FEDERAL COURT OF AUSTRALIA

SZKDP v Minister for Immigration and Citizenship [2007] FCA 1487

MIGRATION – application for extension of time – no special circumstances disclosed – where more than one applicant on single application the obligation to provide information that is the reason or part of the reason that forms the decision of the Tribunal is enlivened with respect to each applicant – no extension of time warranted where appeal has no prospect of success

Migration Act 1958 (Cth) s 424A, s 427, s 474

Federal Court Rules o 52 r 15

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110

SZKDP & Ors v Minister for Immigration & Anor [2007] FMCA 675

SZKDP, SZKDQ, SZKDR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1063 OF 2007

BUCHANAN J

27 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     These proceedings involve an application for an extension of time in which to appeal against a decision of the Federal Magistrates Court of Australia (FMCA) (SZKDP & Ors v Minister for Immigration & Anor [2007] FMCA 675) delivered on 17 May 2007.  Order 52 rule 15 of the Federal Court Rules (the Rules) required the appeal to be filed and served within 21 days but allows the Court or a Judge ‘for special reasons’ to give leave to file and serve a Notice of Appeal outside that time.  The application for an extension of time was made on 13 June 2007.

2                     The applicants in the present matter are a citizen of India, his wife and infant son.  The husband (‘the primary applicant’) is an applicant for a Protection (Class XA) visa and the other applicants seek visas as a result of their family relationship with him, rather than independently and having regard to their own circumstances.  It is convenient, therefore, to consider the matter by reference to the circumstances of the primary applicant.

3                     The primary applicant arrived in Australia with his wife and son on 25 June 2006 and applied for a Protection (Class XA) visa on 4 August 2006.  On 16 August 2006 a delegate of the first respondent (‘the Minister’) refused to grant the visa.  The primary applicant applied to the Refugee Review Tribunal (‘the RRT’) on 13 September 2006 for a review of the delegate’s decision.  In a decision handed down on 9 January 2007 the RRT affirmed the decision of the delegate not to grant a protection visa.  On 6 February 2007 the primary applicant filed an application in the Federal Magistrates Court of Australia seeking judicial review of the RRT’s decision.  That application was dismissed on 17 May 2007.  That is the decision in respect of which the application for an extension of time in which to appeal is now made.

4                     The application for an extension of time was accompanied by a draft Notice of Appeal and an affidavit.  Under O 52 r 15(3)(c) of the Rules the affidavit was required to set out:

‘(i)       the nature of the matter; and

(ii)               the factual and legal issues in dispute; and

(iii)             the reasons why leave should be given.’

5                     The affidavit, however, simply states as follows:

‘1.        I was unaware of the time limit of the Court.  I don’t know the law.

2.         I don’t have money to hire a lawyer.

3.         I don’t know the procedure of the Court b’coz’ of no professional guide.

4.         I am not phyically [sic] fit.

5.         So please consider my application.  I will be thankful to you.’

6                     Apart from the fact that the affidavit does not deal with the matters required under the Rules, more importantly, it does not disclose any ‘special’ circumstances.  Against that consideration it should be recognised that the period of delay was only six days and it may well be said that no prejudice is occasioned to the Minister if an extension of time is granted.

7                     This question seems to me to be evenly balanced.  It is conventional to give attention, when an application for extension of time is sought, to the prospects for a successful appeal and, in the circumstances of the present application, that should be regarded as the most important element to be assessed.

8                     The RRT invited the applicant and his wife to a hearing before it on 20 November 2006.  It took evidence from each of them.  That evidence revealed significant inconsistencies between them and with some statements in the original visa application. 

9                     For example, the primary applicant alleged that the harassment against him involved physical attacks both at his house and on him personally.  His evidence about these matters is described by the RRT in the following way:

‘The applicant then described an incident on 14 June 2005, “when I was outside the city on a personal trip.  They came and wrecked my house, my wife was in the house, when they wrecked the house, they told my wife to tell her husband to join congress otherwise they will kill both of us.  They knocked on doors and came in and wrecked the house.”

