SZQGO v Minister for Immigration and Citizenship

JUDGE: MURPHY J DATE: 2 march 2012 PLACE: melbourne

introduction 1 This proceeding is an application for extension of time for the applicant to file an appeal from the judgment of the Federal Magistrates Court (SZQGO v Minister for Immigration and Anor [2011] FMCA 775). 2 The applicant is a citizen of Nepal. He arrived in Australia on 23 September 2008 on a student visa as a dependent of his wife. This visa was valid until 18 October 2010. The applicant lodged an application for a protection visa with the Department of Immigration and Citizenship on 11 October 2010. On 6 January 2011 a delegate of the Minister for Immigration and Citizenship refused the application. The applicant applied to the Refugee Review Tribunal which affirmed the decision of the delegate to refuse a protection visa. The applicant then applied to the Federal Magistrates Court seeking a judicial review of the decision of the Tribunal. The Court dismissed the application. 3 The task of the Federal Magistrates Court in dealing with the judicial review application brought by the applicant was restricted to a determination as to whether the Tribunal's decision was affected by jurisdictional error: see s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal's power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 per Brennan J ("Quin"). 4 If time to appeal is extended, this Court's task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

Application to Refugee Review Tribunal 5 On 20 January 2011 the applicant applied to the Tribunal to review the decision of the delegate. 6 The applicant stated that he had separated from his wife about 15 months after arrival in Australia. He stated that divorce proceedings were underway, and that it was possible that he was already divorced, although he had received no formal notification to that effect. 7 The applicant claimed that he and his wife had left Nepal as they wished to seek protection in Australia. He stated that he was a royalist and loyal to the Nepalese monarchy. He said that during his student years he had participated in activities in support of the monarchy and was active in Chitwan, attending functions in Pokhara and occasionally in Kathmandu. He distributed leaflets, arranged stages and organised programs. 8 The applicant claimed he had first been the subject of threats from the Maoists 12 - 13 years before the Tribunal hearing. He said that in 2006 a communist youth group was formed by the second largest Communist Party, CPN-UML, and that the Maoists and the YCL threatened him until 2006. After that time the UML began to threaten him. He said that he refused to join these groups but tried to assure them that he would not be doing anything against them. He said they continued to harass him because he would not join them. He claimed that the Maoists and others demanded large donations of money from him at gunpoint on a number of occasions, which forced his business to the brink of a financial crisis. 9 When the monarchy was overthrown in May 2008 he decided he could no longer live in Nepal because he was being intimidated by the UML. He said he could no longer live in Nepal because he was feeling unsafe and he left in September 2008. 10 The Tribunal accepted that the applicant was a monarchist and had some involvement in the royalist movement, attending gatherings organising groups and attending programs. It also accepted that he may have been approached by the Maoists and others over the years and asked for donations. However, the Tribunal considered that the applicant was not truthful or credible on some key aspects of his claim and not satisfied that he left Nepal because of a fear of persecution. The Tribunal's finding that he was not truthful or credible was based on findings regarding: (a) The applicant's explanation as to why he was not harmed by the Maoists and others over a 12-13 year period since he had started receiving threats, given how dangerous these groups were. The Tribunal did not accept his explanation in regard to this. It did not accept that he was threatened with serious harm or that he received several death threats. (b) Inconsistencies that it considered existed in the applicant's claim that he was forced by a group of armed men to donate 50,000 rupees in about the middle of 2007. The tribunal did not accept that he was forced to make this donation in 2007, or that he was threatened by armed men at any time. (c) The delay between the applicant arriving in Australia in September 2008 and lodging his application for a protection visa in October 2010. The Tribunal found the applicant had lodged a protection visa only in order to stay in Australia after his marriage broke down, and not due to fear of persecution in Nepal. 11 On 21 April 2011 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

Application to the Federal Magistrates Court 12 On 25 May 2011 the applicant applied to the Federal Magistrates Court for review of the Tribunal decision. Following a hearing on 29 August 2011 the Court (Raphael FM) found that there was no jurisdictional error in the Tribunal's decision and dismissed the application. On 7 October 2011 the learned Federal Magistrate published written reasons for the decision.

