FEDERAL COURT OF AUSTRALIA

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal from the decision of Federal Magistrate Emmett given on 21 November 2012, whereby her Honour refused to grant an interlocutory injunction restraining the applicant’s removal from Australia, filed this day (22 November 2012) (the Application for Leave to Appeal) be listed before the Court for hearing at 3.30 pm this day (22 November 2012).

2.    Service of the Application for Leave to Appeal be dispensed with.

3.    The Application for Leave to Appeal be dismissed.

4.    The applicant pay the first respondent’s costs of and incidental to the said Application.

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

REASONS FOR JUDGMENT

1    Earlier this afternoon, the applicant, with the assistance of his sister-in-law (whom I shall refer to in this judgment as Ms A), filed in this Court an Application for Leave to Appeal from a decision of a Federal Magistrate given yesterday (21 November 2012). Her Honour’s Reasons for Judgment are not yet available. Counsel for the first respondent (the Minister) has conveyed to me the essence of her Honour’s reasons for the decision which she made.

2    The precise orders which her Honour made yesterday were:

THE COURT ORDERS THAT:

(1)    The applicant’s oral application for an order to prevent from [sic] his removal from Australia on 23 November 2012 is refused.

(2)    The applicant pay the costs of the first respondent fixed in the amount of $1,296.

NOTE A: Leave was granted to the applicant to make an oral application for an order to prevent his removal from Australia.

NOTE B: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules (2001) (Cth).

3    Although the applicant has not specifically claimed this relief in the process filed by him today in this Court, I intend to proceed upon the basis that, if his Application for Leave to Appeal is successful, the applicant will also seek an interlocutory injunction restraining his removal from Australia pending the hearing of his appeal.

4    When I was notified of the filing of the applicant’s Application, I listed the matter for hearing at 3.30 pm today. The Minister was content for the applicant’s Application to be dealt with today.

5    At 3.30 pm I heard the applicant’s Application. The applicant is presently detained at the Villawood Detention Centre. He appeared before me by telephone. However, present in Court at the time of the hearing was Ms A. She provided assistance as an interpreter and also, to some extent, assisted the applicant to present his case.

6    As is apparent from the orders which the Federal Magistrate made yesterday, the matter is urgent because the Minister has made arrangements for the applicant to be removed from Australia on a flight leaving at 10.00 am tomorrow morning (23 November 2012). The Minister is keen to maintain that arrangement, if at all possible.

7    The applicant is a citizen of India who arrived in Australia on 3 March 2009 on a TU 572 visa. On 9 May 2011, he made an application to the Department of Immigration and Citizenship for a Protection (Class XA) visa. He set out in that application various claims which he contended justified the grant of such a visa. It is not necessary at this point to traverse those claims in detail.

8    On 3 August 2011, a delegate of the Minister refused the applicant’s application.

9    On 31 August 2011, the applicant made an application to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.

10    The Tribunal conducted a hearing of the applicant’s application for review on 16 January 2012. On that occasion, the hearing was adjourned to 2 February 2012. The hearing was concluded on 2 February 2012. The Tribunal affirmed the delegate’s decision on 3 February 2012.

The Tribunal’s Decision

11    At [6]–[18] of its Reasons for Decision of 3 February 2012, the Tribunal set out the relevant law which it proposed to apply to the applicant’s application for review. At [19]–[33], the Tribunal went on to summarise the course of events relevant to that application, as well as to give a synopsis of the delegate’s decision and of the claims which had been made by the applicant in his visa application.

12    At [34], the Tribunal commenced to explain its findings and reasons. At [35], the Tribunal noted the applicant’s claim that he had been previously involved with the religious group Dera Sacha Sauda (DSS). The Tribunal noted that he claimed that, in 2007 and 2008, he had been attacked by Sikhs who objected to his involvement with the DSS. He claimed that he would face similar harm in the future for the same reason, were he compelled to return to India.

13    The applicant also claimed that the relevant State authorities would seek to harm him for his involvement with the DSS and were not capable of providing appropriate protection to him. The applicant also claimed that he feared for his life in light of the troubles that he had experienced in India by reason of his participation in the DSS.

14    At [36]–[39], the Tribunal said:

36.    The Tribunal accepts that the applicant was involved with the DSS in India before he came to Australia in 2009. It has considered whether his fear of harm in the future, by opponents of the DSS, is well-founded.

