SZCDR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 339 (29 March 2006)

Last Updated: 4 April 2006

FEDERAL COURT OF AUSTRALIA

SZCDR v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 339

SZCDR V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 509 OF 2006


JACOBSON J
SYDNEY
29 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD509 OF 2006

BETWEEN:	SZCDR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	29 March 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant be granted an extension of time in which to file and serve a notice of appeal from the decision of Lloyd-Jones FM dated 14 April 2005.
2. The applicant file and sere the notice of appeal within seven (7) days of the making of these orders.
3. The costs in the application be costs in the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD509 OF 2006

BETWEEN:	SZCDR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	29 March 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for a further extension of time to lodge a notice of appeal in a migration matter; an extension of time having been given by Hely J on 7 June 2005. The appeal is made from a judgment of Federal Magistrate Lloyd-Jones given on 14 April 2005.

2 The applicant appears to be a citizen of Bangladesh, who arrived in Australia on 9 February 1997. Since that date the applicant has made a number of applications for the issue of a protection visa.

3 The applicant first applied on 6 or 7 March 1997, but the application was refused on 8 April 1997. The applicant then lodged a series of appeals to the Refugee Review Tribunal ("RRT") and to the Federal Court in relation to the application. All of those applications were dismissed.

4 The current application relates to the applicant's application dated 8 May 2001 for a protection visa. This was refused by a delegate of the Minister on 18 May 2001.

5 On 19 June 2001 the applicant applied to the RRT for a review of the decision. On 12 November 2003 the RRT affirmed the delegate's decision. The applicant then applied for a review of the decision of the RRT.

6 Orders were made in the Federal Magistrates Court by Federal Magistrate Lloyd-Jones which were not complied with. On 14 April 2005 the Federal Magistrate summarily dismissed the application pursuant to Rule 13.10 of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.

7 The learned Magistrate dealt with the grounds on which the applicant sought relief in the proceedings in [18] to [24] of the reasons for judgment. The grounds on which the applicant sought review included a claim of bad faith and a number of other grounds as referred to in those paragraphs. The Federal Magistrate's conclusion was set out at [25], which I will repeat in full:-

"Based on the material contained in the Court Book, the original application, the amended application, the affidavit evidence, the written submissions of the respondent and the applicant’s document dated 21 February 2005, there was nothing to indicate that the applicant could succeed at a final hearing if he were permitted to proceed on those amended pleadings. Consequently, as the applicant has not been able to disclose any reasonably arguable ground for review, I believe that the substantive application filed on 11 December 2003 should be dismissed."

8 The applicant then filed an application for an extension of time for leave to appeal from the decision of the Federal Magistrate. The application was heard by Hely J. His Honour said at [2] that he had serious reservations as to whether this was a case which was appropriate for summary dismissal for failure to disclose a reasonable cause of action.

9 His Honour commented that the case may be a weak one, and he said that it may be that it will fail, but he expressed the view that it was at least arguable that the Federal Magistrate made an error in summarily dismissing the claim on the ground assigned, when the applicant had asserted and particularised a claim of bad faith.

10 Hely J also expressed the view that in [25] of his reasons for decision the learned Magistrate appears to have applied a test other than the General Steel test in summarily dismissing the claim and accordingly his Honour thought that the case was an appropriate one for the grant of an extension of time. He granted leave to appeal and ordered the applicant to file and serve a notice of appeal within 21 days.

11 However, the applicant did not file the notice of appeal as ordered by Hely J. Instead, the applicant filed an outline of submissions on 27 June 2005, one day before the 21 days limited by his Honour for filing the notice of appeal.

12 The matter seems to have remained in abeyance after that, but on 23 February 2006 the Minister's solicitor sent a letter to the applicant informing him that a notice of appeal had not been filed and suggesting that a further extension of time ought to be sought.

13 On 9 March 2006 the applicant filed his application for a further extension of time and an affidavit and a draft notice of appeal. The handwritten affidavit in support of the application for a further extension of time does not set out an explanation for the failure to lodge a notice of appeal. Nevertheless, it seems clear enough that the applicant, who is not legally represented, assumed that the submissions filed on 27 June 2005 were sufficient for that purpose.

14 The draft notice of appeal annexed to the applicant's affidavit specifies three grounds, namely:

i. that the RRT's reference to the fact that the applicant had been "dealt with" by the Tribunal on three previous occasions meant that the RRT approached the case with a "negative attitude";
ii. that natural justice was denied to the applicant by reason of the Federal Magistrate having made his decision in Chambers and not having allowed the applicant "an opportunity to submit my arguments at all";
iii. that the RRT concluded incorrectly that the applicant would be able to avoid persecution simply by moving to another area, that is to say that there was a reasonable possibility of relocation; and
iv. in doubting the credibility of the applicant's documents provided to the RRT.

15 The applicant has filed an outline of written submissions dated 21 March 2006 which had been placed with the papers. The grounds of review stated in the outline appear to state the same grounds which were dealt with by the Federal Magistrate. They can be reduced to two. These are, first, that the Tribunal made its decision in bad faith and, second, that the RRT made errors of law in coming to its decision.

16 I do not propose to set out further details of this because they are referred to in the written submission. The application for an extension of time is not opposed by the Minister.

17 The grounds stated in the written submissions correspond in general terms with those stated in the notice of appeal. I think that, in light of the fact that Hely J made a previous order extending time, it is appropriate for me to grant a further extension to enable the matters referred to in His Honour's judgment of 7 June 2005 to be dealt with.

18 I would comment that the grounds stated in the notice of appeal do not seem to engage with the matters which led his Honour to grant leave to appeal. However, the applicant is not legally represented and I would expect that on the hearing of the appeal, the matters which led his Honour to grant leave will be fully considered.

19 Accordingly the order I would make is firstly, that the applicant be granted an extension of time to file a notice of appeal from the decision of Federal Magistrate Lloyd-Jones given on 14 April 2005 and secondly, that the applicant file and serve his notice of appeal within seven days of the making of these orders.

20 I order that the costs of this application be costs in the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 4 April 2006

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 March 2006
Date of Judgment:	29 March 2006