FEDERAL COURT OF AUSTRALIA SZNWL v Minister for Immigration & Citizenship [2010] FCA 845 Citation: SZNWL v Minister for Immigration & Citizenship [2010] FCA 845 Appeal from: Application for extension of time: SZNWL v Minister for Immigration & Anor [2010] FMCA 290 Parties: SZNWL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 572 of 2010 Judge: NORTH J Date of judgment: 4 August 2010 Date of hearing: 4 August 2010 Date of last submissions: 4 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr White Solicitor for the First Respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 572 of 2010 BETWEEN: SZNWL Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 4 AUGUST 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time within which to lodge a notice of appeal against the orders made by the Federal Magistrates Court on 28 April 2010 is dismissed; 2. The applicant is to pay the first respondent's costs of the application. 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 572 of 2010 BETWEEN: SZNWL Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE: 4 AUGUST 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court is an application for an extension of time in which to file a notice of appeal against orders made by the Federal Magistrates Court on 28 April 2010. On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. The application for an extension of time was filed on 24 May 2010. The applicant swore an affidavit in support of the application, which annexed a draft notice of appeal. Order 52 rule 15(1)(a) of the Federal Court Rules allows 21 days after the judgment is pronounced for an appeal to be commenced. In this case, judgment was given on 28 April 2010. Consequently the notice of appeal was due to be filed on 19 May 2010. In fact it was filed on 24 May 2010, and was therefore five days late. 2 Where there are special reasons for doing so, the Court may grant an extension of time for instituting an appeal (O 52 r 15(2)). In considering such an application some of the relevant matters are: a) whether there is an explanation for the delay; b) whether there is any prejudice to the respondent by the grant of an extension of time; and c) the prospects of success on an appeal if allowed to proceed. 3 This application turns particularly on the question of the merits of the proposed appeal. THE APPLICANT'S CLAIMS 4 Before the Tribunal the applicant claimed that he was a member of the All-India Muslim League. He said that he joined this political party in 2008. He claimed that his job was to help poor Muslims to get married, and to recruit them for membership of the party. The applicant claimed that he had been working for the party in this capacity in February and March 2008, then in April he was attacked by four people. The police attended, and the applicant was hospitalised for 30 days. 5 He claimed that the police attended the hospital and instituted a prosecution. Two people were arrested as a result. These people were from the Rashtriya Swayamsevak Sangh (RSS), a Hindu extremist body. The applicant claimed that he went into hiding, fearing retribution from the RSS. He claimed that, on 13 May 2008, his house was attacked and burnt. In the fire he lost all his papers and reports from the hospital. While he was in hiding he said that he had married, and shortly afterwards fled India, arriving in Australia on 31 January 2009. THE DECISION OF THE TRIBUNAL 6 There were a number of reasons why the Tribunal rejected the applicant's claim that he feared persecution by reason of his political opinion. First, the Tribunal considered that the applicant was not a truthful witness. It listed six reasons for that conclusion, although it numbered two of those reasons as consideration 5. Some of the doubts expressed by the Tribunal concerned the confusion in the applicant's evidence about the date of the attack in April 2008, confusion about the people who assisted the applicant at the time of the alleged assault, inconsistency in his evidence about the identity and number of those who attacked him, inconsistency in the name and location of the hospital to which he was admitted and inconsistency in the location of his hiding place. As a result, the Tribunal found that the applicant had created the claim in order to obtain a protection visa. 7 The Tribunal then addressed the question whether the applicant had received protection from the authorities on the version of the events which he gave. The Tribunal concluded that, even if the applicant had suffered the harm which he alleged, nonetheless his evidence was that the police assisted him, instituted an investigation, and arrested the alleged assailants. On the basis of that evidence the Tribunal was not satisfied that the applicant was denied state protection. 8 Thirdly, the Tribunal considered the situation of the risk of harm to a Muslim who came from Tamil Nadu. The Tribunal examined the nature of the institutions of government in India, and described the democratic organisation of Indian government. The Tribunal also described some of the problems of corruption, criminality, and dysfunctional operation of some state institutions. After reviewing these matters, it determined that the Indian state has in place reasonable measures to protect the lives and safety of its citizens. The Tribunal concluded that India had an appropriate criminal law, and a reasonably effective and impartial police force and judiciary. It further concluded that the police in Tamil Nadu take action in relation to attacks on their citizens, and that their action was not ineffective. 9 The Tribunal then considered the evidence about Hindu/Muslim communal violence in India, and, from independent country information, concluded that none of the instances were in Tamil Nadu. The Tribunal concluded that there was no independent evidence to support the applicant's claim that he would not obtain state protection in India, or Tamil Nadu, or that such protection would be denied or withheld to an ethnic Muslim from Tamil Nadu. The Tribunal thus addressed both the Convention grounds of political opinion and religion. 10 The applicant sought additional time from the Tribunal to obtain further documents from India, being a first information report and a medical report. In response to the application, the Tribunal said at [91]: The applicant was put on notice by the delegate of the Department in a decision rejecting his application for the visa that his claims were not accepted. The applicant was invited by Tribunal letter dated 18 June 2009 to attach to his hearing response form any new information for the Tribunal's consideration. Whilst I accept that his mother suffered cancer and was not able to assist him and the applicant said that his wife "would now sell her jewellery" in order to obtain these documents, the applicant has had about 2 months since the delegate refused the visa and about a month since being invited by the Tribunal to a hearing to obtain further documents. I am satisfied that the applicant has had sufficient time to obtain any documents from India he wishes to support his application and he has not done so. THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT 11 The applicant filed a notice of appeal to the Federal Magistrates Court outlining three grounds of appeal. These were: (1) the decision made by the RRT is jurisdictional error; (2) breach of procedural fairness; (3) breach of natural justice. 