FEDERAL COURT OF AUSTRALIA

SZRGG v Minister for Immigration [2013] FCA 169

THE COURT ORDERS THAT:

1.    That the applicant’s father be appointed as the applicant’s litigation representative, pursuant to rule 9.61 and 9.66 of the Federal Court Rules.

2.    That the application filed on 28 November 2012 be dismissed.

3.    That the applicant’s father be ordered to pay the costs of the first respondent of this application as agreed or as assessed.

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 under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time to file and serve a notice of appeal from orders made by Raphael FM on 22 October 2012: see SZRGG v The Minister [2012] FMCA 1048.

2    The applicant is an infant who was born in Australia on 12 April 2010. He was represented in the Refugee Review Tribunal and before the Federal Magistrate by his father who acted as his litigation guardian in the proceedings in the Federal Magistrates Court.

3    The Federal Court Rules require the appointment of a litigation representative for the applicant and the applicant’s father has agreed to accept the appointment. I will therefore make an order that the applicant’s father be appointed as his litigation representative pursuant to rr 9.61 and 9.66 of the Federal Court Rules.

4    The applicant’s claims for a protection visa were based on the Convention grounds of religion and political profile. The claims which he made arose out of the profile claimed by his parents who were at the relevant time living in Jammu and Kashmir. The applicant’s parents are Sikhs and, as I have said, the claims advanced by the applicant’s father mirror those which were previously advanced by the applicant’s father in his own claims for protection.

5    The claims are set out comprehensively in the decision of the Tribunal. I need not set them out in detail. It is sufficient to say that the applicant’s father claimed that if the applicant were to be returned to India, he would be denied access to basic services and that he would face discrimination in employment and education by reason of his Sikh religion. He also claimed that he would be targeted by Pakistani militants and local Hindus and also by persons described as Naxalites. Other claims were also made but it is sufficient to refer only to those that I have already mentioned.

6    The Tribunal affirmed the decision of the delegate to refuse the applicant’s application for a protection visa. The Tribunal set out its reasons comprehensively at [83] to [93] of its reasons. Rather than simply set out those paragraphs, I will endeavour to summarise the essence of the Tribunal’s reasons as follows:

(1)    The applicant’s parents had not experienced the difficulties that they claimed in obtaining employment and, indeed, that the applicant’s father had successfully operated a bus business.

(2)    Whilst the independent country information indicated that Sikhs in Jammu and Kashmir had experienced employment difficulties in the past, his father had successfully operated a business there and the situation between Sikhs and non-Sikhs had “mellowed and stabilised”.

(3)    The applicant himself is very young and it was therefore “very remote and highly speculative” that the applicant, as an infant, would experience difficulties in obtaining employment by reason of his religion.

(4)    The claim that the applicant would face discrimination in education was not supported by the independent country information which indicated that the applicant had a constitutional right to a free education. The Tribunal considered that the applicant would be able to exercise that right if he were to go to India. The Tribunal said that the claimed difficulties were speculative because the applicant is very young and has not identified with any clarity the difficulties which he might be likely to encounter in another four years.

(5)    The independent country information indicated that the applicant would not suffer significant economic hardship or that he would be denied access to basic services or the ability to earn a livelihood.

(6)    The Tribunal found that the applicant’s father had given inconsistent and exaggerated evidence about having been targeted by Muslims and Hindus by reason of his Sikh religion or ethnicity.

(7)    The Tribunal accepted independent country information which indicated that Sikhs are able to practice their religion without restriction in every state of India.

(8)    The Tribunal did not accept the applicant’s father’s evidence that he experienced ongoing raids from militants or terrorists and that he had moved his family to Sanjay Nagar but continued to be targeted by militants after relocation.

(9)    The Tribunal had serious doubts that the applicant’s father was a member of the National Conference as he claimed but in any event that party was in power in Jammu and Kashmir so that accordingly the applicant would not be likely to be targeted or face a risk of harm since his father was a member of a major political party.

(10)    The Tribunal did not accept the applicant’s claims about persecution at the hands of Naxalites or the BJP because the applicant’s father had given insufficient detail.

7    Three grounds of judicial review were relied on in the application in the Federal Magistrates Court. The three grounds were set out in [6] of the Federal Magistrate’s reasons for judgment as follows:

On 14 March 2012 the applicant through his father filed an application in this court seeking review of the Tribunal’s decision. There were three grounds of application. These were:

“1. The Tribunal failed to consider that I shall be a victim of persecution for my religious belief as my parents were discriminated for the similar reason and made errors of law.”

The Tribunal did consider whether the applicant would be a victim of persecution for his religious beliefs and came to the conclusion that he would not. All the Tribunal is required to do is to give the claims consideration. It does not have to accept them.

“2. The Tribunal failed to consider that my father would be targeted by militants, Hindus and Muslims for my father’s religious and political belief and my life would be affected for similar reason and the Tribunal made errors of law amounting to jurisdictional errors.”

The same comments made above apply to this ground.

“3. The Tribunal did not consider my father as a credible witness for the persecution he experienced in India and made errors of jurisdiction.”

8    The Federal Magistrate rejected the first and second grounds in [6] of his reasons because he found that the Tribunal did consider whether the applicant would be a victim of persecution for his religious beliefs and came to the conclusion that he would not. It seems to me that no error is revealed in that finding.

9    In my opinion it is clear that the findings were open to the Tribunal on the evidence before it and it is not open to the court to review the merits of the Tribunal’s decision. The third ground of review before the Federal Magistrate was based upon the Tribunal’s findings of credibility. The Federal Magistrate correctly observed, at [7], that this was a matter for the Tribunal and did not disclose any jurisdictional error.

