FEDERAL COURT OF AUSTRALIA SZOWY v Minister for Immigration & Citizenship [2011] FCA 964 Citation: SZOWY v Minister for Immigration & Citizenship [2011] FCA 964 Appeal from: SZOWY v Minister for Immigration & Anor [2011] FMCA 209 Parties: SZOWY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 623 of 2011 Judge: KATZMANN J Date of judgment: 24 August 2011 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 1979 (Cth) O 52 r 5, O 52 r 15 Federal Magistrates Court Rules 2001 (Cth) r 44.12 Migration Act 1958 (Cth) s 422B, s 425, s 426A, s 476 Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Date of hearing: Heard on the papers Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 23 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 623 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 24 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be treated as an application for leave to appeal and an order to dispense with compliance with O 52 r 5(2) of the Federal Court Rules 1979 (Cth). 2. The application be dismissed. 3. 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. 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 623 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 24 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is an Indian national, who arrived in Australia on a subclass 573 Higher Education Sector visa. The date of his arrival is unclear because there is a disparity in the dates in the material before the Court. Suffice it to say that he has been in Australia at least since August 2008. 2 The visa allowed for multiple entries into Australia. On 4 July 2009 he left Australia for India to see his parents and returned on 2 August 2009. On 16 October 2009 he was granted a subclass 572 Vocational Education and Training Sector visa which expired on 23 June 2010. Five weeks later he applied for the protection (class XA) visa. 3 The applicant claimed to fear persecution because of his membership of, and activities in, Hindu political parties in the Punjab region. Specifically, he claimed to be afraid he would be killed on that account by members of the Khalistan movement (a Sikh separatist movement). The applicant's claim was supported by a statement attached to his visa application. No corroborating material was supplied. After making his application he was invited to an interview with a delegate of the first respondent ("the Minister") but he failed to attend and the Minister's delegate refused the application. In his reasons he referred to a number of matters he said he had wished to discuss with the applicant at the interview which raised questions about the truth of his claim. He made the observation that several claims and statements made by the applicant were identical or similar to those made by other applicants. He also referred to the applicant voluntarily returning to India and waiting 23 months to apply for protection in Australia. He concluded that, because the applicant did not attend the interview, it was not possible to be satisfied that the claims were genuine. 4 An appeal on the merits to the second respondent ("the tribunal") was also unsuccessful, and on 25 March 2011 an application for judicial review to the Federal Magistrates Court was dismissed on the ground that the application raised no arguable case. 5 In this Court the applicant applied, in effect, for an extension of time in which to appeal. For the reasons below, that application is misconceived and, in any event, the proposed appeal is bound to fail. What is wrong with the application? 6 On 12 May 2011 the applicant filed in this Court an application seeking an order for leave to file and serve a notice of appeal out of time, pursuant to O 52 r 15 of the Federal Court Rules 1979 (Cth) (repealed, effective 1 August 2011) ("the former Rules"). He asked that the application be heard without an oral hearing and the respondent consented to that course. I therefore dispensed with an oral hearing. 7 Order 52 r 15(1)(a) of the former Rules relevantly provided that a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced or leave to appeal is granted. Order 52 r 15(2) gave the Court the power to grant leave to file and serve a notice of appeal at any time "for special reasons". Order 52 r 15 is, however, irrelevant. 8 The premise behind the application is that the applicant had a right to appeal. Yet, the applicant had no such right. The judgment of the federal magistrate was made under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) and r 44.12(2) of those Rules makes it clear that a judgment made under that rule is interlocutory. For this reason the applicant requires leave to appeal: Federal Court of Australia Act 1976 (Cth), s 24(1A). If leave to appeal were granted, the notice of appeal would only need to be filed within 21 days of the grant of leave: O 52 r 15(1)(a)(ii) of the former Rules (cf. r 36.03(a)(ii) of the Federal Court Rules 2011 (Cth)). Absent a grant of leave, however, a notice of appeal cannot be filed. 