Application to the Federal Court 13 On 21 October 2011 the applicant filed an application for extension of time within which to file a Notice of Appeal, attaching a draft Notice of Appeal setting out his proposed grounds of appeal. The applicant's proposed appeal was slightly over four weeks late.

Application for extension of time to appeal 14 Pursuant to r 36.03 of the Federal Court Rules any appeal from the judgment of the Federal Magistrates Court was required to be filed within 21 days after the judgment was pronounced or the order was made - that is by 19 September 2011. No appeal was filed within this time limit. 15 Therefore, before the applicant can advance any of his proposed grounds of appeal from the draft Notice of Appeal filed he must first obtain an extension of time in which to appeal. Rule 36.05(3)(c) requires that any application for extension of time be accompanied by an affidavit stating briefly but specifically the facts on which the application relies, and why the notice of appeal was not filed within time. 16 The applicant is required to make out a case sufficient to justify departure in the particular circumstances from the ordinary rule prescribing the period within which an appeal must be filed. The Full Court held in Jess v Scott (1986) 12 FCR 187 at 195 that the Court's power to extend time is: …an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally, it may be said, something much less significant might justify leave where a party is a few days late. 17 The Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (which related to an application for extension of time under s 11 of the Administrated Decisions (Judicial Review) Act 1977) as the principles which should guide the Court in determining whether an extension of time should be granted: Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCR 1362 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17]; Sutera v Nelson [2011] FCA 1470 at [7]. 18 Accordingly, the application requires consideration of the following factors: (a) satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay; (b) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; (c) the merits of the appeal.

Prejudice 19 The Minister did not concede that there was no prejudice to him by the late appeal, but put this submission no higher than that the Minister expects court time limits to be complied with. The Minister conceded that a four week delay was not of great consequence in terms of prejudice.

Explanation for the delay 20 In his affidavit sworn 20 October 2011 in support of the application for extension of time the applicant deposes, without alteration: 1 I am the applicant in these proceeding and I wish to appeal from the whole judgement of the Federal Magistrates Court delivered on 29 August 2011 and I am yet to receive the judgement. Although the court has sent it to my solicitor, he is away until 10 November 2011 and I have no excess this judgement. 2. Reason for the delay for the application is due to my inability to decide on time, and my solicitor firstly being busy with his work at the time of appeal and secondly being overseas for the delay between 12 October to now. 21 At the hearing before me the solicitor for the applicant, Mr Newman, advised that he had also appeared for the applicant on 29 August 2011. He stated that the learned Federal Magistrate made orders on that date dismissing the application. This is also apparent from the Court record. Mr Newman further stated that he advised the applicant's registered migration agent of the decision at that time. He could not advise the applicant personally as he does not speak English. 22 The applicant gives various reasons for the delay. First, he deposes that he had not received the written reasons of the Federal Magistrates Court when he lodged his application. He deposes that because his solicitor was away he had no access to the written reasons published on 7 October 2011. Mr Newman confirmed in Court that he was away from 10 October, but there was no affidavit evidence as to the operation of his office in his absence. I find it difficult to accept that the applicant could not have obtained a copy of the written reasons from the office of his solicitor, even though he was away. The solicitor's office staff are likely to have been able to supply a copy to him. 23 In any event I note that by the date Mr Newman went away on 10 October 2011 the appeal was already out of time by three weeks. 24 I also note that the applicant deposes that at the date of swearing his affidavit on 20 October 2011 he still had not received the written reasons of the Court. The draft Notice of Appeal filed with the application, drafted without the benefit of the written reasons, was not considered to later require amendment. The grounds in the notice allege very similar errors by the Tribunal to those alleged in the application to the Federal Magistrates Court. 25 In the absence of other evidence, the applicant's first explanation for delay is not persuasive. He was represented at the hearing before the Federal Magistrates Court, and in the absence of further evidence, he must be taken to have been aware of its decision very shortly after it was handed down on 29 August 2011. If he wished to appeal he was required by the rules to do so by 19 September 2011. 26 Second, the applicant deposes that part of the reason for the delay was his solicitor being busy. There was no affidavit by the solicitor deposing that he had been instructed to prepare an appeal by the applicant, but that he had failed to do so through pressure of work or for some other reason. When I questioned the Mr Newman as to what further he could say about the reasons for delay he did not suggest that the failure to file an appeal was through any inaction of his own. 27 Third, the applicant deposes that part of the delay arose from his own "inability to decide on time" as to whether to appeal. The rules provide 21 days within which to file in the appeal in order to allow parties to consider whether to do so or not. An inability to decide whether to appeal on time is not a persuasive explanation for delay, but the extension period sought is not long. 28 Notwithstanding the shortcomings in the evidence, in circumstances in which the period of delay is relatively short, and; (a) the applicant's lawyer was away for some of the period of delay; (b) the written reasons of the Federal Magistrates Court were not handed down until after the time limit for filing the appeal had expired; and (c) the applicant speaks little English and communication is through a migration agent; and (d) the applicant concedes that he was having difficulty deciding whether to appeal; I am inclined to the view that sufficient reasons for the delay in filing the appeal have been provided.

