SZRQA v Minister for Immigration & Border Protection

REASONS FOR JUDGMENT (Revised from transcript) 1 The applicant is a Nepalese national. He contends that he has a well-founded fear of persecution in Nepal for political reasons. Yet he was refused a protection visa by a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) and failed to have the delegate's decision overturned in the Refugee Review Tribunal. He then applied for judicial review in the Federal Magistrates Court (now the Federal Circuit Court of Australia) but was unsuccessful there, too. He wants to appeal the judgment of that court but did not file his notice of appeal within the time prescribed by the Federal Court Rules 2011 (Cth) ("FCR"). Consequently, he now applies for an extension of time within which to appeal. 2 The federal magistrate published his judgment on 22 March 2012. In the affidavit he filed in support of his application in this court, the applicant stated that on Friday 12 April 2013 - the day before the time to appeal expired (see FCR r 36.03) - he presented at the Court's registry with his notice of appeal and various other documents including an application for exemption from court fees. He said that the registry officer refused to accept his notice of appeal for filing because he had no hard copies of his payslips. He said that early that evening he faxed four payslips to the Court but, because he neglected to fax all the other documents at the same time, when he presented at the registry counter for the second time on the Monday, 15 April 2013, the officer again refused to accept his notice of appeal for filing and on this occasion gave him a copy of the form for an extension of time. The applicant filed his application with a supporting affidavit and draft notice of appeal four days later. 3 Rule 1.39 gives the Court a discretion to extend the time to file a notice of appeal regardless of whether the time has expired before the application is made. The discretion is not subject to any conditions. But the rules call for an explanation for the delay and the absence of an acceptable explanation, though not fatal, will militate against the grant of an extension. There are a number of other factors that are well understood to bear on the exercise of the discretion. They include the extent of the delay, the merits of the proposed appeal, the prejudice, if any, to the respondent and/or third parties resulting from the delay, and the consequences of a refusal. Ultimately, the question is whether it would be just in all the circumstances to accede to the application. 4 Here, the period of delay is short. The application was filed only a week after the notice of appeal should have been filed. As the Minister properly conceded, the applicant's explanation is credible and acceptable. The delay has not prejudiced the Minister or anyone else for that matter. The only real issue is whether the proposed appeal has any merit. French J explained in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 ("Seiler") at 98 that this is a matter which must be approached with caution as the Court will consider the application on necessarily incomplete evidence and/or argument. Thus, "a strong case may be a positive factor in favour of the grant of an extension, but an apparently weak case cannot be treated as a factor weighing against it" (Seiler at 98). In the present case, however, the Minister argues that the proposed appeal is not just weak, it is hopeless, and there is therefore no point in granting an extension. As Murphy J recently observed, it is well established that an extension of time, even for a short period, may be refused if the appeal has no prospect of success: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91. It is unnecessary to refer to the numerous authorities that support this proposition. I accept the Minister's argument. In this case, for the following reasons, the proposed appeal would inevitably fail and there is therefore no useful purpose in allowing the application. Put another way, it would not be just to accede to it. 5 The right to appeal from a decision of the Federal Magistrates Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). To succeed on appeal the applicant would have to demonstrate that the federal magistrate fell into error. See, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 6 The notice of appeal includes three grounds. There is a degree of repetition in them. Without alteration they are: 1. I am not satisfied with the judgement of Lloyd-Jones FM because I believe the Tribunal Member has made a legal error in my case and his honour failed to discern a legal error in the Tribunal's purported decision. 2. I argue that the Refugee Review Tribunal Member failed to give me natural justice. 3. I conclude that the Refugee Review Tribunal Member's decision in my case has been affected by a legal error to the extent that my claims were not fairly considered. 7 The alleged legal error is not particularised (save to the extent raised in ground 3). Nor is the denial of natural justice. At the hearing I pressed the applicant (through a Nepali interpreter) to explain what the legal error was. He replied: "The legal errors, whatever I submitted is all the facts for I want justice, please". When I asked him why he was not given justice, he replied that he was unable to say. When I asked him what he meant by "natural justice", he said he did not know. As for the contention that his claims were not fairly considered, he said that the tribunal did not trust him "regarding [his] claims". He explained: Whatever I said in the RRT was all the facts and it was not given to me as a fair judgment. 