SZHRZ v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from the orders of Smith FM given on 19 July 2006. The applicant initially filed a notice of appeal in this Court on 7 August 2006. However, based on advice he received at the time, he discontinued his appeal by filing a notice of discontinuance on 8 November 2006 and thereafter pursued alternative relief by making application to the first respondent ('the Minister') pursuant to s 417 of the Migration Act 1958 (Cth) ('the Act'). That application was refused on 29 May 2007. A second ministerial application was apparently made on 6 June 2007, but it was again refused on 25 October 2007. A third application was lodged around November 2007 and was again refused on 25 March 2008 although, apparently, the applicant only learned of this decision three weeks after it was made. He now seeks an extension of time in which to file and serve a notice of appeal from the orders made by Smith FM on 19 July 2006. 2 My review of the decision of the Refugee Review Tribunal ('the Tribunal') has led me to the view (contrary to the view reached by the learned federal magistrate) that it is arguable the decision is infected with jurisdictional error in terms of a breach of s 91R(3) of the Act. The Tribunal found, at 16 of its reasons, that: 3 'Fourthly, the applicant's behaviour once he arrived in Australia is not consistent with his claim to be [a] Hezb ut-Tahrir activist who has faced serious mistreatment for this reason. The applicant's evidence indicated that he did not approach the local Hezb ut‑Tahrir group until he had been in Australia for some two months and after he lodged his protection visa application. In my view, if the applicant had been a person committed to Hezb ut-Tahrir, he would have sought the fellowship of others associated with the party at the earliest opportunity. I do not consider that the applicant has advanced any convincing reason for his failure to make contact with the Hezb ut-Tahrir members when he first arrived in Australia. Overall, I do not accept that the applicant was associated with Hezb ut-Tahrir in Jordan.' 4 However, the Tribunal also found, at 18 of its reasons, that: 'I accept that the applicant has attended some Hezb ut-Tahrir gatherings in Australia. However, I do not accept that the applicant would become involved in the organisation if he returned to Jordan. I am not satisfied that his attendance at meetings in Australia gives rise to a well-founded fear of persecution for a Convention reason in Jordan and even if this were not so, section 91R(3) of the Act requires that the applicant's conduct in attending Hezb ut-Tahrir while in Australia be disregarded for the purposes of determining whether he has a well-founded fear of persecution for a Convention reason.' 5 It is therefore evident that the Tribunal both took into account his conduct in Australia and disregarded such conduct in determining whether he was a genuine Hezb ut-Tahrir activist. In SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, a Full Court of this Court observed at [24]: 'Decision makers are, subject to the proviso in paragraph (b), required to disregard "any" conduct in Australia by an applicant. The conduct is to be disregarded in determining "whether" an applicant has a well-founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3).' 6 The Full Court further observed at [27]: 'The Tribunal, however, when explaining its reasons for rejecting the appellant's claim to have been a Falun Gong practitioner in China relied, inter alia, on the appellant's "recent attempts to construct a profile of a Falun Gong practitioner for himself" as undermining the credibility of his claim to have practised Falun Gong in China. In the immediately following paragraph, the Tribunal makes the contradictory statement that it disregarded the appellant's Falun Gong related activities in Australia. Both statements cannot be correct. Having regard to the Tribunal's reasons as a whole, we think it more likely than not that the Tribunal did have regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. In doing so, the Tribunal contravened s 91R(3). It thereby made a jurisdictional error. This appeal should be allowed.' 7 It seems to me that the circumstances in SZJGV are substantially similar to those in the present case. Here, the Tribunal took into account the applicant's behaviour once he arrived in Australia and found that such behaviour was not consistent with his claim to be a Hezb ut‑Tahrir activist, while at the same time disregarding such conduct under subs 91R(3). As the Full Court noted in SZJGV, both statements cannot be correct. Counsel for the Minister conceded that my view of this issue was arguable, but that was the limit of her concession. There was certainly no acceptance by her, on behalf of the Minister, of jurisdictional error on the part of the Tribunal and that is to be compared with what was said by Graham J in SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [9]. 8 If this were the only consideration, then I might be disposed to exercise my discretion to grant the extension of time that is sought. However, I cannot overlook the following other relevant facts and circumstances. First, more than two years have elapsed since the time for filing and serving a notice of appeal expired. Second, the applicant actually discontinued the proceedings constituted by the filing of the first notice of appeal and pursued alternative relief in the form mentioned. The only inference one can draw from such conduct is that the applicant and those advising him accepted the correctness of the Tribunal's decision. Third, that he did so based on advice is not relevant unless it could be shown that those advising him were not acting in what they thought were his best interests. There is no suggestion that his advisers were not acting bona fide to this end. The fact that all ministerial applications have failed does not infect the bona fides of the advisers in this regard. Finally, it is only now, after all avenues of redress have been exhausted, that he seeks to re-agitate his appeal. 9 Not without some hesitation, I have come to the conclusion that I should not exercise my discretion to extend the time for the applicant to file and serve a notice of appeal from the orders made by Smith FM on 19 July 2006. The first order of the Court will be that the application be dismissed. The applicant will pay the respondent's costs of the application as agreed or to be taxed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.