FEDERAL COURT OF AUSTRALIA SZQOC v Minister for Immigration and Citizenship [2012] FCA 810 Citation: SZQOC v Minister for Immigration and Citizenship [2012] FCA 810 Parties: SZQOC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 428 of 2012 Judge: GREENWOOD J Date of judgment: 7 August 2012 Catchwords: MIGRATION – consideration of an application to extend time for the filing of a Notice of Appeal Legislation: Migration Act 1958 (Cth) Cases cited: SZQOC v Minister for Immigration & Anor [2012] FMCA 69 Date of hearing: 1 August 2012 Date of last submissions: 1 August 2012 Place: Brisbane via video-link to Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Applicant appeared in person Solicitor for the Respondents: Ms A Crittenden, Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 428 of 2012 BETWEEN: SZQOC Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 7 AUGUST 2012 WHERE MADE: BRISBANE VIA VIDEO-LINK TO SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time filed on 16 March 2012 is dismissed. 2. The applicant pay the costs of the first respondent of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 428 of 2012 BETWEEN: SZQOC Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE: 7 AUGUST 2012 PLACE: BRISBANE VIA VIDEO-LINK TO SYDNEY REASONS FOR JUDGMENT 1 These proceedings concern an application under Rule 36.05 of the Federal Court Rules 2011 for an extension of time to appeal from orders made by the Federal Magistrates Court of Australia on 8 February 2012 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal (the "Tribunal") which had affirmed a decision of the Minister for Immigration and Citizenship (the "Minister"), by his delegate, to refuse the applicant a Protection (Class XA) Visa under the provisions of the Migration Act 1958 (Cth) (the "Migration Act"). 2 The application was filed on 16 March 2012 and is supported by an affidavit of the applicant also filed on that day. 3 An extension of time to appeal from the primary decision is required because the applicant failed to file an appeal within the 21 day period required under Rule 36.03 of the Federal Court Rules. 4 The applicant appeared in person before Federal Magistrate Driver to argue the merits of the grounds of review relied upon before that Court. The applicant was assisted by an interpreter. The applicant has some, but very little, understanding of the English language. At the conclusion of the proceedings, Federal Magistrate Driver delivered ex tempore reasons for judgment in support of the orders made that day dismissing the application and ordering the applicant to pay the first respondent's costs of and incidental to the application in an amount of $4,080.00. The ex tempore reasons were revised by Federal Magistrate Driver from the transcript of the proceedings and, according to the applicant's affidavit, a copy of the orders and reasons for judgment was sent to him by the Federal Magistrates Court enclosed in a letter. The applicant says that he received that letter on 1 March 2012. 5 The applicant appeared before the Federal Court in person assisted by an interpreter. The applicant has also been assisted in the preparation of written submissions handed to the Court on the morning of the hearing. The applicant relies upon the written submissions and in response to questions from the Court simply made short further statements about questions in relation to the passport issue which are described later in these reasons. On the question of delay, the written submissions repeat the matters referred to in the applicant's affidavit. Although the facts relevant to that question are not put, expressly in terms of the inference I am willing to draw, I nevertheless infer from the applicant's affidavit that his explanation for failing to file a Notice of Appeal within time is that he did not understand or appreciate that the orders pronounced on 8 February 2012 supported by the ex tempore reasons constituted a determination of the proceedings. Thus, the applicant fell into error in failing to file a Notice of Appeal within the 21 day period. The applicant contends that he will be deprived of an opportunity to institute and prosecute a meritorious appeal if an extension of time is not granted. The applicant contends that there are good grounds for believing that the Tribunal fell into jurisdictional error in purporting to discharge its statutory review function under the Migration Act. 6 The applicant filed the application for an extension of time 16 days after the expiration of the 21 day period provided under Rule 36.03 for the filing of a Notice of Appeal. 