SZTRT v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time to seek leave to appeal from the judgment of Judge Driver of the Federal Circuit Court of Australia given on 28 August 2014. His Honour summarily dismissed the applicant's application for review of a decision of the Refugee Review Tribunal ("the Tribunal") pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules"). 2 The applicant's application was called on for hearing at 1.15 pm today, but there was no appearance by or on behalf of the applicant. I am conscious that the time for the hearing had been moved forward from 2.15 pm to 1.15 pm. I am informed by the registry staff that the applicant confirmed by telephone on 18 November 2014 that she was aware that the hearing was to start at 1.15 pm, and that a letter had been sent to the applicant on the same date confirming the new time. However, I stood the matter down until 2.15 pm in case the applicant appeared at that time. There has still been no appearance by the applicant and no appearance on her behalf. I will proceed to decide the application in the absence of the applicant. 3 The judgment of the primary judge is interlocutory and, accordingly, leave to appeal is required: r 44.12(2) of the FCC Rules; s 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth). The applicant also requires an extension of time because the application was filed one day outside the time limit imposed by r 35.13 of the Federal Court Rules 2011 (Cth). 4 The Court has a discretion whether to grant an extension of time: r 35.14 of the Federal Court Rules. It also has a discretion as to whether to grant leave to appeal. Leave to appeal will not usually be granted unless the judgment is attended by sufficient doubt to warrant the grant of leave and substantial injustice would result from the refusal of leave to appeal: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minogue v Williams [2000] FCA 125 at [19]. However, there is no hard and fast rule, and each case must be considered on its merits: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [29]. If an order, while interlocutory in its legal effect, has the practical operation of finally determining the rights of a party (as is the case here) a prima facie case exists for granting leave to appeal: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 584 at [43]. 5 It is necessary to examine whether the applicant has any arguable case that the primary judgment is attended with error. 6 The applicant is a citizen of Nepal who entered Australia on 17 December 2011. She lodged her application for a protection visa on 27 January 2012. The applicant claimed that she was the only witness to her husband's kidnapping by the Young Communist League in 2004. She claimed to fear that if she returned to Nepal the kidnappers would kill her. The Tribunal found that the applicant's claims were inconsistent, implausible, and amounted to a fabrication. In light of its findings that the applicant was not credible, the Tribunal placed no weight on the documentary evidence she submitted. The Tribunal noted that the police report lacked an official seal and that document fraud is widespread in Nepal. 7 The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Nepal for a Convention reason. In the light of its factual findings, the Tribunal also considered that the applicant did not satisfy the requirements for complementary protection. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a protection visa. 8 The grounds of the applicant's application to the Federal Circuit Court were as follows: 1. I believe the decision of the Refugee Review Tribunal made in my case is not free from a legal error. 2. The Tribunal Member ignored my substance of claims and documentary evidence. 3. I am the victim of the purported decision of the RRT. 9 The primary judge concluded: 10. Neither the application, nor the applicant's oral submissions, nor my own examination of the available material point to, let alone establish, any arguable case of jurisdictional error by the Tribunal. 10 His Honour dismissed the application with costs. 11 The draft notice of appeal annexed to the application contains the following proposed grounds of appeal: 1. I am not happy with the learned Federal Circuit [Court] Judge Driver as the Honourable judge did not identify an error of law which was committed by the Refugee Review Tribunal Member in my case. 2. I believe the Refugee Review Tribunal Member's decision in my case has involved an error of law by lack of fairness and injustice. 12 The first proposed ground seems to complain that the Circuit Court erred in finding that the grounds of review of the Tribunal's decision had not been made, or in failing to identify any jurisdictional error in the decision of the Tribunal. No error is apparent in the judgment of the primary judge, nor is any jurisdictional error apparent in the decision of the Tribunal. The proposed ground of appeal has no prospects of success. 13 The second proposed ground of appeal seems to assert procedural unfairness or other unfairness and injustice. The Tribunal carefully reviewed the applicant's claims and evidence and identified numerous inconsistencies. After weighing her evidence and setting out its concerns, the Tribunal concluded that the applicant's claims were fabricated. Its findings were open to it. No procedural unfairness is discernible. To the extent that the second proposed ground of appeal seeks merits review of the Tribunal's decision, the proposed ground is misconceived. The merits of the case, including the credibility of witnesses, are for the Tribunal to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291-292. The applicant's proposed second ground of appeal also lacks any prospect of success. 14 The absence of prospects of success in her proposed appeal make it appropriate to refuse the application for an extension of time. The application will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.