SZHFX v Minister for Immigration and Citizenship

Federal Court of Australia|2008-03-18|Before: McKerracher J

The application for extension of time to file and serve a notice of appealbe granted. 2. Counsel to be heard on the question of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2033 OF 2007

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appealagainst a decision of aFederal Magistrate(Scarlett FM)made on 17 September 2007 (SZHFX & Ors v Minister for Immigration & Anor [2007] FMCA 1575). The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 10 August 2005 and handed down on 1 September 2005. 2 The applicants are a mother and her three non-adult sons. They are citizens of Bangladesh. The first applicant is married and her husband is currently in Bangladesh. 3 On 27 August 2004 the applicants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs (as it was then known). The first and second applicants (namely the applicant mother and her eldest son) applied as applicants with their own individual claims. A delegate of the first respondent refused the application for protection visas on 20 October 2004. On 15 November 2004 the applicants applied to the Tribunal for a review of that decision. 4 The application for protection visas was based on the threats to the applicants' family from a terrorist known as Mr Kala Jahangir, whom the first applicant claimed was a notorious local leader of the Bangladesh National Party (BNP) who had protection by the authorities. The first applicant claimed her husband is a long-term member of the BNP in their local area in Bangladesh and although he was not a 'big leader', he was well-known in his local area for his activities with the BNP. Submissions from the applicants' representative to the Tribunal indicated that factionalism within the BNP was a very serious problem. The first applicant indicated that her husband ran two businesses and had difficulties setting up business due to insecurities regarding Mr Jahangir. 5 The first applicant claimed that in April 2004, her husband received a telephone call from Mr Jahangir demanding and threatening that the first applicant and her husband bring a specified amount of money to him or their eldest son would be kidnapped. The first applicant's husband sought advice from certain authorities and as a result did not send any money. Instead the applicants requested the second applicant's uncle in Australia enrol him in a school in Sydney. The first applicant and her children obtained visas to Australia. The applicants arrived in Australia on 30 July 2004. 6 On 21 August 2004, the first applicant's husband informed her that many people were killed and injured during public meetings organised by the opposition party at that time. He explained that the situation in Bangladesh was extremely bad. The first applicant also gave evidence that her husband telephoned from Bangladesh and told her that a bomb (later removed) had been placed at the higher secondary school in which their eldest son was a student.

TRIBUNAL'S DECISION 7 The Tribunal considered various documents submitted by the applicants but gave them little weight. It purportedly found there was no reliable evidence of the kidnap threat having taken place. It noted the first applicant's husband 'has been silent throughout this whole process' and indicated he had given limited evidence. The Tribunal found 'the Applicant's account of the alleged threat from Kala Jahangir on her family lacks credibility'. The Tribunal was confident the applicants improvised the 'kidnap' story. It noted Mr Jahangir did not take action against the family. It was also unimpressed with the reasons why the first applicant's husband did not go to the police. 8 The Tribunal did not accept the first applicant's family was the target of a kidnap threat. The Tribunal also noted that if it were to have accepted the kidnap threat at face value, it would not have found a Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention) reason. It accepted the first applicant's husband was a local member of the BNP, but did not accept that membership should be of concern in the present matter.

