SZNJO v Minister for Immigration and Citizenship
[2009] FCA 1387
•26 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNJO v Minister for Immigration and Citizenship [2009] FCA 1387
SZNJO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1154 of 2009
MCKERRACHER J
26 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1154 of 2009
BETWEEN: SZNJO
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
26 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be refused.
2.The applicant pay the costs of the first respondent, to be taxed if not agreed.
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
GENERAL DIVISION
NSD 1154 of 2009
BETWEEN: SZNJO
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
26 NOVEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of India. He arrived in Australia on 6 July 2008 with a valid passport and tourist visa, valid until 6 October 2008. On 19 August 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application on 8 November 2008. On 4 December 2008 the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision and he appealed to the Federal Magistrates Court.
This is an application for an extension of time to appeal from the judgment of a Federal Magistrate delivered on 7 August 2009 (SZNJO v Minister for Immigration & Anor [2009] FMCA 759). Her Honour dismissed the application for judicial review of the decision of the Tribunal handed down on 27 February 2009.
THE APPLICANT’S CLAIMS
The applicant claimed to have a well-founded fear of persecution because of his religious beliefs. He claimed that in 1997 there was a festival jointly conducted by a Siva Temple and his church. His father was in charge of accounts of the Church. At this festival community clashes resulted between Hindus and Christians and a number of houses, including his own, were set on fire. He claimed that his father sustained severe burns and died as a result.
The applicant claimed that after the death of his father, he and his family lived with his Aunt until she was hit and killed by a car in what has been claimed to be by the applicant, a hit and run accident planned by the Hindus. After having been thrown out of his Aunt’s house by his Uncle, the applicant claimed that he and his family continued to be threatened by Hindus and that on one occasion he was attacked and had his leg broken.
The applicant claimed that on 2 January 2005 four Christian boys and one Hindu boy were killed in a clash between Hindus and Christians. He claimed that his cousin was arrested for the murder of the Hindu boy and that he was also arrested and tortured for four days. He claimed that following a protest by his church and other locals he was released.
It was further claimed by the applicant that on 3 March 2006 he and his cousin were attacked by 12 members of the Hindu community and that his cousin was severely injured in the incident. He stated that a case was filed with the local police and he was named as a witness. He claimed that the Hindus threatened to kill him if he reported the incident to the police. It is also claimed that he filed a complaint with the police in relation to the Hindus offering him bribes in relation to the incident involving his cousin which aggravated his situation with the Hindus. He further claimed that the Hindus had since thrown ‘native bombs’ at his house on two occasions and that, as such, his church arranged for him to travel to Australia.
BEFORE THE TRIBUNAL
The Tribunal noted that the applicant had informed it during the hearing that his written statement to the Department was unreliable as the people who had written the statement for him made claims which he did not make. For that reason the Tribunal disregarded his written statement.
The Tribunal accepted the applicant’s claim that his cousin had been accused of murder; that he and his cousin were attacked in March 2006 and that during the attack he was hurt and his cousin was hurt severely. It also accepted that he assisted in lodging a case against the attackers; that he was offered a bribe; and that he was fearful that he would be harmed or killed because he refused to withdraw from the court case.
However, the Tribunal was satisfied, after considering independent country information, that citizens of India have access to a reasonable level of protection provided by the State. It was satisfied that the authorities in Kerala had previously acted appropriately when dealing with the applicant and was satisfied that he would have access to a reasonable level of assistance by the Indian authorities in the future if he encountered difficulties with the persons he feared.
The Tribunal also formed the view that while the applicant’s difficulties in India may have been, in part, due to religious difference, it was not the main reason for his difficulties in India. Rather, the Tribunal was of the opinion that the primary reason for his difficulties in India was his association with his cousin who was accused of having committed a murder. Further, the Tribunal was satisfied, based on independent country information, that Christians were commonly able to freely and safely practise their religion without adverse interest from Hindus or any other religious groups. The Tribunal was satisfied that when communal violence did occur, the authorities provided a reasonable level of protection to all citizens, including Christians.
