SZEWS v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-03-07|Before: Jacobson J, Branson J

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to appeal from a decision of Federal Magistrate Barnes given on 17 May 2005 dismissing an application for a review of a decision of the Refugee Review Tribunal ("RRT") made on 13 February 1997. 2 The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The last day for lodging a notice of appeal was 7 June 2005. A notice of appeal was filed in the registry on 9 June 2005, only two days after the time period limited by the rules. 3 The appellant was present at a directions hearing before me on 7 July 2005 when I ordered that the notice of appeal be treated as an application for an extension of time in which to file and serve a notice of appeal. 4 On that occasion I also ordered that the appellant file and serve the following: (a) an amended application for an extension of time in which to file and serve a notice of appeal; (b) an affidavit by the appellant clearly identifying the grounds upon which time should be extended; and (c) a draft notice of appeal clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of evidence and every ground of review relied upon. 5 At the directions hearing I fixed the matter for hearing on 21 September 2005 but the hearing of the appeal was adjourned in order to determine whether issues under consideration by a Full Court would have any bearing upon the matters that might be raised in the present appeal. 6 Notwithstanding the substantial delay between the date of my directions and today's hearing, the appellant has failed to comply with the orders that I made. He appeared before me this morning in person assisted by an interpreter. He told me that he had engaged a migration agent in Melbourne, that he paid the agent $500 but the agent refused to act for him. He told me that he needs legal advice and he requested more time. The time period which he requested was two to three weeks. 7 For reasons which I will refer to later I consider that the extension of time sought by the appellant should not be granted. The delay in filing the notice of appeal is very short and ordinarily it would not be of any prejudice to the Minister to grant an extension of time resulting from the short delay. However, the Minister opposes an extension of time and submits that no special reasons have been offered by the appellant as to why I should extend time. 8 Counsel for the Minister submitted to me today that there is still no explanation for the failure to file the notice of appeal on time and counsel also pointed to the history of the proceedings which have been marked by delay in the past as well as by delay in and indeed, failure to comply with the directions which I made nine months ago. As the Court has observed, even if special circumstances are identified there is still a discretion to grant or refuse an extension of time. 9 One of the factors which is of particular importance in the exercise of the discretion is whether there is any prima facie strength to the proposed ground of appeal, see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. Thus in order to grant an extension of time I would need to be satisfied at the very least, that there is an arguable case of jurisdictional error on the part of the RRT. I will set out briefly the background including a reference to the reasons of the RRT and the Federal Magistrate before dealing with the present application.

Background 10 The appellant is a Sikh from the Punjab in India who claims to fear persecution by reason of his religious and political opinion. The appellant claimed that he joined the All India Sikh Students Federation ("AISSF") in 1985 and that he and his family experienced harassment by police and security forces due to his perceived association with a terrorist organisation, the Khalistan Commando Force ("KCF"). 11 The appellant claimed that he was arrested and detained by the police on numerous occasions throughout the 1980s and early 1990s. On the last occasion he was arrested in February 1993, the appellant was said to have been detained for one month. After the last period of imprisonment the appellant decided to leave India and he came to Australia in April 1993. 12 At the hearing before the RRT, the appellant stated that he joined the KCF in 1981 and the police had regarded him as an extremist since that time. The appellant also told the RRT that there is a warrant out for his arrest which remains in effect until he is apprehended. According to the applicant since his departure from India the police have destroyed his house. 13 In its reason for decision the RRT accepted that the appellant had a subjective fear of persecution but it was not satisfied that the fear was well founded. The RRT observed that country information suggested a dramatic and sustained improvement in the situation in the Punjab since the appellant left and the situation had become much quieter. The RRT accepted the appellant's account of detention and mistreatment as credible but it was unable to accept that he suffered differential harm due to his political opinion. 14 It emphasised the fact that on numerous occasions of detention he was released without charges being laid and commented that the appellant's testimony about detention and harassment was vague and inconsistent. The RRT referred to the claims the appellant made at the primary stage, that is before the delegate, and contrasted them with the claims the appellant made at the review stage. The RRT noted inconsistencies in the appellant's claims as to whether he was a member of the KCF and/or the AIFFS. The RRT observed that the appellant's oral evidence at the hearing about detention and harassment was hesitant and inconsistent with an earlier account. 15 The RRT found that the appellant had altered his evidence over time to enhance his claims and consequently doubted that the mistreatment was as severe or as regular as claimed and questioned whether he had the imputed political profile that he claims. 16 The RRT concluded as follows:- "These reservations notwithstanding, I have not adopted a positive state of disbelief with regard to the totality of the Applicant's claims. It is plausible, based on the weight of evidence from many objective sources, that as a young Sikh male the Applicant would have suffered harassment and mistreatment by the Punjabi security forces at the height of tensions arising out of Sikh militancy throughout the 1980s and early 1990s. Nevertheless, based on the considerations raised above, I am unable to accept on the evidence that the applicant suffered differential harm due to his imputed political profile." 17 The RRT then considered the appellant's claim that warrants had been issued for his arrest. It referred to the photocopies of two arrest warrants provided by the appellant and found it was unable to accept the documents as genuine for several reasons. The reasons were that the photocopies were uncertified and the RRT was not able to examine the originals and further the content of the warrants were not identical. It observed that it seemed implausible that the appellant could have been charged with a new set of offences three years after he left the country. 18 The RRT also found inconsistencies in the letter from the appellant's advocate upon which the appellant relied. The RRT was unable to find that the document was a genuine document to which any weight could be given. The RRT noted that the appellant could not have passed through a departure point in India if he was wanted by the authorities but he departed using a legally acquired passport in his own name. 19 The RRT expressed sympathy for the appellant's desire to continue undisturbed in the new life he had commenced in Australia but concluded that the appellant's fear of persecution in India was not well founded. It referred to the elimination of militant activity and returned to normality in the Punjab and found that the chance of the appellant suffering persecution on return to India due to his imputed political opinion or religion was remote or insignificant. It also found that relocation was a viable option. 20 In July 1999 the appellant was joined to the Lie class action in the High Court. That matter was remitted in November 2002 to this Court as an individual application for an order nisi which was subsequently dismissed by Emmett J on 20 February 2004.

