FEDERAL COURT OF AUSTRALIA

SZDWM v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 940

SZDWM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 979 OF 2005

STONE J

5 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for extension of time to file and serve a notice of appeal from a decision of a Federal Magistrate made on 15 March 2005.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 24 July 2002 and handed down on 13 August 2002.

Background

2                     The applicant is a citizen of India who arrived in Australia on 4 December 2000.  On 12 January 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 21 March 2001, a delegate of the respondent refused to grant a protection visa to the applicant and on 12 April 2001 the applicant applied to the Tribunal for review of the decision.

3                     The applicant’s claims are adequately set out by the Tribunal as follows:

‘His family is very religious.  He claims that his uncle and younger brother are supporters of Babbar Khalsa, which is considered to be a terrorist group by the Indian authorities.  He claims that his younger brother and uncle’s activities are limited to attending rallies, collecting funds and propaganda for the Khalistan movement.  He claims he was never a member of this movement, but was a member of the All India Sikh Student Federation, which engaged in peaceful protest in 1990.

He claims that the police arrested his uncle from the applicant’s home; but his uncle managed to escape, and they received phone call from his uncle.  He claims that they were subjected to police violence.  He claims that he was beaten up a little because of his age but his father was badly tortured and kept in detention for several months.  He claims that his father was released after paying a huge amount of money as a bribe through a middle man, but the police kept coming to the applicant’s home and kept harming them.

The applicant claims that in 1999 his younger brother left home because the police suspected that he had joined his uncle.  The applicant claims that he was arrested in July 2000 and they wanted to know the whereabouts of his uncle and brother and if the applicant had any contact with them.  He claims that he was treated badly and after being released he had to report to the police on a weekly basis.  He claims that sometimes the police asked him to stand or sit all day and sometimes they beat him up.  He claims that he became the victim of violence and human rights abuses by the police.  He claims that although there was a promise of an investigation into human rights abuses, it has not happened, and the police have not been punished for their abuses.  He claims that under these circumstances he does not think the Indian authorities can protect him in India.’

4                     The Tribunal set out in detail the applicant’s response to questions put to him at the hearing.  The Tribunal also referred extensively to independent country information.  The Tribunal then addressed the claims made by the applicant:

‘The Tribunal does not accept the applicant’s claims that his brother and uncle are wanted terrorists.  In the hearing the applicant claimed that his brother and uncle did not have high profiles in the movement and their only activities were attending rallies.  At most the Tribunal is prepared to accept that the applicant is a Sikh and the applicant’s uncle and brother may have attended Babbar Khalsa rallies in the early 1990’s.  The Tribunal does not accept that the police detained the applicant in 1997 and again in 1998, because the applicant’s brother and uncle are wanted terrorists.  The Tribunal accepts that they are at most low level supporters of the Babbar Khalsa movement and not terrorists or perceived as terrorists.

The Tribunal accepts, on the basis of the independent information set out above, that Sikhs, particularly young Sikh males, were at risk of persecution in India in the mid to late 1980’s.  This was a horrendous period of time in India’s history and many atrocities were committed against the Sikh population.  However, the independent information before the Tribunal clearly indicates that the wholesale persecution of Sikhs was at an end by 1992 when peace was restored and the situation began to return to normal.  Things have continued to improve since the early 1990’s.  Sikhs are not a persecuted group in India today.  The Tribunal is not satisfied that the applicant’s uncle and brother were militants in the Babbar Khalsa movement.  The independent information before the Tribunal indicates that the Sikh militant movement is no longer active in Punjab and the hard core militants have either been physically wiped out or are no longer in India.  The independent information before the Tribunal clearly indicates that the few remaining Sikh militants are now based in Pakistan.  Therefore, it follows that the Tribunal does not accept that the applicant has a well founded [fear] of persecution as a result of his relationship with his uncle and brother and their alleged activities.

The Tribunal does not accept the applicant’s claims to be credible and does not accept that he has ever suffered any form of past persecution in India.  The Tribunal places no weight on any of the applicant’s claims of past persecution.  Furthermore, the Tribunal is not satisfied that the applicant has ever been involved in any activity which would give him a profile or that would draw him to the attention of any potential persecutor.  The Tribunal is not satisfied that the applicant has been candid about his claim to need Australian Government protection for a Convention reason.  The Tribunal is satisfied that the applicant left India legally and on his own properly issued, Indian passport, which he stated at the outset of the hearing.’

5                     It is clear from these comments of the Tribunal that the fundamental difficulty for the applicant was that the Tribunal did not accept his account of his experiences in India or of the state of the country as described by the applicant.  Consequently, the Tribunal affirmed the decision of the delegate.

Judgment of the federal magistrate

6                     On 18 June 2004, the applicant filed an application for review in the Federal Magistrates Court.  In his reasons the Federal Magistrate noted the delay in seeking the judicial review of the Tribunal’s decision and stated:

‘On evidence filed by [the applicant] and by the respondent, it appears that soon after the Tribunal decision was handed down he instructed a solicitor in Adelaide to commence a proceeding in the High Court.  This was remitted to the Federal Court in February 2003 and given the file No.S173 of 2003.  On 27 June 2003, Selway J dismissed the proceeding due to non compliance with procedural directions which his Honour had previously made.  The applicant claims not to have been told about this outcome for a period, and that when he was told he sought to invoke the Minister's discretion under s.417 rather than commence fresh proceedings.  He was told that his 417 application was refused in a letter dated 26 May 2004. 

