SZOTC v Minister for Immigration and Citizenship

[2011] FCA 596

FEDERAL COURT OF AUSTRALIA

SZOTC v Minister for Immigration and Citizenship [2011] FCA 596

Citation:		SZOTC v Minister for Immigration and Citizenship [2011] FCA 596
Parties:		SZOTC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 371 of 2011
Judge:		JACOBSON J
Date of judgment:		23 May 2011
Legislation:		Federal Court Rules 1979 (Cth), O 52 r 15
Cases cited:		Jess v Scott (1986) 12 FCR 187 referred to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 referred to Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 cited SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 referred to SZOTC v Minister for Immigration and Citizenship [2011] FMCA 53 referred to VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 cited
Date of hearing:	23 May 2011
Date of last submissions:	23 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	17
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms E Baggett of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 371 of 2011

BETWEEN:

SZOTC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	23 MAY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for extension of time in which to file and serve a Notice of Appeal be dismissed.

2.The applicant pay the costs of the appeal.

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 371 of 2011

BETWEEN:

SZOTC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	23 MAY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against the orders of Emmett FM dated 3 February 2011: SZOTC v Minister for Immigration and Citizenship [2011] FMCA 53. Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 6 October 2010. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The provisions of O 52 r 15(1)(a) of the Federal Court Rules 1979 (Cth) required the notice of appeal to be filed on or before 24 February 2011.  The application for an extension of time was filed on 30 March 2011. 

2. The court may extend time for “special reasons” pursuant to O 52 r 15(2).  The term “special reasons” has been authoritatively determined by a decision of a Full Court in Jess v Scott (1986) 12 FCR 187. It is sufficient for present purposes to say that the Minister fairly accepts that the delay in question in the present case is not excessive and has been adequately explained. However, the Minister submits that the application ought to be refused because the applicant’s proposed grounds of appeal are without merit, so that an extension of time would be futile. It is well established that in exercising the discretion conferred on the court under the relevant order, the prospects of success are a critical consideration.

3. The applicant is a citizen of Nepal.  He claims to have a well-founded fear of persecution on political grounds.  His claim is that he was a member of the Maoist Young Communist League (“YCL”) in Nepal and that he fears persecution because he renounced his membership of the YCL and fled Nepal for Australia.  The Tribunal accepted that the applicant was a member of the YCL, but it did not accept that he is a target of the YCL by reason, inter alia, of his departure from Nepal.  The Tribunal was not satisfied that the applicant was a credible witness in relation to the Convention related claims which he put forward in his application.  The Tribunal did not accept that the applicant sought to leave the YCL, nor did it accept that the YCL intended to seriously harm him should he return to Nepal. 

4. The applicant told the Tribunal that he made his decision to depart from Nepal in July 2009 but he did not do so until 20 December 2009.  The Tribunal accepted that the YCL is a violent organisation but it came to the view that if the YCL had made threats to inflict serious harm on the applicant it would not have delayed in carrying out such threats.  The effect of what the Tribunal said at [73]–[74] of its reasons is that it was of the view that if the applicant had been seriously threatened by the YCL in July 2009 he would have left his home and travelled elsewhere in Nepal until the opportunity to leave his country arose.

5. The Tribunal said at [75] that, overall, it was not satisfied that the applicant feared persecution for any Convention reason should he return to Nepal.  The Tribunal was not satisfied that he was targeted by the YCL or that his family members were the subject of threats as claimed.  The Tribunal was not satisfied there was a real chance the applicant would be persecuted in the reasonably foreseeable future if he returned to Nepal. 

6. The application for judicial review raised four grounds of review.  The first was that the tribunal had not used the means at its disposal to produce evidence in support of the applicant’s case and that the tribunal did not act in good faith.  The Federal Magistrate said at [40] of her reasons that:

   In circumstances where the tribunal accepted that the YCL was a violent organization, there was no further obligation on it to have further regard to country information about YCL activities.

