FEDERAL COURT OF AUSTRALIA

SZKIF v Minister for Immigration and Citizenship [2008] FCA 1646

Migration Act 1958 (Cth) ss 422B, 424A, 424A(1), 424A(3)(a)

Federal Court Rules O 52 r 15(1)(a)(i), O 52 r 15(2)  

Abebe v Commonwealth (1999) 197 CLR 510

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 12 FCR 187

Kioa v West (1985) 159 CLR 550

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZKIF v Minister for Immigration and Citizenship [2007] FMCA 1996

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

SZKIF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1314 OF 2008

MCKERRACHER J

7 November 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be added as a second respondent. 

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

3.                  The applicant do pay the costs of the first respondent to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant is an Indonesian citizen.  He arrived in Australia on 20 December 1998.  On 4 January 1999 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application for a protection visa on 24 July 1999.  On 19 August 1999 the applicant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision and the applicant sought judicial review in the Federal Magistrates Court.  Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 February 2000. 

2                     This is an application for an extension of time within which to file and serve a notice of appeal from the judgment of the Federal Magistrate delivered on 21 November 2007 (SZKIF v Minister for Immigration and Citizenship [2007] FMCA 1996).  

THE APPLICANT’S CLAIMS

3                     The applicant claimed to fear persecution in Indonesia for a convention reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention) due to his Chinese ethnicity and Christianity.  

4                     The applicant, a shopkeeper, claimed that his shops as well as his local church were burned during the riots of May 1998.  He stressed that he had suffered a great deal of discrimination due to his race and religion and that he feared that he would suffer further if he was forced to return.  He also claimed that the economic situation in Indonesia was still volatile and that he feared harm due to further rioting.

BEFORE THE TRIBUNAL

5                     The applicant failed to attend a hearing before the Tribunal on the appointed date.  It accordingly proceeded to a decision based on the material already before it.  The Tribunal found that, in the absence of a hearing, the applicant had provided insufficient evidence to support his claims.  He had provided a series of broad claims with limited detail or corroborating material.  The Tribunal was unable to explore the basis, relevance and credibility of the applicant’s claims.

6                     The Tribunal also addressed the applicant’s claimed fear of persecution due to his Chinese ethnicity (if the claim were accepted).  The Tribunal found, on the basis of country information concerning the role of the Indonesian authorities and domestic developments, that the situation in Indonesia was not such that the applicant had a well-founded fear of persecution.  The Tribunal reached similar findings on the issue of his alleged fear of persecution on the basis of his Christianity and on the basis of his claims taken cumulatively.

7                     The Tribunal could not be satisfied on the evidence before it that the applicant had a well-founded fear of persecution.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT

8                     Before the Federal Magistrate the applicant claimed that the Tribunal failed to exercise its jurisdiction and failed to take into account relevant evidence.

9                     The Federal Magistrate found that the Tribunal’s decision ultimately rested on the absence of sufficient evidence occasioned by the applicant’s failure to attend a hearing.  Her Honour found that the Tribunal also considered the situation if it accepted that the applicant was Chinese and/or a Christian; however its findings again took into account the lack of information in support of his claims and the fact that a number of questions in relation to his claims were left unanswered.  The Federal Magistrate was satisfied that there was no jurisdictional error in the Tribunal decision.

GROUNDS OF APPEAL

10                  The applicant filed his application for an extension of time on 20 August 2008.  Accompanying the application was an affidavit annexing the draft notice of appeal.  This argued that the Tribunal:

1.                  Misinterpreted the law

2.                  Took into account irrelevant considerations

3.                  Failed to provide the appellant with a fair hearing

4.                  Failed to take into account relevant considerations

5.                  Failed to explain the inconsistencies between the Department’s decision and the Tribunal decision.

11                  At the hearing of the application before me the applicant, once again, did not appear.

ANALYSIS

Extension of time - principles

12                  An applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave:  O 52 r 15(2) of the Federal Court Rules (FCR).  Guiding principles were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as follows:

(a)        applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an acceptable explanation of the delay; it must be ‘fair and equitable in the circumstances’ to extend time;

(b)        action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(c)        any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(d)        the mere absence of prejudice is not enough to justify the grant of an extension; and

(e)        the merits of the substantive application are to be taken into account in considering whether an extension of time should be granted. 

13                  By O 52 FCR, the manner in which appeals are to be brought before the Court is regulated.  Pursuant to O 52 r 15(1)(a)(i) a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced.  However, O 52 r 15(2) provides that a judge may for special reasons and at any time give leave to file and serve a notice of appeal.  The expression ‘at any time’ clearly refers to notices of appeal which are filed outside the 21 day period.

14                  The expression ‘special reasons’ has received a deal of attention.  In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 considerations to which the Court should have regard were said to include the length of delay involved in filing a notice of appeal, whether the respondent will suffer prejudice by reason of the delay and finally the nature of the injustice to the applicant if the applicant is denied the right to appeal. 

15                  In considering the question of injustice, the question may arise as to the strength of the appeal.  Little injustice may be occasioned if an appeal were hopeless. 

16                  In Jess v Scott (1986) 12 FCR 187, the Court observed that:

It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

Ground 1 – the law

17                  The applicant has provided no particulars in support of his claim.

18                  The Tribunal invited the applicant to a hearing which he failed to attend on the appointed date.  The Tribunal accordingly proceeded to make a decision based on the material already before it.  It affirmed the delegate’s decision as there was insufficient evidence to support the applicant’s claims.  The Tribunal found that, on the basis of country information, the situation in Indonesia was not such that the applicant had a well-founded fear of persecution in Indonesia.  The Tribunal reached similar findings on the issue of his alleged fear of persecution on the basis of his Christianity and on the basis of his claims taken cumulatively.

