FEDERAL COURT OF AUSTRALIA

SZQMC v Minister for Immigration and Citizenship [2012] FCA 128

THE COURT ORDERS THAT:

1.    The applicant be given leave to file and serve a notice of appeal in the terms of the draft notice of appeal filed on 1 February 2012.

2.    The applicant’s appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the application for an extension of time and of the appeal.

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 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 1 November 2010 published as SZQMC v Minister for Immigration and Citizenship [2011] FMCA 844.

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 22 November 2011. An application for an extension of time to file and serve a notice of appeal was made on 28 November 2011 some six days beyond the deadline for the filing of a notice of appeal.

3    I determined to hear the applicant’s application for an extension of time to file and serve a notice of appeal concurrently with the appeal. For the reasons which follow, I have determined to grant the applicant leave to file his notice of appeal and have dismissed the appeal.

BACKGROUND

4    The applicant is a male citizen of the Bangladesh who arrived in Australia on 10 March 2006. On 1 March 2010, 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 on account of his political activities, namely, his membership of the Bangladesh National Party (“the BNP”), through its student wing, Bangladesh Jatiotabadi Chattradal. The applicant claimed that he had witnessed an attack on his friend’s video store, which involved the shooting and death of that friend, Shafiqul Islam and the injury of another, Mabbub, (“the incident”). Shafiqul Islam was involved with the BNP, and the applicant claimed that he was killed for political reasons by members of a local group supported by the Awami League.

5    The applicant came to Australia as a student in February 2006. The applicant had some problems with his student visa and later advised the Department of Immigration and Citizenship (“the Department”) that he wished to apply for a Protection visa. On 11 June 2010, a delegate of the first respondent (“the delegate”) refused the applicant’s application for a Protection visa because, although the delegate was satisfied that the applicant feared harm, the delegate was not satisfied that the feared harm was for a Convention related reason and, therefore, the applicant was considered not to be a person to whom Australia owed protection obligations. The Convention to which I refer is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

6    On 16 June 2010 the applicant filed an application in the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 3 August 2010, the applicant attended a hearing before the Tribunal assisted by his migration agent. On 24 June 2011, the Tribunal upheld the decision of the delegate not to grant the applicant a Protection visa.

7    The applicant filed an application to the Federal Magistrates Court on 28 April 2011 for review of the Tribunal’s decision. On 1 November 2011, the Federal Magistrate dismissed the applicant’s application for review with costs.

8    On 28 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 the same day.

9    In his supporting affidavit, the applicant deposed that the Department had told him he had 28 days to appeal and he was working to that timeline. No other reason is given. A further Affidavit of the applicant of 20 February 2012 set out with greater detail his communications with the Department.

10    The applicant’s amended draft notice of appeal filed on 1 February 2012 sets out the following stated grounds of appeal:

1.    The Federal Magistrate erred by failing to find that the second respondent fell into jurisdictional error by failing to deal with one of the claims made by the appellant.

    Particulars

(a)    The material before the second respondent squarely raised the questions of whether the appellant was a member of a particular social group being “individuals who have witnessed murders committed by gangs”, and whether the appellant had a well-founded fear of persecution due to his membership of this social group.

(b)    The Federal Magistrate failed to find that the second respondent failed to consider whether the group “individuals who have witnessed murders committed by gangs” constituted a particular social group for Convention purposes.

(c)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant was a member of this social group.

(d)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant had a well-founded fear of persecution due to his membership of this social group.

2.    In the alternative, the Federal Magistrate erred by failing to find that the second respondent fell into jurisdictional error by failing to deal with one of the claims made by the appellant.

Particulars

(a)    The material before the second respondent squarely raised the questions of whether the appellant was a member of a particular social group being “individuals who have witnessed murders committed by gangs associated with the Awami League”, and whether the appellant had a well-founded fear of persecution due to his membership of this social group.