7. The substance of what her Honour said about this ground appears in particular at [41]–[42].  Her Honour made reference to recent High Court and Federal Court authority in support of the proposition that the Tribunal was not obliged to investigate or conduct an inquiry to discover whether the applicant’s case might have been put or supported by other evidence: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] per Keane CJ; at [49] per Emmett J; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (“SZIAI”).  The learned Federal Magistrate went on to say at [44] that otherwise the applicant’s complaint in ground 1 was no more than a disagreement with the factual findings of the Tribunal.  Her Honour also rejected the claim of lack of good faith.

8. The second ground of review appeared to raise a claim of illogicality.  Her Honour dismissed this ground at [49], observing that the allegation was misconceived.  Her Honour dismissed the third ground of review which alleged a failure to provide effective state protection.  Her Honour observed at [52] that in light of the tribunal’s rejection of the applicant’s claim to fear harm from the YCL, there was no occasion for it to consider the availability of state protection.  In dismissing the fourth and fifth grounds, her Honour did so upon the basis that these grounds of review sought to take issue with the tribunal’s findings of fact.  Indeed, her Honour observed at [56] that the fourth ground of complaint was misconceived because it was predicated upon a wrong understanding of the Tribunal’s findings of fact.

9. Her Honour expressed her conclusions for rejecting the application for review in very full terms in [61]–[62]. Her Honour said:

   A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal accepted country information that disclosed that the YCL was a violent group that was responsible for inflicting serious harm on many individuals. The Tribunal made findings based on the evidence and material before it rejecting the Applicant’s claims to fear harm from the YCL because it had renounced or left the YCL or refused to do its bidding. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

   In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.  

10. The application for an extension of time attaches a draft notice of appeal which contains seven grounds alleging error on the part of the Federal Magistrate and the Tribunal.  Some of the grounds were not raised before the Federal Magistrate, although there is to some extent an overlap between the grounds now sought to be conducted and the grounds of review that were raised before the Federal Magistrate.  To the extent that the proposed grounds of appeal were not raised before the Federal Magistrate, the applicant requires leave to raise them for the first time on appeal.  Leave would only be granted if it is expedient to do so in the interests of justice: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46].

11. It seems to me that the short answer to the grounds of review which the applicant now wishes to raise are that they are covered by the Federal Magistrate’s observations at [61]–[62].  As I said earlier, her Honour there considered the application for review comprehensively, and she did so in a way which went beyond the terms of the particular grounds raised by the applicant in the application for judicial review.  It seems to me that the Federal Magistrate therefore engaged in those paragraphs with the entirety of the decision of the Tribunal, independently of what was specifically put before her on the application for judicial review.

12. Her Honour’s observations in those paragraphs therefore cover all of the fresh grounds which appear in the draft of the notice of appeal and indeed, with the various grounds which the Federal Magistrate rejected.  I can see no error in her Honour’s reasons and this is sufficient to dispose of the present application.  It seems to me that to grant the application for an extension of time would be a futility. 

13. I should add in particular that there is no room for the application of the ground of illogicality as discussed by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [121]–[131] per Crennan and Bell JJ. Nor was there any “duty to inquire” in the sense in which that has been referred to in various decisions of the High Court. In SZIAI at [25], the French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed that:

    [A] “duty to inquire”… is apt to direct consideration away from the question [of] whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. 

14. They continued by saying that:

    It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review.

15. It is sufficient to observe that in the present case there was nothing to suggest that there was any failure to make such an inquiry.

16. Finally, it seems to me that the present case is covered by what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]. Their Honours there observed that:

    What is required by procedural fairness is a fair hearing, not a fair outcome.  It is therefore not to the point to ask whether the tribunal’s factual conclusions were right.  The relevant question is about the tribunal processes, not its actual decision.

17. It seems to me that the reasoning set forth in [61]–[62] of the Federal Magistrate’s decision addressed that question in a way which cannot be subject to any relevant attack.  Accordingly, in my opinion the application for extension of time must be dismissed with costs.  Those will be the orders of the court.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        23 May 2011