FEDERAL MAGISTRATE'S DECISION 9 Before the Federal Magistrate, the applicants challenged the decision of the Tribunal on the basis of breaches of s 424A of the Migration Act 1958 (Cth) (the Act). Particulars of the information relevant to that ground and not provided to the applicants were said to be as follows: 1. Information relating to "the cunning and ruthless behaviour attributed to…" Kala Jahangir by "independent reports"; 2. Information "…located by the Tribunal after an extensive Google search of news media sites and commentary pages, [that] did not support a position to the effect that Jahangir had been aligned with the ruling faction of the BNP". Counsel for the applicants argued before his Honour that the information utilised by the Tribunal in its decision went beyond that which was disclosed in the s 424A letter. The s 424A letter of 24 May 2005 to the applicants' solicitors was relevantly in these terms: The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The first items of information are as follows: The Tribunal found a report to the effect that Jahangir was convicted in May 2003 of the August 2000 murder of a local BNP leader, Advocate Habibur Rahman Mondal, (http://www.weeklyholiday.net/300503/last.html). He was convicted during the current BNP government, which was elected in October 2001. Another report observes that the Awami League leader Sheikh Hassina has been alleging "the BNP-Jamaat alliance government has been patronizing the terrorist groups including that led by notorious criminal (sic) like Kala Jahangir to carry out its elimination drive against Awami League's stalwarts" ("Coastal land grabbing blamed on men blessed by BNP bigwigs, "Awami League website, Thursday, 19 May 2005. (http://www.albd.org/news/2005/05/19/19_1.html) This information is relevant because: The evidence before the Tribunal to date does not seem to support a position to the effect that Jahangir is under the protection of powerful persons in the BNP, as he has been convicted during the government of the BNP. (emphasis added) 10 The Federal Magistrate in summarising the Tribunal's conclusions said at [23]-[26]: 23. The Tribunal also noted that the First Applicant's son was not kidnapped nor was any ransom ever paid, and found that there was no reliable evidence of the kidnap threat having taken place. 24. The Tribunal stated: Even if one accepts that, sometimes in Bangladesh, ransoms are sought in connection with merely threatened harm, and even if one accepts that Kala Jahangir and people working for him have been involved in such ventures, the Tribunal finds that the Applicant's account of the alleged threat from Kala Jahangir on her family lacks credibility. The behaviour the Applicant attributed to Kala Jahangir in her claims does not closely, or otherwise convincingly, resemble the cunning and ruthless behaviour attributed to him in independent reports… The Tribunal is confident on the evidence before it that the real improvisation has been the Applicant's improvisation (with or without the help of others) of the whole 'kidnap' story. 25. The Tribunal did not accept the Applicants' claim that the police and the BNP government were all working for or with Kala Jahangir, finding that: The independent evidence about campaigns against Jahangir and other gangsters negates that position very strongly. The Tribunal finds that the Applicant's claims about the lack of rule of law in Bangladesh are grossly exaggerated, particularly in relation to the kind of problem she claims she and her family faced there. The Tribunal does not accept that the Applicant's family was the target of a kidnap threat, let alone from Kala Jahangir. 26. In summary, the Tribunal was not satisfied that the Applicants faced a real chance of Convention-related persecution in Bangladesh and found that their claimed fear of persecution was not well-founded. The Tribunal found that the Applicants were not refugees and affirmed the delegate's decision not to grant protection visas to the Applicants. (footnotes omitted) 11 His Honour took the view that there were two reasons the Tribunal was not satisfied the applicants were the target of a kidnapping threat. The first was the absence of evidence from the first applicant's husband. The second was the first applicant's own account of the alleged threats. His Honour referred to the following passage of the Tribunal's decision: The behaviour the Applicant attributed to Kala Jahangir in her claims does not closely, or otherwise convincingly, resemble the cunning and ruthless behaviour attributed to him in independent reports. In the Applicant's account, Jahangir did not use any agents or intermediaries but made the telephone calls himself. More odd than that, though, he set no deadline for the payment of the money he was demanding. Bearing in mind the claimed circumstances, he somewhat illogically went into some detail in his telephone call as to where he wanted the ransom money to be left, but did not say when he wanted it left there. He personally provided his intended targets with enough information to allow them to advise the police where to set up covert surveillance (of the kind that has probably led to the arrest of other extortionists, mentioned in independent material provided by the Applicant). Then, just a few days later, Jahangir reduced the ransom by 90% for no apparent reason. He specified the harm he was threatening to perpetrate so that the intended victims could take evasive action, pulling the child out of school. According to the Applicant's evidence, he behaved throughout the whole affair like an amateur, or at least as though he was improvising the plot as he went along. (citations removed) 12 Further, his Honour was of the view that as the information regarding Mr Jahangir being convicted of murder during the time the BNP was in power was set out in the letter pursuant to s 424A of the Act and any information casting doubt on the applicants' evidence was also set out in that letter. There was no breach of s 424A of the Act according to his Honour and he dismissed the application.

