1450 of 2009 Judge: LANDER J Date of judgment: 5 March 2010 Date of hearing: 1 March 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Ms N Johnson Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1450 of 2009
BETWEEN: SZNSN
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
1 MARCH 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time within which to file and serve a notice of appeal be dismissed.
2.The applicant pay the first respondent’s 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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1450 of 2009
BETWEEN: SZNSN
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
1 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time within which to file and serve a notice of appeal from a decision of a Federal Magistrate dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal (the RRT) affirming a decision by a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.
The applicant is a citizen of the People’s Republic of China (PRC) who arrived in Australia on 8 November 2008. On 5 December 2008 she applied for a Protection (Class XA) visa. On 9 February 2009 a delegate of the first respondent decided to refuse that application and the applicant was advised of that decision on the same day. The delegate refused the applicant’s application for a Protection visa on the ground that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention. On 18 March 2009 she applied to the RRT for a review of the delegate’s decision. On 4 June 2009 the RRT published its decision in which it affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
On 23 November 2009 Smith FM dismissed the applicant’s application for a review of the RRT’s decision.
On 17 December 2009 the applicant filed her application for an extension of time to appeal from Smith FM’s order dismissing her application for judicial review.
A notice of appeal from an order of the Federal Magistrates Court must be filed and served within 21 days of the date when the judgment appealed from was pronounced: O 52 r 15(1)(a) of the Federal Court Rules (the Rules). Because Smith FM had delivered judgment on 23 November 2009, the applicant was required to file and serve her notice of appeal on or before 14 December 2009. She filed this application for an extension of time on 17 December 2009, three days outside the period prescribed by the Rules. Order 52 rule 15(2) of the Rules empowers the Court, in the exercise of its discretion, to grant an extension of time if the Court is satisfied that there are “special reasons” for doing so.
In considering whether there are special reasons the Court will have regard to (a) the reason for the failure by the applicant to file and serve the applicant’s notice of appeal within the time prescribed by the Rules and the reasons for any delay after the time for filing and serving the notice of appeal expired; (b) any prejudice that might be suffered by the respondent as a result of the applicant’s delay in filing and serving the notice of appeal; and (c) the merits of the proposed appeal.
The applicant has filed an affidavit in support of this application in which she has deposed that she does not speak any English and cannot afford professional assistance to translate or interpret documents. She has to rely on friends to help her understand the processes in which she is involved. She also has deposed that she has a very limited knowledge about the Australian legal system and cannot afford to employ lawyers to assist her.
The applicant has given no direct explanation for not filing and serving the notice of appeal within time, but it may be inferred from her affidavit that she claims that her lack of knowledge of the Australian legal system and her inability to speak English are the reasons for her failure to file and serve the notice of appeal within time.
The explanations are as the first respondent contends not entirely satisfactory but, having regard to the fact that the delay is only a period of three days, I would not, if I thought there were any merits in the appeal, exercise my discretion against extending the time within which the applicant has to file and serve the notice of appeal.
This application must be determined by reference to whether the applicant has good prospects of success on any appeal. She has filed a draft notice of appeal in which the sole ground of appeal is:
Federal Magistrate Smith ignored the difficulties I had when I received two contradictive (sic) hearing invitation letters from Refugee Review Tribunal. Federal Magistrate Smith also ignored the fact that I am a non-English speaker and I had to rely on free translation service or friend’s help. As a result, I lost a fair chance to attend the Refugee Review Tribunal hearing. Federal Magistrate Smith applied ss.425A and ss.426A(1) inappropriately. This is a jurisdictional error.
The applicant was born on 10 November 1980 and claims to have resided in the PRC until January 2005 when she married Zhih Yuan Wang who was a citizen of Taiwan and moved to live with him in Taiwan.
Although her husband is not a supporter of independence for Taiwan, the applicant claims that she is, as a result of which if she returned to the PRC she would be discriminated against and treated as a spy and betrayer of her country. She cannot return to Taiwan because her husband has withdrawn his sponsorship. She will have to return to the PRC where she says she will be persecuted for her support of Taiwanese independence.
The applicant arrived in Australia in the company of her husband on 8 November 2008 on a Tourist visa. Her husband left Australia on 16 November 2008. The applicant provided the RRT with a copy of a statement of her husband which supported her claims that they had different political opinions in relation to Taiwan’s independence.
On 3 April 2009 the RRT sent the applicant a notice to attend a hearing of the RRT at 9.30am on 7 May 2009. On 16 April 2009 that notice was returned to the RRT with the advice that she would not be attending the hearing. On the same day that that notice was returned, the RRT wrote again to the applicant advising her that the hearing would now be at 9.30am on 15 May 2009 because of the unavailability of the Member of the Tribunal.
In that second notice the RRT referred to the first notice as setting the hearing date for 16 April 2009, which is clearly a mistake and was in fact the date of the second notice.
The applicant did not respond to that second notice and did not attend the time for appointment on 15 May 2009. Nor incidentally did she attend the RRT at the time appointed on 7 May 2009. The applicant said at the hearing she did not respond to the second notice because she could not find a translator and she had a “fever”.
The applicant claims that the mistake in the body of the second notice meant that she was denied the opportunity of attending the RRT.
The Federal Magistrate found that there was no confusion in the two notices. The first notice was clear and it was responded to by the applicant indicating that she did not wish to attend on 7 May 2009. The second notice correctly stated that the hearing was to be on 15 May 2009, although it wrongly stated that the first hearing had been scheduled on the date of the notice itself. The Federal Magistrate found there was no confusion and dismissed the application. The Federal Magistrate found there had been compliance with s 425A and s 426A(1) of the Migration Act 1958 (Cth) (the Act).
In my opinion, the Federal Magistrate’s reasons were correct. The applicant was invited to attend a hearing on 7 May 2009 but indicated that she would not attend the hearing. She was advised on 16 April 2009 that the RRT hearing would take place later on 15 May 2009. She did not attend that hearing. Although the second notice referred to a wrong date in the body of it, there could be no confusion as to when the hearing was to take place. The RRT complied with s 425A of the Act. Both notices gave the day, time and place at which the hearings were scheduled: s 425A(1) of the Act. Both notices were given in accordance with s 425A(2)(a) of the Act. Both notices gave the applicant the prescribed period of notice required by s 425A(3) of the Act and reg 4.35D of the Migration Regulations 1994 (Cth) (the Regulations), because both notices were taken to be received seven working days after the date of the document: s 441C(4) of the Act. The second notice was given on 16 April 2009 for a hearing on 15 May 2009, so that notice clearly complied with the time prescribed in reg 4.35D if in fact compliance with reg 4.35D of the Regulations was required: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [82]. If a reasonable period was required (s 425A(3) of the Act), the second notice complied.
In my opinion, the Federal Magistrate’s orders could not be successfully challenged. The ground of appeal does not identify any error on the part of the Federal Magistrate. There are no prospects that the applicant would succeed on any appeal.
For those reasons, I would refuse an extension of time within which to appeal. The application must be dismissed. Costs must follow the event.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 5 March 2010
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