SZLNX v Minister for Immigration and Citizenship

[2008] FCA 1754

FEDERAL COURT OF AUSTRALIA

SZLNX v Minister for Immigration and Citizenship [2008] FCA 1754

SZLNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1465 OF 2008

COWDROY J
21 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1465 OF 2008

BETWEEN: SZLNX
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	21 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the costs of the First Respondent.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1465 OF 2008

BETWEEN: SZLNX
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	21 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies to this Court for an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Nicholls delivered on 31 July 2008. The application before Nicholls FM sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 8 October 2007. The Tribunal decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the applicant.

   BACKGROUND      

2. The applicant is a citizen of Bangladesh who arrived in Australia on 13 June 2002.

3. The applicant first filed an application for a protection visa on 25 July 2002 on the basis that he had well-founded fear of persecution resulting from his involvement with the Awami League. He claimed to fear harm from the Bangladesh National Party (‘the BNP’), from the BNP police and from Muslim Terrorists. However, the applicant withdrew such application on the same day.

4. The applicant subsequently applied for a student visa on 9 July 2003. The application was refused by a delegate of the Minister on 29 January 2004 and such decision was affirmed by the Migration Review Tribunal (‘the MRT’) on 29 October 2004. The applicant unsuccessfully sought judicial review of the MRT’s decision in the Federal Magistrates Court of Australia.

5. The applicant then lodged the current application for a protection visa with the Department of Immigration and Citizenship on 28 March 2007. In this application he claimed that he had been ‘seriously involved’ in student politics. He claimed that in 2001 he was charged by ‘government political leaders’ and was ‘threatened to leave the university’. He stated that in January 2002 his mother was stopped by ‘Muslim political leaders’ who asked about him. The applicant subsequently departed Bangladesh for Australia.

6. The applicant also claimed that since arriving in Australia his family has been ‘threatened several times and has been asked about me’.

7. On 21 May 2007 a delegate of the Minister refused the applicant’s application for a protection visa. On 23 May 2007 the applicant applied to the Tribunal for a review of that decision.

   THE TRIBUNAL DECISION

8. The Tribunal found that the applicant’s actions since arriving in Australia were not consistent with those of a person who had suffered harm and feared persecution. In support of such finding the Tribunal referred to the applicant’s withdrawal of his first protection visa application; the applicant’s return to Bangladesh in 2004; and the fact that it was not until he was detained that he lodged the second application.

9. The Tribunal observed that there were significant inconsistencies in the applicant’s evidence and that the applicant’s explanations for such inconsistencies were not credible. The Tribunal found that the applicant was not a witness of truth.

10. The Tribunal did not accept that either the applicant or his family had experienced harm in Bangladesh as claimed. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. The Tribunal accordingly affirmed the decision of the Minister’s delegate.

    APPLICATION IN THE FEDERAL MAGISTRATES COURT

11. By application filed in the Federal Magistrates Court on 26 October 2007 the applicant sought judicial review of the Tribunal decision. The application raised the following grounds of review:

    1.The Tribunal did not properly observe the Migration Act 1958 (Cth) and the Tribunal did not act in good faith.

    2.The Tribunal decision is not reasonably capable of reference to the decision making power of the Tribunal.

    3.The Tribunal denied the applicant natural justice.

12. In considering the first ground of review Nicholls FM found that any allegation of bad faith, bias or apprehension of bias could not be made out, especially as the only evidence put forward in support of such allegation was the Tribunal decision. His Honour found no evidence to support the allegation and was satisfied that the Tribunal’s findings were open to it on the information before it.

13. Nicholls FM also considered the allegation that the Migration Act 1958 (Cth) (‘the Act’) was ‘not observed properly’ by the Tribunal. His Honour found that the Tribunal ‘clearly understood’ the question to be addressed and found that any complaint that the Act was not properly observed could not be made out.

14. Nicholls FM considered that the second ground of review was without merit as the Tribunal’s decision was clearly made under the Act.

