FEDERAL COURT OF AUSTRALIA

SZRAP v Minister for Immigration and Border Protection [2015] FCA 261

THE COURT ORDERS THAT:

1.    The application for an extension of time 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    The applicant applies for an extension of time within which to file a notice of appeal from a judgment of the Federal Magistrates Court of Australia (Federal Magistrates Court) given on 28 June 2012. In that judgment, the Federal Magistrates Court dismissed the applicant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (Tribunal), made on 1 December 2011. The Tribunal’s decision was to affirm a decision of a delegate of the (then) Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa.

The Tribunal decision

2    At [21] of its decision record, the Tribunal summarised the applicant’s claims as follows:

21.    In his protection visa application the applicant claims to have left Nepal out of fear of Maoists. He claims that his grandfather was shot dead by Maoists on 24 June 2003 for refusing to ‘donate’ 1,000,000 Nepalese Rupees (NPR) and accused him of informing the Nepalese Army of their activities. He also claims that Maoists bombed their house on 20 April 2003. He also claims to fear being forced to become part of the Young Communist League (YCL), linked to the Maoists, and if he refuses, he fears he will be kidnapped and tortured. He claims to have been interrogated and threatened by Maoists in the past. He claims that his father, a primary school teacher, was under pressure by the Maoists to support them financially and in other ways. He claims his father paid the Maoists a “huge amount of money as a donation” when he was in Australia, which meant he was unable to pay his student fees.

3    After a hearing, the Tribunal accepted that the applicant’s family home had been blasted and suffered damage. The Tribunal also accepted that the applicant’s grandfather had been killed in 2003, but found that this was because his grandfather refused to pay the Maoists the money they had demanded, not because of his grandfather’s political opinion.

4    Similarly, the Tribunal accepted that the applicant’s father had had some contact with Maoists and, over the years, had sometimes given donations to them. The Tribunal found, however, that making such payments was a common occurrence in Nepal.

5    The Tribunal accepted that the applicant was questioned by Maoists in relation to his grandfather in 2003 but noted that, at the time of the Tribunal hearing, this had occurred eight years ago and that, since that time, nothing had happened to the applicant in that regard.

6    The Tribunal accepted that the applicant attended two Young Communist League (YCL) meetings as he had claimed, possibly as a result of a degree of pressure from Maoists. However, based on country information and certain reports, the Tribunal did not find that the applicant’s fear of forcibly being recruited to the YCL was well-founded.

7    The Tribunal also took into account the applicant’s delay in applying for a protection visa. The delay was three and a half years after the applicant’s arrival in Australia on a student visa. The Tribunal found that this indicated that the applicant did not have a strong subjective fear of persecution in Nepal at the hands of Maoists.

8    The Tribunal dealt with other aspects of the applicant’s factual claims. It is not necessary for me to record the Tribunal’s findings in that regard.

9    The Tribunal was not satisfied that, by the totality of the evidence before it, there was a real chance that the applicant would be seriously harmed, either at the time it made its decision or in the then reasonably foreseeable future, should he be returned to Nepal. Overall, the Tribunal was not satisfied that the applicant had “a well-founded fear of persecution for a Convention reason.”

10    Therefore, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. It concluded that the applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) for a protection visa.

The Federal Magistrates Court

11    The applicant’s application for judicial review in the Federal Magistrates Court, as originally filed, contained one ground, which was directed to a discrepancy in the Tribunal’s recording of the date of the applicant’s grandfather’s death. The presiding Federal Magistrate discussed that discrepancy, and found it to be either a typing error or a misreading of the documents before the Tribunal. The presiding Federal Magistrate found that the mistake was not material to the Tribunal’s conclusion and did not give rise to jurisdictional error. At its highest, the error was a mere error of fact.

12    The presiding Federal Magistrate also referred to an amended application in which the applicant raised the question of whether the Tribunal erred by addressing only the possible Convention relationship of the Maoist extortion demands on the applicant’s grandfather and family, and not, separately, the reasons for which the applicant’s grandfather was killed.

13    The presiding Federal Magistrate was not satisfied that this ground was made out. His Honour was satisfied that the Tribunal addressed the causation of both the extortion and the killing.

14    The presiding Federal Magistrate considered another aspect of the Tribunal’s reasons concerning whether “wealthy land owners” constituted a particular social group. The relevant part of his Honour’s reasons is at [22]:

22.    I discussed with counsel for the Minister an arguable concern arising from the Tribunal’s reasoning in paragraph 68. Prima facie there might usually seem to be a possibility that the targeting for extortion and murder of a wealthy landowner might necessarily be part of a program of class warfare conducted by a Maoist insurgency such as occurred in Nepal, and therefore have a Convention complexion. If the Tribunal thought that there was no possible basis for such a conclusion in the present case, then it may have made a jurisdictional error in its understanding of the refugee claims which were before it.

15    However, in the end, the presiding Federal Magistrate concluded that no error of law or jurisdictional error was revealed. At [23] of the reasons, his Honour said:

23.    However, approaching an understanding of the Tribunal’s reasoning in the beneficial manner required by Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, I consider that the Tribunal’s reasons should be understood as showing that it was not persuaded that this possible Convention motive was an operative reason for the persecution of the applicant’s family in the present case. I do not consider that the evidence as to the situation of the applicant’s grandfather did not permit that conclusion. I consider that the Tribunal, having correctly identified and applied principles for assessing the causation of the incidents of extortion and related murder by reference to relevant Federal Court authority, has not revealed error of law or jurisdictional error in its conclusion, notwithstanding that minds might differ in relation to its assessment.

