FEDERAL COURT OF AUSTRALIA

SZLFH v Minister for Immigration and Citizenship [2008] FCA 1281

SZLFH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 933 of 2008

COWDROY J

21 August 2008

SYDNEY

THE COURT ORDERS THAT:

1.      The application for an extension of time to file and serve a notice of appeal be dismissed.

2.      The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1                     The applicant applies to this Court for an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Barnes delivered on 19 May 2008 (see SZLFH v Minister for Immigration and Citizenship and Anor [2008] FMCA 676). The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 26 July 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the applicant a Protection (Class XA) visa (‘the protection visa’).

FACTS

2                     The applicant is a citizen of India. Before the Tribunal the applicant claimed to have well-founded fear of persecution resulting from his membership in the Tamil Liberation Movement and the Tamil Liberation Army (‘the TLA’). The applicant claimed that he was arrested under the Prevention of Terrorism Act and gaoled for two years. The applicant claimed that he was tortured by the police during his period of incarceration. He also claimed that he would be killed by the police if he returned to India.

3                     The Tribunal was not satisfied that the applicant had ever been involved with or been a member of the TLA, stating that the applicant’s evidence on this point was ‘notably vague, generalized and lacking in circumstantial detail, and it did not suggest that he had any special knowledge which might reasonably be expected of someone who had been actively involved with it [the TLA]’. The Tribunal was not satisfied that the applicant had engaged in any political activity when he lived in India, or that he had been arrested or jailed for such claimed activity. The Tribunal was accordingly not satisfied that the applicant would be harmed by the Indian authorities for reason of his political opinion.

4                     The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. The Tribunal accordingly found that the applicant did not satisfy the criterion under s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) for the protection visa.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

5                     By application filed in the Federal Magistrates Court of Australia on 21 August 2007 and amended application filed in Court on 19 May 2008 the applicantsought judicial review of the Tribunal decision.

6                     In addition to the claims made in his original and amended applications, the applicant also made a number of oral claims before the Federal Magistrate. The applicant alleged that he had not been afforded a proper hearing before the Tribunal. Such claim was made upon the basis that he had been afraid to talk before the Tribunal and had not spoken well. However, Barnes FM found that there was nothing before the Court to suggest that the Tribunal fell into jurisdictional error in the manner in which it conducted its review.

7                     The applicant also claimed orally before Barnes FM that he had not been given an opportunity to provide evidence to the Tribunal. Barnes FM observed that the Tribunal had referred to the absence of supporting documentation and her Honour also noted that the applicant had claimed before her that he had not had an opportunity to provide supporting documentation from India. However, Barnes FM noted that there was no material before the Court to support the applicant’s claim that he had not been afforded an opportunity to provide evidence to the Tribunal. Her Honour also noted that the applicant had not sought further time or any adjournment of the Tribunal hearing in order to provide further supporting documentation. Barnes FM was unable to ascertain any lack of procedural fairness.

8                     The applicant raised two general grounds in his amended application, namely that the Tribunal had failed to ‘complete the exercise of its jurisdiction’ and that the Tribunal had denied the applicant natural justice. Barnes FM found no evidence in support of either ground of review, noting the provisions of s 422B of the Act. Further, there was nothing in the material before the Federal Magistrate to suggest any failure by the Tribunal to comply with s 424A(1) of the Act.

9                     The amended application before the Federal Magistrates Court raised additional grounds. Firstly, the applicant claimed that he had not provided further documentation to the Tribunal. Barnes FM found that no jurisdictional error resulted from the applicant not submitting corroborating material. Her Honour also noted that the Tribunal did not make its decision simply upon the basis of the absence of corroborating evidence. Rather, the Tribunal’s rejection of the applicant’s claim regarding his involvement with the TLA resulted from the ‘vagueness, generalisation and lack of circumstantial detail’ in the applicant’s claims. Her Honour found that the lack of supporting or corroborative documentation was not the basis of the Tribunal’s findings. Her Honour also noted that there was no failure by the Tribunal to comply with s 424 of the Act.

10                  The second additional ground in the amended application alleged that the Tribunal ‘failed to satisfy itself upon whether the applicants [sic] had a well founded fear of persecution based upon probative material or logical grounds’. The particulars claimed that certain political activities were not taken into account despite independent country information. Such claim was rejected by Barnes FM.

11                  Lastly, the amended application appeared to allege that the Tribunal had not considered the death certificates of the applicant’s parents which had been provided to the Tribunal by the applicant. Her Honour found that there was no material before the Court to suggest that the applicant had claimed that the death of his parents was a basis for his fear of persecution. Her Honour also rejected a generalised claim made by the applicant in relation to the applicant’s claimed fear for his well-being as such claim sought an impermissible merits review.

