FEDERAL COURT OF AUSTRALIA

SZQEH v Minister for Immigration and Citizenship [2012] FCA 127

FEDERAL COURT OF AUSTRALIA

SZQEH v Minister for Immigration and Citizenship [2012] FCA 127

CORRIGENDUM

1.    In the second sentence of paragraph 17 of the Reasons for Judgment, the word “injustice” should read “justice”.

Associate:

Dated:    16 March 2012

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file and serve a notice of appeal be dismissed.

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

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

REASONS FOR JUDGMENT

APPLICATION FOR EXTENSION OF TIME

1    This is an application by the applicant for an extension of time in which to file and serve a notice of appeal against a decision of the Federal Magistrates Court made on 14 October 2011 published as SZQEH v Minister for Immigration and Citizenship [2011] FMCA 795.

2    A notice of appeal should have been filed and served within 21 days after the date when the judgment appealed from was pronounced: Rule 36.03 of the Federal Court Rules 2011 (“the Rules”). The applicant should have filed his notice of appeal on or before 4 November 2011. An application for an extension of time to file and serve a notice of appeal was made on 30 November 2011 some 26 days beyond the deadline for the filing of a notice of appeal.

3    Having considered the criteria to be applied on an application for an extension of time to file and serve a notice of appeal, I have determined to dismiss the application for the reasons which follow.

BACKGROUND

4    The applicant is a male citizen of the Bangladesh who arrived in Australia on 10 September 2010. On 16 September 2008 the applicant lodged an application for a Protection (Class XA) visa (“Protection visa”) with the Department of Immigration and Citizenship (“the Department”) on the grounds that he feared persecution in Bangladesh due to his involvement with and support of the Awami League (“AL”) political party.

5     A delegate of the Minister (“the delegate”) refused the applicant’s application for a Protection visa because the delegate was not satisfied that the applicant had suffered serious harm and/or significant ill treatment amounting to persecution on the basis of his political opinion. The delegate was not satisfied that the applicant would have a significant enough political profile to justify his claims of adverse attention amounting to persecution from two political organisations – the Bangladesh Nationalist Party (“the BNP”) and Janaat-e-Islami (“JI”). Therefore, the delegate was not satisfied that the applicant had suffered past mistreatment or persecution or that he reasonably faced a well founded fear of harm if he were to return to Bangladesh.

6    The applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (“the Tribunal”).

7     Following a number of hearings, the Tribunal considered the applicant’s claims. For reasons to which I shall return, the Tribunal refused the application on the basis of its finding that the applicant did not have a well founded fear of persecution. On 31 March 2011, the decision of the delegate not to grant a Protection visa was upheld by the Tribunal.

8    The applicant filed an application to the Federal Magistrates Court on 28 May 2011. On 14 October 2011 the Federal Magistrate dismissed the applicant’s application for review with costs.

9    On 30 November 2011, the applicant filed an application for an extension of time to file and serve a notice of appeal in this Court. That application was supported by an affidavit of the applicant sworn on 29 November 2011. The affidavit enclosed a draft notice of appeal.

10    In his supporting affidavit, the applicant deposed that he mistakenly thought he had 28 days from the date of the Federal Magistrate’s decision to file a notice of appeal in this Court. No other reason is given.

11    The applicant’s draft notice of appeal filed on 30 November 2011 sets out the following proposed grounds for an appeal:

1.     The Federal Magistrate made an error of law by not finding that the Refugee Review Tribunal made a jurisdictional error in deciding the claim of the Appellant.

2.    The Federal Magistrate made an error of law by not finding that the Second Respondent made jurisdictional error not summarizing [sic] accuracy of claim and deprive him in taking hearing while the applicant was unwell.

3.    The trial court made an error of law not finding that the Second Respondent made jurisdictional error in deciding fate of the application.

12    None of the above grounds of appeal were particularised in the draft notice of appeal. On 21 February 2012, and prior to the hearing of the application, the applicant filed written submission in support of his application. The applicant’s written submissions particularised the grounds of appeal as follows:

1.     The Federal Magistrate made an error of law by not finding that the Refugee Review Tribunal made a jurisdictional error in deciding the claim of the Appellant.

