FEDERAL COURT OF AUSTRALIA SZNUN v Minister for Immigration and Citizenship [2010] FCA 831 Citation: SZNUN v Minister for Immigration and Citizenship [2010] FCA 831 Appeal from: SZNUN v Minister for Immigration & Anor [2010] FMCA 247 Parties: SZNUN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 498 of 2010 Judge: BROMBERG J Date of judgment: 6 August 2010 Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2)(b) Federal Court Rules, O 52 r 15(1)(a)(i) Migration Act 1958 (Cth), s 476 Cases cited: Jess v Scott (1986) 70 ALR 185 Parker v The Queen [2002] FCAFC 133 SZNUN v Minister for Immigration & Anor [2010] FMCA 247 VUAX v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 158 Wilson v Alexander [2003] FCAFC 272 Date of hearing: 5 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 36 Counsel for the Applicant: Applicant appeared in person assisted by an interpreter Solicitor for the Respondents: Sparke Helmore Counsel for the Respondents: Ms B Rayment IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 498 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNUN Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 6 AUGUST 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application for an extension of time to file and serve a notice of appeal is dismissed. 2. The applicant pay the costs of the first respondent Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 498 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNUN Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE: 6 AUGUST 2010 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 This is an application by the applicant for extension of time in which to file and serve a notice of appeal against a decision of the Federal Magistrates Court made on 14 April 2010: SZNUN v Minister for Immigration & Anor [2010] FMCA 247. For the reasons which follow, I have determined to dismiss the application. Background 2 The applicant is a male citizen of Pakistan who arrived in Australia on 23 November 2008. On 5 January 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application on 26 March 2009. On 21 April 2009, the applicant applied to the second respondent, the Refugee Review Tribunal ("the Tribunal") for a review of the decision. 3 On 10 June 2009, the applicant attended a hearing of the Tribunal. During the course of the hearing, the Tribunal considered the applicant's claims, and found the applicant to be lacking in credibility. The Tribunal concluded that the applicant had not been involved in the political activities which he claimed formed the basis of his fear of persecution. 4 On 9 July 2009, the decision of the delegate of the first respondent not to grant a protection visa was upheld by the Tribunal. 5 The applicant filed an application to the Federal Magistrates Court on 3 August 2009, seeking an order that the respondents show cause why a remedy should not be granted in exercise of the Federal Magistrate Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Migration Act"). By orders of 14 April 2010, the Federal Magistrates Court dismissed the applicant's application with costs. 6 On 10 May 2010, the applicant filed an application for an extension of time to file and serve a notice of appeal. That application was supported by an affidavit of the applicant sworn on 6 May 2010. 7 In his supporting affidavit, the applicant deposed that he was not made aware of the judgment of the Federal Magistrate until 29 April 2010, when he received a copy by ordinary mail from the respondents' solicitors. the application for extension of time 8 Order 52 r 15(1)(a)(i) of the Federal Court Rules provides that a notice of appeal shall be filed and served within 21 days after the judgment appealed from was pronounced. Accordingly, any notice of appeal from the judgment of the Federal Magistrates Court should have been filed and served by 5 May 2010. It was not. On 10 May 2010, the applicant lodged his application for an extension of time together with a draft notice of appeal and an affidavit in support. 9 Section 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) provides that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single judge or by a Full Court. Order 52 r 15(2) of the Federal Court Rules provides that a judge of the Court may give leave where special reasons for the grant of leave exist. A number of decisions of this Court have considered the criteria to be applied in determining whether leave should be granted in a case of this kind. Those decisions include Jess v Scott (1986) 70 ALR 185 at 193 and Parker v The Queen [2002] FCAFC 133 at [5]. 10 At paragraph [6] of Parker the Full Court referred to the following considerations: (1) applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The appellant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; (2) action taken by the appellant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (3) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; (4) however, the mere absence of prejudice is not enough to justify the grant of an extension; and (5) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. 11 As the Full Court further noted at [10] and [13], the purpose of the rule in relation to the grant of leave is to give the Court discretion to extend time in order to avoid injustice. This is intended to enable substantial injustice to prevail over technical default. In Wilson v Alexander [2003] FCAFC 272, Ryan, Heerey and Allsop JJ posited the test succinctly as requiring an applicant to: (1) provide a satisfactory explanation for the delay in bringing the application; and (2) demonstrate that there is a prospect of success on the substantive appeal. explanation for the delay 12 The delay in this case is short. The applicant's application is for leave to file and serve a notice of appeal five days out of time. I have no reason to doubt the evidence of the applicant that he was not aware of the judgment of the Federal Magistrate until 29 April 2010 and was ignorant of the procedural requirements for instituting an appeal. The applicant is unrepresented and I am satisfied that there is an explanation for the delay. prejudice to the respondents 13 The first respondent does not assert that there would be any prejudice to it if the applicant