FEDERAL COURT OF AUSTRALIA

SZFBU v Minister for Immigration and Multicultural Affairs

[2006] FCA 1018

MIGRATION – application for extension of time within which to file and serve a notice of appeal

SZFBU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 341 OF 2006

CONTI J

8 AUGUST 2006

sydney

THE COURT ORDERS THAT:

1.                  The application for extension of time within which to file and serve a notice of appeal from the judgment of Lloyd-Jones FM given on 25 January 2006 be dismissed.

2.                  The applicant pay the Minister’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

1                     This is an application for extension of time within which to file and serve a notice of appeal from the judgment of Federal MagistrateLloyd-Jones of 25 January 2006. The application brought before the Federal Magistrate sought judicial review of the decision of the Refugee Review Tribunal (‘Tribunal’) made on 30 September 2004 adversely to the applicant’s claim for refugee status advanced pursuant to the Migration Act 1958 (Cth) (‘the Act’).

2                     The applicant is a citizen of India. The essence of his claim before the Tribunal was that he was not protected in India after he was attacked ‘many times’ by his paternal uncle. He claimed that his uncle, who belonged to the Telugu Desam Party (TDP), killed his father, a political leader of the Congress Party, and forced the applicant to transfer the family property to his uncle.

3                     The Tribunal did not accept at least the essence of that claim to refugee status, and in so doing, made credibility findings to the applicant’s case. In particular the Tribunal found that the applicant’s testimony tendered at the Tribunal was inconsistent in material aspects, and that medical documents provided by him were unrelated to the applicant’s protection visa claim. Moreover the Tribunal found that the applicant’s claims made in response to issues that arose concerning relocation were fabricated. The Tribunal hence concluded that an essential and significant reason for the applicant’s alleged difficulties encountered in his country of origin were not founded upon or referrable to any Convention reason, and that he had not been targeted for political reasons. The Tribunal further found in any event that State protection would be available to him on his return in the future to his country of origin, and that he could reasonably relocate within India to escape any harm of the nature which he had postulated to the Tribunal.

4                     In the presentation of his case to the Federal Magistrate below, the applicant claimed that the Tribunal did not properly consider evidence which he had tendered to the Tribunal, and that the Tribunal’s decision had no rational basis. He further claimed unspecifically that the Tribunal did not observe the relevant requirements of the Act, and failed in any event to provide him with particulars of country information said to have been relied upon, and otherwise to give him an adequate opportunity to respond to the evidence adduced and submissions made by the Minister. He asserted moreover that the Tribunal made credibility findings that were ‘objectionable’.

5                     In the course of its consideration of the reasons for the Tribunal’s decision in light of the applicant’s submissions, Lloyd-Jones FM found that the grounds of appeal raised by the applicant could not be sustained. The Federal Magistrate found that the Tribunal had made findings that were open on the evidence placed before it, and moreover that no jurisdictional error was identifiable in relation to the Tribunal’s conduct of its procedures or in its reasons for decision.

6                     In support of the application for an extension of time generally, the applicant provided an affidavit stating that he thought he was allowed a period of 28 days to file an appeal. The applicant also produced a draft notice of appeal upon grounds to the effect that the Federal Magistrate below erred in not holding that the Tribunal failed to take into account a relevant consideration, being the fact that his father was killed by his uncle for a political reason, and in considering whether the applicant was a member of a particular social group comprising his family members. The applicant asserted a fear for his own life at the instance of his uncle.

7                     Finally I would record that the applicant handed to the Court a written request which I have literally reproduced below:

‘To

The dimia

… [I] would like to request to give me bridging b visa with a validity of 11 months time and I am going to cancel my case from federal court.

The reason why I am asking for the bridging b as I said I donot have protection in my country now the opponents and some of our people they would like to comprosmise.

Now why I am asking for 11 months time is if there is any delay or some thing happen with them so I can get back to here. Any way after 11 months I have to leave the country.

And I am going to with the case from the court And I am going to pay $4000AU to Dimia for lost the case in court.’

It is necessarily of course a matter for the Minister whether or not she would accede to the foregoing request for a temporary stay in Australia, that being of course something outside the scope of any appeal which be granted from the decision of the Federal Magistrate. The only observation that I can make in relation to that subject is that which the applicant presented to the Court.

8                     It should be observed that Order 52 rule 15(1) of the Federal Court Rules (‘the FCR’) states that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced. The applicant filed an application for an extension of time on the 21 February 2006, some six days after the allowable time period to file a notice of appeal. However, by Order 52 rule 15(2) of the FCR, the time limit of 21 days may be extended where a ‘special reason’ exists.

9                     The respondent submitted that even if a ‘special reason’ existed in this case, ‘an extension [of time] should not be granted because the proposed appeal has insufficient prospects of success; the respondent citing WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at [9] per Lee, Nicholson and Finkelstein JJ, in support of that contention.

10                  In my opinion no error has been identified in the reasons for judgment of the Federal Magistrate below. Consequently, I can find no conceivable basis propounded by the applicant for the grant of the extension of time to appeal which he seeks. Whether the Minister is prepared to accede to the request for a moratorium upon the time for his return to India is of course a matter for the Minister’s decision-making.

Associate:

Dated: 8 August 2006