SZSYM v Minister for Immigration and Border Protection

Federal Court of Australia|2014-03-07|Before: Perry J

Introduction 1 This is an application for an extension of time within which to file a notice of appeal. The application is opposed by the first respondent. The second respondent filed a submitting appearance, save as to costs. 2 The proposed appeal is from a decision of the Federal Circuit Court of Australia made on 16 October 2013 in SZSYM v Minister for Immigration [2013] FCCA 1848 (the Court below). The Court below dismissed the applicant's application for judicial review of a decision made on 28 May 2013 by the Refugee Review Tribunal (the Tribunal) to affirm the decision made by a delegate of the first respondent (the Minister) to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Minister's decision was made on 21 June 2012 by an authorised delegate pursuant to s 496 of the Act. 3 The applicant did not file written submissions although submissions were filed by the Minister. The applicant appeared without legal representation at the hearing in the Court below and at the hearing of the current application before me, and was assisted by a Bengali interpreter. 4 For the reasons which I explain below, I consider that the application for an extension of time within which to appeal should be dismissed for the reason that there is no merit in any of the proposed grounds of appeal.

Background 5 The applicant is a citizen of the People's Republic of Bangladesh. He arrived in Australia on 20 October 2011 on a valid subclass 456 Australian temporary business visa (Class UC). 6 On 24 November 2011 the applicant applied to the Minister under s 65(1) of the Act for a Protection (Class XA) visa on the ground of a fear of persecution if returned to Bangladesh from the Bangladesh Awami League (AL), the Bangladesh government, the police and the Rapid Action Battalion as a consequence of his political opinions and affiliations with the Bangladesh National Party (BNP) and its associated student and youth organisations. In particular, during his protection visa interview on 1 June 2012 he claimed to have been involved with Chhatra Dal, the student wing of the BNP, from 1998 until approximately 2006 when he spent a period of time living overseas in Korea. Shortly after his return to Bangladesh, he claimed that in April 2011 he joined the Jaitiotabaid Jubo Dai (JJD), the youth wing of the BNP, with which he had an active involvement. He also claimed that he had held a leadership position within the BNP. 7 The applicant claimed that he had received threats in the past from the AL and that they had previously attacked him resulting, on at least one occasion, in his hospitalisation. He further claimed that the police in Bangladesh cannot protect him and had refused to do so in the past after he had been attacked. In support of his claims he provided a letter allegedly from the President of the JJD of the Ward in which the applicant said he had held a leadership position, which attested to the applicant's involvement in the BNP (the Letter of Support). 8 The Delegate refused to grant the visa, finding that he was not satisfied that the applicant's claims to be involved with the BNP or other political organisations in Bangladesh were credible. The delegate also found that the Letter of Support was not genuine, in light of his adverse credibility findings and available information which indicates that fraudulent documents are prevalent in Bangladesh and easy to obtain. 9 On 23 July 2012, the applicant applied to the Tribunal for review of the delegate's decision. The applicant attended a hearing and gave evidence before the Tribunal on 13 May 2013. The applicant did not have legal representation at the hearing, but was assisted by a Bengali interpreter. 10 On 28 May 2013, the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a protection visa. The Tribunal rejected the applicant's claims of active political involvement in the BNP or with any of its affiliated student associations, and to having been physically harmed in the past, on the basis that the applicant was not a credible witness. Furthermore, while finding that the applicant was a supporter of the BNP, the Tribunal concluded on the basis of independent country information that there was no real chance of persecution or "significant harm" so as to be a person to whom Australia owed protection obligations under the Refugees Convention in satisfaction of the requirements of s 36(2)(a) of the Act or the complementary protection obligation as provided for in s 36(2)(aa). 11 As to its findings on credibility, the Tribunal found among other things that certain new claims made at the Tribunal hearing were fabricated and that the applicant's knowledge was not commensurate with that of being a leader as he claimed. The Tribunal also found that aspects of the applicant's evidence on key matters were inconsistent with his evidence given to the Department, including his account of how he had obtained the Letter of Support. In this regard, the applicant had told the Tribunal that the letter had been emailed to him before the author of the letter went to gaol. However, he had told the Department that the letter was obtained from the author's brother because the author was in gaol. The Tribunal found that there was no plausible explanation for the inconsistency and concluded (at [18]) that "[h]aving not found him to be a credible witness I have given little weight to the letter from [the author], given the prevalence of fraudulent documents in migration matters from Bangladesh (see country sources below)." The country sources referred to were set out in the annexure to the decision under the heading "Document fraud". 12 The applicant applied to the Court below for judicial review pursuant to s 476 of the Act. That application was dismissed on the basis that each of the grounds alleged took issue with the factual findings of the Tribunal which were beyond the jurisdiction of the Court below to review.

