FEDERAL COURT OF AUSTRALIA SZIPK v Minister for Immigration & Citizenship [2007] FCA 490 SZIPK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1942 OF 2006 GRAHAM J 7 MARCH 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1942 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIPK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 7 MARCH 2007 WHERE MADE: SYDNEY THE COURT: 1. Orders that the name of the first respondent be altered to read 'Minister for Immigration and Citizenship'. 2. Orders that leave be granted to the applicant to file and serve a Notice of Appeal in the form of the Draft Notice of Appeal dated 5 October 2006 on or before 21 March 2007. 3. Directs that the applicant file and serve any Amended Notice of Appeal on or before 18 April 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1942 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIPK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 7 MARCH 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 What is presently before the Court is an Application for an extension of time within which the applicant may file and serve a Notice of Appeal from a judgment of Federal Magistrate Emmett of 24 August 2006 which would appear to have been published on or shortly after 12 September 2006 (see SZIPK v Minister for Immigration & Anor [2006] FMCA 1298). 2 Under Order 52 rule 15(1)(a) of the Federal Court Rules a Notice of Appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced. That did not occur in this case. No Application was brought for an extension of time within the prescribed 21 day period in accordance with rule 15(1)(b). 3 Rule 15(2) provides: '15(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 4 Subrule (3) makes provision for applications for leave under subrule (2) including a requirement that the application be accompanied by an affidavit setting out: '(i) the nature of the matter; and (ii) the factual and legal issues in dispute; and (iii) the reasons why leave should be given.' 5 Whilst in the instant case there may not have been strict compliance with all of the requirements of subrule (3) I am satisfied that the matter may proceed and to the extent to which there has been non-compliance it should be dispensed with. 6 As indicated earlier the published reasons of her Honour were not available for a couple of weeks after the date on which her judgment was pronounced. In his Affidavit sworn 5 October 2005 (sic) the applicant said: '4. After the Hearing Her Honour gave the judgment from the Bench on the same day and I thought I would be sent the copy of the decision early in order for me to file an Appeal to Full Federal Court within 21 days. After a couple of days had passed, I have been telephoning regularly the Court's Registry to get a copy of the decision and they told me to wait till I am posted a copy.' 7 The applicant even attended the Court's registry on or about 6 September 2006 with a view to obtaining a copy of the judgment but he was simply told that when the registry received one it would be sent to him in the post. Notwithstanding these matters the respondent Minister opposes the Application because the delay in bringing the Application is said not to have been satisfactorily explained and in addition because it is said that if an appeal were brought there would be no real prospects of success. 8 It seems to me abundantly clear that the delay has been satisfactorily explained and that leaves for consideration the question of whether or not there are real prospects of success such as to amount to 'special reasons' within the meaning of Order 52 rule 15(2) of the Rules. 9 In the applicant's Visa Application he made reference to and relied upon an 'enclosed statement'. The statement which he then referred to bears a stamp indicating that it was received by the Department on 4 October 2005. The statement reads as follows: 'My name is [SZIPK] and I was born on 5.06.1963 in Hyderabad, India. I am a Indian citizen and I was born as a Muslim in a Muslim tribal family and converted to the Christian religion in September, 2004. I belong to a tribal community in India. I can't go back to India due to fear of torture and persecution by my tribal Muslim community. This fear is based on my extensive personal experience, up until my departure from India on 11 September 2005 and even since arriving in Australia. I come from a family of four brothers and five sisters and eight of them are in India at present. I appeared in Matriculation in 1980 after that I worked as a foreign currency trader. I have visited many Christian mission centres, listened to talks by their priests and read much about the Christian religion. From time to time I would go to church with my Christian friends. I started to study the Holy Bible and came to understand a lot about Christianity. I spent a lot of time at the church, and listened to the priests and others. I was very impressed. I requested the priest to give me more of his time to help me with my understanding of Christianity. So every day I went to a priest to study more of the faith. In the beginning of September last year, I made the decision to convert to Christianity. Last December, I went to my home village in India. My mother was seriously ill at the time. Consequently many people were staying in our family home. Everyday I was studying the Holy Bible and I kept it on my bedside table. One of my family members saw the Holy Book and informed my other family members. These people approached me with questions about my Bible. I told them that I had been converted to Christianity. These people then started trouble for me. They warned me that if I didn't return to Muslim ways they would kill me. After this incident I received many life-threatening warning from my extended family members. After that I decided to India. After talking it over with my wife, I decided that it would be better if I left India, because my life was in danger. A few days later, as I coming home, some people from my tribal community stopped me at gun-point, and physically assaulted me.. In the scuffle, they broke my right arm near the wrist. They told me that this was my last warning. If I didn't change my mind, they would kill me. I felt that I had no other option than to leave the country. I approached an Agent and after paying a lot of money, he arranged a Visa to Australia. I arrived in Australia on 12 September, 2005. without my family as my wife and children were unable to get a visa to Australia. I realize that if I should return to India I would be killed by the fanatical elements of the Muslim tribal community. During my recent phone call to my wife, she told me to never return to India, unless I was prepared to return to the Muslim community. But I am not prepared to adopt the Muslim religion at any price. I am now thoroughly converted Christian and my heart and soul is in the Holy Book, the Bible. As I would be in real danger if I returned to India, and may be killed, I request that the Australian Department of Immigration provide me with a Protection Visa in the interest of justice.' 