SZART v Minister for Immigration and Multicultural Affairs

[2006] FCA 817

FEDERAL COURT OF AUSTRALIA

SZART v Minister for Immigration and Multicultural Affairs [2006] FCA 817

SZART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
NSD 931 OF 2006

STONE J
28 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 931 OF 2006

BETWEEN:	SZART APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	28 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file a notice of appeal be dismissed with costs.

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 931 OF 2006

BETWEEN:	SZART APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	28 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal who arrived in Australia in 1996.  He claims to fear persecution in Nepal because he is a Christian and because he killed a cow in Nepal, which is predominately a Hindu country.  The applicant claims to have been very active in promoting Christianity and in attempting to convert Hindus to Christianity in Nepal.  His application for a protection visa was refused in turn by a delegate of the respondent and by the Refugee Review Tribunal.  His appeal from the Tribunal’s decision was dismissed by a Federal Magistrate on 29 July 2004.

2. Almost two years later, on 15 May 2006, the applicant filed an application for an extension of time within which to file and serve a notice of appeal from his Honour’s judgment.  In considering such an application it is necessary to have regard to the reason for the delay and whether the appeal, should leave be granted, would have any real chance of success.

3. The applicant attributed his delay in mounting an appeal to his shock at losing a case he felt sure he would win, his lack of financial resources and to depression resulting from bad news he received about his family.  He claimed that his family in Nepal was attacked by Maoist terrorists demanding a huge amount of money, his house was burned by them and his family forced to flee.  He also claimed that his mother was sick in hospital and he was upset because he could not visit her.    The applicant also alleged that the interpreter who assisted him at the hearing before the Federal Magistrates Court was “useless” and that he did not know what was happening until he received a letter saying that his application was dismissed.

4. The applicant provided no evidence to support his claims about what had happened to his family or about his own depression.  I do not accept that these claims adequately explain or excuse his long delay in filing a notice of appeal.  His claim about the incompetence of the interpreter is similarly unsupported, and in any event, it is not relevant to the question of delay.   My rejection of his explanation for delay is a sufficient reason to refuse the extension of time sought, however I have also considered whether the applicant’s appeal would have any real chance of success should it proceed to hearing.  Having considered the Tribunal’s reasons for its decision and the reasons given in the Federal Magistrates Court I have concluded that there is no real prospect of any appeal in this matter succeeding.

5. Fundamental to the Tribunal’s rejection of the applicant’s claims were its doubts about the credibility of his account of his conversion to Christianity.  The Tribunal did not accept the authenticity of a document that purported to be from the Village Development Society that the applicant claimed was evidence that legal proceedings had been commenced against him for his religious activities.  Nor did the Tribunal accept that the applicant had killed a cow as he claimed, since, seemingly, this claim was abandoned before the Tribunal. 

6. The learned Federal Magistrate found that the Tribunal had afforded the applicant natural justice in its treatment of independent country information regarding the forging of documents in Nepal.  The Federal Magistrate rejected the applicant’s contention that the Tribunal erred in finding his account implausible and refused to consider further evidence produced by the applicant. 

7. The draft notice of appeal that accompanied the present application asserts that the Tribunal did not extend procedural fairness to the applicant and did not consider that Nepalese Hindus and the Nepalese authorities persecute Christians.   I can see no merit in these grounds. 

8. Ground 1 in the draft notice of appeal appears to refer to the obligations imposed under s 424A of the Act, in that it complains about the Tribunal failure to give the applicant written notification about certain information on which it proposed to rely.  Any reliance on s 424A must be rejected because the Tribunal’s decision was made in 1998 whereas that provision did not commence until 1999.

9. More generally, I see nothing to indicate that the applicant was denied procedural fairness in the opportunity he was afforded to present his case to the Tribunal.   There is no evidence to suggest that the Tribunal did not give a full and fair hearing to the applicant.  I agree with the Federal Magistrate that the Tribunal’s consideration of the applicant’s evidence was in a rational and logical manner.      

10. The claim that the Tribunal did not consider the alleged persecution of Christians in Nepal is not substantiated.  The Tribunal’s reasons indicate that it considered the possibility that the applicant faced persecution from the Nepalese government in some detail.  The Tribunal also considered, in less detail, the applicant’s claims of persecution at the hands of extremist Hindus.  Ultimately, however, the Tribunal found that the applicant’s evidence about his Christianity was not plausible and the claim must fail for this reason.  

11. For these reasons I can see no error in the judgment of the Federal Magistrate and it follows the application must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            29 June 2006

The applicant appeared in person.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	28 June 2006
Date of Judgment:	28 June 2006