FEDERAL COURT OF AUSTRALIA

SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281

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 extension of time from a decision of Barnes FM dated 15 July 2011 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down 28 February 2010. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the applicants’ application for protection visas.

Background

2        The applicants are husband and wife, citizens of India, who arrived in Australia in February 2010. On 30 March 2010 the applicants lodged an application for a protection visa with the Department of Immigration and Citizenship.

3        The second applicant (the wife) applied for a protection visa as a member of the same family unit of the first applicant. The first applicant claimed to fear persecution by the BJP Party in India as he had been a member of the Congress Party (INC) since 2002 and was an active member in canvassing for the 2007 state election in Gujarat. In the 2009 national election he was again active on behalf of the party as he worked on an advisory committee. He claimed that he was targeted by the BJP party in 2007, 2008 and 2009. He claimed that the BJP asked him to donate to their party. He refused and reported the matter to the police. The first applicant claimed that as a result, BJP supporters attacked him in his home and at the end of 2008 they ransacked his office and threatened his business partners. He also claimed that, in 2009, he was pulled off his scooter and assaulted.

4        A delegate of the first respondent refused the application for a protection visa on 29 November 2010. On 22 September 2009 the first applicant applied to the Tribunal for a review of that decision.

Refugee Review Tribunal

5        The Tribunal did not accept that the first applicant had been a member of the INC or that he was targeted by the BJP. Further, the Tribunal found that the first applicant was not a witness of credit. The first applicant was unable to answer questions put to him by the Tribunal such as the name of the INC and BJP candidates for his constituency in 2009. The Tribunal reasoned that if the first applicant had been actively involved in organising the canvassing for the INC in the 2009 elections, he would have known the identity of both these people.

6        The Tribunal also found the first applicant’s account of being targeted by the BJP to not be credible. The Tribunal stated that the first applicant had given inconsistent evidence about the approaches made to him by the BJP.

7        The Tribunal also noted the one year delay between the date the first applicant was allegedly pulled off his scooter and assaulted in 2009, and when he applied for a visa to leave India in February 2010.

Federal Magistrates Court

8        On 28 March 2011 the first applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application contained the following grounds:

1.    The Tribunal did not give to the first applicant before the hearing the independent information that it had about politics in Gujarat, India. The Tribunal used this information (RRT decision record pages 12 to 13). This was against section 424A of the Migration Act 1958.

2.    The RRT denied the first applicant procedural fairness by reaching adverse conclusions that the Tribunal did not find the first applicant to be a credible or reliable witness, being conclusions that were not obviously open to the known material, without giving the first applicant the opportunity to be heard in respect of those matters.

3.    Therefore the first applicant submits that the Tribunal failed to analyse properly the “future harm” the first applicant may face if he has to go back to India.

9        The Federal Magistrate dismissed the first ground on the basis that information in the nature of independent country information is not subject to the obligation in s 424A(1) of the Migration Act 1958 (Cth) (“the Act”), being within the exception in s 424A(3)(a).

10        The Federal Magistrate stated that it had not been established that there was any denial of procedural fairness, whether arising under s 425 of the Act or otherwise. There was nothing to support any claim that the Tribunal misunderstood, failed to apply or misapplied the law in relation to the definition of refugee.

11        Finally, her Honour found that the Tribunal adequately addressed any future harm the first applicant may have faced were he to return to India.

Application to this Court

12        The decision of her Honour was delivered on 15 July 2011. The applicants were required, pursuant to r 36.03 of the Federal Court Rules, to file any appeal from the decision by 5 August 2011. They did not do so.

13        On 29 August 2011 the first applicant filed an application for an extension of time for leave to appeal. Annexed to that application was a draft notice of appeal in which the first applicant specified the following grounds of appeal:

1.    The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

3.    The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

(Reproduced as in original.)

14        In support of that application the first applicant filed an affidavit in which he deposed as follows:

1.    I am an Indian Citizen by birth and came to Australia and applied for protection visa under the determination of Refugee status in Australia.

2.    The Delegate of the minister for Immigration and Citizenship refused to grant my protection visa. I applied for review in the Refuge Review Tribunal, but the member of the Tribunal affirmed the delegate decision.

3.    I filed for Judicial review application before the Federal Magistrate. Honourable FM dismissed my application on 15 July 2011. I was not represented by any solicitor. I had no idea that my application was dismissed on the day of final hearing. I received the order last week. The order sent to me after 21 days.

4.    I require extension of time and serve notice of appeal against the Federal Magistrate order.

(Reproduced as in original.)

15        In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include:

    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

    whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

    the merits of the substantial application.

16        At the hearing before me it was clear from submissions made by the first applicant that the he had, erroneously, believed that the orders of her Honour made on 15 July 2011 only took effect once reasons for judgment had been published and he had received the formal orders in the mail. This belief arose from the fact that her Honour had, apparently, requested that the first applicant provide his contact details in order for the Court to forward him formal orders and reasons for judgment. In the circumstances of this case, this is a satisfactory explanation for the delay of the applicants in filing the notice of appeal against her Honour’s decision.

17        No issue as to prejudice in respect of the delay in filing was taken by the Minister at the hearing before me.

18        However, Mr Temby for the Minister pressed the Minister’s submissions that the draft grounds of appeal as presented by the applicants were of no merit. In summary, the Minister contended:

    In relation to the first draft ground of appeal, the reasons given by her Honour satisfactorily answer the claim of the applicants that her Honour failed to consider that the Tribunal acted in a manifestly unreasonable way, and ignored the persecution and harm to the applicants in terms of s 91R of the Act. In reality, the Tribunal simply did not accept that the applicants’ claims of persecution were credible. Mr Temby directed me in particular to paragraphs 6, 11,12, 21, 25 and 26 of her Honour’s judgment.

    The second draft ground of appeal was unparticularised and of no substance. In relation to her Honour’s judgment Mr Temby directed me specifically to paragraph 10.

    In relation to the third draft ground of appeal, the Federal Magistrate at paragraphs 19, 24 and 31 clearly considered whether the applicants had been denied procedural fairness by the Tribunal, and found that there was nothing to support such a claim. Further, the Minister contended that this ground of appeal invited a merits review of the applicants’ case, which is impermissible under the Act.

19        At the hearing before me, I invited the first applicant to make submissions as to the merits of the proposed appeal. The first applicant emphasised that his primary goal was to receive another opportunity to present the applicants’ case to the Tribunal, as he had been very nervous at the first Tribunal hearing. I asked the first applicant if he had informed the Tribunal of his nervousness at the time of that hearing, however his response was in the negative.

20        Unfortunately, a mere desire to improve one’s performance before the Tribunal at a second hearing does not warrant an order quashing an existing decision of the Tribunal.

21        In my view the draft grounds of appeal have no reasonable prospect of success, and have no merit. No appealable error is apparent in respect of her Honour’s judgment. The appropriate order is to refuse the application for an extension of time in which to file an appeal from the decision of her Honour.

Associate:

Dated:    10 November 2011