Consideration of the application for an extension of time

3.1 Is leave to extend time required? 13 In the absence of an order extending time, any appeal to the Federal Court of Australia from a decision of the Federal Circuit Court is generally required to be filed within 21 days under r 36.03 of the Federal Court Rules 2011 (Cth) (formerly O 52 r 15(1)). That rule provides that: "An appellant must file a notice of appeal: (a) within 21 days after: (i) the date on which the judgment appealed from was pronounced or the order was made; or (ii) the date on which leave to appeal was granted; or (b) on or before a date fixed for that purpose by the court appealed from." 14 The primary judge gave an ex tempore judgment on 16 October 2013 dismissing the application for judicial review. The applicant applied to this Court on 21 November 2013 for an extension of time within which to institute an appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). 15 While the judgment of the Court below was pronounced on 16 October 2013, the sealed orders were not entered until 12 November 2013. In the circumstances, Senior Counsel for the Minister addressed the question of whether leave was required and pointed to r 16.02 of the Federal Circuit Court Rules 2001 (Cth) which provides that a judgment or order of that Court takes effect on the day when it is given or made, unless the Court otherwise orders. 16 There being no evidence of any contrary order, the Minister rightly submitted that the judgment below took effect on 16 October 2013 and that time within which to appeal commenced to run from that date for the purposes of r 36.03 of the Federal Court Rules. It follows that the period within which an appeal could be instituted as of right expired on 6 November 2013 and an extension of time within which to appeal is required.

3.2 The principles by which the application is assessed 17 The principles which guide the Court's discretion in deciding whether or not to grant an extension of time are well established, namely, "…the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal": Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22] (Farrell J); see also Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J).

3.3 The applicant's delay in initiating proceedings 18 For the reasons earlier stated, the application is 15 days out of time. The applicant's draft notice of appeal is accompanied by an affidavit made by him on 21 November 2013. While it is not apparent whether the affidavit was sworn or affirmed, the Minister properly did not take any point in this regard. 19 In his affidavit at [2] and [3], the applicant explains the reasons for his delay as follows: "[2] I was waiting for the decision of the Court below but I have not received this decision until yesterday. [3] By the time I have received the decision the prescribed time has been passed." 20 The applicant further explained at the hearing that he had not been aware that time started when the decision was pronounced by the Court below on 16 October 2013. Rather, he explained that it was his understanding that time commenced to run from the date on which he received a copy of the decision and orders on 20 November 2013, after the period within which to appeal had in fact expired. No issue was taken with the applicant's explanation which I accept. 21 In the result, as the Minister properly conceded, the question of whether an extension of time should be granted turns upon whether the proposed appeal has sufficient prospects of success. The delay was not substantial, a reasonable explanation has been given for that dela, and the respondent appropriately conceded that it will not suffer any real prejudice as a result of that delay.

3.4 Does the application enjoy sufficient prospects of success?

3.4.1 Overview 22 The proposed grounds of appeal are identical to those contained in the applicant's amended application before the Court below. As was rightly pointed out by Senior Counsel for the Minister, the grounds identified in the draft notice of appeal are misconceived in that they seek to challenge only the decision of the Tribunal and do not engage with the reasons of the Court below. However, having regard to the applicant's circumstances and lack of legal representation, I consider (and the Minister accepted) that, fairly read, the draft notice of appeal should be taken as challenging the decision of the Court below and requesting this Court to consider whether the primary judge's decision wrongly failed to hold that the Tribunal erred in the respects for which the applicant contends. 23 I have considered the proposed grounds of appeal on that basis and have reached the view that there is no merit in any of the proposed grounds of appeal.