The merits of the appeal 29 However, it is well established that the Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited - Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]. 30 The draft Notice of Appeal is stated to have been prepared by Newman and Associates, solicitors, and was signed by Mr Newman. The proposed grounds of appeal in the draft notice are as follows, without alteration: 1. His honour erred in law and in fact by failing to find jurisdictional error on the part of the Refugee Review Tribunal when it assessed the credibility of the applicant by posing questions which he could not possibly answer. Particulars The Tribunal asked the applicant to explain why it was over more than a decade he had not been harmed by extremist organisations who were in continuous contact with him? When the applicant replied with what could only have been a surmise the tribunal was to dissatisfied and found the applicant to be lacking in the credibility. 2. His honour erred in law and in fact failing to find jurisdictional error on the part of the Refugee Review Tribunal by upholding tribunal's acceptance of the proposition that a delay by the applicant is making an application for asylum on arrival is indicative of an absence of fear of harm on his part. The error presumes a logical link between danger overseas and a delayed application for asylum in Australia were in fact there is none. For the reasons that I set out below, I do not consider that these proposed Grounds of Appeal have any merit.

The first proposed ground of appeal 31 The Tribunal found that the applicant was not credible on some key aspects of his claims. In particular the Tribunal was not satisfied that the applicant left Nepal because of a fear of persecution as described in his application and evidence. 32 Under the first proposed ground of appeal the applicant contends that the Federal Magistrates Court erred in failing to find that the Tribunal had made a jurisdictional error by posing a question not within the applicant's knowledge and then using his answer to attack his credibility. The decision records that the Tribunal asked the applicant to explain how it was that he claimed: he had first been threatened by the Maoists 12 or 13 years previously; the Maoists and the YCL had threatened him until 2006; the UML had threatened him after that date; and yet he had escaped serious harm over this long period. The Tribunal suggested, given that the Maoists, the YCL and the UML are extremely dangerous according to independent country information available to it, that it was extremely unlikely that he would have escaped harm if in fact the threats had been made. 33 The Tribunal decision records that the applicant answered that it may be that the reason he was not harmed was that he gave the impression that he was a neutral person who had no involvement with any parties, and also because he had helped them financially. 34 In its decision the Tribunal stated that it was not persuaded by this explanation as to why the applicant had escaped serious harm over such a long period. It did not accept that the applicant was threatened with serious harm or that he received several death threats from these groups. The applicant's answer to this question was one of the matters that led the Tribunal to conclude that he was not truthful or credible in relation to his claims. 35 This question founds the first ground of appeal before me. The applicant contends that the question is improper and would not be allowed in any court because in asking why the alleged terrorists did not harm him, he was being asked a question which only the alleged terrorists could answer. 36 It is uncontroversial that the rules of evidence do not apply to the Tribunal. Nevertheless, every attempt must still be made to administer "substantial justice": R v War Pensions Entitlement Appeals Tribunal (1933) 50 CLR 228 at 256 per Evatt J. It is also important to note that proceedings before the Tribunal are inquisitorial in nature: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [76] per Gaudron and Gummow JJ. The Tribunal is entitled to control its hearing including by asking questions in order to satisfy itself of the merits of the application: NADH v Minister for Immigration and Citizenship [2004] FCAFC 328 at [124]-[125]. 37 The learned Federal Magistrate held that the Tribunal did not fall into jurisdictional error in asking this question, or in deciding that the applicant's answer was not credible. His Honour found that substantial justice was not denied to the applicant in asking the question which, unless he had been informed specifically by the terrorists, he was only able to provide an answer of surmise. I agree with his Honour in that regard. 38 I also do not accept that substantial justice is denied to the applicant by the Tribunal suggesting to him that his account is improbable, and asking him to explain the suggested improbability. I accept the Minister's contention that the question may have turned out to be to the applicant's advantage as it gave him an opportunity to explain why he had not been harmed by the dangerous groups he claimed to have been threatened by - if he could. 39 I also agree with the decision of the learned Federal Magistrate that the finding by the Tribunal that the applicant's answer was not credible did not constitute jurisdictional error. The Tribunal's adverse credibility findings against the applicant are matters which fall squarely within the Tribunal's jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423, [67] per McHugh J ("Durairajasingham"). 40 In my view the applicant has no reasonable prospect of success on this proposed ground of appeal.