    Particular: The appellant was a political leader in Bangladesh and the Tribunal of its decision at para 79 admitted that the appellant was involved in politics in his school days. The appellant was not a politician but also a businessman belonged to a particular social group. The Tribunal made a jurisdictional error not to consider the appellant as a member of a particular social group.

2.    The Federal Magistrate made an error of law by not finding that the Second Respondent made jurisdictional error not summarizing accuracy of claim and deprive him in taking hearing while the applicant was unwell.

    Particulars: The Tribunal made an assessment about the appellant case on the basis of assumptions but not any evidentiary proof. The appellant was unwell and unrepresented, despite this the Court below was not in a position to allow him for a further time or to make submission or to provide an opportunity to furnish the appellant case properly in engaging a lawyer or a barrister. As such, it may be arguable that the appellant was deprived in attending procedural fairness.

3.    The trial court made an error of law not finding that the Second Respondent made jurisdictional error in deciding fate of the application.

    Particulars: The third issue is that the Second Respondent knew there was political changes came into effect after the departure of the appellant from Bangladesh. The prevailing situation in Bangladesh which will be adverse affected of the appellant’s life and liberty. Thus the Second Respondent made a jurisdictional error in this issue. The task of the RRT was to determine whether

•    The Appellant might be the subject of adverse action such as detention/arrest

•    Whether that would constitute persecution on Convention grounds.

13    At the hearing, the applicant applied for an adjournment of the hearing of his application in order to engage a lawyer to assist with his application. I rejected the application for an adjournment because the applicant was unable to provide a satisfactory explanation for why he had not sought the assistance of a lawyer prior to the hearing.

14    At the hearing, the applicant relied on his written submissions without supplementing those submissions with any further oral submissions.

extension of time – Legal Principles

15    Rule 36.05 of the Rules provides for the power to grant an extension of time in which to file a notice of appeal. Section 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) provides that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single judge or by a Full Court. A number of decisions of this Court have considered the criteria to be applied in determining whether leave should be granted in a case of this kind. Those decisions include: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J); Jess v Scott (1986) 70 ALR 185 at 193 (Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[17] (Foster J); and more recently SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16] – [25] (Cowdroy J).

16    At paragraph [6] of Parker the Full Court referred to the following considerations:

(1)    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(2)    action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(3)    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(4)    however, the mere absence of prejudice is not enough to justify the grant of an extension; and

(5)    the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

17    As the Full Court further noted at [10] and [13], the purpose of the rule in relation to the grant of leave is to give the Court discretion to extend time in order to avoid injustice. This is intended to enable substantial injustice to prevail over technical default. In Wilson v Alexander [2003] FCAFC 272, Ryan, Heerey and Allsop JJ posited the test succinctly as requiring an applicant to:

(1)    provide a satisfactory explanation for the delay in bringing the application; and

(2)    demonstrate that there is a prospect of success on the substantive appeal.

explanation for the delay

18    The applicant states in his affidavit that he erroneously thought he had 28 days to file and serve the notice of appeal. That, however, fails to explain why this application was made some 19 days thereafter. I take into consideration that the applicant is unrepresented and he is not proficient in English. Whilst no proper explanation for the delay has been provided and that failure favours the dismissal of the application, I would not dismiss the application for that reason alone.

prejudice to the respondents

19    The Minister does not contend that any prejudice would flow from granting an extension of time other than being put to the cost of defending an appeal that it contends fails to demonstrate sufficient prospects of success. This consideration favours the grant of the application.

merits of the substantive application

20    The applicant seeks to appeal a decision of a Federal Magistrate that judicially reviewed a decision of the Tribunal. In order to be satisfied, in that kind of an appeal, that there is a prospect of success on the appeal, I need to be satisfied, by reference to the grounds of challenge relied upon by the applicant that there is a prospect on the appeal that the Court will be satisfied that the Federal Magistrate erred in failing to identify jurisdictional error in the decision of the Tribunal: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; and SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

