BZAAV v Minister for Immigration and Citizenship
[2011] FCA 1368
•21 November 2011
FEDERAL COURT OF AUSTRALIA
BZAAV v Minister for Immigration and Citizenship [2011] FCA 1368
Citation: BZAAV v Minister for Immigration and Citizenship [2011] FCA 1368 Appeal from: Application for extension of time: BZAAV v Minister for Immigration & Anor [2011] FMCA 549 Parties: BZAAV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: QUD 212 of 2011 Judge: LOGAN J Date of judgment: 21 November 2011 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal – whether good reasons shown by applicant – application for extension of time not granted due to futility
APPEAL AND NEW TRIAL – application for leave to appeal decision of Federal Magistrates Court – whether applicant has arguable case – where no error of part of Tribunal or Federal Magistrates Court – application for leave to appeal refused
Legislation: Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth) s 91RCases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 considered Date of hearing: 21 November 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 212 of 2011
BETWEEN: BZAAV
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
21 NOVEMBER 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The notice of appeal filed on 11 August 2011 is to be treated as an application for leave to appeal and related extension of time.
2.That application is dismissed.
3.The applicant is to pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.
4.Insofar as the transcript of the proceeding may record the name of the applicant, so much of the transcript as records the name of the applicant is not to be released, except to the applicant, the first respondent, the Department of Immigration and Citizenship or their legal representatives, without the leave of the Court or a Judge.
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
QUD 212 of 2011
BETWEEN: BZAAV
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
21 NOVEMBER 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This proceeding is in substance an application for an extension of time within which to be given leave to appeal and then, if that extension is given, for leave to appeal to be granted with the request, then, for the appeal to be heard and determined in conjunction with that application.
The applicant gave oral evidence this morning as to the reasons why his application had been filed late. A notice of appeal was filed within time, had the decision of the Federal Magistrates Court been characterised as a final decision. It could not be characterised as such because the Federal Magistrates Court had initially dismissed the judicial review application for want of prosecution. The applicant sought the reopening of that dismissal order and gave an explanation to the Federal Magistrates Court as to why he was not present when the application was initially heard. The learned federal magistrate accepted that explanation and dealt with the merits of the judicial review application.
I propose to follow a similar course in relation to this “appeal”. The applicant did not file the requisite application for leave to appeal and related extension of time. Nonetheless, say “appeal” because were there merit in the grounds in the notice of appeal. there is ample reason in the evidence which the applicant gave to me this morning as to why to grant an extension of time.
While it is necessary for those who wish to challenge a decision of the Federal Magistrates Court to comply with the Federal Court Rules 2011 (Cth) and the specified time limits, I do not under-estimate the difficulties which a person not fluent in English faces in that regard. It is obvious from the applicant’s evidence that he sought the assistance of someone he believed to be legally qualified so as to prepare his challenge to the Federal Magistrates Court decision.
Having heard the applicant’s evidence about the efforts he took, the Minister for Immigration and Citizenship (the Minister), very fairly, submitted that the case should be treated as if it were an appeal. I propose, therefore, to address the grounds specified in the applicant’s notice of appeal. These were:
1.The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of Statutory Obligation.
2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
4.The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
[sic]
In one way or another, those grounds of appeal seek to challenge the decision of the Federal Magistrates Court on the basis that that court should have found that the Refugee Review Tribunal’s (the Tribunal) decision was unreasonable. The first ground of appeal also makes reference to s 91R of the Migration Act 1958 (Cth) (Migration Act).
The grounds of appeal were not specified as grounds of review in the judicial review application in the Federal Magistrates Court. That does not mean that the applicant is prevented from relying upon them. It does mean, though, that there has to be, at least, some merit in them to allow them to be put forward.
It is undoubtedly the case that a decision of the Tribunal could display jurisdictional error if the reasons were irrational or illogical or not based on findings or inferences of fact supported by logical grounds.
One of the criteria of which the Tribunal had to be satisfied to set aside the Minister’s delegates decision was whether the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. If the Tribunal had decided that it was not satisfied for reasons that were not rational, not logical or based on findings or inferences that were unsupported by logical grounds, it would have committed a jurisdictional error: see Minister for Immigration and Citizenship & SZMDS (2010) 240 CLR 611.
In this case, the applicant’s claim for a visa centred around his assertion of what one might call a “love marriage”, the opposition to such a marriage by family, particularly his wife’s family, and the cultural background in Pakistan to marrying against family wishes. This formed the background of his claimed fear of persecution. He also made reference to political beliefs which he held.
The Tribunal’s reasons disclose that the Tribunal member engaged very closely indeed with the basis of the applicant’s claim for a visa. The hearing which the Tribunal offered, and which the applicant took up, was the applicant’s opportunity to detail and support the basis of his claim. The Tribunal was not obliged, uncritically, to accept the basis of the claim. In the result, for reasons which the Tribunal set out, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed. Those reasons involved an assessment of the applicant’s credibility. That assessment was a function particularly given to the Tribunal. It is not one given to the Federal Magistrates Court or this Court.
I have studied the reasons for why the Tribunal member was not satisfied about the applicant’s claim. They are neither illogical nor irrational. I do not doubt that the applicant sincerely disagrees with the Tribunal’s reasons, having regard to the submissions that he made to me this morning. It is a necessary discipline though for this Court not to descend into matters which are consigned to the factual value judgment of the Tribunal. That same restriction applies in relation to the Federal Magistrates Court.
It was, in the end, an absence of satisfaction about the basis for the claim for a protection visa rather than any misunderstanding about s 91R of the Migration Act which explains why the Tribunal came to the decision it did. In one way or another, each of the grounds of appeal, insofar as they have any detail at all, seeks to reopen the merits of the Tribunal’s decision. That could only be done in the extreme situation of a decision on the merits that was illogical or irrational or in some other way so unreasonable that a reasonable decision-maker could not have come to the decision concerned. The Tribunal’s decision is not of that kind.
That being so, there is no point in extending time within which to appeal or granting leave to appeal. Instead the application must be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 30 November 2011
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