The second proposed ground of appeal 41 The applicant arrived in Australia on 23 September 2008 on a visa related to his dependency on his wife. The applicant did not seek a protection visa until 11 October 2010 - one week before his existing visa expired. The Tribunal decision records that when the applicant was asked why he did not apply for a protection visa when he arrived, he replied that he "did not think about it because he did not expect his marriage to break up." 42 The Tribunal found as follows: [The applicant] claims that he left Nepal because he felt unsafe, yet he did not lodge a protection visa application until October 2010, two years after he arrived in Australia. It is the Tribunal's view that after the applicant's wife left him he was aware that the visa he held would cease and if he wanted to remain in the country, he would have to lodge another visa application and the only option available to him was a protection visa application. The Tribunal does not accept the applicant's version of events and is of the view that he lodged a protection visa application, not because he feared persecution but because he wanted to remain in Australia. 43 In the second proposed ground of appeal the applicant contends that the Tribunal's finding that the delay by the applicant in making his application for asylum is indicative of an absence of fear of harm on his part, reveals a jurisdictional error by it. He contends that the reasoning is faulty as there is nothing illogical or unusual in his making an "election" not to seek a protection visa then but instead waiting until his other visa was approaching expiry. Having received a visa and therefore having escaped from persecution, he contends that it is not indicative of an absence of fear of persecution that he did not immediately take the chance of applying for another different visa. He contends that if his second application was unsuccessful then he risked losing the benefit of the visa already received, noting that he could not hold two visas. The applicant further complains that if the Tribunal is to draw the inferences that it did it was obliged to put that inference to the applicant and seek his comment. 44 The learned Federal Magistrate expressed sympathy with the proposition that many people who rush to escape persecution do not immediately make applications for a protection visa upon arriving in a safe country. His Honour noted that there was no need for the applicant to immediately apply for a protection visa because he had the right to remain in this country with his wife under their student visa, and if he had applied for a protection visa the student visa may have been in danger. 45 However, his Honour found that the applicant's delay in applying for a protection visa was a matter that the Tribunal can validly take into consideration. His Honour referred to Selvadurai v Minister for Immigration and Ethnic Affairs and Anor (1994) 34 ALD 347 at 349 in which Heerey J held: The applicant complained of the tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, there was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or it least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material. 46 While I too have some sympathy for the applicant's argument that in the circumstances of his case his delay should not be held against him, I agree with the learned Federal Magistrate that the Tribunal has not fallen into jurisdictional error by doing so. The finding of fact as to the real reason for the applicant's delay in applying for a protection visa are within the proper exercise of the Tribunal's function: Durairajasingham at [67] and [70]. 47 It was open to the Tribunal to find, as it did, that the reason for the delay was not as the applicant alleged. As Gray J stated in MZYGY v Minister for Immigration and Citizenship [2010] FCA 1032 at [18]: There is no room on an application for judicial review to the Federal Magistrates Court… for argument that the Tribunal has reached wrong conclusions of fact. A wrong finding of fact is not a jurisdictional error: Quin at 35-36 per Brennan J. 48 Again, in my view the applicant has no reasonable prospect of success on this proposed ground of appeal.

Conclusion 49 Because the proposed appeal has no reasonable prospect of success in any event, I dismiss the application for an extension of time within which to file the appeal. I also order the applicant to pay the respondent's costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.