SZAQD v Minister for Immigration and Citizenship

[2008] FCA 361

FEDERAL COURT OF AUSTRALIA

SZAQD v Minister for Immigration & Citizenship [2008] FCA 361

SZAQD v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1887 of 2007

GOLDBERG J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1887 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAQD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

29 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a respondent to this application.

2.The application for leave to file and serve a notice of appeal out of time pursuant to O 52 r 15(2) of the Federal Court Rules is refused and dismissed.

3.The applicant pay the First Respondent's costs of, and incidental to, the application.

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 1887 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAQD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter before the court is an application by the applicant for leave to file and serve a notice of appeal out of time in respect of the decision of the Federal Magistrates Court on 4 May 2004 dismissing, pursuant to Rule 44.12 of the Federal Magistrates Court Rules, an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) on 5 March 1999 on the ground that the application did not raise an arguable case for relief. On 5 March 1999, the Tribunal dismissed an application by the applicant to review the decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant the applicant a Protection Visa. The application for leave to file and serve a notice of appeal out of time was filed on 19 September 2007. Order 52 rule 15(1) of the Federal Court Rules provides:

   “(1)     The notice of appeal shall be filed and served:

   (a)       within 21 days after:

   (i)the date the judgment appealed from was pronounced;

   (ii)the date when leave to appeal was granted; or

   (iii)any later date fixed for that purpose by the court appealed from, or;

   (b)within such further time as is allowed by the court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.”

   Order 52 rule 15(2) of the Federal Court Rules provides:

   “Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

2. What is meant in the rule by “special reasons” was considered by the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187. In substance, the Full Court held that O 52 r 15(2) gave the court a discretion which was a wide and flexible discretion to permit an appeal out of time where there were special reasons. The use of the expression “special reasons” is intended to identify something which is out of the ordinary or “normal” course. The Full Court said at 195:

   “It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  “Special reasons” must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

3. In general terms it may be said that in order to satisfy the Court that leave should be granted under that rule, the applicant has to explain why there has been the delay and has to show that there are prospects of success if the leave is granted.  I use the expression “prospects of success” loosely. 

4. The applicant is a citizen of Nepal.  He arrived in Australia on 13 September 1996.  On 19 September 1996 he lodged an application with the Department of Immigration and Multicultural Affairs for a Protection Visa.  The delegate refused the application on 22 March 1997 and on 17 June 1997 the applicant applied to the Tribunal for a review of that decision.

5. As I noted earlier the Tribunal affirmed the decision on 5 March 1999.  The applicant explained what occurred after the decision of the Federal Magistrates Court was handed down orally on 4 May 2004.  As I understood the applicant, he said that when the Federal Magistrate handed down the decision orally he was told he had 21 days within which to file an appeal.  At that time written reasons for the decision were not handed down or published.  He came to the Court to obtain a copy, but a copy of the reasons was not available.  A friend of the applicant told him that he had an avenue of appeal to the Minister.

6. As I understand it that avenue was to take advantage of the provisions of s 417 of the Migration Act 1958 (Cth) (“the Act”), as it then existed, where, in general terms, the Minister has the power to substitute the Minister’s decision for an adverse decision of the Tribunal. The Minister refused that application under s 417, as I understood the applicant, and the applicant said that he did not know that he could make an appeal again to the Federal Court. I should interpolate that at this point he could appeal to the Federal Court if given leave to appeal out of time. He said that in September 2007 he met a solicitor who advised him that he could appeal and he was only able to obtain a copy of the written reasons for the Federal Magistrate at this time through a government lawyer.

7. I am not satisfied that this recitation of facts constitutes sufficient special reasons, such that I should exercise my discretion under O 52 r 15(2) to grant leave to file a notice of appeal out of time. I take into account that the applicant is a person who comes from Nepal, is self‑represented and would not have the knowledge that a qualified lawyer would have about the procedure relating to appeals. Nevertheless the applicant knew that he had 21 days within which to file an appeal with the court but rather took an alternative approach by applying to the Minister under s 417 of the Act.

8. Even if I were to find that special reasons had been established why leave to file a notice out of appeal out of time should be granted, I am not satisfied that the applicant has sufficient prospects of success on any appeal that might have been brought.  In particular, I am not satisfied on the material before me, and I am not satisfied in particular having regard to the reasoning of the Tribunal and the Federal Magistrate, that either of them fell into error in reaching the conclusions they respectively did.

