FEDERAL COURT OF AUSTRALIA

SZRIO v Minister for Immigration and Border Protection [2014] FCA 599

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file a notice of appeal be dismissed.

2.    The applicant 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

1    This is an application pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (“the Rules”) for an extension of time within which to file a notice of appeal from a judgment of a judge of the Federal Circuit Court (“primary judge”) delivered on 6 March 2014: SZRIO v Minister for Immigration and Citizenship & Anor [2014] FCCA 539.

2    The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 7 June 2013.

Background

3    The applicant is a male citizen of India born on 6 April 1989. He arrived in Australia on 5 May 2011 as the holder of a subclass 420 Entertainment visa.

4    The applicant applied for a Protection (Class XA) visa on 10 May 2011. His claims to protection were set out in a statement accompanying the application.

5    The application was refused by a delegate of the first respondent (“the delegate”) in a decision dated 16 August 2011.

6    The applicant applied to the RRT for review of the delegate's decision on 9 September 2011. The RRT made its decision on 23 March 2012, affirming the decision not to grant the applicant a Protection (Class XA) visa (“first RRT decision”). The applicant was informed of the first RRT decision by letter dated 26 March 2012.

7    The applicant sought judicial review of the first RRT decision. The Federal Magistrates Court (as it then was) made orders by consent on 20 December 2012, ordering that writs of certiorari and mandamus issue with respect to the first RRT decision. In consenting to those orders, the first respondent conceded that the RRT had erred in failing to consider the criterion for grant of a Protection (Class XA) visa under section 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) (“the complementary protection criterion”), which had come into effect on 24 March 2012.

8    The complementary protection criterion required consideration of whether the applicant (not being a person who satisfied the criterion in s 36(2)(a) of the Act, known as the “refugee criterion”, namely that he was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Convention relating to the Status of Refugees (Geneva, 28 July 1951) (“Refugees Convention”) as amended by the Protocol relating to the Status of Refugee (New York, 31 January 1967) (“Refugees Protocol”)) was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (in this case, India), there was a real risk that he would suffer significant harm.

9    The applicant’s matter was accordingly remitted to the RRT for reconsideration. The applicant attended a further hearing before the RRT on 3 April 2013.

10    The RRT made its second decision on 7 June 2013, affirming the decision under review not to grant the applicant a Protection (Class XA) visa (“second RRT decision”). The second RRT decision was the subject of the proceedings before the primary judge.

11    The applicant claimed to fear harm in India due to his political involvement and activities and due to his Muslim religion. As summarised in the second RRT decision, the applicant’s protection claims are that:

    a.    He joined and undertook activities for the Tamil Nadu Muslim Munnetra Kazagam (“TMMK”) and in 2009 was attacked by members of an opposition party;

     b.    Subsequently, he ceased supporting the TMMK and became a member of the Tamil Nadu Towheed Jamaad (“TNTJ”). For doing this, opposition parties tried to harm the applicant, including by bringing false cases against him;

     c.    Muslims are not treated well by the government and Hindus in India, and are discriminated against.

12    The applicant submitted documents in support of his claims, which are identified in the second RRT decision (“supporting documents”). Some of the documents submitted by the applicant were not written in English and were not translated. The documents were described in the second RRT decision, on the basis of the applicant’s own description, as follows:

     a.    A copy of one side of an identity card which shows the applicant’s membership of the TMMK in 2009;

     b.    A letter from the Pudur Muslim Welfare Society containing statements that people from opposite (sic) parties were asking about him, political thugs were planning to attack him, and that the applicant should stay in Australia.

     c.    A letter from the applicant’s parents’ landlord stating that people were coming to the house to harass his family.

     d.    A letter from the applicant’s father stating that the opposite (sic) party were harassing the family and that the applicant was in danger.

     e.    A letter from the TNTJ stating that the applicant had been a member of that group; that he had escaped from the opposite (sic) party; that there was a ‘huge threat’ against him in India and the government had fabricated false cases against him.