EXTENSION OF TIME 13 In the application before this Court the first applicant filed an affidavit on 11 October 2007 in which she confirms she was informed the filing fee for an appeal to the Federal Court was $1469.00 but was not able to obtain such amount by 8 October 2007. The first applicant stated she advised her solicitor of her situation on 9 October 2007. 14 The draft notice of appeal asserts the Federal Magistrate erred in finding there was no breach of s 424A of the Act in relation to: 1. Information relating to "the cunning and ruthless behaviour attributed to…" Kala Jahangir by "independent reports"; 2. Information "…located by the Tribunal after an extensive Google search of news media sites and commentary pages, [that] did not support a position to the effect that Jahangir had been aligned with the ruling faction of the BNP". 15 The submissions for the applicants on this application were essentially the same as those advanced before the Federal Magistrate, namely: The Tribunal rejected the Applicants' claims because: a) it did not accept that the kidnap threat took place, and it was influenced by the independent reports about Kala Jahangir; and b) it did not consider that the kidnap threat, if it occurred, was Convention related, which relates back to the Tribunal's 'extensive Google search of news media sites and commentary pages' relating to Kala Jahangir's motives and allegiances. The information utilized by the Tribunal goes beyond that which was disclosed in the Tribunal's s.424A letter at pages 393 and 394 of the Court Book. s.424A of the Migration Act requires that particulars of information personal to the Applicant or another person must be disclosed to the Applicant in writing if that information is the reason or part of the reason for affirming the decision under review. The Full Court of the Federal Court held in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs that this disclosure must be made where the information is part of the reason for the affirmation. The information sourced by the Tribunal about Kala Jahangir was information that fits squarely within s.424A. It was information that was a part of the reason for affirming the decision under review, and it was personal to a particular person, Kala Jahangir. Particulars of that information should have been disclosed to the Applicant in writing and the Tribunal's failure to do so amounted to jurisdictional error. 16 It is common ground that s 424A of the Act requires that particulars of information personal to the applicant or another person must be disclosed to an applicant in writing if that information is the reason or a part of the reason for affirming the decision under review (emphasis added). In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 215 the Full Court held that such a disclosure must be made where the information concerned is only part of the reason for such affirmation. The first applicant argues that the failure to disclose the content of the independent reports on the behaviour of Kala Jahangir and the detail and the extensive searches relating to Kala Jahangir motives and allegiances was not disclosed in accordance with s 424A thus amounting to jurisdictional error.

SPECIAL REASONS 17 Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the FC Act) provides that the Court has jurisdiction to hear appeals from judgments of the Federal Magistrates Court and by s 25(2)(b) of the FC Act, applications for an extension of time to institute an appeal may be heard and determined by a Single Judge or by a Full Court. 18 By O 52 of the Federal Court Rules (the FC Rules), the manner in which appeals are to be brought before the Court is regulated. Pursuant to O 52 r 15(1)(a)(i) a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. However, O 52 r 15(2) provides that a judge may for special reasons and at any time give leave to file and serve a notice of appeal. The expression 'at any time' clearly refers to notices of appeal which are filed outside the 21 day period. 19 The expression 'Special reasons' has received a deal of attention. In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 considerations to which the Court should have regard were said to include the length of delay involved in filing a notice of appeal, whether the respondent will suffer prejudice by reason of the delay and finally the nature of the injustice to the applicant if the applicant is denied the right to appeal. In considering the question of injustice, the question may arise as to the strength of the appeal. Little injustice may be occasioned if an appeal were hopeless. 20 I am mindful that in Jess v Scott (1986) 12 FCR 187, the Court observed that: It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 21 The delay in filing the notice of appeal in the present circumstances was brief (three days). Furthermore, it was explained on the basis that the first applicant did not have sufficient funds to pay the filing fee for the notice of appeal. 22 The short delay and the reasons for it support the grant of an extension of time within which to file the notice of appeal. Equally, any significant prejudice to the first respondent is by no means self-evident. That, therefore, is a further reason in support of the grant of an extension of time.

