SZIWC and Another v Minister for Immigration and Citizenship and Another

Federal Court of Australia|2007-02-14|Before: Cowdroy J

REASONS FOR JUDGMENT 1 This is an application pursuant Order 52 Rule 15(1) of the Federal Court Rules ('the Rules') for extension of time to file and serve a Notice of Appeal from a decision of Driver FM delivered on 21 August 2006. The application before Driver FM sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 31 March 2006 and handed down 20 April 2006. 2 Since Driver FM determined the proceedings pursuant to Rule 44.12 of the Rules of the Federal Magistrates Court, his determination is interlocutory. Accordingly leave is required to appeal to this Court from his Honour's decision pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) in addition to the application for an extension of time. The applicant has not sought such leave. 3 The husband and wife applicants are citizens of India and arrived in Australia on 17 November 2005. They lodged an application for a Protection visa with the Department for Immigration and Multicultural Affairs ('the Department') on 14 December 2005. Only the applicant husband (hereafter 'the applicant') made claims under the Convention relating to the Status of Refugees ('the Convention') with the applicant wife relying on membership of his family unit. 4 In his application for a Protection visa the applicant claimed to suffer economic hardship in his home town of Gujarat as a result of failure to repay debts. It was at the hearing before the Tribunal that the applicant claimed that he had only became aware that his political claims were omitted from his Protection Visa Application and that he had been a low-level organiser for the Bharatiya Janata Party ('the BJP') in India. The applicant claimed that as a result of his political involvement he was harassed, threatened and detained twice by local police who attempted to enlist the applicant to the Congress Party (India) (CPI). The applicant claimed that the collapse of his business was linked to harassment from the CPI and the police. The applicant claimed that he feared CPI activists if he was to return to India. 5 The Minister refused the application for a Protection visa on 18 January 2006. The applicant applied for a review of that decision on 15 February 2006 and on 22 February 2006 he was invited to attend a hearing. The applicant attended and was assisted by a Gujarati interpreter. On 22 March 2006 the applicant was sent a letter pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act').

THE DECISION OF THE TRIBUNAL 6 The Tribunal found that evidence relating to the dire financial situation of the applicant's family and its alleged causes was unreliable. Although the Tribunal accepted that the applicant supported the BJP, the Tribunal did not accept the applicant had any political role or profile within the BJP, including as a low level organiser nor that he had any meaningful link with or responsibility to the local BJP. The claims of the applicant were found to have been invented by him after he realised by the Minister's decision that his claims were not Convention related. The Tribunal further rejected claims that the local CPI members had threatened and intimidated the applicant, thereby contributing to the collapse of his business. 7 The Tribunal found that mere support of the BJP did not establish a well-founded fear of persecution. The level of political interest expressed by the applicant was found to be such that he was not politically active and that he would not have attracted attention for this reason. The Tribunal was satisfied that the applicant would be able to voice his support for the BJP in social discourse without risk of persecution. 8 The Tribunal also considered the applicant's claims that he would become destitute if he returned to India. Such claims of economic difficulty, presented in the Protection visa application and at hearing, were found to be inconsistent with the information presented by the applicant to the High Commission to obtain a visa, and was inconsistent with information presented at the Tribunal hearing relating to his tourist travel and his son's continued studies. The Tribunal concluded that the applicant was not a witness of truth.

THE DECISION OF THE FEDERAL MAGISTRATE 9 The Tribunal had found that whilst the applicant was a supporter of the BJP he was not an organiser and did not have a political profile. Driver FM found no inconsistency in the Tribunal's reasoning. His Honour also found that no arguable case was disclosed by the applicant. 10 The applicant also claimed a breach of s 424A of the Act because a letter from the Tribunal to the applicant dated 22 March 2006 did not expressly state that it was written under s 424A of the Act. Driver FM found that the letter reproduced the language of the section and complied with the requirements of that section. 11 Driver FM dismissed the application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Courts Rules for failure to raise an arguable case.

APPLICATION FOR EXTENSION OF TIME 12 The applicant filed his application for an extension of time on 14 September 2006 with an affidavit outlining the reasons for the delay in filing the application. The applicant claims that he was unable to lodge the appeal in time due to economic hardship and difficulties in finding employment. Annexed to the affidavit is a draft Notice of Appeal claiming the following: '1. The Appellant submit that the learned Federal Magistrate erred by failing to recognise the Applicant's Solicitor raised at the Show Cause Hearing that the Tribunal breached the protection criteria in Sec. 36(2) of the Migration Act by virtue of conflicting conclusion it made, namely: "It appears to be a perfectly straight forward finding that while the Applicant was a supporter of the BJP he was not an Organiser or Anyone with any political profile. Even if the inconsistency as asserted could be established on the facts it would not amount to jurisdictional. I see nothing in the show cause application as illuminated by the first Applicant's Affidavit and the Court Book which points to any jurisdictional error". The Appellant submits that the learned Federal Magistrate's reasoning on this ground was contrary to the subsequent statements and the evidence the applicant gave to the Tribunal and therefore an error of law. 2. The Appellant further submits that the learned Federal Magistrate failed to accept the Applicant's Solicitor's argument that the Tribunal acted in a manifestly unreasonable manner because of the following conclusion by failing to consider the refugee criteria as per Article 1(A)2 of the Convention, and rather finding:- "In summary, the Tribunal does not accept that the Applicant has suffered past harm for reason of his political opinion, and the material before the Tribunal does not reveal any other factors indicating he faces a real chance of prospective harm for this or any other Convention reason." The Appellant states that the learned Federal Magistrate failed to accept that the Applicant's argument that the Tribunal did not reach the mandatory requirement of satisfaction under sec. 414 of the Act, but stated that - "The Tribunal has considered the Applicant's claims individually and Cumulatively. It is not satisfied that he has a well founded fear of persecution for one or more of the Convention reason."'