The second RRT decision

13    The RRT found that the applicant was an unimpressive witness, and that he did not impress the RRT as someone relating an account of events that actually occurred. The RRT set out its concerns with the applicant's evidence in detail. They included:

     a.    Vague evidence about when the applicant joined the TMMK;

     b.    Inconsistencies as to the injuries the applicant sustained when attacked in 2009 (which the RRT recorded the applicant to have described as the only difficulty he had for supporting the TMMK);

     c.    Inconsistent evidence about complaining to the police after the 2009 attack, and in 2011 about harassment after the applicant began helping the TNTJ;

     d.    Vague evidence about false cases. In particular, the applicant did not give evidence to the RRT of any false case brought against him by the TMMK (or any other political group). As to any false case brought against the applicant by the government, the applicant initially told the RRT that there were such cases but later said that he did not think that a case was taken out against him;

     e.    Inconsistent evidence about when the applicant’s father closed his business as a result of people going there to look for the applicant.

14    The RRT set out the following conclusions concerning the applicant’s credibility:

     67. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.

     68. The Tribunal therefore disbelieves the applicant’s claims…that he supported, joined and undertook activities for political parties in India as he claimed including the TMMK and the TNTJ. In his statement lodged with his application and also to the first Tribunal the applicant mentioned supporting a related party called the DMK. As he is not a witness of truth, the Tribunal disbelieves that claim.

     69. The Tribunal disbelieves the applicant’s claims that he was attacked at an election booth in 2009; that he complained to the police about being attacked; that people were looking for the applicant including going to his parents’ home and to his father’s business to find him; that his father’s business closed for that reason; that false cases have been taken out against the applicant and that any political party, the government or anyone else in India wishes to apprehend or harm the applicant.

15    Concerning the documents referred to in paragraph 12 above, the RRT said:

     70. To support his claims, the applicant produced what he says is an identity card issued by one of the parties he claims to have supported; letters from a Moslem welfare group, the TNTJ as well as his father and his father’s landlord asserting that people in India were looking for the applicant, wanting to harm him and that false cases have been taken out against him.

     71. These documents purport to corroborate the claims the applicant has made to the Tribunal about why he is afraid to return to India. The Tribunal has considered the content of these documents but the assertions made in them do not outweigh the concerns discussed above which have led the Tribunal to conclude that the applicant is not a witness of truth and that the account of events on which his protection claims are based is false. Accordingly, the Tribunal does not give weight to these documents.

     72. The Tribunal put to the applicant that if it found his evidence not credible then it may not give weight to the documents he had submitted to support his claims. In response, the applicant said it was not safe for him to return to India; anything could happen to his family members. For the reasons above, the Tribunal finds that the applicant’s claims to be at risk of harm in India because of his political activities are false.

16    With respect to the applicant’s claim to fear harm due to his religion, the RRT noted that the difficulties which had caused the applicant to leave India “were due to his political activities only and not for any other reason”. However, the applicant also said that Hindus and Muslims could not live together and that there were too many Hindus in the area where he lived: “they were very arrogant and he could not live there”.

17    The RRT noted that in India the applicant had received an education, had employment and was able to practice his religion. The RRT also considered country information which indicated that the applicant could freely practice his religion in India and that the risk of him suffering harm due to his religion was remote. The RRT concluded that the risk of the applicant suffering harm in India because of his religion was remote.

18    The RRT accordingly found that the applicant did not meet either the refugee criterion or the complementary protection criterion.

Proceedings before the FCC

19    By application filed on 28 June 2013 the applicant sought judicial review of the second RRT decision. There was one ground of review in the application, namely that the RRT constructively failed to exercise its jurisdiction. The particulars to the ground were:

The Applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

20    The primary judge dismissed the application at the hearing. Her Honour found that the argument advanced by the applicant was addressed by the Full Federal Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 (“SZNSP”) and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51.

