FEDERAL COURT OF AUSTRALIA

SZDVA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1671

MIGRATION – application for an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court – Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal – delay of over four months – new grounds challenging decision of the Refugee Review Tribunal sought to be raised on appeal – grounds raised before Federal Magistrate not pressed in draft notice of appeal – Refugee Review Tribunal found that the fear of persecution was not well-founded – whether the Refugee Review Tribunal erred in not considering whether the fear of persecution could itself constitute persecution for which the applicant was entitled to refugee protection

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), s 91R, 417, 474, 477

Federal Court Rules, O 52 r 15

Australian Prudential Regulation Authority v Holloway [2001] FCA 1240cited

Howard v Australian Electoral Commission [2000] FCA 1767 cited

Jess v Scott (1986) 12 FCR 187 cited

SGKB v Minister for Immigration & Multicultural & Indigenous Affairs (2003)76 ALD 381 distinguished

SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656 cited

SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 cited

SZDVA v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL

NSD 1715 OF 2005

STONE J

17 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

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 an extension of time to file and serve a notice of appeal from the judgment of a Federal Magistrate given on 19 April 2005.  His Honour dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (‘Tribunal’), made on 31 March 2004 and handed down on 27 April 2004.  The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection visa.  The applicant based his claim for a protection visa on the consequences that he alleged would follow from his seeking conversion from Islam to the Christian religion.

2                     On 11 June 2004, the applicant filed an application for judicial review in the Federal Magistrates Court.  At the hearing of his application the applicant appeared unrepresented with the assistance of an interpreter.  The Federal Magistrate noted at [21] of his judgment, that the applicant’s submissions ‘amounted to an affirmation of his claim that he had genuinely sought conversion to Christianity and that he genuinely feared harm if he returned to Jordan’ but did not identify any jurisdictional error.  His Honour considered all six grounds of review in the applicant’s amended application for judicial review and rejected them.  None of these grounds is challenged in the applicant’s draft notice of appeal to this Court and it is unnecessary to consider them. 

3                     His Honour was unable to find any jurisdictional error in the Tribunal’s reasons and concluded that the Tribunal’s decision was therefore a privative clause decision ‘for which relief is precluded by s.474(1)’ of the Migration Act 1958 (Cth) (‘the Act’) and that consequently the application must be dismissed.

4                     In the proceedings before his Honour, the first respondent filed a notice of objection to competency in which she objected to the jurisdiction of the Federal Magistrates Court.  The ground of the objection was that the Court has no jurisdiction to review a decision of the Tribunal because s 477(1A) of the Act provides that an application to that Court under s 39B of the Judiciary Act 1903 (Cth) must be made within 28 days of notification of the Tribunal decision.  His Honour was plainly aware of the notice, although he did not refer to it in his reasons, as he ordered that the objection to competency be upheld and the application be dismissed. 

This application

5                     On 16 September 2005, the applicant filed an application for an extension of time to file and serve a notice of appeal from the judgment of the Federal Magistrate.  The applicant seeks an extension of time on the basis that O 52 r 15(1) of the Federal Court Rules requires that a notice of appeal be filed and served within 21 days of the date when the judgment appealed from was pronounced.  As noted above at [1], the judgment of the Federal Magistrate was pronounced on 19 April 2005 and consequently any notice of appeal should have been filed and served by 10 May 2005.

6                     Given the basis on which the Federal Magistrate dismissed the application for review, the question whether the decision of his Honour was interlocutory may arise.  If so, the applicant would require leave to appeal; SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543; SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656.  However, given the view I have formed about the applicant’s chances of success in any appeal and that the respondents have not raised it, it is not necessary for me to consider this issue.

7                     Order 52 r 15(2) provides 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).  Ordinarily, there are two considerations to be taken into account in considering whether an extension of time 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. 

