FEDERAL COURT OF AUSTRALIA MZYFL v Minister for Immigration and Citizenship [2010] FCA 717 Citation: MZYFL v Minister for Immigration and Citizenship [2010] FCA 717 Appeal from: Application for extension of time: MZYFL v Minister for Immigration & Anor [2009] FMCA 1315 Parties: MZYFL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 484 of 2010 Judges: JESSUP J Date of judgment: 8 July 2010 Catchwords: PRACTICE AND PROCEDURE – Application for extension of time to file notice of appeal – Whether special reasons exist such as would justify extension Legislation: Migration Act 1958 (Cth) s 417 Federal Court Rules O 52 r 15 Cases cited: Jess v Scott (1986) 12 FCR 187 Vu v Minister of Immigration and Citizenship (2008) 101 ALD 211 Date of hearing: 8 July 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Applicant: The applicant appeared in person Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 484 of 2010 BETWEEN: MZYFL Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 8 JULY 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for extension of time filed on 22 June 2010 be dismissed. 2. The applicant pay the costs of the first respondent. 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 VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 484 of 2010 BETWEEN: MZYFL Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 8 JULY 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal pursuant to the discretion vested in the court under O 52 r 15(2) of the Federal Court Rules. The application relates to a judgment of the Federal Magistrates Court of Australia given on 4 December 2009, in which the applicant's application for judicial review of a decision of the Refugee Review Tribunal, made on 18 June 2009, was dismissed. The applicant is a citizen of India, and the proceeding before the Tribunal related to his attempts to establish his entitlement to a protection visa under the provisions of the Migration Act 1958 (Cth). 2 Necessarily, the applicant's grounds before the Federal Magistrate were jurisdictional ones, his Honour not being concerned with the merits of the conclusion reached by the Tribunal. Neither would this court be so concerned, were an appeal to be lodged. In circumstances where the Federal Magistrate's judgment was delivered on 4 December 2009, the 21‑day period within which a notice of appeal ought to have been filed expired on 18 January 2010. 3 In an affidavit sworn on 22 June 2010 for the purposes of the present application, the applicant said that, after he received the Federal Magistrate's decision, he lodged an application for ministerial intervention on 30 December 2009, under s 417 of the Migration Act. That section gives the Minister a personal discretion, exercisable in the public interest, to substitute another decision for that given by the Tribunal in any particular case. The applicant has informed me this morning that his decision to proceed in this way was based upon legal advice which he received subsequent to the publication of the reasons of the Federal Magistrate. The applicant's approach under s 417 was not successful for him, the Minister, by letter dated 3 May 2010, informing him that no intervention would be made in his case. 4 On 24 May 2010, the applicant attempted to file a notice of appeal in the registry of the court from the judgment of the Federal Magistrate. That notice was not accepted by the Registrar. Rather, the applicant was apparently advised that it would be necessary for him to apply for an extension of time within which to serve a notice of appeal. It was as the result of that advice that the application now before the court was filed on 22 June 2010. 5 The approach which the court should take in an application for an extension of time under O 52 r 15(2) is that to which the Full Court referred in Jess v Scott (1986) 12 FCR 187, 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 should 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 that the use of the expression "for special reasons" implies something narrower than this. 6 As far as I can understand the applicant's case, on the present application, the special reasons which he would identify for the purposes of O 52 r 15(2) are that he was not informed that he was obliged to appeal within 21 days of the handing down of judgment by the Federal Magistrate, and that he was unable to afford to hire a lawyer to represent him, as a result of which he was obliged to prepare his affidavit, sworn on 22 June 2010, himself. He informed me, however, that the draft notice of appeal upon which he would propose to rely was provided to him from another source. 7 The applicant's reference to his inability to hire a lawyer appears not to have stood in his way of seeking and receiving legal advice in the 21‑day period subsequent to the Federal Magistrate's judgment. It may be that, in the period after the applicant received the letter from the Minister dated 3 May 2010, he was unable to find a lawyer to assist him, but he told me today that, within the original 21‑day period, he did have the assistance of a solicitor in Ballarat. She advised him that he had a positive case for Ministerial intervention under s 417 of the Migration Act. She advised him to seek such intervention in preference to instituting an appeal. It does seem to me, therefore, that the applicant had some advice which should be regarded as relevant to the present circumstances, and made a choice to approach the Minister, rather than to appeal from the Federal Magistrate's decision. It may be that he was unaware at the time that, so far as his unqualified right of appeal was concerned, he was then making a choice which would, in effect, be a final one, but it was a choice nonetheless; and seemingly an informed choice. 