FEDERAL COURT OF AUSTRALIA

SZOEC v Minister for Immigration and Citizenship [2012] FCA 129

FEDERAL COURT OF AUSTRALIA

SZOEC v Minister for Immigration and Citizenship [2012] FCA 129

CORRIGENDUM

1.    In the second sentence of paragraph 13 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 is 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 16 July 2010 published as SZOEC v Minister for Immigration and Citizenship [2010] FMCA 489.

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 6 August 2010. An application for an extension of time to file and serve a notice of appeal was made on 30 November 2011 some 15 months 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 Bangladesh who arrived in Australia on 14 July 2009. On 22 July 2009 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 and involvement in the Bangladesh Nationalist Party (“BNP”) student wing. The applicant claimed that:

    the opposing Awami League (“AL”) were angry with him for refusing to join their party;

    AL supporters came to his business and attacked him and damaged property and told him to stop supporting the BNP, close his business and move overseas;

    he suffered serious injury from this incident and required five months treatment to recover;

    in March 2009 an AL supporter was killed and it was not known who was responsible and that the police in cooperation with the AL made a false case against him for committing the offence; and

    the police told his brother that if he was arrested he would be killed and his death explained as having occurred as a result of cross-fire.

5    The applicant failed to attend an interview with an officer of the Department on 1 October 2009. On 2 October 2009 the first respondent’s delegate (“the delegate”) refused the applicant’s application for a Protection visa because the delegate was not satisfied on the available information that the applicant was politically active or at risk of being harmed by the AL.

6    On 2 November 2009 the applicant filed an application in the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 14 December 2009 the applicant attended a hearing before the Tribunal assisted by his migration agent, an observer and an interpreter. On 22 January 2010 the Tribunal affirmed the delegate’s decision not to grant a Protection visa as it was not satisfied the applicant was a person to whom Australia had protection obligations.

7    On 22 April 2010 the applicant filed an application to the Federal Magistrates Court. On 16 July 2010 the Federal Magistrate dismissed the applicant’s application for review with costs. 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 and attached a draft notice of appeal.

8     In his supporting affidavit, the applicant deposed that (on an unspecified date) after the Federal Magistrate had dismissed his application he came to the Court’s Registry to file a notice of appeal but did not have funds to pay the filing fees. No other explanation is given in the affidavit.

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

1.     The Magistrate of the Court below failed to find the Tribunal’s error that the Tribunal’s decision was affected by a jurisdictional error because the Tribunal failed to take into account relevant considerations that it was required to take into account.

2.    The Magistrate of the Court below failed to find the Tribunal’s error that the Tribunal’s decision was affected by jurisdictional error because the Tribunal breached section 425(1) of the Migration Act.

3.    The Magistrate of the Court below failed to find the Tribunal’s error that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider the my claims that I faced a real chance of persecution in Bangladesh for imputed political opinion by reason of my family’s involvement with the Bangladesh Nationalist Party (BNP).

10    At the hearing, the applicant appeared self-represented and assisted by an interpreter. He made submissions dealing with his failure to file a notice of appeal, to which I will shortly refer. With the leave of the Court given in the absence of opposition from the first respondent, he tendered two documents dealing with requests he had made of the Minister to intervene and substitute the Tribunal’s decision pursuant to s 417 of the Migration Act 1958 (Cth) (“the Migration Act”). He otherwise emphasised aspects of an “Outline of Submission” filed on 13 February 2012.

extension of time – Legal Principles

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.

explanation for the delay

14    The delay in this case is substantial. The applicant’s application is for leave to file and serve a notice of appeal some 15 months out of time. The applicant’s claim that he did not have access to the requisite filing fees is troubling in the sense that the Court has a fee waiver policy (including a nominal fee of $100 for filing) for impecunious litigants. If the applicant had approached the Court’s registry as he has deposed, it would be surprising if he was not informed of the fee waiver policy. In any event, his affidavit fails to explain when he approached the Court and why he was unable to pay the fees then or at any earlier time than 30 November 2011. No acceptable explanation is provided by that evidence. The alternative basis upon which the applicant now relies was not referred to in his affidavit in support of his application. That basis was that he had made requests of the Minister to intervene favourably on his behalf pursuant to s 417 of the Migration Act and that he was awaiting the outcome of those applications. The documents tendered at the hearing show that an application to the Minister was first made on 12 August 2010. By that time, the period given by the Rules for the applicant to have filed his notice of appeal had already expired. That first application to the Minister was refused on a date not in evidence, but prior to 17 November 2011. On that date the applicant was advised that his second application for the Minister’s intervention was declined. He was also advised that his bridging visa would expire on 30 November 2011 and that the Department expected that he would leave Australia. I infer that it is not coincidental that on 30 November 2011, the applicant filed this application for an extension of time.

