SZOBL v Minister for Immigration & Citizenship
[2012] FCA 824
•30 July 2012
FEDERAL COURT OF AUSTRALIA
SZOBL v Minister for Immigration & Citizenship [2012] FCA 824
Citation: SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 Appeal from: SZOBL v Minister for Immigration [2012] FMCA 255 Parties: SZOBL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 614 of 2012 Judge: GILMOUR J Date of judgment: 30 July 2012 Legislation: Migration Act 1958 (Cth), ss 417, 424, 425, 426(2), (3)
Federal Court Rules 2011 (Cth)Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152Date of hearing: 30 July 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 43 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms B Rayment Solicitor for the First Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 614 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOBL
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
30 JULY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to file and serve a notice of appeal be dismissed.
2.The appellant pay the first respondent’s costs of the application to be taxed at the amount agreed.
NOTE:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 614 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOBL
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
30 JULY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant has applied for an extension of the time to file and serve his notice of appeal from the judgment of the Honourable Federal Magistrate Nicholls delivered on 14 April 2010: SZOBL v Minister for Immigration [2010] FMCA 255. The present application was filed on 30 April 2012, almost two years after the expiration of the time within which the appellant was permitted by the Federal Court Rules 2011 (the Rules).
By the judgment which is challenged, the Federal Magistrate dismissed an application made by the appellant under the Migration Act 1958 (Cth) (the Act), seeking review of the decision of the Refugee Review Tribunal (the Tribunal) made on 11 November 2011, by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa.
The relevant facts
The appellant, a citizen of Sri Lanka, arrived in Australia on 5 November 2008. The appellant claimed to be a Tamil, a Muslim and an active member of the Sri Lankan Muslim Congress (SLMC). The appellant claimed to have worked as the personal secretary to Mr Shafi Raheem, an SLMC election candidate, since 2005. The appellant further claimed that due to his position, he incurred the enmity of an elected member of the rival United Peoples Freedom Alliance (UPFA), Mr Sarath, and was attacked at Mr Sarath’s behest on several occasions. The appellant claimed that during one attack his hand was severely damaged and required hospital treatment. This resulted on the appellant going into hiding and making the journey to Australia.
On 16 December 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 6 March 2009. The delegate doubted the appellant’s claim but found that even if the events had occurred as claimed, they were isolated in nature as the appellant could relocate within Sri Lanka to avoid them. On 16 March 2009, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.
The Tribunal’s decision
The Tribunal found that the appellant was not a witness of truth and rejected his claims to have been harmed by reason of his political activities in Sri Lanka. In support of its conclusion, the Tribunal noted, amongst other things, the appellant’s vague descriptions of his alleged duties as the personal secretary to Mr Shafi Raheem, and of his previous activities on behalf of the SLMC. The Tribunal also regarded the appellant’s claim that he alone was targeted, rather than Mr Raheem or other members of the SLMC, as implausible as well as being inconsistent with the evidence the appellant had given concerning the assaults.
The Tribunal found that various aspects of the documents that the appellant provided in support of his claims, and the information provided by Mr Raheem, including the appellant’s evidence concerning this, led it to conclude that the appellant had not provided a truthful account of the circumstance surrounding his experiences in Sri Lanka.
The Tribunal rejected the appellant’s factual claims to have been an active member of the SLMC, concluding that the appellant had not provided a truthful account of his involvement with the SLMC, and the harm that the appellant had claimed as a result.
The Tribunal concluded that the appellant’s general circumstances as a Muslim did not give rise to a well founded fear of persecution, should the appellant return to Sri Lanka.
Proceedings before the Federal Magistrate
On 16 December 2009, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s a decision dated 11 November 2009. In SZOBL v Minister for Immigration [2010] FMCA 255, his Honour held that neither ground of review was made out, dismissing the application with costs.
At the hearing before the Federal Magistrate conducted on 8 April 2010, the appellant relied on an amended application filed on 22 March 2010. The amended application asserted two grounds of review which the Federal Magistrate considered in detail. The appellant also sought to put before the Court his affidavit affirmed on 16 March 2010, which annexed a letter from Mr Raheem dated 5 Feb 2010 and an extract of a report given by the appellant’s father to the Sri Lankan police dated 21 March, or 3 February 2010. The Federal Magistrate upheld the Minister’s objection to the affidavit being read into evidence on the basis of hearsay and relevance. It was noted that both documents post-dated the Tribunal’s decision.
Ground 1
The first ground of review asserted that the Tribunal failed to take into account relevant considerations. His Honour identified three sets of particulars to this ground of review.
Particular 1
His Honour identified two limbs to the first particular of ground 1. The first asserts that the Tribunal failed to consider, and make proper enquiry of Mr Raheem regarding the appellant’s duties and tasks while working for him. His Honour found that the first limb could not be made out, observing that that the Tribunal had made enquiries with Mr Raheem in the form of a telephone call from the Department of Foreign Affairs and Trade (DFAT). Furthermore, his Honour did not accept the appellant’s submission that the Tribunal failed to take into account a relevant consideration by failing to consider that Mr Raheem was contacted by DFAT while driving, resulting in him being unable to “properly answer” DFAT’s questions. His Honour found that the fact that Mr Raheem was driving was clearly considered and well understood by the Tribunal. In any event, his Honour concluded this it was open to the Tribunal, for the reasons it gave, to reject the assertions made by the appellant and Mr Raheem, and to instead rely upon the details provided by DFAT.