FINDINGS 13 The application for extension of time is misconceived in the absence of the application for leave to appeal required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Nevertheless the Court will consider the matters raised by the application before this Court. 14 Order 52 Rule 15 (1)(a)(i) of the Rules requires a Notice of Appeal to be filed and served within 21 days of the delivery of the judgment appealed from. The Application for an Extension of Time and the draft Notice of Appeal were filed on 14 September 2006. Since the judgment in respect of which leave to appeal is sought was delivered on 21 August 2006, the time for filing the application expired on 11 September 2006. The delay in instituting the proceedings is short, namely a period of three days. 15 Pursuant to Order 52 Rule 15(2) of theRules the Court may grant leave to file and serve an application outside of the prescribed 21 day period 'for special reasons'. In Jess v Scott and Others (1986) 12 FCR 187 at 195 the Full Court explained the meaning of such term. In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 Finkelstein J identified three issues for consideration by the Court, in respect of such an application (see [9]), namely the extent of the delay involved; whether any prejudice to the respondent was occasioned by the delay; and whether the applicant would suffer a serious injustice if the right to appeal were denied. The appeal must have sufficient prospects of success to justify the grant of leave: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13]; WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385 at [32]. 16 I am satisfied that, whilst no prejudice is claimed by the Minister, the explanation offered for the delay in filing the draft Notice of Appeal is barely satisfactory. However, the critical question is whether the applicant's appeal has any prospects of success. In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] the Court said: 'An extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal….'

17 Driver FM stated the grounds of appeal against the Tribunal's decision as follows: 'The first is an assertion that the RRT exceeded its jurisdiction in finding that the applicant's level of political interest was not such that he would be motivated to be politically active. Secondly, the RRT is said to have erred in law because of making a contradictory finding that the applicant was a supporter of the BJP but at the same time stating that the applicant was not a political activist or member of the BJP. Thirdly, as best as I can understand the ground, the applicant asserts that the RRT was unreasonable by failing to assess correctly why additional information given in March 2006 did not establish his claims of persecution.'

18 Driver FM noted that the Tribunal accepted that the applicant supported the BJP but did not accept that the applicant had any political profile, even as a 'low level organiser'. The Tribunal found the evidence of the applicant was 'improvised and inconsistent' and noted that the Protection Visa Application lacked any reference to politics. Driver FM found that there was no inconsistency as claimed in the Tribunal's findings and accordingly his Honour found no jurisdictional error. 19 Driver FM also rejected a claim made in an amended application for judicial review filed during the hearing before him that the letter dated 22 March 2006 from the Tribunal to the applicant did not comply with the requirements of s 424A of the Act.

GROUNDS OF APPEAL CONTAINED IN DRAFT NOTICE 20 The first draft ground of appeal (set out in paragraph 12 above) relates to a matter which has already been considered by Driver FM. The issue sought to be raised is a factual matter only and could not constitute a jurisdictional error. The finding of Driver FM in respect of this ground is plainly correct. 21 As to the second draft ground of appeal, it is claimed that Driver FM did not accept the applicant's argument that the Tribunal failed to reach the requisite standard of satisfaction. This ground proceeds on a misconception, as it appears that the applicant's alleged argument was never put to the Tribunal. Further, the applicant seeks to challenge the factual finding and decision of the Tribunal. There is no error of law apparent in such ground. 22 It follows that the matters sought to be raised are issues of fact which have already been determined before the Tribunal and considered by Driver FM. If leave to extend time were granted, the Court would be asked to reconsider the factual findings made by the Tribunal. No jurisdictional error is identified in the draft Notice of Appeal. The appeal would have no prospects of success even if an application for leave to appeal from the interlocutory judgment of Driver FM had been before the Court. The Court must be satisfied that the correctness of the first decision is so doubtful that it warrants reconsideration: see Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399. There are no demonstrable errors in the decision of Driver FM. Accordingly the application for an extension of time will be dismissed. 23 The Minister sought an order that the applicants pay the cost of the Minister in the sum of $2500. Since this is reasonable range of costs I will make the order sought pursuant to Order 62 Rule 4(2)(c) of the Rules. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Solicitor for the Respondent: Australian Government Solicitor

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