…

The applicant has on the three occasions that the matter has been listed in this Court, that is on the first court date, the return of the respondent's motion in November of 2004, and today, been represented by counsel instructed directly by his client.  I deduce that the application filed in this Court was also drafted by counsel, since it shows a level of competence not often seen in applications in this Court. 

Counsel for the Minister today did not submit that, if jurisdictional error were made out, relief should be refused on the basis of delay or the applicant’s conduct in the previous litigation.  I therefore do not need to make findings assessing that previous history.’

7                     The applicant pressed two grounds of review before his Honour:

(a)    The Tribunal based its finding entirely on independent country information and therefore fell into jurisdictional error; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20/2002’) per Kirby J at [130]; and

(b)   The Tribunal failed to have regard to relevant material, being three documents submitted by the applicant’s agent at the hearing of the Tribunal.

8                     His Honour did not accept either of the grounds of review put forward by he applicant.  In relation to the first ground of review, his Honour stated that:

‘I do not accept the contention made in particular (a), to the extent that I understand it.  As I have indicated above, I consider that the Tribunal's use of country information was a correct use of general background knowledge about the current situation which was relevant to an assessment of the applicant's claims.  I do not consider that the Tribunal has relied "entirely" on that information as is contended. 

The Tribunal has, as I have indicated, assessed the claims against the country information, but I can see no jurisdictional error in it proceeding in that manner.  As was said by the Full Court in NAHI…[[2004] FCAFC 10]: “The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.”  In my opinion, the Tribunal has considered the applicant's "individual circumstances" and, therefore, has not fallen into the error suggested by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [130] quoted by the applicant.’

[Emphasis in original]

9                     The Federal Magistrate stated that the three documents referred to in the second ground of review were a one page extract from a United States’ Department of State country report in 2000 and two news items translated from Punjabi.  Counsel for the applicant contended before the Federal Magistrate that these documents were of such pertinence to an assessment of the applicant’s claims that the failure of the Tribunal to assess the documents under its heading ‘Findings and Reasons’ indicated that it had not considered them.  His Honour at [21]-[23] of his reasons stated in respect of this submission:

‘I consider that there is a simple answer to these contentions.  It is that the three documents tendered at the hearing did not in fact have the contended significance to a proper assessment of the applicant's claims. 

One of the two newspaper reports which were tendered concerned the acquittal of three Sikhs arrested in 1999 who had been tried as dangerous terrorists of Babbar Khalsa who were in possession of explosives.  The second was a report of a person who had suffered abuse at the hands of an airport official in Delhi in 1998.  I cannot see how either of the reports was of particular relevance to an assessment of the applicant's claims.  The extract from the US country report was not directed at the position of Sikhs or other circumstances relevant to the applicant's claims. 

In my view, it was open to the Tribunal to regard the material as not warranting specific analysis when describing its ultimate reasoning process.  I am certainly not prepared to infer that the Tribunal did not read the information tendered and ignored it in reaching its conclusions.  In its reasons it carefully recites and describes the information which was tendered, and it would be quite unwarranted to draw an inference that the Tribunal ignored it.’

10                  His Honour dismissed the application for review.

this application

11                  On 16 June 2005, the applicant filed an application for extension of time to file and serve a notice of appeal from the decision of the Federal Magistrate.  Pursuant to O 52 r 15(1)(a), any notice of appeal from his Honour’s judgment was to be filed by 5 April 2005.  As such, the application for extension of time was filed over two months outside the time period required under this provision.

12                  However, O 52 r 15(2) states that the Court may, for ‘special reasons’, give leave to file and serve a notice of appeal notwithstanding the provisions of O 52 r 15(1).  There are two considerations to be taken into account in considering whether leave should be granted.  The first is the reason for the delay in seeking to file a notice of appeal and the second is the issue of the appeal itself and whether such an appeal has any prospects of success; see Jess v Scott (1986) 12 FCR 187; Australian Prudential Regulation Authority v Holloway [2001] FCA 1240; and Howard v Australian Electoral Commission [2000] FCA 1767.

13                  At the hearing of this application today the applicant stated that his difficulty with English and, by implication, his unfamiliarity with the legal process was the reason for his delay in this matter.  A period of just over two months, while a significant period, is not such a delay that, in my view, would in itself suggest that he should not be granted the extension of time he seeks.

14                  In this particular application the applicant has a more fundamental problem.  In the affidavit accompanying his application for an extension of time, he states that his proposed grounds of appeal were that his Honour failed to appreciated the ‘judicial error’ in the Tribunal’s reasons, by which I take the applicant to mean jurisdictional error.  It is clear from the material in the affidavit and also in the very short statement that the applicant made before me today that the grounds on which he takes issue with the Tribunal’s decision and therefore with his Honour’s decision is a difference of opinion over the merits.

15                  I explained to the applicant that this Court has no power to interfere with the Tribunal’s finding on the facts.  The applicant was not able to make any further submissions or point to any other ground on which he might seek to challenge either his Honour’s decision or the Tribunal’s.  In my view, there is no utility in granting an extension of time to appeal since any appeal in this matter would be doomed to fail.

16                  In my opinion, his Honour correctly dismissed the applicant’s application for the reasons he gave.  Therefore, the application for an extension of time must be dismissed with costs.

Associate:

Dated:              7 July 2005