8 When I sought clarification of this explanation, the applicant confirmed that he meant that the tribunal did not accept that what he was saying was fact and for that reason the tribunal decision should be set aside. He had nothing further to add. 9 These submissions indicate that the applicant's complaint is with the merits of the tribunal's decision. Nothing he said points to any conceivable jurisdictional error. Yet the federal magistrate could only disturb the Minister's decision if the decision of the tribunal was affected by jurisdictional error: Migration Act 1958 (Cth) ("Migration Act"), ss 474, 476; Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. In the circumstances, there is no reason to doubt the correctness of the decision in the court below. That is sufficient to dispose of the application. But as the applicant is unrepresented and the consequences of a dismissal of the application are serious, it is prudent to consider whether there is anything in the federal magistrate's reasons to justify the proposed appeal. To that end it is first necessary to say something about the applicant's factual contentions. 10 In his protection visa application the applicant said he was a known critic of the Maoists and had received death threats from them which forced him to leave the country. In a statement later lodged with the Department of Immigration and Citizenship he also claimed, amongst other things, that he had been abducted by Maoists while still at school and that in May 2008 he had been involved in an assault on Maoist cadres after going to the aid of a local businessman. Fearing reprisals he said he fled his village for Kathmandu. In October 2008 he came to Australia on a dependent student visa, which he later told the tribunal was procured with false documents or false information. He also told the tribunal that his marriage to the visa holder was not genuine and that not long after he arrived here he parted from the visa holder and obtained work. It was not until four days before his visa expired in 2011 that he applied to the Minister for a protection visa. The tribunal rejected his claims. The member did not believe him. Amongst other reasons, he thought that the delay in applying for a protection visa reflected adversely on the credibility of the applicant's claims. 11 In the Federal Magistrates Court the applicant raised three grounds in support of his application. First, he alleged the tribunal ignored "the favourable and supportive evidence of [his] claims and regarded [him] as an implicit economic refugee" rather than as "a refugee of persecution". Second, he contended that the tribunal made an error of law by placing "material weight" on the delay in applying for a protection visa. Third, he claimed that the tribunal decision was affected by apprehended bias "as the Tribunal Member failed to conform to standards of procedural fairness". 12 The federal magistrate found that none of the grounds could be sustained and he could not find any other basis for concluding that the tribunal made a jurisdictional error. 13 In the absence of any corroborative evidence the first ground was rejected as amounting to no more than impermissible merits review. 14 As for the second, his Honour accepted the Minister's submission that the tribunal was entitled to take into account the delay in applying for a protection visa, referring to Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 in which Heerey J held at 349 in almost identical circumstances that this was an obvious matter for the tribunal to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear. 15 The third ground of review was also dismissed. The federal magistrate referred to the legal test for determining whether there was an apprehension of bias and accepted the Minister's submissions that there was nothing on the face of the tribunal's decision record to support the contention. His Honour then went on to consider whether there had been a denial of procedural fairness for any failure to adhere to the requirements of Pt 7 Div 4 of the Migration Act, which is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in this case (s 422B), and found that there had been no such failure. 16 I can discern no error in the federal magistrate's conclusions. On the material before it, the tribunal member was entitled to disbelieve the applicant and so to reject what he asserted was fact. He had admitted, in effect, to deceiving immigration officials in order to enter Australia. There were inconsistencies, which the tribunal regarded as significant, in his various accounts. His explanations for those inconsistencies the tribunal considered implausible. 17 I accept that when an applicant holds another kind of visa, there may not necessarily be any logical connection between the delay in applying for a protection visa and the genuineness of an applicant's claims to fear persecution. Here, however, the dependent student visa had been fraudulently obtained and the applicant had long separated from the primary visa holder. That made his tenure in this country insecure. He knew or ought to have known that he had no legal right to be in this country. Indeed, he told the tribunal that from the time of his arrival here he felt insecure about his status. There is no want of logic in reasoning (as the tribunal appears to have done) that in these circumstances the applicant ought reasonably to have realised that he was vulnerable to deportation and if he were in genuine fear of persecution in his country of nationality he would not have delayed for so long before applying for a protection visa. In any case, having regard to the majority's reasons in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 there is no basis upon which the tribunal's decision could be set aside on this account for jurisdictional error. 18 In all these circumstances, the proposed appeal is doomed to fail. Consequently, it would be futile to grant an extension of time. The application should therefore be dismissed. The Minister applied for costs. The applicant was unable to offer any reason why he should not pay the Minister's costs and I will make the order the Minister seeks. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.