FEDERAL COURT OF AUSTRALIA

SZORZ v Minister for Immigration and Citizenship [2011] FCA 593

THE COURT ORDERS THAT:

1.    The application be dismissed with costs, assessed at $2,435.00.

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

1    The applicant is a national of India from the state of Kerala. On 6 April 2011 he filed an application for extension of time to file and serve a notice of appeal in Form 54A. He was required to file that form if he wished to pursue an appeal from a decision given by the Federal Magistrates Court on 23 February 2011 against him. On that day the Federal Magistrates Court dismissed his application for prerogative relief to quash a decision of the Refugee Review Tribunal, which had upheld a decision of the delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection visa under s 36 of the Migration Act 1958 (Cth). The decision of the Federal Magistrate was given following argument on 23 February 2011 and it follows that the orders he made were pronounced on that day.

2    The effect of O 52 r 15(1)(a) of the Federal Court Rules is to require a person in the position of the present applicant to file any notice of appeal from the Federal Magistrates Court within a period of 21 days from the date upon which the judgment was pronounced. The relevant 21 day period in this case expired on 16 March 2011. The application having been brought on 6 April 2011, the applicant was out of time by a further 21 days.

3    Consequently, O 52 r 15 required the applicant to seek leave under subrule (2). An application under subrule (2) must satisfy the procedural requirements of subrule (3). It was not submitted that the application which was filed did not comply with those obligations. The affidavit filed in support of the present application deposed that the applicant had not received a written copy of the reasons for decision of the Federal Magistrate until 4 April 2011 and, so the applicant swore, only after having rung the Court on 1 April 2011 to find out where the reasons were. The reasons, of course, were delivered orally on 23 February 2011. What the applicant was awaiting was the written transcript of those reasons.

4    The circumstances in which the Court should grant leave to pursue a proceeding out of time were considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Wilcox J had before him in that case an application to extend the time for the bringing of a judicial review action under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’). The power to extend time was contained in s 11 of the ADJR Act which did not set out, in terms, any particular criteria by which it was to be exercised. Nevertheless, Wilcox J considered that there were six matters which were pertinent to the exercise of the power (at 348-349). First, that the Court needed to be affirmatively satisfied by the applicant that it was appropriate to grant leave. However, in that particular regard, it is to be noted that his Honour observed that s 11 did not require that any ‘special’ circumstance be made good. This is an important matter because it appears to have been overlooked in a number of the later decisions. Secondly, action taken by the applicant is relevant to the consideration of the question of whether an acceptable explanation for delay has been furnished. Thirdly, the prejudice to the respondent, including prejudice in defending the proceedings occasioned by the delay. Fourthly, the mere absence of prejudice is not enough to justify the grant of an extension. Fifthly, the merits of the substantial application are properly to be taken into account. Sixthly, considerations of fairness as between the applicant and the other party are also relevant.

5    The requirements of O 52 r 15(2) are such that leave can only be granted for ‘special reasons’ so that the requirements of that rule are explicitly different to the rule with which Wilcox J was concerned; and, in particular, what is missing in Wilcox J’s analysis is the word ‘special’. Despite that, Hunter Valley appears to have been used by a number of courts as authority on the meaning of and the approach to O 52 r 15(2). For example, the Full Court in Parker v The Queen [2002] FCAFC 133 thought at [6] that ‘[i]n the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).’

6    It would follow from what I have said that that case was not concerned with a notice of appeal and the word ‘special’ was missing from it. More recently, Cowdroy J in SZHIU v Minister for Immigration and Citizenship [2009] FCA 101 relied upon Hunter Valley as authority for the proposition that in order to work out whether special reasons exist under O 52 r 15(2) ‘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 of leave, and that there is merit in the substantial application’ (at [20]).

7    I accept the explanation which the applicant proffers for his delay in filing a notice of appeal. I accept, as Mansfield J accepted in Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627, that applications for extension of time involving unrepresented applicants who do not speak to English give rise to perhaps somewhat differing considerations to those which obtain in an ordinary application for an extension of time.

8    In addition, there is a line of cases commencing with Ariaee which suggest that in migration cases in which the applicant is unrepresented and does not speak English, the assessment of the substantive or underlying merit of the case should not proceed only by reference to the draft notice of appeal but should extend to an examination of the substratum of the litigation. Mr Wood, who appeared for the Minister, submitted that the proposed notice of appeal did not disclose grounds which could possibly succeed.

9    The first proposed ground of appeal was that the Federal Magistrate had failed ‘to consider the grounds of my application such as error of law made by the Tribunal, the Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act’; the second ground that the Tribunal was ‘unsatisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India, This is a serious jurisdictional error made by the Tribunal [sic]’. I accept the submission made on the Minister’s behalf that neither of those grounds could succeed.

