FEDERAL COURT OF AUSTRALIA

SZOQS v Minister for Immigration and Citizenship [2011] FCA 866

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for an extension of time to file and serve a notice of appeal from a decision of Barnes FM delivered on 22 March 2011 dismissing an application for judicial review of the Refugee Review Tribunal (Tribunal) decision handed down 24 August 2010. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection visa.

Background

2    The applicant is a citizen of India who arrived in Australia on 4 February 2007 on a student visa. His student visa was cancelled on 13 September 2009 on account of poor attendance of his studies.

3    The applicant is a Sikh and married his wife who was a Hindu in 2007. His wife converted to Sikhism upon their marriage. The applicant claims that, as a result of the marriage, which is inter-caste and of which his in-laws do not approve, his wife’s family has threatened to harm him. In particular, the applicant stated that he feared harm from his brother-in-law.

4    For these reasons, on 28 January 2010 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 28 April 2010. On 24 May 2010 the applicant applied to the Tribunal for a review of that decision.

refugee review tribunal

5    On 24 May 2010 the applicant applied to the Tribunal for review of the delegate’s decision to refuse his protection visa application. The applicant appeared before the Tribunal on 15 July 2010 to give evidence. The Tribunal was not satisfied the applicant would suffer serious harm or would be persecuted if he returned to India. The Tribunal had regard to independent country information indicating that marriages such as the applicants are legal and not uncommon in the state of Punjab where the applicant lived. However, the Tribunal did note that the general atmosphere was not favourable to inter religious marriages.

6    The Tribunal had regard to the evidence that the applicant’s wife’s family attended the wedding in a Sikh temple. In view of this the Tribunal found the applicant’s in-laws accepted the marriage, although may not approve of the marriage. The Tribunal concluded that the applicant had not suffered any serious harm and would not be persecuted if he returned to India. The Tribunal found that, considering the three year period of non-contact between the applicant and his wife’s family, the applicant’s brother-in-law is avoiding the applicant and the applicant’s wife. The Tribunal considered that the applicant’s claim that his brother-in-law would harm him if he returned to India was purely speculative. The Tribunal dismissed the application on the basis the applicant had not suffered persecution, and would not do so if returned to India.

federal magistrates court

7    On 27 September 2010 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The applicant claimed the Tribunal had not considered the fact that he could not relocate anywhere else within India. The Federal Magistrate explained that she could not review the Tribunal decision on its merits and as such she was not empowered to look at his case again (notwithstanding the applicant’s request that her Honour do so).

8    In oral submissions the applicant took issue with the fact the Tribunal did not question why he could not move elsewhere in India. The Federal Magistrate outlined that the Tribunal did not have to address relocation in this case. If the Tribunal had held there was a well-founded fear then it would have addressed relocation. However, the Tribunal concluded the applicant did not have a well-founded fear of persecution.

9    At the hearing the applicant indicated there had not been an interpreter at the Tribunal hearing. However as the Federal Magistrate pointed out this was due to the applicant himself electing not to have one present. There was also no evidence that any problem of comprehension arose in the Tribunal hearing. The Federal Magistrate concluded that the applicant’s grounds of appeal did not reveal a jurisdictional error, and dismissed the application.

Appeal to this court

10    The applicant was self-represented before me. The Minister was represented by Ms Buchanan of the Australian Government Solicitor.

11    The date of her Honour’s judgment below was 22 March 2011. On 27 April 2011 – that is, 36 days after judgment – the applicant filed an application for an extension of time in which to file and serve a notice of appeal pursuant to O 52 r 15(1) of the Federal Court Rules. The applicant included the following draft grounds of appeal in the application:

1.    Federal Magistrate Court didn’t gave me enough time to speak.

2.    Before the hearing start I told them I am not feeling well I am not able to attend this hearing. I request them for the extension of one week. They ask me for medical certificate I said I forget at home. Due to that sickness I couldn’t able to attend my hearing properly. When I ask them few question they said we gave you enough time for that why didn’t you send and document before this date.