9 An application for leave to appeal must be filed within 21 days after judgment is pronounced or a later date fixed for that purpose by the Court: O 52 r 5(2). In this case, the time within which to file an application for leave expired on 15 April 2011 and no application has been filed. Order 52 r 5(3) provides that where an application is not filed within the 21 day period an order shall be sought in the application that compliance with subrule (2) be dispensed with. No special reasons need be shown. The applicant did not seek such an order. Nevertheless, as the applicant is unrepresented and was obviously misguided, I am prepared to treat his application as an application for leave to appeal and for an order that the time for compliance with O 52 r 5(2) be dispensed with, and to dispense with the need to formally amend the application. That would occasion no prejudice to the Minister. The tribunal proceeding 10 The tribunal wrote to the applicant inviting him to attend a hearing, as it was bound to do under s 425 of the Migration Act 1958 (Cth) ("the Act"), and advising him that, if he did not attend, it may make a decision without taking any further action to allow or enable him to appear. The applicant failed to attend the hearing, advising the tribunal by a "response to hearing invitation", bearing his signature, that he consented to the tribunal deciding the review in his absence. The tribunal, in accordance with the power conferred on it to do so by s 426A of the Act, proceeded to make a decision on the material before it. 11 The tribunal said it could not be satisfied on that material that the applicant met the criteria set out in s 36(2) of the Act for the grant of a protection visa. In substance this means that it was not satisfied that the applicant was a non-citizen who had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and/or was unable or, owing to such fear, unwilling to avail himself of the protection of the country of his nationality (collectively "the Convention grounds"). The proceeding before the federal magistrate 12 When the application for judicial review was filed in the Federal Magistrates Court (an application to show cause why an order should not be made under s 476 of the Act), the applicant was given an opportunity to take advice and consider the contents of the Court Book. According to the reasons of the federal magistrate, he declined to participate in the free legal advice scheme. His application was then listed for the purpose of deciding whether he had raised an arguable case for the relief sought and warned that, if not, his application might be dismissed. The federal magistrate found that he had not and so dismissed his application, as I said earlier, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules. 13 The grounds of the application before the federal magistrate were (without alteration): (1) That the respondent RRT, only reproduced the evidence of the applicant, but failed to address the evidence placed by the applicant. There is a miscarriage of justice while only reproducing the evidence of the applicant, and no legal reason was advanced by the RRT. This is the violation of the legal process as given under the law. (2) That the most important issues were not discussed but on the contrary the decision given by the respondents was upheld, which is against the spirit of section which empowers this honourable court under section 477 of the Migration Act, this has caused the legal error as given under the law. (3) That the applicant has got a very good case for arguments, the errors committed by the respondents requires the interference of this Court. 14 The applicant purported to file an amended application but, as the federal magistrate correctly observed, it merely repeated the applicant's refugee claims and made the same contentions as appeared in the original application, though at greater length. 15 The federal magistrate said that he could not find "an arguable ground of jurisdictional error raised by these grounds". His Honour said that there was no substance in the applicant's assertion that the tribunal had failed to address the evidence "placed by [him]". His Honour noted that the tribunal considered whether it was satisfied by the applicant's statement (which was the only evidence he provided), and for reasons which his Honour said were clearly open to it, the tribunal decided that it was not satisfied by the assertions in it. The proposed appeal 16 The grounds of appeal in the draft notice of appeal attached to the application are in the following terms (without alteration): (1) That the appellants case was dismissed under Rule 44.12(1)(a) on the grounds that the applicant has no case for arguments or the applicants case has no cause of action. This is not the case the learned court below did not took in to the consideration the merits of the case. The learned court was dependent upon the findings of the respondent NO 2. The appellant has an a case which does disclose the cause of action. (2) That the Appellants submits that this fact that the appellant is self represented, the appellant has no legal assistance, as the appellant is without work, and has no source of income to pay the amount to the solicitors, the applicant is already being supported by his relations. The appellants evidence was not taken in to the considerations, the appellant has undergone lot of miseries', persecutions and the threats of the life , the authorities' did not gave the protection to the applicant despite the fact that the applicant requested the authorities' for protection. (3) That the appellant had an arguable case, there are many legal and otherwise jurisdictional errors. The applicant/appellant shall be deprived off his valuable right, of being non-heard in this matter. The appellant requests that the matter of the appellant may kindly be heard to meet the interest of justice. There may occur an act of injustice if the appellants case is not heard. 