3.4.2 Proposed grounds 1 and 2, draft notice of appeal 24 The Court below considered grounds 1 and 2 together. By ground 1, the applicant claims that the Tribunal failed to assess his claim of persecution on the basis of his involvement with the BNP in Bangladesh and rejected his claims that he would suffer serious harm by reason of his political opinion notwithstanding its finding that he was a supporter of the BNP. Ground 2 alleges that the Tribunal "failed to assess my persecution on the basis of political circumstances exist in Bangladesh" given that the country evidence showed the existence of political violence in Bangladesh and that BNP leaders and activists faced serious harm from the AL and its government agency. 25 In my view, there is no error in the primary judge's reasons for dismissing those grounds. The Tribunal's reasons demonstrate that it did in fact assess the applicant's claim that he had a well-founded fear of persecution by reason of his political activities, as it was required in law to do, and made findings rejecting those claims on the evidence before it which were open in law. Specifically, it was open to the Tribunal to reject the applicant's claims as to the nature of his involvement with the BNP and affiliated associations, aside from his claim to be a supporter of the BNP, on the basis of its adverse findings as to credit and to find on the country evidence that, as a supporter, he did not hold a well-founded fear of persecution by reason of his political opinions or face a real risk of significant harm if returned to Bangladesh. Matters of credit are quintessentially matters of fact for the Tribunal to determine: Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 581 ALD 365 at 393 [124] (Goldberg J). Equally, the weight to be given to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ). 26 In short, neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal's decision. The Federal Circuit Court was seized with jurisdiction over the Tribunal's decision by s 476 of the Act and had the same original jurisdiction as that vested in the High Court under s 75(v) of the Constitution. As such, the jurisdiction of the Federal Circuit Court was limited to a consideration only of the legality of the decision by the Tribunal to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). As explained in Craig v South Australia (1995) 184 CLR 163 at 179 (see also, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 574) jurisdictional error in the context of an administrative tribunal such as the Refugee Review Tribunal is established where, for example, the tribunal: "…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers." 27 The decision of such a Tribunal will also be tainted by jurisdictional error where there is a breach of the rules of procedural fairness. However, this represents the limits of the jurisdiction of the Court below with respect to the Tribunal's decision, being a "migration decision" as defined in s 5 of the Act. As such, in contrast to the powers vested in the Tribunal, the Court had no power to grant the appellant a visa or to require that a visa be granted. Nor does that Court otherwise have jurisdiction to undertake a review of the merits of the Tribunal's decision to refuse to grant the applicant a protection visa. 28 The jurisdiction of the Federal Court, in turn, on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth), is in the nature of a rehearing. This Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant's claims.

3.4.3 Proposed ground 3, draft notice of appeal 29 The proposed third ground alleges first that the Tribunal, when assessing the applicant's credibility, did not consider his application as a whole and thereby failed to accord him procedural fairness. However, as the Court below held at [25], it is apparent from the reasons of the Tribunal that it did consider the totality of his circumstances. The fact that the Tribunal was not satisfied of the credibility of the applicant's claims does not point to any failure to consider the application as a whole. 30 The proposed ground also contends that the Tribunal failed to investigate the authenticity of the Letter of Support with the authors before dismissing his application. In rejecting this aspect of the claim, the Court below correctly applied the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI). In that decision, the High Court made it clear that the Tribunal is under no general obligation to make inquiries. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised at 1129 [25]: "The duty imposed upon the [Refugee Review] Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review." (emphasis added) 31 If such a failure were established, the plurality considered that it would not constitute a breach of the rules of procedural fairness, but left open the possibility that it could give rise to jurisdictional error, whether by constructive failure to exercise jurisdiction or in some other way. Their Honours did not find it necessary to decide the latter question for two reasons. First, the plurality held that there was nothing on the record to indicate that any further inquiry by the Tribunal into the authenticity of the certificates could have yielded a useful result. As the plurality said at 1129 [26], "[t]here was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision." Secondly, the submission to the Tribunal from the visa applicant's legal representatives had indicated the futility of any further inquiry (at 1129 [26]). 32 I also note that it has been said that the circumstances in which such a failure might be established are likely to be "rare or exceptional": Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at 172 [60] (Kenny J) (recently approved in Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [28] (Katzmann J)). 33 In the present case, there is no evidence of any request that the Tribunal undertake any investigation, as the Court below observed at [27]; nor any suggestion as to what line of inquiry it might pursue. Furthermore and crucially, as in SZIAI, there was no material to suggest that any information of use might have been uncovered if the Tribunal had undertaken further investigation into the authenticity of the certificates. In those circumstances, there is nothing to suggest that there has been a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, which was capable of providing a sufficient link to the outcome so as to constitute a failure of the statutory obligation "to review". In the circumstances, therefore, it was open to the Tribunal to give no or little weight to the Letter of Support, having regard to its findings that the applicant was not a credible witness and the country evidence as to the prevalence of fraudulent document in migration matters from Bangladesh, as the Court below held at [28].

3.4.4 The applicant's submissions in support of his application for an extension of time 34 Finally, the applicant's oral submissions were not directed towards identifying error in the decision below and (as had been the case before the Court below) did not address the grounds identified in the draft notice of appeal. Rather, they centred on the merits of his claim for a protection visa. The applicant also requested that the Court permit him to remain in Australia for at least a period of two years. These submissions, however, assumed a jurisdiction beyond that which is vested in this Court and in the Court below for the reasons that I have already explained.

Conclusion 35 For the reasons which I have set out, I have reached the view that the proposed appeal has no prospects of success and the application for an extension of time should therefore be dismissed. The respondent seeks its costs in relation to the application and I do not see any reason as to why such an order should not be made in the circumstances. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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