SZMFH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant, who is identified for the purpose of these proceedings as 'SZMFH', was born in Mayiladuthurai, India on 8 November 1974. 2 On 20 August 2007 he arrived in Australia and on 2 October 2007 applied for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 20 December 2007. 3 On 14 January 2008 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. Upon receipt of the applicant's Application for Review the Tribunal wrote to the applicant acknowledging his application and informing him, amongst other things, that if he had any material or evidence that he wished the Tribunal to take under consideration he should make it available to the Tribunal. No such material was sent by the applicant to the Tribunal. The applicant was extended an opportunity, of which he availed himself, to appear at a hearing of the Tribunal. The hearing took place on 25 February 2008, the applicant giving evidence and participating in that hearing. 4 On 14 March 2008 the Tribunal member signed a Statement of Decision and Reasons which was handed down on 8 April 2008. The Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. 5 On 5 May 2008 the applicant filed an application in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the Tribunal's decision. That application came before Barnes FM on 31 October, 2008. Her Honour decided the matter on 31 October 2008 and ordered that the application be dismissed. She further ordered that the applicant pay the respondent Minister's cost fixed in the sum of $3400. 6 No appeal was lodged in this Court appealing from the judgment of Barnes FM within the requisite 21-day period. However, a short time after the 21-day period expired, an application was filed in this Court under Order 52, rule 15 seeking a grant of leave to file and serve a Notice of Appeal out of time. Order 52, rule 15(2) of the Federal Court Rules provides: '15(2) …the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 7 For special reasons to be found there must be a satisfactory explanation of the applicant's delay, and a demonstration, by the applicant, that he has an arguable case to take to a hearing on an appeal. The first respondent, the Minister, accepts the explanation of delay which has been proffered in this case. 8 In the circumstances, the question to be considered is whether or not the applicant has an arguable case to take to a hearing on an appeal. When the Application For Extension Of Time To File And Serve Notice of Appeal was filed on 25 November 2008, an affidavit, said to be on oath and at the same time affirmed, by the applicant, was filed. That affidavit bears the date 25 November 2008. It attaches a draft Notice of Appeal from the judgment of the learned Federal Magistrate given on 31 October 2008. The proposed grounds of appeal are set out in two grounds, each of which is given the paragraph number 1. The grounds are as follows: '1. Barnes FM failed to consider the core integers of the Appellant's case under the Migration Act of 1958. (Cth). Particulars Barnes FM failed hold that the Second Respondent failed to discern core aspects of the Appellant's case and did not give a chance for the Appellant to comment on adverse material.. 1. Barnes FM failed to hold that the second respondent failed to give the Appellant a chance to respond to matters that were contradictory in writing. under the Migration Act of 1958. (Cth). Particulars Barnes FM failed hold that the Second Respondent failed to give the Appellant a chance to comment on the adverse material in writing. ..' 9 When invited to identify the material said to have been adverse to the applicant, upon which he was not given a chance to comment, the applicant was unable to provide any meaningful response. All that he could say was at its highest critical of the Tribunal's failure to accept the case which he advanced, or, more accurately, to be satisfied that he was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively 'the Convention'). 10 On a couple of occasions the applicant indicated that if any documents were required by the Tribunal, he could produce them, if given time to do so. As previously mentioned, he did not produce any material to the Tribunal following the invitation to do so, which was contained in the letter acknowledging receipt of his application for review. When asked to identify the core aspects of his case which he asserts the Tribunal failed to discern, all that the appellant could say is that he could not remember very well. In relation to the matters that were said to be contradictory in writing, in relation to which he was not given a chance to respond under the Act, the appellant was unable to identify any provision in the Act imposing such an obligation and, further, was unable to identify anything which would answer the description of matters that were contradictory. 11 As was said by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]: 'Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.' As their Honours went on to say: 'On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' 12 As has been said many times, proceedings in the Tribunal are not adversarial but, rather, inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. 13 The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal, and for the Tribunal to decide whether the relevant claim has been made out (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex Parte Applicant S154/2002 (2003) 201 ALR 347 at [57] - [58].) 14 The Findings and Reasons of the Tribunal member contained in his Statement of Decision and Reasons of 14 March 2008 included a finding that the applicant was 'a witness who completely lacked credibility.' The Tribunal found that the applicant had not been honest in his evidence, and rejected it. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. The Tribunal found that there was no real chance that the applicant would face persecution for any Convention reason if he were to return to India now or in the reasonably foreseeable future. 15 Were the matter to proceed to an appeal, it would not be open to the Court to provide a merits review of the Tribunal's decision. No case of jurisdictional error has been foreshadowed which would warrant this matter go to a hearing on an appeal.