The applicant’s claims and the Tribunal’s findings

21    The applicant’s claims before the Tribunal were accurately summarised by the Federal Magistrate at [4]-[8] of the decision the applicant seeks to appeal, and include that:

•    he had been a supporter of the Awami League (“AL”);

•    he feared persecution from members of political opposition groups such as the BNP and the JIP;

•    his construction business had been threatened by members of the BNP and JIP;

•    these opposition groups had tried to kill him with the cooperation of law enforcement authorities three times in 2007 and in 2008;

•    in September 2007 the applicant had been targeted while at a meeting;

•    a few months after that the applicant was attacked at a building site by some thugs using a rod and bicycle chain and he was hospitalised as a result; and

•    he was threatened with death and if he returned to Bangladesh he would be killed.

22    The applicant indicated he had travelled to South Korea in 1999 for work and stayed until 2003 when he returned to Bangladesh. The applicant then spent some time in Bangladesh before returning to South Korea again and staying there until October 2005 when he returned to Bangladesh. The applicant claimed that false legal cases had been brought against him. In 2008 the applicant claimed shots were fired at his house.

23    The Tribunal considered the applicant’s evidence and arguments before the delegate and before the Tribunal. Ultimately, the Tribunal was not satisfied that the applicant genuinely feared being persecuted by reason of his political opinion if he returned to Bangladesh. This crucial finding was based on adverse credibility findings made against the applicant by the Tribunal. Whilst the Tribunal accepted some of the applicant’s claims of ill treatment, it found that the applicant was not truthful as to many of his claims. Fundamental to the Tribunal’s decision was its finding that the applicant’s political involvement was at a low level and its lack of satisfaction that the problems the applicant claimed to have had in Bangladesh were a result of his involvement in politics.

The Proposed Grounds of Appeal

    Ground 1

24    The applicant’s first proposed ground asserts that the Federal Magistrate erred by not finding a jurisdictional error made by the Tribunal. The particulars set out in the applicant’s submissions allege that the Tribunal made a jurisdictional error in not considering the applicant as a member of a particular social group, namely businessmen in Bangladesh. A failure by the Federal Magistrate to identify jurisdictional error is not apparent. At [78] of the Tribunal’s reasons for decision the Tribunal accepted that people doing business in Bangladesh may face adverse attention including demands for money and threats. However, the Tribunal considered that the adverse attention was personal or individual to each of the business people receiving the adverse attention and not because of their membership of a particular social group. For that reason the Tribunal concluded that if the applicant returned to Bangladesh (and operated a business) the Tribunal could not be satisfied that there was a real risk that he would be persecuted for reason of his membership of any particular social group such as businessmen in Bangladesh. The Tribunal considered the issue which the applicant contends was not considered and there is no apparent error in the way in which that issue was determined. In those circumstances I do not consider that there is a prospect that on any appeal, the Court will be satisfied that the Federal Magistrate erred in the manner suggested by proposed ground 1.

Ground 2 – first element

25    Proposed ground 2 seems to have three elements. The first is an allegation that the Federal Magistrate erred by not identifying as a jurisdictional error the fact that the Tribunal had not summarised his claims accurately. The particulars provided in the applicant’s submissions allege that the Tribunal made an assessment of the applicant’s case on the basis of assumptions, and without evidence. Where any inaccuracy lay, in the way in which the Tribunal dealt with the applicant’s claims, is not identified. It is not apparent from a reading of the Tribunal’s decision that the Tribunal mischaracterised or otherwise failed to properly appreciate the applicant’s claims. As I have indicated already, the main reason that the Tribunal rejected the applicant’s application was that it did not accept that the applicant’s claimed difficulties were the result of his involvement in politics. The alleged “assumptions” made by the Tribunal are not identified. Nor has the applicant identified the findings made by the Tribunal “without evidence”.

