MZYCA v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to appeal from a decision of a Federal Magistrate dismissing the applicants' application for review of the decision of the second respondent (the Tribunal) affirming the decision of the first respondent's delegate to refuse them protection visas. The Magistrate's decision was handed down on 12 May 2009. The applicants thus had until 2 June 2009 to file a notice of appeal. A copy of the Magistrate's decision was posted to them on 12 May. The first applicant says she did not receive it until 22 May. She says she was unaware that she had to file a notice of appeal within 21 days of the date of the decision. She also says that she cannot read or write English and did not have the money to consult a lawyer, because she is unemployed. On 3 June she telephoned the Federal Court and was told that time for an appeal had expired, but that she could apply for an extension of time, which she did on 9 June. That application was accompanied by an affidavit explaining the reasons for delay (as above) and by a draft notice of appeal. 2 Order 52 rule 15 of the Court's Rules requires a notice of appeal to be filed within 21 days of the date of the judgment appealed from. Subrule (2) permits the Court to give leave to file a notice out of time "for special reasons". The applicants have sufficiently explained their delay. The issue then is whether their prospects of success on an appeal are sufficient to justify an extension. 3 The first applicant's claims (upon which the second applicant's case is dependent) are fully set out in the Tribunal's reasons and do not need to be repeated. The grounds in the draft notice of appeal are substantially those propounded before the Magistrate. It refers to the first applicant as "the applicant", and I will do the same. 4 Ground 1.1 of the draft notice alleges error by the Magistrate in not finding that the Tribunal had failed to accord procedural fairness to the applicant in that it did not accept that she was a credible witness. That is not a lack of procedural fairness point. Nevertheless the Magistrate dealt with it at [18] to [24] of his reasons. At [20] his Honour noted that the Tribunal had set out the applicant's evidence and identified numerous instances of evidence it did not accept, and its reasons for taking that course. The Tribunal did not accept that she was a credible witness. The Magistrate correctly said that those findings were not open to review. No error has been shown in the Magistrate's treatment of this ground. There is no prospect of the applicant succeeding on this ground on an appeal. 5 Ground 1.2 is that the Magistrate erred in not determining that the Tribunal denied the applicant procedural fairness "because of the weight it gave to [her] claims … notwithstanding an honest explanation of these claims" when it said at [55]: Given the vague nature of the applicant's statement that she did not provide truthful evidence 'on my issue', the Tribunal has proceeded to consider the totality of her claims as before the Department and the Tribunal. This passage derives from a letter the applicant wrote to the Tribunal in response to a post hearing s 424A letter in which she apologised for "not providing truthful evidence on my issue". 6 The Magistrate treated this as a complaint that the Tribunal placed too much weight on the findings of fact upon which it based its conclusion that the applicant's evidence was not credible. I think that is the correct complexion to put upon this ground. But again it is not a procedural fairness complaint. In any event, the Magistrate rejected it because the Tribunal's findings on which its conclusion on credibility were based were open to it on the evidence. After referring to a number of authorities on findings as to credibility, his Honour said at [28] that the Tribunal had not failed to use, or had palpably misused, the advantage it had of having heard and seen the applicant give evidence. Nor had it acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Nor were the probabilities strongly against the findings it made in rejecting the applicant's evidence. See W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]. 7 In connection with this ground the applicant asserts a breach by the Tribunal of s 414 of the Migration Act 1958 in not assessing her claims in the manner the section requires. Section 414(1) requires the Tribunal to review a valid application for review of an RRT‑reviewable decision. The Magistrate correctly rejected this complaint. He said at [49]‑[50]: the RRT performed its duty under s 414 to consider the claims made by the applicant and the evidence before it. The RRT considered the evidence of the applicant given to the Department and the oral evidence given at the hearing. The RRT considered and accepted her claim that, as a Hindu, the applicant genuinely cares about the welfare of cows and may have assisted her grandfather in this regard. However, the Tribunal rejected the rest of the applicant's claims. Those findings were open to it on the evidence before it … This ground is an attempt to review factual findings by the Tribunal which is not open to a Court conducting judicial review. No error has been shown in the Magistrate's rejection of reliance on s 414. The Tribunal carefully considered her claims and the evidence she provided in support of them. There is no doubt that it "reviewed" the Tribunal's decision as required by s 414. No error has been shown in the Magistrate's rejection of ground 1.2. There is no prospect that the applicant would establish this ground on an appeal. 