was given leave to file and serve five days out of time. This consideration favours the grant of the application. merits of the substantive application 14 In order to be satisfied that there is a prospect of success on the appeal, I need to be satisfied that, by reference to the grounds of challenge relied upon by the applicant, there is a prospect that the Court will be satisfied that the Federal Magistrate erred in failing to identify jurisdictional error in the decision of the Tribunal. The applicant's claims and the Tribunal's findings 15 The applicant claimed to fear harm from the Muslim League (N) as a result of his working for, and support for, a local politician from the Muslim League (Q) (Tasneem Shafi). He claimed to have worked as the secretary of Tasneem Shafi. He further claimed that his employer's opponents (Muslim League (N)) succeeded in the 2008 election and that persons associated with the Muslim League (N) attempted to kill him on two occasions. He also stated that he owned a shop which was 'completely smashed' by his political enemies. 16 The Tribunal considered the applicant's claims made to the Minister's delegate and to the Tribunal and concluded that the applicant had never been employed by Tasneem Shafi and nor was he ever involved in political activity on behalf of Mr Shafi or the Muslim League (Q). These findings were based on the Tribunal's view of the applicant's uninformative, vague and evasive evidence at the Tribunal hearing, his implausible evidence as to his various jobs, his delay in leaving Pakistan after obtaining his visa and his delay in seeking a protection visa after arriving in Australia. 17 Accordingly, the Tribunal did not accept the applicant's claims and was not satisfied that he faced a real chance of suffering serious harm in the reasonably foreseeable future for a Convention reason. The Tribunal was satisfied that the applicant was not a person towards whom Australia owed protection obligations. The Federal Magistrates Court 18 The applicant relied on a single ground in his amended application filed in the Federal Magistrates Court. That ground asserted that the Tribunal had failed to give the applicant a proper opportunity to present his case. That was said to be so because the Tribunal ignored a request from the applicant for 'further time to present evidence of his claims that he was expecting to receive by mail from overseas…(t)he applicant wrote to the Tribunal on 30 June requesting more time to provide documents that he was expecting in the mail. The Tribunal did not refer to that request in its decision dated 9 July 2009' [sic]. 19 This ground was not established: SZNUN at [19]. The learned Federal Magistrate found that, contrary to the applicant's assertions, the Tribunal properly addressed its discretion to allow the applicant more time to present his evidence. The proposed appeal 20 The applicant's draft notice of appeal sets out the following grounds for appeal: 1. That the learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with, the appellant belongs to the PAKISTAN MUSLIM LEAGUE (Q) Group, as the applicant / appellant was open to serious harm as the appellant / applicant was an active member of the above party, and two other main opponents PPP and PML(N) were deadly against the appellant, now as they are in power. The appellant was subjected to the harm and persecution by the hands of these political parties. The PML Q is a real party which believes in the democracy, and has fought a long for real democracy in the country, the appellants case on these issues was not addressed by the learned court below, rather the issues which involved the real question of law were ignored as such there is a jurisdictional error. The applicants relative were put to under go lot of persecutions and the harms caused to them, the appellant had to undergo untold miseries by the hands of the authorities in the country of origin by these political groups. There occurs a legal and jurisdictional error committed by the respondent. 2. That the appellants submits that this fact can be verified from the US country information, and from other international media, and other sources. There is a great discrimination being done to the peoples like the appellant by the ruling parties, the both major so-called political parties are declared to be corrupt by the nation accountability board, this has been endorsed by the Honorable Supreme Court of Pakistan. There are cases pending against them in the different courts, these cases involves the murders kidnappings and such like other cases, in these circumstances it is crystal clear that how they will spare the applicant / appellant in the given situations. The learned respondents committed the mistake of law of not taking in to the situation of the applicant as required under the laws laid down by the UNHCR. 3. That the respondents did not applied the proper law and procedure, this has resulted in the error of the law. The applicant / appellant has fulfilled all four key elements of being a refugee, as the applicant / appellant has submitted in his statement of claim. 21 None of the three grounds of appeal in the draft notice of appeal ("the new grounds") were argued before the Federal Magistrates Court. The ground agitated before the Federal Magistrate is not raised, although at the hearing before me, the applicant referred to it and appeared to want to continue to rely upon it. 22 In the circumstances, I will consider whether the applicant has a prospect of success in relation to the ground relied upon before the Federal Magistrate. Further, I will need to consider whether the applicant has a prospect of obtaining leave to agitate new grounds including whether the applicant has a prospect of success in relation to those grounds. 23 At the hearing before the Tribunal, the applicant was told that the information he had provided to the Tribunal could raise doubts as to whether he had ever been involved with any political activity in Pakistan or that he was ever harmed or threatened with harm for such a reason. The Tribunal invited the applicant to comment on the information or respond to it, and he was told he could have further time in which to do so. At that juncture, the applicant said he needed time to obtain documents. The applicant was then questioned as to the nature of the documentation he sought to obtain. He said that he sought to obtain a personal secretary identity card. He was unable to identify any other documents that he sought to put before the Tribunal. The Tribunal agreed to allow the applicant three weeks in which to submit further documents. 