19                  There appears to be no basis for this claim.  The Tribunal set out the relevant law at the beginning of its reasons for decision.  A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to its findings in concluding that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.  There is no error on the face of the Tribunal's determination as to the manner in which the Tribunal applied the law to the applicant’s claims.

20                  The ground is not made out.

Ground 2 – irrelevant consideration

21                  The applicant has provided no particulars as to what irrelevant considerations were taken into account by the Tribunal.  The Tribunal’s reasons for decision reveal that in making the decision, the Tribunal relied on the information provided in written statements by the applicant accompanying the original application for a protection visa and the review application to the Tribunal, as well as independent country about the alleged riots in Indonesia, and about Christianity and Sino-Indonesians in Indonesia.

22                  The choice and use of independent country information is a matter for the Tribunal, as is the weight to be accorded to such information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.  Any further examination may amount to an impermissible merits review of the fact finding of the Tribunal: NAHI. 

23                  The matters considered by the Tribunal were relevant to the question it was required to address in conducting the review, that is, whether it could be satisfied that the applicant’s claims disclosed a well-founded fear of persecution for a Convention reason.  

24                  The ground is not made out.

Ground 3 – no fair hearing

25                  As the Tribunal proceeding was in late 1999 to early 2000, s 422B of the Migration Act 1958 (Cth) (the Act) (excluding common law principles of procedural fairness) was not in force.  This means that the applicant was entitled to common law procedural fairness.  Accordingly the applicant was to be given a reasonable opportunity to deal with matters adverse to his interest that the decision maker proposed to take into account in exercising the power: Kioa v West (1985) 159 CLR 550.  

26                  An applicant should have matters adverse to their application put to them for responsive comment or evidence before an adverse decision is made: Kioa.  The decision-maker is required to bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that the applicant will have an opportunity to deal with it: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.  Further, a decision-maker should not make a decision having regard to undisclosed material being adverse information that was credible, relevant and significant to the decision without firstly putting that information to the applicant: Kioa.

27                  The Tribunal notified the applicant by way of letter dated 17 November 1999 that it was unable to make a favourable decision on the information in the application for review.  The letter invited the applicant to attend a hearing on 19 January 2000, where he would have an opportunity to give oral arguments and present his evidence. No response was received from the applicant.  The Tribunal decision notes that the letter was sent to the applicant’s latest notified home address and that the applicant did not give a separate address for service, or notify the Tribunal of any change of address.

28                  As the Tribunal was satisfied that it had provided the applicant with the opportunity to give oral evidence and present arguments it proceeded to make a decision based on the applicant’s written statements and independent country information.

29                  The applicant was not denied procedural fairness; the Tribunal discharged its obligation by notifying the applicant of the hearing and providing him with an opportunity to make submissions and present his arguments and evidence, an opportunity which the applicant did not take up.

30                  The ground is not made out.

Ground 4 – failure to take into account relevant considerations

31                  The applicant has provided no particulars to support his claim.  It is another bare assertion.  In its decision the Tribunal relied on the written statements submitted by the applicant as well as independent country information.

32                  The relevant facts must be supplied by the applicant; the Tribunal is not required to make the applicant’s case for him or her: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.  It is for the applicant to advance whatever argument or evidence he or she wishes to support the contention as to a well founded fear of persecution.  It is for the Tribunal to decide whether the claim is made out: Abebe v Commonwealth (1999) 197 CLR 510 and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.

33                  There is no evidence to suggest that the Tribunal has ignored a relevant piece of evidence.  The applicant did not attend the hearing and did not provide any further evidence for the Tribunal to consider.  The Tribunal decision was based on the material available to it, being the applicant’s written statements and independent country information.

34                  The Tribunal took into account all relevant considerations, including consideration of whether the applicant would face persecution if he returned to Indonesia by reason of his Sino-Indonesian background or his Christian faith, as well as examining his claims cumulatively.

35                  The ground is not made out.

Ground 5 – failure to explain inconsistencies

36                  Once again the applicant has provided no particulars.  This appears to be an allegation that the Tribunal breached its obligations under s 424A of the Act.

37                  Under s 424A(1) of the Act the Tribunal is required to provide the applicant with, in a way it deems appropriate in the circumstances, clear 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.  The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.  The Tribunal must invite the applicant to comment on or respond to it.

38                  There is no requirement for the Tribunal to provide information on the inconsistencies in the applicant’s written accounts given to the Department and the Tribunal.  ‘Information’ for the purposes of s 424A does not include the Tribunal’s subjective appraisals of the evidence, thought processes or determinations.  It does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.  The applicant missed his opportunity to present his evidence and explanations for any inconsistencies by his own failure to attend the Tribunal hearing.  Therefore the inconsistencies in the evidence do not amount to information under s 424A.

39                  In relation to the independent country information, s 424A(3)(a) of the Act provides an exception where the information 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.  As the country information is not about the applicant it is excluded from the s 424A(1) obligation.

40                  The ground has no prospect of success. 

41                  The approach of the Federal Magistrate and her Honour's conclusions were correct in all respects. 

CONCLUSION

42                  The Refugee Review Tribunal will be joined as a second respondent. 

43                  The application for extension of time will be dismissed.  The applicant is to pay the costs of the first respondent to be taxed if not agreed. 

Associate:

Dated:         19 November 2008