SZFTV v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before me is an application for an extension of time within which to file and serve a Notice of Appeal from a decision of a Federal Magistrate delivered on 18 October 2005 (SZFTV v Minister for Immigration & Anor [2005] FMCA 1533). In that decision, the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 29 June 2004 and delivered on 30 June 2004. The Tribunal had affirmed a decision of a delegate of the Minister of the relevant Commonwealth Department which was then called the Department of Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of Egypt who arrived in Australia on 17 July 2003. On 5 September 2003 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister of that Department refused the application for a protection visa on 14 November 2003. On 15 December 2003 the applicant applied to the Tribunal for a review of that decision. 3 Before the Tribunal, the applicant claimed to have a well-founded fear of persecution due to his Coptic Christianity and, more specifically, because of an accusation levelled against him that he had eloped with the wife of a Muslim man. The applicant alleged that he had fallen in love with the woman, whom I shall call S, a Copt, but that she had been forced to marry the Muslim man, whom I shall call K. The applicant was later told that S had been raped. 4 The applicant obtained her address and attended the address several times but was told by K to leave. The applicant alleged that, after S subsequently disappeared, he was accused by K, K's father and local sheiks of sheltering her and was told by them that this was a punishable offence under Islamic law. He claimed that he and his father were threatened by fundamentalists on several occasions and that he was later told that he would be attacked unless he revealed the woman's whereabouts. He left his home and went to live with his cousins before leaving Egypt for Australia. 5 The Tribunal accepted that the applicant may have been in love with S as alleged and that S's marriage to K might have occurred under some pressure. However, the Tribunal did not accept that the forced marriage was attributable to K sexually assaulting S, as the alleged source of this accusation was a man whom the applicant had met at the mosque. That person had been only vaguely identified by the applicant. 6 The Tribunal did not accept that the applicant had ever been seriously harmed in the past in the sense discussed in s 91R(1) of the Migration Act 1958 (Cth) ("the Act") and did not accept that Egyptian secular law would be unable to provide protections against sentences imposed under Islamic law. It further noted the efficacy of the Egyptian judicial system and the existence of constitutional protections. For these reasons, the Tribunal was not satisfied that the applicant held a well-founded fear of Convention-related persecution in Egypt. 7 Before the Federal Magistrate, the applicant claimed that: (1) The Tribunal misinterpreted the definition of "persecution" in s 91R of the Act and, as a result, asked itself the wrong question in determining whether Australia had protection obligations vis-à-vis the applicant. (2) The Tribunal disregarded or did not consider documentary evidence specifically relating to the applicant's claims. (3) The Tribunal failed to consider relevant country information submitted by the applicant. (4) The Tribunal was not satisfied that rape or attempted rape actually occurred. 8 In making the above findings which were challenged by the applicant, the Tribunal disregarded all other evidence, so it was said, rather than assessing all of the relevant facts on the balance of probabilities. 9 As to the first of the above grounds, the Federal Magistrate found that the Tribunal had carefully considered the definition of "persecution" as set out in s 91R of the Act and made specific findings on the basis of the evidence before it. Her Honour noted that the Tribunal found no evidence of past harm of the type contemplated by s 91R(2) of the Act and that the Tribunal had also considered whether the suspected kidnapping of S could have led to a consequence of serious harm to the applicant, finding that it did not. Her Honour was satisfied that the Tribunal's findings of fact in these respects were open to it. 10 As far as the second ground is concerned, the applicant referred to a document noted as Exhibit 1A, which had not been before the Tribunal and which contains letters allegedly demonstrating that the applicant had been summoned to attend three separate investigation hearings before Egyptian police in relation to S's disappearance. The Federal Magistrate noted that the Tribunal had accepted that the applicant had been ordered to attend an investigation hearing and had considered whether this would amount to Convention-related persecution, finding that it did not. 11 The Federal Magistrate then considered the third ground. Her Honour found that the Tribunal clearly considered the country information submitted by the applicant post-hearing as well as other independent country information. Her Honour held, in accordance with NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, that the Tribunal had a discretion to determine what country information it had regard to. Her Honour was satisfied that it was open to the Tribunal to base its opinion on one particular piece of country information, in this case information suggesting that the protections were available in secular law remedies. 12 The learned Federal Magistrate dismissed the fourth ground on the basis that it amounted to a challenge to the fact finding of the Tribunal and thus constituted no more than an impermissible request for a merits review. 