10    A further argument was made on the applicant’s behalf by his father in the Federal Magistrates Court. The argument was that the Tribunal erred because it failed to consider whether or not the applicant was or could be an Australian citizen under the Australian Citizenship Act 2007 (Cth). However, it seems to me to be plain that no error is revealed in the Federal Magistrate’s approach.

11    His Honour observed that s 411 of the Migration Act 1958 (Cth) restricts the powers of the Tribunal to review the delegate’s decision. The decision was based upon the applicant’s claim to be owed protection obligations and was based on s 36 of the Migration Act. In my opinion, the reasons given by the Federal Magistrate at [8] are clearly correct. It was not incumbent upon the Tribunal to consider whether the applicant may have a valid claim for any other type of visa other than a protection visa.

12    The present application is for an extension of time to file a notice of appeal. The application is one that is required to be made because the notice of appeal was required to be filed within 21 days of the date of the orders made by the Federal Magistrate. Accordingly, the notice of appeal was due to be filed by 12 November 2012. The applicant filed the present application on 28 November 2012, which was 16 days after the expiration of the appeal period.

13    The authorities to which Mr White took me this afternoon establish that the principles which apply to an application for an extension under the Federal Court Rules are no different from those which applied under the former Rules which were contained, in particular, in O 52, r 15(2).

14    Accordingly, the considerations which guide the exercise of the Court’s discretion, in particular, that the applicant must show an acceptable explanation for the delay, the merits of the appeal and the applicant’s prospects of success are to be taken into account, and any prejudice to the respondent in defending the proceedings is also a material factor: see Dunlop v Fishburn (No. 3) [2012] FCA 315 at [9] to [11] per Katzmann J.

15    The applicant’s father has filed an affidavit upon which he relies to explain the delay. The reason given for the explanation is that the applicant and his father are not legally represented and that the applicant’s father was not aware of the deadline to lodge an appeal. He also asserts that he did not receive a copy of the written reasons of the Federal Magistrate until some time after 13 November 2012.

16    I have some doubts about the sufficiency of the explanation. However, it seems to me that the present application turns solely upon the question of the prospects of success in the appeal.

17    The draft notice of appeal filed by the applicant sets out four grounds of appeal, which are contained in paragraphs 2 to 5 of the draft notice.

18    The first ground is that the Federal Magistrate erred in law by failing to consider that the Tribunal failed to find that the applicant will be persecuted on his return to India by reason of his father’s political and religious beliefs. This ground of appeal repeats the complaint which was made in the first ground of judicial review raised before the Federal Magistrate, and as I have already said, no error is disclosed in the Federal Magistrate’s reasons.

19    The second proposed ground is that the Federal Magistrate failed to consider that the Tribunal did not give him the opportunity to respond to independent evidence, suggesting that he would be a victim of harassment for his father’s political beliefs. The applicant has not identified the “independent evidence” which he asserts. Moreover, the independent country information to which the Tribunal referred addressed the situation of Sikhs in India. The country information on which the Tribunal relied was information which fell within the exception contained in s 424A(3)(a) of the Migration Act and it was not required to be disclosed to the applicant under s 424A(1).

20    Mr White has referred me to a number of decisions which address the question of whether, in a situation such as the present, the Tribunal was required to give the information to the applicant personally. The principles were stated by Cowdroy J in SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539 at [21] to [29].

21    As his Honour said in that case at [27], the appellants’ father was acting as the common law guardian for the appellants and any information provided to the Tribunal by the appellants’ father on their behalf was not required to be given to the appellants under s 424A(1) of the Migration Act. That is to say, it was sufficient to enliven the exception contained in s 424A(3)(b) that the appellants in SZLSM were acting by their father as the litigation representative.

22    In my opinion, it is plain that the principles summarised by the Cowdroy J in the authority referred to above are applicable in the present case. Accordingly, the Tribunal was not bound to disclose the information to the applicant personally. It seems to me to be plain that this principle, as stated by Cowdroy J, is correct.

23    If the Tribunal were required to disclose the information to the applicant personally in the circumstances of a case such as this it would lead to a situation which is totally unworkable. I do not see that this could be consistent with the provisions of the Migration Act to which I have referred.

24    The third proposed ground of appeal is that the Federal Magistrate made an error in finding that the Tribunal failed to accept the applicant’s father as a credible witness. This ground clearly repeats the complaint made before the Federal Magistrate about the issue of credibility. As I have already said, no error is disclosed in the Federal Magistrate’s reasons.

25    The last proposed ground of review is that the Federal Magistrate erred in not finding that the Tribunal was in error of a jurisdictional kind in finding that the applicant does not have a genuine fear of persecution for a convention reason. It is plain that this ground of review simply seeks to agitate the merits of the Tribunal’s decision. It is well established that that is not a matter which can be agitated by way of judicial review.

26    For the reasons set out above, it is my opinion that the applicant has no possible prospects of success on appeal.

27    I have taken into account the fact that the applicant is a minor and that his father is not legally trained and has no legal representation. I have considered the matter carefully and have come to the view that since the applicant does not have any prospects of success it would be futile to grant the extension of time which is sought.

28    It follows that I propose to dismiss the application. The orders that I will make are as follows:

1.    That the applicant’s father be appointed as the applicant’s litigation representative, pursuant to rule 9.61 and 9.66 of the Federal Court Rules.

2.    That the application filed on 28 November 2012 be dismissed.

3.    That the applicant’s father be ordered to pay the costs of the first respondent of this application as agreed or as assessed.

Associate:

Dated:    21 February 2013