SZOFH v Minister for Immigration and Citizenship
[2010] FCA 991
FEDERAL COURT OF AUSTRALIA
SZOFH v Minister for Immigration and Citizenship [2010] FCA 991
Citation: SZOFH v Minister for Immigration and Citizenship [2010] FCA 991 Appeal from: Application for extension of time: SZOFH and Ors v Minister for Immigration and Anor [2010] FMCA 392 Parties: SZOFH, SZOFI and SZOFJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 809 of 2010 Judge: GRAY J Date of judgment: 11 August 2010 Catchwords: MIGRATION – visa – protection visa – whether extension of time to appeal from Federal Magistrates Court should be granted – adequate explanation for delay based on residence in area of limited communication facilities, need to wait for edited reasons for judgment, and short delay – no prejudice from delay – whether extension of time would be futile – whether any prospect of success on appeal – applicants attempting to revisit issues of fact – no denial of procedural fairness – no failure to apply law correctly – no issue of jurisdictional error raised Legislation: Federal Court Rules O 52 r 15(1)(a)
Migration Act 1958 (Cth), ss 5(1), 36, 36(1), 36(2), 36(2)(a), 36(2)(b), 424AConvention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967
Cases cited: SZOFH and Ors v Minister for Immigration and Anor [2010] FMCA 392 cited Date of hearing: 11 August 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 The first applicant appeared in person The second and third applicants did not appear Counsel for the first respondent: Ms N Johnson The second respondent submitted to any order the Court might make, save as to costs Solicitor for the respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 809 of 2010
BETWEEN: SZOFH
First ApplicantSZOFI
Second ApplicantSZOFJ
Third ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
11 AUGUST 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2.The first and second applicants pay the first respondent’s costs of the application.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 809 of 2010
BETWEEN: SZOFH
First ApplicantSZOFI
Second ApplicantSZOFJ
Third ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
11 AUGUST 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This application to extend the time for the filing and service of a notice of appeal was filed on 1 July 2010. The applicants seek to appeal from the judgment of the Federal Magistrates Court of Australia given on 7 June 2010 and published as SZOFH and Ors v Minister for Immigration and Anor [2010] FMCA 392.
The applicants are three citizens of India. The first and second applicants are a husband and wife. The third applicant is a child of the first applicant by a previous marriage. The applicants arrived in Australia on 1 July 2009. On 13 August 2009, they lodged applications for protection visas pursuant to s 36 of the Migration Act 1958 (Cth) (“the Migration Act”). On 14 October 2009, a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), made a decision refusing to grant protection visas to the applicants. The applicants then applied to the Refugee Review Tribunal (“the Tribunal”), the second respondent to this application, for review on the merits of that decision. The Tribunal made a decision on 9 February 2010, affirming the decision not to grant the applicants protection visas.
Section 36(1) of the Migration Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides as follows:
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the “Convention”. For present purposes it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
The first applicant claimed to be entitled to a protection visa pursuant to s 36(2)(a) of the Migration Act, on the ground that he has a well-founded fear of persecution, if he should return to India, for reasons of his religion and his political opinion. The second and third applicants claimed to be entitled to protection visas pursuant to s 36(2)(b) of the Migration Act as a spouse and a dependent of the first applicant.
The first applicant claimed to have been active in a political party and to be liable to persecution as a result of his activities. He also claimed to be liable to persecution on the ground of his religion. He is a Sikh. He claimed to have been attacked physically on two occasions, one of which also involved his wife and children.
The Tribunal found that the first applicant was a supporter of the political party and provided some general assistance at the local level in that party’s campaign for the 2009 national elections. It rejected his claims that he was a formal member of the party and that he was a member of an executive committee at any level in the party. The Tribunal expressed serious doubts about the claims of physical attacks. In its reasons for decision, the Tribunal referred to the vagueness of evidence about these occasions, the implausibility of the first applicant being targeted by Congress party members, the implausibility of the claim that members of the first applicant’s former wife’s family were among the attackers, and to inconsistencies in accounts of the incidents given by the first applicant on different occasions.
