FEDERAL COURT OF AUSTRALIA SZMVO v Minister for Immigration and Citizenship [2011] FCA 875 Citation: SZMVO v Minister for Immigration and Citizenship [2011] FCA 875 Appeal from: Application for extension of time: SZMVO v Minister for Immigration & Anor [2008] FMCA 1668 Parties: SZMVO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 423 of 2011 Judge: COLLIER J Date of judgment: 3 August 2011 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) ss 425, 425A, 426A Federal Court Rules O 52 r 15 Federal Magistrates Court Rules 2001 (Cth) r 44.12(1)(a) Cases cited: DÉcor Corporation v Dart Industries Inc (1991) 33 FCR 397 cited Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited Marsden v The Queen [2002] FCAFC 229 cited Date of hearing: 3 August 2011 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Applicant: There was no appearance by the Applicant Solicitor for the First Respondent: Mr M Alderton of Sparke Helmore Solicitor for the Second Respondent: There was no appearance by the Second Respondent IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 423 of 2011 BETWEEN: SZMVO Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 3 AUGUST 2011 WHERE MADE: BRISBANE (HEARD IN SYDNEY) THE COURT ORDERS THAT: The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 423 of 2011 BETWEEN: SZMVO Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 3 AUGUST 2011 PLACE: BRISBANE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an application for extension of time in which to file and serve a notice of appeal from a decision of Driver FM delivered on 11 December 2008. In that decision His Honour dismissed an application for judicial review of the Refugee Review Tribunal (Tribunal) decision handed down 11 September 2008. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the applicant a protection visa. 2 The decision of his Honour below was an interlocutory decision to dismiss the applicant's application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) because the application failed to demonstrate any arguable case of jurisdictional error. Accordingly, even if the applicant is successful in obtaining an order extending the time in which to file and serve a notice of appeal, the applicant will also require the leave of the Court to appeal from his Honour's interlocutory judgment: s 24(1A) Federal Court of Australia Act 1976 (Cth). Background 3 The applicant is a citizen of Indonesia who arrived in Australia on 7 February 2008. On 14 March 2008 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 8 May 2008. On 11 June 2008 the applicant applied to the Tribunal for a review of that decision. 4 The applicant claimed to be a supporter of Indonesia's former President Suharto and that she "hated" the (then) current government of Indonesia, which saw her as an enemy. She claimed she had received many warnings from the police, but that they had not put her in jail as they had no evidence. The applicant also claimed that in her home town she had attended a march of several hundred Suharto supporters, at which several people were arrested (although not the applicant). She was summoned to the police station and told that the police had evidence against her, but she admitted nothing. refugee review tribunal 5 The applicant did not attend the hearing at the Tribunal and did not provide additional information in support of her application for review. The Tribunal made a decision on the review pursuant to s 426A of the Migration Act 1958 (Cth) (the Act) without taking any further action for the applicant to appear at a hearing. 6 The Tribunal was not satisfied the applicant had been subject to persecution on account of her political opinion. In particular, the Tribunal observed that: Although the applicant claimed to be a supporter of the former Suharto government, she had provided no details of the form that support took other than her claim that she had attended one demonstration in March 2006. The claimed "warnings" from the police did not constitute serious harm amounting to persecution. there was evidence that the applicant had lived a normal life in Indonesia since her attendance at a demonstration in March 2006, including residing at the same address, operating her own business, and travelling overseas on several occasions. the applicant did not claim any adverse attention from the authorities for an eighteen month period prior to her departing Indonesia. 7 The Tribunal affirmed the delegate's decision finding that on the evidence before it the applicant did not have a well founded fear of persecution in Indonesia. federal magistrates court 8 On 15 October 2008 the applicant filed an application for judicial review with the Federal Magistrates Court which contained the following grounds: 1. The Refugee Review Tribunal failed to give natural justice. 2. The Refugee Review Tribunal should consider the current situation in Indonesia and my ethic. The Refugee Review Tribunal failed to do so, thus, it made error in law. 3. There was no evidence or other material to justify the making of the decision. (errors in original) 9 The applicant attended the hearing with the aid of an interpreter. The Federal Magistrate was satisfied that the Tribunal had met its obligations under s 425 and s 425A of the Act. As such the Tribunal was entitled to proceed to a hearing without the applicant. 