SBDG v Minister for Immigration and Citizenship [2008] FCA 253

FEDERAL COURT OF AUSTRALIA

SBDG v Minister for Immigration and Citizenship [2008] FCA 253

SBDG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL SAD 2 OF 2008

SIOPIS J

5 MARCH 2008

PERTH IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 2 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SBDG

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 27 february 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1 The application to extend time is dismissed. 2 The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 2 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SBDG

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 5 MARCH 2008

PLACE: PERTH

REASONS FOR JUDGMENT 1 On 27 February 2008, I dismissed the applicant's application for an extension of time to file and serve an appeal against a decision of the Federal Magistrates Court. I said I would publish my reasons later. These are the reasons. 2 The applicant is a citizen of the United Kingdom who arrived in Australia on 30 September 1980. He was then 24 years of age. He has remained in Australia since then and in 1994 he acquired an absorbed person's permanent visa. From 1983 onwards, the applicant was convicted from time to time of a number of criminal offences. He has served periods of imprisonment ‑ none of which exceeded nine months. In June 2005, the first respondent (the Minister) cancelled the applicant's permanent visa because the applicant failed the character test, pursuant to s 501 of the Migration Act 1958 (Cth) (the Act). 3 On 13 June 2007, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. In his application form, the applicant stated that he had left the United Kingdom "to improve [his] life". In response to the question "What do you fear may happen to you if you go back to [the United Kingdom]?", the applicant wrote: "I will be persecuted". In response to the further question: "Who do you think may harm/mistreat you if you go back?", the applicant wrote: "Government". 4 A delegate of the first respondent refused the application on 14 June 2007. On 18 June 2007, the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal's decision 5 At a hearing before the Tribunal, the applicant was asked to elaborate on his claim for a protection visa. The applicant claimed that he had a well‑founded fear of persecution by the United Kingdom government and its agents due to his membership of a particular social group, namely, those persons who have had their visas cancelled and have been deported from Australia because of their criminal records. 6 The applicant also claimed that he could face persecution by a motorcycle club known as the "Blue Angels", due to a dispute between the applicant and the club that occurred about 27 years ago, over the disappearance of some goods that the applicant was responsible for transporting. 7 The Tribunal accepted that persons who have had their visas cancelled and been deported from Australia because they failed the character test on the grounds of their criminal record could be considered a particular social group for the purpose of the Convention. However, the Tribunal noted that the applicant had not presented any evidence that suggested he would be persecuted by the United Kingdom authorities because of his membership of this social group. Rather, the applicant merely asserted it. Further, the country information relied on by the Tribunal did not suggest that the applicant would encounter problems of any sort from the United Kingdom authorities, "let alone persecution for the purposes of s 91R of the Act". 8 The Tribunal accepted that there may have been a dispute between the applicant and the Blue Angels motorcycle club, but noted three difficulties with the claim. First, the Tribunal did not accept that there was more than a remote chance that the group's adverse interest in the applicant would still exist. Secondly, the Tribunal found no reason why, even if the group's interest in the applicant did still exist, that it would be able to locate him unless he actively sought them out. Thirdly, the Tribunal did not accept that the claimed threat was anything more than a personal vendetta and found, therefore, that it was not within the scope of the Convention. 9 In the result, the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. This decision was made on 17 July 2007. The Federal Magistrates Court 10 On 6 August 2007, the applicant filed an application in the Federal Magistrates Court for judicial review of the decision of the Tribunal. The grounds of review stated in the application were: 1 The Tribunal erred in interpreting s 91R and s 91S of the Migration Act 1958. 2 The Tribunal erred in interpreting the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. 11 In his judgment of 9 November 2007, the Federal Magistrate noted that both grounds were merely assertions of error and that the particular error complained of had not been articulated. 12 As to the first ground, the Federal Magistrate found that there was no identifiable error of law or principle, let alone jurisdictional error, with respect to the Tribunal's findings in relation to the applicant's asserted fear of persecution by the United Kingdom government on the basis of being, in effect, a deportee from Australia with a criminal record. There was no error in relation to s 91R or s 91S of the Act. 13 The Federal Magistrate was also unable to find any error by the Tribunal in its treatment of the second claim made by the applicant, nor could the Federal Magistrate find any error in relation to the second ground of appeal. 