SZOZE v Minister for Immigration and Citizenship
[2012] FCA 470
•4 May 2012
FEDERAL COURT OF AUSTRALIA
SZOZE v Minister for Immigration and Citizenship [2012] FCA 470
Citation: SZOZE v Minister for Immigration and Citizenship [2012] FCA 470 Appeal from: SZOZE v Minister for Immigration & Anor [2011] FMCA 300 Parties: SZOZE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 302 of 2012 Judge: SIOPIS J Date of judgment: 4 May 2012 Date of hearing: 4 May 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: Mr R Baird
Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 302 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOZE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
4 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs to be fixed in the sum of $2,152.00.
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 302 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOZE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
4 MAY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application made for an extension of time within which to bring an appeal against the decision of a Federal Magistrate, which was delivered on 13 May 2011.
The decision of the Federal Magistrate rejected the applicant’s application for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal), which affirmed a delegate of the first respondent’s decision to refuse to grant the applicant a protection visa. The applicant claimed that he feared persecution if he was returned to India, on the grounds of imputed political opinion. I might add that the application for a protection visa included both the applicant and his wife. The applicant’s wife’s claim was founded on the basis of being a family member of the applicant.
It is to be observed that the Tribunal’s decision includes the following paragraphs:
Your movement records indicate that you arrived in Australia on 12 September 2004 and departed on 10 December 2004. You again arrived on 4 February 2005.
This is relevant because the Tribunal may find that you did not fear returning to India in December 2004. It is also relevant because you did not apply for a protection visa until 8 July 2010. The Tribunal may find that such a lengthy delay in applying for a protection visa is not consistent with a well founded fear of persecution.
The Tribunal went on to reject the applicant’s claim for a protection visa, on the basis of adverse credibility findings made against the applicant.
When the matter went to the Federal Magistrate for judicial review, the applicant had legal representation. The Federal Magistrate identified, at [22] of the reasons for decision, the only ground in respect of which jurisdictional error by the Tribunal, was alleged. The ground is in the following terms:
The Tribunal erred in its jurisdiction and in law when it (a) failed to exercise procedural fairness by failing to inquire of the first named applicant if he had informed the second named applicant - in discharging of his undertaking - of the rescheduling of the hearing and (b) by not having procedures in place such as individual application forms.
The Federal Magistrate dismissed the application for judicial review. The Federal Magistrate gave a number of cogent reasons.
First, the Federal Magistrate said that the essence of the applicant’s complaint was premised on the assumption that there was a duty on the Tribunal to make inquiries as to whether the applicant had communicated with his wife about her attendance at the hearing. The Federal Magistrate found that the complaint was misconceived as there was no such duty on the Tribunal.
Secondly, the Federal Magistrate, also, identified that the applicant’s complaint that his wife was not available to give evidence in support of his claim at the hearing, was a matter which did not affect her status as an applicant, but rather affected her position as a witness in favour of his claims, and that it was a matter for the applicant to present his case, and organise his witnesses to support his case.
Thirdly, the Federal Magistrate observed that the application for judicial review had been brought only by the applicant, and there was no complaint before the Federal Magistrate by the applicant’s wife in relation to the Tribunal’s conduct in respect of the hearing. Further, said the Federal Magistrate, there was no indication before the Tribunal that the applicant’s wife wished to raise anything more in support of her application, other than that she was the wife of the applicant. This, however, was an accepted fact, and not subject to dispute.
In the circumstances, the Federal Magistrate found that there was no jurisdictional error on the part of the Tribunal.
In support of his application for an extension of time, the applicant has filed an affidavit which says that there were two reasons for the delay.
The first reason given by the applicant, was that he had suffered stress following the Federal Magistrate’s decision. However, there is no medical evidence to support any suggestion that the stress was of such a nature so as to disable the applicant from being able to act within the usual time limits.
The second reason given by the applicant, was that he had suffered, and is continuing to suffer financial hardship, and could not afford a lawyer. There was no affidavit evidence which deposed to the applicant’s financial position, nor which described how the applicant’s financial difficulties had any impact upon the applicant’s ability to file an appeal within the requisite period. As it has transpired, the absence of legal assistance does not seem to have inhibited the applicant in bringing this application in person, albeit eight months late, and there is no apparent reason relating to his financial position, why the same could not have been done within the requisite appeal period.
A delay of eight months is an extraordinarily long period of time, and would require very cogent affidavit evidence explaining the delay, in order to satisfy the Court that the delay should be excused. The applicant has failed to provide such evidence.
As to the proposed grounds of appeal, the applicant has filed a document which purports to set out the proposed grounds of appeal. However, the proposed grounds of appeal consist of a set of new grounds of appeal, which refer to grounds of review which were not before the Federal Magistrate.
I might say that the grounds of appeal appear to be a random collection of headings and statements which describe recognised heads of jurisdictional error. However, insofar as the applicant’s complaints can be discerned from the proposed notice of appeal – and that is not an easy task – it appears that his complaints are that the Tribunal erred in making the credibility findings which it did, and erred in rejecting the applicant’s claim to fear persecution for a Convention reason. In other words, the complaints appear to address the merits of the Tribunal’s decision, and do not particularise any potential jurisdictional error by the Tribunal.
Because the proposed grounds of appeal raise matters that were not before the Federal Magistrate, it would be necessary for the applicant to obtain leave to rely on the grounds of appeal. For the reasons mentioned, there is no prospect of such an application succeeding.
In those circumstances, I am not prepared to extend the time within which the applicant may appeal.
I dismiss the applicant’s application.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 8 May 2012
0
0
0