8 The circumstances to which I have just referred make relevant something which I said as a member of the Full Court in Vu v Minister of Immigration and Citizenship (2008) 101 ALD 211, 220 [29]: I do not think that the applicant's approach to the minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant's present attempt to place himself in a position whereby he might lodge an appeal well out of time, appears to be a kind of "plan B" to which resort was had once the approach under s 351 proved unsuccessful. In that case the other members of the court, Gyles and Besanko JJ, agreed with this aspect of my reasons. I should mention that s 351 of the Migration Act referred to in that passage is in presently indistinguishable terms from those of s 417, although applicable to different factual circumstances. I consider that the present case is likewise one in which the applicant charted his own course, and it was only when that course proved unproductive for him that he resorted to his plan B of appealing from the Federal Magistrate's judgment. I am not satisfied that any of these circumstances presents the kind of special reason that would be necessary for the applicant to invoke the court's discretion under O 52 r 15(2). 9 I would add that the applicant addressed me briefly this morning about the correctness and appropriateness of the reasons of the Tribunal in his case. He scarcely mentioned the judgment of the Federal Magistrate, or his Honour's reasons, a successful attack upon which would be necessary if he had any prospect of succeeding in the appeal which he wants to file. When I asked him if he wished to make a submission about his Honour's reasons, he told me that his contest, as it were, was with the Tribunal, and that the error made by his Honour was to have affirmed the reasons of the Tribunal. However, it was not for the Federal Magistrate either to agree or to disagree with the Tribunal. The Federal Magistrate's function was only to consider whether there were legitimate jurisdictional objections that could be made to the way in which the Tribunal dealt with the case. Although the applicant did not take me to the Federal Magistrate's reasons, I have read them, and I have considered also the submissions filed on behalf of the Minister. There is nothing in those reasons which justifies any concern that his Honour might have erred in his consideration of the applicant's jurisdictional challenge to the Tribunal's decision. 10 I make these observations about what might be described as the merits of the present application, both because the content of the applicant's submissions was focused upon the facts of the case, and because the Minister's submissions emphasised the absence of any merit in the proposed appeal. I would, however, reiterate another observation which I made in Vu, in the following terms (101 ALD at 216 [14]): In the hearing of the application in this court, counsel for the applicant dealt with two issues: the merits of the proposed appeal, and the explanation for his client's failure to lodge an appeal in time. Because of the attention that was given to the first of these issues by counsel for both parties, I propose to deal with it below. However, I should make it clear why I do so. It is hard to see how the good prospects of a proposed appeal should of themselves be regarded as constituting "special reasons" for the purposes of O 52 r 15(2). The provision is concerned with reasons justifying a departure from the ordinary rule, that an appeal must be lodged within 21 days, not with reasons for anticipating a successful outcome on the part of the appellant. However, the apparent weakness of an intending appellant's prospects might often be included among the considerations by reference to which the discretion under r 15(2) is not exercised in favour of him or her. That is to say, it will often be appropriate for the court to regard the apparent existence of reasonable prospects on the proposed appeal as a necessary, but not as a sufficient, condition for the grant of leave to file a notice of appeal out of time. 11 In the present case, without any consideration of the apparent merit of the proposed appeal, I would have been satisfied that there are no special reasons which would justify the extension of time sought. However, I gave the applicant the opportunity to indicate to me why he said that his appeal would have good prospects of succeeding, and, as I have indicated above, neither from his response to that inquiry, nor from a reading of the reasons of the Federal Magistrate, have I been able to reach the view that the appeal which the applicant seeks to file would have any reasonable prospect of success. 12 For the foregoing reasons, I propose to dismiss the present application for extension of time. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 13 July 2010