14 The Federal Magistrate found there was no aspect of the Tribunal's decision or reasoning that could involve jurisdictional error and, accordingly, dismissed the application. The application to this Court 15 The applicant filed a notice of appeal on 3 January 2008. 16 Order 52 r 15 of the Federal Court Rules provides that a notice of appeal must be lodged within 21 days of the date of the decision appealed from. Accordingly, the time for filing an appeal against the decision of the Federal Magistrate expired on 30 November 2007. 17 The applicant has filed an application for the extension of time within which to file and serve a notice of appeal. The Court has power to extend the time for the filing and service of a notice of appeal. Among the factors that the Court takes into consideration in the exercise of the power are: the period of the delay, the explanation for the delay and the merits of the appeal. Although the Federal Magistrates Court's decision and the orders dismissing the applicant's application were made on 9 November 2007, the written reasons recording the extempore judgment were only produced on 6 December 2007. This circumstance provides some explanation why the appeal was not filed timeously. 18 However, in this case, I am of the view that an extension of time should not be granted. This is because the proposed appeal lacks merit. The proposed notice of appeal which has been filed by the applicant relies upon the following grounds of appeal: 1 The Tribunal and Federal Magistrates Court failed to properly consider the applicant's claims under Article 1 of the United Nations Convention Relating to the Status of Refugees according to law. 2 The Federal Magistrates Court allowed the matter to be conducted in such a way as to deny the applicant procedural fairness. 19 In support of the second ground of appeal the applicant stated in oral submissions that he had not had the benefit of legal representation before the Federal Magistrate. 20 As to the first proposed ground of appeal, the Federal Magistrate did not err in concluding that the Tribunal had not fallen into jurisdictional error. It is evident from the Tribunal's reasons that it considered both limbs of the claim relied upon by the applicant. The first claim, namely, the asserted fear of persecution arising from belonging to the group of persons who had been deported from Australia because of their criminal records, was understood, considered and rejected by the Tribunal. The Federal Magistrate examined the manner in which the Tribunal dealt with the issue at paras 13 to 17 of his reasons. The second claim, namely, that the applicant feared harm from the "Blue Angels", was also understood, considered and rejected by the Tribunal. The Federal Magistrate examined the manner in which the Tribunal had dealt with that issue at paras 18 to 20 of his reasons. 21 The Tribunal rejected the applicant's first claim because it found that on the basis of the country information there was no real chance that the United Kingdom authorities would persecute the applicant because he was a member of the particular social group which the Tribunal identified. The applicant failed to satisfy the Tribunal that he had a well‑founded fear of persecution on that ground. As to the applicant's second claim, the Tribunal identified three grounds why the claim could not be accepted. Not the least of the grounds was that the applicant's claimed threat was no more than a personal vendetta and could not, therefore, come within the scope of the Convention. The applicant, accordingly, failed to satisfy the Tribunal that he was a person to whom Australia owed protection obligations under the Convention. The Federal Magistrate held that the Tribunal did not fall into jurisdictional error in disposing of the claims of the applicant. In coming to that conclusion the Federal Magistrate did not err. 22 As to the second proposed ground of appeal, a transcript of the hearing before the Federal Magistrate is in the application book. This shows that the applicant did not have the Court book with him at the hearing and that he did not have legal representation. The affidavit of Mr Floreani shows that the Court book was served on the applicant. As to the lack of legal representation, that fact by itself in relation to an application for judicial review of the Tribunal's decision, does not amount to a denial of procedural fairness (Dietrich v The Queen (1992) 177 CLR 292). In this case, the applicant advised the Court that he was ready to proceed and did not apply for an adjournment. In any event, it does not appear that the applicant was, in the particular circumstances of this case, prejudiced by the lack of legal representation. The Federal Magistrate understood the case made by the applicant and in reviewing the Tribunal's decision for any jurisdictional error, the Federal Magistrate did not confine his review to the grounds of review relied upon by the applicant. In my view, there was no denial of procedural fairness. 23 Accordingly, as there is no merit in either of the proposed grounds of appeal, the application for the extension of time is dismissed. I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.