(b)    The Federal Magistrate failed to find that the second respondent failed to consider whether the group “individuals who have witnessed murders committed by gangs associated with the Awami League” constituted a particular social group for Convention purposes.

(c)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant was a member of this social group.

(d)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant had a well-founded fear of persecution due to his membership of this social group.

3.    In the alternative, the Federal Magistrate erred by failing to find that the second respondent fell into jurisdictional error by failing to deal with one of the claims made by the appellant.

Particulars

(a)    The material before the second respondent squarely raised the questions of whether the appellant was a member of a particular social group being “individuals who have witnessed murders committed by gangs whose members are members of the Awami League”, and whether the appellant had a well-founded fear of persecution due to his membership of this social group.

(b)    The Federal Magistrate failed to find that the second respondent failed to consider whether the group “individuals who have witnessed murders committed by gangs whose members are members of the Awami League” constituted a particular social group for Convention purposes.

(c)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant was a member of this social group.

(d)    The Federal Magistrate further failed to find that the second respondent failed to consider whether the appellant had a well-founded fear of persecution due to his membership of this social group.

extension of time

11    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).

12    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 appellant 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 appellant, 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.

13    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.

14    The applicant deposed that he was working off erroneous information from the Department that he had 28 days to appeal. The first respondent (“the Minister”) contends that the explanation is incomplete because at the time of the applicant’s contact with the Department the applicant was already a day late in filing his notice of appeal. The delay involved is short and some explanation has been provided. No real prejudice is suffered by the Minister, particularly as I have determined to hear the appeal concurrently with the application for an extension of time. Given that I am not satisfied that the proposed appeal has no prospect of success, I will grant the applicant leave to file his notice of appeal.

merits of the appeal

15    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 the appeal should be upheld, I need to be satisfied, by reference to the grounds of challenge relied upon by the applicant, 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

16    The Tribunal accepted the applicant’s evidence that the killing of Shafiqul Islam occurred. However the Tribunal found that the attack which led to the death of Shafiqul Islam was an act of hooliganism and retaliation for the refusal by Shafiqul Islam to give money to the attackers. The Tribunal did not accept that there was a political element to the attack as claimed by the applicant. The Tribunal did not accept that the applicant’s fear of harm from the group of men who killed Shafiqul Islam was for the Convention reason of the applicant’s political opinion.

17    The Tribunal did accept that the applicant had been threatened by the group responsible for the killing. The Tribunal found that the applicant had been threatened because he was a witness to the murder of Shafiqul Islam. The Tribunal was of the view that any anger held by the killers towards the applicant and any subsequent threats to the applicant and his family made by them was because the applicant had witnessed the killing of Shafiqul Islam and not because of the applicant’s involvement with the BNP.

18    The Tribunal was not satisfied on the basis of the claims and the evidence before it that if the applicant was to return to Bangladesh he faced a real chance of serious harm for reason of his political opinion, actual or imputed, or for any other Convention reason.

The Federal Magistrates Court

19    In his application filed in the Federal Magistrates Court on 29 July 2011, the applicant relied upon the following grounds of review:

1.    The decision was made in breach of natural justice.

2.    The Tribunal failed to consider crucial evidence constructively before it.

3.    The decision involved a breach of s 425(1) of the Migration Act.

20    Given that on the appeal, the applicant seeks to raise new grounds not relied upon before the Federal Magistrate, it is unnecessary that I summarise the basis upon which the Federal Magistrate dismissed each of the grounds relied upon by the applicant in the court below.

The grounds of appeal

21    As the grounds of appeal are new grounds which were not raised before the Federal Magistrate below the applicant requires the leave of the Court to pursue them.

22    The three proposed draft grounds of appeal are substantially similar and differ only in terms of how the social group to which the applicant claims he belongs is defined. The grounds all claim that the Tribunal failed to consider evidence squarely raised before it, that the applicant had a well founded fear of persecution based upon being a member of a particular social group, and that the Tribunal failed to identify the existence of such social group and thus identify the Convention nexus for which the applicant had a well founded fear of harm. In essence, the appeal raises the following question: Did the Tribunal constructively fail to exercise its jurisdiction by failing to address the applicant’s claim of a fear of persecution by reference to his membership of a particular social group?

