SZOFW v Minister for Immigration and Citizenship

[2010] FCA 1236

FEDERAL COURT OF AUSTRALIA

SZOFW v Minister for Immigration and Citizenship [2010] FCA 1236

Citation:		SZOFW v Minister for Immigration and Citizenship [2010] FCA 1236
Appeal from:		Application for extension of time: SZOFW v Minister for Immigration and Citizenship [2010] FMCA 416
Parties:		SZOFW and SZOFX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 870 of 2010
Judge:		SIOPIS J
Date of judgment:		12 November 2010
Date of hearing:	9 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Applicants:	The First Applicant appeared in person.
Counsel for the First Respondent:	Ms B Rayment
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 870 of 2010

BETWEEN:

SZOFW
First Applicant

SZOFX
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	12 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time within which to file and serve a notice of appeal is dismissed.

2.The applicants are to pay the first respondent’s costs.

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 870 of 2010

BETWEEN:

SZOFW
First Applicant

SZOFX
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	12 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a judgment of a Federal Magistrate dismissing the applicants’ application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed the decision of the delegate to refuse the applicants’ application for a protection visa.

   BACKGROUND

2. The applicants are citizens of India who arrived in Australia on 1 July 2009.  On 13 August 2009, the applicants lodged applications for protection visas with the Department of Immigration and Citizenship.  The applicants are married.  The first applicant (the applicant) claimed that he feared persecution if he were to return to India because he was from a Sikh family.  The applicant said that he had been persecuted and harassed for his religious and political beliefs and forced to leave India to save his and his wife’s lives.  The second applicant relied upon the claims of her husband, on the basis that she is a member of their family unit.

3. The applicant claimed that he had not been able to continue his education after year eight due to the harassment he faced in his area.  His family moved to Sanjay Nagar in Jammu to escape persecution in Jungwari, but they were then persecuted by Hindus and Muslims, as well as Muslim militants, who came to India from Pakistan.  He claimed that after he left school he engaged in farming with his father on the family’s land.

4. The applicant claimed that his father had been the local leader of the National Conference Party (NCP) and that local Hindu leaders, together with Pakistani militants and Naxalites, had harmed his father, demanding money from him and threatening to kill family members if a ransom was not paid.

5. The applicant claimed that his parents and brother had also suffered persecution in India and for this reason, they moved to the United Kingdom in 2006, leaving him to look after their properties.  He claimed that after his family left India, he decided to join the NCP, first in 2006, as a general member in his village unit, and then, one year later, as a member of the “executive committee of Jungwari unit”.  He claimed he was then targeted by Bharatiya Janata Party (BJP) activists and Muslim militants from Pakistan.

6. The applicant claimed that in 2008, he had tried to organise a community forum to protect the community from terrorists.  The applicant also claimed that he had been warned by the terrorists and the BJP activists to stop his activities and had to pay a large amount of money to save his life.  The applicant claimed that he reported this to the authorities, but no action was taken.

7. The applicant claimed that in April and May 2009, he campaigned for the Congress Party candidate in his local area, because at that time, the NCP was in coalition with that party in Jammu and Kashmir.  He claimed that he sought votes by going door‑to‑door and encouraging the Sikh community to vote for the Congress Party.  As a result, he became targeted by BJP activists who warned him that he and his wife would be abducted if he did not cease his activities.  He also claimed attempts were made on his life and that the BJP activists were trying to steal his property.

8. The applicant stated that in May 2009, he sold all of his properties in secret and at a low price to enable him to pay the agent who organised Australian visas for him and his wife.  He claimed that he and his wife feared for their lives if they were to return to India because they would be targeted by the militants in their area for their political and religious beliefs.

9. A delegate of the first respondent refused the applicants’ applications for protection visas on 6 November 2009, on the grounds that the applicant did not substantiate his claim to have experienced persecution in India on account of his religious and political beliefs.

