FEDERAL COURT OF AUSTRALIA

SZNGR v Minister for Immigration and Citizenship [2009] FCA 1301

SZNGR v Minister for Immigration and Citizenship [2009] FMCA 630 affirmed

Migration Act 1958 (Cth) s 91R

SZNGR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 804 of 2009

BENNETT J

6 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

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

2.         The applicant pay the first respondent’s costs in the sum of $1,000.

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

1                          The applicant applies for an extension of time in which to file and serve a notice of appeal from a decision in the Federal Magistrates Court in which Smith FM dismissed an application to review a decision of the Refugee Review Tribunal (SZNGR v Minister for Immigration and Citizenship [2009] FMCA 630).  The Tribunal in turn affirmed a decision of the delegate refusing the applicant’s application for a protection visa. 

2                          The applicant’s explanation for the delay in filing a notice of appeal, as set out in an affidavit affirmed by him, is that he did not know Australian law and was not aware that he had 21 days after the decision was handed down.  There is no need to deal with the aspect of delay further because the Minister concedes that the delay is not great and could not be said to cause any prejudice. 

3                          However, it is necessary for the Court to have regard to the merits of the appeal in order to decide if the extension of time should be granted.  The draft notice of appeal contains two grounds: 

1.         “His Honour Smith failed to accept grounds listed in my amended application.” 

2.         “The Tribunal failed to understand my claim.”

4                          On consideration of the grounds in the amended application that were before his Honour, and on consideration of the Tribunal decision, it is apparent that the Tribunal decision was based upon the following bases which, in turn, needed to be considered by Smith FM in assessing the applicant’s application to him.

5                          The Tribunal considered the different incidents described by the applicant and set them out in some detail in its reasons.  The Tribunal recognised that the applicant claimed to fear persecution in Lebanon on the grounds of religion and perceived association with, or membership of, the Lebanese forces.  His claim was also based upon a lack of employment resulting from the unstable situation in Lebanon and the conflict in the area in which he lived and worked.  The Convention reasons advanced by the applicant were religion and perceived political association.

6                          The Tribunal found that none of the incidents, individually or cumulatively, amounted to persecution within the meaning of s 91R of the Migration Act 1958 (Cth), either because they did not come within the description of serious harm within the instances set out in s 91R(2), or because the description did not involve systematic and discriminatory conduct, or both.  Further, the Tribunal concluded that in any event, the incidents described by the applicant did not occur for a Convention reason or by reason of a Convention characteristic.

7                          The Tribunal found that any inability of the applicant to earn a living by delivering goods to Tripoli was as a result of general conflict and not for a Convention reason.  The Tribunal found that there was no relevant Convention nexus with the applicant’s claimed financial difficulties and concluded that there was no real chance that the applicant would be persecuted for a Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future.

8                          As pointed out by Smith FM at [14], it is apparent from the Tribunal’s reasons and the language used by the Tribunal that the Tribunal was aware of and applied the statutory definition of persecution in s 91R of the Act.  The Federal Magistrate was of the view that the language used by the Tribunal was consistent with authorities which examined situations where there is a breakdown in civil order.  His Honour considered that the findings of the Tribunal were open to it on the evidence before it.  His Honour concluded that the Tribunal’s decision was not affected by jurisdictional error. 

9                          The applicant has appeared in person, assisted by an interpreter.  He raises a number of matters in respect of the incidents that he had described to the Tribunal.  To the extent that the applicant has described those incidents and what should be drawn from them as a matter of fact, the Court cannot interfere with the findings of fact made by the Tribunal.  It is apparent that the Tribunal did understand and take into account the applicant’s claims.  The Tribunal explained why it concluded that the incidents did not occur for a Convention reason and that the applicant was not targeted for a Convention characteristic.

10                        The applicant has not established, nor can I ascertain, any error on the part of the Tribunal in its application of s 91R.  I can ascertain no jurisdictional error on the part of the Tribunal nor any error on the part of the Federal Magistrate.  It follows that there are insufficient prospects of success in an appeal from his Honour’s decision to warrant the grant of an extension of time for the filing of a notice of appeal. 

11                        The application should be dismissed with costs.

Associate:

Dated:         12 November 2009