Raising New Grounds on Appeal

23    The principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success.

24    The applicant relies upon the principles outlined by the Full Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 for whether leave should be granted for raising new grounds on appeal. At [166], Madgwick J (with whom Conti J agreed) formulated a series of considerations which have a bearing on whether leave should be issued to raise new grounds on appeal:

Thus, relevant questions include:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)      If so, can it be justly and practicably cured?

8)      If not, where, in all the circumstances, do the interests of justice lie?

25    By reference to the test in NAJT, the applicant contended that:

(i)    the grounds were not raised in the Court below because the applicant was unrepresented making it difficult for him to articulate the grounds now sought to be raised and for that reason, and in the context of migration law being a complex area for unrepresented impecunious litigants, the applicant deserves the indulgence of the Court: NAJT at [165] and [168];

(ii)    the dislocation to the Court and judicial sitting time required will not be extensive: NAJT at[169];

(iii)    leave should be granted because the stakes are very high and an adverse decision on leave might have very serious consequences: NAJT at [170]. In the context that the Tribunal accepted significant parts of his claims and acknowledged there is a real chance of harm being inflicted on him in the reasonably foreseeable future and only rejected his claim because it was not satisfied that there was a political element to the murder he witnessed, the applicant says the Court should exercise its discretion in his favour;

(iv)    the general public interest in ensuring the assessment according to law of claims for protection will be supported by a grant of leave to raise new grounds: NAJT at [171];

(v)    no prejudice will or could be caused to the respondent in the circumstances: NAJT at [172]-[173]. Alternatively, the applicant contended that the possibility of serious consequences for the applicant in not being able to raise the grounds outweigh “any small prejudice to the respondent and the inconvenience to the Court”; and

(vi)    the grounds sought to be raised are restricted to matters of law and can be determined on the material already before the Court.

Membership of a Particular Social Group – Legal Principles

26    It is a necessary part of the definition of a refugee under the Convention, that there is a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.

27    The attributes of a social group were considered in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. A “particular social group” ‘is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large’: Dawson J at 241. Such a group will possess some particular characteristic or characteristics that distinguish it and its members from society at large: Brennan CJ at 234. The group must also be identifiable as a social unit with an “internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals” that unites them as a group and distinguishes them from society as a whole: McHugh J at 264. McHugh J continued at 266:

It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as "a particular social group" for Convention purposes.

Conduct that is alleged to be persecutory cannot be allowed to define a particular social group and therefore a common fear of persecution will not suffice: McHugh J at 263.

28    The test for whether a particular social group exists was further expounded by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 at [36] (Gleeson CJ, Gummow and Kirby JJ):

First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.

(Footnotes omitted.)

29    The High Court further clarified that the group “need not be recognised or perceived within the society” in order to constitute a “particular social group” for Convention purposes (at [27]), it is only necessary that there be some way for a third party to distinguish the group from the rest of society (at [62]-[63] (McHugh J)). Whilst “shared persecution” may not be the defining characteristic of a particular social group, it might be helpful in determining that “the persecutor recognises certain individuals as having something in common that makes them different from other members of society” even if neither the claimed persecutor nor anyone else perceives the group as a particular social group (at [64] (McHugh J)). Particular social groups are often defined by reference to the characteristic which gives rise to the feared persecution because of the requirement that an applicant establish that he or she fears persecution because of his or her membership of the particular social group: see Drachnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [63] and [64](Kirby J).

30    In Dranichnikov, Gummow and Callinan JJ, at [26], outlined the steps required by the Tribunal in identifying a social group in a claim for refugee status:

At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.