15    I accept the Ministers characterisation of the applicant’s conduct as demonstrating that resort to the Court was the applicant’s “Plan B”, to be utilised if his other potential remedies were exhausted. As Jessup J (with whom Gyles and Besanko J agreed) said at [29] of Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, circumstances of that kind do not provide an acceptable explanation for a failure to lodge an appeal within time.

prejudice to the respondents

16    The first respondent has not addressed this criterion in its written submissions and I presume that no prejudice is claimed.

merits of the substantive application

17    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 that, by reference to the grounds of challenge relied upon by the applicant, 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

18    At the Tribunal hearing the applicant made additional claims to those earlier outlined, including that:

    in 1996 when a friend’s girlfriend was being assaulted by AL members he helped her escape and was subsequently targeted by the AL;

    in 1996 the AL won power in Bangladesh and he had to leave the country and flee to Singapore;

    that he had been living under a false identity, and that the BNP had bought him a false passport which he then declared lost and renewed it with his own photo rather than the real holders; and

    using this passport the applicant claimed he travelled extensively to Malaysia and Singapore on business and that he was living in Singapore between 1996 and 2003;

19    He had travelled between Bangladesh and Malaysia and Singapore during 2004 to 2006 and from 2007 to 2009 he was living in Bangladesh. The applicant claimed he was involved in a people smuggling scheme during his work in Singapore and that he also had a visa to live in Turkey but that it was too dangerous there.

20    The Tribunal found the applicant had limited knowledge about the BNP and that he had not presented his claims consistently. The Tribunal was also concerned the applicant had previously claimed that in March 2009 the AL had brought forward a false case against him for the murder of an AL member but that at the hearing before the Tribunal the applicant had claimed that a false case had been brought against him in 1996. The Tribunal was also concerned about the applicant’s additional claims about his history of involvement in the BNP which were included in submissions after the hearing. Ultimately, the Tribunal was not satisfied that the applicant was a credible witness and concluded that he had fabricated his core claims in an attempt to obtain a Protection visa.

21    The Tribunal also concluded the applicant had exaggerated the risk of harm he faced if he was returned to Bangladesh. While the Tribunal accepted the applicant had some involvement in the BNP in Bangladesh, it did not accept he was an active and committed member of the BNP. The Tribunal found that the applicant could return to Bangladesh and support the BNP safely as he had done previously.

The proposed grounds of appeal

Ground One

22    The first proposed ground in the draft notice of appeal contains a broad and unparticularised assertion that the Federal Magistrate failed to find that the Tribunal had committed a jurisdictional error by failing to take into account relevant considerations that it was required to take into account. In this regard the proposed ground essentially echoes the second ground of review before the court below. However, the proposed ground fails to identify any relevant considerations that the Tribunal failed to consider and that the Federal Magistrate failed to identify. The applicant’s Outline does identify two matters said not to have been taken into account when the Tribunal found that the applicant was not an active and committed member of the BNP.

23    In his Outline the applicant contended that the Tribunal had failed to take into account evidence set out in a letter dated 30 November 2009 from Mr Oali Ullah an official with the BNP. The Federal Magistrate’s reasoning for dismissing that same contention is set out at [15]-[20] of his reasons for judgment. Although the letter from Mr Ullah was not referred to in the decision of the Tribunal, as the Federal Magistrate correctly reasoned, the Tribunal is not obliged to refer to every piece of evidence and does not fall into jurisdictional error by failing to do so. Despite not having referred to it, it was evident from the transcript of the Tribunal’s hearing that the Tribunal read the letter. The Federal Magistrate was not satisfied that the letter had not been taken into consideration. The applicant has not identified any error in the reasoning of the Federal Magistrate and none is apparent.

24    The applicant further relies upon an allegation that a letter from a Mr George, an official with BNP in Australia, was not considered. However the Tribunal’s decision at [81] specifically refers to that letter and its contents.

25    The reasoning of the Tribunal, in support of its finding that the applicant had not been an active and committed member of the BNP in Bangladesh, is set out at [96] of the Tribunal’s decision. The finding is based upon the applicant having provided vague and inconsistent information regarding his involvement with the BNP and a lack of knowledge about the BNP. The Tribunal had a cogent basis for its finding. It was not required to recount all the evidence it had taken into account in reaching that finding.

26    I am not satisfied that this proposed ground holds any prospect of success should leave to appeal be granted.

Ground Two

27    Proposed ground two repeats ground 5 of the amended application filed in the court below. The content of the applicant’s Outline indicate that the particulars in relation to ground 5 in the court below are being re-agitated. Essentially, this ground asserts a breach of s 425(1) due to issues said to have arisen in the applicant’s post hearing submissions to the Tribunal.

28    Section 425(1) of the Migration Act provides:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

At the Tribunal hearing, the applicant asserted that he was not ready notwithstanding that he had several months since the making of the application to prepare his submissions. The Tribunal determined that it would hear the applicant but allow him to make a written submission through his advisor after the hearing was completed. The Tribunal indicated that it would look at that further submission and decide whether a further hearing was required. No further hearing was convened. As the Federal Magistrate outlines at [34]-[35] of his decision, the Tribunal relied on what it considered to be inconsistent accounts given by the applicant at the hearing and in his further submissions, to support adverse credibility findings the Tribunal made against the applicant.