21    Her Honour considered that the present case was not one in which the RRT failed to consider the documents provided in corroboration of the applicant's claims. Rather, her Honour concluded, the RRT had considered the weight to be given to the documents and found, in the light of its concerns about the credibility of the applicant’s evidence, that no weight should be given to those documents. Her Honour concluded that the applicant had not established that the Tribunal fell into jurisdictional error in the manner contended for in the application for review.

Principles governing extension of time

22    The application for an extension of time to file a notice of appeal was lodged on 1 April 2014.

23    The last date for filing a notice of appeal was 27 March 2014: rule 36.03(a)(i) of the Rules.

24    The relevant considerations in deciding whether to grant an extension of time to appeal are:

     a.    the reasons for the delay. The Court must be satisfied that it is proper to grant an extension of time, noting that the prescribed period is not to be ignored;

     b.    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

     c.    the merits of the appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19] (“SZQCZ”). See also WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

25    If a proposed appeal has no prospect of success, an extension of time, even for a short period, may be refused: see SZQCZ at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14]; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24]; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]. See also SZRQA v Minister for Immigration & Border Protection [2013] FCA 962 (“SZRQA”) at [4].

Delay

26    The delay in this case is short and is explained by the applicant, who states that he was not aware that the primary judge’s decision was made at the hearing and that he was waiting for a written judgment.

27    The first respondent accepts that the Court would not treat such a short delay as an impediment to an extension of time, were the applicant's proposed grounds sufficiently meritorious. However, the first respondent contends that the extension of time should be refused on the basis that the applicant’s proposed appeal lacks merit and enjoys no prospects of success.

Prejudice

28    There is no suggestion of any prejudice to the respondents if an extension of time were granted.

Merits of proposed appeal

29    The grounds of appeal set out in the applicant’s proposed notice of appeal are:

     1.    The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claim and ignoring the aspect of persecution and harm in terms of s 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of statutory obligation.

     2.    The learned [primary judge] has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

30    Section 91R affects the application of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol in relation to persecution for one or more of the reasons mentioned in that Article.

31    The applicant appeared before this Court in person with the assistance of an interpreter. As was the case before the primary judge, the applicant did not file any written submissions and did not make any substantial oral submissions. The applicant acknowledged that he had read the first respondent’s submissions and said that there was nothing he would like to say in answer to them.

32    The first respondent contends that the proposed appeal has no prospects of success for the following reasons:

     a.    The right to appeal from a decision of the Federal Circuit Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). To succeed on appeal the applicant would have to demonstrate that the learned Judge fell into error: see, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]; SZRQA at [5]. In turn, the Court below could only disturb the decision of the RRT if that decision was affected by jurisdictional error: ss 474, 476 of the Act; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

     b.    The primary judge correctly considered whether the decision of the RRT was affected by jurisdictional error, and found that it was not. The applicant has not identified any error in the reasoning or conclusions of the primary judge and there is no reason to doubt the correctness of the decision in the court below. The primary judge relied upon authority of the Full Federal Court, and her Honour's conclusions were correct for the reasons given.

     c.    The draft notice of appeal filed with the application for an extension of time pleads two grounds of appeal, which are broad and unparticularised assertions, in a template seen in a large number of similar cases. The grounds bear no relevance to the issues considered by the Court below, nor to the particular facts of this case.

     d.    To make out the first proposed ground, that the RRT acted in a manifestly unreasonable way, the applicant would need to establish that no reasonable decision maker could have arrived at the same decision. The first respondent relies on Minister of Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]–[131] per Crennan and Bell JJ to support the first respondent’s contention that this ground cannot be made out.

     e.    The applicant has provided no particulars to support the second ground, that the primary judge failed to consider legal and factual errors made by the RRT.

     f.    The proposed appeal fails to raise any arguable case of error on the part of the primary judge or on the part of the RRT, and accordingly enjoys no prospects of success.