The second limb of the appellant’s first particular to ground one asserted a breach of procedural fairness by the Tribunal for failing to give Mr Raheem another opportunity to provide further comments. His Honour rejected this submission, observing that:
(a)Section 422B of the Act was an exhaustive statement of the natural justice hearing rule, and nothing in Div 4 of the Act compelled the Tribunal to give Mr Raheem a further opportunity to give evidence;
(b)Mr Raheem was given further opportunity to expand on his letter of support by a telephone call from DFAT;
(c)there is no general obligation or duty on the Tribunal to make enquiries in the statutory context under which the Tribunal is required to operate: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; and
(d)no special or rare circumstances were apparent in this case that might otherwise require the Tribunal to make further enquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
Particular 2
Particular two of ground one asserted that the Tribunal had erred because it failed to have regard, and give weight, to a letter written in support of the appellant by a Mr Rauff Hakeem, and further, asserting that the Tribunal failed to check the authenticity of the letter, as well as failing to make enquiry of the author about the content of the letter.
His Honour observed that the Tribunal did consider the letter from Mr Hakeem, but it did not overcome the adverse findings made in relation to the appellant’s evidence in relation to his claimed activities for the SLMC. Furthermore, his Honour noted that no author was identified on the face of the letter, and that the appellant had given evidence that he did not know who wrote the letter in circumstances where the author stated that he had known the appellant for a “long period” and had visited the appellant’s house.
His Honour held at [71]-[74] that the Tribunal’s determination that the letter, along with other letters of support, did not overcome its other adverse findings, was a finding within jurisdiction. His Honour rejected the appellant’s submission that the Tribunal ought to have made enquiries with Mr Hakeem for the same reasons that were discussed in relation to particular one.
Particular 3
Particular three to ground one asserted that the Tribunal had erred because it “dismissed” the evidence of a police report on the basis that it did not overcome the adverse credibility finding made against the appellant by the Tribunal.
His Honour observed at [77] that the document was specifically noted by the Tribunal in its decision and discussed with the appellant at the hearing on 13 May 2009, and ultimately, “the Tribunal’s findings were reasonably open to it on what was before it”.
Ground 2
Ground two asserted that the Tribunal had failed to comply with s 425 of the Act, and that the Tribunal took into account irrelevant considerations.
His Honour rejected the appellant’s complaint that he was “called three times for a hearing”, holding that “this did not constitute a valid criticism of the Tribunal in circumstances where it was merely complying with its legal (s 425) and statutory (s 424AA) obligations”. His Honour could not see “that the number of hearings themselves could be said to be too onerous for the applicant such that he was denied a meaningful opportunity to give his evidence”.
Particular 1
The first particular to ground two appeared to assert that the questions asked by the Tribunal in relation to the appellant’s father’s political activities were “irrelevant”. His Honour rejected this submission, noting that it was the appellant who first raised the matter of his father’s political involvement. His Honour found no factual basis for the appellant’s complaint and that it would have been open to the Tribunal in any event to question the appellant about his father, given that he had raised the issue, and that it provided some context for the appellant’s claims.
Particular 2
The second particular to ground two asserted that the Tribunal had erred by assuming that it was “unnatural” for the appellant to have attended the SLMC national conference in October 2008, in circumstances where he claimed to have been previously attacked by the opposition. His Honour rejected this submission finding that it was open to the Tribunal for the reasons it gave to reject the claim as not being credible, and again that it was a factual matter for the Tribunal to decide.
As neither ground was made out, the appeal was dismissed.
The application in this court
While the Rules had not commenced when the Federal Magistrate’s judgment was pronounced on 14 April 2010, due to the fact that this application was filed on 30 April 2012, almost two years after the pronouncement of the judgment, the Rules apply to the present application: r 1.04(1) of the Rules.
Pursuant to r 36.03 of the Rules, the appellant was required to file a notice of appeal within 21 days after the date on which the Federal Magistrate pronounced judgment. The appellant did not file his present application until 30 April 2012, almost two years after the relevant appeal period had expired. Accordingly, he requires an extension of time pursuant to r 36.05 of the Rules.
Generally, there are three relevant matters for the Court to consider in determining whether it should exercise its discretion to extend time. The first is whether an acceptable explanation for the delay has been provided; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought to be allowed to proceed; and the third is whether there would be undue prejudice to the respondent if the Court were to extend time to allow the appeal to proceed: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.
The draft notice of appeal forming part of this application contains the following grounds:
1.The Federal Magistrate erred in finding that the Tribunal did not fail to take a relevant consideration into account and complied with s.425 of the Act.
2.The Tribunal failed to give the Applicant an opportunity for a fair hearing in accordance with s.425 by not allowing the Applicant’s witness to give all his evidence in a proper and constructive manner.