8 Ground 2 is that the Magistrate was in error in not determining that the Tribunal acted in a manifestly unreasonable manner when dealing with the applicant's claims because of its failure to consider them in accordance with Article 1(A)(2) of the Refugee Convention and "ignoring the aspect of persecution or serious harm in terms of s 91R of the Act". There is no substance in these complaints. The Magistrate pointed out, correctly, that at the beginning of its reasons the Tribunal set out the relevant law, the definition of refugee in Article 1(A)(2), and key components of the definition. It then dealt with the applicant's claims in accordance with the relevant criteria before concluding at [64] that it was not satisfied that she is a person to whom Australia has protection obligations. 9 The passages in the Tribunal's reasons on which the applicant relies for her claim that Article 1(A)(2) was not properly considered are simply factual findings with which she disagrees. These are the findings at [61]‑[63] of the reasons. 10 As the Magistrate said, there is no substance in the claim that the Tribunal ignored s 91R. The Tribunal pointed out at [14] that this section qualifies Article 1(A)(2), and that persecution must involve serious harm to the applicant, and systematic and discriminatory conduct. It set out the examples of serious harm contained in s 91R(2). In any event, as I have said, s 91R narrows the operation of Article 1(A)(2). The Tribunal rejected the applicant's claim to a visa for a more basic reason than anything with which s 91R deals. It did not accept the evidence on which she relied to bring herself within Article 1(A)(2). The Tribunal had no reason to spend time on s 91R. The applicant's case failed independently of that section. The applicant has no prospect of success on ground 2. 11 Ground 3 is that the Magistrate was in error in not determining that the Tribunal fell into jurisdictional error in failing to request more information regarding the applicant's activities in the Gitaben Rambhia Trust from the Trust itself. The Magistrate dismissed this complaint. In reliance on High Court and Full Court authority he observed that there is no obligation on the Tribunal to obtain further information. Section 424 empowers the Tribunal to obtain information, but it does not have a duty to investigate an applicant's claims. See SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 at [61]. This ground has no prospect of success. 12 In her written submissions the applicant asserts another claim of want of procedural fairness, in that at [55], [57]‑[59] and [61]‑[62] of his reasons the Magistrate "failed to address the mandatory nature of the requirements of [s 65(1)], and in effect applied the test of compliance with the common law rules of natural justice to a statutory scheme". The Magistrate's reasons conclude at [59]. None of the paragraphs relied on deal with procedural fairness. However at [16] his Honour stated that s 422B(1) provides that Division 4 is an exhaustive statement of the natural justice hearing rule, and that no breach of that Division had been shown. The applicant's complaint that the codified natural justice scheme was not applied is baseless. 13 In her written submission's the applicant claims that the Tribunal in failing to make specific findings failed to reach the required state of satisfaction or non‑satisfaction as required by s 65(1). This complaint has no basis in fact. The Tribunal made specific findings about the claims and evidence before it. As it explained at [57] to [63] of its reasons, it did not accept most of those claims and evidence. The Magistrate said, correctly in my view, that once the Tribunal had found that the applicant did not satisfy the criteria for a visa, it was not required to make findings on all other matters that may have been raised in evidence. A Tribunal is not required to refer in its reasons to every item of evidence before it. Thus a failure to refer to a particular piece of evidence does not require a conclusion that it has been overlooked: SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]. I need not pursue this matter further, because the applicant provided no particulars of the specific findings she said the Tribunal should have made. 14 In my view none of the grounds in the draft notice of appeal or the written submissions has any prospect of success. All of them are quite without merit and would be bound to fail if an extension of time within which to appeal were granted. They have been propounded without any reference to the contents of the reasons of the Magistrate from whose decision the applicant seeks leave to appeal. Accordingly I refuse to grant an extension because it would be pointless to do so. Cf SZJDA v Minister for Immigration and Citizenship [2008] FCA 1093. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.