   THE TRIBUNAL

10. On 27 November 2009, the applicants applied to the Tribunal for a review of the delegate’s decision.

11. The Tribunal found that the applicant was not a witness of truth, and did not accept that he was involved in the NCP as claimed.  The Tribunal found that the applicant’s reasons for joining the NCP were implausible, and that he had a lack of knowledge of the NCP’s policies for someone who claimed to have been a member of the executive committee.  Since the Tribunal did not accept that the applicant was involved in the NCP, it did not accept that he was persecuted by members of rival parties or the BJP activists.

12. The Tribunal accepted the applicant was a Sikh by religion, but did not accept that he faced discrimination amounting to persecution in Jammu and Kashmir because of this.  The Tribunal further stated that even if it were to accept that there was a real chance of this occurring, the applicant could relocate to Punjab or Delhi, where there was a significant Sikh population.

13. On 4 March 2010, the Tribunal affirmed the decision of the delegate.

    THE FEDERAL MAGISTRATES COURT

14. On 16 March 2010, the applicant brought an application for judicial review of the Tribunal’s decision.  On 3 June 2010, the Federal Magistrate dismissed the application for judicial review.

    THE APPLICATION FOR EXTENSION OF TIME TO APPEAL

15. On 14 July 2010, the applicants filed in this Court, an application for extension of time to file and serve a notice of appeal from the decision of the Federal Magistrate.

16. The draft notice of appeal attached to the second applicant’s affidavit, comprises the following grounds:

    1.The Federal Magistrate Honourable Cameron failed to accept that the Tribunal erred in law not considering the persecution we suffered in India for the political belief of first applicant and our religious belief and we were also persecuted by Hindus and Muslims in Jammu and Kashmir.

    2.The Federal Magistrate erred in law not considering the lack of procedural fairness in the proceeding of the Refugee Review Tribunal as the Tribunal did not give us any opportunity to respond to independent evidences in the possession of the Tribunal which suggests that we shall not be the victim of harassment if returned to India.

    3.The Federal Magistrate erred in law not to find that the Tribunal failed to accept first the applicant as witness of truth for our claims for refugee status that we were discriminated and harassed for political and religious belief prior to our departure from India.

    4.The Federal Magistrate erred not considering that the Tribunal erred in law amounting to jurisdictional error in finding that we do not have genuine fear of persecutions for a convention reason and our persecutions do not come within the ambit of refugee convention and we do not meet the criteria set out in s 36(2) of the Act of Protection visa.

    5.The Federal Magistrate erred in law not finding that the Tribunal failed to consider that my (first applicant) persecution is well founded and we shall be harmed on our returned back to India.

    6.The Federal Magistrate erred in law not finding that the Tribunal has ignored that my family members were also persecuted and forced to leave India for being members of Sikh religious belief and did not consider the significant harassments we suffered prior to leaving India and we shall also be experiencing on return back to India.

17. Because the decision of the Federal Magistrate was delivered on 3 June 2010, the applicants were required to file any notice of appeal on or before 24 June 2010.  The applicants did not file an application for an extension of time to file and serve their notice of appeal until 14 July 2010.  Accordingly, it is necessary for the Court to extend time for a period of 20 days for the filing and serving of the notice of appeal.

18. Order 52 r 15(2) of the Federal Court Rules provides that the Court may grant an extension of time if it is satisfied that there are special reasons for doing so.  In considering whether there are special reasons which warrant the Court exercising its discretion to extend the time, the Court takes into account a number of factors including:

    (a)the period of the delay, and the explanation for the delay;

    (b)any prejudice to the respondent which may be caused by the extension of time;

    (c)the merits of the proposed appeal.

