FEDERAL COURT OF AUSTRALIA

SZNOL v Minister for Immigration and Citizenship [2010] FCA 574

THE COURT ORDERS THAT:

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

2.                  The applicant pay the first respondent’s costs. 

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Background

1                     The applicant is a 26 year old man who arrived in Australia on 10 July 2008 for World Youth Day.  He is a citizen of Togo who claims to have a well founded fear of persecution for reason of political opinion.  He applied for a protection visa on 25 August 2008 which was refused.  He then applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.  On 8 April 2009 the Tribunal affirmed the decision of the delegate.  The applicant then applied to have the decision set aside in the Federal Magistrates Court.  On 28 July 2009 the federal magistrate (Nicholls FM) dismissed his application.  The applicant now wishes to appeal the federal magistrate’s decision. 

2                     The applicant claims that if he returns to Togo he will be harmed by members of the Rally for the Togolese People (RPT).  He claims that his family were caught up in differences between the Union of Forces for Change (UFC) and the RPT.  The applicant claims his father was killed in an accident in 1998 and his mother died in 2001.  He claims that supporters of RPT were responsible for their deaths and, subsequently, the detention and torture of the applicant and his brother. 

Extension of Time

3                     The applicant did not take any steps to appeal the decision of the federal magistrate until 8 April 2010.  On that date he filed an application for an extension of time to file and serve his notice of appeal.  This is the application now before me.  It is opposed by the first respondent (the Minister). 

4                     The applicant gave evidence in support of his application.  He was cross-examined by counsel for the Minister.  While I have some concerns about the sufficiency of the applicant’s explanation for his failure to lodge a notice of appeal within time and the substantial delay in filing his application for an extension of the time, it is not necessary for me to explore those issues in any detail.  For reasons which I will explain, I am not satisfied that the applicant has any arguable grounds of appeal.

The proposed appeal

Facts and findings relevant to the proposed appeal

5                     According to information available to the delegate, the applicant claimed that he was Catholic and a student at the University of Lome between 2006 and 2008 when he lived in Aneho.  Further, at an interview held on 23 October 2008 the applicant again claimed that he was studying at the University and that he had completed six months of a sociology course there.  However, in his statement to the Tribunal the applicant claimed that during the period that he was living in Aneho he was in hiding.  His attention was drawn to possible inconsistencies between this evidence and his previous statements that he was studying during that period at the University of Lome.  He went on to explain to the Tribunal during the hearing that his elder brother had enrolled him at the University of Lome but that he had not attended classes there. 

6                     The Tribunal subsequently wrote to the applicant again drawing his attention to possible inconsistencies between his evidence at the hearing and his previous statements.  The significance of whether or not the applicant attended the University of Lome was, according to the Tribunal, that it bore on the question of whether or not the applicant was in hiding between 2006 and 2008 as he claimed.  The Tribunal warned the applicant in its letter that if it was not satisfied the applicant was not studying in 2006 to 2008 “… [t]his may lead it to conclude that [the applicant] was not in hiding in Aneho and did not attend the meetings of the UFC in Aneho.”

7                     In response to the Tribunal’s letter the applicant’s adviser wrote to the Tribunal by letter dated 26 March 2009.  The adviser stated that from August 2006 the applicant lived in Aneho with a Father Deto, and that although the applicant was enrolled at the University of Lome, he did not attend any classes at all.  It was said that his brother enrolled him in various courses so that the applicant could collect the study allowance payable to enrolees. 

8                     Enclosed with the 26 March 2009 letter was a letter purporting to be written by Father Deto dated 8 March 2009 in which Father Deto confirmed that the applicant, while living in Aneho, lived next door to the parish centre where Father Deto resided.  The letter went on to confirm that the applicant did not attend the course at the University of Lome while he lived in Aneho.

9                     At [52] and [53] of its reasons for decision the Tribunal stated:

52.       It is claimed that his father was closely related to the President of Togo, his father was a UFC supporter and may have been killed by the military due to his political opinion, his mother was a UFC supporter and campaigned for the UFC in the 1998 elections and because of her political opinion, she was dismissed from her government job in March 1999 and in February 2001 was killed by the military, that in March 2003 the applicant and his family were told to join the RPT however they did not, that in February 2005 the military thought that he was celebrating the death of the President and he and his family were detained for 2 weeks and tortured, that he and his family moved to Kara however his brother was beaten there, in 2005 before the elections there was political unrest and they went to Ghana to escape, in April 2006 he left his family home and lived with the family of the priest however soldiers came to look for him there. In August 2006 he fled to Aneho to live with another priest. He stayed there for about 2 years until he left for Australia. Since he left Togo, the military came to his family home in Lome and the priest’s family home in Lome to look for him. In November 2008 soldiers again came to his family home and beat his brother Michel, whom they had mistaken for the applicant and who had left Togo and gone to live in Ghana. It is also claimed that the applicant has and will be imputed to be a supporter or member of the UFC, and that he attended a UFC meeting in August 2006 and later meetings in Aneho.

53.       The Tribunal does not accept that [sic] the applicant’s claims in relation to past events. That is because he was unable to provide plausible explanations in relation to substantial parts of his claim and his evidence continued to change throughout the course of the application.