15. In considering the third ground, Nicholls FM was satisfied that the Tribunal had invited the applicant to a hearing in accordance with the requirements of s 425(1) of the Act. His Honour was also satisfied that the applicant was on notice that the determinative issue for the Tribunal was his credibility, as that had been the determinative issue before the delegate: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at [35]. His Honour found that in any case the Tribunal had squarely put to the applicant the concerns that it had with his credibility and that the applicant was given an opportunity to address such concerns both orally and with further written submissions. His Honour also observed that the Tribunal discharged its obligations under s 424A(1) of the Act. His Honour concluded that the applicant was not denied procedural fairness.

16. Nicholls FM could not discern any jurisdictional error in the Tribunal decision. His Honour accordingly dismissed the applicant’s application.

    APPLICATION TO THIS COURT

17. As Nicholls FM’s decision was handed down on 31 July 2008, pursuant to O 52 r 15(1) of the Federal Court Rules (Cth) (‘the Rules’) the applicant was required to file and serve a notice of appeal no later than 21 August 2008. As no appeal was filed by that date, the applicant requires the leave of the Court pursuant to O 52 r 15(2) of the Rules in order to file and serve a notice of appeal. Order 52 rule 15(2) 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.

18. On 16 September 2008 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal from the decision of Nicholls FM. Such application was accordingly 26 days out of time. In support of the application, the applicant filed an affidavit sworn by himself on 16 September 2008 which annexed a draft notice of appeal. The draft notice of appeal raises the following grounds:

    1.The Tribunal failed to accord natural justice.

    2.The Tribunal identified a wrong issue and/or relied on irrelevant material and/or ignored relevant material.

    3.The Tribunal failed to exercise its jurisdiction under the Act and/or acted in excess of its jurisdiction.

    4.The Tribunal made its decision in bad faith.

    The applicant also filed an outline of written submissions which raises an additional ground, namely that the Tribunal did not comply with s 424A of the Act because it failed to notify the applicant of the independent country information it relied upon in affirming the delegate’s decision.

    FINDINGS

19. In considering whether ‘special reasons’ exist to warrant a grant of leave under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

20. At the hearing before the Court on 20 November 2008 the applicant submitted that he did not file his appeal within the required time limits because he was not legally represented. The Court considers that such explanation is barely adequate.

21. There is no suggestion that the Minister will suffer prejudice should the Court grant leave to the applicant to file and serve a notice of appeal out of time.

22. The Court observes that the merits of the substantial application are determinative as to whether the Court’s discretion will be exercised: ‘should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances’ (Jeffers v R (1993) 112 ALR 85 at 86). As such, the merits of the substantial application will be of particular significance in considering whether there exist ‘special reasons’.

23. At the hearing before the Court the applicant was asked the basis of his allegation of a denial of natural justice. In response the applicant stated that the Tribunal had not believed him. The Court observes that such submission does not constitute a denial of natural justice, and further observes that the Tribunal’s credibility finding was a matter for it par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

24. The Court observes that Nicholls FM considered the allegations that the Tribunal did not act in good faith; that the Tribunal denied the applicant natural justice; and that the Tribunal did not act in accordance with its powers. Such allegations have been included in the draft notice of appeal as grounds one, three and four.

25. The Court is unable to identify any error in the Federal Magistrate’s findings on these three grounds. The Court considers that such grounds are without merit.

26. The remaining draft ground of appeal alleges that the Tribunal identified a wrong issue, relied on irrelevant material and ignored relevant material. In support of such ground the applicant claimed before the Court that the Tribunal did not consider his evidence and did not consider country information. Having read the Tribunal decision, the Court finds that such allegations are without merit. In the absence of particularisation the Court is unable to discern any error in the Tribunal decision in relation to the second proposed ground of appeal.

27. Insofar as the applicant’s written submissions allege that the Tribunal should have provided the applicant with particulars of independent country information pursuant to s 424A(1) of the Act, the Court observes that such information is excluded from the operation of s 424A(1) by s 424A(3)(a) of the Act. Accordingly such ground could not succeed on appeal.

28. Although the Court accepts the applicant’s explanation for delay and acknowledges that the Minister would not be unduly prejudiced if leave were granted to the applicant to file a notice of appeal, the lack of merit in the draft notice of appeal leads the Court to conclude that no such ‘special reasons’ exist to justify the Court granting leave to the applicant to file and serve a notice of appeal out of time.

29. It follows that the application must be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        21 November 2008

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	20 November 2008
Date of Judgment:	21 November 2008