12                  Based upon the above findings, her Honour dismissed the applicant’s application.

APPLICATION FOR EXTENSION OF TIME

13                  Federal Magistrate Barnes delivered her decision on 19 May 2008. Pursuant to O 52 r 15(1) of the Federal Court Rules (Cth) (‘the Rules’) any appeal from that decision ought to have been filed on or before 9 June 2008. As no appeal was filed by that date, under O 52 r 15(2) of the Rules the applicant requires the leave of the Court in order to file and serve a notice of appeal. Order 52 rule 15(2) provides:

Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

14                  On 23 June 2008 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal. Such application was accordingly 14 days out of time. On the same day the applicant also filed an affidavit which attached a draft notice of appeal. The draft notice of appeal raises three grounds of appeal, namely:

1.        The Tribunal did not accord my view [sic] application with procedural fairness.

2.        Jurisdictional error.

3.        The Tribunal did not act fairly and did not apply correct test whe [sic] review my application for a refugee visa.

15                  In his affidavit the applicant claims that he did not receive the decision of Barnes FM by mail until 4 June 2008 and that as a consequence he only had three days in which to file his appeal.

16                  The applicant did not appear before this Court at the hearing of his application on 19 August 2008. The Court notes that both the Court Registry and the Minister had sent letters to the applicant’s nominated address confirming the date, time and location of the hearing.

FINDINGS

17                  It has been recognised that ‘special reasons’ require an applicant to demonstrate that there is a special justification for the Court granting leave. In Jess v Scott and Others (1986) 12 FCR 187 at 195 the Court said of the grounds necessary to be established before leave will be granted:

Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.

18                  In considering whether ‘special reasons’ exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Parker v The Queen [2002] FCAFC 133.

19                  As to delay, the applicant was present when Barnes FM gave her ex tempore judgment on 19 May 2008 dismissing the applicant’s application for review. Accordingly, the claim that the applicant only received a copy of the reasons for judgment on 4 June 2008 is an irrelevant consideration: see SZKQR v Minister for Immigration and Citizenship [2008] FCA 267 at [13] per Gilmour J. Accordingly the Court does not accept the applicant’s explanation for his delay.

20                  The Court notes that the Minister does not submit that he would suffer any prejudice if leave were granted.

21                  Although ‘[t]he object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice’ (Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 per McInerney J at 262-3, quoted by the Full Court with approval in Jess v Scott and Others (1986) 70 ALR 185 at 191), the merits of the substantial application are determinative as to whether or not the Court’s discretion will be exercised: ‘should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances’ (Jeffers v R (1993) 112 ALR 85 at 86). As such, the merits of the draft notice of appeal will be of vital significance in considering whether there exist ‘special reasons’ under O 52 r 15(2) of the Rules.

22                  The Court notes that the draft notice of appeal does not identify any error in the Federal Magistrate’s decision or in her Honour’s conduct of the review proceedings. The second proposed ground of appeal, in alleging jurisdictional error, could represent a challenge to the decision of Barnes FM, but such allegation is too vague to constitute a meaningful ground of appeal to either the decision of Barnes FM or to that of the Tribunal.

23                  The first ground relied upon in the proposed notice, namely that the Tribunal denied the applicant procedural fairness, was considered by Barnes FM. This Court finds no error in her Honour’s consideration of the conduct of the Tribunal hearing. Further, there is no material before this Court to indicate that the Tribunal denied the applicant procedural fairness. The Court rejects the applicant’s first draft ground of appeal.

24                  The third proposed ground of appeal alleges that the Tribunal did not act ‘fairly’ and did not apply ‘the correct test’. The first limb of this proposed ground appears to repeat the first ground of appeal. Such argument has been considered and rejected above. In considering the second limb, the Court has read the Tribunal decision and is satisfied that it applied the correct test in its review of the delegate’s decision. The Court accordingly rejects the third proposed ground of appeal.

25                  The applicant has not demonstrated any prospects of success in his draft notice of appeal. Although the Court acknowledges that the Minister would not be unduly prejudiced if leave were granted to the applicant to file a notice of appeal, the inadequacy of the explanation for the delay and the lack of merit in the draft notice of appeal leads the Court to conclude that ‘special reasons’ do not exist under O 52 r 15(2) of the Rules to justify the Court granting leave to the applicant to file a notice of appeal out of time: see Jeffers v R at 86.

26                  It follows that the application must be dismissed with costs.

Associate:

Dated:         21 August 2008