SJFB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 566

FEDERAL COURT OF AUSTRALIA

SJFB v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 566

SJFB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No SAD 44 of 2005

FINN J
ADELAIDE
5 MAY 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2005

BETWEEN:	SJFB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	5 MAY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve a notice of appeal be dismissed. 

2.The applicant pay the respondent’s costs. 

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2005

BETWEEN:	SJFB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	5 MAY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal against a decision of Selway J dismissing an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) that the applicant not be granted a protection visa under the Migration Act 1958 (Cth). This application is being dealt with by way of written case: see O 52 r 15A of the Federal Court Rules.

2. The decision of Selway J was handed down on 10 February 2004.  This application was filed over a year later on 18 February 2005.  The affidavit in support of the application recites a now all too familiar story (whether or not it be true or false in fact).  It is that the applicant appointed a barrister, Mark Clisby, to represent him.  He was told he would be kept updated on the progress of his case.  On the last occasion (no date given) that he spoke to Mr Clisby he was told his case was still in court.  He recently found out that it was dismissed on 10 February 2004 and as soon as he ascertained this he filed this application.

3. The considerations informing the exercise of discretion to grant leave are well known and well understood.  While O 52 r 15(2) indicates that there must be “special reasons” for granting leave, that requirement does no more than indicate that there be a ground which justifies departure from the general rule in the particular case:  see Jess v Scott (1986) 12 FCR 187 at 195.

4. However, even if special reasons can be identified, the Court retains a discretion to grant or refuse the extension sought.  One of the factors informing the exercise of that discretion is the prima facie strength of the proposed ground of appeal:  see Howard v Australian Electoral Commission [2000] FCA 1767. Another is the explanation for the delay.

5. In the present matter the only ground of appeal identified in the draft Notice of Appeal is that Selway J dismissed the application without properly taking into consideration the information the applicant provided. 

6. Even if I considered that the applicant had provided a sufficient explanation of his delay in appealing – and I consider that his explanation does raise questions – I would not in the circumstances exercise my discretion to grant the leave sought.  No arguable case is disclosed in the appeal he seeks to make.  No useful purpose would be served in granting leave to appeal out of time:  Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791. As a supplementary affidavit filed by the applicant demonstrates, he labours under a misconception of the role of an appeal to this Court. That affidavit appears to invite the Court to review the merits of his application to the Tribunal for a protection visa.

7. The applicant is a citizen of Nepal who arrived in Australia on 29 November 2001.  The basis of his claim to refugee status was his fear of persecution if he returned to Nepal.  He said he had been a policy officer serving in country regions of Nepal;  that he was at risk from Maoist insurgents;  and that he was as well at risk from the police and the army as he had left the police.

8. The Tribunal found that the applicant did have a subjective fear of persecution from Maoists but that it was an option for him to move to Kathmandu where the chance was remote that he would be subjected to convention-related persecution.  It further held it was not satisfied that he was at risk from either the police or the army. 

9. The applicant’s case in the proceedings before Selway J was that in two distinct respects the Tribunal committed jurisdictional error.  The first was that the Tribunal misapplied the test as to when the ability to relocate elsewhere in one’s country of nationality would suffice to defeat a claim of apprehended persecution in that country.  Reliance in this was placed upon the decision of the Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 in which it was held that a person did not have a well-founded fear of persecution if that person could avail of the real protection of their country elsewhere within that country unless it was not reasonable in the circumstances to expect a person to relocate to another part of that country.

10. The Randhawa test was recently re-endorsed by the Full Court in NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37.

11. In dealing with this ground of review, Selway J set out a lengthy extract from the Tribunal’s reasons dealing with relocation.  His Honour said at (at [8]), correctly in my respectful view that:

    “It is plain that the Tribunal has addressed the very issue which the Full Court referred to in Randhawa.  It discussed whether it was reasonable for the applicant to relocate in Kathmandu and whether he would have a well-founded fear of persecution if he did so.  The submissions put to me fundamentally went to the proposition that the Tribunal had made a wrong factual finding in the conclusion that it reached.  That was an issue within the jurisdiction of the Tribunal.  This Court does not have jurisdiction to carry out some merit review of that decision.  No jurisdictional error has been identified in that regard.”

12. The second ground of review advanced before Selway J was an alleged breach of natural justice by the Tribunal in failing to give the applicant an opportunity to respond to the suggestion of relocation.  As Selway J indicated, this allegation was falsified on the face of the Tribunal’s reasons. 

13. In the event not only does the draft Notice of Appeal reveal no arguable ground of appeal, Selway J’s decision on the issues raised before him is unimpeachable.

14. This application will be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn .

Associate:       

Dated:            5 May 2005

Applicant appeared in person.
Counsel for the Respondent:	Mr K Treadrea
Solicitor for the Respondent:	Sparke Helmore
Date of Final Submissions:	15 April 2005
Date of Judgment:	5 May 2005