|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 11 March 2008
FEDERAL COURT OF AUSTRALIA
SZISS v Minister for Immigration & Citizenship [2008] FCA 279
SZISS
AND SZIST v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 1861 OF 2007
JESSUP J
7 MARCH
2008
SYDNEY
|
AND:
|
THE COURT ORDERS THAT:
1. The applications for extensions of time to file and serve Notices of Appeal be dismissed.
2. The applicants pay the costs of the respondent
Minister.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
|
BETWEEN:
|
SZISS
First Applicant SZIST Second Applicant |
|
AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
|
JUDGE:
|
JESSUP J
|
|
DATE:
|
7 MARCH 2008
|
|
PLACE:
|
SYDNEY
|
REASONS FOR JUDGMENT
1 On 22 February 2008, I dismissed an application for an extension of time to file and serve a Notice of Appeal made pursuant to O 52 r 15(2) of the Federal Court Rules. At the time, I indicated that I would provide my reasons later. These are my reasons for dismissing that application.
2 On 16 August 2007, the Federal Magistrates Court of Australia dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming an earlier decision of a delegate of the respondent Minister to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) ("the Act"). The application for judicial review in the Federal Magistrates Court was based upon the following grounds:
1. That the Tribunal exceeded its jurisdiction by failing to assess the Applicant’s claim on the basis of information provided, rather than making its own inferences to nullify the applicant’s claims of Convention connection for his persecution.2. That the Tribunal erred in law by its failure to analyse the Applicant’s claims as per the criteria laid down in Article 1(A)(2) of the 1951 United Nations Convention.
3. That the [Tribunal] failed to analyse the Applicant’s claims in a constructive and consistent manner and thereby failed to consider the Applicant’s claims properly and fairly.
3 The applicants were not represented before the Federal Magistrate. The first applicant appeared in person, and sought an adjournment for the purpose of obtaining legal representation. The applicants had previously been legally represented in the Federal Magistrates Court, but their solicitor subsequently withdrew from the case, and their attempts to obtain alternative representation had been only partly successful. According to what the first applicant told the Magistrate, the barrister whom he provisionally engaged had advised him to apply for an adjournment and, if the adjournment were granted, he (the barrister) would act for the applicants on the adjourned date. The Federal Magistrate refused the applicants their adjournment. In doing so, his Honour said that he had undertaken a "close reading" of the Tribunal’s decision, and that he was unable to discern any ground upon which it could be successfully argued that the Tribunal fell into jurisdictional error. His Honour said that to grant the applicants the adjournment they sought would be "of no practical use".
4 The applicants were legally represented in this court. Their application for an extension of time was supported by an affidavit by their now solicitor. Exhibited to that affidavit was a draft Notice of Appeal containing three grounds, which I paraphrase as follows:
1. The Federal Magistrate erred in not granting the applicants their adjournment on the ground that they did not have legal representation. This was a denial of procedural fairness. In various ways and at various levels, the applicants had been let down by their legal representatives (and, inferentially, were blameless with respect to the circumstances which led to them then being unrepresented).
2. The Federal Magistrate erred "in not finding any grounds upon which it could be successfully argued that the Tribunal fell into jurisdictional error". There were four categories of error identified in the draft Notice. I shall refer to them further below.
3. The applicants were unrepresented before the Tribunal and before the Federal Magistrates Court, in which circumstances new grounds not raised before that court may now be raised.
5 Order 15 r 15(2) of the Federal Court Rules gives the court, or a Judge, the power to extend time for the filing and service of a Notice of Appeal where a case is made out for the exercise of that power according to special reasons. The requirement for special reasons was the subject of the following observation by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195:
What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.
On any view, in considering whether a case has elements which are out of the ordinary within the meaning of this passage from the judgment of the court in Jess v Scott, it will be relevant to consider both the explanation offered by an applicant for his or her failure to file a Notice of Appeal within time and the prospects of success of any such appeal as is proposed.
6 In the present case, counsel for the Minister accepted that the applicants had offered an adequate explanation for their failure to file their Notice of Appeal within the time limited by O 52 r 15 of the Rules. He submitted, however, that the proposed appeal had no prospect of success, and that the application should be dismissed for that reason. Counsel for the applicants joined issue at this level, and sought to persuade me that the appeal foreshadowed by the applicants had reasonable prospects.