8                     The delay in this case is a period of over four months.  In my view, this is a significant period.  The applicant’s explanation is that, on legal advice, he was seeking a favourable administrative decision from the first respondent under s 417 of the Act.  This does not adequately explain the delay in filing an appeal to this Court.  There is no evidence of any expectation on the part of the applicant that the first respondent was likely to make a favourable decision and the applicant does not claim to have acted on such an expectation.  Ultimately, however, the delay it is not such that would, in itself, suggest that he should not be granted the extension of time he seeks.

9                     As noted above at [2], none of the grounds of review pressed before the Federal Magistrate is challenged in the applicant’s draft notice of appeal.  The only grounds of appeal are that (a) the Federal Magistrate erred in not determining that the Tribunal had made a jurisdictional error by asking itself the wrong question and applying the wrong test; and (b) his Honour did not follow the decision of this Court in SGKB v Minister for Immigration & Multicultural & Indigenous Affairs (2003)76 ALD 381 (‘SGKB’). 

10                  As the first ground of appeal takes its content from the decision of the Full Court in SGKB there is really only one ground of appeal in the draft notice.  SGKB was concerned with an appeal from a Judge of this Court dismissing an application under (the then-operative) s 475(1) of the Act.  At issue on appeal was the appellant’s claim to fear persecution on account of his religion, having converted to Christianity when in Australia.  The Full Court stated at [15]:

‘Mansfield J considered that the Tribunal had accepted “… that, if the applicant’s conversion … might become known to the authorities in Iran, he would have a well-founded fear of persecution if he returned there.”  Although such a finding is not express, it is probably implicit in the Tribunal’s reasons.  However it also found that the appellant would not draw his conversion to the authorities’ attention, and that he would therefore not suffer harm.  Thus, his fears were not well-founded.’

11                  The Full Court held that the Tribunal focussed on whether the appellant might bring his conversion to the attention of the authorities rather than on the possibility that the authorities might discover his conversion.  Further, the Court held that the Tribunal failed to consider potential action by the local mosque.  The Court also held that the Tribunal had failed to consider appropriately the nature of any potential persecution, focusing too narrowly on the possibility of the death penalty being imposed and observed, at [22]:

‘… the Tribunal considered, not whether the appellant had a well-founded fear of persecution, but whether or not it was likely that he would suffer persecution.  The two questions, although distinct, are closely related.  Perhaps the Tribunal meant that its view as to the improbability of persecution led it to infer that the appellant’s fear was not well-founded.  However the Tribunal’s apparent failure to consider the seriousness of the possible consequences of exposure suggests strongly that the Tribunal did not consider whether the appellant’s fear was well-founded.’

12                  In the present circumstances, the Federal Magistrate was plainly bound, as a matter of precedent, by the decision of the Full Court in SGKB.  That being said, I have difficulty in seeing the relevance of this judgment to the circumstances presently before the Court.  I am not persuaded that the first ground of appeal, read in light of the judgment in SGKB, has any merit.

13                  The judgment of the Full Court in SGKB was concerned with the Act as it stood prior to the commencement of amendments that inserted s 91R.  Section 91R provides that art 1A(2) of the Refugees Convention does not apply in relation to persecution for a Refugees Convention reason unless:

(a)               that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)               the persecution involves serious harm to the person; and

(c)               the persecution involves systematic and discriminatory conduct.

In subsection (2) of s 91R, there is given an instance of ‘serious harm’ (for the purposes of paragraph (1)(b)) the example of a threat to the person’s life or liberty.

14                  In my view, the Tribunal did not focus solely on persecution in relation to the imposition of the death penalty.  It considered whether the applicant had a well-founded fear of persecution overall including any prospect of persecution arising from the removal of his civil rights and property as well as harm by non-State actors.  It found, based on independent country information, that the appellant did not have a real chance of being harmed on these bases. 