7 The Minister contends that the applicant has failed to adequately explain in the supporting affidavit the circumstances which caused him to fail to file a Notice of Appeal within time. For present purposes, it seems to me that the application ought to be approached on the footing that since the applicant who is a citizen of Bangladesh appeared in person before the Federal Magistrates Court assisted by an interpreter and final orders were made at the conclusion of the proceedings with ex tempore reasons being given that day, it may well be that the applicant failed to appreciate or properly understand that orders pronounced that day had the effect of determining the application before the primary Court in a final dispositive way. 8 Accordingly, the real question to be determined on the application is whether the applicant has demonstrated, or the material before the Federal Court properly understood, demonstrates an arguable ground of appeal. 9 The background contextual matters are these. 10 The applicant is a citizen of Bangladesh who arrived in Australia on 13 November 2010. On 24 December 2010, the applicant applied for a Protection Visa under the provisions of the Migration Act. The Minister's delegate on 4 March 2011 refused that application. On 28 March 2011, the applicant filed an application for review of that decision on the merits and after the procedural steps described in the Tribunal's decision, the Tribunal affirmed the delegate's decision on 22 July 2011. 11 The Tribunal in its decision comprehensively examines the facts, circumstances and documents put to it by the applicant in support of the applicant's contention that he holds a well-founded fear of persecution for reasons of his political beliefs should he return to Bangladesh. 12 The essential factual contentions before the Tribunal were these. 13 In 2003 the applicant commenced a career as a cook in a local restaurant at Beani Bazar in Sylhet in Bangladesh and worked at that restaurant for approximately four years thereafter. During that period he became involved in labour union politics associated with the Bangladesh Jatiotabadi Shramik Daal ("BJSD"), described as a "wing" of the Bangladesh Nationalist Party ("BNP"). Through the restaurant the applicant met influential people and in 2007 he was elected as Treasurer of the BJSD. He was involved in campaign activities of the BJSD leading up to the election in December 2008. In undertaking these activities he came to the attention of Mr Abdul Mutalib, the leader of the Awami Shramik League which is a "wing" of the Awami League in much the same way that the BJSD is part of the BNP. Before the 2008 election, Mr Mutalib told the applicant to abandon politics. The Awami League won a landslide electoral victory in Bangladesh including in the seat in which the applicant had been undertaking political activities to support the BNP. The applicant contended that since the Awami League came to power, Mr Mutalib has threatened to harm him in various ways including threats upon the applicant's life, as ordered by Mr Mutalib. The applicant claims to hold a well-founded fear of serious harm by reason of his political activities and beliefs, consequent upon the outcome of the December 2008 election. He also claims that false criminal charges were threatened against him shortly before the election and that they were raised against him again in his home town just after his return to his home town in October 2010. As to these movements, the applicant contended that in April 2009 he went to Dubai in the United Arab Emirates ("UAE") having been fearful of the Awami League. In October 2010, he went back to Bangladesh to visit his sick mother. That visit gave rise to the false charges pressed against him. He contended that he escaped from Bangladesh and went to the UAE again and from there to Australia on 13 November 2010. 14 All of these contentions and documents relevant to the contentions were examined comprehensively by the Tribunal. The assessment of the material is set out particularly from [136] to [169] of the Tribunal's reasons. At [170], the Tribunal sets out a series of findings based upon its analysis of what it described as "serious inconsistencies" in the evidence presented by the applicant. At [170], the Tribunal said that it did not accept the following matters, among other matters, set out at that paragraph: ● That in 2007 the applicant was elected [Treasurer] of the [BJSD] … ● That the applicant was the Finance Secretary or any type of leader of the BJSD or the BNP at any time ● That a few months before the 2008 election the applicant was assaulted by Awami League supporters ● That before the 2008 election … Mr Abdul Mutalib … told him to quit politics and threatened to have him killed because he was recruiting people to the BNP … ● After the Awami League came [to] power in December 2008 Mr Mutalib wanted to harm the applicant in various ways, or kill him ● That the applicant was scared for his life when the Awami League came to power in December 2008 ● That in April 2009, he [went] to Dubai, UAE in order to escape Awami