FEDERAL COURT OF AUSTRALIA SZOVO v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 781 Citation: SZOVO v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 781 Appeal from: Application for extension of time to appeal: SZOVO v Minister for Immigration & Anor [2012] FMCA 733 Parties: SZOVO v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 616 of 2013 Judge: ROBERTSON J Date of judgment: 8 August 2013 Catchwords: MIGRATION – application for adjournment – application for extension of time to appeal Legislation: Federal Court of Australia Act 1976 (Cth) ss 25(2)(a), 25(2B)(bb)(ii), 25(2BA) Migration Act 1958 (Cth) s 427(1)(d) Federal Court Rules 2011 (Cth) rr 36.03, 36.05 Cases cited Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 Date of hearing: 8 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: Mr HPT Bevan Solicitor for the Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 616 of 2013 BETWEEN: SZOVO Applicant AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 8 August 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an adjournment is refused. 2. The application for an extension of time is dismissed, with costs. 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 616 of 2013 BETWEEN: SZOVO Applicant AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE: 8 August 2013 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 When this application for an extension of time to appeal to this Court was called this morning there was no appearance by the applicant. The circumstances were as follows. 2 I adjourned the hearing for a short while during which several attempts were made to contact the applicant on his mobile phone number and a message was left in the Yoruba language asking the applicant to telephone the Court on a specified number. No contact with the Court by the applicant was made. I note that the interpreter in the Yoruba language remained at the bar table throughout the proceeding in case the applicant did seek to contact the Court and needed the services of an interpreter in that language. 3 The original date for hearing the application had been postponed last month so that the services of an interpreter in the Yoruba language could be obtained. This resulted in the hearing date being postponed by three days until today. Application for an adjournment 4 The applicant wrote to the Registrar on 2 August 2013 seeking an order that he be allowed to appear via a video conference. That application was refused. 5 On 7 August 2013 the applicant, by email and by a letter sought an adjournment "on the grounds that I am physically and by proxy; the pain is affecting my state of mind." In effect the applicant sought an (or another) adjournment on the basis of certain x-rays. 6 In evidence was a document from Liverpool Diagnostics referring to an examination made of the applicant on 31 July 2013 which said as to an x-ray of the applicant's right wrist and as to an x-ray of the applicant's right knee that, in effect, the result was normal. 7 There was also in evidence an email from the Health Liaison Officer of the Villawood Immigration Detention Facility saying that the International Health and Medical Services (IHMS) had advised that as at 5 August 2013 the applicant was fit to attend court in person. 8 Also in evidence was an email dated 7 August 2013 from the Health Liaison Officer of the Villawood Immigration Detention Facility to the effect that IHMS had confirmed that the advice previously provided regarding the applicant's fitness to attend court remained unchanged. 9 There being no medical evidence to support the request for an adjournment I refused the application. Application for dismissal of leave to appeal application for failure to attend the hearing 10 The applicant's application for an adjournment having been refused by me, counsel for the Minister applied for an order that the application for leave to appeal to the Court be dismissed for failure of the applicant to attend a hearing relating to that application. Counsel referred to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), read with s 25(2BA) and s 25(2)(a). 11 I made that order against the following background. 12 The applicant's application for an extension of time was dated 21 March 2013 and filed on 11 April 2013. It was to file and serve a notice of appeal from a judgment of the Federal Circuit Court (as it now is) given on 28 August 2012 and received by the applicant on 29 August 2012. The orders then made were that the application to that Court be dismissed, with costs. 13 The application to the Federal Circuit Court was for judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) as long ago as 11 November 2010. By that decision the Tribunal affirmed a decision of a delegate of the Minister on 22 March 2010 deciding not to grant to the applicant a Protection (Class XA) visa. 14 By r 36.03(a)(i) of the Federal Court Rules 2011 (Cth), a notice of appeal is to be filed and served within 21 days after the date the judgment appealed from was pronounced. In the present case that period expired on 18 September 2012. Under r 36.05, the Court may extend time. 15 As I have said, the applicant's application for an extension of time was filed on 11 April 2013. Thus the period for which the applicant needs an extension of time is over six months. 