FEDERAL COURT OF AUSTRALIA

SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

1    The applicants apply pursuant to Rule 36.05 of the Federal Court Rules 2011 (‘the Rules’) for an order granting an extension of time to file a notice of appeal against a decision of Federal Magistrate Nicholls delivered on 22 August 2011: SZQBI v Minister for Immigration and Citizenship [2011] FMCA 650. By such decision Nicholls FM found that no jurisdictional error existed in the decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 24 February 2011 affirming a decision of a delegate of the first respondent (‘the delegate’) not to grant a Protection (Class XA) visa (‘protection visa’) to the applicants.

BACKGROUND

2    The applicants are husband and wife and are nationals of India who arrived in Australia on 8 April 2010 having been issued with Indian passports and Class TR Visitor visas. On 21 May 2010 the applicants lodged an application for a protection visa. The second applicant relied on the claims set out in the first applicant’s visa application.

3    The first applicant claimed to be a supporter of the Bharatiya Janata Party (‘the BJP’) in India. However, in his application he asserted that if he was forced to return to India he would be in danger from his brothers who support the Indian National Congress (‘INC’). The first applicant claimed that he was beaten by his brothers and in the past they had made threats of physical violence towards him because of his BJP membership.

4    The first applicant claims that at one stage he approached the local police for assistance but the police would only offer protection in exchange for a bribe. The first applicant further claims that on 15 October 2009 his wife and her mother were attacked in their house by three ‘henchmen’ who warned that the first applicant should ‘do as they say’. In his protection visa application the first applicant claimed that such attacks and threats caused him to be fearful for his and the second applicant’s safety if they had to continue to live in India.

5    The applicants did not attend the interview with the delegate on 23 September 2010 and did not provide a reason for such non-attendance. The delegate found that the claims were unsubstantiated and refused both claims for a protection visa upon the ground that the essential and significant reason for the harm feared was not for a Convention reason.

APPLICATION TO TRIBUNAL

6    The applicants applied to the Tribunal on 7 October 2010 for a review of the decision of the delegate. The hearing was adjourned and rescheduled on a number of occasions. The first applicant initially attended the Tribunal on 23 November 2010, and after being adjourned, the applicants were invited to appear a second time on 14 December 2010. However, on 13 December 2010 the Tribunal received a medical certificate from the first applicant stating that he was unfit to appear at that date. Subsequently, a third invitation was sent by the Tribunal to the first applicant on 12 January 2011, advising him of the hearing being scheduled for 18 January 2011. However, such hearing was cancelled and rescheduled for 1 February 2011. On the morning of 1 February 2011, the first applicant contacted the Tribunal, seeking an adjournment as he suffered an injury the night before and supported such claim with a faxed medical certificate on 2 February 2011. The hearing was then adjourned to 11 February 2011. On 9 February 2011 telephone contact was made with the applicants who confirmed that they had received the invitation for the rescheduled hearing and would attend. The first applicant did appear at the hearing on 11 February 2011.

7    Before the Tribunal the first applicant stated that his only fear of persecution was from his brothers. The Tribunal rejected the application, finding that the first applicant’s evidence was ‘…confused, inconsistent and at some points implausible…’ and unsubstantiated, vague and deficient in detail. The Tribunal was not satisfied of the first applicant’s credibility in respect of his claim to fear harm in India for several reasons. Accordingly, the Tribunal concluded that the applicants did not satisfy the criteria set out in s 36(2)(a) of the Migration Act 1958 (Cth) for a protection visa.

FEDERAL MAGISTRATES COURT

8    By application in the Federal Magistrates Court (‘FMC’) dated 23 March 2011, the applicants sought writs of certiorari, prohibition and mandamus in respect of the Tribunal’s decision. Before the FMC the applicants appeared in person and were assisted by an interpreter.

9    The applicants raised the following grounds:

1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

3. The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act.

4. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

5. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

6. The RRT has failed to investigate applicant claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 25 February 2011 was effected by actual bias constituting judicial error.

10    The learned Federal Magistrate noted that the application did not contain a paragraph numbered 2.

11    The Tribunal observed that the first applicant had waited 6 months after obtaining the tourist visa before leaving India and claimed that such delay resulted from the fact that his mother was ill. His Honour found that the Tribunal did accept that the applicant’s mother had a severe heart condition and that despite his mother’s illness the Tribunal was not satisfied by the first applicant’s explanation for his delay given the alleged gravity of the first applicant’s fear. The first applicant also asserted that he feared for his life in India. The Federal Magistrate considered such claim to be a challenge to the factual findings of the Tribunal which constituted impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

12    His Honour found that this was a finding which the Tribunal was entitled to make (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611), and thus this did not constitute a legal error. The Federal Magistrate considered it was ‘open to the Tribunal on what was before it, [to not] believe the truth of the applicant’s claims’.

13    With respect to the applicants’ argument that the Tribunal had no jurisdiction to make its decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth), his Honour found that ‘there is nothing in the material before the Court to suggest that the Tribunal made its decision other than in accordance with the requirements of the Act’.

14    His Honour inferred that the statutory regime to which the applicants referred to in the applicants’ notice of appeal was that which requires a Tribunal to be adequately satisfied that the applicant complies with the definition of a ‘refugee’ as set out in the UN Convention to the Status of Refugees. His Honour referred to authorities and concluded that where such level of satisfaction is not reached, the application for a protection visa must be refused: see VMOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 188.

15    His Honour concluded that no jurisdictional error could be discerned from the Tribunal’s decision and thus dismissed the appeal.