37.    The ‘well-founded fear’ aspect of the definition has a subjective and an objective element (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559). The subjective element of “well-founded fear” concerns the state of mind of the applicant. In the present matter, the Tribunal accepts that the applicant is afraid to return to India for the reasons provided. Nevertheless, for a fear to be well-founded there must also be a factual basis for that fear. In Chan v MIEA, the court found that a well-founded fear “requires an objective examination of the facts to determine whether the fear is justified” (Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429). It was further noted that whilst “there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear” (Chan v MIEA (1989) 169 CLR 379 per Dawson J at 396) and that the Convention, “in speaking of ‘well-founded fear of being persecuted’, posits that there should be a factual basis for that fear” (Chan v MIEA (1989) 169 CLR 379 per Dawson J at 412). A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation (MIEA v Guo (1997) 191 CLR 559 at 572).

38.    The Tribunal has considered information from external sources, referred to above and discussed with the applicant at the hearing, regarding the DSS in India. The Tribunal is satisfied by that information that despite tensions between the DSS and other religious and political groups, the followers of DSS are commonly able to practice their religion, and participate in other DSS activities, freely and safely. The Tribunal is satisfied by the information that the authorities in India are able and willing to intervene to protect DSS members and to enable them to practice their religion freely and safely. The Tribunal noted that the applicant has not maintained his involvement with the group since 2009. Nevertheless, it finds that if he resumes his involvement with the DSS in the reasonably foreseeable future, he will be able to participate in DSS activities freely and safely in India.

39.    The Tribunal finds, after considering the applicant’s claims and information from external sources relating to those claims, that the applicant’s fear that he will be harmed for [sic] by Sikhs, the authorities, or the state government, for his involvement with the DSS, is not well-founded.

15    At [40], the Tribunal noted that the information which it had obtained from external sources indicated that there was sectarian violence in India and that occasionally members of the DSS had been targeted by members of other religious and political groups. The Tribunal accepted that the authorities in India were not always able to prevent civil unrest and sectarian violence.

16    The Tribunal accepted that the authorities in India would not be able to protect the applicant at all times and in all situations. However, based upon the observations of the plurality of the High Court in Minister for Immigration and Ethnic Affairs v S152/2003 (2004) 222 CLR 1 at [26], the Tribunal concluded that these difficulties were not of a sufficient character or significance as to amount to a state of affairs where the State and the police authorities could not protect the applicant. The Tribunal concluded this discussion with the following statement (at [40]):

The Tribunal is satisfied that the state in India provides such a standard of protection for its citizens and it finds that if the applicant requires protection from any of the persons he fears in India, he will have access to a reasonable level of protection which will be provided to him by the state.

17    In light of these findings, the Tribunal concluded that it was not satisfied that the applicant faced a real chance of persecution in India for reasons of religion, his membership of a particular social group, political opinion, or any other Convention reason. For that reason, the Tribunal affirmed the decision of the delegate.

The Proceeding in the Federal Magistrates Court

18    The applicant lodged an Application in the Federal Magistrates Court on 2 November 2012. By that Application, the applicant sought an extension of the time within which the applicant might seek judicial review of the Tribunal’s decision given on 3 February 2012 and, on the assumption that such an extension of time might be granted, relief by way of the Constitutional writs.

19    The grounds specified in that Application were:

(1)    I ask the Honourable Court to accept my review because the decision of Refugee Review Tribunal does not address my serious fear if I am to return to India.

(2)    I wait until I receive the documents from the Department then I will make the grounds for my case.

(3)    I am currently traumatised because I am at Villawood Detention Centre.

20    The applicant completed the standard form of Application under the Migration Act 1958 (Cth) (the Migration Act) commonly used in the Federal Magistrates Court. In that form, there is a section headed “Other Interlocutory, interim or procedural orders sought by the applicant/s (complete only if other interlocutory, interim or procedural orders are sought)”. Under that heading, the applicant inserted the following:

(1)    At the time the Tribunal made a decision on my case I was not aware that I can appeal to the federal court.

(2)    I recall that one of my helpers assisted me in writing a letter to the Minister.

(3)    Now I ask the court to allow me to argue my case.

21    At the time that it was filed, the Application which the applicant filed in the Federal Magistrates Court was made returnable before that Court on 5 December 2012 at 10.00 am.