16 The evidence in support of the application for an extension of time was two affidavits by the applicant dated 22 March 2013 and filed on 11 April 2013. 17 In those affidavits the applicant states, in essence, as follows: (i) he was a litigant in person; (ii) he received the judgment and orders of the Federal Circuit Court on 29 August 2012; (iii) at that time he was without accommodation, his visa did not allow him to secure a job, and he believed it was in the best interest of natural justice and fairness for him to wait for the conclusion of SYG880/2012 before he filed an appeal in the present matter. (It seems that in SYG880/2012 the applicant unsuccessfully applied for an extension and the decision in that matter was given on 22 February 2013. I refer to this more fully below.) The applicant said in his evidence "that the intent to seek extension of time to review the 'No Jurisdiction' decision of the M.R.T. before seeking appeal for the Judgement handed down by His Honour-FM Cameron in SYG2662/2010 [the present matter] is to enable me seek natural justice, procedural fairness and remedy for error of law that was; within the review of 12/5/2010 by R.R.T. Member – Mr Giles Short"; (iv) the applicant referred to affidavits to the Court in December 2010 and on 2 May 2011; (v) the applicant said in his evidence that during this process he made several applications for specific information, personal records the Department used in arriving at its decision and records to show that systematic discrimination was being done against him [sic]. He says that on many occasions he has been stalled and the process was unresponsive causing him to delay filing his application for review and appeal to the Court. 18 The draft notice of appeal from the Federal Circuit Court dated 22 March 2013 stated that it was an application pursuant to s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) for appeal of a decision of the Refugee Review Tribunal in November 2010 and judgment of FM Cameron in SYG2662/2010. 19 There were three proposed grounds of appeal. The first, under the heading "No Proper Consideration" contended that the Tribunal failed to consider whether a law of general application had a discriminatory impact on the applicant. The second, under the heading "Abuse of power" contended that the Tribunal misconstrued the legal meaning of "to investigate", "anxious" and "work-related incapacitation of this applicant", with reference to s 427(1)(d) of the Migration Act. The third, under the heading "Error of Law", contended that the decision of the delegate of the Minister to refuse the application for a visa "on the premise that my country of origin that I feared persecution from could protect me is blatant attempt to distort the credible fears of persecution within this applicant's claims. This goes to procedural unfairness – failure to apply appropriate test …" Reference was made to the decision of the Tribunal at [114] under the heading "Findings and Reasons". Also under the third ground in the draft notice of appeal was a contention that the primary judge did not give consideration "to the impending stance of SYG880/2012 to SYG2662/2012 to stay the proceedings until the conclusion of the SYG880/2012 Extension of Time application." 20 In his written submissions the Minister submitted that the application for an extension of time should be refused because, in the circumstances, the explanation for the delay was inadequate and because the draft notice of appeal was defective in that it was not a notice of appeal within r 36.01(2)(c) of the Federal Court Rules 2011 with the consequence that there was no prospect of success of the substantive appeal. 21 In my opinion there has not been an adequate explanation for the delay on the part of the applicant. The applicant does not suggest that he was not aware of the time within which his notice of appeal had to be filed. The other matters on which he relied were, in my opinion, left at too high a level of generality to constitute, separately or together, an adequate explanation for the delay. 22 Turning to the decision of the Tribunal I note that the applicant was represented before the Tribunal by a person who was a solicitor and registered migration agent of the Refugee Advice & Casework Service (Aust) Inc. Ground 1 23 The Tribunal, at [108], accepted that the applicant was involved with the Eiye cult at Lagos State University. The Tribunal accepted that these cults were essentially criminal gangs. The Tribunal found that the applicant was not merely someone who did what he was told as a member of the cult but that he was trusted to handle the group's finances. The Tribunal accepted that after the applicant's initiation in 2001/2002, he began to speak out against the cult's involvement in violence and that this was also when he became involved with Campus Conscience. The Tribunal accepted that at least from 2003 onwards members of the Eiye cult became suspicious of the applicant's commitment to the cult and he began to receive threats from people in the Eiye cult as well as from other groups such as the Black Axe cult. The Tribunal accepted that in 2004 the applicant had a fight with a member of the Eiye cult who told him that there was a price on his head. The Tribunal accepted that after this the applicant left Lagos and increased his efforts to leave Nigeria. 