13 The application for an extension of time in which to file and serve a Notice of Appeal was filed in this Court on 29 July 2008. This is almost three years after the learned Federal Magistrate handed down her decision. As I have already observed, her Honour's decision was delivered on 18 October 2005. 14 In support of his application, the applicant has filed an affidavit, written out in his own hand, to which are attached various pages from the Court Book and a draft Notice of Appeal. Paragraphs 2 to 8 of that affidavit are in the following terms: "2. I am the spouse of [name] both declared husband and wife on 21-4-06. 3. I now understand that the Federal Magistrate Court dismissed my application reference SYG 502/2005. 4. I was asked by the Dept of Immigration to depart Australia and such action traumatized my wife and myself. 5. My community volunteer wrote to Hon Minister and the Officer of Ministerial Intervention Unit did not refer his letter to the Minister. 6. Based on the latest decision by their Honours Moore, Marshall & Lander JJ dated 3-7-08 I ask the Federal Court of Australia to accept my current review as I have ground to succeed. 7. I attach copies of the Court Book pages 42, 45, 46, 47, 49 and implore the Honourable Court to deal with my matter according to the decision of the Full Court NSD1936/2007. 8. Again and again I implore the Hon Court to accept my Review." 15 The draft Grounds of Appeal attached to this affidavit contained one ground of appeal only, namely: "The Refugee Review Tribunal failed to notify the authorized recipient as required by S.441G (Court Book FM pages 42, 45, 47, 49, 51 & 64)." 16 I note that the applicant informed me that the Department's request referred to in par 4 of his affidavit was made in 2008. The alleged trauma caused by that request is not and could not be advanced by the applicant as a reason for his delay in making the application which is before me today. 17 There is a reference in the applicant's affidavit in support of his application to a decision of the Full Court of this Court comprising Moore, Marshall and Lander JJ dated 3 July 2008. I thought that the applicant's reference was a reference to the decision of SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122, (2008) 102 ALD 541. My assumption has now been confirmed because the applicant has referred to that decision during the course of his oral submissions. 18 The Full Court in SZIZO [2008] FCAFC 122, 102 ALD 541 held that the failure by the Tribunal to provide certain documents to the authorised recipient in the circumstances of that case resulted in jurisdictional error on the part of the Tribunal. 19 Section 441G(1)(b) of the Act requires that if there is an authorised recipient notified to the Tribunal, it is to that person, instead of the applicant, that the Tribunal must give any document that it would otherwise have given to the applicant. The expression "give ... a document" is given meaning by s 494B of the Act. 20 In the present case, as I understand the applicant's submission, it is the applicant's contention that: (1) There was an authorised recipient within the meaning of s 441G of the Act who had been authorised by him in late 2003 and 2004 and to whom relevant communications should have been sent; (2) Certain documents (being those identified in the affidavit filed in support of this application) were not sent to that authorised recipient but rather were sent to the applicant himself; and (3) Accordingly, there had been a breach by the Tribunal of s 441G(1)(b). 21 The pages to which the applicant has referred in support of that position established that in his Application for Review dated 15 December 2003, the applicant authorised a migration agent, Ms Therese Nicolas, to be his authorised recipient. Those pages also establish that a letter dated 17 December 2003 was sent to two persons with the primary addressee at the top of the letter being the applicant by name but the address in that place being the address of the migration agent nominated by him (Ms Nicolas). It is clear also that the letter appears to have been sent to the migration agent herself, at the same address. The notation that indicates that this occurred is a notation at the foot of the letter. 22 A further letter addressed in similar fashion was sent on 11 March 2004. 23 The first of these letters was an introductory letter informing the applicant of the steps that would be undertaken by the Tribunal and what steps he would need to take in light of the filing of his Application for Review. The second was inviting him to come to a hearing which was nominated in the letter for 7 May 2004. It is clear that the applicant attended that hearing. The fact that the applicant attended the hearing is clear from the Tribunal's Reasons but also is evidenced by the Response to Hearing Invitation signed by the applicant personally on 20 April 2004. 24 The letter dated 10 June 2004 referred to by the applicant in his affidavit in support of this application was addressed to him at his home address at the top of the letter with a notation at the foot of the letter indicating that it was also sent to the migration agent at the relevant address nominated by the applicant and by her. 25 There is no evidence, nor indeed, any suggestion to the effect that the migration agent did not receive the letters dated 17 December 2003, 11 March 2004 and 10 June 2004 referred to above. 26 The applicant has suggested, from the Bar table, that he did not receive some notifications, but that suggestion has not been made previously and is not supported by any evidence. 27 It is clear from the material in the Court Book that the applicant did have a fair opportunity to present his case to the Tribunal and to the Federal Magistrate. 