FEDERAL COURT OF AUSTRALIA

SZAJP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 525

MIGRATION – Application for extension of time to appeal – whether recommendation made in magistrate’s judgment that Minister exercise discretion under s 417 Migration Act 1958 (Cth) constitutes special reasons – where appeal in any event would be futile – application dismissed.

Migration Act 1958 (Cth), s 417

Hassen v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1036 – cited

M162 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCA 1146 – referred to

Daniel v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 – referred to

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 [2003] HCA 26 – referred to

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 – referred to

SBBA v Minister for Immigration & Multicultural Affairs [2003] FCAFC 90 – referred to

SZAJP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 113 OF 2005

HILL J

18 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(Ex tempore – revised)

HILL J

1                     Before the Court is an application for an extension of time to appeal a decision of a federal magistrate dismissing an application to that Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had dismissed an application for a review to it of the respondent Minister for Immigration & Multicultural & Indigenous Affair's decision not to grant, to the applicant, a protection visa.

2                     The decision of the Tribunal was made on 28 February 2003 and handed down on 20 March 2003. On 16 April 2003, the applicant applied to the Federal Magistrates Court for a review of the Tribunal's decision. An ex tempore judgment of that Court was delivered on 11 February 2004.

3                     The application for an extension of time within which to appeal the magistrate's decision was lodged in or around January 2005.

4                     The applicant, in his application for a protection visa, stated that he was a national of Azerbaijan. His passport was to the same effect.

5                     He claimed to be a refugee within the meaning of article 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). His case was that he was born in Armenia but had fled to Azerbaijan in 1980, where he had joined the Azerbaijan Democratic Party. He claimed to have participated in demonstrations and to have been beaten during a demonstration and hospitalised at the end of December 2000. He claimed also, after leaving hospital, to have been taken to a police station and again beaten. He said that false charges had been laid against him, and claimed to have a well founded fear of persecution on grounds of political opinion, that being, presumably, his advocacy of the Azerbaijan Democratic Party.

6                     The Tribunal set out the claims made by the applicant, but was not satisfied that the treatment which the applicant and his family had received from authorities, because of their Armenian connections, amounted to persecution in the Convention sense. The Tribunal accepted that the applicant was a member of the Azerbaijan Democratic Party, and that he had been beaten at a demonstration, but on the basis of independent country information, did not think there was a real chance, in the event of the applicant's return to Azerbaijan, that he would be persecuted for reason of his political opinion.

7                     The learned magistrate, as I have indicated, dismissed the appeal. In the course of the reasons, the learned magistrate considered an argument that the Tribunal had made a jurisdictional error by failing to find that the applicant was, in fact, a national of Azerbaijan. The learned magistrate indicated that the issue of nationality, in the circumstances of the facts of the case, were of significance because it raised the prospect that the applicant might be returned to Armenia and suffer persecution there.

8                     The learned magistrate considered that there was no jurisdictional error on the part of the Tribunal in it not having made a clear finding of nationality, although his Honour suggested that it would have been preferable if the Tribunal had done so.

9                     His Honour, having been of the view that the Tribunal should have made a clear finding of nationality and also that there were strong humanitarian considerations favouring the applicant, while dismissing the application made a recommendation that the Minister consider exercising her power under s 417 of the Migration Act 1958 (Cth) to substitute a decision more favourable to the applicant than the Tribunal's decision.

10                  The applicant, in an affidavit filed in this Court, says that after judgment was delivered (orally) by the learned magistrate, he decided to apply to the Minister under s 417. The affidavit then proceeds to say that in January 2005, the Minister decided not to exercise her power in his favour, and "therefore", the applicant wished to appeal the judgment of the learned magistrate.

11                  There are a series of decisions in this Court in which it has been held that the necessary special reasons which an applicant must show to justify the grant of an extension of time will not be made out merely by an argument that the applicant has made an application under s 417. The logic of these cases is clear enough. The power under s 417 is a power of last instance. It pre-supposes that there is a Tribunal decision and that that Tribunal decision must be altered, if it is to be altered, by the Minister, and only then in rare cases. As Heerey J said in Hassen v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1036 at paragraph 9:

“An application under s 417 naturally gives rise to the inference that the applicant has accepted the validity, if not the correctness on the merits, of the Tribunal's decision”.

12                  Other cases to like effect are M162 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1146, per Goldberg J; and Daniel v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21, also per Goldberg J.

13                  The solicitor for the applicant seeks to distinguish these cases on the basis that in none of them has the magistrate made a recommendation attached to the judgment that the Minister exercise her discretion under s 417. With respect, it is difficult to see why that matter alone distinguishes the case in question.

14                  The recommendation was made against the background that the learned magistrate had held that while the Tribunal had perhaps been in error, there was no jurisdictional error justifying the application being allowed. The recommendation to the Minister was made, not only on the basis that the Tribunal had not made an express finding of nationality, but also that there were strong humanitarian grounds justifying the exercise of discretion.

15                  The matter might perhaps have been different had the applicant been able to say that he had believed that there was no need to appeal during the period in which the application was being considered by the Minister, or perhaps had, in some way, been misled by advice given to him, but that is not the present case. There is another reason, in my view, why an extension of time should not be given. In my view, an appeal, if an extension of time were allowed, could not succeed.

16                  The Tribunal, it is true, did not specifically state that the applicant was a citizen of Azerbaijan. It stated only that he claimed to be. However, the point is that the matter proceeded before the Tribunal on the basis that the applicant was a citizen of Azerbaijan. He said he was. There was no suggestion to the contrary. The applicant’s nationality was just not an issue that arose before the Tribunal.

17                  There can be no jurisdictional error arising where the Tribunal makes no finding of fact in respect of a matter that is common ground between the applicant and the Minister. Obviously, the delegate of the Minister, whose decision was the subject of review in the Tribunal, had found, as indeed it was inevitable he would, that the applicant was a national of Azerbaijan and the Tribunal's reasons for decision likewise proceed upon this basis. It is submitted that it was nevertheless necessary for such a finding to be made, having regard to an argument that the applicant might be returned to Armenia if found to be not a national of Azerbaijan.

18                  With respect, that argument, like the argument of a necessity of a finding of nationality, proceeds upon the basis that this was the claim put before the Tribunal. There is no suggestion that the question of risk of refoulement was ever raised before the Tribunal. It simply was not in issue because the applicant's case proceeded on the basis that he was a national of Azerbaijan. The failure, therefore, to make an express finding on a matter not at all in issue involves no jurisdictional error (see, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 at [56]; and SBBA v Minister for Immigration & Multicultural Affairs [2003] FCAFC 90 at [8]).

19                  In these circumstances, I would refuse the application for leave to appeal.

Associate:

Dated: 29 April 2005