SZUWK v Minister for Immigration and Border Protection
[2015] FCA 419
•5 May 2015
FEDERAL COURT OF AUSTRALIA
SZUWK v Minister for Immigration and Border Protection [2015] FCA 419
Citation: SZUWK v Minister for Immigration and Border Protection [2015] FCA 419 Appeal from: Application for leave to appeal and extension of time: SZUWK v Minister for Immigration and Border Protection & Anor [2015] FCCA 165 Parties: SZUWK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File numbers: NSD 130 of 2015 Judge: GRIFFITHS J Date of judgment: 5 May 2015 Catchwords: MIGRATION – application for an extension of time and leave to appeal – whether proposed ground of appeal has reasonable prospects of success Legislation: Migration Act 1958 (Cth) s 36(2)(a)
Federal Circuit Court Rules 2001 (Cth) r 44.12Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 5 May 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: L Dennis, Sparke Helmore Lawyers
Counsel for the Second Respondent: The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 130 of 2015
BETWEEN: SZUWK
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
5 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs of the application as agreed or assessed.
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 130 of 2015
BETWEEN: SZUWK
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE:
5 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks an extension of time and leave to appeal from a judgment dated 27 January 2015 of the Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision dated 3 July 2014 of the Refugee Review Tribunal (Tribunal). The Tribunal affirmed a decision of the Minister’s delegate rejecting the applicant’s application for a Protection (Class XA) Visa.
The Minister opposes the extension of time and the grant of leave to appeal on the bases that the application has no reasonable prospect of success and that the decision of the FCCA is not attended by doubt. Additionally, the Minister submits that the sole ground of appeal lacks sufficient particularity to be meaningful.
Background matters
The applicant is a citizen of Bangladesh. He was a working resident in Papua New Guinea from November 2009 until December 2012. He travelled to Australia in January 2013 and, following the breakdown of his marriage, lodged a protection visa application in March 2013.
The applicant claims to have been active with the Chattra Dal, or student wing, of the Bangladesh National Party (BNP), and that his father was a local leader of that party. He claims to have been threatened and attacked, his family assaulted and his house ransacked. The applicant claims to fear returning to Bangladesh on the basis of his political opinion.
The applicant made post-hearing submissions to the Tribunal, raising a new claim that he feared harm on the basis of his changing religion from Islam to Christianity.
The Tribunal rejected the applicant’s claims on the basis of adverse credibility findings. The Tribunal found that the applicant’s credibility was “so seriously undermined” that there was “no credible or trustworthy evidence before it” upon which it could make a favourable decision. The Tribunal did not accept his claimed affiliation with the BNP at any time. It concluded that “there is no real chance that the applicant would face persecution for reasons of imputed political opinion”.
Additionally, the Tribunal found that the documents submitted by the applicant at the hearing were not “genuine or reliable”. The claim as to his alleged conversion to Christianity was held to be not credible because, had he feared persecution for religious reasons, “he would [have] indicated this previously”, as opposed to waiting for nine days after the Tribunal hearing before raising this claim.
Proceedings before the FCCA
The applicant sought judicial review in the FCCA. He was unrepresented but had the aid of an interpreter. The sole ground of his application was that he “was not happy with the Department’s decision to refuse my first application”.
The Minister argued that the application for judicial review did not provide any particulars or any legal grounds for judicial review, nor did it establish any jurisdictional error in the Tribunal’s decision. The Minister sought dismissal of the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
After noting that it was dealing with the question whether the applicant had an arguable case under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth), the FCCA concluded that the applicant had failed to identify any error on the part of the Tribunal that was capable of establishing jurisdictional error and that no such error was apparent on the face of the decision record. Accordingly, the judicial review application was summarily dismissed.
The FCCA invited the applicant to speak in support of his application and the applicant again explained that he faced a “political problem” were he to return to Bangladesh and that he had converted from Islam to Christianity. The FCCA also found that, as was evident from the Tribunal’s decision record, the Tribunal had considered the applicant’s claims that he had converted to Christianity.
The FCCA noted that “credibility findings are a matter par excellence for the [Tribunal]” and that the Tribunal “is not required to accept uncritically any and all claims made by an applicant”. It found that the applicant’s application invited an impermissible merits review by the Court and did not identify any error capable of review. It noted that the applicant had not identified any error on the part of the Tribunal that was capable of establishing jurisdictional error. Accordingly, it was not satisfied that the applicant had raised an arguable case for the relief claimed.
