SZIHA v Minister for Immigration and Citizenship

THE SECOND TRIBUNAL'S DECISION 4 The applicant claimed to have well-founded fear of persecution resulting from his political opinion and religion. The applicant claimed that he was a member of the religious Akali-Dal (Badal) party ('the Akali-Dal party'), which opposes the ruling Congress Party. He claimed that during a protest march in late 2003 or early 2004 the police arrested him and many other protesters. He claimed that he was tortured and beaten by police in gaol daily for fourteen days. After his release he claimed that the police continued to harass him. He claimed that such harassment forced him to leave his home and move to other locations across India. He claimed that he returned to his home some time later and was again arrested by the police and taken to gaol where he was again tortured. After his release he claimed to have been badly injured. He claimed that he fled to New Delhi and then to Australia. 5 The Tribunal was not satisfied that the applicant was a credible witness. The Tribunal found that the applicant's evidence regarding his involvement with the Akali-Dal Party and regarding his first arrest was imprecise and inconsistent. The Tribunal also found that the applicant's return trip to India prior to coming to Australia was not indicative of a person who feared persecution on his return to India.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE 6 On 5 January 2007 the applicant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. In an amended application filed on 12 June 2007 the applicant asserted that the Tribunal failed to observe procedures in the Migration Act 1958 (Cth) ('the Act') and Migration Regulations 1994 (Cth), and that its decision was an improper exercise of power. 7 In his decision dated 22 June 2007 Federal Magistrate Driver found no substance in the grounds listed in the applicant's amended application. His Honour found that the Tribunal had properly considered the claims of the applicant and that the applicant had failed to demonstrate an arguable case of jurisdictional error in relation to its decision. The Federal Magistrate accordingly found that the amended application raised no arguable case and it was dismissed under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) ('the Rules').

LEAVE TO APPEAL 8 Pursuant to O 52 r 15(1) of the Federal Court Rules, a notice of appeal from the decision of Federal Magistrate Driver must have been filed and served by 13 July 2007. However under O 52 r 15(2) of the Federal Court Rules, the Court may for 'special reasons' grant leave to file and serve a notice of appeal at any time. On 9 July 2007 the applicant filed an application in this Court for leave to appeal out of time from the decision of Driver FM under O 52 r 15(2) of the Federal Court Rules. The applicant has referred to O 52 r 5(2) of the Federal Court Rules which has no application. 9 However the Court notes that r 44.12(2) of the Rules provides that a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is to be treated as an interlocutory decision. As such, the decision of Driver FM was interlocutory. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') provides that no appeal lies to the Federal Court of Australia from an interlocutory judgment unless the Court or a Judge gives leave to appeal. 10 Accordingly, the applicant requires leave of this Court pursuant to s 24(1A) of the Federal Court Act in order to appeal from the decision of Driver FM, as well as leave of this Court to file and serve a Notice of Appeal out of time. As such the applicant in this case must obtain the leave of the Court twice in order to proceed with any Notice of Appeal. 11 No application has been made to this Court seeking leave to appeal from the interlocutory judgment of Driver FM. The application before this Court only concerns the applicant's application under O 52 r 15(2) of the Federal Court Rules to file and serve a Notice of Appeal out of time which is futile in the absence of a grant of leave pursuant to s 24(1A) of the Federal Court Act. Accordingly, the current application, even if successful, will not assist the applicant. However the Court will nevertheless consider the grounds relied upon. 12 'Special reasons' must be shown to justify this Court granting an extension of time to the applicant pursuant to O 52 r 15(2) of the Federal Court Rules. Such words have been considered by the Full Court in Jess v Scott (1986) 12 FCR 187 where the Full Court said at 195: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. In considering whether 'special reasons' exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Parker v The Queen [2002] FCAFC 133; Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349.