10                  Later in its reasons for decision the Tribunal referred to the letter from Father Deto, as well as the other material enclosed with the letter of 26 March 2009.  At [58] and [59] of its reasons for decision the Tribunal stated:

58.       Given that the Tribunal is not satisfied that the applicant provided any plausible explanation as to why the army would let his father continue to be involved in the then President’s security if they were aware of his leanings towards the UFC and that the Tribunal is not satisfied that the applicant was in hiding, the Tribunal does not believe that he or any of his family including his mother have been targeted by the then President, the army or indeed the new President. Neither does it accept that his mother was dismissed and then killed, or that the applicant and his family were detained for 2 weeks and tortured, or that he and his family moved to Kara however his brother was beaten there, that in 2005 they went to Ghana to escape, that in April 2006 he left his family home and lived with a priest’s family however soldiers came to look for him there and in August 2006 he fled to Aneho to live with another priest or that since he left Togo, the military came to his family home in Lome and the priest’s family home in Lome to look for him or that in November 2008 soldiers again came to his family home and beat his brother Michel who then fled to Ghana.

59.       In reaching its conclusion, the Tribunal has considered Mr Chaussivert’s opinion dated 24 September 2008 and 24 February 2009 as to the applicant’s psychological state.  While the report is evidence of the applicant’s psychological condition, because Mr Chaussivert has no personal knowledge of what happened to the applicant in Togo and his conclusions are based solely on what the applicant has told him, it is not proof that the claimed events were the cause of his psychological problem.  Therefore, in this regard, the Tribunal does not give this report any weight.  The Tribunal has also considered the letters from the applicant’s family: [the applicant’s sister] dated 8 October 2008 and [the applicant’s brother] dated 7 February 2009, from Revered Father Aser Clement Mensah dated 12 October 2008 and Father Deto dated 8 March 2009, from George Wallace dated 12 January 2009 however given the Tribunal’s concerns about the applicant’s credibility and that the contents of those documents remain untested assertions, the Tribunal does not give them or photos allegedly showing the applicant’s brother and mother to have been tortured sufficient weight to overcome its concerns with the applicant’s evidence. 

The Tribunal stated (at [60]) that is was not satisfied that the applicant or his family had suffered the alleged past harm because of their alleged or perceived UFC links.  The Tribunal went on (at [61]) to conclude that it was not satisfied that the applicant would suffer persecution in the reasonable foreseeable future.

The legal point raised in the proposed appeal

11                  At the hearing, counsel for the applicant stated that he wished to rely upon a single ground of appeal namely, ground 2 in the amended proposed notice of appeal:

2.         Alternatively, his Honour erred by not setting aside the decision of the Tribunal in circumstances where the Tribunal had not given the Appellant notice of information that it considered would be the reason or part of the reason for affirming the refusal of the First Respondent’s delegate to grant a protection visa in accordance with section 424A of the Migration Act 1958.

            Particulars of Ground 2

            1.       The Appellant repeats the particulars of Ground 1.

            2.       The information that it is alleged, the Tribunal considered would be the reason or part of the reason for affirming the refusal of the First Respondent’s delegate to grant a protection visa was:

                     a.       the Documentary Evidence (and in particular Fr Deto’s letter) being:

                              i.    false; or

                              ii.   a forgery; or

                     b.       alternatively, the fact that the Tribunal proposed to reject the Documentary Evidence (and particularly Fr Deto 's letter).

            3.       The Tribunal should have notified the Appellant that information under section 424A [sic].

            4.       The Appellant will contend that the information did not fall within the exception set out in section 424A(3)(b).

            5.       His Honour erred by not setting aside the Tribunals’ decision in these circumstances.

12                  I shall not set out what are referred to as “the particulars of Ground 1”.  Relevantly, they referred, among other things, to the Tribunal’s rejection of the applicant’s account of his movements including his claim that he “fled to Aneho to live with [Father Deto] in August 2006” and the Tribunal’s failure to accept that claim in light of the letter of Father Deto dated 8 March 2009. 

13                  Counsel for the applicant argued that s 424A of the Migration Act 1958 (Cth) required the Tribunal to give a notice under that section of the fact that it might not give any weight to Father Deto’s letter.  Section 424A(1) provides:

(1)     Subject to subsections (2A) and (3), the Tribunal must:

(a)   give to the applicant, in the way that the Tribunal considers 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; and

(b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)   invite the applicant to comment on or respond to it.

14                  The proposed appeal could only succeed if the documents enclosed with the letter of 26 March 2009, in particular, the letter purporting to be written by Father Deto, was “information” of the kind described in s 424A(1).  I cannot see how that letter could amount to information that the Tribunal considered, or could have considered, would be the reason, or part of the reason, for affirming the delegate’s decision to refuse the applicant a protection visa.  The reason for the Tribunal affirming the delegate’s decision was that it did not believe the applicant.  There was nothing in Father Deto’s letter which provided the Tribunal with a reason for affirming the delegate’s decision.  Section 424A(1) was not engaged: see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17] – [22]. 

15                  I am satisfied that the proposed appeal has no prospects of success.  I therefore dismiss the application to extend time to file a notice of appeal.  The applicant must pay the first respondent’s costs.

Associate:

Dated:         7 June 2010