SZDXU v Minister for Immigration and Citizenship

[2007] FCA 740

FEDERAL COURT OF AUSTRALIA

SZDXU v Minister for Immigration and Citizenship [2007] FCA 740

SZDXU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND
REFUGEE REVIEW TRIBUNAL

NSD 178 OF 2007

LINDGREN J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 178 OF 2007

BETWEEN:

SZDXU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be altered to “Minister for Immigration and Citizenship”.

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

3. The applicant pay the first respondent’s costs of the application.

4. The amount referred to in Order 3 above be fixed at $800.

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 178 OF 2007

BETWEEN:

SZDXU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of Australia given on 22 July 2005:  see SZDXU v Minister for Immigration [2005] FMCA 1016. The application before that Court was an application made under s 39B of the Judiciary Act 1903 (Cth). It was filed on 24 June 2004 and sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 May 2004 and handed down on 8 June 2004. The Tribunal affirmed a decision of a delegate of the predecessor of the first respondent (“the Delegate” and “the Minister”) made on 13 January 2004, refusing to grant the applicant a protection visa.

2. On the present application, the Tribunal has filed a submitting appearance.

3. The period allowed for an appeal from the Federal Magistrates Court of Australia was 21 days:  (see O 52, r 15(1)(a) of the Federal Court Rules).

4. The period of 21 days from 22 July 2005, the date when judgment was given in the Federal Magistrates Court, expired on 12 August 2005. The period from that date to the filing of the present application for an extension of time in which to appeal, on 8 February 2007, was some 19 months.

5. Under O 52, r 15(2) of the Federal Court Rules, the Court may extend the time for filing and service of a notice of appeal where “special reasons” exist. In the present case, it is not suggested that there was any delay in the applicant’s becoming aware of the order of the Federal Magistrates Court. In his affidavit, sworn on 8 February 2007, filed in support of his application for the extension of time, the applicant explains that he had obtained advice that he could proceed with an appeal once he had pursued an application under s 417 of the Migration Act 1958 (Cth) (“the Act”) to the Minister. He states that, on 22 January 2007, he received notice of the Minister’s decision not to exercise her discretionary power to issue a visa to the applicant.

6. I do not think that it is an adequate explanation for the delay that the applicant chose to pursue the application under s 417. Pursuit of an application under that section is an alternative to pursuit of an appeal, and suggests that, at the time when he chose to apply under the section, the applicant was abandoning the appellate course.

7. Be all this as it may, in order for me to exercise the discretion to extend time, an appeal must have sufficient prospects of success to make it just that it should go ahead.  The draft notice of appeal annexed to the applicant’s affidavit does not identify, in a satisfactory way, grounds of appeal. 

8. The first ground states that the Federal Magistrate should have found that the Tribunal erred by failing to assess the adequacy or meaningfulness of state protection after it found that there was no evidence of involvement by the Fijian authorities in the acts committed against the applicant.  (The Tribunal had accepted as plausible that the applicant had been assaulted by three men in August 2003.)  I agree, however, with the submission made on behalf of the Minister that the Tribunal was not required to consider whether the authorities could “guarantee” the applicant’s safety.  The Tribunal found that there was no evidence that the Fijian authorities had acted inappropriately.  The Tribunal also found that effective state protection was available for a person such as the applicant in Fiji. 

9. The second ground is that the Federal Magistrate should have found that the Tribunal erred in finding that there was no Convention nexus.  However, the Tribunal found that, while some of the acts against the applicant may have been racially and politically motivated, some aspects of the applicant’s case were exaggerated, particularly the allegations of torture, interrogation and repeated ongoing ill treatment.  The Tribunal found that, as state protection was available, the applicant’s fears were not well founded. 

10. The third ground is that the Federal Magistrate should have found that the Tribunal committed jurisdictional error, because the Tribunal found that the various instances of harm, as found, did not amount to serious harm under the Act. The Tribunal accepted that the instances of harm (being spat at, elbowed and bullied) constituted instances of physical ill treatment, but did not constitute significant physical harassment or ill treatment, or a threat to life or liberty within s 91R of the Act. It was a question of fact for the Tribunal whether particular harm amounted to persecution. Neither the Federal Magistrates Court of Australia nor this Court can review the merits of the Tribunal’s decision that the harm that it found did not amount to persecution.

11. In none of the three respects raised in the draft notice of appeal is an arguable jurisdictional error on the part of the Tribunal raised. 

12. Both for lack of an adequate explanation for the delay and for lack of arguable prospects of success, the application for an extension of time should be dismissed with costs. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        17 May 2007

The Applicant appeared in person.
Solicitors for the Respondent:	Mr R White of Sparke Helmore Lawyers
Date of Hearing:	4 May 2007
Date of Judgment:	4 May 2007