FEDERAL COURT OF AUSTRALIA

SZSRM v Minister for Immigration and Border Protection [2014] FCA 221

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The appellant pay the first respondent's costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    These proceedings commenced on 16 October 2013, when the appellant filed a notice of appeal in this Court from a decision of the Federal Circuit Court given on 25 September 2013: SZSRM v Minister for Immigration [2013] FCCA 1613. However, that decision dismissed the appellant’s application in a case that had sought to have the proceedings in the Federal Circuit Court re-opened after he had failed to appear at the original hearing of his application for constitutional writ relief against a decision of the Refugee Review Tribunal given on 21 February 2013.

2    Earlier, on 30 August 2013, her Honour had dismissed the application under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) when the appellant had failed to appear at the hearing of his application: SZSRM v Minister for Immigration [2013] FCCA 1340. The appellant filed the application in a case on the basis that he had been sick on 30 August 2013, the day of the original hearing.

3    At the same time as the appellant filed his notice of appeal, he also filed an affidavit dated 16 October 2013 in which he sought an extension of time on the basis that he had an arguable case.

The Tribunal’s decision

4    The appellant is a citizen of the Republic of India. The Tribunal noted that he spoke and understood English very well and that he had completed a master’s degree with First Class Honours in Information Systems at the University of New England.

5    The appellant had made a variety of claims based on his political activity while a student in India. He claimed that, by reason of his activity as a member of the Congress Party, or a student federation associated with it, he feared persecution at the hands of members of the BJP or other rival political parties or organisations. He claimed that his brother and other family members had been harassed, visited and had received threats concerning him. He claimed that his father had borrowed a considerable sum of money to finance his education in Australia and that the money lender was also a source of threats to him and his family because the debt and interest due has not been repaid.

6    The Tribunal found that, prior to filing his application for a protection visa, the appellant had spent over $21,000 in pursuing his attempts, first, to obtain a sufficient qualification in English to support his skilled visa application and, secondly, to have the rejection of that application reviewed in the Migration Review Tribunal and thereafter in the Federal Magistrates Court, this Court and the High Court. It noted that the amount that the appellant had invested in those endeavours exceeded the amount that he claimed was owing to the money lender in India who had not been repaid. The Tribunal also noted the considerable delay of almost seven years between his arrival in Australia in April 2005 and when, in March 2012, the appellant made his application for a protection visa.

7    The Tribunal did not accept the appellant as a credible witness and considered that his evidence was neither reliable nor truthful. Accordingly, it did not accept any of his claims about past events in India or his fears that he would suffer persecution for any Convention reason, were he to return to India now or in the reasonably foreseeable future. It found that there was no basis for the appellant’s claims to fear persecution. It was satisfied that if he returned to India … “there is no real chance that he will be harmed for a political opinion or for an imputed political opinion, or for any other Convention-based reason”. It also found that there would be no real chance that he would be at risk of persecution for any Convention-based reason should he return to India in the foreseeable future or that he would be subjected to significant harm in that country. The Tribunal concluded that the appellant was not eligible to be granted a protection visa and did not satisfy the complementary protection criteria in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth). Therefore, it affirmed the Minister’s delegate’s decision not to grant a protection visa.

The proceedings in the Federal Circuit Court

8    As I have mentioned, the trial judge had dismissed the application for review seeking constitutional relief against the Tribunal’s decision on 30 August 2013. Then, on 25 September 2013, she considered whether or not to reinstate the matter based on the application in a case. Her Honour found that a medical certificate on which the appellant relied as excusing his non-attendance was unsatisfactory, as were his other explanations for not making any attempt to contact the Court to indicate his difficulties. The trial judge found that the appellant had not established that the condition from which he suffered prevented him from being able to travel to court or to participate effectively in the hearing on 30 August 2013.

9    Nonetheless, her Honour went on to consider whether the appellant’s claims for relief had any possible merit. She determined that they did not. The appellant’s amended application for review in the Federal Circuit Court raised three grounds. The first two were repeated in his grounds of appeal in this Court, namely, that the Tribunal:

    acted without jurisdiction or in excess of its jurisdiction by failing to take into account relevant considerations and taking into account irrelevant ones; and

    had made a jurisdictional error based “on assumption and probability” and failed to apply the correct test for persecution in accordance with the Act.

10    The particulars for the first ground were simply boilerplate particulars that identified the obligation of the Tribunal under the Act to consider whether the appellant met the criteria for the grant of a protection visa without particularising how the Tribunal either failed to take into account a relevant consideration or took into account an irrelevant one. Her Honour noted that she had sought that the appellant clarify what he asserted the Tribunal had failed to consider, but he had not been able to explain or clarify his assertions.

