SZRJY v Minister for Immigration and Citizenship

[2012] FCA 1320

FEDERAL COURT OF AUSTRALIA

SZRJY v Minister for Immigration and Citizenship

[2012] FCA 1320

Citation:

SZRJY v Minister for Immigration and Citizenship [2012] FCA 1320

Appeal from:

SZRJY v Minister for Immigration & Anor (No 2) [2012] FMCA 756

Parties:

SZRJY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:

NSD 1352 of 2012

Judge:

RARES J

Date of judgment:

14 November 2012

Legislation:

Federal Court Rules 2011 (Cth) rr 35.13(a), 36.03(a)
Federal Magistrates Court Rules 2001 (Cth) r 13.03C(1)(c)
Migration Act 1958 (Cth) ss 91R , 430, 477(1), 477(2), 477(3)(b)

Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225 applied
Jackamarra v Krakouer (1998) 195 CLR 516 applied

Re: Minister for Immigration & Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 applied
SZRJY v Minister for Immigration & Anor [2012] FMCA 756 referred to

Date of hearing:

14 November 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

18

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms L Weston

Solicitor for the First Respondent:

Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1352 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRJY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	14 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal filed on 10 September 2012 be refused.

2.The applicant pay the first respondent’s 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 1352 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRJY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	14 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an application for an extension of time in which to seek leave to appeal from a decision of the Federal Magistrates Court:  SZRJY v Minister for Immigration & Anor [2012] FMCA 756. The decision below was itself interlocutory. The procedural circumstances in which this matter is now before the Court are as follows.

   BACKGROUND

2. The applicant applied to the Refugee Review Tribunal for review of the Minister’s delegate’s decision refusing him a protection visa.  The Tribunal invited the applicant to a hearing and on 13 January 2012 made a decision to affirm the delegate’s decision not to grant him a protection visa.  It wrote to the applicant notifying him of that decision on 16 January 2012. 

3. The applicant is a citizen of Pakistan who arrived in Australia on 16 January 2011.  He lodged his application for a protection visa on 14 April 2011.  He claimed to have been an active member of a political party associated with the Shia Muslim religion and to have lived in an area of Pakistan dominated by Sunni Muslims.  His claims to a protection visa varied significantly from the time they were first made to the hearing before the Tribunal.  Those differences are summarised in her Honour’s judgment.

   THE TRIBUNAL’S DECISION

4. It suffices to say that the Tribunal concluded that it did not find the applicant to be a credible, truthful or reliable witness.  It found that the totality of his evidence showed a propensity to fabricate, shift and tailor evidence in a manner that achieved his own purposes and that he had manufactured his claims and concocted evidence to achieve an immigration outcome.  The Tribunal referred to the gradual evolution of his evidence over the course of his first application for a protection visa to the hearing before the Tribunal.  It found that this cast serious doubt on his credibility.

   THE APPLICATION TO THE FEDERAL MAGISTRATES COURT

5. Under s 477(1) of the Migration Act 1958 (Cth), an application to the Federal Magistrates Court for a remedy to be granted in respect of the Tribunal’s decision had to be made within 35 days of the date of the migration decision. That was the date of the written statement of the Tribunal’s decision made pursuant to s 430 (s 477(3)(b)). However, the Federal Magistrates Court had power by order to extend that 35 day period as it considered appropriate under s 477(2) if an application for such an order was made in writing to the Court specifying why the applicant considered that it was necessary in the interests of the administration of justice to make such an order, and the Court was satisfied that it is necessary in the interests of the administration of justice to do so.

6. The applicant applied to the Federal Magistrates Court on 19 April 2012. That was some 97 days after the original decision of the Tribunal. When he received his application, it had a return date of 13 June 2012. The applicant did not appear on that day and her Honour dismissed the application pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth): SZRJY v Minister for Immigration [2012] FMCA 541. The applicant claimed that some confusion had arisen which caused him to think that the hearing was on 16 June 2012. He applied to reinstate the proceedings on 19 June 2012.

7. The reinstatement application came before her Honour on 28 June 2012.  On that occasion the applicant sought an adjournment on the basis that he had not been in a fit mental state at the time of the Tribunal hearing.  He told her Honour that he wanted to put on more evidence as to what had occurred before the Tribunal.  Her Honour granted the applicant an adjournment to do so and relisted the further hearing on 13 August 2012.  On that occasion the applicant relied on an affidavit he had sworn on 25 July 2012.  That attached a medical certificate dated 17 July 2012 certifying that, on that day, he suffered from a “medical condition” rendering him unfit for normal work only on that day.  As her Honour found, that evidence gave no support to his application in any respect.

