FEDERAL COURT OF AUSTRALIA

SZSOL v Minister for Immigration and Border Protection [2013] FCA 1199

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Border Protection.

2.    The application for extension of time and leave to appeal be dismissed.

3.    The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    On 1 July 2013 the applicant filed an application for an extension of time and leave to appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 12 June 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 January 2013.

BACKGROUND AND CLAIMS

2    The applicant is a citizen of India who arrived in Australia on 8 November 2008 on a student visa. On 27 April 2011 he applied to the Department for a protection visa. On 17 November 2011 the delegate of the Minister refused the application.

3    The applicant claimed to be of Sikh ethnicity and religion. He claimed that he got into a fight with a group of men who had insulted and harassed his then girlfriend. He later found out that the men belonged to an extremist group, the Khalistan Liberation Front (“KLF”), and were looking for him to kill him. The applicant claimed that the authorities were powerless because they did not want to get involved with the KLF. It was impossible for him to relocate within India because the KLF members could find him wherever he was.

THE TRIBUNAL’S FINDINGS

4    The Tribunal found that the applicant was not a credible witness. In making this finding, the Tribunal noted that the applicant’s evidence was vague, limited and evasive. Further, he did not provide details that were relevant or persuasive and he was unable to elaborate on his claims when invited to do so. The paucity of the applicant’s evidence led the Tribunal to reject his claims and, in such circumstances, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason or that he satisfied the complementary protection criteria. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

THE PROCEEDINGS IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

5    In the Federal Circuit Court of Australia, the applicant advanced the following grounds:

1.    The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed engage in an active intellectual process in respect of Applicant’s claim.

2.    The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to heard in respect of those matters.

3.    The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

4.    The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

5.    The Tribunal has failed to investigate the claim, specifically the grounds of persecution in India. Therefore the Tribunal decision dated on 10 January 2013 was a judicial error.

(Errors in original.)

6    His Honour found that the applicant only advanced one claim. His Honour found that the Tribunal had gone through this claim with the applicant and it had discussed the issues it had with the applicant’s claim with the applicant at the Tribunal hearing. His Honour found that the Tribunal had engaged in an active intellectual process in relation to the applicant’s claims and, in such circumstances, there was nothing to suggest the Tribunal had failed to deal with the applicant’s claim or that there was a denial of procedural fairness. His Honour found that ground one was in essence seeking impermissible merits review.

7    In response to ground two, his Honour noted that the applicant had not put any evidence before the court to support his allegation. In those circumstances, his Honour found that the findings of the Tribunal were open to it on the evidence before it and for the reasons it gave, and that the Tribunal had also complied with s 425 of the Migration Act 1958 (Cth).

8    His Honour dismissed ground three noting that the provisions of the Migration Act dictate that if the Tribunal does not reach the relevant degree of satisfaction then the visa must be refused.

9    In response to ground four, his Honour noted that the Tribunal was under no obligation to provide a fair outcome, but rather a fair process. His Honour dismissed this complaint as simply disagreement with the Tribunal’s findings.

10    Finally, his Honour dismissed ground five as there was nothing to suggest that the Tribunal was required to conduct an inquiry. Rather, it was for the applicant to satisfy the Tribunal of his case.

11    Ultimately, his Honour found that the applicant’s application was in essence seeking to challenge the Tribunal’s factual findings, which was impermissible. His Honour found that none of the applicant’s grounds raised an arguable case for the relief sought and therefore dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

THE APPEAL PROCEEDINGS

12    By application for extension of time and leave to appeal filed on 1 July 2013, the applicant relies on the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned FM dismissed the application without considering the legal and factual errors contained in the decision of RRT.

SUBMISSIONS OF THE PARTIES

13    The applicant did not file any written submissions in support of his application. At the hearing this morning the applicant appeared in person, but made no oral submissions in support of his applications.

14    In summary, the Minister submitted:

    the applicant did not raise these grounds in the Federal Circuit Court and it would not be in the interests of justice to allow these new grounds to be argued and determined for the first time on appeal; and

    the draft grounds of appeal are unparticularised and lack merit.

CONSIDERATION

15    As a preliminary matter it is convenient to make a number of observations.

16    First, the draft grounds of appeal are pro forma grounds. They have been advanced in many cases in this Court, unparticularised as in the case before me. Indeed in at least four cases this week identical grounds with identical typographical and grammatical errors have been advanced in this Court by different appellants: SZRTJ v Minister for Immigration and Border Protection [2013] FCA 1174, SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185, SZSLS v Minister for Immigration and Border Protection [2013] FCA 1187, SZRGI v Minister for Immigration and Border Protection [2013] FCA 1190.

17    Second, it is clear that the applicant was five days late in filing his application for leave to appeal, and accordingly requires an extension of time in which to file his notice of appeal.

18    Third, it is clear that the decision of the Federal Circuit Court was an interlocutory decision, from which leave to appeal is required. The decision of the Full Court of this Court in Décor Corporation Pty Ltd v Dart Industries Inc (1989) 15 IPR 403 establishes that before the Court will grant leave to appeal an interlocutory decision, the applicant must satisfy the Court that the judgment of the primary judge was attended by sufficient doubt to warrant reconsideration by the Court, and that substantial injustice would result if leave were refused supposing the decision to be wrong.

19    In my view the Minister is correct in submitting that the draft grounds of appeal completely lack merit. That this is so is clear from circumstances where:

    It is not clear from the first ground exactly what the Tribunal has “ignored”, and how that has resulted in a manifestly unreasonable decision of the Tribunal. Indeed, I am not persuaded that the decision of the Tribunal is so unreasonable that no reasonable person could have come to it.

    The Federal Circuit Court Judge gave detailed consideration to the reasons and findings of the Tribunal. An unsupported presupposition in this ground of appeal that there exist “legal and factual errors” in the reasons of the Tribunal does not make it so, in the absence of identification of specific errors.

20    It follows that, in my view, it is obvious that the prospects of success of the applicant in relation to any proposed appeal are poor. I do not consider that the primary judgment is afflicted by sufficient doubt to warrant reconsideration. I do not consider that leave to appeal should be granted.

21    In relation to the application for an extension of time to file the appeal I note that no satisfactory explanation for the delay in filing the notice of appeal has been given by the applicant. While no particular prejudice may affect the respondent as a result of this delay, when considered in light of the absence of a satisfactory explanation and the poor merits of the proposed case I consider it appropriate to refuse the application for an extension of time.

Associate:

Dated:    14 November 2013