The Tribunal asked what damage was done?

The applicant stated they smashed the whole house including furniture, house surrounds, glasses, windows.  The Tribunal asked what they smashed the house with.  The applicant replied “with iron rods”.’

…

The applicant said there was another incident on 26 January 2006 when he was returning from the TDP office he was attacked in a taxi cab, the whole cab was smashed and the attack was so severe his leg was broken.’

By contrast his wife’s evidence was described as follows:

‘The Tribunal asked the applicant’s wife can you tell me about the harassment that your husband has suffered?”  She replied “Yes in 2005 when I was pregnant, they came to our house and told me to tell my husband that if he didn’t change parties they would kill him,”

The Tribunal asked, “you were on your own?”

The applicant’s wife replied “Yes”.

The Tribunal asked “What dates did this harassment occur”?

The applicant’s wife replied “It occurred three times on 7 August 2005, 29 August 2005 and 25 September 2005”.  The Tribunal asked “What did you say to them”?  The applicant’s wife replied “I said he is not at home”.  The Tribunal asked “What happened then”?  The applicant’s wife replied “They just left”.  The Tribunal asked “Was there any further harassment”?  The applicant replied that from date of the birth of their son they did not harass him any further.”  The Tribunal clarified “so there was not further harassment from 26 September 2005” the applicant’s wife replied “That’s right”

10                  Another issue concerned their domicile.  In his original application for a visa the primary applicant had suggested, by the answers he gave, that he had moved from Hyderabad in June 2005 and, before living in Nasik, in Maharashtra, until June 2006, ‘had to move to few other locations’.  By contrast, in his oral evidence, the RRT records him as suggesting that the situation after the alleged incident on 26 January 2006, was as follows:

‘The applicant stated he had then lived in different states, but couldn’t find safety and took his family with him as I can’t leave them alone, there is no-one to look after them.  The applicant stated he went to a different state, Nasik, Maharashtra for three months, he stated he left to go to Maharashtra in February 2006.’

The evidence of his wife is described as follows:

‘The Tribunal asked where was your son born?  The applicant’s wife replied Hyderabad, on 26 September 2005.  The Tribunal asked, “did you move around prior to birth?”  The applicant’s wife replied “no.”  The Tribunal clarified “you moved nowhere.”  The applicant’s wife replied only to Nasik, after the birth of our son.  The Tribunal clarified “after 26 September 2005.”  The applicant’s wife replied “yes”.

11                  A further matter concerned the applicant’s work history in India.  The Tribunal describes the primary applicant’s position:

‘The Tribunal noted that the applicant was unemployed from June 2005.  The applicant replied “yes”.  The Tribunal asked, “how did you support your family?”  The applicant responded from previous savings and also his father supported his family.’

and his wife’s position:

‘The Tribunal asked “At any time has your husband been unemployed”?  The applicant’s wife replied “No”.  The tribunal clarified “he has always worked”?  The applicant’s wife replied “Yes”.’

12                  These inconsistencies, not surprisingly, received mention in the RRT’s findings and reasons which include the following passages:

‘The Tribunal notes that the applicant’s claims differed significantly between his written evidence provided with the application and the oral evidence given to the Tribunal.  There were also significant differences in evidence of the applicant husband and applicant wife concerning important aspects of the claims.

The Tribunal found the applicant not to be a credible witness.  Many aspects of his oral evidence changed as the hearing progressed.  The Applicant could not explain the inconsistencies and often gave no answer or plausible explanation.