7 With respect to the applicants’ first ground, it was argued on their behalf that the Federal Magistrate was in error by "getting into the arena himself" in that his Honour engaged in a "close reading" of the Tribunal’s decision and determined that there were no grounds that could ever be successfully argued by the applicants. It was submitted that his Honour should not have proceeded in this way without giving the applicants, when properly represented, a meaningful opportunity to demonstrate where jurisdictional error on the part of the Tribunal lay.
8 The disposition of an application for an adjournment is, of course, pre-eminently a matter of practice and procedure, and entirely within the discretion of the court or tribunal before which such an application comes. In the present case, the applicants had been legally represented at the time when they filed their initiating application in the Federal Magistrates Court. The grounds upon which they then relied, to which I have referred above, were not pressed in this court. They found no expression in the draft Notice of Appeal upon which the applicants relied. Counsel for the applicants did not seek to defend them. At least to the extent that the Federal Magistrate’s comments referred to those grounds, manifestly his Honour was justified in concluding that the granting of an adjournment would be of no practical use.
9 Counsel for the applicants submitted that his Honour had gone further than this, and had purported to rule upon the proposition that the lengthy decision of the Tribunal was completely devoid of any such error as would sustain an application for judicial review of the kind that was then before his Honour. Whether or not his Honour’s words might be so interpreted, it is sufficient for present purposes for me to hold, as I do, that the granting of an adjournment could not have advanced the applicants’ then case before the Federal Magistrates Court. Whether there was, relevantly, a denial of natural justice can now only be assessed by reference to the case which the applicants then in fact had and, as I have indicated above, it is all but common ground that that case was without substance.
10 I also accept the submissions of counsel for the respondent Minister that, when faced with unrepresented applicants, it was proper, and may be assumed to be quite normal, for the Federal Magistrate to have turned his own mind to the question whether the decision of the Tribunal disclosed an excess of, or a failure to exercise, jurisdiction. Having done so, when the applicants sought an adjournment, it was inevitable, and in no sense irregular, for his Honour to have brought his own understanding of the case to bear upon that question. Indeed, it might perhaps be said that, in so proceeding, his Honour was providing for the applicants a more complete, and therefore a fairer, hearing than he need have, in that he was prepared to go beyond the grounds upon which the applicants then relied and to consider whether there might have been something else in the decision of the Tribunal that had the potential to ground an application for judicial review if properly articulated by a professional representative. It seems that his Honour thought that there was not.
11 In their second proposed ground of appeal, the applicants canvass a number of substantive bases upon which they wish to contend that the Tribunal made jurisdictional errors. The first such matter related to tapes of the hearings before the Tribunal on 4 November and 8 December 2005. On 8 December, the Tribunal offered the applicants a tape of the hearing. The applicants accepted that offer, and were given two tapes. They assumed that they had been given tapes of the hearings on 4 November and 8 December respectively. However, they later discovered that both tapes related to the hearing on 8 December, and that they had not been provided with any tape of the hearing on 4 November. Counsel for the applicants was not able to explain how this minor logistical circumstance might have amounted to a jurisdictional error on the part of the Tribunal. There is no substance in this proposed ground.
12 The next matter under the second ground is that the Tribunal relied upon, and gave undue weight to, a report from the Danish immigration service, of which the applicants requested, but were not given, a copy. To the extent that it was used by the Tribunal, this report commented generally upon what was said to be the easy availability of false documentation in that part of India from which the applicants came. That part of the report was provided to the applicants although, as counsel for the Minister submitted, it probably fell within the exception for which s 424A(3)(a) of the Act provides. The applicants’ point is that, despite their request, they were not provided with a copy of the full report, that is to say, including so much of it that was not relied upon by the Tribunal. Given the terms of s 422B of the Act, it is difficult to see how the applicants could have even an arguable case that the Tribunal erred in point of jurisdiction in the way it dealt with this report. It was not suggested that, in so far as the report contained "information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review", it was not provided to the applicants. Counsel for the applicants was unable to identify any legal obligation which lay upon the Tribunal to provide the applicants with other parts of the report. I consider that this ground too is without substance.