Federal Magistrates Court Proceedings 21 These proceedings were commenced by an application filed on 12 July 2004. 22 The learned Federal Magistrate observed that the application did not identify any ground of jurisdictional error. She pointed out at [16] that notwithstanding her directions to do so the appellant failed to file an amended application and an affidavit containing any additional evidence, including in particular a transcript of the hearing before the RRT. 23 However, her Honour went on to consider in some detail written submissions filed by the appellant's then solicitor, even though it raised grounds of review not contained in the application. Her Honour said at [19] that the particulars provided by the solicitor involved a submission that the RRT failed properly to set out its reasons, its findings on material questions of fact and the evidence on which the findings were based. The learned Federal Magistrate observed that such claims in the way that they were raised did not establish jurisdictional error. Her Honour cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 24 Her Honour noted at [20] that the only evidence before the Court of what occurred in the RRT was the RRTs reasons. She rejected at [22] a contention that the RRT was obliged to make findings on every item of evidence put before it. Her Honour said at [25] that in essence the applicant's claims took issue with the merits of the RRTs findings. 25 One of the appellant's submissions was that there was no proper evidence to support the RRTs finding that the arrest warrants were not genuine. Her Honour found at [29] - [30] that there was evidence to support the finding. She went on to deal with the question of whether there was a denial of procedural fairness. Her Honour said at [32]:- "The language that the Tribunal uses about the arrest warrants does not appear to be consistent with the proposition that genuineness was being used in a loose sense to convey simply that the weight to be given to the content of the photocopies of arrest warrants provided no support to the genuineness of the applicant's claim. It is not, however, necessary for me to express a firm view on this matter (on which the solicitor for the applicant did not address the court). However on the view most favourable to the applicant, even if the Tribunal did find that the documents were not authentic or that they were fraudulent documents, while as a matter of procedural fairness a Tribunal making such findings may be under an obligation to put to an applicant its concerns in that respect (consistent with authority such as WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188) in this instance the evidentiary basis for any claim that such documents or views were not put to the applicant has not been established. There is no transcript of the Tribunal hearing before the court. This is not a case in which I consider it appropriate to infer from all the material before me that such matters were not put to the applicant in the course of the hearing (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and compare Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264). The Tribunal summarised but did not attempt a full explanation of what occurred in the Tribunal hearing. There is no evidence that such issues were not raised with the applicant." 26 Her Honour also dealt with the question of whether any information in relation to documentary fraud in India would fall within s 424A(3)(a) of the Migration Act 1958 (Cth) ("the Act"). Her Honour did so notwithstanding that no such claim was raised but she found that there was no basis for a finding of any such breach. Her Honour found at [38] that the RRTs findings on the reasonable possibility of relocation provided an alternative basis to support its decision. Her Honour cited the decision in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437.

