SZVVE v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application to extend the time in which to seek leave to appeal and, if time is extended, for leave to appeal. The Federal Circuit Court dismissed the applicant's claims for judicial review of a decision by the Refugee Review Tribunal ('the Tribunal') to refuse to grant him a protection visa. The dismissal by the Federal Circuit Court was summary in nature, following a show cause hearing. Such an order is interlocutory so that leave is required to appeal to this Court. 2 At the hearing the applicant appeared for himself but was accompanied by his brother. At their request I permitted the brother to make additional submissions. The brother's submissions to me were passionate and, if I may say with respect, heartfelt. He conveyed to me that their family (apart from their very elderly mother and one brother) had had to flee Lebanon. The various siblings - I think there were seven - were in a number of countries including Germany, Australia and Cyprus. Their mother remained in Beirut with one of their brothers. The applicant was very damaged by events in Lebanon and was really not mentally fit to be returned there. The two brothers work here together as musicians. It was very obvious to me that the brother is genuinely very upset at the idea that the applicant might be returned to Beirut, as is the applicant himself. Both fear for his safety and do not see the rationality of returning him to Lebanon. 3 Whether it is a good idea for the applicant to be given a protection visa is a question which the Migration Act 1958 (Cth) does not give to this Court or the Federal Circuit Court. It is a question which, for better or worse, is given to the Refugee Review Tribunal or, as it now is (plus ça change), the Administrative Appeals Tribunal. The role of the Federal Circuit Court is confined, in substance, to reviewing the Tribunal's decision for jurisdictional error. The role of this Court on any subsequent appeal is to determine whether the Federal Circuit Court itself committed legal error. 4 I say these things to make clear that whilst I have listened carefully to what the two brothers had to say most of it went to an issue upon which I am not permitted to adjudicate, namely, whether I think it would be a good idea to grant the applicant a visa. Perhaps unfortunately for the applicant, my personal views on the matter are of no consequence. 5 The question for me is a much shorter one. It is whether the time should be extended to permit him to appeal out of time. 6 I do not think that it should. The proposed grounds of appeal were six: '1 Her Honour Emmett at the time did not have the Court Book and was not aware of my circumstances, especially what appeared in Court Book page 111 onwards. 2. Her Honour Emmett failed to consider my evidence before the Tribunal and I was confused to refer her to relevant part of the Affidavit filed in Court on 23 April 2015. 3 Contrary to the judgement [sic] of Judge Emmett (ex tempore) dated 1 June 2015 I have an arguable case which was denied by Her Honour as she failed to refer to Court Book and relied totally on the Refugee Review Tribunal's decision without considering further information supporting my case. 4. I was surprised that Her Honour requested copy of the Court Book from the Lawyers of the First Respondent and did not have or gave herself enough time to see why I disagree with the Refugee Review Tribunal's decision. 5 If the Tribunal as well as Her Honour accepted that I was shot by a sniper in 1986, and that I fled to Cyprus to escape and I was detained by the Police at the Airport which, at the time, was controlled by Hezbollah. My argument is the Tribunal had no reason to deny my subjective well founded fear of persecution which means the Tribunal's decision is unreasonable as it failed to accept my fear of persecution should I be compelled to return to Lebanon because Hezbollah is dominating the area and I proved that anywhere else in Lebanon I will not be safe as per Court Book p. 111-132. Therefore, I was denied fairness and justice. 6. I hope that the Honourable Federal Court of Australia will give me the opportunity to consider my case as Her Honour Judge Emmett dealt harshly and quickly and did not have sufficient evidence for her judgment.' 7 I propose to treat this as raising three sets of issues: (a) the consequences of the unavailability of the Court Book at the commencement of the hearing in the Federal Circuit Court; (b) the significance of the Court's refusal to receive the transcript; and (c) the significance of the event with the sniper in 1986. 8 It is useful to consider these in turn.