The Tribunal concluded that the first applicant had not given a truthful account of his circumstances in India, the reasons for which he left India and the reasons for which he feared returning. It did not accept that the first applicant was attacked on two occasions by members of opposing political parties. It did not accept that he was a formal member of the political party or a member of an executive committee. It also based its findings on the lack of knowledge the first applicant displayed about the structure of the political party and the identities of persons holding office in it. The Tribunal was not satisfied that the first applicant had suffered any serious harm in India amounting to persecution on the basis of his Sikh religion.
The Tribunal accepted that the first applicant might continue to support the political party and that he might provide assistance to that party at a local level if he should return to India. It also accepted that he might continue local activities to support the needs of the local Sikh community. On the basis of evidence from sources other than the applicants, the Tribunal did not accept that there was any real chance that the first applicant would experience serious harm amounting to persecution for the reason of his political opinion, or for the reason of his religion, if he should return to India.
The applicant’s application to the Federal Magistrates Court for judicial review of the Tribunal’s decision contained four grounds. The first alleged that the Tribunal failed to accept that the applicants are victims of persecution for their political and religious belief and did not accept the first applicant as a credible witness and made errors of jurisdiction. The second ground alleged excess of jurisdiction, constructive failure to exercise jurisdiction, or denial of procedural fairness by the Tribunal, for failure to provide an extension of time to comment on adverse information on which the Tribunal relied and to give the applicants an opportunity to submit explanations and material in reply to that adverse information. The third ground alleged that the Tribunal totally ignored the persecutions the applicants experienced in India by reason of the first applicant’s membership of a political group, and made errors of jurisdiction. The fourth ground alleged that the Tribunal failed to accept that the second applicant and other family members were assaulted or experienced any other harm because of the first applicant’s political belief, and made errors of jurisdiction.
In his reasons for judgment at [17], the learned federal magistrate referred to the difficulty the application had in rising above a contest over the merits of the Tribunal decision. His Honour described the first, third and fourth grounds of the application as being in substance an attack on the merits of the Tribunal decision. At [18], his Honour found that the Tribunal’s adverse credibility findings were open to the Tribunal on the material before it. His Honour pointed out that factual matters are solely for the Tribunal to determine and are not within the scope of the Federal Magistrates Court jurisdiction. At [19], his Honour held that the Tribunal rejected the first applicant’s claims for reasons that were open to it. At [20], his Honour pointed out that the Tribunal did not accept that the second and third applicants suffered or would in the future suffer serious harm amounting to persecution in India, due to their Sikh religion, on account of the first applicant’s political involvement, or because of his former wife’s family. His Honour held that no error was revealed in the Tribunal’s approach.
At [21], the federal magistrate found that the second ground appeared to raise an issue of substance, but that there was no evidence of any request for an extension of time by or on behalf of the applicants. At [22] the federal magistrate found that the applicants had failed to establish any jurisdictional error by the Tribunal. His Honour also found that no error was apparent to him from his own reading of the material.
In support of their application for an extension of time, the applicants have relied on an affidavit of the first applicant. In that affidavit, the first applicant says that he was unaware of the 21-day time limit fixed by O 52 r 15(1)(a) of the Federal Court Rules until 30 June 2010. He lives at a farm near Griffith, in Southern New South Wales, where there are limited facilities of communication. He sent his notice of appeal to the registry of the Court late in the afternoon of 30 June 2010 and it was stamped as received on 1 July 2010. Although it is not made clear in the affidavit, it is apparent that it was necessary for the first applicant to wait some time after 7 June 2010 to receive the edited transcript of the federal magistrate’s reasons for judgment. I have no difficulty accepting the first applicant’s reasons for the delay in filing his notice of appeal. The delay has been quite short, amounting to some three days. It is clear that the Minister has not suffered any prejudice from the delay.
Before proceeding to grant an extension of time for the filing of the notice of appeal, it is necessary to be satisfied that there is some utility in making such an order. If the proposed appeal would be futile, then it would be wrong to waste the time and resources of the Court, and of the Minister in resisting the appeal, by making such an order.
The grounds of appeal expressed in the draft notice of appeal accompanying the application read as follows:
2.His Honour, Federal Magistrate, failed to hold that Refugee Review Tribunal made a jurisdictional error when it wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of Indian Lok Dal and account of his Sikh religion.