9. In a draft notice of appeal filed by the applicant in this Court, he specified that there was jurisdictional error by the Tribunal in not finding that a particular level of discrimination which he had suffered could amount to persecution.  A further ground was that the Federal Magistrate erred in not finding jurisdictional error and that the Federal Magistrate should have found jurisdictional error in relation to the finding of the Tribunal that social discrimination was essentially private in nature and falls outside the purview of the United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954) (“the Convention”).

10. The basic claim put by the applicant before the Tribunal and the Federal Magistrates Court was that, because of his inter‑caste marriage with his wife, he had experienced discrimination and would experience and encounter further discrimination if he was returned to his country of origin.  In the light of all the material before the Tribunal, the Tribunal was not prepared to accept that the applicant’s neighbours would attempt to kill his wife or that local government officials would imprison him.  The Tribunal concluded that the family and social ostracism to which he had referred which he might suffer in his village and elsewhere did not amount to persecution in the Convention sense.  In my view the Tribunal did not fall into jurisdictional error in making these findings and it was open to it on the evidence before it to make such findings.

11. The learned Federal Magistrate, in pars 9 to 11 of her written reasons for decision, set out the applicant’s arguments and the Tribunal’s response to those arguments.  Before me the applicant explained what he considered to be errors made by the Tribunal which may be summarised in the following terms:

    ·The Tribunal did not take a serious view of my application.  The Tribunal took my inter‑caste marriage lightly. 

    ·The Tribunal did not make a deep consideration of the problems I suffered on account of my marriage. 

    ·The Magistrate did not take into account the problems I suffered by virtue of my religion and my inter‑caste marriage. 

    ·The Magistrate did not take into account the position of my lower caste. 

    ·The beatings I incurred on account of my inter‑caste marriage were not taken into account. 

    ·If I had stayed any longer, I would have been killed. 

    ·I told the Tribunal the dangers I faced but the Tribunal did not take these matters seriously. 

    ·The Tribunal said that I could move to another place in the country but I believe there was no safety for me there.  Even if I relocated to another place, I would live in fear, as I was living in constant danger. 

    ·The Tribunal did not take into account the problems I would face if I went back. 

12. In short, the applicant concluded by saying he was not satisfied with the Tribunal’s decision in relation to his safety.  As I pointed out to the applicant, I am sitting in an appellate jurisdiction.  It is not open to me to review the facts of the case.  All of the matters to which the applicant refers, which I have just summarised, were essentially complaints about the findings of fact and the approach of the Tribunal to those facts.  I reject the proposition that the Tribunal did not take a serious view of the application and I reject the proposition that the Tribunal took his inter‑caste marriage lightly.  I am satisfied that the Tribunal gave the matter deep consideration.  In short, the applicant’s claim is that the Tribunal did not accept that his claim, such as they were, gave rise to persecution for a Convention reason.

13. The Tribunal made a specific finding, or accepted, that because of their inter‑caste marriage, the applicant and his wife experienced discrimination from the applicant’s family and would continue to be ostracised if they were to return to Sigana.  The Tribunal also accepted that the applicant and his wife were discriminated against by the people of their village after they married, for the same reason, but the Tribunal did not accept the claim that the neighbours would attempt to kill the applicant’s wife, as I mentioned earlier, or that local government officials could imprison them.

14. As I pointed out earlier, the family and social ostracism to which the applicant and his wife might continue to be subjected did not amount to persecution in the Convention sense.  The Tribunal relied upon the decision of Tamberlin J in the case of Guitta Levy v Minister for Immigration and Multicultural Affairs [1998] FCA 1666 and it set out a passage from that judgment. The Tribunal took the view that the observations in that judgment appeared to be equally applicable in the circumstances of the case before it. In my view, it was clearly open to the Tribunal to reach that conclusion.

15. In short, I have been unable to discern jurisdictional error or indeed any other error of principle in the reasons of the Tribunal or the Federal Magistrate.  The application to file and serve a notice of appeal out of time pursuant to O 52 r 15.2 of the Federal Court Rules is refused and dismissed.  I further order the Tribunal be joined as a respondent to this application and the applicant pay the Minister’s costs of, and incidental to, the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:        17 March 2008

Counsel for the Applicant:	the Applicant appeared in person
Counsel for the Respondent:	Ms E Baggett
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	29 February 2008
Date of Judgment:	29 February 2008