8. Her Honour heard evidence from the applicant and found that even if his evidence were accepted in its entirety, his explanation for his failure to appear on 13 June 2012 was not entirely satisfactory.  That was because it involved him failing to ascertain in an appropriate way exactly when his case would be before the Court.  Nonetheless, her Honour then proceeded to evaluate whether any matter raised in his original application as a ground for setting aside the Tribunal’s decision presented a basis on which the Court should permit the proceedings to be reinstated and an extension of time granted under s 477(2).

9. Her Honour concluded that there was a complete absence of merit in the grounds of review, and accordingly, it was not in the interests of justice to grant an extension of the 35-day period.  In those circumstances her Honour refused to reinstate the matter and ordered the applicant to pay the Minister’s costs.

   THE PRESENT APPLICATION

10. The applicant did not seek leave to appeal within 14 days of her Honour’s decision as required by r 35.13(a) of the Federal Court Rules 2011 (Cth). He lodged the present application for an extension of time and leave to appeal on 10 September 2012. That was some 28 days after her Honour’s decision and seven days more than the time in which, had he had one, he could have begun any appeal of right (r 36.03(a)). The applicant asserted orally today that he thought he had 28 days in which to file any notice of appeal. His affidavit in support of the extension of time does not give any basis on which he came to be outside the requirements of the Rules for filing the application.

11. On such an application the court must consider first whether there is some explanation for the failure in which to file the application for leave to appeal within the time prescribed by r 35.13(a). The applicant made no real effort to explain why he made the error he asserted and why he did not seek to protect his own interests by ensuring that any appeal from her Honour’s decision, or attempt to appeal from it, would be made within the time limits prescribed. Be that as it may, it is critical in such an application for the Court to consider whether, in outline, the applicant’s case appears to have any merit. If it appears strong on the merits and ought to be heard in fairness to the parties, the Court can grant the extension of time and leave to appeal. But where the case appears to be flimsy and weak on the merits the court may not extend the time, depending on the circumstances: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] perr Brennan CJ and McHugh J 540-541 [66(4)] per Kirby J. An application for leave to appeal must demonstrate that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

    CONSIDERATION

12. In my opinion, this application has no merit whatsoever.  Today the applicant sought a further adjournment of one week in order that he could obtain a medical report or psychological report of some kind, which he did not specify, indicating that he had some basis on which to challenge, as I understood him, what had happened in the Tribunal.  The Tribunal recorded in its decision record that towards the end of his evidence the applicant told it he was “... not in a mental position to think and he would be prepared to answer any other questions.”  The Tribunal recorded that he presented no medical evidence to suggest that he was suffering from any form of illness, including mental illness, that hindered his capacity to respond to the Tribunal’s questions or offer oral evidence.

13. The only evidence the applicant tendered before her Honour was the medical certificate to which I have referred.  That simply said he was unfit for work due to a medical condition for one day in July 2012, many months after the Tribunal’s hearing.  He sought to tender some blood tests before her Honour, which her Honour correctly rejected as irrelevant.  He repeated today that he had some blood tests available but needed a week in order to be able to get the psychological report.  In my opinion, that assertion was without any substance.

14. The applicant has been on notice of an unfavourable decision by the Tribunal since some time in late January 2012.  He has had ample time to obtain any medical evidence he wished, to indicate that in some way his ability to participate in the hearing before the Tribunal was impaired.  The Tribunal’s findings concerning his credibility were quintessentially and par excellence those which an administrative decision-maker in the position of the Tribunal was authorised to make:  Re: Minister for Immigration & Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67] per McHugh J.

15. Her Honour comprehensively reviewed the material before the Tribunal.  Having read her Honour’s reasons and the Tribunal’s decision record there is no reason to consider that her Honour made any error in arriving at her conclusion that there was a complete absence of merit in the grounds of review which the applicant sought to raise in his originating application.

16. A draft notice of appeal to this Court, which the applicant would seek to agitate were he granted an extension of time and leave to appeal, asserts that her Honour failed to consider that the Tribunal acted “... in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act.” It asserted that the Tribunal’s failure to observe that obligation amounted to a breach of its statutory obligations and that her Honour dismissed the application without considering the legal and factual errors contained in the decision of the Tribunal.

17. Those grounds were unparticularised.  They are entirely without substance.  Her Honour gave detailed and careful consideration to whether there was any arguable error disclosed in the Tribunal’s reasons.  The trial judge was entirely justified in expressing the view she did about the applicant’s case.

18. In my view, the application for an extension of time should be refused with costs as it is hopeless.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated: 23 November 2012