3.The appellant was denied procedural fairness in connection with the making of the decision.
4.Making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported.
There are no particulars provided of these grounds. It is apparent immediately that the grounds in the notice of appeal do not reflect at all those which were the subject of the application to the Federal Magistrates Court. It is also apparent that the grounds in the notice of appeal do not attempt in any serious way to deal with the issue of error on the part of the federal magistrate. For the applicants to succeed in their proposed appeal they would have to show error on the part of the federal magistrate. They could only demonstrate such error by showing that the federal magistrate was obliged to find that there was jurisdictional error on the part of the Tribunal in dealing with the applicants’ claims for protection visas. To the extent to which the grounds in the proposed notice of appeal might raise issues that were not raised in the application before the federal magistrate, the applicants would need leave to raise them on appeal. Leave would only be granted if the new issues gave the applicants some arguable chance of a successful appeal.
I have asked the first applicant today, through the interpreter assisting him, to indicate to me some point on which it could be argued that the federal magistrate was in error. I have endeavoured to explain to him that he could not succeed in the Federal Magistrates Court by arguing that the Tribunal was wrong in the findings of fact it made. I have also endeavoured to explain to him that this Court cannot change those findings of fact. The submissions that the first applicant has made have been focussed entirely on the validity of his claims that he has a well-founded fear of persecution if he should return to India. This means that I must resort to seeing whether, within the grounds of appeal in the proposed notice of appeal, there is anything revealed that might amount to an issue on which the applicants could succeed on appeal.
It is clear that the ground numbered 2 could not provide a basis for success. The Tribunal did not make findings of fact in favour of the applicants. It did not make findings that they had suffered harm in consequence of the first applicant’s membership of the political party or on account of his religion. It could not therefore be said that the Tribunal wrongly applied the law to the facts found. The basis of the Tribunal’s decision was a rejection of the claims made by the first applicant.
The ground numbered 3 refers in general to a denial of procedural fairness. The federal magistrate was certainly correct to hold that there was no denial of procedural fairness arising from a failure to provide additional time to respond to a letter sent to the applicants pursuant to s 424A of the Migration Act, advising them of information that the Tribunal proposed to rely on, and offering them the opportunity to comment on or respond to that material, without the applicants having asked for further time. Not only was there no evidence before the Federal Magistrates Court that the applicants had asked for further time, the first applicant informed me in his submissions today that he was not even aware that he could have asked for further time. On my own reading of the reasons for decision of the Tribunal, and of the reasons for judgment of the Federal Magistrates Court, I can see no possibility of a successful argument of denial of procedural fairness on the part of the Tribunal.
Making sense of ground 4 in the draft notice of appeal, in the absence of particulars, is impossible. I can see nothing that would indicate that the Tribunal engaged in an improper exercise of the power conferred on it by the Migration Act to review the decision of the Minister’s delegate. The Tribunal provided the applicants with a hearing. It considered carefully all of the claims made by the first applicant. It made findings about facts in relation to those claims. In doing so, it made findings about the credit of the first applicant that appear to be based on sound considerations. There is nothing that indicates any impropriety on the part of the Tribunal.
For these reasons, I am of the view that the proposed appeal by the applicants has no prospect at all of success. In those circumstances it would be wrong to grant the applicants an extension of time for the purpose of pursuing such an appeal. I therefore propose to dismiss the application filed on 1 July 2010 for an extension of the time to file and serve a notice of appeal.
Counsel for the Minister sought an order that the first and second applicants (but not the third applicant) pay the Minister’s costs of the application. Although given an opportunity to make submissions in relation to costs, the first applicant did not make any submission. I was troubled about making an order for costs against the second applicant, when she was not present to make submissions. Counsel for the Minister pointed out that the order had been sought expressly in the Minister’s written submissions, forwarded to the applicants in advance of the hearing. On this basis, it is appropriate to apply the usual principle, that costs follow the event, and to order that the first and second applicants pay the Minister’s costs.
The orders of the Court in this case are:
1. The application be dismissed.
2.The first and second applicants pay the first respondent’s costs of the application.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 8 September 2010
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