24 The Tribunal accepted, at [109], that the applicant joined the National Conscience Party (NCP) in 1999 but that in the elections in the same year he campaigned for an Alliance for Democracy (AD) candidate who was elected as governor of Lagos State in 1999. The Tribunal likewise accepted that the applicant campaigned for the NCP candidate in the presidential election in 2003 and that it was also during 2003 that he campaigned for a friend of his who was standing for the NCP in a constituency on the Ojo local government council. The Tribunal accepted that everyone would have known by 2003 if not earlier that the applicant was campaigning for the NCP. 25 The Tribunal said, at [110], that the applicant claimed that he feared that he would be killed or severely beaten by members of the Eiye cult if he returned to Nigeria because he would be seen as an "Oyana" which he said was slang for a traitor or a person who informed on other members of the group or who had not kept the oath or the secrets of the group. In their submission to the Department, the applicant's representatives submitted that the applicant feared being persecuted for reason of his membership of a particular social group for the purposes of the Refugees Convention as an "Oyana". 26 The Tribunal said, at [112], that in the present case it did not accept on the evidence before it that the essential and significant reason for the persecution which the applicant feared at the hands of the members of the Eiye cult was his ideology – his real or imputed political opinion – but the fact that, as he said, they viewed him as an "Oyana". 27 The applicant's representatives argued that the applicant's circumstances were distinguishable from the case considered in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 where the applicant's fear of being persecuted arose out of "a single series of acts …" whereas in the present case the applicant's actions had occurred over a long period of time and it was their ongoing nature that had led to him being considered a member of a particular social group and ultimately threatened for that reason. The applicant's representatives also argued that the applicant had cooperated with others in betraying the leadership of the Eiye cult and in this sense he had formed part of a particular social group or that, because the names of those who had betrayed the group, or who were perceived to be disloyal to the group, had their names recorded in a book, they were a clearly visible group. 28 The Tribunal said at [114] it did not consider that it mattered whether the applicant's fear of being persecuted arose out of a single action or a series of actions, whether those actions were carried out over a short or long period of time or whether the applicant acted alone or with others. What mattered was whether the feared persecution could be said to be for reasons of the applicant's membership of the posited particular social group, "rather than for the reason that the person who feared the persecution had engaged in the activity that was said to define the group". 29 Likewise, the Tribunal said at [115], it did not consider that it would have mattered for this analysis if the names of the persons concerned had been written down in a book as those who had betrayed the criminal gang and who should be targeted by the members of the criminal gang for that reason or if the persons concerned had provided assistance to the police over a period of years. They would still be being persecuted purely on an individual basis, because of what the individual had done, rather than for reasons of their membership of a particular social group for the purposes of the Convention. 30 The Tribunal said at [117] that it did not accept on the basis of the evidence before it that 'Oyanas' – traitors or persons who had informed on other members of one of the student cults in Nigeria or who had not kept the oaths or the secrets of such cults – had achieved such notoriety in Nigeria that it could be said that they feared being persecuted for reasons of their membership of that particular social group rather than for reasons of their individual actions. The Tribunal said at [118] that it did not accept on the evidence before it that the essential and significant reason for the persecution which the applicant feared at the hands of the members of the Eiye cult was his membership of a particular social group in Nigeria as an 'Oyana' or his real or imputed political opinion. The Tribunal found that the essential and significant reason for the persecution which the applicant feared at the hands of the members of the Eiye cult was his actions in providing information, for example, to Campus Conscience and that it was his actions which had led to him being singled out as a traitor or a person who had not kept the oath and the secrets of the Eiye cult. 31 The Tribunal said, at [120], that whether any threat which the applicant may face from the members of the Black Axe cult or any other cult arose from the fact that the Eiye cult had contracted with those other cults to harm the applicant or kill him, or whether, as the applicant said, the members of