SZHOK v Minister for Immigration and Citizenship

[2007] FCA 666

FEDERAL COURT OF AUSTRALIA

SZHOK v Minister for Immigration & Citizenship[2007] FCA 666
CORRIGENDUM

SZHOK v Minister for Immigration and Citizenship

VID 74 of 2007

TRACEY J
8 MAY 2007 (CORRIGENDUM 4 JUNE 2007)
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VID 74 OF 2007

BETWEEN:	SZHOK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	TRACEY J
DATE:	4 JUNE 2007
PLACE:	MELBOURNE

CORRIGENDUM

1. The date of the Order of 8 May 2005, be changed to read ‘8 May 2007.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum herein of the Honourable Justice Tracey.

Associate:

Dated:             4 June 2007

FEDERAL COURT OF AUSTRALIA

SZHOK v Minister for Immigration and Citizenship [2007] FCA 666

SZHOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 0074 OF 2007

TRACEY J
8 MAY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 0074 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHOK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE

TRACEY J

DATE OF ORDER:

8 MAY 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

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

2.The applicant’s application for leave to appeal is refused 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
VICTORIA DISTRICT REGISTRY	VID 0074 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHOK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	8 MAY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This purports to be an appeal against a judgment of a Federal Magistrate delivered on 20 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 September 2006: see [2006] FMCA 1479. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.

2. The applicant is a citizen of India of the Hindu faith.  He arrived in Australia on 13 March 2005.  He entered on a business visa.  The applicant claimed that he had been targeted by Hindu extremist groups after he had provided shelter to a group of Muslims in his factory during a period of anti-Muslim rioting in his home district.

3. The Tribunal appears to have accepted that the applicant was exposed to anti-Muslim riots while providing shelter to a number of Muslims in his factory.  However, the Tribunal did not accept that the applicant was specifically targeted by Hindu groups as a result of these actions.  In reaching this conclusion, the Tribunal relied upon Country Information for India, which did not contain material supportive of the claim that Hindu residents who had provided assistance to Muslim groups were targeted or persecuted by Hindu extremists.  The Tribunal member concluded by stating:

   “Taking into account my findings I do not accept that if the applicant were to return to India now or in the foreseeable future he would face a real chance of persecution for reasons of religion or membership of a particular social group or any other Convention related reason.”

4. The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court.  He relied on multiple grounds (16 in total), each asserting that the Tribunal had erred in affirming the decision of the delegate.  The Federal Magistrate considered and dismissed each of these grounds, finding that the Tribunal had properly and effectively dealt with the applicant’s claims.  His Honour concluded that the applicant had not established a ground for review, and dismissed the application.  The Federal Magistrate’s judgment was delivered on 20 December 2006.

5. The notice of appeal filed in this court by the applicant on 5 February 2007 raises the following ground:

   “The Tribunal failed to consider relevant documents in support of the application for protection visa. The Tribunal was in breach of section 424A(1) of the Migration Act 1958 and therefore committed jurisdictional error, error of law and denial of natural justice.”

6. The first respondent has filed a notice of objection to competency on the grounds that the appeal was filed after the 21 day period prescribed by O 52, r 15(1)(a) of the Federal Court Rules and that the appellant has not sought and obtained the leave of the Court to file and serve a notice of appeal:  see O 52, r 15(1)(b) and 15(2).

7. The applicant contends that he should be granted leave to file an appeal out of time because he was not present when the Federal Magistrate handed down his decision and did not receive notification of that decision until 20 January 2007.

8. The appellant appeared in person.  He had the assistance of an interpreter.

9. Given that the applicant was unrepresented and that the first respondent was not disadvantaged thereby, I granted the applicant leave to make an application for an enlargement of time to file his notice of appeal instanter and heard argument from the parties as to whether that application should be successful.

10. The prima facie rule is that appeals must be lodged within 21 days of the decision which it is sought to impugn being handed down.  “Special” reasons are needed to justify an extension of time.  I harbour grave doubts that the applicant has demonstrated special reasons for granting and extension of time:  see Jess v Scott (1986) 12 FCR 187 at 194; SZHSS v Minister for Immigration and Multicultural Affairs [2006] FCA 1513. I have, however, determined to reject the application because I do not consider that the grounds on which the applicant seeks to appeal raise any arguable question of law.

11. It is by no means clear that the grounds advanced in the notice of appeal were argued before the Federal Magistrate.  I sought clarification on this point from the applicant.  He agreed that these grounds had not been argued by him before the Federal Magistrate.  Nonetheless I have examined the grounds to see if they raise appealable points.

12. The applicant could only identify two documents which he said the Tribunal had failed to consider.  One was summarised by the Tribunal in its reasons.  The other was a document written in a foreign language.  The Tribunal allowed 14 days within which the applicant could supply a translated version.  He did not provide a translation to the Tribunal and did not advise the Tribunal that he was unable to do so.

13. He said that he was denied natural justice by the Tribunal because it would not accept the untranslated letter.

14. The grounds on which the applicant seeks to rely were not argued before the Federal Magistrates’ Court at least in the terms developed by the applicant in this Court.  In any event, they lack substance.

15. For these reasons leave to appeal will be refused with costs.

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

Associate:

Dated:        8 May 2005

Applicant appeared in person
Counsel for the Respondent:	Ms C Symons
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 May 2007
Date of Judgment:	8 May 2007