Merits 23 The real question, however, in this application and the reason for reserving it is to consider the prospective merits of an appeal if leave is granted either as formally articulated or as might otherwise be discerned within the framework of the draft notice of appeal as it was prepared and filed. 24 A question arises as to the extent to which it is necessary to satisfy the Court as to the prospects of success on the appeal. Before me counsel for both parties took the view that the Court should be satisfied that an appeal had reasonable prospects of success. 25 As to the prospects on appeal, in Howard v Australian Electoral Commission [2000] FCA 1767 it was held that: factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima face strength of the proposed ground of appeal. In that case leave to appeal out of time was refused for those reasons with significant focus on the low prospects of success. 26 In the exercise of any judicial discretion, which is required by statute or rules to be exercised, an important consideration as to the course to take will be determining which course attracts the least risk of doing an injustice. In the present circumstances, when considering the merits of the proposed appeal, it is important also to consider the risks of doing an injustice. If other factors favour the granting of the relief sought, the fact that the appeal might not ultimately succeed but nevertheless is reasonably arguable should not stand in the way of granting relief. In Ally v Minister for Immigration and Citizenship [2007] FCA 1373 it was said that 'the fact that an appeal is unlikely to succeed is a different question from whether an appeal has any prospect of success or is arguable'. At [41] - [45], Spender J said: The respondent submits: The sole basis for the respondent's opposition to the application is that, in the respondent's submission, the proposed appeal does not have sufficient prospects to justify the Court's discretion being exercised in the applicant's favour. It was submitted, in short, that the proposed appeal would be bound to fail. The fact that an appeal is unlikely to succeed is a different question from whether an appeal has any prospect of success or is arguable. Consistent with the judgment of the Full Court in Jess v Scott (1986) 12 FCR 187, I am satisfied that there are special reasons for granting leave to appeal in the present case. I am not to be taken from the observations set out earlier that there are strong grounds for thinking that the proposed appeal will be successful. However, the unusual factual circumstances of this case and the detailed analysis by Smith FM to the proper use of later facts in respect of the factual question to be determined at an earlier time, persuade me that the appeal is not "doomed to fail". Technical default as to filing within time should not be an unscaleable hurdle where possible injustice might result in the absence of the grant of leave. 27 The consequences of refusing relief in a case of this nature may be relatively significant and perhaps, arguably, more significant than a commercial case where money or property is at stake. If there is a reasonable possibility that there might be a miscarriage of justice if leave is not granted, that in my view would be a significant reason to grant leave (cf Parker v The Queen [2002] FCAFC 133). 28 In this matter the first respondent submits that the Tribunal did not breach s 424A of the Act as the information on which the Tribunal relied was either given by the applicants to the Tribunal for the purposes of the application or alternatively it was discernible from the content of the s 424A letter dated 24 May 2005. 29 The applicants, on the other hand, contend that the descriptions or the information about a particular person given in the letter were of such a general nature that the disclosure was quite inadequate. 30 In my opinion the ground of appeal which the applicants would advance is not as hopeless as the first respondent would contend but equally it is probably not as favourable as the applicants would contend. For the purposes of exercising discretion as to whether or not to grant the relief to extend time in which to lodge the appeal, in my opinion, the case is sufficiently arguable to exercise that discretion. 31 Accordingly leave will be granted in terms of the application and I will hear counsel on the question of costs.

CONCLUSION 32 Accordingly, I order theapplication for extension of time to file and serve a notice of appealbe granted. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Solicitor for the Applicants: Parish Patience Immigration Lawyers

Federal Court of Australia Act 1976(Cth)ss 24(1)(d), 25(2)(b)

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