FEDERAL COURT OF AUSTRALIA

SZVAD v Minister for Immigration and Border Protection [2017] FCA 225

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to appeal is dismissed.

2.    The applicant is to 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

SIOPIS J:

1    This is an application for an extension of time to appeal from a decision of the Federal Circuit Court of Australia (the Federal Circuit Court), delivered on 23 August 2016, dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The applicant is a 43 year old male citizen of Pakistan.

3    The applicant entered Australia on 17 November 2011 as the holder of a tourist visa. He returned to Pakistan on 5 December 2011 before again returning to Australia on 22 December 2011 on a second tourist visa.

4    On 21 January 2013, whilst in Australia, the applicant applied for a protection visa.

5    The applicant’s application for a protection visa was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection, on 22 November 2013. The applicant applied to the Tribunal for review of the delegate’s decision. On 11 August 2014, the Tribunal affirmed the decision of the delegate.

6    In his application for a protection visa, the applicant claimed to fear harm and persecution in Pakistan from “jihadis”.

THE TRIBUNAL

7    The Tribunal hearing took place on 29 July 2014, and the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter.

8    Before the Tribunal, the applicant stated that he worked as a car mechanic in Faisalabad, Pakistan. The applicant said that in 2011 some customers who had brought their cars to the private garage where he was working refused to pay him for his services. The applicant said that he did not challenge the men, whom he had identified as “jihadis”, on the basis that they were carrying guns and wore beards, turbans and shalwar kameez. Thereafter, said the applicant, the men brought more cars to him and also blindfolded him and drove him to other locations to work on other cars. The applicant said he was concerned that the cars he was working on would be used for terrorist activities. However, he said that he complied with their instructions as he was afraid that if he refused they would kill him.

9    The applicant said that the reason that he was only in Australia for about three weeks when he first arrived was that, although he had intended to apply for a protection visa at that time, he missed his family (including his wife and children) and hoped to find a solution to his problem in Pakistan.

10    The applicant told the Tribunal that when he returned to Pakistan in December 2011, the jihadis continued to ask him to work for them and began demanding money from him. As a result, said the applicant, he moved his family secretly to Lahore but returned to Faisalabad to collect some documents and payment from his employer. On the bus ride back to Lahore the applicant said that the jihadis stopped the bus, abducted him and took him to a secret location where he was kept for a few days and beaten. Following these events, said the applicant, the jihadis threatened to kill him and harm his wife and children if he did not cooperate with them. The applicant went on to say that he subsequently relocated his family back to Faisalabad, returned to his employment at the garage and complied with the jihadis’ requests to perform work on their vehicles.

11    The Tribunal observed that aspects of the applicant’s story, such as whether and when he had complained to the police about the jihadis, were inconsistent. The Tribunal was also highly sceptical that an extremist or militant group would engage a civilian in such work rather than its own members or supporters whose confidence could be relied on. The Tribunal found that the applicant was not a witness of truth and that the account of events on which the claims for protection were based were false.

12    Before the Tribunal there was evidence regarding some of the applicant’s physical and mental health conditions. However, the Tribunal was satisfied that the applicant understood the Tribunal’s questions and the purpose of the hearing and that he had a meaningful opportunity to participate. The medical evidence, said the Tribunal, did not allay the Tribunal’s concerns about the applicant’s credibility.

13    As a result of the adverse credibility findings made by the Tribunal, the Tribunal was not satisfied that the applicant met the criteria for a protection visa under the Migration Act on the basis of either the refugee criterion or on complementary protection grounds.

THE FEDERAL CIRCUIT COURT

14    On 4 September 2014, the applicant brought an application for a constitutional writ within the Federal Circuit Court’s jurisdiction, pursuant to s 476 of the Migration Act. The applicant relied on four grounds of review before the Federal Circuit Court. In summary, the grounds were:

(a)    the Tribunal disregarded relevant information;

(b)    the Tribunal failed to understand or take into account the applicant’s claims that his life was at risk;

(c)    the Tribunal’s finding that the applicant did not have a well-founded fear of persecution was illogical or irrational, resulted from a misunderstanding of the law or arose out of a failure to take relevant information into account; and

(d)    the applicant was not afforded natural justice as the Tribunal was biased by reason of having preconceived views.

15    The particulars of each of the first three grounds of review disclosed that the substance of the applicant’s complaint was the fact that the Tribunal had made adverse credibility findings about his evidence.

16    The Federal Circuit Court concluded that none of the four grounds of review revealed any jurisdictional error by the Tribunal.

17    On 23 August 2016, the Federal Circuit Court dismissed the applicant’s application for judicial review.

THE APPEAL

Application for an extension of time

18    On 4 October 2016, the applicant brought an application for an extension of time to appeal to this Court.

19    The notice of appeal should have been filed and served within 21 days after the date of the Federal Circuit Court’s judgment, namely, by 13 September 2016 (Rule 36.03 of the Federal Court Rules 2011 (Cth)). Accordingly, the application for the extension of time was filed 21 days after the expiry of the appeal period.

20    The applicant’s explanation for the delay in seeking to appeal was that he had moved house and had been suffering from depression and so forgot to check mail sent to his previous address. The applicant said that he learned of the Federal Circuit Court’s decision around 16 September 2016. The further delay to 4 October 2016 is unexplained.

The proposed grounds of appeal

21    In substance, the applicant identified one proposed ground of appeal in his draft notice of appeal. This is:

The Tribunal did not correctly interpret law relating to the applicant’s protection claims, namely s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958.

22    In considering whether to grant an extension of time to appeal, the Court has regard to the length of the delay and the explanation for the delay, and also the prospects of success should the application for the extension of time be granted. The delay in this case was not excessive and is partially explained. However, the Court will not extend time to appeal if the proposed appeal has no reasonable prospects of success.

23    The proposed ground of appeal relied on by the applicant is defective because it does not identify any alleged error by the primary judge. However, in my view, even if the proposed ground of appeal was to be construed as a complaint that the primary judge erred in dismissing each of the grounds of review, the proposed appeal would, in any event, have no prospects of success.

24    This is because it is apparent from the particulars of each of the first three grounds of review upon which the applicant relied before the Federal Circuit Court, that in essence, the applicant’s complaint was that the Tribunal had made adverse credibility findings against him. The question of the assessment of credibility is a matter within the jurisdiction of the Tribunal. The basis for the making of the adverse credibility findings was explained by the Tribunal and the findings were open to the Tribunal. Therefore, in my view, the primary judge did not err in dismissing the first three grounds of the applicant’s application for review.

25    The fourth ground of review was a complaint that the applicant was denied procedural fairness because the Tribunal was biased. The primary judge gave careful consideration to this ground of review and found that the applicant had not produced any evidence to support such an allegation, nor had he discharged the onus of showing that he was unfit to participate meaningfully in the Tribunal hearing. The applicant made no submission at the hearing challenging these findings of the primary judge. In my view, the primary judge did not err in dismissing this ground of review.

26    Accordingly, the applicant’s application for an extension of time to appeal is dismissed.

Associate:

Dated:    9 March 2017