FEDERAL COURT OF AUSTRALIA

SZSYR v Minister for Immigration and Border Protection [2014] FCA 163

THE COURT ORDERS THAT:

1.    Leave be granted to join the Refugee Review Tribunal as the second respondent.

2.    The application for extension of time be dismissed.

3.    The applicant pay the first respondent’s costs in the lump sum of $1,756.

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 for an extension of time filed on 29 October 2013. The applicant seeks an extension of time to file a notice of appeal from a judgment of Judge Nicholls of the Federal Circuit Court delivered on 4 October 2013: SZSYR v Minister for Immigration & Anor [2013] FCCA 1794 (SZSYR). The applicant, by application filed on 20 June 2013 and amended on 11 September 2013, sought judicial review in the Federal Circuit Court of a decision of the Refugee Review Tribunal (Tribunal) which affirmed the decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) visa (protection visa). The primary judge dismissed the application for judicial review.

2    The Minister requested leave to join the Refugee Review Tribunal as the second respondent and undertook to file a submitting appearance in the Court’s Registry and leave was granted.

3    The applicant is a citizen of Bangladesh who arrived in Australia on 13 July 2011 on a tourist visa. He applied for a protection visa on 23 August 2011.

Background

4    The applicant’s claims to protection were set out in a statement attached to his application for a protection visa and are summarised by the primary judge at [3] of SZSYR. In brief, the applicant claims to be a member of Jubo Dal which he described as the student wing of the Bangladesh National Party (BNP). He claims he was elected one of the district leaders of the student wing of the party from 2000 to 2006.

5    The applicant claims that from “time to time” he was harassed by members of the student wing of the Awami League, the opposition political party. He says he left Bangladesh and went to Japan on a student visa in order to avoid harassment on the basis of his political beliefs.

6    The applicant says he returned to Bangladesh for a “political agenda” and was involved in an altercation between the BNP members and the Awami League supporters which led to his house being “ransacked”. Some of the BNP members were arrested. He claims that if he returns to Bangladesh he will face harm from both the Awami League and the present government, who he says are hostile to BNP members.

Application for EXTENSION of time

7    The principles relevant to the exercise of the power of the Court to extend time are:

    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

    whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and

    the merits of the substantive application.

The grant of extension of time is not automatic, and the object of the power to extend time in the Federal Court Rules 2011 (Cth) is to ensure that rules which fix time for doing acts such as lodging notices of appeal do not become instruments of injustice. See: SZQBT v The Minister for Immigration and Citizenship [2011] FCA 1281 at [15] per Collier J and SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [13]-[15] per Flick J.

8     The Minister accepts that the period of four days is not a long delay and therefore there is no prejudice to the Minister if the extension were to be granted. It is therefore necessary to consider the prospects of success of the substantive application.

9    The draft notice of appeal states a single ground of appeal: “The Court did not follow law in my case”. There are no particulars of this ground. At the hearing, the applicant elaborated on the ground.

10    First, the applicant noted the recent election in Bangladesh and information he has received about violence between supporters of the two main parties involving jeopardy to those caught in the cross fire and jeopardy to the political leadership. The Minister correctly submits that this argument invites the Court to impermissible merits review and that events after the Tribunal’s decision cannot give rise to a ground of appeal in the context of judicial review. She also correctly noted that at [13] of the Tribunal’s decision record the Tribunal recognised that the applicant might well have been owed protection because of the political situation in Bangladesh if his claimed political activity in the past was true. However, the Tribunal found the applicant “thoroughly lacking in credibility” and believed his claims were “almost entirely invented.”

11    Second, the applicant said that the Tribunal and the Federal Circuit Court “failed to consider” his claims. When asked to explain this, he reiterated his factual claims for protection and complained that the Tribunal had not accepted letters from BNP leadership in Australia, Japan and Bangladesh and other documents which he had supplied to the Tribunal. He said that if the Tribunal looked deeper into his situation they would understand and accept his claims.

12    The Minister submitted that these are complaints about factual and credibility findings. On a fair reading of the Tribunal’s decision record, the Tribunal’s reasons for not accepting the applicant’s claims were open to it and not illogical or irrational and therefore no legal error is revealed. This reflects the reasoning of the primary judge at [20]-[27] and [32]-[33] of his reasons and I find no error in the primary judge’s consideration of this issue and his finding that this ground is not made out. Further, at [28]-[31] of his reasons, the primary judge considers whether the Tribunal had any greater obligation to conduct investigation of the applicant’s claims than it undertook and rejects this contention. I see no error in the primary judge’s consideration of this issue and conclusion that the Tribunal did not have any obligation to conduct further investigation of the applicant’s claims.

13    I find that the ground of appeal set out in the notice of appeal has no reasonable prospect of success for the reasons set out above. I dismiss the application for extension of time essentially for the reasons set out in the Minister’s written submissions which I have marked for identification as MFI 1. I note that the Minister’s written submissions contain a detailed consideration of the Tribunal’s decision record, the primary judge’s reasons and relevant case law.

14    I order that the applicant pay the Minister’s costs in the lump sum of $1,756.

Associate:

Dated:    28 February 2014