SZJBC v Minister for Immigration and Citizenship

Federal Court of Australia|2007-02-15|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal from a judgment of a Federal Magistrateof12 September 2006. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The application was filed on 11 October 2006. An extension of time is required because a notice of appeal was not filed within 21 days of the judgment having been pronounced: O 52 r 15(1) of the Federal Court Rules.

Procedural background and applicant's claims 2 The applicant is a citizen of India. Before the Tribunal the applicant claimed to have a well-founded fear of persecution because of his political opinion and claimed to have been persecuted by the Bharatiya Janata Party (BJP) as he was an active member of the Congress Party. The applicant claimed that he feared for the safety of his family and that he had been threatened on the telephone and physically. The applicant also claimed that the authorities would not protect him, and that the BJP would collude with local police to falsely prosecute him. 3 In a letter dated 27 April 2006 the Tribunal invited the applicant to attend a hearing but no response was received to this invitation. The applicant did not attend the hearing and the Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act') to make a decision without taking any further action to enable the applicant to appear. The Tribunal accepted the applicant was a citizen of India but it was not satisfied the applicant was an active member of the Congress Party or that he had been threatened by the BJP. On the limited evidence before it, the Tribunal was not satisfied the applicant faced a real chance of persecution for his political opinion.

The Federal Magistrate's decision 4 Before the Federal Magistrate the applicant asserted that the Tribunal did not take into account all of the circumstances of the applicant's life and that his claims were not properly investigated. His Honour found that the applicant was seeking merits review and that the Tribunal wrote to the applicant inviting him to provide further information. The Tribunal complied with s 425 of the Act and had taken all appropriate steps to seek further information from the applicant. His Honour found there was no error in the way the Tribunal conducted its review and dismissed the application.

Application for an Extension of Time 5 The applicant filed his application for an extension of time on 11 October 2006.Accompanying that application was an affidavit annexing a draft notice of appeal which raised grounds that the Federal Magistrate erred in not finding the Tribunal breached s 424A of the Act and erred in not finding an error of law by the Tribunal. The affidavit asserted that the applicant was out of time as he was not a legal practitioner and was unaware of the time limits.

Consideration 6 Pursuant to directions made on 13 October 2006, the applicant was ordered to file and serve written submissions no later than five working days before the hearing date. No such written submissions have been received by the first respondent or the Court. 7 The important matter to consider here are the applicant's prospects of success on any appeal if leave were granted. Other considerations would favour an extension of time, and it would be in the interests of justice to allow the appeal to proceed if there was any basis of one or more of the grounds of the appeal sought to be agitated in this Court. 8 In the present case, the first respondent submitted that the decision of the Federal Magistrate is not attended by any error and that the proposed appeal would have no prospects of success, and I agree. 9 With regard to the first proposed ground of appeal the issue sought to be raised was not one raised in the proceedings below, and the applicant would require leave to now argue a ground based on the proposition that the Tribunal failed to comply with a statutory obligation with which it was required to comply. The proposed ground of appeal is entirely unsupported by particulars and in those circumstances the Court would not grant leave to the applicant to argue this issue. However, the proposed ground of appeal is misconceived in circumstances where the Tribunal's decision is based on its lack of satisfaction of the matters claimed by the applicant because of the sparsity of information provided by the applicant. 10 With regard to the second proposed ground of appeal, this ground contains a bold assertion of legal error, in relation to which the applicant has not provided any particulars. I can find no error in the judgment below, and no basis has been provided.

Conclusion 11 Accordingly I will order that the application for extension of time to file and serve a notice of appeal be dismissed with costs. I will correctly name the first respondent as the Minister for Immigration and Citizenship.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor

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