31    If a claim is made of a well-founded fear of persecution by reference to an applicant’s alleged membership of a particular social group then the Tribunal is bound to deal with that claim. Failure to deal with such a claim amounts to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction and constitutes jurisdictional error: Dranichnikov at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 at [29] (Nicholson and Edmonds JJ with whom Conti J agreed at [41]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [63] (Black CJ, French and Selway JJ).

32    An express claim need not be made of membership to a particular social group if the unarticulated claim is “squarely” raised or apparent on the material available to the Tribunal: NABE (Black CJ French & Selway JJ) at [58]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 (Cooper J) at [19]. The claim must “arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J).

33    However, an unarticulated claim that is raised on the evidence will not depend for its exposure on constructive or creative activity by the Tribunal: NABE (Black CJ French & Selway JJ) at [58]. The Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61] (Black CJ, French and Selway JJ); NAVK at [15] (Allsop J).

34    Ultimately, the statutorily prescribed task of the Tribunal is “to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy”: NAVK at [15] (Allsop  J).

Consideration

35    In my view, the Tribunal was under no obligation to consider a claim based upon membership of any of the three social groups defined in the applicant’s grounds of appeal. No such claim was expressly made and no such claim was squarely raised or apparent on the material available to the Tribunal. The applicant contends that in relation to each of the social groups relied upon, the primary shared characteristic of the members of each group was that the member was a person who had witnessed a murder and the murder was committed by a gang. The material before the Tribunal did not suggest the existence of a group of people with the particular attribute relied upon and distinguishable from Bangladeshi society at large.

36    Whilst there was material before the Tribunal that the applicant was a person who had witnessed a murder committed by a gang, that material was limited in its scope. It was material upon which the Tribunal could find, as it did, that the applicant had been threatened and held a fear of persecution by a particular gang based upon the applicant having witnessed a particular and specific murder. There was no material before the Tribunal which suggested that people in Bangladesh who had witnessed a murder were the subject of persecution by a gang or gangs simply because they had witnessed a murder and not because they had witnessed a specific murder of specific concern to the gang involved in the persecution.

37    The evidence before the Tribunal did not point to or suggest the existence of a common attribute for the social groups asserted. At the very least, for the applicant to have succeeded on this ground, the applicant would have needed to point to material before the Tribunal which identified that gangs associated with the Awami League, or gangs comprised of members of the Awami League, had identified for persecution a group of people who were to be harmed because they had witnessed a murder committed by such gangs. I accept that a group of people who have the common characteristic of holding information (the witnessing of a murder) which is adverse to the interests of the Awami League or its associates could comprise a social group. However, there was nothing in the material before the Tribunal that indicated the existence of such a group. All that the material before the Tribunal relevantly indicated was that a particular group of men associated with the Awami League were interested in harming the applicant because he had witnessed a specific murder committed by those men. The material did not suggest that other persons were or had been persecuted because they had witnessed a murder by a gang associated with the Awami League, let alone that the shared common characteristic of such persons which identified them to their persecutors, was that they held information adverse to the Awami League or its associates because they had witnessed a murder committed by persons associated with the Awami League.

38    That being the case, the Tribunal was under no obligation to consider the claims which the applicant contends should have been considered.

39    I am not satisfied that the new grounds agitated by the applicant have a reasonable prospect of success and accordingly I have determined to decline leave for those grounds to be raised on the appeal. If I had granted leave, I would have (for the same reasons) come to the view that those grounds fail.

disposition

40     For the reasons given, whilst I was satisfied that leave should be granted to the applicant to file and serve his notice of appeal, I have declined to grant the applicant leave to raise on the appeal the grounds which were not agitated before the Federal Magistrate because I have determined that those grounds have no reasonable prospect of success. As those grounds were the only grounds pressed on the appeal, the appeal must be dismissed. I will make orders that the applicant be given leave to file and serve a notice of appeal and for the applicant’s appeal to be dismissed with costs.

Associate:

Dated:    23 February 2012