 …

The Applicant gave evidence of two particularly brutal attacks on him and his pregnant wife.  In the first attack on 14 June 2005 his evidence was that this pregnant wife was alone in their house when members of the Congress and AIMIM ransacked his house, to such an extent that everything was smashed by iron rods.  In the second attack on 26 January 2006 the applicant gave evidence that he was again attacked by Congress and AIMIM members.  The attack, while he was travelling in a taxi in a public street, was so severe he suffered a broken leg.  The applicant’s wife in her oral evidence stated that the harassment, which gave rise to their fear occurred on different dates and there were only oral threats.  The applicant’s wife was clear in her evidence that any further harassment stopped after 26 September 2005.  The Tribunal does not accept that the above events happened.  At the hearing the Tribunal asked the applicant and his wife to explain the inconsistencies in relation to such traumatic events

…

The Tribunal asked the applicant why it took him nearly a year to depart India.  The applicant said that he had to sell his house and household goods.  The Tribunal considers that such actions are not consistent with the actions of someone who holds a well-founded fear as a result of threats directed at him or his family or as a result of violence.  The Tribunal is not satisfied that the applicant had a well-founded fear.

When the Tribunal pointed out that earlier he had given evidence that everything in the house including the house had been wrecked by the attack a year earlier, he changed his evidence and said that there was nothing left to sell.  The Tribunal does not find the applicant to be a credible witness.  The applicant’s evidence changed in the course of the hearing.’

13                  In addition, the RRT concluded, in any event, that the primary applicant and his family could have relocated within India rather than move to Australia.  It found:

‘The Tribunal notes, that the applicant and his spouse both came to Australia and have been able to settle in this country, finding gainful employment.  The applicant has experience in IT systems and a Diploma in Electronics Engineering, which is not location-specific.  He has been able to adapt well to the new environment in a new country, despite language and cultural differences which are likely to have been more pronounced than if the applicant were to relocate to another state in India.

The Tribunal finds that, given the applicant’s background, language skills, qualifications and experience, it would be reasonable for him to relocate to another part of India.’

14                  On the basis of its various findings, which included the fact that it did not accept that he had actually been persecuted for political or religious reasons, or would be in the future, the primary applicant’s claims, and therefore those of his wife and son, were rejected.

15                  The grounds upon which the primary applicant sought judicial review of the RRT decision are set out in the judgment of FMCA ([2007] FMCA 675 at [20]).  They do not correspond substantially with the grounds in the draft Notice of Appeal sought to be advanced in this Court which I shall set out shortly.

16                  In a reasoned decision the FMCA dealt with and rejected each of the grounds advanced by the primary applicant.  It is also clear that, independently of the primary applicant’s arguments, the FMCA did not perceive any jurisdictional error in the decision of the RRT.  In those circumstances the learned Federal Magistrate correctly, with respect, concluded that s 474 of the Migration Act 1958 (Cth) (‘the Act’) denied jurisdiction to the FMCA to interfere with the RRT decision and dismissed the application.  In my view that conclusion was correct.

17                  The draft Notice of Appeal upon which the primary applicant wishes to proceed in this Court contains two grounds as follows:

‘1.        The Honorable Federal Magistrate erred in [not] considering that the Refugee Review Tribunal made an error of Law when the Tribunal took the interview of the witness and when the Tribunal considered the relocation issue and assessed the applicant’s claim.

2.         The Honorable Federal Magistrate erred in [not] finding that the Tribunal’s decision was not fair and just because the Tribunal was interested to reject the applicant’s claim and also the finding and reasons made by the Tribunal was not made on the basis of proper observation of the documents and witness.’

(The amendments which I have inserted in these grounds are necessary to give effect to the primary applicant’s desire to challenge the judgment in the Federal Magistrate’s Court.)

18                  Ground 1 amounts to a contention that the RRT came to the wrong conclusions on the evidence given by the primary applicant and his wife and in relation to the relocation issue.  As advanced in this form it does not raise any jurisdictional error.

19                  Ground 2 appears to suggest some form of bias on the part of the RRT and misapplication to its task of evaluating and reaching conclusions based upon the documents and oral evidence.  No particulars are given.  The second aspect of this ground appears to seek some form of merit review and does not raise a jurisdictional question.

20                  The primary applicant also filed written submissions.  The matters advanced in support of the first ground suggest, in effect, simply that the RRT came to the wrong conclusion.  It also seems clear that the primary applicant (perhaps unsurprisingly) has a limited understanding of the nature of the proceedings before the RRT.  One example of this should suffice.  The primary applicant submitted:

‘The Tribunal failed to inform the applicant wife who was a witness before the Tribunal and the Tribunal was testing all the information given to the Tribunal by the applicant in support of his claim but the Tribunal failed to inform the witness that she can not examine or cross examine to the Tribunal only the Tribunal has the power to examine or cross examine.’