THE APPLICATION BEFORE THIS COURT

16    Rule 36.05 of the Rules enables this Court to hear an application for an extension of time in which to file a notice of appeal. Rule 36.05(3) relevantly provides:

36.05    Extension of time to file notice of appeal

…

(3)    The application must be accompanied by the following:

…

    (c)    an affidavit stating:

    (i)    briefly but specifically, the facts on which the application relies; and

    (ii)    why the notice of appeal was not filed within time;

…

17    The principles guiding the Court in determining whether an extension of time should be granted were outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Further, in Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 Foster J considered an application for an extension of time under the Federal Court Rules 1979 and said at [17]:

In essence, the Court requires a satisfactory explanation for the delay and usually considers other factors such as the applicant’s actions in contesting the decision otherwise by appeal, prejudice to the respondent and the merits of the application.

18    Therefore in the present circumstances the Court must consider, inter alia, whether any prejudice would be caused to the first respondent if leave were granted; whether the applicants have an adequate explanation for the delay; and whether the merits of the proposed notice of appeal justifies the grant of such an extension.

(a) Prejudice to the first respondent

19    The first respondent accepted during oral submissions that no prejudice would be caused to the first respondent should the Court grant the leave sought by the applicants.

(b) Explanation for the Delay

20    The first respondent concedes that the applicants’ delay is short, namely 3 days. The appeal was required to have been lodged by the applicants in this Court on or before 12 September 2011 and instead the present application was filed on 15 September 2011.

21    Despite the brevity of the delay, the first respondent submits that the applicants’ explanation for the delay is inadequate. The first applicant submits that he was ‘not aware of the time limit for Notice of Appeal’. During oral submissions the first applicant confirmed that he did not know of any statutory time limits, and only filed the application before this Court upon receiving a letter from the Federal Magistrates Court advising him of the time limit in which to file a notice of appeal. The first applicant stated during submissions that he received this letter ‘very late’.

22    The first respondent submits that as found in SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33], it is ‘not acceptable that the applicants failed to make proper inquiries to determine whether their appeal was required to be lodged’.

23    The Court finds that if the applicants’ grounds of appeal are meritorious, the extent of the delay is insufficient to justify the dismissal of the application presently before it. Thus the Court will turn to the merits of the proposed substantive appeal.

(c) Merits of Appeal

24    In SZMOQ v Minister for Immigration and Citizenship [2010] FCA 95 Edmonds J when determining whether to grant leave for an extension of time, said it is ‘necessary to consider the applicant’s prospects’. See also WACF v Minister for Immigration and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].

25    In SZMOQ Edmonds J referred at [9] to the decision of the High Court in Gallo v Dawson (No 2) (1992) 109 ALR 319, where the High Court endorsed the following principle stated by McHugh J at first instance:

… it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. (Citations omitted)

26    The first applicant’s affidavit in support of the application attached the proposed notice of appeal against the decision of the Federal Magistrate which are as follows:

1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants’ claim and ignoring [sic] the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation [sic].

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

27    The first respondent submits that the grounds as set out above were not relied upon before the Federal Magistrate and as such the applicants require the leave of this Court to raise such grounds for the first time on appeal. The first respondent further submits that is not in the interests of justice for the Court to grant leave to allow the applicants to argue the new grounds as they do not enjoy a reasonable prospect of success. The first respondent relies on the authority of O’Brien v Komesaroff (1982) 150 CLR 310 at 319 in support of such principle.

28    A court will only allow an appellant to raise a new ground at the appellate level where it considers it is ‘expedient in the interests of justice to allow the new ground to be argued and determined’: VACC v Minister for Immigration and Multicultural and Immigration Affairs (2003) 129 FCR 168 at [26]. See also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [162]-[164]. Further, the Full Court in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 said that ‘in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised’.

29    The Court is accordingly required to consider the merits of the applicants’ proposed notice of appeal.

First proposed ground

30    With respect to the first ground of the proposed notice of appeal, the Court agrees with the submission of the first respondent that there was no need for the Tribunal to refer to s 91R of the Migration Act 1958 (Cth) as it had already found that the applicants had not suffered persecution.

31    With respect to the applicants’ claim that the Tribunal acted in a ‘manifestly unreasonable way’, the first respondent submits that any assertion that the decision of the Tribunal is invalid due to Wednesbury unreasonableness is not made out on the evidence: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The Court agrees with such submission and finds that no jurisdictional error was disclosed by the decision of the Tribunal.

Second proposed ground

32    With respect to the second ground, the Court finds that the learned Federal Magistrate correctly found that there was no jurisdictional error on the part of the Tribunal. During oral submissions before this Court, the first applicant indicated that he seeks the remittal of the proceedings to the Tribunal so he can provide ‘further evidence’ in support of his claims. However, the Court notes that the documents upon which the first applicant submitted he would rely, namely medical reports involving his mother, were contained in the relevant Court Book in the Federal Magistrates Court.

33    Further the applicants purport to challenge ‘factual errors’ in its second ground of the proposed notice of appeal. Findings of fact however cannot be reviewed by this Court: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. Further, no error of law exists if a tribunal makes a wrong finding of fact or engages in reasoning which is unsound: see Minister for Immigration and Citizenship v SZNPG and Another (2010) 115 ALD 303 at [20].

34    The Court finds that the applicants’ allegations of error by the Federal Magistrate and by the Tribunal are insufficient to found any valid ground of appeal. The appeal must have sufficient prospects of success justify a grant of leave for an extension of time: see W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13]. The Court is satisfied that there are insufficient prospects of success to justify leave being granted.

CONCLUSIONS

35    It follows that the Court is not satisfied that there is merit in either of the proposed grounds of appeal sufficient to grant leave to appeal. Accordingly the application must be dismissed with costs.

Associate:

Dated:    8 December 2011