28 The question, on this application, is whether the applicant has an appeal which has sufficient merit when considered in conjunction with any explanation proffered by him for the delay in filing the Application presently before me to justify making the orders sought. 29 I will first consider the prospects of the one ground of appeal relied upon in the draft Notice of Appeal. The question is: Were the letters, to which reference was made, "given to the authorised recipient" within the meaning of s 441G(1)(b) and, if not, whether there is any likelihood that the Court would grant relief based upon that circumstance. The letters relied upon were not addressed at the top of the letter to the authorised recipient, but they were in fact sent to the authorised recipient with the following note at the foot of the letter: "Sent to: Therese Nicolas V T Migration 87 Gibson Avenue PADSTOW NSW 2211" 30 In my view the point is really not arguable. The letters, whilst bearing an inappropriate set of details at the top of the letter in each case having regard to the authority which had been signed, were nonetheless sent to the authorised recipient and addressed as such at the foot of each of the letters. This is not a case of the letters never having been sent to the authorised recipient nor is it a case of the letters not bearing that person's name and address as an addressee (albeit not at the top of the letter but at the foot thereof). Can there be more than one addressee and, if so, was the authorised recipient an addressee named as such on the letter? I think that the better view is that she was an addressee named as such on the letter. For present purposes, however, I am prepared to move on and consider discretionary matters in light of the fact that the point raised by the applicant might be arguable. 31 The question for any court considering this appeal, in light of the facts, would be whether or not any prejudice or unfairness had been visited upon the applicant by reason of the way in which these letters were addressed. As I have already said, the applicant attended the hearing and clearly became aware of the decisions made in 2004. The point now raised was not raised before the learned Federal Magistrate. 32 It seems to me that there is nothing to be said in favour of the proposition that the applicant has suffered any practical injustice or inconvenience on account of what has occurred in terms of the way in which these letters were addressed. The applicant's prospects of successfully obtaining relief were I to grant an extension of time within which to appeal are in my view extremely weak. 33 I turn now to consider the question of delay and whether or not there has been any explanation or satisfactory explanation as to why this application and the appeal itself were not lodged a long time ago. 34 Order 52 r 15(1) of the Federal Court Rules requires that the time within which a Notice of Appeal is to be filed is 21 days from the date of judgment. When one has regard to the time provisions of the Rules of Court, the Notice of Appeal in the present case should have been filed on or before 8 November 2005. As I have already said, the Application for an Extension of Time was not filed until 29 July 2008. The time which has elapsed between the date when the decision of the Federal Magistrate was delivered and the time when the present application was made is thus almost three years. 35 Order 52 r 15(2) is in the following terms: "Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." 36 Sub-rule (3) of the same rule sets out the requirements that must be fulfilled in such an application. 37 The applicant has not explained the delay. The applicant has not really tried to explain the delay. There are hints in the oral submissions put to me today that he has been pursuing various administrative avenues for a merits review of the decisions made in respect of his status and that he has now exhausted these avenues. If that is the reason offered for the delay it is not a satisfactory reason. 38 In Jess v Scott (1986) 12 FCR 187 a Full Court of this Court held that, when exercising the discretion which I am called upon to exercise in respect of this matter under O 52 r 15(2), the longer the duration of the delay the more persuasive the purported "special reason" must be. In that case their Honours held (12 FCR 187 at 195) that: "It would require something very persuasive indeed to justify a grant of leave after, for example, a year;" 39 A "special reason" has been regarded by the Court as a circumstance which "takes the case out of the ordinary." (See Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, (2008) 101 ALD 211.) As I have already indicated, it seems to me that the applicant has not advanced any explanation for the inordinate delay in filing the present application let alone attempted to demonstrate by evidence and submission that there were special reasons applicable in the present case which justified an extension of the time within which he may lodge his Notice of Appeal. 40 It seems to me that I am also entitled to weigh in the balance the very weak nature of the proposed appeal which, as I have already indicated, is, at most, barely arguable. When I introduce that factor into the equation and weigh it up in light of the significant delay in the present case and the lack of explanation for that delay, I am compelled to conclude that the applicant has failed to make out the requirements that would justify an extension of time in the terms sought by him. 41 It really does seem to me that, over the last few years, the applicant has not been of the view that the learned Federal Magistrate's decision was wrong or even challengeable but rather that his interests were best served by pursuing administrative avenues which he considered were available to him. 42 For these reasons, I will dismiss the application 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 Foster.