SZUZD v Minister for Immigration and Border Protection
[2016] FCA 1371
•4 November 2016
FEDERAL COURT OF AUSTRALIA
SZUZD v Minister for Immigration and Border Protection [2016] FCA 1371
File number: NSD 1135 of 2016 Judge: WHITE J Date of judgment: 4 November 2016 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to appeal a judgment of the Federal Circuit Court – length of the extension sought.
Held: None of the proposed grounds of appeal reasonably arguable – application dismissed.
Legislation: Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Migration Act 1958 (Cth) ss 5J(1), 36(2)(aa), 91R, 476
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SZUZD v Minister for Immigration [2016] FCCA 1883
Date of hearing: 4 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr K Eskerie Solicitor for the Respondents: Sparke Helmore ORDERS
NSD 1135 of 2016 BETWEEN: SZUZD
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
4 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application for an extension of time within which to commence an appeal is dismissed.
2.The Applicant is to pay the costs of the First Respondent of an incidental to the application fixed in the sum of $2,500.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
The applicant is a national of Bangladesh. He arrived in Australia on 13 August 2007 on a Subclass 457 Visa (a short‑term business visa) which was valid until March 2011.
On 23 July 2013, more than two years after the expiry of the Subclass 457 Visa, the applicant applied for a protection visa. That application was refused by a delegate of the Minister on 22 January 2014 and that refusal was affirmed by the Refugee Review Tribunal (the RRT) on 6 August 2014. The applicant then sought judicial review of the RRT decision in the Federal Circuit Court (the FCC), pursuant to s 476 of the Migration Act 1958 (Cth). That application was dismissed on 16 June 2016: SZUZD v Minister for Immigration [2016] FCCA 1883.
The applicant now wishes to appeal to this Court against the FCC judgment, but he did not file a notice of appeal in this Court within the 21 day period fixed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR). However, on 13 July 2016, he applied pursuant to r 36.05 of the FCR for an extension of time in which to commence an appeal. This meant that he was six days out of time.
The matters to which the Court generally has regard on an application for an extension of time are the reasons for the appeal not having been commenced in time, the length of the extension sought, the prejudice to the respondent party if the extension is allowed, the prejudice to the applicant if the extension is refused and the conduct of the parties in the litigation generally. The prejudice to an applicant usually turns very much on whether he or she can demonstrate that any of the proposed grounds of appeal are reasonably arguable.
The applicant was unrepresented in the RRT, the FCC and on today’s hearing. He did, however, have the assistance of a migration agent in the preparation of his application made to the RRT, and it is apparent that he has had some legal assistance in the filing of the application for the extension of time.
In support of his application for an extension of time, the applicant filed an affidavit and a draft Notice of Appeal. The substantive content of those two documents is identical, but the draft Notice of Appeal indicates that the applicant seeks an order that the FCC judgment be set aside and the decision of the Minister’s delegate and of the RRT “be reviewed in accordance to procedural fairness”.
The period of extension sought by the applicant is short and the Minister does not suggest that any relevant prejudice would be caused to him if an extension of time is granted.
The applicant’s affidavit does not provide any explanation for his not having commenced the appeal in time, but he has told me today that it occurred because he had to raise the money in order to obtain legal assistance and to pay the filing fee and there were some logistical difficulties in filing the notice of appeal in time. Although these were matters which I was told from the bar table, I am willing to accept that they are in fact the explanation for the appeal not having been filed in time and, despite the submissions from the Minister, that they are not matters which count against the grant of an extension of time.
In my opinion, the fate of the application for an extension of time turns principally on whether any of the applicant’s proposed grounds of appeal are reasonably arguable.
The draft notice of appeal contains 16 separate grounds. Many of these are unparticularised and repetitive, and some seem to be based on a misapprehension that the FCC was engaged in a merits review of the decision of the Minister’s delegate. Several of the grounds go beyond the matters which the applicant had agitated in the FCC and the applicant would need leave to advance those grounds on an appeal to this Court.
On my understanding, the complaints which the applicant wishes to make concerning the decisions of the RRT and of the FCC can be summarised as follows:
(a)the FCC Judge should have recognised that the RRT decision was wrong (Grounds 1, 2, 8, 14 and 15);
(b)the FCC Judge should have recognised that the RRT had misapplied the criterion for the grant of a protection visa on his claim to be a refugee (Grounds 3 and 4);
(c)neither the FCC Judge nor the RRT member had considered the case “with natural justice and procedural fairness” (Grounds 2 and 16):
(i)the RRT had carried out its task with a predetermined view, being willing to accept only those matters which were “advantageous” to that view rather than considering all of the evidence fairly (Grounds 4, 11 and 13);
(ii)he had not had legal representation (Grounds 4, 7, 9 and 10);
(iii)the applicant’s individual circumstances had not been considered and instead a generic approach had been adopted (Grounds 12 and 14);
(d)there were shortcomings in the provisions of documents to the applicant by both the RRT, the FCC and the Department of Immigration and Border Protection (DIBP) (Grounds 5 and 6).
Before addressing the arguability of those grounds it is appropriate to summarise briefly the circumstances of the applicant’s application for a protection visa. His claim was that his father had spent inappropriately the money which he (the applicant) had sent back to Bangladesh during a period in which he had worked in Japan between 1988 and 1999. On his return to Bangladesh in 1999, this had led to him having a major falling-out with father, so much so that he feared harm from his father and his associates if he returned to Bangladesh. The RRT member said that in that circumstance:
I explained to the applicant the legal requirements for the grant of a protection visa. He said that he realises that he does not meet the Refugees Convention criterion. He understood that the harm he fears is for private family reasons arising from a dispute over money, and not for any Convention reason. I explained, and he agreed, that his claims would be assessed against the complementary protection criterion.
The RRT member then went on to find that the applicant did not meet the criterion for complementary protection contained in s 36(2)(aa) of the Migration Act. The member listed eight reasons which, in combination, warranted that conclusion. In summary, the RRT considered that the applicant had been able to reside in Bangladesh from 1999, when his father was said to have first threatened harm to him, to 2007, when he came to Australia. In that period, he had not had any direct contact with his father, nor experienced any form of harm. The RRT member considered that the applicant had exaggerated his claims about the degree of harm posed to him by his family members and considered that these were inconsistent with his having returned voluntarily to Bangladesh for a visit in the period between 6 December 2008 and 22 January 2009. The RRT member also considered it pertinent that the applicant had not made any inquiries about seeking protection in the period between 1999 and 2007, and even after the expiry of his Subclass 457 Visa in 2011, had not made an application for a protection visa for over two years.
On this basis, the RRT member concluded that the applicant did not face a real risk of significant harm if he returned to Bangladesh.
On my assessment, proposed Grounds 1, 2, 8, 14 and 15 which assert in various ways that the FCC Judge should have recognised that the RRT decision was wrong, proceed on a misapprehension. Contrary to the applicant’s understanding, the FCC Judge was not engaged in a merits review of his application for a protection visa. As is well established, the function of the FCC was judicial review only. This being so, I consider that proposed Grounds 1, 2, 8, 14 and 15 are not reasonably arguable.
Proposed Grounds 3 and 4 in which the applicant complains that the FCC Judge should have recognised that the RRT had misapplied the criterion for the grant of a protection visa, are, in my opinion, without a reasonable basis. The applicant referred to the UNHCR definition of a “well‑founded fear of being persecuted”, contending that that required that “account [to be taken] of [the] personal and family background of [an] applicant”. However, the RRT member was required to apply the criterion contained in the Migration Act itself.
Section 5J(1) of the Migration Act provides, as did the former s 91R of the Act, that, for the purposes of the application of the Migration Act, a person has a well‑founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and if there is a real chance that, if the person returned to their country, the person would be persecuted for one or more of those reasons. Plainly, the risk of harm which the applicant claimed from his father and his father’s associates arising out of the family dispute does not fall within any of those categories. The RRT member explained that to the applicant at the hearing, and the applicant accepted that that was so. The harm which the applicant feared from his father and his father’s associates could constitute a form of harm for the purposes of the complementary protection criterion in s 36(2)(aa), but there is no indication that the RRT member was under any misapprehension in that respect. The RRT member determined the applicant’s application by reference to that criterion.
The applicant has not pointed to any material indicating that the RRT member had approached the review with a predetermined view resulting in the member accepting only those matters which were consistent with a predetermined view rather than dealing with the application fairly. This is a fundamental difficulty for the applicant as an allegation of bias must be clearly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, at [69] (Gleeson CJ and Gummow J). I have considered this proposed ground of appeal by reference to the reasons of the FCC Judge. On my assessment, the reasons of the RRT cannot reasonably be regarded as indicating that the member had a closed mind or a predetermined view.
As mentioned earlier, the applicant did not have legal representation in the hearing in the RRT, nor, for that matter, in the hearing in the FCC. However, that circumstance does not indicate by itself that there was any denial of procedural fairness or of natural justice. It was not the responsibility of either the RRT or of the FCC to arrange legal representation for the applicant. That was a matter for him. There is no evidence that either the RRT or the FCC Judge declined to allow the applicant to be represented. In any event, the applicant did have the assistance of a migration agent in the RRT and, until February 2016, had legal representation in the FCC proceedings.
The applicant has not provided any evidence concerning the manner in which the proceedings were conducted in the RRT or in the FCC which would indicate that it is reasonably arguable that either hearing was affected by a denial of procedural fairness. There is no other indication in the papers that the applicant was denied procedural fairness.
I turn next to the applicant’s complaints that the FCC Judge should have found that the RRT member had not considered his individual circumstances and had instead determined his application by reference to the circumstances of applicants in his position generally. This contention is not borne out by a review of the RRT’s reasons. On the contrary, those reasons indicate that the RRT member gave close attention to the applicant’s circumstances.
Finally, I refer to the applicant’s complaints in proposed Grounds 5 and 6 that there were shortcomings in the provision of documents to him by the RRT, the FCC and the DIBP. These complaints were unparticularised. The applicant did not point to any documents which he did not receive, or which he received only late, in some way which was prejudicial to him. Accordingly, these grounds do not provide a reasonably arguable basis for an appeal against the FCC judgment.
The applicant has emphasised today that he is a skilled employee, that he is valued by his present employer in Australia, that his employer would wish to sponsor him and that he would like very much to be able to continue working in the way that he has been to date. These are not matters which bear upon the arguability of the proposed grounds of appeal, nor can it be said that they bear in any direct way, on the application for a protection visa on the basis of the complementary protection criterion. I mention them so as to indicate that I have not ignored those submissions, but those matters do not assist the applicant presently.
In my opinion, the applicant has not shown that any of his proposed ground of appeals are reasonably arguable. That being so, I am not satisfied that the applicant has shown a proper basis for the grant of an extension of time.
The application for an extension of time at which to commence the appeal is dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 17 November 2016
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