SZIQP v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-27|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The applicant applies to this Court for an extension of time to file and serve a notice of appeal from the decision of Federal MagistrateRaphaeldelivered on 15 August 2007. The application before Raphael FM sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 21 March 2006.

BACKGROUND 2 The applicant is a citizen of Indiawho arrived in Australia on 16 September 2005. On 27 September 2005 the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') refused the application for a protection visa on 4 November 2005. On 21 November 2005 the applicant applied to the Tribunal for a review of the delegate's decision. 3 The applicant claimed to have well-founded fear of persecution resulting from his religious beliefs. He claimed that Hindus had targeted him because of his Islamic faith. The applicant claimed to have later rallied together with friends to stop 'racial disgrace', and that he was 'the important person in the group' of demonstrators. The applicant claimed that Hindus attacked, scolded and threatened the rally participants on 28 October 1999. 4 The applicant claimed that later in 1999 he and a friend were physically attacked by a group of six people. The applicant claimed that he identified his attackers to the police and that his evidence led to the conviction of a prominent Hindu person. The applicant claimed that he feared retributive harm from the Hindu community and Hindu organisations such as the Hindu Front and the Rashtriya Swayamsevak Sangh ('RSS'). He claimed that he was told that the Hindu Front and the RSS would not allow him to live peaceably. 5 The applicant arrived in Australia on 27 July 2005 but returned to India on 1 August 2005. He claimed that he returned to India because he missed his family. However his return to India was temporary as the applicant claimed that further threats compelled him once again to flee India. The applicant arrived in Australia on 16 September 2005.

THE TRIBUNAL'S DECISION 6 At the Tribunal hearing on 27 February 2006 the applicant appeared unrepresented and gave oral evidence with the assistance of a Tamil interpreter. At the hearing the applicant provided to the Tribunal his old and new passports and a photocopy of his father's pension details. 7 The Tribunalhad regard to the applicant's oral and written evidence and found that the evidence of the applicant was not credible. The Tribunal accepted he was a Muslim and that there had been religious conflict between Muslims and Hindus in India. However the Tribunal did not accept that the applicant had provided key evidence against a prominent Hindu person and that the applicant had consequently been the subject of ongoing threats. The Tribunal found that the applicant's evidence supporting his claim was 'most unconvincing'. 8 The Tribunal considered the applicant's passport which indicated that since the claimed events in 1999 he had made several return trips to India, including travelling to Malaysia and Singapore for business. The Tribunal found this travel history belied a genuine fear of serious harm on his return to India. It did not accept the applicant's claim that he had been subject to threats from Hindus and that he faced harm from them on his return to India. 9 In light of the above, the Tribunal was not satisfied that the applicant had well-founded fear of persecution for a Convention Relating to the Status of Refugees 1951 ('Convention')reason. The Tribunal accordingly affirmed the decision of the Minister's delegate.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE 10 By application filed on 7 April 2006 the applicant sought to review the Tribunal's decision in the Federal Magistrates Court of Australia. The applicant sought to rely on an amended application filed on 4 September 2006. The grounds relied on were as follows:

The Tribunal failed to find that the applicant satisfied the visa criteria;

The Tribunal failed to find that the applicant satisfied the four criteria in the Convention definition of a refugee;

The Tribunal failed to appreciate the nervousness of the applicant at the time of hearing and failed as a consequence to consider the matter on its merits;

The Tribunal failed to find that the applicant was an eyewitness to the second 1999 attack;

The Tribunal failed to find that the applicant's life was under threat as a consequence of the evidence he had given against the prominent Hindu person;

The Tribunal erred in finding that the applicant was not a credible witness;

The Tribunal failed to find that the applicant could not obtain state protection; and

The Tribunal erred in finding that the applicant's evidence was unconvincing.

