SZIXJ 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 made under Order 52 Rule 15 (1)(b) of the Federal Court Rules ('the Rules') for extension of time to file and serve a Notice of Appeal from a judgment of Lloyd-Jones FM delivered on 5 October 2006. The application before his Honour sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 26 April 2006 and handed down on 16 May 2006. 2 The applicant did not appear at the hearing before this Court. The Court was informed that notification of today's hearing was sent to the applicant on 13 December 2006 by the Registrar of this Court to the applicant's notified address, namely 5/62 Coolah Street, Griffith NSW 2680. A copy of a letter sent to the applicant by the solicitors for the Minister enclosing the Minister's submissions and dated 11 January 2007 has been tendered. Such letter confirms the date, time and place for the hearing. The Court is satisfied that the applicant had notice of this hearing. 3 The Minister seeks an order pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) that the appeal be dismissed for the failure of the applicant to appear at the hearing. Alternatively the Minister seeks an order pursuant to Order 35A Rule 3(1)(a) of the Rules staying or dismissing the proceedings because of the default of the applicant in prosecuting the proceedings with due diligence as provided by Order 35A Rule 2(1)(f) of the Rules. 4 The Court notes that an order under s 25(2B)(bb)(ii) of the Federal Court Act can only be made in respect of an appeal. As the matter now before the Court comprises an application for an extension of time to file and serve a Notice of Appeal pursuant to Order 52 Rule 15(1)(b) of the Rules, an order dismissing the proceedings pursuant to Order 35A Rule 3(1)(a) of the Rules is appropriate because of the failure to prosecute the proceedings. 5 Before proceeding to dismiss the application, the Court will nevertheless consider the applicant's application as set out hereunder. 6 The applicant, a citizen of India, claimed that he was poor and used to beg, that there were illegal activities occurring in the slums in which he lived and that he had been beaten. The Tribunal sent the applicant an invitation to a hearing and a letter pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act') regarding the applicant's previous business visa application, but no response was received by the Tribunal to either of these letters. The applicant did not appear at the hearing and the Tribunal proceeded to a decision under s 426A of the Act. In its decision, the Tribunal noted that because the applicant did not appear at the hearing, there was no opportunity to clarify inconsistencies and the applicant to answer questions. The Tribunal concluded that it was not satisfied that the applicant suffered Convention-based persecution in the past nor had a well-founded fear of persecution in the foreseeable future if he returned to India. 7 Before Lloyd-Jones FM, the applicant claimed, inter alia, a denial of procedural fairness by the Department of Immigration and Multicultural Affairs ('the Department') in its assessment of his application for a Protection visa. The applicant claimed that the person who had assisted him with his application for a Protection visa had not included the information to be relied upon by the applicant in respect of his claim of persecution. The applicant claimed that his fear of persecution was based on membership of a particular social group working against the mafia. The applicant claimed that the content of the forms was not read out to him, that he did not sign the forms and that therefore the Protection Visa Application was invalid. 8 Lloyd-Jones FM addressed the grounds raised by the applicant but found there was no jurisdiction to review the delegate's decision as s 476(2) of the Act applied it to. His Honour considered the proceedings generally and found that there was no breach of s 424A of the Act since the Tribunal made no positive findings of fact. Rather, the decision was based on the Tribunal's inability to be satisfied on the information before it. His Honour also found that there was no evidence that the application to the Minister was invalid as claimed. Lloyd-Jones FM found no error on the part of the Tribunal. 9 The applicant filed his application for an extension of time on 31 October 2006. The application was accompanied by an affidavit which alleged that the applicant did not receive the judgment of Lloyd-Jones FM until 20 October 2006. 10 In written submissions the Minister submitted that although the delay in filing the draft Notice of Appeal was not significant, the Court would have regard to the fact that there are no substantive reasons to explain the delay. It said that whilst the applicant claims (and the Minister does not challenge) that the written reasons of Lloyd-Jones FM were not received by him until 20 October 2006, the applicant was present on 5 October 2006 when Lloyd-Jones FM dismissed the application and gave reasons for such dismissal. 11 Additionally, the Minister submitted that pursuant to Order 52 Rule 15(2) of the Rules, a requirement is imposed that 'special reasons' be found to exist before the application should be granted. 12 The Minister relied upon the fact that the draft Notice of Appeal filed on 31 October 2006 raised two grounds of review which in substance constituted nothing more than bare assertions of jurisdictional error. The grounds relied upon are stated as follows: 'The Federal Magistrate, his honour failed to ascertain that the tribunal made denial of natural justice and therefore made jurisdictional error.