Discussion 27 The notice of appeal is in general terms. It does not, on its face, disclose any arguable ground of jurisdictional error on the part of the RRT or any error on the part of the Federal Magistrate. 28 The Minister maintains her objection to competency of the appeal even though the notice of appeal was filed two days out of time. Counsel for the Minister submitted that whilst the difficulties of the appellant can be appreciated in view of his lack of legal representation there is no arguable case of error or jurisdictional error appearing in the reasons of the RRT or the Federal Magistrate. 29 Again, whilst recognising the appellant's difficulties the Minister submitted that more than sufficient time had been accorded to the appellant to obtain legal advice and to comply with my directions. She opposed an adjournment and asked for the matter to be dismissed summarily under s 25(2B)(bb)(1) of the Federal Court Act 1976 (Cth). 30 I was not inclined to dismiss the matter summarily but it did seem to me that there was no reason why the request for an adjournment should be granted. 31 It seems to me that the appellant has had more than sufficient time since my directions of 7 July 2005 to comply with the Court's directions and that there is no point in allowing further time to him. That was really the only submission that was put to me by the appellant who said that his family in India is still searching for documents to establish that the alleged arrest warrants were in fact genuine. 32 I have given careful consideration to the application bearing in mind, inter alia, that the appellant is unrepresented. In my view there is nothing to suggest that the applicant has any arguable prospects of success on an appeal. It seems to me that the learned magistrate fully and correctly considered each ground raised by the appellant as well as any other possible area of jurisdictional error in the RRTs decision. 33 The application for review by the RRT was filed well before July 2002 when s 442B of the Migration Act came into operation. That section therefore is not relevant to the question of whether the ordinary rules of procedural fairness applied; see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [8] per Doussett, Hely and Landar JJ and SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31] per Hely J. 34 Furthermore, the considerations to which French J referred in WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57] did not therefore arise; cf Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] - [36] per Gray J. 35 I also note that the RRTs decision was made prior to the amendments to the Act in 1998 which introduced s 424A. As counsel for the Minister pointed out, the learned Federal Magistrate made reference to this section and considered whether or not the section had been breached. 36 Nevertheless her Honour also considered the question of whether the appellant had established that there was a denial of procedural fairness based upon what may have been a failure to put to him the RRTs concerns about the genuineness of the warrants. In SZBCP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 743 at [34] - [35] I set out the effect of the authorities on the question of whether a duty of fairness exists to put to an applicant the RRTs concerns about the authenticity of documents. 37 In the present case even if it be correct that the documents evidencing the warrants and the RRTs concerns about their genuineness was central to the appellant's claim, the learned Federal Magistrate found that there was no evidence that those issues were not raised by the RRT with the appellant; NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]; cf Minister for Immigration, Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [121] - [122]. 38 In any event the Minister's solicitors have referred me to an extract from the transcript of the RRT hearing tapes. The evidence was contained in affidavit of Ms Curtis, which was not put before the Federal Magistrate, but which was contained in the appeal papers. 39 I will set out the relevant passage which appears on p 5 of the affidavit of Ms Curtis, because that seems to me to establish that the issue was taken up with the appellant. Thus if this be a critical factor in the Tribunal's reasoning within the principles stated by Mason J in Kioa v West (1985)159 CLR 550, it seems to me that the RRT complied with the natural justice hearing rule referred to in authorities such as Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. 40 The relevant portions of the transcript are as follows :- "TRIBUNAL MEMBER: I would have to see that warrant before I could comment on it, I would have to take into account the fact that its been issued after you left India rather than while you were still there and I'd also have to consider the authenticity of the document given that I'm aware it's not difficult to forge documents of this kind in India based again on the advice that foreign affairs and trade has given [pause] APPLICANT: Yes sir I'll bring those [pause] and you can see that TRIBUNAL MEMBER: Well in the interests of fairness I should give you the opportunity to provide it given you say that you sent it to your adviser and it hasn't been forwarded to either the department or the tribunal but as I say I have to consider it against the sorts of doubts I might have regarding its authenticity but I would still want to give you the opportunity to send it to the tribunal. APPLICANT: I'll bring it and give it to you TRIBUNAL MEMBER: Well if you have any problems in that period of time you should let the Tribunal know because as I say I won't make a decision before 20 working days but if I don't hear from you I'll go on to make a decision. APPLICANT: Yes" 41 It follows in my view that notwithstanding the short delay in filing the notice of appeal there are no prospects of success on an appeal which would be bound to fail. In my opinion neither the decision of the RRT nor the decision of the Federal Magistrate are attended by sufficient doubt for me to exercise my discretion to grant an extension of time. 42 Accordingly the orders that I will make are that the application be dismissed with costs.

I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Applicant: The applicant appeared in person

Federal Court Act 1976(Cth)

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