Consideration

33    The first respondent asserted that the proposed grounds of appeal were in a form “seen in a large number of similar cases”. No evidence was provided in support of that assertion, although a ground of appeal substantially identical to the first proposed ground of appeal was considered in BZAET v Minister for Immigration and Border Protection [2014] FCA 521 and in SZSRV v Minister for Immigration and Border Protection [2014] FCA 220 (“SZSRV”). I have proceeded on the assumption that the proposed grounds articulate matters that the applicant genuinely seeks to argue on appeal, if an extension of time were granted.

First proposed ground of appeal: manifest unreasonableness

34    In SZSRV, Flick J identified two possible interpretations of the first ground of appeal before him, which are applicable to the first ground of appeal in this case, namely: a) that the primary judge erred in rejecting the argument advanced before her; or, b) an attempt to assert that the claims to “persecution and harm” were not genuinely considered by the RRT.

35    As to the latter, there is no reason to doubt the genuineness of the RRT’s consideration of the applicant’s claims.

36    As to the former, the question is whether the primary judge failed to identify any jurisdictional error committed by the RRT in its consideration of the supporting documents.

37    As the primary judge observed, this is not a case where the RRT failed to consider the documents provided in corroboration of the applicant’s claims: cf Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16. The RRT decision sets out summaries of the content of the documents, on the basis of the applicant’s description of the documents, and states that the RRT considered the content of the documents.

38    The weighing of various pieces of evidence is a matter for the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510 at 580 and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176 (“SZJSS”). Without more, a failure to accord any weight to a piece of evidence does not give rise to jurisdictional error: SZNSP at [34] citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21. See also Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“S20/2002”) at [12] and [49].

39    Further, even if the RRT errs in giving no weight to certain evidence that will not necessarily require a conclusion that the result in the RRT committed jurisdictional error: SZJSS at [37].

40    In SZNSP, a Full Court held that, having found that that the applicant was not a witness of truth, and that the account of events on which his protection claims was based was false, the RRT was entitled to consider whether the evidence tendered in support of the applicant’s claim had the capacity to affect the RRT’s assessment of the applicant’s credibility: SZNSP at [31]. Thus, it was open to the RRT to assess the applicant’s credit and then, in the light of that assessment, consider what weight should be given to the supporting documents: SZNSP referring to S20/2002 at [33]

41    In this case, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the supporting documents. The supporting documents are analogous to the witness statement considered by the Full Court in SZNSP, and described by North and Lander JJ (Katzmann J agreeing) at [35] as follows:

The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author.... If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought.

42    In particular, the supporting documents were presented by a person whom the RRT had found not to be a witness of truth. Their provenance was not established and there was no basis for believing that their contents were genuine or otherwise uninfluenced by the applicant: see SZNSP at [50]; WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1580 at [22].

43    In any event, the supporting documents did not provide support for the first of the applicant’s protection claims as set out in paragraph 11 above and did not provide any explicit support for the third of those claims.

44    As to the applicant’s second claim, the supporting documents only provided the most limited support. They provided no explicit support for the applicant’s claims to be at risk from harm from any particular political group and no evidence from which any conclusion could be drawn as to the nature and extent of the risk.

45    The documents did not support the applicant’s claim of attempts to harm him by the bringing of false cases against him. At most, the TNTJ letter raised a threat (the bringing of false claims against the applicant by the government) of which the applicant had no personal knowledge.

46    Accordingly, the first proposed ground of appeal has no prospect of success.

Second proposed ground of appeal: Failure to consider the legal and factual errors of the RRT

47    Without the assistance of submissions identifying the alleged “legal and factual errors” contained in the second RRT decision, there is no reason to interpret it as raising a separate ground from the first proposed ground of appeal.

48    Accordingly, the second proposed ground of appeal also has no prospect of success.

Conclusion

49    In the absence of any identified prospect of success, it would be futile to grant an extension of time for the filing of a notice of appeal.

50    Accordingly, the application must be dismissed with costs.

Associate:

Dated:    11 June 2014