(a) The delegate of the minister made an error of law of which the tribunal failed to notice that the applicant's PV application was invalid because on incomplete application. (b) The tribunal failed to understand that the applicant fears genuine convention based persecution on the basis of his association to a particular social group as defined in the Refugee Convention.' 13 The Minister submitted that, as found by Lloyd-Jones FM, the Court has no jurisdiction in relation to the delegate of the Minister, and that no particulars had been provided to explain the assertion that the applicant's application for a Protection visa was invalid. 14 Before the Federal Magistrates Court the applicant claimed that his Protection Visa Application should not have been accepted because the 'Form C' had not been signed by him or a Justice of the Peace. Lloyd-Jones FM found that there was no evidence to support the applicant's contention that the application was invalid. 15 In relation to the second ground of appeal before Lloyd-Jones FM the applicant claimed that the Tribunal failed to comprehend that the applicant feared Convention-related persecution on the basis of his association to a particular social group. The Tribunal was not satisfied that the applicant was someone to whom Australia owed protection obligations. Lloyd-Jones FM having referred to SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, found that similar considerations prevailed before him. His Honour said at [20]: 'The Tribunal did not make positive findings of fact about the position of the applicant, but rather rejected his claims because of its inability to be satisfied, on the lack of information before it, that Australia owed obligations to him under the Refugees Convention.'

16 At [21] his Honour said: 'I am satisfied that the amended application is in effect a re-statement of the applicant's merits application to the Minister and/or the Tribunal. It does not address the issue of jurisdictional error by the Tribunal in its decision-making process. It is not apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error.'

17 Lloyd-Jones FM noted that as the applicant was a self represented litigant the Court was obliged to consider independently whether any argument based upon the material was established, in accordance with the principle referred to in Yo Han Chung v University of Sydney & Others [2002] FCA 186. His Honour found no alternative arguments in the applicant's favour.

FINDINGS 18 Order 52 Rule 15(1) of the Federal Court Rules requires that a Notice of Appeal be filed and served within 21 days after the date when the judgment appealed from was pronounced: see Order 52 Rule 15(5)(1)(a)(i). Since judgment was delivered on 5 October 2006 the Notice of Appeal was required to have been filed by 26 October 2006. It was not filed until 31 October 2006. 19 Under Order 52 Rule 15(2) of the Federal Court Rules, the Court may grant leave to file and serve an application outside the prescribed 21 day period. However, it can only do so for special reasons. In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 Finkelstein J identified the three issues for consideration by the Court, namely the extent of the delay involved, whether any prejudice to the respondent was occasioned by the delay and whether the applicant would suffer serious injustice if the right to appeal were denied. The Court must be satisfied that there are sufficient prospects of success to justify the grant of leave: see 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]. 20 I am satisfied that there is no reason under either of the first two considerations which would have justified the Court in refusing a grant of leave to appeal. However, different considerations would have prevailed with regard to third consideration. 21 The draft Notice of Appeal is vague, and raises no more than bare assertions. The applicant alleges that the application for a Protection visa was invalidly prepared. It is apparent that the ground relied upon was considered by Lloyd-Jones FM and rejected. Such issue is solely one of fact. 22 The second ground contained in the draft Notice of Appeal also raises a factual matter which the Tribunal was unable to decide because of lack of evidence. The Court is satisfied that no jurisdictional error exists as claimed. In these circumstances the Court finds that 'special reasons' as referred to in Jess v Scott and Others (1986) 12 FCR 187 at 195 would not exist, and in its discretion, it would refuse the application for an extension of time. 23 The Minister has sought an order that the applicant pay the Minsters costs in the sum of $1200. As this is within a reasonable range for costs on an application for extension of time, I will make the order sought pursuant to Order 62 Rule 4(2)(c) of the Federal Court 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.

Federal Court Act 1976(Cth)

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