15                  Counsel for the applicant, Mr Prince, who appeared pro bono, stressed the fact that the Tribunal in this case had found that certain documents submitted by the applicant were authentic.  Included in those documents was a document issued by the Jordanian Ministry of Justice, Islamic Court, dated 1 July 2003, giving the court ruling on the applicant’s case including that:

‘In case the above mentioned is arrested, he is to be referred to the relevant court to apply the most severe punishment for apostatizing from Islamic religion; [the applicant] is considered stripped of all his civil rights and private properties as of the date of sentence.’

16                  Mr Prince relied on the comment of the Full Court in SGKB at [21] of its reasons where it commented that:

‘...the Tribunal appears not to have considered the seriousness of the consequences to the appellant of his conversion becoming known to the authorities.  The Tribunal accepted that the penalty for apostasy might be death. The evidence demonstrated other quite serious consequences, including loss of government employment.  It ought to have considered whether or not the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution.  In our view, to live under the shadow of such a threat might well do so.  Further, the Tribunal ought to have considered whether or not the risk of losing the opportunity of government employment was itself sufficient to constitute persecution.  We say nothing about the possibility of mere harassment which appears to be an incident of practising the Christian faith rather than of conversion from Islam.  His Honour considered that the appellant had not relied upon discriminatory conduct against Christians, as opposed to converts from Islam, as a justification for his fear.’

(emphasis added)

17                  It is relevant to note that in the present case the Tribunal, having found that the documents were authentic, went on to state that it:

‘…found it difficult not to conclude that the applicant in this matter, as in others, has acted in bad faith in order to secure permanent residence in Australia.’

18                  The Tribunal was referring to the fact that although the applicant married a Christian in 1999 and his family was aware of this:

‘…the applicant’s clan did not meet to consider his apostasy until June 2003 after the failure of his Protection Visa application.  He does not appear, according to his evidence, to have advised his family that he was no longer married to a Christian, or that he had not been baptised as a Christian.  Indeed, he appears to have allowed his family to proceed with their actions in relation to a Shari’a court without any attempt to deter them.’

19                  The relevance of this conclusion of the Tribunal to s 91R(3) was drawn to my attention by Ms Rayment, who appeared for the respondents.  That section directs that conduct engaged in by the applicant in Australia is to be disregarded unless:

‘the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’

20                  It is clear from the Tribunal’s statement quoted above at [17] that it was far from satisfied as to the factors referred to in s 91R(3).

21                  Further, in my view the Tribunal’s reasons do not demonstrate that it failed to distinguish between whether the applicant was in fact likely to suffer persecution and whether he had a well-founded fear of persecution nor did it fail to take into account the potential seriousness of the consequences to the applicant of exposure his alleged conversion.  At all times the reasons of the Tribunal focus on the relevant issue in this case; that is, whether the applicant at the time of the Tribunal’s decision had a well-founded fear of persecution.  Mr Prince was not able to point to anything in the Tribunal’s reasons which indicated that any claim of the sort referred to by the Full Court in SGKB had been raised before the Tribunal.  To my mind, to read into the Tribunal’s reasons an error such as that contended by the applicant is, in my opinion, to misinterpret its reasons and, at best, to subject them to unwarranted scrutiny. 

22                  Ultimately, the Tribunal found that the applicant was not a Christian and had not demonstrated a genuine wish to convert to Christianity.  The Tribunal accepted independent country information which provided that the death penalty was never imposed and was not satisfied that there was a real chance the applicant would be seriously harmed by way of an ‘honour killing’ by his family, his clan or otherwise.  The Tribunal also accepted that in practice apostates are not stripped of their property and other rights.  In addition, and most importantly, there was no evidence put before the Tribunal to indicate any serious harm on the basis of the fear itself, nor that the applicant put his claim to refugee protection in this way.  In these circumstances, it was not incumbent on the Tribunal to consider whether the fear of such harm itself constituted persecution and the circumstances considered by the Full Court in SGKB are distinguishable on this basis.

23                  For these reasons I am satisfied that an appeal from the decision of the Federal Magistrate would have little or no chance of success and therefore that the present application must be dismissed with costs.

Associate:

Dated:              24 November 2005