League threats of harm ● That Mr Mutalib knew that he was in Bangladesh on 26 October 2010 and the next day, 27 October 2010, influenced the local police authorities to insert [the applicant's] name falsely in a robbery case charge, in regards an event that occurred either at 11.30pm on 27 October, or at 1am on 28 October 2010 ● That the applicant was in hiding from Mr Mutalib while in Bangladesh from 26 October to 7 November 2010 ● That if he returns to Bangladesh the Awami League would put his name in national newspapers and he would be known everywhere, and he would be harmed or killed 15 The Tribunal concluded that it could not be satisfied that any criminal charges that the applicant faces in Bangladesh have been falsely made as political retribution. The Tribunal accepted the documentary evidence of the charges at face value but observed that the criminal laws engaged by the chargers are laws of general application and do not ordinarily constitute persecution for the purposes of the Refugees Convention (as amended by the 1967 Protocol). 16 Having regard to those findings of fact based on the analysis of the series inconsistencies arising out of an examination of the applicant's oral evidence and the documentary evidence, the Tribunal concluded that it could not be satisfied that the applicant faced a real chance of serious harm either now or in the reasonably foreseeable future in relation to any of his political activities undertaken in Bangladesh and thus the Tribunal could not be satisfied that the applicant held a well-founded fear of persecution within the meaning of the Refugees Convention as adopted by the Migration Act. 17 The applicant sought judicial review before the Federal Magistrates Court of Australia and relied upon five grounds of review. 18 In the present application the applicant contends that Federal Magistrate Driver fell into error by failing to find jurisdictional error on the part of the Tribunal. In his affidavit in support of the application the applicant says that the Federal Magistrate erred in law by not finding that the Tribunal fell into jurisdictional error "in deciding the claim" (para 9); by not finding that the Tribunal fell into jurisdictional error in "not providing proper reasons" (para 10); by not finding that the Tribunal fell into jurisdictional error "in deciding [the] fate of the application" (para 11). 19 In the draft Notice of Appeal attached to the applicant's affidavit the applicant also says that the Tribunal fell into jurisdictional error "in relation to the applicant's real fear of persecution" and that jurisdictional error arose "in relation to [the] dispute surrounding [the] appellant's passport" (grounds 2 and 3). 20 In his written submissions the applicant elaborates upon the "proper reasons" ground at para 10 of his affidavit by para 10 of the submissions. The applicant says that the Tribunal accepted that he had been involved in the activities of the BNP and that the documentary evidence of the criminal charges (robbery) had been accepted at face value. The applicant says that "[i]t is [a] well known fact that police administration was influenced by the ruling political leaders in Bangladesh". In the proceedings before the Federal Magistrates Court, the applicant complained that the Tribunal had failed to investigate or verify the applicant's claims. Paragraph 10 of the written submissions seems to suggest that the Tribunal ought to have investigated whether the charges which it treated as genuine on the face of the documents were charges which were motivated by political influence in the administration of police investigation or the bringing of the charges. The Tribunal however was under no obligation to investigate that matter. The Tribunal accepted that the charges had been brought and determined the contentions of the applicant on the basis of the findings of credibility arising out of the extensive examination of the evidence. 21 As to the "proper grounds" contention, there is no doubt that the Tribunal provided extensive reasons consistent with its obligation under s 430(1) of the Migration Act. 22 At para 11 of the submissions the applicant says that the Tribunal made errors "in term[s] of wrong findings" particularly regarding the passport issue. As to the passport issue, the Tribunal expressed concern that the applicant was issued with a passport in July 2008 at a time before the applicant claimed to hold any fear of serious harm. The Tribunal put to the applicant that the passport may have been obtained in order to enable him to work in Dubai from about that time. The Tribunal put to the applicant that it found it difficult to believe that a person would apply for a passport for no particular reason and noted that the applicant had told the Tribunal that he "just applied for the passport". The Tribunal noted that the applicant denied having a fear of harm in July 2008 and had not given a plausible reason for obtaining a passport at that time. The Tribunal also noted that while the applicant said that a person "sometimes needs a passport in Bangladesh", the applicant was not able to give any details of examples of why he needed a passport at that moment in time. The Tribunal observed that the applicant's responses seemed an improvised response to an inconsistency in the applicant's claims. 