The present application

16    Rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) relevantly provides that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced. Here, as I have noted, the Federal Magistrates Court judgment was given on 28 June 2012. The applicant is, therefore, well out of time for filing a notice of appeal. Nevertheless, time within which to file a notice of appeal can be extended. Rule 36.05 FCR relevantly provides that a party who wants to apply for an extension of time must file an application in accordance with Form 67. The application must be accompanied by, amongst other things, an affidavit stating briefly but specifically the facts on which the application relies (including why the notice of appeal was not filed within time), and a draft notice of appeal that complies with r 36.01(1) and (2). These rules are related to the form of the notice of appeal.

17    It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Mohammed v Minister for Immigration and Border Protection [2015] FCA 184 at [15]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

18    The applicant has not filed an application in accordance with r 36.05. Rather, he has filed an application directed to seeking an extension of time for leave to appeal. This is not the appropriate form because the applicant does not need leave to appeal from the judgment of the Federal Magistrates Court.

19    The applicant has filed an affidavit in support of his application, but does not state why a notice of appeal was not filed within time. Moreover, the applicant has not filed a draft notice of appeal, but the application he has filed does contain certain “grounds”.

20    I will treat the applicant’s application as if it had been filed in compliance with r 36.05 FCR. I will treat the grounds stated in it as the grounds on which the applicant seeks to appeal from the Federal Magistrates Court judgment. Those grounds are expressed as follows:

1.    The Federal Magistrates Court failed to exercise its power for my application.

2.    RRT did not give considerations to my situations.

3.    DIBP unfairly reject my claim for protection visa.

21    At his request, the applicant appeared at the hearing of this application by telephone. The Minister for Immigration and Border Protection (the Minister) was represented, in court, by a solicitor. The applicant spoke English tolerably well. I was able to understand him and I have no doubt, from the responses he gave, that he was able to understand me and the solicitor appearing for the Minister.

22    I asked the applicant to explain why a notice of appeal was not filed within time. He gave a lengthy explanation, which covered a number of reasons.

23    First, the applicant referred to his limited knowledge of immigration law and that he did not know how to go about appealing. He said that he only came to know about his ability to appeal from making inquiries and conducting his own research, including on the Internet. I infer from the explanation that was given, that the applicant says that he only recently came to the realisation that he could appeal.

24    Secondly, the applicant referred to family problems. In particular, he referred to the death of his uncle who, it appears, was a central figure in the applicant’s life. It is not clear to me how that occurrence is connected with the applicant’s failure to file a notice of appeal within time.

25    Thirdly, the applicant said that he suffered from serious anxiety and depression since 2012. He said that this affected his memory and his judgment. He said that this made him confused and that it had also caused him to not take seriously the fact that the judgment of the Federal Magistrates Court had dismissed his application for judicial review. He said that his health, in this regard, had improved slightly in more recent times.

26    The applicant appeared to place reliance on his health problems as the most significant reason for not filing a notice of appeal within time. He said that he had supporting evidence concerning his health problems, which he could place before the Court. I explained to the applicant that, if he had wished to rely on such supporting evidence, it should have been filed before the hearing. In response, the applicant said that the reason why this supporting evidence had not been filed was simply because of his lack of knowledge that that step should have been taken.

27    Finally, the applicant referred to the fact that he had applied for a Bridging Visa E. The significance of that matter, as reason why a notice of appeal was not filed within time, is not apparent.

28    The Minister accepted, fairly, that he would not be prejudiced should the Court extend time to allow the applicant to pursue an appeal. Nevertheless, the Minister submitted that none of the reasons advanced by the applicant at the hearing provide an acceptable reason for the delay in making the present application.

29    In my view, while the applicant’s stated limited knowledge of immigration law and his claimed health problems may be capable of standing as reasons why a notice of appeal was not filed within the time limited by r 36.03 FCR, I am not satisfied that the extensive delay in approaching the Court to extend time has been adequately explained. The reasons advanced by the applicant are unconvincing.

30    This is a significant obstacle to the success of the application to extend time. But an even greater obstacle to the success of the application is the complete lack of merit of the appeal which the applicant seeks to bring.

31    At the hearing of his application, I invited the applicant to make submissions in relation to the grounds on which he would seek to appeal. The applicant began to repeat his explanation about his lack of knowledge of immigration law and his health problems. I then directed his attention again to the grounds in his application. In response, the applicant advanced no substantive submission in support of those grounds.

32    The first ground is that the Federal Magistrates Court failed to exercise its power. If, by this ground, the applicant contends that the Federal Magistrates Court itself fell into jurisdictional error, then that error is not apparent. The presiding Federal Magistrate carefully considered and addressed each of the grounds raised by the applicant. I am unable to see how the Federal Magistrates Court “failed to exercise its power”. I can see no error in the presiding Federal Magistrate’s findings, reasons or conclusions.

33    The second ground is that the Tribunal did not give consideration to the applicant’s “situations”. This was not a ground raised before the Federal Magistrates Court. If it had been raised, the ground could not have succeeded. The Tribunal carefully considered the applicant’s claims but, in the end result, was not satisfied by the totality of the evidence before it that there was a real chance that the applicant would be seriously harmed if returned to Nepal.

34    The third ground is that the relevant department “unfairly” rejected the applicant’s claim for a protection visa. This ground appears to be directed to the delegate’s decision which was subsequently affirmed by the Tribunal. Plainly, the Federal Magistrates Court did not have jurisdiction to review the delegate’s decision.

35    None of the grounds relied upon by the applicant are viable grounds for an appeal to this Court. Thus, even if the applicant had provided a satisfactory explanation for his delay, it would be pointless extending time to allow him to bring an appeal on these grounds.

Disposition

36    For these reasons, the applicant’s application to extend time is refused. The applicant should pay the Minister’s costs.

Associate:

Dated:    25 March 2015