(errors in original)

12    In an affidavit filed in support of the application for an extension of time, the applicant deposed, summary, as follows:

1.    He was ill on the date of the hearing of the Federal Magistrates Court and was refused an adjournment of one week because he did not have a medical certificate.

2.    he is at risk of serious harm in his country.

3.    he did not have an interpreter at the Tribunal.

4.    the notice of appeal was not filed within time because he misunderstood the date by when he was required to file the notice.

13    At the hearing this afternoon the applicant submitted in summary:

1.    His sister was due to arrive in Australia and would be able to give additional evidence.

2.    There was no interpreter at the Tribunal hearing which meant that he was at a disadvantage.

3.    His brother-in-law who recently visited Australia did not contact him.

Consideration

14    So far as relevant, O 52 r 15 of the Federal Court Rules in force at the time of filing the application provide as follows:

FEDERAL COURT RULES - ORDER 52 RULE 15

Time for filing and serving notice of appeal

(1) The notice of appeal shall be filed and served:

(a) within 21 days after:

(i) the date when the judgment appealed from was pronounced;

(ii) the date when leave to appeal was granted; or

(iii) any later date fixed for that purpose by the court appealed from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2) 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.

15    As was observed by the Full Court in Jess v Scott (1986) 12 FCR 187, “special reasons” requires a case to be made upon grounds sufficient to justify a departure from the ordinary rule prescribing a period within which an appeal must be filed and served. Jess v Scott is also authority for the proposition that the Court’s power to extend time is a flexible one, designed to enable substantial justice to prevail over technical default: Zocchi v The Queen [2000] 116 A Crim R 245 at 246, Parker v The Queen [2002] FCAFC 133 at [13].

16    In this case, the applicant’s delay in filing a notice of appeal is short. In my view his reasons for his failure to file within the prescribed period are reasonable and can be described as the confusion which can be experienced by a self-represented litigant in dealing with Court process.

17    However, it is equally clear that, even if an extension of time to file and serve a notice of appeal is granted, the grounds of appeal would have no prospects of success. I form this view for the following reasons:

1.    The applicant claims that the Federal Magistrate did not give him enough time to speak at the hearing. No evidence of this is produced.

2.    The applicant claims that he sought an adjournment of the hearing before the Federal Magistrate because he was ill, and that the Federal Magistrate erred in refusing an adjournment application. However I accept the submission of the Minister that it was open to the Federal Magistrate to refuse to grant an adjournment in view of the lack of medical or other credible evidence before her Honour in support of the application.

3.    The applicant claims that he could not properly answer questions at the Tribunal hearing because he did not have an interpreter. However as her Honour below observed:

(a)    the applicant had noted English as one of his languages on his protection visa application;

(b)    he had indicated on his Response to Hearing Invitation Form that he did not require an interpreter;

(c)    there was no suggestion at the Tribunal hearing that he had a problem with comprehension at any stage; and

(d)    this was not a case in which the applicant’s claims were rejected because of his credibility, based on the hearing or on any question of interpretation of his answers.

4.    The availability of his sister to give additional evidence is not relevant in the proceedings currently before me. In any event, as a general proposition new evidence cannot be tendered by the appellant in a judicial review of the decision of the Tribunal (including by way of appeal from the FMC) because the Court is limited to considering the decision of the Tribunal on the material before it and whether the decision of the Tribunal was attended by error of law (cf Nejad v Minister for Immigration and Multicultural Affairs [2001] FCA 1399 at [6], MZXFU v Minister for Immigration and Multicultural Affairs [2006] FCA 1593 at[10]).

18    In my view, no error is demonstrated by her Honour’s analysis.

Conclusion

19    I accept the submission of the Minister that it would be futile to grant the applicant an extension of time to file a notice of appeal in the absence of any prospect of success in an appeal.

20    The application is dismissed with costs.

Associate:

Dated:    2 August 2011