11    The trial judge concluded that there was no substance in ground 1 in the amended application and I agree with her Honour for the reasons that she gave.

12    The second ground was particularised with an assertion that both the Tribunal and the Minister had ignored the rules of procedural fairness and made their decisions without giving any consideration to the danger that the appellant claimed to fear from the money lender or others, and that in doing so each had failed to apply, correctly or at all, the test for whether or not the appellant had a well-founded fear of persecution for a Convention reason. The particulars asserted that the Tribunal had formed its opinion on limited information about possible harm to him, had ignored “all other independent information” and had misconstrued the facts.

13    Her Honour found that there was nothing in the material, including the Tribunal’s decision record and the appellant’s submissions to her, to support even an arguable claim of jurisdictional error on any basis alleged. She found that there was no evidence to suggest that the Tribunal had misunderstood or misapplied the criteria for the grant of a protection visa or a complementary protection visa. Accordingly, she held that there was no substance in the second ground.

14    Her Honour noted that, in submissions, the Minister’s solicitor had suggested that a third possible ground may have been included by the way in which the particulars to the second ground were framed, namely that the Tribunal had formed its determinative opinion on only limited information. Her Honour said that that contention was effectively an attempt to seek a merits review in the judicial review proceedings. The trial judge found, correctly, that that was not permissible and rejected the argument. She noted, also correctly, that the appellant had not provided any particulars as to what information the Tribunal had allegedly ignored. The primary judge also found that the appellant had not given any particularisation or identification of his assertion that the Tribunal had misconstrued the facts. She concluded, correctly in my opinion, that those assertions raised no arguable case of jurisdictional error. Her Honour also noted that, in his affidavit, the appellant had alleged that the Tribunal had become biased due to misunderstanding the evidence. Her Honour held that there was nothing in the material before to support any assertion of actual or apprehended bias against the Tribunal.

15    Her Honour concluded that, having regard to all of the matters before her, including the appellant’s explanation for his non-attendance on the previous occasion, she was not satisfied that it was in the interests of justice to set aside the earlier interlocutory order dismissing the proceedings for default of appearance. Accordingly, her Honour dismissed the application in the case.

This appeal

16    This morning, the appellant submitted that he was confident that he would win his appeal but that he needed a lawyer to do so. He argued that he had told the Tribunal that if he were sent back to India he would be killed but that it had not listened to him.

17    I am satisfied that the notice of appeal is incompetent. Each decision made by the Federal Circuit Court on 30 August 2013 and 25 September 2013 was interlocutory because it did not finally decide the rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225 at 230 [25] per McHugh, Kirby and Callinan JJ; see too: Re Luck (2003) 203 ALR 1 at 2-4 [4]-[9] per McHugh ACJ, Gummow and Heydon JJ. The first order was made following a procedural default by the appellant where he had not attended the Court. His case had not been heard or determined by her Honour on the merits. The second decision was given on an interlocutory application made by the appellant to have the earlier interlocutory order set aside so that he could have a hearing on the merits.

18    The Minister properly contended that the notice of appeal should be treated as if it were an application for leave to appeal and for an extension of time to do so. In considering whether to grant an extension of time for a person to file an appeal, a court must bear in mind that the respondent to such an application has a vested right to retain the judgment the subject of the proposed appeal. Accordingly, the Court applies the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 that was applied in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540-541 [66(4)] per Kirby J, namely that:

“We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.”

19    The appellant could be forgiven for being confused as to the distinction between interlocutory and final orders by the Federal Circuit Court in dealing with his case as it did. His notice of appeal was filed on the 21st day after the second decision and would therefore have been in time, had he had an appeal of right.

20    However, for the reasons that I have given, I am not able to discern any arguable case that the appellant could mount against either of the decisions of her Honour in the Court below or to suggest that any jurisdictional error affected the decision of the Tribunal. At its heart, the appellant’s substantive complaint is that the Tribunal simply did not believe his story. That was a matter that the Parliament has left entirely for the Tribunal.

21    I have considered the decision of the Tribunal for the purposes of satisfying myself that the unrepresented appellant did not have any arguable claim based on the grounds in his notice of appeal to this Court or those that he argued before her Honour or otherwise. I am comfortably satisfied that he has no such arguable case.

Conclusion

22    For the reasons I have given the appeal must be dismissed as incompetent.

Associate:

Dated:    13 March 2014