NAVH v Minister for Immigration and Citizenship

[2007] FCA 373

FEDERAL COURT OF AUSTRALIA

NAVH v Minister for Immigration & Citizenship [2007] FCA 373

NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1704 affirmed
NAVH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1558 cited

NAVH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2295 OF 2006

HEEREY J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2295 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAVH
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed with costs.

2.The respondent’s name be amended to Minister for Immigration & Citizenship.

3.The Refugee Review Tribunal be added as the second respondent.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2295 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAVH
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Barnes FM of 31 October 2006: NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1704. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal dated 30 June 2003 affirming a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant.

2. The applicant is a citizen of Pakistan who arrived in Australia on 28 July 2001.  On 20 May 2002 the applicant lodged an application for a protection visa with the department.  On 25 July 2002 a delegate of the Minister refused the application and the applicant applied to the Tribunal for review.  In his protection visa application the applicant claimed fear of persecution by reason of his political opinion.  The applicant claimed his father had been carrying out activities against drug traffickers and was murdered by drug smugglers because of those activities.

3. The applicant claimed he would be persecuted in Pakistan because of his father's activities.  The applicant further claimed he would be arrested because of his opposition to the military regime in Pakistan.  In particular, the applicant claimed to be a member of the Pakhtoon Khwa Party and to have written articles against the dictatorial regime of General Musharaf.  The applicant claimed he and his father were attacked by ICI members who had connections to drug smugglers. 

4. The applicant claimed that as a result of this attack he left Pakistan for the United Arab Emirates.  At the hearing the applicant did not repeat claims that he was a member of the Pakhtoon Khwa Party, or that he had written articles against the military regime. 

   The decision of the Tribunal 

5. The failure of the applicant to raise the claims that he was a member of the Pakhtoon Khwa Party or that he had written articles against the military regime allowed the Tribunal to conclude there was no basis for such claims and that he was never a member of the party, nor had he written anti-government articles.

6. On the basis of statements made by the applicant about the membership of the party until he left Pakistan, the Tribunal did not believe that the applicant and his father were attacked when returning from the meeting, that he was injured or that as a result he left Pakistan for the United Arab Emirates.  Although accepting that his father died after he had departed Pakistan the Tribunal noted that the applicant had provided no further evidence to support his claims. 

7. The Tribunal could not be satisfied that the applicant was a member of the party before leaving Pakistan and was not satisfied that the applicant had a genuine fear of persecution because of his political opinion.  The Tribunal found the claims of the applicant to be without foundation and to be a fabrication. 

   Details of previous proceedings 

8. The applicant has challenged the decision not to grant him a protection visa on a previous occasion in this Court.  On 16 December 2003, Lindgren J dismissed an application for review of the Tribunal decision: NAVH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1558.

9. The applicant then commenced further proceedings in the Federal Magistrates Court seeking review of the Tribunal's decision. 

   A notice of objection to competency

10. The Minister filed a notice of objection to competency on the grounds that the application was out of time.  Notification of the decision of the Tribunal was received by the applicant on 29 July 2003.  Pursuant to Part II, Item 42 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth) the applicant is taken to have been notified of the decision on 1 December 2005.  Contrary to s 477(1) of the Migration Act, the application to the Federal Magistrates Court was not made within 28 days.  That Court had no power to extend time for commencement of the proceedings beyond 23 February 2006.

11. The application was not filed until 29 August 2006.  At the hearing the applicant submitted a request for an adjournment to seek legal advice.  He said he had been in detention and was depressed. 

    The decision of the Federal Magistrate 

12. The Federal Magistrate found there to be no evidence to support an adjournment and could not be persuaded that it was in the interests of justice to grant such an adjournment.  As the decision of the Tribunal was in June 2003 the Magistrate said the applicant had ample time to seek legal advice.  Further, an adjournment would have not been of any benefit to the applicant because of the jurisdictional point about late filing. 

13. The Magistrate found the application of the applicant to be outside the strict time limits of s 477(2).  In support of his application for leave to this court, the applicant filed an affidavit and a draft notice of appeal in which the applicant set out a number of grounds, mostly alleging errors of law by not putting weight on evidence presented by the applicant.

14. It was also alleged that the Tribunal Member who interviewed the applicant was angry with him and said that she did not believe his claims.  At the hearing before me the applicant repeated that he had claimed that he had not had a fair hearing.  He sought a further opportunity to be interviewed. 

15. The fatal problem for the application is the non-compliance with the time limit.  The Magistrate was not in error in dismissing the application.  Indeed, no other course was open to him.

16. Any appeal would have no prospects of success.  The application for leave to appeal is dismissed with costs.  The name of the respondent should be amended to read Minister for Immigration & Citizenship, and the Refugee Review Tribunal will be added as a second respondent to the application for leave to appeal. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:       27 February 2007

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007