FEDERAL COURT OF AUSTRALIA

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238

SZCIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 2666 of 2005

ALLSOP J

13 MARCH 2006

SYDNEY

THE COURT ORDERS THAT:

(1)      The application for an extension of time be dismissed.

(2)      The applicant pay the respondents’ 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 orders made by the Chief Federal Magistrate on 17 November 2005 in which the Chief Federal Magistrate made orders that the Refugee Review Tribunal be joined as a party to the proceedings, that the application be dismissed and the applicant pay the respondent's costs.

2                     The applicant failed to file a notice of appeal within 21 days, therefore an extension of time for leave to file and serve a notice of appeal is required.  The Minister takes no particular point about the application for leave but from the conduct of the matter I take it that the application for extension of time is opposed.  That opposition, though I have not called upon Mr Muthalib for assistance, I take to be on the basis that no arguable grounds for an appeal have been identified.  For reasons which I will now identify I do not think that any extension of time should be granted.

3                     The application before the Chief Federal Magistrate was in connection with a decision of the Tribunal made on 5 November 2003 and handed down on 2 December 2003.  The applicant, who is a citizen of India, made claims which were described in the Chief Federal Magistrate's reasons in paragraph 3 of those reasons as follows:

In his protection visa application the applicant claimed to be of Muslim religion and feared being killed by members of the Hindu nationalist Party, Siva Sena (SS) and the militant Hindu organisation, Vishwa Hindu Parishad (VHP).  He claimed that he attempted to make complaints to police and on the two occasions when he did so his possessions were looted and his home attacked yet the police refused to register the complaints and threatened him.  More specifically, the applicant claimed that:

(a)               He saw and suffered from the carnage of the anti-Muslim riots between 1992 and 1993 which followed destruction of an ancient Muslim mosque;

(b)               In the current world climate of suspicion against Muslims there is a tension simmering under the surface in Mumbai which could turn into a disaster for Muslims at any time;

(c)               He knew the VHP and SS henchmen who killed a friend of his and since then they have been waiting to eliminate him;

(d)               The VHP and SS are in power and planning to create communal mistrust and orchestrate anti-Mulsim riots;

(e)               Since 1992 anti-Muslim feelings have been deeply rooted in Mumbai which reached new heights because of Islamic terrorism.  Local cadre members of the local Hindu political party act as assassins when trouble breaks out.  They use official local government allotment list to locate houses and buildings belonging to Muslims, mark them, and burn them and kill the Muslims.  His house was marked on two occasions and his house looted and ransacked; and

(f)                He has continuously been harassed by local cadres of the SS.

4                     The Tribunal wrote to the applicant prior to the making of its decision.  That letter was sent to the applicant care of his apparent advisers at that time.  The letter stated that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.  It invited the applicant to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims.  It also invited the applicant to obtain oral evidence from other person or persons.

5                     From this information the applicant had conveyed the need for the Tribunal to hear from him to be satisfied about his claims.  Unfortunately the applicant did not attend the hearing.  This matter was raised with the Chief Federal Magistrate in the material before him.  In his written submission to the Federal Magistrates Court the applicant stated:

I agree that I did not attend the RRT hearing.  I am not represented by a barrister because of my financial hardship. ...

He then made some comments about the need for funds and the advice he had received from the pilot scheme lawyer.  The applicant then continued in these submissions dealing with the non-attendance as follows:

Actually, I did not attend the RRT hearing because I did not collect documentary evidence to support my claims.

6                     The Chief Federal Magistrate dealt with the issue of non-attendance in [6] and [7] of his reasons which were in the following terms:

The Tribunal in a letter dated 11 September 2003, invited the applicant to a hearing on 4 November 2003.  The letter indicated that the Tribunal had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone and therefore invited him to give oral evidence and present arguments in support of his claims at the Tribunal hearing.  The applicant did not attend the hearing and did not contact the Tribunal to explain his failure to attend.  As the Tribunal notes in its decision at page 57 of the Court Book the Tribunal then proceeded to determine the application pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal at page 61 of the Court Book states:

The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  The invitation was sent to the applicant’s authorised recipient and a copy was sent to the applicant’s residential address as shown on his review application.  No response was received.  Although the copy of the invitation sent to the applicant’s residential address was returned unclaimed to the Tribunal, the invitation sent to the authorised recipient was not returned.

The applicant indicated both in his written and oral submissions that he was aware of the hearing but did not attend because he had not collected documentary evidence to support his claims.

7                     The Chief Federal Magistrate then dealt with the balance of the claims by the applicant including, importantly for present purposes, the potential operation of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

8                     Before going any further it is now appropriate to set out extensively how the Tribunal dealt with the matter, recalling that the applicant did not attend the hearing.

9                     The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal.  It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and Indigenous  [2006] FCAFC 2 that the departmental file may well contain information the subject of section 424A and within the meaning of that section.  However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did.

10                  Here, after dealing with the claims and setting out what was contained in the information before the delegate and before the department, and after referring to the invitation to hearing, the Tribunal said the following in its section on findings and reasons:

On the basis of the copy of the applicant’s passport provided with his protection visa application, the Tribunal accepts that the applicant is a national of India.

The applicant has not provided details about certain important aspects of his claims.  He states that he suffered during the anti-Muslim riots which occurred in 1992-93 but does not specify exactly what he suffered.  He does not provide the date that his friend was allegedly killed by VHP and SS ‘henchmen’ or explain why they killed his friend. He does not provide the dates on which he claims his house was looted and ransacked, the name of the local political party whose members he claims were responsible or details about ht threats made by the police when he says he attempted to complain to them about the attacks.  Finally, the applicant has provided no details about the nature of the harassment he claims to have been subjected to continuously by local cadres of the SS.  Without the opportunity to obtain these details and test the applicant’s claims at a hearing, the Tribunal is not prepared to accept the applicant’s mere assertions abut the past and future.  Specifically, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returned to India.

11                  The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act.  If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa.  Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.

12                  In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state.  The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.  The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction.  In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs  [2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:

On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision.  That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain.  The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state.  It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited.  It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.

13                  In my view, looking at the Tribunal's reasons here, those comments equally apply here.  The only question as to whether or not leave should be granted would be to argue that those reasons in SZEZI misstate the law in a case such as this in relation to the operation of s 424A.

14                  In my view they are in conformity with the approach of this court, more recently set out in SZEEU, and if there be an arguable basis for those reasons being in error that matter can be examined in another place.  I do not see any basis for concluding that the learned Federal Magistrate fell into error and I do not see the utility in extending time to appeal in circumstances where I do not think that there is any basis for thinking that the appeal will succeed.  In those circumstances I do not propose to extend time for the filing of a notice of appeal.  Thus in relation to the application for the extension of time the application is refused and I order that the applicant pay the respondent's costs of the application.

15                  The orders of the Court are:

(1)      The application for an extension of time be dismissed.

(2)      The applicant pay the respondent's costs.

Associate:

Dated:              22 March 2006