The Tribunal was not satisfied that the applicant faced a real chance of serious harm in India for reasons of religion or any other Convention-related reason.
THE FEDERAL MAGISTRATES COURT
Before the Federal Magistrate the applicant claimed:
1. Jurisdictional error
2. Breach of procedural fairness;
3. Breach of natural justice
The learned Federal Magistrate found that the grounds were bare assertions that did not disclose any error capable of review by the Federal Magistrates Court.
Her Honour noted that an unsigned, undated letter attaching an extract from the delegate’s decision and complaint regarding that decision was not relevant to the matter before her.
As to the applicant’s complaint that the delegate was aggravated towards him, after listening to the interview tapes, the Tribunal did not consider that the complaint could be borne out.
Her Honour found that this finding was open to it.
The applicant complained that the Tribunal denied his request for further time to provide documents. Her Honour was satisfied that the reason for the Tribunal’s refusal was that the applicant having had almost eight months to obtain documents had sufficient time to allow him to prepare his case before the Tribunal. That conclusion was open to it on the evidence before it. Her Honour found that there was no error by the Tribunal in the exercise of its discretion to refuse the applicant further time. Her Honour also found that there was no evidence that the applicant was asked questions on matters that were not relevant.
Her Honour was satisfied that the Tribunal understood the claims being made by the applicant, explored those claims with him at a hearing, and put to him matters of concern it had about his evidence. Her Honour noted that the Tribunal also put to the applicant independent country information before it that was inconsistent with his claims and invited him to comment on it. Her Honour was satisfied that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons given.
The Federal Magistrate concluded that the Tribunal’s decision was not affected by jurisdictional error and therefore dismissed the application.
GROUNDS OF APPEAL
In a draft notice of appeal attached to the applicant’s affidavit filed in support of the application for an extension of time, the applicant relies upon the following proposed grounds of appeal:
1. I am a citizen of India
2. I am not satisfied with Federal Magistrate Court
3. I wish to give appeal to this Hon Federal Court
In oral submissions before me, the applicant stressed that he had obtained some additional documents which could support his argument, in particular, documents about the court case in which he was involved. He had not brought those to Court with him as he had been informed that such documents could not be used in this application. He also had some media cuttings in relation to the murder. Again, he had not brought these documents with him.
Counsel for the first respondent pointed out that regardless of difficulties which may have been encountered initially, on communicating concerning a fee waiver for filing of the appeal, there was no evidence as to the reasons for the 46 days delay in proceeding with the appeal or an application for leave for extension of time to appeal after the original appeal period had expired.
Secondly, it was stressed that there were no real prospects, the Tribunal already having noted that the applicant had already had eight months to obtain the documents and he had had sufficient time. In any event, it had been accepted that the applicant had been involved in a court case and documents concerning that aspect of the matter would take the issue no further in establishing jurisdictional error.
ANALYSIS
Extension of time - principles
By O 52 of the Federal Court Rules (FCR), the manner in which appeals are to be brought before the Court is regulated. Pursuant to O 52 r 15(1)(a)(i) a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. However, O 52 r 15(2) provides that a judge may for special reasons and at any time give leave to file and serve a notice of appeal. The expression ‘at any time’ clearly refers to notices of appeal which are filed outside the 21 day period.
An applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave: O 52 r 15(2) FCR. Guiding principles were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as follows:
(a)applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an acceptable explanation of the delay; it must be ‘fair and equitable in the circumstances’ to extend time;
(b)action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
(c)any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d)the mere absence of prejudice is not enough to justify the grant of an extension; and
(e)the merits of the substantive application are to be taken into account in considering whether an extension of time should be granted.
In Jess v Scott (1986) 12 FCR 187, the Court observed that:
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.
The applicant has provided an affidavit in support of his application for an extension of time. The explanation he gives as to the delay in filing his notice of appeal is that:
[I] have submitted my application form to Federal Court on 26th of August. But that officer hesitated to accept my application and sent me back. Next day also I went to Federal Court, but the refused my form and sent me back again. I submitted my 1005 form to immigration on 28th of August. My last date was 28th August. I said about this matter to the officer but he did not hear my plead. So please understand my conditions and accept my application (sic).
