SZJIV v Minister for Immigration and Citizenship

Federal Court of Australia|2007-05-22|Before: Conti J

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from a judgment ofFederal MagistrateEmmett given on6 December 2006. The application to the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 24 July 2006 and handed down on 3 August 2006, which affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as the Minister was then designated). 2 The applicant is a citizen of India who arrived in Australia on 30 December 2005. On 10 February 2006 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs and a delegate of the Minister refused that application on 30 March 2006.

The Tribunal's decision 3 The applicant claimed to have a well-founded fear of persecution as a Sikh. He related various incidents in support of his claims regarding persecution. He stated that when he was six years old, the Central Reserve Police Force surrounded his family's house and then imprisoned his family at an 'unknown place', and his father and uncle were beaten whilst in his presence. The applicant also submitted that in August 1990 he was jailed for two days at a time when the police were said to be looking for his father and were waiting for his father to return from interstate. In 1993 the applicant was said to have been imprisoned for 15 days for assisting a Sikh militant. 4 The applicant testified to the Tribunal that he became a member of the Sikh Student Federation in 1994 and that in 1995 he and four friends were detained for some 10 days by the police and one of the applicant's friends was subsequently killed. During 1998, the applicant claimed to have been twice detained for no stated reason and in 1999 he again was said to have been detained without reason by police. In 2001 the applicant's family were allegedly imprisoned and were freed only after the applicant had been detained and beaten. 5 The Tribunal did not find the applicant to be credible or otherwise a witness of truth, his oral evidence given before the Tribunal being described as 'extremely vague and evasive'. Furthermore, his claims were described as inconsistent with the independent evidence, as well as being both implausible and 'fanciful'. The Tribunal observed moreover that the applicant claimed to have been in hiding from 2000-2003, but nevertheless testified as to having worked during that period of time. The Tribunal was not satisfied that the applicant was involved in the Sikh Student Federation or was of any interest to the authorities, particularly since he had minimal knowledge of the Federation. 6 In relation to his asserted fear of harm on account of being a Sikh, the Tribunal observed that even if it was to accept the applicant's claims of past harm, there was independent evidence before the Tribunal which indicated that 'there are now no security problems in the Punjab. Sikhs are not subjected to torture just because they were Sikhs or because of the general political situation. Sikhs are no longer targeted simply for holding pro-Khalistani views'. The Tribunal found that in light of that independent evidence to which it paid regard, the applicant did not have a well-founded fear of harm in the reasonably foreseeable future because of his race and/or religion as a Sikh. 7 The Tribunal also gave consideration to the applicant's claim of fear of harm 'because he has [allegedly] been imputed with a political opinion adverse to the government arising from his assistance to the "terrorists"'. The Tribunal found the evidence as to conceivable harm concerning that claim to be vague and unclear. The Tribunal further considered that even if it was to accept the claims, which in any event it considered to have credibility concerns, the applicant would still be able to relocate to a new place of residence, as the problems he identified were 'local ones centred on his home village'. The Tribunal also referred to the test as to reasonableness of relocation, and observed that the applicant had not claimed, nor did there exist any evidence to the effect, that relocation was an unreasonable option for the applicant. The Tribunal was not therefore satisfied the applicant was a refugee within the meaning of the Convention.

The proceedings in the Federal Magistrates Court below 8 On14 September 2006 the applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. Attached to that application was a certificate under s 486I signed by the applicant's solicitor Mr Chandra Jayawardena bearing the date 12 September 2006. On 2 November 2006 the application was dismissed by that Court, there having been no appearance by the applicant or any person on his behalf at the Court's directions hearing. 9 On 21 November 2006 the applicant sought reinstatement of the initial application bearing date 14 September 2006 to the Federal Magistrates Court. An affidavit filed on 21 November 2006 made by the applicant's solicitor for the purpose of that initiating application explained that the solicitor had developed some pain in his lower abdomen and could not attend the directions hearing, but thought he had advised the applicant to attend the directions hearing. 10 The Federal Magistrate observed that she placed 'little weight on information provided by Mr Jayawardena in his affidavit'. The applicant claimed to have assumed at the time that he was still represented by that solicitor. The Federal Magistrate expressed a lack of understanding as to why the solicitor would have felt that he would have attended the directions hearing, but for his abdominal problems, 'where the Court event was some six weeks after he stated he thought he told the applicant he was no longer acting'. Further, the applicant had not testified as to an absence of awareness of the pending directions hearing. 11 In any event, the Federal Magistrate then proceeded to consider the grounds of review put forward by the applicant. Her Honour found they were obscure in their terms and that they appeared to relate to the Tribunal's consideration of the applicant's relocation within India. Her Honour found that the Tribunal rejected the claims made by the applicant on the basis of the adverse credibility findings, and that there is nothing on the face of the 'Findings and Reasons' of the decision that would suggest that the findings and conclusions of the Tribunal were not open to it on the material before it. Her Honour found in any event that the applicant did not have an arguable case or a case with any reasonable prospects of success, and that therefore there would have been little utility in reinstating the application.

The appeal to the Federal Court 12 On 18 January 2007 the applicant filed an application for extension of time to file and serve a notice of appeal in this Court. Attached to the application was an affidavit and draft notice of appeal. The draft notice of appeal contained two grounds, the first being that the Federal Magistrate erred in law by failing to grant the applicant a reasonable time to prepare his case and obtain the necessary legal advice, given that the applicant's solicitor was in error as to the date of directions. The second ground comprised the contention that the applicant had been denied natural justice, since he did not have an adequate opportunity to file an amended application. 13 In relation to the explanation for the extension of time, the applicant claimed in his affidavit that he was not advised by his solicitor, or anyone else, that his application had been dismissed and moreover that he only had 21 days to appeal. He observed that he only received the decision after the expiration of the 21 day time limit imposed by O 52 r 5(2)(a). 14 Whilst an extension of time will usually be granted where the delay is short and there is no prejudice to the respondent, it is well established that in circumstances where the appeal itself is futile, the Court will not grant an extension of time in which to apply for leave to make that appeal: see WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at [9]; SZEUZ Minister for Immigration and Multicultural Affairs [2006] FCA 1515 at [8]. 15 In relation to the first ground, I find force in the Minister's submission that the decision of the Federal Magistrate was not made on the basis that the applicant had failed to explain the delay, 'rather it was made on the alternative basis that there was no utility in allowing reinstatement because the claim had no merit'. In any event, the applicant's reinstatement application was heard on 6 December 2006 and there is no evidence before the Court to establish that he was deprived of the opportunity of putting his case for reinstatement in any way. 16 In relation to the second ground, I am of the view that there is no evidence to support the applicant's assertion that he was not given the opportunity of filing an amended application and written submissions. There is also no evidence to suggest that the decision of the Federal Magistrate was unreasonable because the applicant was unable to put forward his case with proper legal advice and legal representation which was a denial of natural justice. 17 I can find no conceivable error of law in the reasoning of Emmett FM below, nor can I find jurisdictional error arising from the reasoning of the Tribunal. Thus the present application discloses no realistic or likely prospect of establishing the viability of any foreshadowed ground of appeal. The application should be dismissed as being outside the time permitted by O 52 r 5(2)(a) of the Federal Court Rules. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the First Respondent: DLA Phillips Fox

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