the Black Axe cult may wish to harm him so that people in their cult did not find out that he was informed about the planned attack on him, the Tribunal considered that the problem remained that the relevant connection with one or more of the five Convention reasons was lacking. The Tribunal did not accept on the evidence before it that one or more of the five Convention reasons was the essential and significant reason for the persecution which the applicant claimed to fear from members of the Eiye cult, the Black Axe cult or any other cult. 32 For completeness, the Tribunal said, at [121], it had considered whether there was a systematic discriminatory failure on the part of the Government of Nigeria to protect people like the applicant from the criminal acts of the members of the Eiye cult or the Black Axe cult or any other cult for one or more of the Convention reasons. In that context it was not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure was due to a shortage of resources: what was required was State toleration or condonation of the persecution in question and systematic discriminatory implementation of the law. The Tribunal did not accept on the evidence before it that that was a systematic discriminatory failure on the part of the Government of Nigeria to protect people like the applicant for one or more of the five Convention reasons. 33 The Tribunal said, at [122], that it did not accept on the evidence that there was a real chance that the applicant would be persecuted by the Nigerian Government for reasons of his past association with the Eiye cult if he returned to Nigeria now or in the reasonably foreseeable future. 34 The Tribunal accepted that if the applicant returned to Nigeria now or in the reasonably foreseeable future he would no doubt wish to continue his involvement in politics in the same way as he had before coming to Australia in February 2005. However the information available to the Tribunal suggested that there was a very active and a vigorous political opposition in Nigeria. The Tribunal did not accept that the applicant's political opinion in support of the NCP was the essential and significant reason for the persecution which he feared from the members of the Eiye cult. The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion if he returned to Nigeria now or in the reasonably foreseeable future. 35 I see no basis in this fact-finding and reasoning for a contention to succeed that the Tribunal failed to consider whether a law of general application had a discriminatory impact on the applicant. There is nothing arguable in this ground. I add that it is not at all clear that this ground was raised by the applicant before the Federal Circuit Court although a large number of other grounds were so raised. Ground 2 36 I take this ground to be directed to the unsuccessful application for the hearing on 12 May 2010 to be adjourned, by one day. 37 I see no basis for the contention that the Tribunal misconstrued the legal meaning of "to investigate", "anxious" and "work-related incapacitation of this applicant", with reference to s 427(1)(d) of the Migration Act or otherwise. In so saying I am assuming in favour of the applicant that those words or expressions relevantly had a legal meaning. Section 427(1)(d) provides, so far as relevant, that the Tribunal may require the Secretary to arrange for the making of any medical examination that the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that examination. 38 More generally, the Tribunal said [35] that it had refused an application made by letter dated 10 May 2010 asking that the hearing scheduled for 12 May 2010 be postponed for one day as the applicant was suffering considerable anxiety in relation to the hearing. Reference was made by the applicant's representatives to a report dated 4 December 2009 by a psychologist at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and from a counsellor at the Transcultural Mental Health Centre. The Tribunal indicated that the member did not consider that there was anything in the letter from the applicant's counsellor which would provide a basis for postponing the hearing for one day. 39 The hearing proceeded on 12 May 2010. It appears that the Tribunal said that if at any time the applicant felt he needed a break he should say so. After a hearing of some length the applicant said that he wished the hearing to be adjourned to another day. This application was acceded to and the hearing resumed on 17 May 2010. 40 At [103] and [104], the Tribunal referred to the letter from STARTTS and said that on its face it was prepared for the purpose of assessing the applicant's ability to engage in paid employment and his need for financial assistance. The Tribunal said that there was no obligation on the Tribunal to consider the report for any reason other than its role in assessing whether the applicant had the capacity to participate in the Tribunal hearing. 41 At [105], the Tribunal said it had rejected the request for the hearing to be postponed for one day because the member did not consider that there was anything in the letter from the counsellor dated 10 May 2010 which would provide a basis for so postponing the hearing. 