19. As mentioned, the period of the delay in this case is 20 days.  At para 11 and para 12 of the affidavit, the second applicant said that she is an unrepresented litigant and that she and her husband were unaware of the time limits to appeal to the Federal Court and “the total situation was completely beyond our control”.  In the absence of any evidence as to the steps which were taken by the applicants to inquire as to the process of appeal, little weight can be given to the evidence that the applicants were ignorant of the time limits within which to appeal.  However, in light of the fact that the period of delay is not excessive and the first respondent has accepted that he would not suffer prejudice from the granting of an extension of time, the element of delay does not in itself constitute a sufficient reason for the exercise of the discretion of the Court against allowing an extension of time.

20. I now turn to consider whether the proposed grounds of appeal are of sufficient merit to warrant the extension of time.

21. The first proposed ground of appeal lacks merit because the Federal Magistrate correctly determined that the Tribunal had considered in detail the applicant’s claim that he had been, and would be, persecuted if he were to return to India, but had rejected the claim on credibility grounds.  At [14] of his reasons for decision, the Federal Magistrate stated:

    The first ground of the application alleges that the Tribunal reached a decision that was wrong in law because the Tribunal ignored the persecution the applicant had experienced, and would experience, if he returned to India.  This allegation cannot be made out on the facts.  The summary of the evidence before the Tribunal and the summary of the Tribunal’s reasons for decision which appear earlier in these reasons, show that not only did the Tribunal acknowledge and set out the factual allegations on which the applicant based his claim to have a well-founded fear of persecution for a Convention reason, but also that it took that evidence into account in arriving at its decision.  In this connection it should be observed the applicant has not pointed in these proceedings to any omissions from the Tribunal’s exposition of his allegations.  But in any event, it must be observed that the basis of the Tribunal’s decision was not a deficient recognition of the applicant’s claims but a disbelief that he had been telling it the truth.  By reference to inconsistencies, improbabilities and the shortcomings in the applicant’s own evidence, the Tribunal rejected the applicant’s essential claims on the basis that they were not credible.  It was open to the Tribunal to do this.

22. I take the second proposed ground of appeal to impugn the Federal Magistrate’s finding that there was no information before the Tribunal which enlivened its obligations pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). In my view, the proposed ground is without merit because the country information referred to in the proposed ground of appeal falls within the ambit of s 424A(3) of the Act. The Federal Magistrate did not err in making the finding that he did.

23. The third proposed ground of appeal impugns the Federal Magistrate’s decision that the Tribunal’s findings of credibility are findings of fact, which are matters par excellence for the Tribunal.  The Federal Magistrate did not err in so holding and the proposed ground of appeal is without merit.

24. The fourth and fifth proposed grounds of appeal appear to comprise complaints that the Federal Magistrate did not conduct his own merits review of the applicant’s claim.  The Federal Magistrate did not err in that respect, because the Federal Magistrates Court has no power to conduct a merits review.

25. The sixth proposed ground of appeal relates to a matter which was not raised in the grounds of review before the Federal Magistrate.  Accordingly, in the absence of leave, it cannot be raised as a ground of appeal.  There is no explanation for it not being raised as a ground of review before the Federal Magistrate.  Accordingly, I find that the proposed ground of appeal is devoid of merit.  This is because in the absence of an explanation for why the complaint was not raised as a ground of review before the Federal Magistrate, the prospects of the applicants being able to raise this ground on appeal are weak.

26. In any event, the Tribunal did consider this question and rejected it on the basis that the claim lacked support in the country information.  At [82] of the Tribunal’s reasons for decision, the Tribunal stated:

    In the statutory declaration accompanying his original application the applicant claimed that his family had been targeted by Naxalites.  As I put to the applicant, there is no evidence that the Naxalites operate in Jammu and Kashmir…The applicant said that he had been referring to people from the BJP but, as I put to him, he claimed in his statutory declaration that he had become the target of BJP activists as well.  I do not accept that the applicant’s family was targeted by Naxalites…

27. Accordingly, I am of the view that there is no merit in the proposed grounds of appeal.

28. It follows that the applicants’ application for an extension of time for leave to file and serve the proposed notice of appeal, is refused.

I certify that the preceding twenty‑eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        12 November 2010