13 The next matter under the second ground is that the Tribunal relied upon, and gave great weight to, a report from the Document Examination Unit of the Department of Immigration. That report related to typewritten documents which the applicants had provided to the Tribunal in support of their claim that the first applicant had a well-founded fear of persecution for a Convention-related reason. An officer of the Document Examination Unit had taken three of the documents provided by the applicants, spanning a period of some 10 years, and had expressed the conclusion that they were written on the same typewriter. Having given the applicants a copy of the report, and an opportunity to comment thereon, the Tribunal, in its decision, expressed the view, in effect, that the report justified the conclusion that the documents had been fabricated. As counsel for the applicants stressed, that was a damning conclusion apropos the applicants’ credibility. He submitted that it coloured the Tribunal’s approach to its fact-finding task in many respects, including those which were quite unrelated to the documents in question. However, the finding of facts, and the assessment of the credibility of the applicants, were matters wholly within the jurisdiction of the Tribunal. If the acceptance by the Tribunal of the document examiner’s report did not involve jurisdictional error, it could not be contended that any such error arose merely from the circumstance that the Tribunal, unsurprisingly, allowed its conclusions on the matter of credibility, based upon the report as they were, to influence much of its fact-finding.
14 However, counsel for the applicants submitted that there was jurisdictional error in a number of respects. First, he submitted that the author of the report was not qualified in a way that would be required of an expert witness in court proceedings. His expertise had not been properly established, and, based only upon the material before the Tribunal, the report was not such as would have been admitted in a court. The proceedings before the Tribunal, however, were not court proceedings. The Tribunal was not bound by the rules of evidence (see s 420(2)(a) of the Act). The Tribunal was, subject to compliance with the requirements of Division 4 of Part 7 of the Act, entitled to obtain such assistance as it chose, from such persons as were able to provide that assistance, in its disposition of the applicants’ claims, and in the resolution of such concerns as it may have had with respect to the applicants’ credibility. That this report would not, without more, have been admitted in a court proceeding was, in the circumstances, irrelevant to the question whether the Tribunal exceeded, or failed to exercise, its jurisdiction in the present case.
15 Secondly, it was submitted that the applicants were not given a sufficient, or a reasonable, period of time within which to consider the document examiner’s report, and to respond to it. The report was, it seems, handed to the applicants at the hearing of the Tribunal on 8 December 2005. The Tribunal required the applicants to respond by 22 December 2005. Counsel submitted that, particularly given the time of year involved, the period allowed was unreasonably short, and insufficient to enable the applicants to deal with the matter, for example, by taking their own expert advice on the documents to which the report related. The difficulty with this submission is that s 424B(3) of the Act provides as follows, with respect to an invitation to comment or respond under s 424A(1)(b):
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
By reg 4.35(3) of the Migration Regulations 1994 (Cth), the period prescribed for the purposes of s 424B(2) was 14 days. It seems, therefore, that the Tribunal was under a statutory direction to require the applicants to respond within a 14-day period.
16 The fourth matter arising under the applicants’ second ground was that s 424A(1)(b) of the Act was not complied with in relation to the document examiner’s report, in that the applicants were not given to understand why the report was relevant to the review before the Tribunal. At the hearing of the application for leave however, counsel for the applicants accepted that the letter under cover of which the report was provided by the Tribunal on 8 December 2005 sufficiently complied with s 424A(1)(b).
17 Turning finally to the third ground of appeal proposed by the applicants, it is true that the circumstance that an applicant was unrepresented at first instance is something which may be taken into account in considering the question of whether leave should be given to advance grounds on appeal which were not previously taken: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. As will be apparent from my reasons set out above, I approach the present application for an extension of time upon the assumption that the applicants would, in any appeal, be permitted to raise each of the grounds set out in their draft Notice. I did not dispose of their application only by reference to the grounds which they took before the Federal Magistrate.
18 For reasons given above, I took the view that none of the grounds upon which the applicants wish to rely in their proposed appeal would have any realistic prospect of success. An extension of time would, therefore, be of no utility. The conduct of an appeal on the grounds proposed by the applicants would, in my assessment, be a fruitless expenditure of resources, time and money by all involved.
19 For the foregoing reasons, the applications for an extension of time had to be dismissed.
|
|
|
|
Counsel for the Respondent:
|
|
|
|
|
|
Solicitor for the Respondent:
|
Sparke Helmore
|
|
|
|
|
Date of Hearing:
|
|
|
|
|
|
Date of Judgment:
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/279.html