SZSPO v Minister for Immigration and Border Protection

[2013] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZSPO v Minister for Immigration and Border Protection [2013] FCA 1468

Citation:	SZSPO v Minister for Immigration and Border Protection [2013] FCA 1468
Appeal from:	Application for extension of time for leave to appeal:
SZSPO v Minister for Immigration & Anor [2013] FCCA 1012
Parties:	SZSPO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1838 of 2013
Judge:	DOWSETT J
Date of judgment:	19 November 2013
Legislation:	Migration Act 1958 (Cth) s 36(2)(aa)
Date of hearing:	19 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1838 of 2013

BETWEEN:

SZSPO
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	19 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed; and

2.the applicant pay the respondent’s costs of the proceedings.

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 1838 of 2013

BETWEEN:

SZSPO
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	19 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against a decision of the Federal Circuit Court dated 16 July 2013, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”).  The applicant is an Indian citizen who arrived in Australia on 22 March 2012 and, on 15 June 2012 applied for a protection visa.  On 28 September 2012 the first respondent’s delegate refused the application.  The applicant, a Muslim, claims to have had an affair with a divorced Hindu woman.  He claims that the woman’s family had discovered the affair and caused him to be threatened and beaten.  The applicant alleges that the woman had subsequently committed suicide.  He claims to have feared that the family would kill him if they found him, and that he was unable to obtain state protection because the woman’s family was involved with the BJP, a major political party.  The applicant claims that he could not relocate within India because of racial difficulties.  Further, he did not wish to be a burden on other people. 

2. The Tribunal accepted much of the appellant’s evidence concerning his personal circumstances.  It appears to have had some doubt about the claimed affair but chose to give him the “benefit of the doubt” on that matter.  However it rejected his claims as to events thereafter upon which he relied to demonstrate a well-founded fear of persecution for a Convention reason.  The Tribunal, at para 92 said:

   However, the Tribunal is not prepared to accept the claimed events leading to his fear of persecution following on from the affair because the Tribunal found the applicant’s evidence concerning the steps he took to avoid the claimed feared harm to be unpersuasive, internally contradictory as well as contradictory to his documentary evidence and that his responses to the Tribunal’s concerns were vague, non-responsive and unpersuasive.  In essence, the Tribunal considers that the applicant has fabricated the consequences of the affair and that he is not a credible witness in this regard.

3. In particular, it identified the following unsatisfactory aspects of his claim: 

   ·his failure to make a protection visa application in the United Kingdom;

   ·his failure to leave for the United Kingdom until three months after the visa was granted;

   ·his inconsistent evidence concerning his reasons he was applying for his visa to the United Kingdom;

   ·his delay in applying for a visa to come to Australia after he returned to India from the United Kingdom;

   ·his delay in leaving for Australia once he had his visa; and

   ·his inconsistent and changing evidence on a number of different matters concerning the events following the affair.

4. The Tribunal dealt with each of these matters in detail. At paras 93 to 95, the Tribunal then dealt with a number of other possible bases for the applicant’s claim upon which he had not relied. It discounted them. Those matters were possible implied political belief and the trouble between Hindus and Muslims. As I have said, these were matters which, as the Tribunal understood it, the applicant had not expressly raised. It is a little difficult to understand from the Tribunal’s reasons its understanding of the basis for the applicant’s claimed fears in these respects. It may be that the Tribunal dealt with the matter upon the basis that he feared persecution for reason of his religion arising out of the affair to which I have referred. The Tribunal also found that it was not satisfied as to the so-called complementary protection criteria contained in s 36(2)(aa) of the Migration Act 1958 (Cth).

5. On 22 February 2013, the applicant applied to the Federal Circuit Court for review of the Tribunal’s decision raising the following grounds:

   (1)The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

   (2)The Tribunal failed to consider an integer of the Applicant’s claims, in failing to consider whether or not a Muslim in India was at risk of harm from Hindus, and not able to access effective protection.

   (3)The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu community and BJP. 

6. As to the question of procedural fairness, the Circuit Judge pointed out that the applicant had not identified the adverse conclusions about which he complained.  Nothing in the evidence suggested any failure by the Tribunal to comply with its obligation to afford the applicant procedural fairness.  As to the alleged failure to consider the question of Muslim-Hindu conflict, it was clear that the Tribunal had considered such risk of persecution.  In effect, the applicant had expressly disavowed reliance on that ground.  As to ground 3, the Circuit Judge considered that it was an invitation to engage in impermissible merits review.  Further, the Tribunal had explicitly considered the applicant’s claims relating to the Hindu community and the BJP, noting that a general assertion that a decision was unjust did not establish jurisdictional error.  In those circumstances, the Federal Circuit Court dismissed the application. 

7. On 9 September 2013 the applicant filed an application for an extension of time to appeal against the decision of the Federal Circuit Court. 

8. The following grounds are identified in the draft notice of appeal: 

   (1)The [Federal Magistrate] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims (sic) and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act.  The Tribunal failed to observe the obligation amounted to a breach of statutory obligation (sic).

   (2)The learned judge has dismissed the case without considering the legal and factual error contained in the decision of the RRT.

9. Any notice of appeal ought to have been filed on or before 6 August 2013.  This application was filed on 9 September 2013, 34 days after the expiry of the prescribed appeal period.  The applicant’s explanation for the delay is simply that he was not aware that a final judgment had been delivered until he received, at a later date, the revised reasons.  It seems that the Circuit Judge delivered her reasons immediately after the hearing, and in the presence of the applicant.  He had not been represented at the hearing but had the assistance of an interpreter.  He says that at the hearing he was not aware of the decision because, “The interpreter did not explain to me about the decision”.

10. As I say, the applicant implies that he did not realise that a decision had been made until he received the revised reasons at a much later date.  This is not a particularly satisfactory explanation but, on the other hand, there is no reason to assume that a person in the applicant’s position would know about appeals or time limits.  As is frequently the case in matters of this kind, the real question for consideration is the likelihood of success on appeal.  Neither ground offers any real chance of success.  The first ground is almost totally lacking in particularity.  To suggest that the Tribunal ignored aspects of persecution and harm is to overlook its reasons.  The second ground is also unparticularized and effectively ignores the primary Judge’s reasons. 

11. In oral submissions the applicant again asserted that his life was threatened in India, and that he desired to stay in Australia for up to 18 months, at which time it might be safer for him to return.  He also suggested that in the proceedings in the Tribunal he had been mentally unwell.  However no such assertion was made at the time, and no point to that effect was raised before the Circuit Judge.  There is no evidence before me to support the claim and,  in any event it is too late for me to do anything about it.  In those circumstances, no error is shown in the decision of the Federal Circuit Court.  There are no prospects of success on appeal.  The application must be dismissed. 

12. Where an application of this kind fails, the unsuccessful party is usually ordered to pay the other side’s costs.  The respondent has asked for an order for costs.  I order that the applicant pay the respondent’s costs of the proceedings.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:
Dated:       21 March 2014