10 The applicant's Visa Application was refused by a Delegate of the Minister on 7 December 2005 whereupon he lodged an Application for Review of the Minister's Delegate's decision in the Refugee Review Tribunal on 4 January 2006. He was invited to and did attend a hearing before the Tribunal constituted by Dr O'Connell on 13 February 2006. 11 On 13 February 2006 the Tribunal Member decided the review Application adversely to the applicant, affirming the decision of the Minister's Delegate not to grant the applicant a Protection Visa. That decision was handed down on 7 March 2006. The applicant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal and that Application came before the Federal Magistrates Court constituted by Emmett FM on 24 August 2006. Her Honour dismissed the Application. 12 The applicant's Application for Extension of Time to File and Serve Notice of Appeal was accompanied by a Draft Notice of Appeal. It is, perhaps, inelegantly expressed and it would no doubt serve the applicant well to take legal advice in respect of it and cause an Amended Notice of Appeal to be brought into existence in due course. The grounds presently recorded in the Draft Notice of Appeal were as follows: '(1)The Appellant submit that the learned Federal Magistrate erred I law she Failed to accept the Applicant's explanation as to the errors of facts made by the Tribunal and instead made the following conclusion which the Applicant alleged as a 'jurisdictional error': "I explained to the Applicant that several of his grounds of appeared to Cavil with the findings of fact made by the Tribunal and that unless those findings and conclusions were not open to the Tribunal on the evidence and material before it, his disagreement with those findings could not amount to jurisdictional error". (Judgment para 16) The Applicant submit that the learned Federal Magistrate erred when failing to recognize the applicant's argument that the those fact findings made by the Tribunal were made without any evidence or material before the Tribunal and therefore it was contrary to the law. 2. The Appellant submit that the learned Federal Magistrate further erred when it concluded to the effect that: "There has been no evidence provided by the applicant as to the existence of or availability of the evidence to which he referred before the Tribunal, namely a letter from the Catholic Church in Hyderabad or indeed evidence of any effort made by him to obtain such a letter prior to the Tribunal hearing or that he brought to the attention of the Tribunal of ant such effort. The Appellant submit that the Tribunal refused to grant more time to the Appellant to obtain such documents which was against the Procedural fairness and the leaned Federal Magistrate failed to accept the Appellant's argument that there was procedural unfairness caused to the Appellant by the Tribunal due to such action.' 13 The 'FINDINGS AND REASONS' of the Tribunal Member led to her conclusion that the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). The 'FINDINGS AND REASONS' of the Tribunal Member were as follows: 'The Applicant's claims may be summarised as follows. The Applicant claims that he fears harm on returning to India from Muslims because he has converted from the Muslim faith to Catholicism. The Tribunal finds as follows. The Tribunal did not find the Applicant to be a credible witness on key aspects of his claims as outlined below. At the hearing the Applicant did not impress the Tribunal in responses in giving evidence which was often weak and unconvincing. The Applicant claims to be a convert to Catholicism but was unable to provide any relevant detail to the Tribunal about his conversion and reception into the Catholic Church. Nor was he able to provide any relevant detail on Catholic beliefs and practises beyond the bare minimum. Furthermore he has not engaged in the practise of his claimed Catholic faith in any substantive manner since his arrival in Australia some four months ago. The Tribunal put to the Applicant on several occasions at the hearing that the paucity of his evidence in respect to his knowledge and practise of the Catholic faith meant that the Tribunal was not convinced that he had converted to Catholicism. The Applicant offered various explanations such as he was learning about his new religion slowly, he has suffered mental torture and therefore was not mental fit to pursue his new religion and he did not attend church in Australia because of a language barrier. The Tribunal does not accept that these explanations reasonably account for the Applicant's inability to provide relevant information on his claimed new religion. In particular the Tribunal does not accept that a person could be said to have adopted the Catholic faith on the very limited knowledge of Catholicism that the Applicant displayed at the hearing. As the Tribunal does not accept that the Applicant has converted to Catholicism the Tribunal does not accept that he faced harm in the past or will face harm in the reasonably foreseeable future from Muslims by reason of his claimed conversion from Islam to Catholicism.' 