Proceedings in this Court
The applicant moved on an application for extension of time and leave to appeal. He represented himself in the proceeding. He was assisted by an interpreter. The applicant also filed a short affidavit in support of his application in which he explained that he mistakenly believed that there were 21 days to appeal any decision of the Federal Circuit Court to this Court, not 14 days, and that if he had known this earlier he would have applied within the 14 day period. I accept that evidence. In my view it provides a plausible explanation for the lateness of his application. However, the critical issue is whether his proposed appeal has reasonable prospects (noting, as I do, that the refusal of his application means that the decision of the Federal Court will stand and he will suffer substantial injustice (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397)).
The proposed grounds of appeal are as follows (errors in original):
(1)That the Federal Circuit Court made an error in finding that there is not jurisdictional error.
(2) Cost. (sic)
The applicant filed brief written submissions in support of his application. The Minister also filed written submissions and opposed leave being given to extend time or to appeal. Attached to the applicant’s outline of written submissions were two documents, a character reference from the “Jordan Congregation” in Papua New Guinea and a letter apparently written by the applicant’s father. Neither of those documents were before the Tribunal and it is evident that they were rejected as evidence in the FCCA. No application was made to adduce those documents in the appeal and I have not had regard to either of them.
The applicant’s written submissions deal largely with issues of merits review, including an alleged failure by the Tribunal and the FCCA to accept his claims of fear of political persecution in Bangladesh. The applicant contends that the FCCA should have found a lack of procedural fairness in the Tribunal’s decision because it failed to consider that he was physically abused for his political belief and that he left Bangladesh because of the risk to his life. He argued that the FCCA made “errors of jurisdiction” in “not considering the Tribunal’s failure to give me a reasonable opportunity to respond to independent evidence in possession of the Tribunal which suggests that I shall not be a victim of harassment of my political belief (sic) if I returned (sic) to Bangladesh”. He complained that the FCCA “made error (sic) to find that the Tribunal failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh”. The applicant complained that the FCCA erred in not finding that the Tribunal fell into jurisdictional error in concluding that he did not meet the criteria for a protection visa in s 36(2) of the Migration Act1958 (Cth) and that it should have found that the Tribunal erred in not accepting his claim that he would face punishment which would “be completely politically motivated”. He complained that there was an error below in not finding that the Tribunal failed to consider that he was discriminated against for his “political belief” and in not finding that he would be a victim of significant harassment in Bangladesh based on his religious belief.
In his outline of written submissions, the applicant said that he married a citizen of Papua New Guinea on 14 October 2010 and that his partner was a Christian. He said that on 14 December 2010 he converted to Christianity. He claimed that other Bangladeshi living in Papua New Guinea informed his family and other local people about his conversion. He said that his family had come under pressure to have him revert to Islam and that his family members had been threatened by Islamic radical parties, who had also threatened to kill him if he was found in Bangladesh. He explained that he omitted to mention his conversion in his protection visa application because he had prepared the application without assistance and had a lack of education and knowledge. He said that he was confused and forgot to mention his fear of persecution based on his religious belief and that, at the time of lodging his visa application, he did not understand the difference between fear of persecution based on politics as opposed to religion.
In his oral submissions, the applicant said that his evidence was truthful and he reiterated that he had made a mistake because he did not know the law in not raising his conversion to Christianity until after the Tribunal’s hearing. He asked the Court to show mercy and to give him a chance because he said that he and his family would be persecuted and he would be harmed if he were returned to Bangladesh.
For the following reasons, the application for an extension of time and leave to appeal should be dismissed. First, the proposed ground of appeal is misconceived. As noted above, the FCCA did not make any final decision as to whether or not the Tribunal’s decision was affected by jurisdictional error (see [20] of the reasons for judgment). Rather, the FCCA found that the applicant had failed to raise an arguable case that the Tribunal had committed jurisdictional error. Not only does this ground of appeal misstate the FCCA’s finding, it lacks sufficient particularity to be meaningful. In my view, the proposed ground of appeal does not have reasonable prospects of success.
Secondly, even assuming in the applicant’s favour that it is this finding which he proposes to appeal, I do not consider that he has established any appellable error on the part of the FCCA. His grievances are essentially with the merits of the Tribunal’s decision, a matter which the FCCA was not entitled to review on a judicial review application. I accept the Minister’s submission that the proposed ground of appeal has no reasonable prospects of success. The appellant has not identified any arguable appellable error in the FCCA’s decision.
Conclusion
The application for an extension of time and leave to appeal are dismissed. The applicant is to pay the costs of the first respondent.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 5 May 2015
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