22    The applicant’s Application in the Federal Magistrates Court was supported by a short affidavit which did not expand upon the grounds upon which the applicant would seek to rely at the hearing of his Application. However, by that affidavit, the applicant authorised Ms A to represent him in the Federal Magistrates Court.

23    The Minister decided to remove the applicant from Australia, notwithstanding that he had made an application to the Federal Magistrates Court. When the applicant became aware of that fact, he made an urgent application to the Federal Magistrate yesterday for an interlocutory injunction restraining his removal from Australia pending the hearing of his Application for final relief in the Federal Magistrates Court. It was the applicant’s application for an interlocutory injunction which her Honour refused yesterday.

The Proceeding in this Court

24    The applicant’s Application for Leave to Appeal in this Court is made upon the following grounds:

1.    Her Honour Emmett failed to take into consideration the grounds listed in the application filed in Court on 2 November 2012.

2.    Her Honour Emmett failed to understand that the application to the Court was made late because of reasons beyond control and that the applicant was denied to be considered under complimentary protection visa which came to effect after March 2012.

3.    Her Honour Emmett prevented the applicant from having a legal advice and the application was done in a rush to enable early removal contrary to natural justice.

25    The Application for Leave to Appeal was accompanied by an affidavit sworn by Ms A. In that affidavit, Ms A said the following:

1.    I am the sister-in-law of [the applicant] who is currently in Villawood Detention Centre.

2.    Federal Magistrate Emmett rushed into making an Order to remove the applicant from Australia on 23 November 2012.

3.    Her order is unfair and deprived the applicant from natural justice.

4.    Federal Magistrate Emmett failed to afford the applicant legal advice.

5.    The applicant expected to appear in Court for directions on Wednesday 5 December 2012 at 10.00 am yet the Respondent rushed into early directions which ended up in an Order to remove the applicant instead of giving him the opportunity to present a case and to receive legal advice.

6.    Federal Magistrate Emmett overlooked the circumstances of the applicant and failed to give the applicant the opportunity to present his case as he is traumatised and unable to concentrate.

26    I pause to observe that it is not an accurate description of yesterday’s events to say that her Honour ordered that the applicant be removed from Australia. Rather, the substance of the outcome produced by yesterday’s events is that the applicant will be removed from Australia tomorrow unless this Court intervenes by way of injunctive relief. The effect of her Honour’s refusal to grant the interlocutory injunction sought by the applicant was to leave the Minister’s decision to remove the applicant unimpaired.

27    Accompanying the Application for Leave to Appeal in this Court was a draft Notice of Appeal. In essence, in that draft Notice of Appeal, the same complaints about the conduct of the hearing yesterday are raised on behalf of the applicant. The grounds of appeal set out in the draft Notice of Appeal are as follows:

1.    Federal Magistrate Emmett failed to give leave and to act according to the directions of hearing which was scheduled for Wednesday 5 December 2012 at 10.00am.

2.    The First Respondent and Federal Magistrate Emmett denied the applicant natural justice and prevented him from legal advice.

3.    The Federal Magistrate was influenced by the First Respondent and rushed into the Order to remove the applicant to India where the Refugee Review Tribunal’s decision clearly established severe circumstances and persecution and fear which was overlooked by the Tribunal Member.

4.    Federal Magistrate Emmett erred in giving an Order while the applicant still within the validity to make a review against the refusal of bridging visa E.

28    It is a little difficult to deal with the present Application in a way which is entirely satisfactory when the Federal Magistrate’s Reasons are not available. However, I have been informed by Counsel for the Minister, and I accept, that her Honour refused the interlocutory injunction claimed by the applicant yesterday because her Honour was not persuaded that he had a satisfactory explanation for the delay in making his Application to the Federal Magistrates Court nor was her Honour satisfied that his application for judicial review, should an extension of time be granted, had any prospects of success. It is on those bases that her Honour refused the injunction sought by the applicant.

29    The decision of the Federal Magistrate in respect of which leave to appeal is sought was, as I have mentioned, a decision to refuse to grant to the applicant an interlocutory injunction restraining his removal from Australia pending the hearing of his application for an extension of time within which to seek judicial review of the Tribunal’s decision and the hearing of any consequential judicial review application should an extension of time be granted.