14 Whilst the appellant claims, as I understand it, to be an adherent of the Roman Catholic Church, his claim was that he had converted from the Muslim faith to the Christian faith. In relation to the claims which he made the Tribunal Member recorded a number of matters under the heading 'Claims as stated at the hearing': 'The hearing was conducted with the assistance of an Urdu interpreter. The Applicant presented his passport to the Tribunal. He stated as follows: · That his wife, children and mother are currently residing in Hyderabad. He stated that his mother has resided with his family since 1994 and that his father also resided with them until he passed away in 2000. He stated that works in foreign exchange and has done so since 1987. · That he feared harm from Muslims following his conversion from Islam to Christianity in September 2004. He stated that his conversion was discovered by family and relatives because of books on Christianity which he had at home. · In respect to his conversion he stated that he had converted to Catholicism. When asked how he was received into the Catholic Church he stated that he accepted their religion and they accepted him into the church. When asked for further details and if any ceremonies were involved he stated that he went to church and was gradually accepted and that he then began meeting other Christians outside of the church. · When asked how he practised as a Catholic he stated that he would go to church and pray and listen to speeches. When asked if he could elaborate further on what practising as a Catholic entailed for him he stated that he goes to church in front of the fathers and sits for a half hour. He then stated that he was new in the religion. · When the Tribunal put to the Applicant that on the basis of what the Applicant had described thus far it was difficult for the Tribunal to be convinced that he had converted to Catholicism. The Applicant responded that he has not yet been deeply through Catholicism and that he is only slowly learning about this religion. · When asked what he had already learnt he stated that he had learnt about the forgiveness of sin. When asked if he had learnt any other things he stated that because of the mental torture he had experienced in India his mind was only now settling down so that he could learn more things. · When asked about his religious activities here in Australia he stated that because he does not know English he has not attended church except for on one occasion and that once he had learnt English then he will start going to church. He stated that he had come to Australia to save his life and had not yet become involved in anything in Australia. · The Tribunal asked the Applicant if he considered himself to be a Catholic. He stated that he did. The Tribunal asked the Applicant who was the head of the Catholic Church. He asked if the Tribunal meant in India, when the Tribunal clarified that he wished him to name the head of the Catholic Church the Applicant stated he did not know. · When asked if he knew who Mary was he stated that she was the mother of Jesus. · The Tribunal put to the Applicant that the Tribunal was not convinced on the Applicant's evidence thus far as to his conversion to Catholicism and was there something further that the Applicant could put to the Tribunal about his religious beliefs. The Applicant stated that he had nothing further to tell. · The Tribunal asked the Applicant about his fear of returning to India. He stated that he feared torture from Muslims and that his family are currently experiencing mental torture as they are questioned about the Applicant's whereabouts and are threatened. · The Tribunal put to the Applicant that the Tribunal was unconvinced by the Applicant's claim that he was a convert to Catholicism but even if the Tribunal accepted that he was country information indicated that India has a large population with a small Muslim population and that he could move his family to another part of India if he feared harm from local Muslims. The Applicant stated that it would not be possible for his family to move elsewhere and that Muslims have contacts in every corner of India. · The Applicant was asked if there were further matters he wished to raise with the Tribunal. He stated that he would like more time to collect evidence from India. When asked what this evidence would be he stated that he would like to get a letter from the Catholic Church in Hyderabad. The Tribunal stated that it would not delay making its decision awaiting such a letter but that the Applicant had the opportunity at the hearing now to elaborate further on his religious beliefs if he so wished. The Applicant declined the offer and stated that he had only limited knowledge and nothing further to say.' 15 The Tribunal Member appears to have focused upon a claimed conversion of the applicant from the Muslim religion to Catholicism rather than a claimed conversion from the Muslim religion to Christianity. Notwithstanding that when asked what he had already learnt the applicant indicated that he had learnt about the forgiveness of sins and notwithstanding that when asked if he knew who Mary was he stated that she was the mother of Jesus, the Tribunal Member appears to have been influenced in her consideration of his claims by, amongst other things, his inability to identify who was the head of the 'Catholic Church'. When asked the question, the applicant apparently inquired as to whether the Tribunal meant in India. The Tribunal Member presumably amplified her question in a way that would lead to an answer being given that it was the Pope. One wonders what the response of the Tribunal Member might have been had the answer been given that it was Jesus. 16 It seems to me that there is a reasonable case to be made on the hearing of an appeal to the effect that the Tribunal Member addressed the wrong question or alternatively that the Tribunal did not state a test by which she formed the judgment that the applicant was not to be accepted as having converted to 'Catholicism'. 17 In the course of her reasons the Tribunal Member referred to a 'US Department of State International Religious Freedom Report 2005 for India'. That report referred to the consequences of converting from Hinduism to Christianity and the consequences of converting to Buddhism, Islam or Sikhism. No consideration was given to Country Information addressing conversion from Islam to Christianity. The Tribunal did question, so it would seem, the applicant about the possibility of him relocating within India, to which his response was that: 'Muslims have contacts in every corner of India.' 18 In my opinion the Application for an extension of time within which to file and serve a Notice of Appeal should succeed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 3 April 2007 The Appellant appeared in person. Solicitor for the First Respondent: Ms K Hooper of DLA Phillips Fox The Second Respondent did not appear. Date of Hearing: 7 March 2007 Date of Judgment: 7 March 2007