21                  I confess I do not know what form of challenge the primary applicant wishes to advance by this paragraph.  It is clear that the RRT in its inquisitorial function is able to ask questions and elicit information that might bear upon the evaluation of a claim for a visa and that persons who appear before the RRT to give evidence are not entitled to examine or cross examine any other persons appearing to give evidence (s 427 of the Act).  However, I am unable to relate the written submission to the suggestion in the first ground of appeal that the RRT made an error of law when it ‘took the interview of the witness’, which appears to amount to a suggestion that it should not have asked the primary applicant’s wife to give evidence in relation to his application.  If that is what is meant then the submission must be rejected.

22                  As to the relocation issue referred to in the first ground of appeal the primary applicant submitted:

‘Relocation was not possible because the Tribunal know it very well that the applicant sold his property in India and he came to Australia with his family and he did not have money to support his family even he does not have money to spend for his medical condition which medical problem he found coming in Australia, so how it is possible without money to relocate, the Tribunal wrongly found it and the Court did not consider the financial issues in relation to relocation which is really a major issue.’

23                  The assertion that the primary applicant liquidated his assets before he came to Australia cannot, in my view, assist him to resist a conclusion that he could, instead, have relocated to a different part of India.  This basis for challenging the RRT decision does not raise any jurisdictional question and cannot assist the primary applicant in this Court.

24                  The contention in ground 2 of the draft Notice of Appeal that the RRT ‘was interested to reject the applicant’s claim’ is advanced by the following submission:

‘The Tribunal rejected applicant’s all claim one by one without any legal basis because the reason it shows to rejected the claim were not legal criteria which the applicant has to comply the assessment of the applicant’s claim should be on the basis of the Act but the Tribunal first got information from the applicant then tested all information through the witness the applicant’s wife following is an example and the Tribunal was interested to get such answer.

The Tribunal asked, “At any time has your husband been unemployed”?  The applicant’s wife replied “No”.  The Tribunal clarified “he has always worked”?  The applicant wife’s wife replied “yes” (AB-93, 4^th paragraph)

The Tribunal failed to inform to the applicant’s wife that the Tribunal is not only taking evidence from her it also going to test the evidence given by her husband to this Tribunal and she does not have the right to examine or cross examine to the Tribunal’

25                  The primary applicant’s complaint that the RRT tested his evidence through the examination of his wife and took account of the inconsistencies thereby revealed does not establish, or tend to establish, that the RRT was predisposed against him.  These matters do not raise any jurisdictional issue which could assist him on an appeal.

26                  Another matter referred to in the primary applicant’s written submissions concerned the content and effect of a letter sent to him by the RRT on 21 November 2006.  By that letter the primary applicant and his wife were invited to comment upon a number of matters which the RRT drew to attention, including the inconsistencies in the evidence I earlier referred to and other aspects of the evidence which the primary applicant and his wife had given.  The letter also suggested, for reasons which were given, that he could relocate without difficulty to another part of India if necessary.  The RRT records that the applicant made no response to this letter notwithstanding that he was advised directly that the matters which were brought to his attention might ‘be the reason, or part of the reason, for deciding that you are not entitled to a protection visa’ (see also s 424A of the Act).  The complaint about this letter is difficult to follow.  It is captured in the following sentence:

‘The letter of the Tribunal of 21 November 2006 was not sent according to the law because the applicant was very confused about the letter.’

27                  Subject to one further matter discussed hereunder I can see no possibility of any cogent jurisdictional argument arising from the terms of this letter or any confusion which the applicant may wish to allege it created.