26    I am not satisfied that on appeal there is a prospect that the Court will be satisfied that the Federal Magistrate erred in failing to identify jurisdictional error in the decision of the Tribunal based on the applicant’s contention that the Tribunal had either failed to summarise the accuracy of his claims, made assumptions or made findings in the absence of supporting evidence.

Ground 2 – second element

27    In relation to the second element of the second proposed ground, the applicant contends that the Federal Magistrate failed to identify jurisdictional error in the Tribunal’s decision based upon the Tribunal having conducted its hearing with the applicant whilst the applicant was unwell. Given the limitations imposed by s 422B of the Migration Act on the application of the requirements of natural justice to proceedings before the Tribunal, it is only s 425 of the Migration Act which could provide the applicant some possible basis upon which to pursue this ground. The obligation of the Tribunal under s 425 is to issue an invitation to an applicant for review to attend a hearing. That provision has been interpreted as requiring the Tribunal to provide a real and meaningful opportunity for the applicant to attend a hearing: NALQ v Minister for Immigration & Multicultural & Indigenous Affair [2004] FCAFC 121 at [30] (Ryan, French and RD Nicholson JJ). For a real and meaningful opportunity to attend a hearing to be given, an applicant should be competent to give evidence and present arguments at the hearing, in relation to relevant issues: NAMJ v MIMIA (2003) 76 ALD 56 at [55] (Branson J); SZKPB v Minister for Immigration and Citizenship [2009] FCA 147 at [21]-[22] (Logan J). As Branson J said in that case at [69] the applicant must bear the onus of establishing that he was unfit to take part in the Tribunal’s hearing.

28    By his grounds of review filed before the Federal Magistrates Court, the applicant did not raise expressly a complaint based on his unfitness to participate in the hearing conducted by the Tribunal. The reasons for judgment of the Federal Magistrate do however reveal that the Federal Magistrate considered whether the applicant had been denied a real and meaningful opportunity to participate at the hearing. The Federal Magistrate determined at [35] that it needed to be demonstrated that the applicant was unfit, in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing. At [36], the Federal Magistrate found that based on the evidence before the court, it had not been established that the Tribunal’s processes had been subverted in any way to the applicant’s detriment. It appears that the applicant led no evidence going to the question of his fitness to participate at the hearing. The Federal Magistrate was left to consider whether the applicant was unfit, in the sense of being unable to give evidence, present arguments or answer questions in the course of the hearing, by reference to the material before the Tribunal and the observations of the Tribunal in relation to that matter. The Federal Magistrate did that at [32]-[36]. He noted that the Tribunal had before it some material including two letters from a general practitioner as to the applicant’s fitness. Those letters and that material related to earlier applications by the applicant to have earlier hearings postponed and predated the date of the hearing in question (14 August 2009) by many months. In its decision, the Tribunal considered that the material that it had before it did not provide a basis to postpone the hearing. The Tribunal further considered that the applicant did not appear to have any difficulty participating in the hearing as he was able to respond appropriately to the questions put by the Tribunal and discuss the issues raised with him. The Federal Magistrate considered the Tribunal’s decision, and the detail therein of, a range of issues canvassed between the Tribunal and the applicant and concluded that on a fair reading of that material there was nothing to suggest that the applicant was in any way inhibited or prevented from responding to questions put to him. Ultimately, the Federal Magistrate came to the view that there was no evidentiary basis established for any finding that the applicant was unfit to participate in the hearing of the Tribunal.

29    I can find no error in the finding made by the Federal Magistrate and I am satisfied that there is no prospect that on any appeal, the Court will be satisfied that the Federal Magistrate erred in not being satisfied that the applicant was not fit to participate in the hearing. I note further that the applicant has not, in making this application, either presented evidence or foreshadowed the making of an application to present further evidence to the Court (should the lodging of an appeal be allowed) on the question of his fitness to have participated at the hearing of the Tribunal.

