SZQGY v Minister for Immigration and Citizenship
[2012] FCA 187
•6 March 2012
FEDERAL COURT OF AUSTRALIA
SZQGY v Minister for Immigration and Citizenship [2012] FCA 187
Citation: SZQGY v Minister for Immigration and Citizenship [2012] FCA 187 Appeal from: SZQGY v Minister for Immigration and Citizenship [2011] FMCA 881 Parties: SZQGY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 9 of 2012 Judges: BUCHANAN J Date of judgment: 6 March 2012 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to appeal from a decision of a Federal Magistrate – no real prospect that appeal would succeed – application refused Legislation: Migration Act 1958 (Cth) Cases cited: SZHIE v Minister for Immigration and Citizenship [2010] FCA 209 Date of hearing: 2 March 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person with the assistance of an Interpreter. Solicitor for the First Respondent: Mr A. Markus of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 9 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentCHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
6 MARCH 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time in which to appeal, filed on 5 January 2012, is dismissed with costs.
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 9 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQGY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentCHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
BUCHANAN J
DATE:
6 MARCH 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time in which to appeal against a judgment of the Federal Magistrates Court of Australia (“the FMCA”). The application must be refused, as there is no realistic prospect that an appeal would succeed even if an extension of time were granted.
The applicant is a citizen of Sri Lanka. He arrived on Christmas Island on 1 March 2010. He is, within the meaning given by s 5(1) of the Migration Act 1958 (Cth) (“the Act”), an “offshore entry person”. On 1 May 2010 the applicant lodged a request for a Refugee Status Assessment. On 21 June 2010 an Assessor made an assessment that the applicant was not a refugee. The applicant lodged a request for an Independent Merits Review on 20 July 2010. On 18 April 2011 the Reviewer recommended that the applicant should not be recognised as a refugee. The applicant then commenced proceedings in the FMCA by application filed on 31 May 2011. In those proceedings the applicant was legally represented. One ground was relied on, namely an alleged failure by the Reviewer to consider information relevant to an assessment of the danger to the applicant in Sri Lanka of being subjected to serious harm due to his race (Tamil) and his geographic origins. This alleged failure on the part of the Reviewer was said to constitute a denial of procedural fairness, representing jurisdictional error.
In his decision the Reviewer assessed the applicant’s claim that he feared he would be harmed if he returned to Sri Lanka as follows:
25.The claimant fears that he will be harmed and possibly killed in Sri Lanka by the Sri Lankan authorities as he is a Tamil male from the North, and has departed illegally. I accept that he is Tamil, and his brother was killed about 14 years ago, and had been an LTTE member. I do not accept that this has caused any issue or concern for him. I note that he obtained a passport in 2007 and travelled in and out of Sri Lanka indicating he was of no adverse interest at that time to the authorities. From his accepted history it is apparent that following from the defeat of the LTTE in April 2009 the claimant lived in Sri Lanka without being of adverse interest to the authorities, and without being detained by them, and placed in a detention centre. He continued to live and work at home. This clearly indicates that he was of no adverse interest to the authorities or anyone else. I do not accept that his brother’s involvement in the LTTE from such a long time ago would cause the claimant any concern now, nor do I accept it would cause the authorities to investigate or harm him on return.
26.I do not accept that the claimant’s overall history gives him a profile such that he would be of adverse interest to the authorities or to anyone else. It is now nearly 2 years since the end of hostilities. I do not accept that if he returns to Sri Lanka, following from his claim for refugee status in Australia, that this would either be known to, or of any interest to the authorities. This is especially so given his lack of any past concern to them. In such circumstances I do not accept that he would be of any concern to anyone. I find that the claimant’s fear of harm is not well-founded in that there is a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future.
Those findings were challenged before the FMCA. The FMCA recorded that the challenge involved the proposition that the Reviewer had failed “to engage in active intellectual process directed at the materials before him”. The FMCA referred to the difficulty of elevating the challenge to one concerning a jurisdictional issue:
8.Of course Mr Karp steers away from an argument that the IMR misunderstood the information or that the better view of the information was that the applicant, as a Tamil male from the north, would have a well-founded fear, because to make that argument would be to ask the court for impermissible merits review. He is obliged to say that the conclusions of the IMR upon the information indicate that the IMR did not engage with it.
The FMCA rejected the argument, saying:
10.… A counsel of perfection would have the IMR expanding paragraph 25 by, possibly, making it clear that the views expressed in that paragraph were influenced by the country information cited and summarised. But the claim is clearly posited, that the applicant would be harmed because he is a Tamil male from the north and the grounds of rejection clearly reflect the IMR’s finding that the applicant would not be perceived as a person with LTTE connections. That is the burden of the independent country information relied upon by the applicant.
In my view, that assessment by the FMCA was correct. No jurisdictional error is raised by the challenge which was made to the FMCA.
The application to this Court initially indicated that the grounds of appeal (if an extension of time was granted) would be:
1.That there is a jurisdictional error in the Federal Magistrate Courts decision.
2.The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.
3.Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.
Those grounds were formulaic in their character. They did not identify any error in the judgment of the FMCA, nor any underlying jurisdictional error in the decision of the Reviewer.
At the hearing of the application the applicant, who was not legally represented, provided a copy of proposed new grounds of appeal which he told me had been prepared for him by the “Tamil Congress”. Those proposed grounds reflect the contentions which were considered by the FMCA, without relevant addition.
The applicant asked that his application for an extension of time not be dealt with. He said that he had applied unsuccessfully for legal aid and asked that he be permitted further time to “engage a lawyer”. There is no reason to think that this would assist the applicant’s position. He was represented by very experienced counsel in the proceedings in the FMCA. The matters he wishes to advance on the appeal have been the subject of judicial attention. There is no apparent basis to suppose they were incorrectly decided. There seems to be no assertion of jurisdictional error available to him, whether a denial of procedural fairness or any other.
At the hearing, Mr Markus, who appeared for the Minister, very fairly did no more than rely formally on any question of delay. He drew my attention to the observations of Foster J in SZHIE v Minister for Immigration and Citizenship [2010] FCA 209 where (at [20]) his Honour referred to the practical difficulties which are faced by visa applicants who require the assistance of an interpreter, who have limited (if any) knowledge of our legal system or its procedures or content, and who are, at the same time, in immigration detention. In the present case I would not have refused an extension of time in which to appeal simply on the ground of unexplained delay.
However, there is no reasonable prospect that an appeal could possibly succeed. An extension of time would therefore be futile.
The application is dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 6 March 2012
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