SZRRF v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application for the extension of time within which to appeal from a decision of a Federal Magistrate which dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal. The Federal Magistrate dismissed the applicant's application pursuant to r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that it did not raise a sufficiently arguable case for relief. 2 The extension of time application is necessary because this application was filed six days late. 3 In deciding whether to grant an extension of time to file an appeal, the Court may take into account the period of delay, any prejudice to the respondent caused by the delay, the explanation for the delay and the prospects of success on the appeal if an extension of time is granted. 4 The applicant has provided no explanation for the delay in filing his application. However, in this case the period of delay is very short and the Minister has indicated that he would not suffer any prejudice by that delay. 5 The important factor in this case, however, is the prospects of success on the appeal if an extension of time is granted. 6 Two proposed grounds of appeal are raised in the draft notice of appeal. The grounds are: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned FM dismissed the application without considering the legal and factual errors contained in the decision of RRT. 7 One reason why the first proposed ground of appeal has no prospect of success is because it does not relate to any ground of review that was raised and considered by the Federal Magistrate. 8 In short, the grounds of review that were raised by the applicant before the Federal Magistrate were that the Tribunal was biased, that the Tribunal did not consider the claim made by the applicant and that the Tribunal did not consider the applicant's claim by reference to whether he feared persecution by reason of membership of a particular social group. 9 There was no ground of review before the Federal Magistrate which alleged that the Tribunal's decision was manifestly unreasonable. However, even if there had been such a ground of review before the Federal Magistrate, the ground of review would have been dismissed. This is because the Tribunal dismissed the applicant's claim because it disbelieved the applicant, and made strong credibility findings against him, and the Federal Magistrate found that those credibility findings were open to the Tribunal. 10 The second proposed ground of appeal is that the Federal Magistrate dismissed the application without considering the legal and factual errors contained in the decision of the Tribunal. There are no prospects of success for this proposed ground of appeal because the decision of the Federal Magistrate demonstrates that his Honour did consider each of the points that were made by the applicant before him in respect of each of the three grounds of review that were raised. Having examined the decision of the Federal Magistrate, I am satisfied that there is no arguable error in that decision. 11 Before the Tribunal the applicant had said that he was expecting to receive further documents which supported his claim. Under the second ground of review, the Federal Magistrate considered whether the Tribunal had fallen into jurisdictional error in making its decision without waiting for the documents. The Federal Magistrate found no such error. The Federal Magistrate observed that no specific indulgence was sought from the Tribunal, and that there was a period of a month after the hearing and before the Tribunal's decision was delivered, during which time the applicant could have provided documents if such documents existed. The Federal Magistrate noted that the applicant was at the time of the hearing before him, still waiting for the documents. In my view, the Federal Magistrate did not err in finding that the Tribunal did not fall into jurisdictional error in not waiting for the applicant to produce the documents. 12 The Federal Magistrate noted, without endorsing, the Tribunal's observation that the credibility findings it made against the applicant would, in any event, have outweighed any proposed documentary evidence. 13 In oral submissions before this Court, the applicant again said that he had documentary material which he wished to provide in support of his claim to be a refugee but no such documents were produced to the Court. 14 In my view, the proposed appeal has no reasonable prospects of success. In those circumstances, an extension of time within which to bring the proposed appeal will be refused, because it would be futile. 15 Therefore, the application is dismissed and the applicant is to pay the first respondent's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.