24 On 1 July 2009, the Tribunal received a submission from the applicant in which he attached a scanned copy of a business card. The applicant stated that "some other supporting documents are on the way" and that "I will post all the documents to your kind office as soon as I receive in the mail". 25 The Tribunal considered the scanned copy of the business card provided. The Tribunal had reservations as to its authenticity. The Tribunal considered whether it should await the receipt of further documents from the applicant before making its decision. In deciding not to wait beyond 9 July 2009, the Tribunal explained at paragraph [65]: In his submission the Applicant states that he is expecting further documents and that he will submit them when they are to hand. I have considered whether a decision in his case should be further delayed to allow such documents to be taken into account. I note, however, that he does not specify which documents these may be, what their nature is or even roughly when they may arrive. He was similarly vague about these alleged documents at the hearing. No such documents have arrived in the week between the date of the submission and the date of this decision. In these circumstances, I am not satisfied that any good purpose can be served by granting the Applicant additional time to submit further documents. 26 The Tribunal was not obliged to acceed to the applicant's request for further time. I agree with the conclusion of the learned Federal Magistrate that the Tribunal's reasons show that it properly addressed its discretion to allow the applicant more time to present his evidence. In coming to that conclusion I have had regard to the context in which the Tribunal exercised its discretion. That context included the fact that, as a result of the Tribunal's experience of the applicant at the hearing, the Tribunal had come to the view that he was an unimpressive witness whose evidence was notably vague and uninformative, even on relatively simple and factual issues. Further, that the applicant gave an impression of evasiveness on many points and showed a readiness to modify aspects of his claims when he was pressed about inconsistencies in them. The Tribunal had doubts as to the applicant's general reliability. It also had doubts as to the authenticity of the business card provided on 1 July 2009. 27 I am satisfied that the applicant does not have a prospect of success in relation to the ground agitated before the Federal Magistrates Court. 28 In VUAX v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 158, Kiefel, Weinberg and Stone JJ at [46]-[48] set out the basis upon which an appellant may be given leave to raise a ground of appeal not raised before the primary judge. Ordinarily, leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. Their Honours observed that the practice of raising arguments for the first time on an appeal has been particularly prevalent in appeals relating to migration matters and at [48] said: The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 29 The new grounds sought to be agitated by the applicant include ground 3. That ground is no more than an allegation of an error of law by reason of the Tribunal misapplying the 'proper law and procedure'. There is no particularisation given. I need not further deal with that ground. It obviously has no merit. 30 The other two new grounds of appeal set out a range of factual assertions but include, in relation to the first ground, an allegation that the Federal Magistrate failed to determine the actual harm that the appellant was faced with and, in relation to the second ground, an allegation that the Tribunal committed a mistake of law by not taking into account the applicant's situation. 31 Some of the factual assertions made in new grounds of appeal 1 and 2 were taken up in the applicant's supporting affidavit. That affidavit asserts a range of other facts as well. In particular, in the supporting affidavit the applicant claims that he was an active member of the Muslim League (Q) and that this was a reason for the persecution against him. That claim is contrary to the evidence provided by him to the Tribunal that he was not a member of Muslim League (Q). Additionally, the affidavit suggests that the applicant's fear of persecution is also based on the applicant having been a member of a commando force and because of his involvement in the restoration of democracy in Pakistan. None of those matters were claimed before the Tribunal. Furthermore, through the affidavit, the applicant now claims to have been in confinement, beaten, harassed, and arrested by the police and intelligence agencies in Pakistan. None of those claims were made before the Tribunal. 32 Doing the best I can to understand what the applicant now seeks to agitate, it would appear that the applicant not only seeks to raise new grounds not raised in the Federal Magistrates Court below, but seeks to do that on the basis of evidence not raised with the Tribunal. 33 The applicant has not been able to provide an explanation, let alone an adequate explanation, as to why he failed to raise these matters in the Court below or before the Tribunal. 34 In essence, what the applicant is seeking is a merits review of his application for a protection visa based largely on claims and evidence never put to or considered by the Tribunal. I am satisfied that not only are the applicant's new grounds of doubtful merit but that there is no prospect that the applicant would be granted leave to argue the new grounds on an appeal. 35 Accordingly, I am satisfied that there is no prospect of the applicant succeeding in an appeal, should the Court grant his application for an extension of time in which to file a notice of appeal. 36 For those reasons, the applicant's application will be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 6 August 2010