MZZXA v Minister for Immigration and Border Protection

[2015] FCA 169

FEDERAL COURT OF AUSTRALIA

MZZXA v Minister for Immigration & Border Protection [2015] FCA 169

Citation:	MZZXA v Minister for Immigration and Border Protection [2015] FCA 169
Appeal from:	Application for extension of time: MZZXA v Minister for Immigration & Anor [2014] FCCA 2232
Parties:	MZZXA v MINISTER FOR IMMIGRATION & BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 647 of 2014
Judge:	RANGIAH J
Date of judgment:	5 March 2015
Catchwords:	MIGRATION – application for extension of time to appeal – refusal to grant Protection (Class XA) visa – appeal has no prospect of success – application dismissed
Legislation:	Migration Act 1994 (Cth) s 36(2)(a) and s 36(2)(aa) Federal Court Rules 2011 (Cth) r 36.03 and r 36.05
Cases cited:	Jess v Scott (1986) 12 FCR 187 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Date of hearing:	4 March 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms J Lucus of Australian Government Solicitors
Counsel for the Second Respondent:	The second respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 647 of 2014

BETWEEN:

MZZXA
Applicant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	5 MARCH 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time to 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 647 of 2014

BETWEEN:

MZZXA
Applicant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RANGIAH J
DATE:	5 MARCH 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied for an extension of time to appeal from a judgment of the Federal Circuit Court (“the Circuit Court”) made on 25 September 2014. The Circuit Court dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision to refuse the applicant a Protection (Class XA) visa.

2. The applicant was required under r 36.03 of the Federal Court Rules 2011 (Cth) to file a notice of appeal within 21 days after the date of the Circuit Court judgment; that is by 16 October 2014. He filed his application on 31 October 2014, some 15 days out of time.

3. The factors relevant to the Court’s decision as to whether to grant an extension of time pursuant to r 36.05 of the Federal Court Rules include the explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the proposed appeal: Jess v Scott (1986) 12 FCR 187 at 195.

4. The first respondent, the Minister for Immigration and Border Protection (“the Minister”), accepts that he has not suffered any prejudice as a result of the applicant’s delay and, further, that the delay is relatively short. 

5. In an affidavit, the applicant deposes that he did not file his application within the required period because he was unable to afford a lawyer and because he was depressed as a result of the Circuit Court’s decision and not in a “correct state of mind to react at the earliest.”  I am prepared to find that the applicant has provided an acceptable explanation for his delay. 

6. The real issue is whether the appeal has sufficient prospects of success to warrant a grant of an extension of time.  I will proceed to consider that issue. 

   Background and the Applicant’s Claims

   The applicant is a citizen of Nepal.  He arrived in Australia on 26 April 2009.  In May 2012 he was refused a skill visa on what are described as “fraud grounds”.  He lodged his application for a protection visa on 29 August 2012. 

   The applicant claimed that:

   ·The applicant and his family had been forced to flee from their home to Kathmandu to avoid being killed by a party called the CPN (or Maoists). 

   ·The applicant and his family were able to return from Kathmandu in 2006, but the Maoists threatened them that if they wanted their property returned they would have to pay a huge sum of money. 

   ·The applicant was abducted by the Maoists in 2003, but he managed to escape.

   ·The applicant then fled to Kathmandu, but the Maoists abducted his father and threatened to kill him if the applicant did not come back.

   ·In 2004, the applicant was again kidnapped by the Maoists, but he managed to escape again. 

   ·The applicant left for Kathmandu again and the government locked up his father for a week as a consequence. 

   ·The applicant had previously been a member of the CPN for about five to six years. 

   ·The Maoist had issued an order to kill him, so he would  not be safe in Nepal or India.

7. The Tribunal did not accept any of the applicant’s claims.  The Tribunal was concerned about discrepancies between information the applicant had provided in his application for a protection visa, in his interview with the Minister’s delegate and in his evidence to the Tribunal.  The Tribunal did not accept that the applicant was kidnapped by the Maoists, or that his father was detained, or that he was involved in politics, or that his family’s land had been confiscated.  The Tribunal did not accept that the applicant or his family had been forced to flee to Kathmandu. 

8. The Tribunal did not consider that there was any reason why the applicant would be targeted by the Maoists if he were to return to Nepal.  It found that there was no real chance that the applicant would be seriously harmed by the Maoists in the reasonably foreseeable future and that any fear of persecution he had was not well founded.  The Tribunal also found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal, there was a real risk that the applicant would suffer significant harm at the hands of the Maoists.

9. The Tribunal was not satisfied that the applicant met the criterion under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1994 (Cth).  The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa. 

   The judgment of the Circuit Court

10. The application before the Circuit Court relied on three grounds.  They were:

    Ÿ“Tribunal took irrelevant facts into consideration and decided not to grant visa.”

    Ÿ“Tribunal has refused with giving an opportunity in my application.”

    Ÿ“There was no principal of natural justice followed.”

    (Errors in the original.)

11. The Circuit Court judge noted that the applicant had been given an opportunity to provide particulars of the grounds he relied on to establish jurisdictional error, but that the applicant had not provided particulars or written submissions.

12. The Circuit Court judge considered that the Tribunal’s findings of fact were open on the evidence.  The Tribunal had made findings adverse to the credibility of the applicant.  The Circuit Court said that it was not for that Court to make findings of fact in respect of the applicant’s claim, nor to disturb the credibility findings made by the Tribunal.  The application was dismissed with costs. 

13. The Circuit Court judge did not directly deal with the applicant’s grounds of taking irrelevant facts into consideration and denying the applicant natural justice.  That appears to be because the applicant did not give particulars of his grounds of appeal or make submissions in support of those grounds. 

    Prospects of success of any appeal

14. The applicant represented himself in his application for an extension of time to appeal.  The only potential ground of appeal he raised is as follows:

    The Court did not take the facts of the case and dismiss the case, without much consideration. 

15. The applicant’s complaint seems to be that the Circuit Court did not accept the facts that he asserted and did not give his application adequate consideration. 

16. The applicant has not provided particulars of his ground of appeal or any written submissions.

17. The applicant did not elaborate on his ground of appeal in the hearing before me.  His oral submissions, given through an interpreter, were limited to saying that the papers and documents he had presented in support of his application were all true and that he was unable to return to Nepal.

18. To the extent that the applicant’s case is that his claims should be accepted as true, it is not within the power of this Court, and it was not within the power of the Circuit Court, to make findings of fact contrary to those of the Tribunal. The merits of the decision are solely for the Tribunal to decide: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.The role of the Court is confined to determining whether the Tribunal’s decision was affected by jurisdictional error.

19. To the extent that the applicant complains that the Circuit Court failed to give his application adequate consideration, that ground is also without merit.  An examination of the Circuit Court’s reasons shows that it gave the applicant’s arguments careful consideration and correctly found that the Tribunal’s decision was not affected by jurisdictional error. 

20. The applicant’s proposed appeal does not have any prospects of success and, therefore, it would be pointless to grant an extension of time to appeal. 

21. The applicant’s application is 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 Rangiah.

Associate:

Dated:        5 March 2015