17 The applicant filed an affidavit which set out his submissions. In it he repeated his contentions of fact, which are fairly summarised in the grounds. He submitted that he gave a full account of his claims but neither respondent bothered to look into them. He said he made "a very good case for judicial interference" and the federal magistrate overlooked the important issue of his involvement in the movement of the rights of lower class Hindus. 18 The grievances outlined in the first two grounds of the draft notice of appeal are complaints that the federal magistrate did not deal with the case on its merits and that the evidence the applicant gave about his fear of persecution was not considered. That is true. But there was good reason for it. The federal magistrate had no power to consider the merits. Unless the decision of the tribunal was tainted by jurisdictional error, it could not be set aside: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Section 474 of the Act prevents any other challenge. Moreover, as Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (approved and often cited by the High Court including in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]): The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 19 As for the third ground, the applicant does not clearly identify what the "legal and otherwise jurisdictional errors" are. In his affidavit he stated that he gave a full account of his claim to the Minister and the tribunal, but maintained that they did not bother to look into it and the federal magistrate also overlooked the important issue of his involvement in the movement of the rights of "lower class Hindus". I have already explained why it was inappropriate for the federal magistrate to look into that issue. The proceeding in the tribunal involved a fresh consideration of the merits of the application, so whether or not the Minister did is not relevant. It is by no means clear that the issue of the applicant's involvement in the movement of the rights of lower class Hindus was raised in his application to the tribunal, which was the only material he submitted bearing on his claim. It is certainly not expressly raised. But what is clear is that the tribunal did look into what he said. 20 The tribunal (like the Minister's delegate before him) included in its reasons the entire text of the applicant's statement in support of his application. It observed, however, that the mere fact that someone claims to fear persecution for a particular reason does not make out a case for protection. Although it accepted that the applicant did not bear an onus of proof, it said it was up to him to provide as much detail as is necessary to enable the decision-maker to establish the facts. It stated, referring to authority, that there was no obligation on the tribunal to make the applicant's case for him. The tribunal noted that the claims were lacking in essential detail. Specifically, it mentioned that the applicant had said that his name was on a hit list stating he would be killed but there was no information about when that happened or why he could not relocate to another part of India. It said that it invited him to attend a hearing but, as he declined to do so, it was "unable to question him further as to the veracity of his claims, leaving his claims unclarified and the tribunal's questions unanswered". In those circumstances, it was open to the tribunal to reach the conclusion it did; its decision was not affected by jurisdictional error. 21 The applicant also complained in his affidavit that his case fell into Division 4 of Part 7 of the Act but that neither the Minister nor the tribunal took that into consideration. It is difficult to know what to make of this complaint. Division 4 of Part 7 deals with the conduct of the review by the tribunal. It contains an exhaustive statement of the natural justice hearing rule. See s 422B. A failure to afford the applicant natural justice would amount to jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. But no specific complaint is made that any aspect of that rule was breached. The applicant consented to the tribunal deciding the review without appearing before it, which dispenses with the need for the tribunal to comply with s 425 or s 425A. See s 425(2). And there is nothing to indicate any breach of any other relevant provision of this Division. 22 In order to succeed on an appeal from an interlocutory judgment, an applicant is generally obliged to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, if the judgment below were assumed to be wrong, he would suffer substantial injustice if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. There the Full Court recognised that there will be cases raising special considerations and said that "the court should not regard its hands as tied in any case beyond this, that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave". 23 The present case does not raise special considerations. Leave must be refused because on any appeal the applicant would have to show that the federal magistrate had fallen into error (SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]) and the judgment below is not attended by sufficient doubt. In all the circumstances and in the absence of any explanation for the delay in commencing proceedings in this Court, there is no reason why I should dispense with compliance with the requirement in O 52 r 5(2). Accordingly, I refuse the application. The applicant should pay the Minister's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 24 August 2011