SZGOW v Minister for Immigration and Citizenship [2007] FCA 336

FEDERAL COURT OF AUSTRALIA

SZGOW v Minister for Immigration and Citizenship [2007] FCA 336 SZGOW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2492 OF 2006

SPENDER J

2 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2492 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGOW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER J DATE OF ORDER: 2 MARCH 2007

WHERE MADE: SYDNEY

THE COURT DIRECTS THAT:

1. The name of the first respondent be changed on the file to 'Minister for Immigration and Citizenship'.

THE COURT ORDERS THAT:

1. Leave to be given to the applicant to file a Notice of Appeal, the Notice of Appeal being limited to the first ground in the document headed 'Notice of Appeal', filed 20 December 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2492 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGOW

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER J

DATE: 2 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application seeking an extension of time in respect of a notice of appeal from a judgment given by Nicholls FM on 24 November 2006. The appeal was filed on 20 December 2006, five days out of time. Order 52 r 15(2) of the Federal Court Rules provides that: 'Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 2 In relation to the proposed appeal, there are two grounds advanced. 3 The first is that the second respondent failed to take into consideration independent country information that was relevant to the applicant's claim, and that the Tribunal failed to properly address the applicant's claim, in that it is said to have ignored material directly relevant to the applicant's claims. 4 The second ground relates to a claimed breach of an obligation under s 424A of the Migration Act 1958 (Cth) ('the Act') in respect of a statutory declaration submitted by the putative appellant to the Tribunal subsequent to the hearing by the Tribunal. 5 It seems to me that there can be no real argument that there are any prospects of success in relation to any claim concerning the findings by the Tribunal and the obligations by the Tribunal in respect of that statutory declaration, and I will not grant leave in respect of the second ground of appeal. 6 The position however is different in relation to the first ground, which asserts that the Tribunal failed in its jurisdictional obligation to consider the applicant's claims. 7 Ms Kaur-Bains for the first respondent submitted that the first respondent only objects to an extension of time being granted on the basis that the grounds of appeal are without merit. In my opinion the first ground of appeal is arguable, although I am far from convinced that, at the end of the day, it will be successful. However, for present purposes, it cannot be dismissed out of hand as being without merit. 8 I have considered the reasons for judgment of the Federal Magistrate. Relevant to the proposed first ground of appeal are his Honour's observations at par 9, where his Honour said: '9. Grounds one and two of the application derive and depend on independent country information that was put before the Tribunal and according to Ms. Sant [who then appeared for the appellant] was information that should have been but was not considered by the Tribunal. …' 9 The reasons for judgment of the Federal Magistrate then instance particular items of independent country information, that it was submitted for the putative appellant, were not considered by the Tribunal. In paragraph 10 his Honour said: '10. In essence, the applicant's position is that the Tribunal had before it, both by way of the information put by the applicant with the protection visa application and other material, information that established that political dissent was not tolerated in Iran, and that religious oppression continued (see particularly paragraph 21 of the applicant's submissions).' Later, at par 22 his Honour said: '22. I do not understand Ms. Sant's submissions to be that the mere fact that the applicant, through her adviser, had provided independent country information or that there was other information before the Tribunal, obliged the Tribunal to go through each and every detail that was included in this additional country information. The submission was that there was country information that was "so closely tied" to the subject matter, and relevant to the reasoning of the Tribunal, that it should have been taken into account. …' 10 It is also relevant what his Honour said in the remaining parts of par 22. 11 In par 23 his Honour said: '23. Ms. Sant argued that in a country where free speech is restricted, and criticism of the Government is not permitted, "it is hard to see how grumbling about the Government could be tolerated". The argument was that there was relevant material in this regard that should have been considered by the Tribunal, and the Tribunal's silence in relation to this material gives rise to the claim that it failed to properly address the applicant's claim. Ms. Sant submitted that the issue of weight to be given such material was a matter for the Tribunal, but that the Tribunal's "total silence", in circumstances where this material was directly relevant to the applicant's claims, amounted to a failure by the Tribunal of its obligation.' 12 That argument ultimately was rejected by the Federal Magistrate for reasons which his Honour advanced at some length. In particular his Honour expressed his views at paragraphs 44 and 45. 13 Notwithstanding that conclusion, which ultimately may be vindicated on an appeal, I think that the applicant for an extension of time gets over the first hurdle. The argument that the appellant wishes to run concerning the first round cannot be dismissed as without any merit at all. 14 It may be that the prospects of success are less than sanguine, but that is not the test that I have to apply in relation to whether an extension of time should be granted. 15 For these reasons and accepting the concession that the delay is short and that no prejudice to the respondent has been shown, I will grant an extension of time to the appellant to file a notice of appeal and to argue that notice of appeal, restricted however to the first ground. 16 As to costs, the applicant for an extension of time has sought an indulgence by the Court and has been successful in that regard. I think the appropriate and fair order to make as to costs is that there be no order as to costs. The Minister should not be rewarded in costs by an unsuccessful opposition to an application for an extension of time, nor should the applicant for an extension of time be rewarded in costs for something that was necessary only because of a failure to comply with the time limits imposed by the rules. 17 I make the order extending time for the applicant to file a notice of appeal, the notice of appeal being limited to the first ground in the document headed Notice of Appeal, filed 20 December 2006. 18 Directions for the hearing of the appeal will be communicated to the parties by the Registrar. There should be no orders to costs of the application for an extension of time. 19 It is also appropriate that I order the name of the first respondent be altered to the Minister for Immigration and Citizenship. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .