MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT Background 1 The applicant is a citizen of India. He is presently in immigration detention. He arrived in Australia on 25 September 2003. On 29 October 2003, he applied for a protection visa (class XA). A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused that application on 15 January 2004. On 19 February 2004, the applicant applied for review of that decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed the delegate's decision. 2 The applicant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. The matter was listed for hearing on 10 June 2005. On that day, the applicant failed to appear for the hearing. A Federal Magistrate dismissed the application for review pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001for non-appearance. On 1 July 2005, the applicant filed an application for reinstatement of the application for review. The application for reinstatement was dismissed on 15 August 2005. 3 On 2 September 2005, the applicant filed a notice of appeal against the Federal Magistrate's decision given on 15 August 2005. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Spender ACJ directed that the appeal be heard by a single judge. On 12 October 2005, the respondent filed an outline of argument submitting that the notice of appeal should be struck out because the appeal is from an interlocutory judgment and leave to appeal had not been granted. On the same day, pursuant to O 19 r 2(2) of the Federal Court Rules, the Court waived the requirement of a notice of motion and allowed the applicant to make an oral application for leave to appeal and for an extension to seek leave out of time. On 21 October 2005, the Court heard this application and now publishes its reasons for decision. The Applicant's Claims Before the Tribunal 4 The applicant claimed that he has suffered persecution on account of his Muslim faith. He claimed he became the target of the Indian government and its front organization the RSS because he was responsible for converting low caste Hindus to Islam. He also described a conflict with a Hindu named Kumar who had been his neighbour. 5 The applicant claimed that, in 1995, he established an Islamic Dhawa Centre in his village, Padakkudi, Thiruvurar District, Tamil Nadu. He claimed that through this organization he participated in the conversion of low caste Hindus to Islam. He suggested that, through his work with this organization, he attracted the anger of the RSS and other radical Hindu groups. He said that he was attacked by a group of RSS members in February 1998 but, when he went to the police, they refused to accept a complaint. 6 The applicant's conflict with Kumar began in 1993 when the applicant gave testimony against Kumar in a homicide case that lead to Kumar being imprisoned. According to the applicant, Kumar was released from prison in 2003 and has threatened his wife and children. The applicant claims that Kumar is an active RSS member. He stated that when he tried to file a complaint about Kumar the police refused to accept it. Moreover, the police accused him of being a member of Manithat Naya Pasari ("MNP") and threatened to charge and imprison him for his role in religious conversions. At the relevant time, proselytizing was unlawful in Tamil Nadu. 7 In the years leading up to his arrival to Australia, the applicant had moved frequently between his village in Tamil Nadu and Chennai, although his family remained in Tamil Nadu. He claimed that, after Kumar threatened his family, he moved them to Chennai. He stated that his house was burnt down the next day. He explained that his family has been living in Chennai since he came to Australia. Reasons of the Tribunal 8 In its Reasons for Decision published 6 July 2004, the Tribunal reviewed the applicant's claims in detail. The Tribunal accepted that the applicant established the Islamic Dhawa Centre in 1995. However, the Tribunal did not accept that the applicant was instrumental in conversions to Islam. The Tribunal based this finding on what it found to be the applicant's incomplete understanding of the requirements for conversion to Islam. The Tribunal found that his testimony regarding the threats and intimidation from the RSS to be vague and did not credit these claims. 9 The Tribunal accepted that the applicant might have been attacked in February 1998. The Tribunal noted that, before it, the applicant had claimed that he reported this incident to the police and a case was filed. This contradicted the applicant's earlier claim that the police refused his complaint. The Tribunal also noted that the applicant was not hurt in this attack and that it was related to rioting in a nearby village. 10 With respect to the applicant's conflict with Kumar, the Tribunal found that Kumar's motivation to harm the applicant was not related to race or religion. Rather, the Tribunal found that Kumar was motivated by the applicant's testimony against him in a criminal matter. 11 The Tribunal did not accept the applicant's claim that the police refused to accept his complaint about Kumar. The Tribunal reasoned that this was unlikely given that Kumar had been imprisoned on the basis of the applicant's testimony and had been recently released. The Tribunal also rejected the applicant's claim that the police accused him of being a member of MNP. The Tribunal found no evidence of this organization in any country materials available to it and did not accept that it exists. 12 Finally, the Tribunal concluded that, if the applicant were concerned for his safety, he could move to Chennai, where he had lived for many years without experiencing problems. The Tribunal noted that his family is now living there. Moreover, he has friends there and has previously found work there. Proceedings in the Federal Magistrates Court 13 In his application for judicial review in the Federal Magistrates Court, the applicant claimed the Tribunal had fallen into jurisdictional error. The applicant filed Contentions of Fact and Law outlining his claims. He submitted that the Tribunal failed to decide on the core of his claims when it simply dismissed his allegations of persecution as vague and contradictory. The applicant also argued that the Tribunal misconstrued and misapplied the terms "refugee" and "persecution" because it failed to consider his claims cumulatively. 14 After the applicant failed to appear for the hearing on 10 June 2005, the Federal Magistrate dismissed his application for review pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules. The applicant filed a motion for reinstatement of his application for review. In support of this application, the applicant affirmed that: "Due to my illness I was unable to attend the hearing and I enclose a medical certificate confirming my illness. I beg the matter to be re-heard." The attached medical certificate was dated 1 July 2005. The certificate states that the applicant attended a Betta Health Medical Centre on 6 and 8 of June 2005. Although the certificate contains a section where the ailment should be noted, this section of the certificate is left blank. The certificate states, "I conclude by reason of this condition/patient's statement he/she is/was unable to attend work/school on/from 8/6/05 to 10/6/05 inclusive". The final date appears to be altered to 10/6/05 from 9/6/05. 15 The Federal Magistrate dismissed the application for reinstatement. Citing SZCEJ v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FMCA 389, his Honour held that, to succeed in his application, the applicant needed to demonstrate a satisfactory reason for failing to comply with the court's orders and that he had an arguable case. His Honour found that the applicant could satisfy neither of these requirements. 16 The Federal Magistrate found that the applicant's medical certificate did not provide an adequate explanation for his non-attendance on 10 June 2005. His Honour noted that the certificate provided no statement or explanation of the illness allegedly suffered by the applicant and why it would have prevented him attending court. Moreover, his Honour also noted that the certificate appeared to be altered to include the date 10 June 2005, and, at the hearing on his application for reinstatement, the applicant provided no further explanation or details to justify his failure to appear in June. 17 With respect to the merits of the applicant's application for review, the Federal Magistrate found that the Tribunal's decision was grounded on its credibility findings about the applicant's claims and evidence. Accordingly, he concluded that there was no basis for the claim that the Tribunal fell into jurisdictional error. The Notice of Appeal 18 The applicant's notice of appeal, filed in this Court on 2 September 2005, outlines three grounds for the appeal: (1) that the magistrate erred in finding there was no jurisdictional error by the Tribunal; (2) the magistrate erred in finding that the Tribunal's decision was grounded solely on the applicant's credibility; and (3) the magistrate erred in finding the applicant was seeking a merits review. The notice of appeal was not accompanied by an application for leave to appeal. The Respondent's Contentions 19 The respondent submitted that the decision of the Federal Magistrate made on 15 August 2005 is an interlocutory judgment, as it did not finally determine the rights of the parties. Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant must seek leave to appeal an interlocutory judgment. Moreover, under O 52 r 5, the applicant was required to seek leave within 21 days after judgment was pronounced. 20 Anticipating that the applicant might apply for an extension of time for leave to appeal, the respondent submitted that the Court should deny such an application. The respondent submitted that the determinative factor in deciding whether or not to grant an extension of time for leave to appeal should be whether the proposed appeal has any prospects of success. There were, so the respondent submitted, no prospects of success in this case. 21 The respondent also contended that the Court should not grant leave to appeal because the Federal Magistrate's decision was not attended with sufficient doubt to warrant it being reconsidered. 22 The respondent submits that there is no relevant error in the Federal Magistrate's decision. First, it was open to his Honour to dismiss the application for reinstatement in the absence of any probative evidence to support the applicant's claim that he was too ill to attend the hearing on 10 June 2005. Secondly, his Honour was correct to conclude that the applicant's claim of jurisdictional error had not been made out. 23 The respondent submitted that any application for an extension of time or leave to appeal should be refused with costs. The Applicant's Contentions 24 The applicant appeared in person at the 21 October 2005 hearing. Through an interpreter he asked the Court to grant the applications necessary to make the appeal competent and to allow the appeal. His interpreter read out a statement that he had prepared for today. He said that he was poorly educated and had mistakenly put his trust in his solicitor. His solicitor had misled him about his visa status and had not represented him competently. He had been in Australia these past two years and had worked in a restaurant as a chef. He had funded his legal representation from these earnings. He had no savings and his family in India did not live well and had been distressed by the separation from him. He reiterated that he feared for his life in India while the present government in India remained. He asked that his case be examined in a humanitarian way. Consideration 25 Sadly for the applicant, the matters before the Court do not fall to be determined by reference to the matters that he has raised. The applicant did not identify any particular matter that his solicitor had failed to say or do that might have affected the outcome of the proceedings before the Federal Magistrate or the Tribunal. 26 I accept that the 15 August 2005 judgment is interlocutory in nature. "[A]n order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only": Hall v Nominal Defendant (1966) 117 CLR 423 at 440 per Taylor J. Under this test, the 15 August 2005 judgment is interlocutory: see NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J (reaching the same conclusion with respect to a dismissal of an application for reinstatement). 27 As the applicant did not apply for leave to appeal until 12 October 2005, the Court must consider whether an extension of time should be granted: see O 52 r 5. If the only problem with the applicant's application for leave to appeal was his failure to seek leave within 21 days of the Federal Magistrate's judgment, this could be excused given his ignorance of the workings of the Federal Court. However, even if there is a valid and legitimate reason for the delay, the application for an extension of time must still be refused if the appeal would have no or very slight prospects of success: see Gallo v Dawson (No 2) (1992) 109 ALR 319. As the proposed appeal has no prospect of success, an extension of time should be refused. 28 Even if no extension of time were needed, this case would not justify the grant of leave to appeal, because, as the respondent submitted, the decision of the Federal Magistrate is not attended by sufficient doubt. 29 When considering the application for reinstatement, the Federal Magistrate required the applicant to demonstrate a satisfactory reason for failing to appear and that he had an arguable underlying case. This was the correct test: see eg MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] per North J. Moreover, his Honour correctly found that the applicant satisfied neither prong of this test. 30 With respect to the first requirement, the applicant clearly failed to provide a satisfactory reason for his failure to comply with the court's order. His key piece of evidence was a medical certificate that bore a number of defects. First, the certificate did not specify any particular ailment. Secondly, the crucial date on the certificate appeared to have been altered. Finally, the certificate was not signed until weeks after the hearing of 10 June 2005. The applicant was unable to provide any evidence to supplement or corroborate the medical certificate. In particular, there was no evidence as to why the applicant's alleged illness would have prevented him from attending court. In these circumstances, it was open to his Honour to find that the applicant had not provided an adequate explanation of his absence on 10 June 2005. His Honour's decision is fully consistent with earlier decisions of this Court: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79 at [1]-[7] and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10]. 31 The Federal Magistrate was also correct to conclude that the applicant did not have an arguable case. Although the applicant claimed that the Tribunal failed to decide on the core of his claims, the Tribunal provided a thorough discussion of all his claims in its 30 page reasons for decision. As his Honour noted, the Tribunal's decision was based on an assessment of the applicant's credibility. The Tribunal did not accept the applicant's claim that he was subject to threats and intimidation from the RSS. Similarly, the Tribunal did not accept the applicant's claim that the police had refused to assist him and had accused him of being a member of the MNP. The applicant did not provide his Honour with any basis to conclude that the Tribunal had fallen into jurisdictional error. 32 As the proposed appeal is without merit, the Court will not grant an extension of time for leave to appeal. Accordingly, I would order that the applications for an extension of time in which to seek leave to appeal and for leave to appeal be dismissed. The appeal should be dismissed as being incompetent. The applicant should pay the respondent's costs. 33 I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.