SZUXL v Minister for Immigration and Border Protection

1. The application for extension of time and leave to appeal be dismissed.
2. The first and second applicants pay the first respondent's costs of the application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia (the FCCA) (SZUXL v The Minister for Immigration (2015) FCCA 2469). The FCCA dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) pursuant to rule 44.12(1)(a) of the Federal Court Rules 2001 (Cth) (the Rules). The FCCA dismissed the application for review on the basis that the application did not raise an arguable case for relief. 2 An extension of time is required because the application to this Court was filed eight days out of time. Leave to appeal is required because the decision of the FCCA dismissing the application for review is an interlocutory decision as provided for in rule 44.12(2) of the Rules. 3 The Minister acknowledges that there is no prejudice caused by the delay of eight days in the filing of the application to this Court. However, the Minister submits that there should be no grant of leave and no extension of time because the decision of the FCCA is not attended by sufficient doubt to warrant it being reconsidered. In other words, the Minister is of the view that there is no basis upon which it could be concluded that there is an argument that the Tribunal committed any jurisdictional error. The reason for this is that the Tribunal decided the matter before it on the basis that the claims made by the first and second applicants were not credible. In short, the Tribunal simply did not believe the main claims made by the first and second applicants. Because of this, the Tribunal found that the applicants did not face a real chance of serious harm in India now or in the reasonably foreseeable future for a reason relating to the Convention and Protocol Relating to the Status of Refugees. 4 The decision of the Tribunal not to believe the main claims of the applicants, as the FCCA decided, was a matter for the Tribunal alone. At [16] of the reasons for decision of the FCCA, the primary judge said: …It is beyond argument the Tribunal considered the evidence of the first applicant and the second applicant. Unfortunately for the applicants, the Tribunal did not accept that evidence. It is also beyond argument that it was reasonably open to the Tribunal not to accept the evidence of the first applicant and second applicant for the reasons the Tribunal gave. 5 I agree with the primary judge. I also agree with the Minister that nothing in the reasons of the primary judge suggests any error in dealing with the applicant's contentions as put before the FCCA. 6 The draft notice of appeal to this Court also does not disclose any legal error. It is apparent that the first and second applicants take issue with the merits of the Tribunal's decision, but I do not have any power - and nor did the FCCA - to review the merits of the Tribunal's decision. 7 For these reasons, I am bound to conclude that the decision of the FCCA is not subject to any real doubt, and certainly not sufficient doubt to justify a grant of leave to appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.