13 Although '[t]he object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice' (Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 per McInerney J at 262-3, quoted by the Full Court with approval in Jess v Scott (1986) 70 ALR 185 at 191), if the Court formed the opinion that 'there are no prospects of success on the foreshadowed appeal' (Savage v Cranstoun (Trustee) [2001] FCA 1789 at [22]) the Court will not grant leave: see also Jeffers v R [1993] 112 ALR 85 at 86. Accordingly, the merits of the substantial application are determinative as to whether or not there exist 'special reasons' to grant leave to the applicant to file the Notice of Appeal out of time.

APPLICANT'S SUBMISSIONS 14 The applicant has provided an affidavit sworn on 9 July 2007 which attaches a draft Notice of Appeal. The affidavit states: I was not provided an opportunity to file an additional Affidavit in support of my Application to Review, before the Federal Magistrates Court and previous Affidavit was considered.

15 The affidavit also states that the applicant does not have any legal representation and that he is acting for himself. 16 The draft Notice of Appeal does not contain consecutive numbers in relation to the grounds sought to be raised. Accordingly the Court will make its findings based upon the sequential list rather than the numbered equivalent. The grounds of appeal assert that:

1. Driver FM did not observe procedures that were required by the Act or Regulations to be observed in connection with the making of the decision;
2. The applicant was not provided an opportunity to file additional evidence;
3. The applicant's evidence 'was not trusted or believed' by the Tribunal in relation to his claims of persecution;
4. Driver FM considered irrelevant facts;
5. Driver FM did not consider the contents of the affidavit filed by the applicant on 5 January 2007 or the documents submitted in support of his application;
6. The Tribunal did not consider the documents submitted before it;
7. Driver FM did not consider that the Tribunal had erred;
8. The decision was not authorised by the Act or Regulations;
9. The decision constituted an improper exercise of the power conferred by the Act or Regulations;
10. The decision involved an error of law 'being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts';
11. There was no evidence or other material to justify the making of the decision. 17 The applicant filed a Statement of Particulars on 5 February 2008. The particulars also suggest additional grounds of appeal. This Court will only consider the grounds foreshadowed in the draft Notice of Appeal.

FINDINGS 18 Grounds one, four and seven challenge the conduct and findings of Federal Magistrate Driver. The particulars provided by the applicant in respect of these grounds challenge the factual findings of the Tribunal rather than support the draft grounds of appeal. In the absence of any coherent particulars and having considered the decision of Driver FM, it is impossible to discern any arguable basis of error in the Federal Magistrate's decision. As to ground five, contrary to the applicant's claim, Driver FM specifically addressed the applicant's affidavit sworn on 5 July 2007 in paragraph [8]. 19 Grounds three and six challenge the conduct and findings of the Tribunal. The Tribunal was entitled to form its own view as to the credibility of the applicant. Further, it is not apparent from the Tribunal's decision that it ignored any documentation provided to it. The Tribunal's judgment shows that the documents provided to it by the applicant were considered, but no weight was given to them. Additionally, such ground was not raised before Driver FM. 20 Grounds two, eight, nine, ten and eleven are insufficiently precise to constitute valid grounds of appeal. Insofar as the challenges are made to 'the decision', it is impossible to discern whether the applicant is referring to the decision of the Tribunal or to the decision of the Federal Magistrate. The Court has read the decisions of both the Tribunal and Driver FM and there is no patent error of fact, law or procedure as alleged by the applicant. 21 The applicant's statement of particulars does not assist the Court in clarifying the grounds sought to be relied upon in the draft Notice of Appeal. It is apparent from the Statement of Particulars that challenges are made to factual findings of the Tribunal. This Court is not able to consider such allegations: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. 22 The applicant has been unable to demonstrate any prospect of success based on the provided draft Notice of Appeal. As such, applying the test in Savage v Cranstoun (Trustee) [2001] FCA 1789, no 'special reasons' exist to warrant this Court granting leave for an extension of time for the applicant to file and serve a Notice of Appeal pursuant to O 52 r 15(2) of the Federal Court Rules. Accordingly the application is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Applicant: The Applicant appeared in person