FEDERAL COURT OF AUSTRALIA

SZTOJ v Minister for Immigration and Border Protection [2015] FCA 126

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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 to file a notice of appeal from the judgment of Judge Barnes of the Federal Circuit Court delivered on 15 October 2014: see SZTOJ v Minister for Immigration and Anor (No 3) [2014] FCCA 2428 (SZTOJ (No 3)).

2    At the hearing today, the applicant appeared in person with the assistance of an interpreter.

3    I dismissed the application and ordered that the applicant pay the Minister’s costs as agreed or taxed. These are my reasons.

Background

4    The applicant is a citizen of Bangladesh. He arrived in Australia on 9 December 2009 on a student visa. He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 25 July 2012. A delegate of the Minister refused to grant the visa on 19 September 2012.

5    The applicant claimed to fear persecution in Bangladesh. He claimed that he entered into a loan in Bangladesh to finance his student visa and living expenses in Australia. The lender is said to be Mr Chowdhury, who has connections in the Bangladeshi government and authorities. The applicant says that he is unable to repay the loan and therefore fears that Mr Chowdhury will harm him. The applicant claims that Mr Chowdhury has been threatening him and his family. The applicant provided a translation of the loan contract in support of his claim.

Tribunal decision

6    The Refugee Review Tribunal affirmed the delegate’s decision on 21 October 2013.

7    The Tribunal found the applicant not to be a credible witness. It was not satisfied that the applicant had entered into the loan contract, or that he was threatened as a result of non-payment of the loan contract. The Tribunal found that the applicant’s evidence was, in materially significant parts, unpersuasive, inconsistent, and unconvincing.

8    The Tribunal also considered and rejected the applicant’s complementary protection claim.

Federal Circuit Court Decisions

9    The applicant filed an application for review of the Tribunal’s decision by the Federal Circuit Court on 25 November 2013. The grounds of his application were (without alteration):

1.    The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my oral evidence regarding my persecution in relation to my failure to loan repayment.

2.    The Tribunal failed to enable me to have an opportunity to submit my explanations regarding my fear for life. If I would be given the opportunity it could have led to a different decision by the Tribunal.

3.    The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternatively, there was apprehension of bias in the making of the purported decision such it vitiated the said purported decision.

10    The matter was initially listed for hearing on 12 September 2014. The applicant did not appear. The application was dismissed for non-appearance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules): see SZTOJ v Minister for Immigration & Anor [2014] FCCA 2207.

11    On 19 September 2014, the applicant filed an application in a case seeking reinstatement of the matter under r 16.05 of the Federal Circuit Court Rules. The application was listed for hearing on 3 October 2014. The applicant did not appear. The primary judge dealt with the application in a case pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules. The primary judge dismissed the application in a case on the basis that she was not satisfied that the applicant had a reasonably arguable prospect of success in relation to any of the grounds in the application: see SZTOJ v Minister for Immigration & Anor (No 2) [2014] FCCA 2331.

12    On 7 October 2014, the applicant filed a further application in a case seeking to reinstate his case. That application was heard on 15 October 2014. The applicant was present at this hearing. The primary judge dismissed the application because she was not satisfied that the application, if reinstated, would have a reasonably arguable prospect of success on any of the bases contended for in the application for review or as explained at the hearing. It is this decision from which an appeal to this Court is sought.

Application to this Court

13    The applicant relies on one ground of appeal in his notice of appeal:

That the Federal Circuit [sic] of Australia made an error in finding that there is no jurisdictional error.

14    I accepted the Minister’s submission that the judgment in SZTOJ (No 3) is interlocutory: see SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391 at [32] per Cowdroy J. Leave was therefore required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), which provides than an appeal “shall not be brought from a judgment … that is an interlocutory judgment unless the Court or a Judge gives leave to appeal”. I therefore treated the application to this Court as an application for extension of time to apply for leave to appeal the primary judge’s judgment on the ground set out in the notice of appeal.

15    I explained at the beginning of the hearing that on an application for extension of time I needed to consider the length of the delay and the reasons for it and any prejudice to the respondent arising from the delay. I would also need to consider the merit of the proposed grounds of appeal. There is an overlap between the considerations which guide the exercise of the powers to grant an extension of time for leave to appeal and the grant of leave to appeal. That is, both decisions require consideration of whether there is any merit in the appeal should the extension of time and leave to appeal be granted: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18] per Flick J. I invited the applicant to make his submission having regard to these considerations.

16    The applicant apologised for the delay. He provided the following explanation for the delay in his affidavit supporting his application (without alteration):

I had a hearing on 15 October 2014 in the Federal Circuit court of Australia. We know that there are 28 days’ time limits to appeal against any decision. I was waiting for the decision letter from the Federal Circuit Court of Australia. So that I can include the Federal Circuit Court decision with my Federal court application with in the 28 days’ time limitation. I received the Federal Circuit Court decision letter on 04 /11/2014. On the 13/11/2014 I intended to lodge my notice of appeal to the Federal Court of Australia and came to know that I had to appeal not 28 days. If I knew this earlier, I would apply before 21 days. I

I apologise for this mistake.

17    The Minister correctly submitted that the delay was in fact 19 days, as the application for leave to appeal the primary judge’s decision must be filed within 14 days after the primary judge pronounced the judgment under r 35.13(a) of the Federal Court Rules 2011 (Cth). The Minister did not seek to press any prejudice to it caused by the delay and submitted the main issue was that the proposed grounds had no merit and there was therefore no utility in an extension.

18    The parties accepted that the applicant’s proposed ground sought to re-agitate the three grounds of his application to the Federal Circuit Court set out at [9] above. The applicant was invited to, and did address, each of the grounds in oral submissions. However his submission in relation to each ground was, in essence, a complaint that the Tribunal did not believe him. The applicant accepted that he had had a hearing in the Tribunal at which he had an opportunity to present evidence and arguments and he did so. On that basis, the applicant invited impermissible merits review of the Tribunal’s decision which was wholly within its jurisdiction to make.

19    Having reviewed the Statement of Decision and Reasons of the Tribunal, I accept the Minister’s submission that the Tribunal was thorough and careful in its consideration of the applicant’s evidence and submissions and in setting out its reasons for its credibility finding and its refusal to accept the applicant’s claims for protection. I perceive no jurisdictional error by the Tribunal.

20    The primary judge, in both SZTOJ (No 2) at [30]-[37] and in SZTOJ (No 3) at [8]-[17], also carefully considered the applicant’s grounds for review and submissions made at the hearing on 15 October 2014 and with respect I do not see any appellable error by the primary judge.

21    The ground proposed by the applicant, re-agitating his grounds for review of the Tribunal decision made to the Court below, has no prospect of success. There is no utility in granting an extension of time for leave to appeal and for that reason there is no substantial injustice to the applicant in declining to do so.

Associate:

Dated:    25 February 2015