10    The first ground is, in terms, a mere assertion of factual error and an allegation that the Tribunal ought to have found the facts differently to that which it did. That, without more, is not a jurisdictional error and the ground could not succeed. Nor does the second ground disclose a proper vehicle for review. The mere fact that this Court might disagree with the Tribunal’s conclusion on the question of whether the applicant was being persecuted for a convention reason does not provide a ground for intervention, still less the establishment of a jurisdictional error. It seems to me, however, that I am required by Ariaee to have regard to what the underlying merits of the matter are before concluding that leave ought not to be granted.

11    The proceeding before the Tribunal disclosed that the applicant was a person of the Catholic faith living in Kerala; that he had first become involved in the Kerala Catholic Youth Movement (or ‘KYCM’) at some time in 1996 to 1997 and that there were, putting it neutrally, tensions between the Christian and Hindu communities in that State. He claimed that he had been accused of attempting to convert Hindus to Christianity and in particular that a group known as the Rashtriya Swayamsevak Sangh (or ‘RSS’) had assaulted him; further, that it had not only assaulted him but that it had assaulted and in some cases killed other Christians.

12    The Tribunal recited the history of the applicant, which disclosed that he had travelled outside of India over the course of several years before coming to Australia in 2010. He had worked as a cook in both Saudi Arabia and Dubai as well as on a Royal Caribbean Cruise line. The Tribunal invited the applicant to appear before it at the review hearing. During that hearing, it put to the applicant that it did not accept, or it was minded not to accept, a number of his accounts. For example, it was sceptical as to the applicant’s bona fides because although he had visited the United States in 2008, he had not, at that time, applied for a visa. In addition, the applicant had visited Australia twice previously and had made no application for a protection visa on either of those occasions. So, too, country information which the Tribunal had access to indicated that, at least at the present, the sectarian violence between Catholics and Hindus in Kerala had subsided.

13    The Tribunal, as a result of its examination of the applicant, also felt that there were discrepancies between the account he gave during the review hearing and the account he had previously given in writing. For those reasons it concluded that it did not accept the truth of his account, although it did accept that he was a Catholic and it did accept that he had been a member of the KYCM. It simply did not accept, however, that the acts of violence and intimidation, which the applicant claimed, had substantively been made good.

14    The Tribunal did accept that in 2002 extremists had twice tried to attack the applicant without success; and that in 2003 his prayer group had been stopped by Hindu extremists and that on occasion they had verbally abused him. However, the Tribunal did not regard those events as being real threats to his life or safety.

15    Before the Federal Magistrate there were three grounds of appeal: jurisdictional error; breach of procedural fairness; and breach of natural justice. The Federal Magistrate rejected the first ground because he was unable to discern from his reading of the Tribunal’s decision the existence of any jurisdictional error. He noted in response to an oral argument put to him by the applicant that the applicant had sought before the Tribunal to put in evidence a letter from his priest and had sought an adjournment for that purpose. The Tribunal had declined that invitation. As the Federal Magistrate observed, in fact, a letter from the parish priest was ultimately provided to the Tribunal and that letter did not contain information which ultimately assisted the applicant.

16    As to the second ground of procedural fairness, the Federal Magistrate concluded that the applicant’s basic claim was that his evidence had not been taken seriously by the Tribunal and he determined, in that circumstance, to treat this as an allegation of apprehended bias. He rejected that allegation, in my opinion and with respect, correctly so. In addition, the Federal Magistrate noted, of course, that the rules of procedural fairness were now codified by s 422B of the Migration Act and in that circumstance he could not be satisfied that there had been a demonstration of any error.

17    I do not perceive in the Federal Magistrate’s decision any error which might justify an appeal to this Court. Further, doing the best that one can, and having read the Tribunal’s reasons, it is not obvious to me that the Tribunal has committed any errors.

18    I accept, as Mansfield J accepted in Ariaee, that ordinarily it will not be sufficient in cases such as the present merely to determine the matter on the basis of the notice of appeal. It will be, in cases of that kind, appropriate to survey and assay the subject matter of the proposed proceeding and for the Court to form a view itself, independently of the draft notice of appeal, as to what the substance of the matter might be. Accepting that to be so, however, and having conducted that exercise, it seems to me that the present case does not present even the possibility of a successful argument, and in those circumstances, it would be wasteful for all concerned to grant an extension of time.

19    For those reasons, I dismiss the application with costs which I assess, on the basis of Mr Wood’s affidavit and on the basis of the discussions which have taken place following his reading of that affidavit, in the sum of $2435.

Associate:

Dated:    20 May 2011