SZVYF v Minister for Immigration and Border Protection
[2015] FCA 1258
•17 November 2015
FEDERAL COURT OF AUSTRALIA
SZVYF v Minister for Immigration and Border Protection [2015] FCA 1258
Citation: SZVYF v Minister for Immigration and Border Protection [2015] FCA 1258 Appeal from: Application for extension of time: SZVYF v Minister for Immigration and Border Protection & Anor [2015] FCCA 1719 Parties: SZVYF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 853 of 2015 Judge: JAGOT J Date of judgment: 17 November 2015 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to appeal – appeal has no prospects of success – application refused Cases cited: SZVYF v Minister for Immigration and Border Protection & Anor [2015] FCCA 1719 Date of hearing: 17 November 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Markus of Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 853 of 2015
BETWEEN: SZVYF
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
17 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent in the proceeding.
2.The application for an extension of time be dismissed.
3.The applicant pay the first respondent’s costs of the application, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 853 of 2015
BETWEEN: SZVYF
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE:
17 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to appeal against a decision of the Federal Circuit Court of Australia (SZVYF v Minister for Immigration and Border Protection & Anor [2015] FCCA 1719).
Pursuant to r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. It was common ground between the parties that the application was filed only one day after the period for the filing of an appeal expired. The applicant has explained in an affidavit that he thought he had 28 days in which to file the appeal and that he was waiting for the reasons of the Federal Circuit Court to be published. In the circumstances, I accept that this is an adequate explanation for the very short delay involved.
The only issue of significance is whether the proposed appeal has any prospect of success. If it appears that the appeal has any prospect of success, then the extension of time should be granted. However, if the appeal does not appear to have any prospect of success, then in my view it would be an inappropriate exercise of discretion to grant the extension of time, because the appeal would be futile.
In the present case, I accept the submissions which Mr Markus has put for the first respondent that it is not possible to discern from any of the material before me, including the oral submissions which have been made today, any prospect of success of the proposed appeal.
The proposed notice of appeal raises one ground with various particulars as follows:
1.Her Honour failed in her duty to ensure that the hearing was conducted fairly and in accordance with the law.
Particulars:
a)The applicant is an asylum seeker from Sri Lanka;
b)The applicant was unrepresented;
c)The applicant only completed 11 years of schooling, not completing the ECGOL examinations. Primary and secondary school were both Catholic schools at Kattaikadu, Puttalam district. The applicant did not receive any other education or training apart from one year at Bible College.
d)After leaving school the applicant worked with his father on their plot growing vegetables for eight years. Since then the applicant came to Australia where he has worked as a cleaner.
e)The applicant has no understanding of the Australian legal system and significance of legal procedure;
f)At [18] Her Honour appears to find that the duty to ensure that the hearing was conducted fairly and in accordance with the law was discharged by the Registrar as he provided contact details of legal service providers and translator and translation services at the directions hearing.
Paragraph 18 of the primary judge’s reasons states:
The applicant sought to adjourn the hearing of today’s matter on the ground that he wished to have some more time to think about his position. That applicant was opposed by the solicitor for the first respondent. Given that the applicant has had since 26 March 2015 to file and serve documents in support of his application to “think about” his case and seeking legal advice, and the lack of specificity in the reason for the adjournment, the applicant for adjournment was refused. I note the applicant was provided with the contact details of legal service providers and translator and translation services at the directions hearing before the Registrar.
As Mr Markus submitted, if this ground means that the primary judge denied the applicant procedural fairness when she refused to grant an adjournment, then that allegation cannot be sustained in the face of paragraph 18 of the primary judge’s reasons.
The decision of the Refugee Review Tribunal (as it was then known) was made on
4 December 2014 and the application for judicial review was filed on 2 January 2015. The first directions hearing, where the applicant was provided with information about legal service providers and interpreters, occurred on 26 March 2015, with the hearing not taking place until 22 June 2015. The applicant had no justifiable reason to seek an adjournment of the hearing.
If the proposed ground of appeal alleges a denial of procedural fairness on the basis that the applicant should have had legal representation at the hearing before the primary judge, then I accept Mr Markus’ submission that there is no right to legal representation in the circumstances of this matter. Therefore there was no denial of procedural fairness in the primary judge hearing the matter in circumstances where the applicant was not represented.
In respect of the oral submissions made by the applicant today, as Mr Markus noted, these matters were not raised before the primary judge, other than in one respect. That is, the matters involved a challenge to the fact-finding task of the Refugee Review Tribunal. The one different respect related to a letter which the applicant said the Tribunal tried to show him during the hearing in a way where he could not see the letter or understand what was going on. However, there is no evidence relating to this circumstance. Other than the applicant asserting that he was upset in some way by what occurred, there is also no basis upon which it could be inferred that this circumstance, if it occurred in the way suggested, had any impact on the hearing or its outcome.
Apart from this, the primary judge’s reasons disclose a detailed consideration of the grounds of alleged error put before the primary judge. Equally, the reasons of the Tribunal disclose detailed consideration of the applicant’s claims as made before it. There is nothing apparent on the face of either set of reasons which gives rise to any suggestion of legal error.
In circumstances where I am unable to conclude that there is any prospect of success of the proposed appeal, it would be wrong to grant the extension of time, despite the very short delay involved and my acceptance of the adequacy of the explanation for that delay.
For these reasons, the application for an extension of time must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 19 November 2015
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