30    I have considered also the possibility that the second proposed ground may not be addressing the applicant’s fitness at the hearing before the Tribunal but instead the applicant’s fitness at the hearing before the Federal Magistrate. As the Federal Magistrate’s reasons for judgment detail at [23]-[27], the applicant applied for an adjournment at the outset of the proceedings before the Federal Magistrate on the basis of his ill health. The applicant sought an extension of time in which to file a submission. That application was opposed. The Federal Magistrate determined to reserve his decision and to give the applicant a week in which to get his treating doctor to provide an affidavit to the Court setting out the full details of the applicant’s medical condition including as to when the applicant would be in a position to prepare and appear in Court in a fit state. The Federal Magistrate determined that if such an affidavit were not received within a week he would proceed to deliver his judgment. Alternatively, if an affidavit was received, the Federal Magistrate informed the applicant that he would then decide whether further time should be granted to him to lodge submissions with the Court.

31    The applicant did not file any affidavit nor make any contact with the Registry of the Federal Magistrates Court indicating any difficulties with obtaining medical evidence. Consequently, the Federal Magistrate determined the application on the documentary material before him.

32     I am unable to discern any error in the Federal Magistrate’s approach. The applicant was not denied a proper opportunity to be heard. He was afforded an opportunity to justify his asserted need for additional time to make submissions and declined to take the opportunity afforded to him. In those circumstances, I do not consider that there is a prospect that on any appeal, the Court will be satisfied that the Federal Magistrate erred by failing to give the applicant a proper opportunity to be heard.

Ground 2 – third element

33    The third element of the second ground of appeal is particularised in the applicant’s submissions, and alleges that despite the applicant being unwell and unrepresented, the applicant was not afforded further time in which to engage legal representation. This ground was not agitated before either the Federal Magistrate or the Tribunal. Even if it hade been, for the reasons that follow, there is no merit in this third element of the second ground of appeal. Firstly, this element relies on the proposition that the applicant was unwell. For the reasons already given, the applicant did not discharge the onus on him to demonstrate that he was unwell at the hearing before the Tribunal. Secondly, this ground is based on the unstated proposition that in providing a meaningful hearing the Tribunal is required to furnish the applicant with an opportunity to engage a lawyer to represent him. There is no evidence that the applicant’s failure to obtain legal representation was in any way of the Tribunal’s making. Why he did not come to the hearing represented by a lawyer is not addressed by the applicant. Nor is there any evidence that the applicant requested an adjournment of the hearing in order to obtain legal representation. There is no general obligation on the Tribunal to adjourn a hearing in order to allow an applicant to obtain legal representation, at least where the failure to do so, has not denied an applicant the opportunity to be afforded a meaningful hearing for the purposes of satisfying s 425 of the Migration Act. There is no basis for any conclusion that the applicant was denied a meaningful hearing by reason of any such failure. I am not satisfied that the applicant has any prospect of success on this issue.

Ground 3

34    By the third ground the applicant seems to be contending that the Tribunal failed to determine whether, firstly, the applicant might be the subject of adverse action such as detention or arrest, and secondly, whether that would constitute persecution for a Convention ground. These failures are said to arise in the context of the Tribunal being aware that there had been political change in Bangladesh since the applicant’s departure, and that the prevailing situation in Bangladesh would adversely affect the applicant’s life and liberty.

35    It is apparent, in particular from paragraphs [76] to [77] of the Tribunal’s reasons, that the Tribunal both considered and determined whether the applicant had been the subject of adverse action. It rejected some claims and accepted others. In relation to the adverse attention the Tribunal accepted the applicant had faced exposure to, the Tribunal considered whether the applicant’s fear was based on a Convention reason and rejected a nexus with the Convention reasons relied upon by the applicant. The Tribunal then concluded that there was no real chance that if returned to Bangladesh, the applicant would be persecuted by reason of either the applicant’s membership of any particular social group, or by reason of his political opinion. No error of the kind alleged by the applicant is apparent and I am not satisfied that the applicant has any prospect of success on the basis of this ground.

disposition

36    For those reasons, I am not satisfied that it would be expedient in the interests of justice that leave be granted to the applicant to file and serve a notice of appeal. The applicant’s application for an extension of time must be dismissed with costs. I will make orders to that effect.

Associate:

Dated:    23 February 2012