I think it is reasonable to infer from the draft notice of appeal’s content and indeed from what the appellant has said through his interpreter, that these draft grounds of appeal were formulated by a trained lawyer.
The appellant made reference to a barrister who he was unable to identify and who was apparently going to represent him at the hearing before me but was ill and therefore unavailable. When I pressed him to identify the name of any lawyer that was representing him he mentioned the name, Michaela. This, it transpires, is a reference to Ms Michaela Byers, a lawyer, it seems acting on instructions from Amnesty International. Ms Rayment, appearing for the Minister, informed me that she had been in touch with Ms Byers last week when Ms Byers informed her that she was so instructed and that an adjournment was being sought on behalf of the appellant for a period of one month in order for additional preparations to be made for the hearing.
After taking instructions, on behalf of the Minister, Ms Rayment then informed Ms Byers by email on Wednesday of last week that any application for an adjournment would be opposed by the Minister. At some stage last week Ms Rayment learned from Ms Byers that she, that is Ms Byers, had a copy of and had read the Minister’s written submissions filed in opposition to the application which was before me. The appellant, through his interpreter, informed me that he had received a copy of those written submissions in or about the middle of last month and had provided a copy to Ms Byers by facsimile shortly after he had received his copy. In the context of the conversation concerning the written submissions of the Minister, Ms Byers then informed Ms Rayment that:
I will let counsel and AI, Amnesty International, know of your instructions. I don’t think we will be able to assist him then”.
The application for extension of time is supported further by an affidavit of the appellant affirmed on 27 April 2012.
Delay
As the first respondent (the Minister) submits, and I accept, the period of delay is unwarrantable, with the appellant being unable to provide a satisfactory explanation for the delay. In his affidavit sworn on 27 April 2012, the appellant stated: he was “very afraid” when his application was dismissed as well as being frightened to appeal due to the fact that if he were to be unsuccessful, he may be liable for costs; that he had already made two unsuccessful applications under s 417 of the Act; and lodged the present application for extension of time due to the fact that he was told that if he did not he would be deported.
Even if the appellant had a fear of incurring further legal costs in pursuing an unsuccessful appeal, this does not adequately explain his failure to pursue an appeal for almost two years. Nor does it explain what has since changed for him to overcome that fear and risk incurring further costs after such a considerable delay by lodging the present application.
It is also significant that the evidence of the present appellant is that he chose not to appeal. He does not state that he was unaware of the applicable time limits and now concedes that he has lodged the present application to achieve a specific migration objective, for example, to delay a removal action against him, rather than to genuinely seek review of the Federal Magistrate’s judgment.
The time limits imposed by the Rules are to be taken seriously. As McHugh J said, speaking of statutory limitation periods, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:
A limitation period ... represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it.
I find that the delay of almost two years in this case is without any satisfactory explanation.
No prospects of success and prejudice to the respondent
The Minister submitted that there is nothing in either the comprehensive reasons of the Federal Magistrate or the appellant’s draft notice of appeal that expose any basis to justify an extension of time. The grounds in the draft notice of appeal lack particulars to make them meaningful and in substance simply re-agitate the complaints argued by the appellant before the Federal Magistrate.
As the Minister submits, and I agree, the appellant’s first purported ground of appeal fails to identify the relevant consideration that the Tribunal allegedly failed to take into account. If the appellant seeks to argue that the Tribunal failed to take into account one of the three sets of particulars to ground one addressed by the Federal Magistrate, then he cannot succeed. As I have said, no error is apparent in the Federal Magistrate’s finding that the Tribunal did not fail to take into account any relevant consideration.
The proposed second ground of appeal identifies no error with the judgment of the Federal Magistrate. The ground is also misconceived because it suggests that in discharging its obligation under s 425 of the Act, the Tribunal owed particular duties to the appellant’s witness. No such duties exist. The Tribunal’s obligation under s 425 of the Act is to invite the appellant to a hearing in circumstances where the Tribunal is unable to make a decision favourable to the applicant “on the papers”. The hearing must be a meaningful opportunity for the applicant to give his evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, and, in conducting that hearing, the Tribunal is required to expose those determinative issues on the review that were not dispositive before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Furthermore, the appellant may request the Tribunal to call a witness pursuant to s 426(2) of the Act but the Tribunal is not required to obtain evidence from the appellant’s witness under s 426(3) of the Act. Nor is there any requirement that any enquiry made by the Tribunal pursuant to s 424 of the Act be made in a particular way: Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489.
The appellant also does not explain how his witness (presumably Mr Raheem) was not permitted “to give all his evidence in a proper and constructive manner”. To the extent that he seeks to argue the same complaints raised in the Court below, there is no error in the findings of the Federal Magistrate in rejecting the appellant’s complaints about the manner in which the Tribunal approached the evidence of Mr Raheem and which are set out at [12] and [13] above.
The appellant’s proposed grounds of appeal are highly generalised and fail to identify any error in the decision of the Federal Magistrate. There is no merit in the proposed appeal to justify an extension of time. The Minister ought not to be subjected to the prejudice of defending unmeritorious proceedings if time was extended.
For these reasons, the application for an extension of time to file and serve a notice of appeal will be dismissed with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 8 August 2012
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