29    As the Federal Magistrate correctly identified by reference to Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [51], whether an issue must be raised with an applicant at a further hearing will depend on the circumstances of each case. In SZKTI, the High Court rejected the proposition that a further hearing should have been provided on the basis that the post-hearing material had dealt with an extant issue and no new or additional issue had been raised such as to trigger the obligation to provide another hearing: at [51]. The Federal Magistrate came to the same view having considered the circumstances of this case. The Federal Magistrate found that only extant issues had been raised in the applicant’s post-hearing submissions. Inconsistencies in the applicant’s evidence were at issue during the Tribunal’s hearing and notice of the Tribunal’s concern about inconsistent evidence had been given to the applicant during the hearing.

30    The applicant has not pointed to any error in the reasoning of the Federal Magistrate. Whilst I have not come to the view that the applicant has no prospect of success on this ground, I am of the view that it is unlikely that the applicant would succeed on this ground should an appeal be permitted.

Ground Three

31    The third proposed ground raised by the applicant repeats what was ground 6 raised by the applicant before the Federal Magistrate. By this ground the applicant contends that the Federal Magistrate should have found error in the Tribunal’s decision by reason of the Tribunal having failed to consider his claim that he faced persecution by reason of his family’s political involvement with the BNP. The reasons of the Tribunal do not contain reference to such a claim. It is clear, as the Federal Magistrate accepted, that such a claim had been made to the delegate and was rejected on the basis that it was unsubstantiated. The Federal Magistrate was not satisfied that the applicant had made it clear to the Tribunal that he was continuing to assert a claim based upon the political involvement of his family. Further, the Federal Magistrate determined that it was incumbent upon the applicant to clearly make the claim and to provide the Tribunal with information which might lead it to come to a state of satisfaction about it. In the absence of a clear claim being made and the provision of information supporting it by the applicant, the Federal Magistrate was not persuaded that the Tribunal had fallen into jurisdictional error.

32    It is apparent from the reasons given by the Tribunal that the applicant’s claims were very much focused upon his claim that he was an active member of the BNP and of interest to the rival AL because of that involvement. None of the material or evidence put before the Tribunal, that is referred to in the Tribunal’s decision or to which I have otherwise been referred, suggests that the applicant was actively pressing a claim based on his family’s political activities. Nor does any of that material provide a basis upon which the Tribunal could have come to a view that the applicant held a well founded fear of persecution by reason of his family’s involvement with the BNP. In those circumstances, I am not satisfied that the applicant has any prospects of success in relation to this proposed ground should he be permitted to appeal.

Further Allegations

33    There are two further allegations raised by the applicant’s Outline which have not been previously raised. Leave to raise these matters would be required if the applicant was given leave to file a notice of appeal. I have considered whether there is any merit in these further allegations and come to the view that there is not.

34    The applicant contends that the Tribunal has made contradictory findings by, on the one hand, accepting that he was attacked and that the authorities in Bangladesh are susceptible to political influence, and on the other hand by finding that the applicant was not attacked for political or other Convention reason. There is no necessary contradiction between those findings.

35    Secondly, the applicant contended that the Tribunal failed to consider the possibility that he would be persecuted if returned to Bangladesh because of his political involvement with the BNP in Australia, in circumstances where the opposing political force, the Awami League, is in power in Bangladesh. The material before the Tribunal about the applicant’s association with the BNP in Australia was that he had joined the BNP in Australia and had participated in meetings and rallies. This was evidence of the applicant continuing to be a supporter of the BNP. The Tribunal at [104] considered the applicants claim that he will be harmed by the Awami League government in Bangladesh because he supports the BNP. The Tribunal found that the applicant could still support the BNP in the reasonably foreseeable future, as he had done in the past, without adverse interest from the Awami League. That was because the Tribunal was satisfied that the applicant had not been a particularly active or prominent BNP member in the past and was not of particular interest to the Awami League. Those findings do not appear to be based solely on the applicants activities in Bangladesh, to the exclusion of his BNP activities in Australia. Given the material before the Tribunal as to the applicant’s support for the BNP in Australia, the findings are to be understood as encompassing a consideration of the applicant’s activities in Australia in support of the BNP. Accordingly, there is no apparent merit in this further contention which the applicant now raises for the first time.

disposition

36    For the reasons outlined above, I have not been satisfied that a satisfactory explanation has been provided by the applicant for the very substantial delay involved in his failure to appeal within time or apply for an extension of time within a reasonable period.

37     I have also come to the view that the applicant has no prospect of success on two of the first three proposed grounds and that other proposed grounds have no or doubtful merit. In the face of the very substantial delay involved and the failure of the applicant to provide an acceptable explanation for it, the application should be dismissed. The lack of any significant merit in the proposed appeal serves to confirm that the Court’s discretion need not be exercised in order to avoid injustice. I will make orders dismissing the applicant’s application and for the applicant to pay the Minister’s costs of the application.

Associate:

Dated:    23 February 2012