It is unclear from the applicant’s evidence why it took him a further 46 days to file his application following the alleged refusal on 26 and 27 August 2009.
Analysis - grounds of appeal
In considering the question of injustice, the question may arise as to the strength of the appeal. Little injustice may be occasioned if an appeal were hopeless.
The applicant’s grounds are unparticularised and appear to be a complaint going to the merits of the Tribunal decision. To engage in fact-finding about the merits of the applicant’s case is no part of the function of the court in dealing with judicial review of an administrative decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259. The Court must beware of turning a review of the reasons of the decision-maker into a reconsideration of the merits of the decision: Wu Shan Liang. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The Tribunal’s decision was based largely on the significant amount of country information it obtained which indicated that the authorities in states with large Christian communities were in general responsive to the difficulties of the Christian communities and had demonstrated a willingness and ability to intervene if Christians required protection. Such information was put to the applicant at the hearing. In response the applicant stated that he required more time to obtain documents from India to support his claims, however the Tribunal denied this request as he had almost eight months to get his case and documents organised.
The Tribunal’s selection and assessment of independent country information is a factual matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. The Tribunal is not required to accept claims of the applicant that are inconsistent with the information regarding the situation in the applicant’s country of nationality: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Further, the weight the Tribunal gives to any piece of evidence is a matter for it to decide - as such there is no room for judicial review of the Tribunal’s use of or weight accorded to any independent country information and any further examination may amount to an impermissible merits review of the fact finding of the Tribunal: NAHI.
There are no errors of law discernable in the Tribunal decision. It was entitled to rely on the country information before it, in preference to the applicant’s claims. It put the information to the applicant at the hearing. Quite clearly it properly understood his claims, accepting that he feared he would be harmed or killed because he refused to withdraw from the Court case. However, it found that he had access to a reasonable level of State protection in Kerala and therefore did not face a real chance of serious harm in India for any Convention reason. Such a finding was open to it on the evidence before it, and discloses the correct application of the law in this regard. Any further review would amount to a consideration of the merits of the applicant’s claims.
The applicant also claims that the Federal Magistrate did not deal with his claims. Quite clearly such a complaint cannot be sustained. Before her Honour the applicant merely raised the following grounds:
(1) Jurisdictional error
(2) Breach of procedural fairness
(3) Breach of natural justice
Her Honour records that at the hearing the applicant made oral submissions criticising the decision of the delegate and the Tribunal’s refusal to allow him additional time to submit further documents. He also claimed that the Tribunal asked questions on matters that were not relevant.
Her Honour found that:
(a)the grounds were bare assertions that did not disclose any error capable of review by the Court.
(b)the reason for the Tribunal’s refusal to allow further time for him to submit documents, that he had almost eight months to obtain documents and sufficient time had passed to allow him to prepare his case before the Tribunal, was open to it on the evidence before it.
(c)that there was no error by the Tribunal in the exercise of its discretion to refuse the applicant further time.
(d)that there was no evidence that the applicant was asked questions on matters that were not relevant.
(e)the Tribunal understood the claims being made by the applicant, explored those claims with him at a hearing, and put to him matters of concern it had about his evidence.
(f)the Tribunal’s findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
No error of law can be found in the above reasoning of the Federal Magistrate in dismissing the application for judicial review of the decision of the Tribunal. Nor can any jurisdictional error be detected in the decision of the Tribunal in affirming the decision under review.
In my opinion, the approach of the Federal Magistrate and her Honour's conclusion were correct. There is no realistic prospect of success on any appeal and no explanation for the major part of the delay.
CONCLUSION
The application will be refused. The applicant is to pay the costs of the first respondent, to be taxed if not agreed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 26 November 2009
The Applicant represented himself. Counsel for the First Respondent: N Johnson Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 24 November 2009 Date of Judgment: 26 November 2009
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