FEDERAL COURT OF AUSTRALIA

SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 7 August 2017 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

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    The applicant seeks an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) to file a notice of appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 13 July 2017: see SZUMJ v Minister for Immigration & Anor [2017] FCCA 1589 (SZUMJ). The applicant’s application for an extension of time was filed on 7 August 2017, four days after the expiration of the 21 day period within which a notice of appeal must be filed as prescribed by r 36.03 of the Rules.

2    Despite the relatively short period of delay in filing the application for an extension of time, for the reasons that follow, the application should be dismissed.

background

3    The applicant is a citizen of India. He entered Australia on 11 June 2012 as the holder of a Business (Short Stay) (Subclass 456) visa which expired on 11 July 2012. On 16 July 2012 the applicant applied for a Protection (Class XA) visa (Visa). The applicant’s claims for protection were included in a statutory declaration dated 16 July 2012. The primary judge set out the applicant’s factual claims at [4] of SZUMJ.

4    On 20 February 2013 the applicant’s application for the Visa was refused by a delegate of the first respondent (Minister). On 13 March 2013 the applicant lodged an application for review of the delegate’s decision with the second respondent (Tribunal). On 14 May 2014 the Tribunal affirmed the delegate’s decision.

5    The Tribunal identified that the issue in the applicant’s case was whether the applicant was a credible witness and concluded that the delegate’s decision should be affirmed on the basis of comprehensive adverse credibility findings. At [20] of its decision record the Tribunal noted that the applicant claimed protection in Australia because “he is a [D]alit and also because of his and his uncle’s and father’s political activities in support of [D]alits, and the harm they have suffered as a consequence and the harm which he fears he will suffer in the future”.

6    At [21] of its decision record the Tribunal observed that there were numerous inconsistencies and differences between the claims the applicant made in his visa application and those he made at the hearing. It then set out in detail those inconsistencies, differences and aspects of the applicant’s claims that it found to be implausible. The Tribunal did not accept that the applicant’s evidence was credible and rejected the entirety of the applicant’s claims for protection, including his claims concerning his status as a Dalit. Accordingly, the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act) or that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

FEderal circuit court proceeding

7    On 10 June 2014 the applicant filed an application to show cause in the Federal Circuit Court. He raised two grounds of review, as written:

1.    The RRT failed to consider all aspects of my claims and therefore made a jurisdiction-related error.

Particulars

RRT relied heavily on incidents claimed but not on affiliation of the applicant which was political.

2.    The RRT failed to consider a core claim of the applicant for protection

Particulars

It was implicit that applicant was affiliated to Dalit, a low caste, and RRT did not consider this matter.

8    The primary judge noted that by ground one the applicant made a general claim that the Tribunal did not consider all aspects of his claims, but that the particulars to ground one appeared to suggest that the Tribunal did not consider his political affiliation. The primary judge noted that it is a core function of the Tribunal to respond to the case that an applicant advances before it, but that the applicant had failed to establish that the Tribunal had failed to consider or had disregarded his claim of political affiliation. The primary judge noted that the Tribunal specifically referred to that aspect of the applicant’s claims at [20] and [32] of its decision record: see SZUMJ at [23]–[27].

9    The primary judge also rejected ground two. His Honour found that it was not the case that the Tribunal did not consider the applicant’s claim to be a Dalit who would suffer harm for that reason if he returned to India, noting that the claim was specifically mentioned by the Tribunal at [20] and [32] of its decision record: see SZUMJ at [29]-[31].

the application for an extension of time

10    In support of his application for an extension of time the applicant affirmed an affidavit on 7 August 2017 which annexes a draft notice of appeal and in which the applicant deposes that he is seeking an extension of time because he “had to prepare fee for Appeal”.

11    The draft notice of appeal raises the following grounds of appeal, as written:

1.     FCC failed to find RRT made a jurisdictional error by failing to deal with all claims.

2.     FCC failed to find RRT made a jurisdictional error by not considering that Applicant was a Dalit low caste person.

12    In SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (SZQCZ) Murphy J set out the principles applicable to the Court’s consideration of whether to grant an extension of time within which to file an appeal at [18]-[19] as follows:

18    The Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen 3 (1984) FCR 344 at 348-9 (which related to an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 as the principles which should guide the Court in determining whether an extension of time should be granted: Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17]; Sutera v Nelson [2011] FCA 1470 at [7].

19    Accordingly, the application for an extension of time requires consideration of the following factors;

(a)    satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

(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.

13    As concerns the last of these considerations, that is, the merits of the appeal, the proposed appeal grounds should be considered at a “reasonably impressionistic level”. The Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] (per Mortimer J) and, on appeal, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38].

14    At [23] of SZQCZ Murphy J noted that it was well established that an extension of time, even for a short period, may be refused if an appeal has no prospect of success.

15    The applicant has not filed any written submissions in support of his application. At the hearing, when invited to do so, the applicant declined to make any oral submissions.

16    The applicant’s explanation for the delay in filing the notice of appeal is that he lacked sufficient funds. In my opinion, even though the period of delay is short, that is not a sufficient explanation. As the Minister submitted, it was open to the applicant to seek a waiver of the filing fee associated with the appeal. There is no evidence before the Court that the applicant attempted to do so and no evidence of any other steps he took, if any, in relation to the filing fee.

17    The Minister submitted that there is little prejudice to him beyond that of being required to defend an unmeritorious application. I address the issue of the merits of the proposed appeal below. There is, in my opinion, no relevant prejudice to the Minister.

18    A final consideration is the merits of the proposed appeal. The Minister submitted that the draft notice of appeal lacked sufficient merit to warrant an extension of time. I agree.

19    By ground one of the draft notice of appeal the applicant contends that the primary judge erred by failing to find that the Tribunal made a jurisdictional error by failing to deal with all of his claims. The applicant’s ground of review before the primary judge was that the Tribunal had failed to consider his claims relating to his political affiliation, as opposed to dealing with all of his claims. The primary judge addressed that narrower claim but, in any event, it is clear that the Tribunal was not satisfied that the applicant was a credible witness and rejected the totality of his claims on that basis.

20    By ground two of the draft notice of appeal the applicant contends that the primary judge failed to find that the Tribunal made a jurisdictional error by not considering that the applicant was a Dalit, low-caste person. At [30] of his reasons the primary judge noted that the Tribunal specifically referred to this aspect of the applicant’s claims and rejected the claim on the basis of its adverse credit findings.

21    In my opinion, the grounds of appeal do not have reasonable prospects of success.

conclusion

22    It follows from the matters set out above that the applicant’s application for an extension of time should be refused and the applicant ordered to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    11 December 2017