MZZEQ v Minister for Immigration and Border Protection

[2013] FCA 1245

FEDERAL COURT OF AUSTRALIA

MZZEQ v Minister for Immigration and Border Protection [2013] FCA 1245

Citation:	MZZEQ v Minister for Immigration and Border Protection [2013] FCA 1245
Appeal from:	Application for extension of time: MZZEQ v Minister for Immigration & Anor [2013] FCCA 1021
Parties:	MZZEQ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 770 of 2013
Judge:	MARSHALL J
Date of judgment:	22 November 2013
Catchwords:	MIGRATION – application for extension of time to appeal – utility of granting extension of time.
Legislation:	Migration Act 1958 (Cth) s 425
Cases cited:	Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Date of hearing:	7 November 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	Mr D McGlone
Solicitor for the Applicant:	Ravi James Lawyers
Counsel for the First Respondent:	Mr M Smith
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 770 of 2013

BETWEEN:

MZZEQ
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	22 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave for an extension of time within which to file a Notice of Appeal is dismissed.

2.The applicant pay the first respondent’s costs of the application.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 770 of 2013

BETWEEN:

MZZEQ
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	22 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia. The judgment in respect of which leave to appeal is sought was published on 26 June 2013. The time for the filing and service of an appeal expired on 17 July 2013. The application for leave was filed two weeks after the expiry of the time in which an appeal may be brought ordinarily under the Federal Court Rules 2011 (Cth).

2. As there would be no utility in extending the time to allow an appeal to be filed if the proposed appeal has no prospect of success, it is to that question that the Court will now turn.

3. The draft notice of appeal filed with the application for an extension of time did not state any ground of appeal. At the time of its filing, the applicant represented himself. On 21 October 2013, the law firm Ravi James filed a “notice of acting - appointment of lawyer”. On the same day, it filed written submissions signed by counsel. The blank draft notice of appeal was not sought to be amended. However, the application for an extension of time in which to appeal repeated the grounds of review contained in the proceeding in the Court below.

4. The written submissions refer to the decision of the Refugee Review Tribunal (“the Tribunal”) which was the subject of the judicial review application in the Federal Circuit Court. They allege that the Tribunal denied the applicant procedural fairness and breached s 425 of the Migration Act 1958 (Cth) (“the Act”).

5. The submissions observe that at [110] of its reasons for decision, the Tribunal rejected “individually, and cumulatively” the submission of the applicant that he faced a real chance of persecution by reason of his:

   ·Tamil ethnicity;

   ·his membership of a group of failed asylum seekers;

   ·his illegal departure from Sri Lanka; or

   ·any other Convention reason.

6. The submissions raised the following criticisms of the Tribunal’s reasons:

   ·the Tribunal did not consider the fact that the applicant had reported an abduction carried out “by the CID and or paramilitary groups working with the authorities” to police;

   ·the Tribunal failed to consider country information about the specific experience of Tamils who had been returned to Sri Lanka after seeking asylum in Australia;

   ·the Tribunal failed to consider the component of the applicant’s claim that he was a failed asylum seeker who had reported an abduction as referred to in the first dot point above.

7. The submission referred to the well-known Full Court judgment in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [45] in support of the proposition that a contention that persecution is feared for any particular reason which is supported by probative material must be considered by the Tribunal.

8. The Court is content to treat the written submissions as if they were the draft grounds of appeal for the purpose of the application for an extension of time.

9. Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The written submissions do not support any arguable basis for a contention that this section was breached in the applicant’s case.

10. Further, no arguable basis has been advanced to support the proposition that a denial of natural justice or procedural fairness occurred.

11. On the issue of the alleged abduction, the Tribunal referred to the claims made about that matter at [21] in its recitation of the applicant’s claims. It further considered the matter at [23]. The first sentence of that paragraph said:

    The applicant’s adviser submitted a detailed submission to the Department outlining the applicant’s claims and fear of being abducted and killed by the CID and white van people who previously abducted his former boss, which he was an eye witness to.

12. A further description of what the applicant said happened to his former employer in the abduction is set out at [34] to [37] of the Tribunal’s reasons.

13. At [43], the Tribunal referred to discrepancies in the applicant’s evidence about the circumstances of the abduction.

14. At [48], the Tribunal discussed the applicant’s claim that he may be punished by the authorities for illegally departing from Sri Lanka. At [49], it dismissed his claims to be subject to persecution by reason of being a failed asylum seeker. Importantly, at [49], the Tribunal said that it:

    …noted that in relation to the treatment he may receive as a failed asylum seeker, the independent country information available suggests that returned asylum seekers are usually detained for some hours while their identity is checked and they may be questioned during this period. Those persons without any adverse profile are released at the airport without further interest.

    The Tribunal then went on to refer to specific country information emanating from Canadian, Danish and British sources.

15. In the section of the Tribunal’s decision under the heading, “Findings and Reasons” the Tribunal, at [95], specifically rejected the applicant’s claim concerning the alleged abduction incident. The Tribunal developed its reasons for so finding at [96] and [97] of its decision. It is unrealistic to contend that the Tribunal did not consider this issue or take it into account in assessing his claims, either as a single issue or in combination with his failed asylum seeker claim.

16. The failed asylum seeker claim was addressed by the Tribunal at [102] of its decision. It was rejected on the basis of country information adverted to earlier in the Tribunal’s reasons for decision. The Tribunal considered voluminous country information on this topic. It defies reality to contend, as the applicant’s written submission does, that the Tribunal failed to consider country information about the specific experience of failed asylum seekers. In particular, at [101], the Tribunal dismissed submissions made by the applicant’s adviser concerning the circumstances of a particular individual.

17. There is a tendency in matters such as the one presently before the Court to treat the hearing as one directly challenging the Tribunal’s decision, as if the proceeding in the Court below had not occurred. It must be remembered that it is the judgment of the Court below which is the subject of a proposed appeal.

18. The only reference of consequence to the Court below in the written submissions of the applicant is contained in the final paragraph where it is alleged that the Court below erred when it held that all integers of the applicant’s claims had been considered. That statement by the Court below (at [17] of its reasons) was unexceptionable. The Court below explained carefully why each ground of review was unmeritorious. There is nothing in the reasons of the Federal Circuit Court to reveal any appealable error. It did not fail to detect any jurisdictionally reviewable error in the reasons of the Tribunal.

19. At the hearing of the application for leave for an extension of time within which to bring the appeal, counsel represented the applicant. Only one new matter was raised beyond the matters identified in the written submissions. In his oral submission, counsel for the applicant submitted that both integers of his client’s claim were not considered cumulatively. The very terms of the Tribunal’s decision contradict that submission. At [110] of the reasons for decision of the Tribunal, the Tribunal said:

    Considering the applicant’s claims both individually, and cumulatively, the Tribunal does not accept the applicant faces a real chance of persecution for reason of his Tamil ethnicity, his membership of a group of failed asylum seekers, his illegal departure from the country or any other Convention reason. (Emphasis supplied)

20. A fair reading of the reasons for decision of the Tribunal shows that it comprehensively rejected the applicant’s claims to fear persecution on the basis of his illegal departure from Sri Lanka and on the basis of the alleged abduction incident. It is difficult to imagine a stronger case for the Tribunal to form such a view.

21. The application must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        22 November 2013