11 Federal Magistrate Raphael considered the first two matters raised by the applicant and found that they did not point to any jurisdictional error in the Tribunal's decision. 12 In considering the third matter Raphael FM found there was nothing in the Tribunal's decision which suggested that it had concerns about the applicant's mental condition or that the applicant had indicated to it that he was nervous at the time of hearing. The Federal Magistrate also noted that a Tribunal is only able to consider a matter on its merits 'if it has some evidence to consider'. His Honour noted that in this case it was the absence of evidence provided that caused the Tribunal to make its findings concerning the applicant's credibility. Accordingly, the Tribunal could only determine the application for review upon the available evidence. 13 In relation to the fourth matter Raphael FM found that the Tribunal did not make a finding as to whether or not the applicant was an eye witness. However his Honour concluded that the finding of the Tribunal was immaterial as the fourth ground sought an impermissible merits review of its decision. The fifth, sixth and eighth grounds also sought to reverse findings of the Tribunal and his Honour found that the Court could not interfere with such findings. 14 In relation to the seventh matter Raphael FM found that the Tribunal did not address the issue of state protection because it had concluded that the applicant had not been involved with the authorities as claimed. 15 In light of the above, Raphael FM dismissed the application with costs.

APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL 16 The applicant filed his application for an extension of time to file and serve a notice of appeal in this Court on 11 September 2007.The application was accompanied by an affidavit which asserted the applicant had only received the reasons for the Federal Magistrate's decision on 4 September 2007 and that any delay on the applicant's part was 'not wilful or wanton'. 17 Annexed to the affidavit was a draft notice of appeal which asserted seven grounds of appeal. Those grounds are: 1. Raphael FM failed to find error of law and jurisdictional error in the Tribunal's decision. Raphael FM also failed to provide procedural fairness to the applicant; 2. Raphael FM failed to consider the Tribunal's errors; 3. Raphael FM made a legal, factual and jurisdictional error in failing to apply the principles in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; 4. Raphael FM failed to find that the Tribunal's decision was unjust; 5. The Tribunal relied on irrelevant questioning made during the hearing before it; 6. The Tribunal failed to provide procedural fairness to the applicant; and 7. Raphael FM failed to consider the amended application.

FINDINGS 18 Order 52 r 15 of the Federal Court Rules requires that, inter alia, a notice of appeal must be filed within 21 days after the date when the judgment appealed from was pronounced. In this instance the decision of Raphael FM was delivered on 15 August 2007. Accordingly any notice of appeal should have been filed on or before 6 September 2007. The applicant's application for an extension of time to file and serve the notice of appeal was filed on 11 September 207. 19 The applicant has provided an affidavit which states that he received the written reasons of the Federal Magistrates Court on 4 September 2007. The applicant believed that he had 21 days from that date to file his appeal in accordance with O 52 r 15 of the Federal Court Rules, rather than 21 days from the date the judgment was pronounced. The Court is prepared to treat the time delay in filing the notice of appeal as being of minimum duration. 20 Order 52 r 15(2) of the Federal Court Rules provides that in order to grant an extension of time for the filing of a notice of appeal the Court must be satisfied that there are 'special reasons' for doing so. In Jess v Scott (1986) 12 FCR 187 the Full Court observed (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.

21 The decision of the Full Court in Parker v The Queen [2002] FCAFC 133 establishes the criteria to be satisfied in relation to whether any 'special reasons' exist. Those criteria include an acceptable explanation for the delay and the merits of the substantial application: see also Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 22 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), the merits of the substantial application are determinative as to whether or not the Court's discretion will be exercised: 'should the applicant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances' (Jeffers v R [1993] 112 ALR 85 at 86). As such, although the Court notes that the applicant's explanation for the delay is acceptable, the merits of the applicant's proposed notice of appeal will be of vital significance in considering whether there exist 'special reasons'. 23 The proposed notice of appeal, as detailed earlier in this judgment, set out in broad terms the claims of the applicant. Grounds one, two and four attack the findings of the Federal Magistrate. No particulars are provided and this Court finds that Raphael FM did not err in his consideration and findings relating to the Tribunal's decision. Ground one also claims that Raphael FM did not provide procedural fairness to the applicant. This claim has no factual foundation and no particulars were provided. 24 In relation to ground three, there was no reason for either the Tribunal or the Federal Magistrate to apply the relocation and internal protection principles set out in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 25 In the absence of particulars this Court is unable to articulate any valid ground of appeal contained in grounds five and six. Further, ground six was not a ground relied upon by the applicant before the Federal Magistrate. 26 Regarding ground seven, Raphael FM considered each ground of the amended application at [7]-[12] of his reasons. 27 The Court has considered the merits of the substantial application and concludes that there are no grounds upon which the applicant could succeed if leave were granted. As such, the Court is not satisfied that 'special reasons' exist in this case to warrant the 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 Court dismisses the application with costs. I certify that the preceding twenty-seven (27) 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.

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