28                  Finally, the applicant made the following submission:

‘The applicant submits that the Refugee Review Tribunal made some adverse findings on the basis of the information given by the applicant and the witness the applicant’s wife and rejected applicant’s claim, where the Tribunal did not follow the rule of the High Court decision:

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24’

(These cases are now reported at 150 FCR 214, 76 ALJR 966 and 79 ALJR 1009 respectively.)

29                  No indication is given of the alleged nature of any departure from the principles stated in those cases.  The cases do not appear to me to be of assistance to the primary applicant.  A bare reference to them does not raise any cogent jurisdictional question for consideration.

30                  At the hearing of the application in this Court the primary applicant appeared but his wife did not.  When asked if he wished to add to his written submission he said only that the RRT was wrong to use his wife’s statements against him but did not articulate what jurisdictional issue might arise in that respect.

31                  Mr Reynolds, who appeared for the Minister very fairly and properly drew my attention to the recent decisions of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007) (‘SZBYR’) and of this Court in SZGSI v Minister for Immigration and Citizenship [2007] FCAFC 110 (27 July 2007) (‘SZGSI’).

32                  Reference to those cases was made because the only form of jurisdictional error that might conceivably be suggested by the primary applicant’s complaint about the use by the RRT of his wife’s oral testimony was a possible failure by the RRT to comply with the requirements of s 424A of the Act.  At the time of the decision of the RRT s 424A(1) and (3) provided:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

…

(3)       This section does not apply to information:

(a)       that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)       that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.’

33                  Mr Reynolds drew attention to the fact that in SZGSI a Full Court held that the obligation to provide information to an applicant for review of a delegate’s decision is enlivened with respect to each such applicant.  However, he pointed out a number of reasons why that principle could not result in the identification of any jurisdictional error in the present case.

34                  In SZBYR the High Court drew attention (at [17]) to the statutory language of s 424A(1)(a).  It was suggested (at [19]) that oral evidence given at a hearing before the RRT was unlikely to engage an obligation to give written notice under s 424A because information, to which s 424A refers, which ‘would be’ a reason for affirming a decision under review, was to be ‘determined in advance – and independently - of the Tribunal’s particular reasoning on the facts of the case’ (see again at [17]).

35                  In SZGSI a concession was made by the Minister that certain evidence by a co-applicant engaged the obligation in s 424A(1) (see at [46]).  Mr Reynolds emphasised that no such concession was made in the present case, in light of the High Court judgment in SZBYR.  It is not necessary for me to express any view in this case whether the evidence given by the primary applicant’s wife engaged the operation of s 424A(1) because I am satisfied, for the other reasons advanced by Mr Reynolds, that if any such obligation was engaged it was satisfied both with respect to the primary applicant and his wife.

36                  After the oral hearing before the RRT on 20 November 2006 it wrote to the primary applicant on 21 November 2006 as I earlier indicated.  It wrote to him both in his own right and as an ‘authorised recipient’ for his wife (s 441G of the Act).  It drew their attention to those parts of the evidence of the primary applicant and his wife, given the day before, which ultimately played a part in the RRT decision to affirm the earlier decision of the delegate.  I am satisfied that if any obligation under s 424A was engaged in relation to the evidence which they gave (which is, at least, open to doubt) it was satisfied in this case in relation to both the primary applicant and his wife.  There was no reply to the letter.  When I asked the primary applicant, at the conclusion of Mr Reynolds’ submissions, if he wished to say anything about the fact that the matter of which he complained (namely, the use by the RRT of his wife’s evidence) was expressly brought to his attention by the letter of 21 November 2006 he declined to make any further submission.

37                  There is, accordingly, and notwithstanding Mr Reynolds’ very fair exposure of the issue, no foundation for any suggestion of jurisdictional error in the process or decision of the RRT.

38                  In the circumstances I cannot see any prospect of the primary applicant succeeding in an appeal were I to grant his application for an extension of time.  To grant such an extension of time would be futile.  It follows also that no extension of time is warranted in this case with respect to the other applicants, his wife and infant son, whose claims rest entirely on the fate of his visa application.

39                  The application for an extension of time will be dismissed.  It is appropriate to dismiss it with costs.

Associate:

Dated:         27 September 2007