10 The Federal Magistrate found that the Tribunal had regard to the current situation in Indonesia, contrary to the contention of the applicants second ground. In relation to the applicant's claim that the Tribunal had not provided the applicant with natural justice, the Federal Magistrate held this was meaningless in the absence of particulars. The applicant's third ground also failed on the basis that the applicant misunderstood the Tribunal's role and the basis for its decision. The Federal Magistrate concluded the applicant failed to demonstrate any arguable case of jurisdictional error, and dismissed the application. application to this court 11 On 11 April 2011 the applicant filed an application for extension of time in which to file and serve a notice of appeal from the decision of the Federal Magistrate. In her affidavit filed in support of the application, the applicant deposed that she did not know she had to appeal within 21 days of her case being dismissed by Driver FM. The application also contained the following draft grounds of appeal: 1. The Refugee Review Tribunal should consider the current situation in Indonesia and my ethic. The Refugee Review Tribunal failed to do so, thus, it made error in law. 2. There was no evidence or other material to justify the making of the decision. (errors in original) 12 At the hearing there was no appearance by the applicant, however on the Court file is a letter addressed to the applicant informing the applicant of details of today's hearing. I am satisfied that the applicant has been informed of the time and date of today's hearing. In her absence I am prepared to consider the application on the matter before me, including the submissions of the Minister. Consideration 13 So far as relevant, O 52 r 15 of the Federal Court Rules in force at the time of filing the application provide as follows: ORDER 52 RULE 15 Time for filing and serving notice of appeal (1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) 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. 14 In Marsden v The Queen [2002] FCAFC 229 the Full Court considered principles relevant to an application for extension of time in which to file and serve a notice of appeal. Their Honours observed: [18]…The principles which govern an application for an extension of time within which to file a notice of appeal are not in doubt. They were most recently set out in Parker v The Queen [2002] FCAFC 133. The Federal Court Rules provide that an appeal must be instituted within 21 days of the recording of the sentence imposed. However, they contain a provision for an extension of time in appropriate circumstances. O52 r15(2) provides that "... the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal". [19] In the civil jurisdiction the matters required to be considered when dealing with an application to extend time were dealt with by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. In Jess v Scott (1986) 70 ALR 185 a Full Court of this Court accepted the correctness of his Honour's analysis and observed that the expression "special reasons", in O52 r15, was intended to distinguish the case from the usual course according to which the time is 21 days. 15 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J explained that, in considering whether to grant an extension of time, the Court should have regard to: the delay in filing the application, and reasons for the delay; whether the other party or parties would suffer undue prejudice if leave were granted; and the merits of the proposed grounds of appeal. 16 In this case I am not satisfied that the Court ought exercise its discretion to give leave to file and serve a notice of appeal out of time. I take this view because: 1. Although the Minister has not demonstrated any prejudice he would suffer from such an order, the period of delay in this case is lengthy, being over two years after his Honour's judgment. While a short delay in filing can be explained by misunderstanding of the applicant in respect of statutory time constraints, in excess of two years is not so comprehensible, particularly in the absence of further explanation by the applicant. 2. The proposed grounds of appeal have no merits, and no prospects of success. This is because: The applicant has demonstrated no appealable error in the judgment of the Federal Magistrate. At [7]-[9], his Honour addressed in detail the claims of the appellant in respect of the decision of the Tribunal, and found that no jurisdictional error was attendant on the Tribunal's decision. Contrary to the submission of the applicant, the Tribunal did note country information relevant to Indonesia (Decision Record [24]). In any event, it is clear that the Tribunal formed a view on the material before it that, irrespective of the position in Indonesia, the applicant was not a person to whom Australia owed protection obligations. To the extent that the applicant submits that the there was no evidence or other material to justify the making of the Tribunal decision, the applicant appears to misconceive the role of the Tribunal. The applicant bears the burden of satisfying the Tribunal that the applicant has a well-founded fear of persecution and is therefore entitled to protection under the Refugee Convention. In this case it is clear that the Tribunal made its decision on the basis of material before it. Leave to appeal 17 In conclusion, and in any event, I note that principles guiding the exercise of the discretion of the Court in respect of an application for leave to appeal are: whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered; and whether substantial injustice would result if leave were refused supposing the decision to be wrong. (DÉcor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398-399) 18 For the reasons I have given in respect of the application for an extension of time, I consider that the decision of the Federal Magistrate is not attended by sufficient doubt to warrant it being reconsidered. Conclusion 19 The appropriate order is that the application be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 3 August 2011