SZTZB v Minister for Immigration and Border Protection

[2015] FCA 501

FEDERAL COURT OF AUSTRALIA

SZTZB v Minister for Immigration and Border Protection [2015] FCA 501

Citation:	SZTZB v Minister for Immigration and Border Protection [2015] FCA 501
Appeal from:	Application for extension of time: SZTZB & Anor v Minister for Immigration & Anor [2014] FCCA 3096
Parties:	SZTZB and SZTZC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1371 of 2014
Judge(s):	JAGOT J
Date of judgment:	18 May 2015
Legislation:	Migration Act 1958 (Cth) s 424A(1) Federal Court Rules 2011 (Cth) r 36.05
Date of hearing:	18 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Applicants:	The Applicants appeared in person
Solicitor for the First Respondent:	Ms A Carr of DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1371 of 2014

BETWEEN:

SZTZB
First Applicant

SZTZC
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	18 MAY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicants pay the first respondent’s costs, as agreed or taxed.

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 1371 of 2014

BETWEEN:

SZTZB
First Applicant

SZTZC
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	18 MAY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time for the filing of an appeal made pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). The proposed appeal is against a decision of the Federal Circuit Court of Australia (the FCCA), which was made on 1 December 2014.  The FCCA ordered that the applicants’ application be dismissed and that the applicants pay the Minister’s costs set in a fixed amount.

2. The first respondent to the application for the extension of time, the Minister, has made clear that the Minister accepts that the applicants have a reasonable explanation for the one day delay in the filing of the proposed appeal.  The Minister accepts that there is no prejudice to the Minister should an extension of time be granted, but says that the extension of time should not be granted because the proposed appeal lacks merit and enjoys no prospects of success. 

3. As the Minister submitted, it is well established that an extension of time, even for a short period, may be refused if the appeal itself has no prospects of success.  In the present case, having reviewed the reasons for judgment of the FCCA, the decision record of the Refugee Review Tribunal (the Tribunal) and the proposed notice of appeal, I am satisfied that, as the Minister has submitted, the appeal has no prospects of success with the consequence that the extension of time which is sought should not be granted. 

4. The applicants are both Nepalese citizens who arrived in Australia in September 2008. The first named applicant held a student visa and the second named applicant was a dependent of the first named applicant.  They applied separately for protection visas in February 2012, and both made claims of political activities in Nepal which led them to fear for their safety if they returned. Both applications for protection visas were refused by a delegate of the Minister in August 2012. The applicants applied to the Tribunal for review of these decisions. However, the Tribunal affirmed the decision of the delegate. The applicants then sought judicial review of the Tribunal’s decision in the FCCA, alleging the following three grounds of error: 

   (1)The Tribunal ignored, or failed to consider and assess, the applicants’ claims and evidence fairly and correctly.

   (2)The Tribunal denied the applicants natural justice.

   (3)The Tribunal made an error of law.

5. As to ground 1, the FCCA concluded that it could not see that any claim to protection can be said to have arisen that was not considered by the Tribunal.

6. As to ground 2, the assertion of a denial of procedural fairness, the FCCA concluded that the ground was so general as to be lacking any substance. In any event, the applicants had been given a meaningful opportunity to put their case to the Tribunal and had been given notice by the Tribunal of information that the Tribunal considered would be the reason or part of the reason for affirming the decision of the Minister’s delegate with the consequence that no breach of s 424A(1) of the Migration Act 1958 (Cth) was apparent.

7. As to ground 3, the FCCA concluded that, on the material before the Court, it was unable to discern any error of law by the Tribunal. 

8. In this Court, the proposed grounds of appeal are as follows:

   (1)The Federal Circuit Court made a legal by failing to find that the Tribunal Member made a jurisdictional error in making the finding that my involvement with the Nepal Student Union and my past activities, my wife’s policitial activity would not create any risk of serious harm for me and my wife if we were to return to Nepal when there was no evidence before it to that effect.           

   (2)The Federal Circuit Court erred by failing to find that the Tribunal Member made a jurisdiction error in concluding that I would not involve in political activity in Nepal in future and I would not attract any harm to myself from the Maoists having regard to the material upon which it relied, that reliance being irrational.

   (3)The Federal Circuit Court erred by failing to find that the Tribunal Member’s decision in my case was taken in breach of the rules of natural justice.

   (4)The Federal Circuit Court erred by failing to find that the Tribunal Member made a jurisdictional error in concluding that I did not have a well-founded fear of persecution that conclusion being irrational and unreasonable.

9. When given the opportunity to make submissions on their behalf, each of the applicants, effectively, said the same thing.  They said, first, that whatever they had written and said and their supporting documents were all the truth.  Second, they considered that the Tribunal had not properly assessed their material, so that there must be a mistake in the Tribunal’s decision.  Third, they said they wanted this Court to consider all of the material properly and send the matter back to the Tribunal so that they could be given justice. 

10. None of the four proposed grounds of appeal are of substance.  As to proposed ground 1, as the Minister submitted, the ground is nothing more than an invitation to undertake a review of the merits of the Tribunal’s findings. The same conclusion must apply to grounds 2 and 4.  Proposed ground 3 refers to a breach of the rules of natural justice, but this is the same ground that was put to and rejected by the FCCA, and there is nothing in the material which suggests that the FCCA was in error in reaching its conclusion. 

11. For these reasons, I am satisfied that the appeal has no prospects of success, with the consequence that the application for an extension of time must be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       21 May 2015