12 The federal magistrate pointed out that these grounds were not meaningful in the absence of particulars. Nonetheless, the federal magistrate considered the statutory rights of the applicant under division 4 of Part VII of the Migration Act 1958 (Cth) (the Act), on the basis that the applicant was not represented. The federal magistrate referred to the cases of Neal v Knott (1994) 121 ALR 148 and Abram v Bank of New Zealand & Anor [1996] 18 ATPR 41 and said that the Court had a duty to ascertain the rights of a party in such a position. The federal magistrate then examined the application of s 424AA, and s 424A of the Act, and found that the Tribunal had complied with its obligations under those sections. 13 The federal magistrate also considered whether the Tribunal had complied with the requirements of s 425 of the Act, and found that it had done so. The federal magistrate then examined the Tribunal's approach to the applicant's two supporting documents, namely the petition to the police and his membership certificate of the All-India Muslim League. The federal magistrate determined that the Tribunal had dealt with these two documents in accordance with the requirements of the law. 14 The federal magistrate then examined the three unparticularised grounds of review, and concluded that the first ground could be taken as a mere expression of disappointment by the applicant of the rejection by the Tribunal of his case. The second ground might be taken as claiming a breach of the statutory requirements to accord procedural fairness. The federal magistrate had reviewed the operation of these provisions and determined that there was no apparent error. 15 Finally, the federal magistrate explained in reference to the third ground that the applicant had no rights to natural justice beyond the statutory rights which the federal magistrate had already examined. Consequently, the federal magistrate determined that there had been no jurisdictional error committed by the Tribunal, and dismissed the application. THE CURRENT APPLICATION 16 The draft notice of appeal, filed together with the present application, sets out the grounds as follows: 1) The Honourable FM failed to consider the grounds of my application, such as error of law made by the tribunal, not giving me the opportunity of the adverse information in the possession of the tribunal. The court below erred in that it ought to have found that, on the evidence before the tribunal, it was open to the tribunal to find that the appellant was a refugee within the meaning of the Act; and 2) The tribunal is required to give accurate particulars of adverse information to the applicant. It is failure to do so is a jurisdictional error. 17 Again, the lack of particulars of these allegations means that there is no sensible construction of them available to the Court. The first sentence of the draft first ground is patently untenable. The federal magistrate carefully and conscientiously, and beyond any invitation from the applicant, considered the legality of the Tribunal's decision. The second sentence of the first proposed ground does not, in terms, assert any error of law, let alone jurisdictional error. It alleges only that because there was evidence before the Tribunal which allowed it to find the applicant a refugee, it erred in failing to accept that evidence. That is not an error of law, let alone a jurisdictional error, even if it were made out. The draft ground is probably, however, best read as an attempt to express disagreement with the fact findings of the Tribunal. The fact finding role is the function of the Tribunal alone. 18 The second proposed ground of appeal is, again, almost impossible to fathom. To the extent that the federal magistrate dealt with the operation of ss 424A and 424AA of the Act, the federal magistrate was correct, and adequately addressed the issue sought to be raised in the second proposed ground. It follows that the proposed grounds of appeal are doomed to fail. 19 The applicant addressed the Court orally on the hearing of the appeal. He raised a number of issues. First, he sought to further explain his reason for the delay in filing the application for an extension of time. I am content to proceed in this application on the basis that he has given a reasonable explanation for the delay. Then he complained that the Tribunal had failed to give him extra time to produce further documents. The decision of the Tribunal in this regard is contained in [91] of its decision, which has been set out earlier in these reasons. 20 I agree with the submission of Mr White, appearing on behalf of the first respondent, that the Tribunal made a discretionary decision, and took into account matters which were relevant, including the time between the filing of the application for a protection visa and the hearing of the application in the Tribunal. There was no error, jurisdictional or otherwise, in the decision of the Tribunal to refuse extra time to the applicant. 21 The applicant then made a complaint that the Tribunal failed to consider his claim as a member of the All-India Muslim League, but rather in relation to another organisation. However, when it was put to him that [69] of the reasons of the Tribunal outlined the applicant's claim as membership of the All-Indian Muslim League, he agreed. 22 The applicant explained that his concentration was not good at present because he had not been able to work. It was explained to him that the role of the Court was to determine whether there had been jurisdictional error in the sense of any unfairness to him in the way that the Tribunal went about its function. The Court drew attention to the distinction between this function and the fact-finding function engaged in by the Tribunal. In response, the applicant said he was not aware of any unfairness. 23 The additional matters raised by the applicant in his oral submissions did not establish that the proposed appeal, or any other challenge to the decision of the federal magistrate or the Tribunal's decision, had any prospect of success. Consequently, the grant of any extension of time to file the notice of appeal against the judgment of the federal magistrate would be futile, and the application must be refused. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 12 August 2010