23 At para 11 of his submissions, the applicant says that in Bangladesh the issuing of a passport to a Bangladeshi is simply a function of a person's entitlement to obtain or renew a passport and that reliance upon the issue of the passport as facts relevant to the question of whether an inconsistency arose or whether the applicant held a well-founded fear of persecution as asserted, was a misplaced or illogical method of assessing the merits of the applicant's claims. The applicant notes the observation of Federal Magistrate Driver at [18] of the reasons (SZQOC v Minister for Immigration & Anor [2012] FMCA 69) to this effect: The Tribunal's reasoning appears to have been that the applicant's asserted fear of harm followed his application for a passport, and the act of seeking a passport prior to experiencing any serious harm negatively affected his credibility. The logic of that analysis may be contestable. [emphasis added] 24 Federal Magistrate Driver observed that it appeared probable that the applicant had obtained a passport simply for the purpose of working overseas in Dubai and that step, of itself, did not exclude the possibility that the applicant had experienced harm "including in his absence when he was in Dubai". Federal Magistrate Driver observed that even if the reasoning in relation to the passport issue represented illogicality of reasoning, mere illogicality does not amount to jurisdictional error. 25 The more fundamental matter however is that the Tribunal made a series of extensive adverse credibility findings arising out of a series of inconsistencies which led to the factual conclusions at [170] of the reasons many of which have been set out at [14] in these reasons. Although the applicant places considerable emphasis on the treatment of the passport issue and describes the conclusions in relation to the passport matter as the basis for the rejection of his application for a Protection Visa, the Tribunal's observations about the passport was merely one factor in the decision and clearly not the basis of the decision. The Tribunal was entitled to take into account in the matrix of fact the consideration that a passport was issued to the applicant at a moment in time prior to the time when he contended he began to hold a fear of harm which, in turn, conditions his current belief of a well-founded fear of persecution should he return. Moreover, the Tribunal was entitled to ask the applicant questions about the reasons for his having applied for a passport and obtaining it in July 2008 and weigh in the mix the answers given by the applicant. The Tribunal considered the explanation given and questioned whether the explanation was plausible. The explanation was that he had just decided to apply for the passport and he could not give "any details or examples of why he needed a passport at that time". In any event, the foundation for the decision of the Tribunal is the sequence of findings of fact based on a rejection of the applicant's evidence by reason of the inconsistencies in that evidence on many fronts. 26 The grounds of appeal recited at paras 9 and 11 of the applicant's affidavit and at ground 2 of the draft Notice of Appeal (ground 3 being directed to the passport issue) simply contest the decision of the Tribunal on the merits in entirely general terms. There is no content to those grounds. However, a consideration of the reasons of the Tribunal shows that each of the contentions reflected in the material put to the delegate and in the evidence put to the Tribunal is recorded and addressed. Findings are then made based on the consideration of the material going to those matters. 27 The conclusions reached by the Tribunal were open to it and none of the grounds identified by the applicant demonstrate an arguable basis for demonstrating that the findings were not open to the Tribunal. 28 It follows that no arguable ground of appeal is identified and thus there is no utility in granting an extension of time for the filing of a Notice of Appeal based upon the draft Notice of Appeal or other grounds which might be incorporated into a final Notice of Appeal based upon the contentions reflected in the applicant's affidavit at paras 9, 10 and 11. 29 Accordingly, the application for an extension of time is to be dismissed with an order for costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 7 August 2012