30    Her Honour appears to have approached the matter in a conventional way. Her Honour looked to see whether the applicant had a serious question to be tried or a prima facie case for the final relief which he sought in his Migration Act Application in the Federal Magistrates Court and then, if that were so, whether the balance of convenience and justice required that an interlocutory injunction be granted in order to maintain the status quo pending the Federal Magistrates Court’s determination of his claims for final relief.

31    The final relief sought by the applicant in the Federal Magistrates Court comprised two matters. The first was an application for an extension of time and the second was, assuming an extension of time were granted, an application for judicial review of the Tribunal’s decision. It was incumbent upon her Honour to consider the applicant’s case, at least in respect of his case for an extension of time and, assuming she was with him to a prima facie level on that case, to consider the judicial review application itself.

32    Of course, in a case such as the present, it is relevant on the extension of time application to consider the prospects of success on the judicial review application should an extension of time be granted.

33    The principles upon which leave to appeal from an interlocutory judgment will be granted are well established and may be summarised as follows:

(1)    Whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court (in this case, a single judge on the present application); and

(2)    Whether substantial injustice would result if leave were refused supposing the decision to be wrong (Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 at 398–400).

34    In the present case it is obvious that, were I to be persuaded that the decision below was attended with sufficient doubt to warrant its being reconsidered, the question of leave to appeal should be decided in favour of the applicant because, plainly, substantial injustice would result if I refused leave supposing the decision to be wrong.

35    Accordingly, in substance, the present matter falls to be decided by my considering whether or not the decision to refuse the interlocutory injunction for reasons which I have summarised at [28] above was attended by sufficient doubt within the meaning of the first of the two principles extracted from Décor.

36    Under s 477 of the Migration Act, the applicant was required to lodge his application for judicial review within 35 days of the decision in respect of which judicial review is sought. In the present case, that means that the application should have been lodged by 9 March 2012. The application was not lodged until 2 November 2012, which is almost eight months after the relevant date mandated by s 477 in the circumstances of the present case.

37    When dealing with these types of matters, the courts have developed principles which govern the consideration of whether an extension of time should be granted. In essence, the courts look at two questions: first, whether there is a satisfactory explanation for the delay; and, second, whether, having regard to the applicant’s prospects on the judicial review application, the interests of justice require that an extension of time should be granted.

38    In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.

39    However, the more important consideration that needs to be addressed is whether or not the applicant ever had any real prospects of obtaining judicial review of the Tribunal’s decision, had he been granted an extension of time. The grounds that he sought to rely upon do not identify any proper basis for the Federal Magistrates Court to have come to the view that the Tribunal had committed jurisdictional error in its consideration of the applicant’s case. Grounds two and three do not relevantly raise any matter that could, conceivably, constitute jurisdictional error on the part of the Tribunal. Ground one is but a general criticism of the Tribunal’s decision and approach which does not come to grips with the need for the applicant to specify and then establish jurisdictional error. In my judgment, the Tribunal did address the applicant’s claimed fear of persecution and the reasons advanced by him for having such a fear.

40    It seems to me that, in the end, even if an injunction had been granted yesterday and even if an extension of time had ultimately been granted by the Federal Magistrates Court, the applicant’s case for judicial review would not have succeeded. For that reason, it seems to me that the applicant did not have a prima facie case or serious question to be tried in relation to the final relief which he sought in his Application in the Federal Magistrates Court. It follows a fortiori that he did not have such a case in respect of his claim for an extension of time under s 477 of the Migration Act.

41    For all of these reasons, the decision of the Federal Magistrate to refuse the interlocutory injunction yesterday is not, in my view, attended with sufficient doubt as to warrant reconsideration by this Court. Therefore, I refuse leave to appeal from that decision. I will also make orders of a procedural nature, listing the matter for hearing before me today and dispensing with service of the applicant’s Application for Leave to Appeal.

42    The orders of the Court are:

(1)    That the Application for Leave to Appeal filed by the applicant this day (22 November 2012) from the decision of Emmett FM given on 21 November 2012, whereby her Honour refused to grant an interlocutory injunction restraining the applicant’s removal from Australia, be listed before me for hearing at 3.30 pm today.

(2)    That service of the said Application for Leave to Appeal be dispensed with.

(3)    That the said Application for Leave to Appeal be dismissed.

(4)    That the applicant pay the first respondent’s costs of and incidental to the said Application for Leave to Appeal.

Associate:

Dated:    29 November 2012