42 At [107] the Tribunal referred to the psychologist at STARTTS saying that the symptoms the applicant reported and displayed included difficulty with concentration and memory and that the applicant reported that his concentration was down, his short-term memory was down but his long-term memory was normal. The Tribunal said that neither the psychologist at STARTTS or the counsellor or the psychiatrist expressed any opinion about the applicant's capacity to participate effectively in a hearing before the Tribunal. The Tribunal member said he had taken into account the opinions of the psychologist, the counsellor and the psychiatrist in making his assessments of the applicant's credibility. The Tribunal concluded that the applicant demonstrated that he understood the issues in the review and he was able to address the matters the Tribunal raised with him. The Tribunal considered that the applicant was able to participate effectively in the hearing before the Tribunal. 43 The primary judge considered this issue at [11] and then at [33] and following. At [44], the primary judge said that the applicant had not adduced any evidence in the proceedings before his Honour to demonstrate that, at the Tribunal hearing, his health was sufficiently poor that his ability to give evidence and present arguments was materially compromised. The primary judge said that he had read the transcript of the Tribunal hearing and had listened to the sound recording of both sessions of the Tribunal hearing, with particular reference to the time-related points in that recording which the applicant referred to in his submissions. Neither the transcript nor the sound recording supported the assertion that the Tribunal ignored the applicant's health. At page 3 of the transcript of the first session the applicant was recorded as having told the Tribunal that although he was not feeling very good he could "cope with it". The primary judge also said that the sound recording did not support the assertion that the Tribunal intimidated the applicant or the related implied assertion that the Tribunal conduct itself in an intimidating manner. The sound recording showed that the applicant was articulate in his responses, generally confident in his delivery and sometimes quite forceful. As to the reasons given by the Tribunal, the primary judge noted that although the Tribunal did not express its reasons for refusing the adjournment at the time the adjournment was refused, those reasons were included in the Tribunal's final decision. 44 In my view there is nothing arguable in this ground. Ground 3 45 The first part of this ground, contending that the decision of the delegate of the Minister to refuse the application for a visa "on the premise that my country of origin that I feared persecution from could protect me is blatant attempt to distort the credible fears of persecution within this applicant's claims. This goes to procedural unfairness – failure to apply appropriate test …", does not constitute a ground of appeal from the Federal Circuit Court. That Court was not reviewing the decision of the delegate but of the Tribunal. 46 Reference is made to the decision of the Tribunal under the heading "Findings and Reasons". There is no arguable ground raised by this part of the draft Notice of Appeal. It either relates to matters of mere fact or covers the same or similar contentions as Ground 1. On either basis there is nothing arguable raised by the draft Notice of Appeal. 47 Also under the third ground in the draft notice of appeal is a contention that the primary judge did not give consideration "to the impending stance of SYG880/2012 to SYG2662/2012 to stay the proceedings until the conclusion of the SYG880/2012 Extension of Time application." There is nothing arguable in this ground. I add that it is not at all clear that this ground was raised by the applicant before the Federal Circuit Court although a large number of other grounds were so raised. 48 In case it is of relevance, my understanding of the SYG880/2012 proceedings is that a delegate refused to grant the applicant a Student (Temporary) (Class TU) visa on 23 March 2009 and notified the applicant of the decision by letter dated 23 March 2009, posted on 24 March 2009. The applicant applied to the Migration Review Tribunal (MRT) on 26 April 2009, outside the prescribed 21 day period. The MRT decided on 18 June 2009 that the prescribed period had expired and that therefore it did not have jurisdiction. The applicant was notified of this decision by letter dated 19 June 2009. Nearly three years later, on 20 April 2012, the applicant filed an application in the Federal Circuit Court (as it now is) seeking an extension of time to apply to that Court. On 22 February 2013 that application was dismissed with costs. I see nothing in these events to support an extension of time in the present case. Indeed the applicant would have known from his experience with his out of time application to the MRT and, as well, from his need for an extension of time for his application to the Federal Circuit Court to review the decision of the Migration Review Tribunal that prescribed time limits either could not be or would not lightly be extended, particularly for a long period. Conclusion 49 It was against this background that I ordered that the application for leave to appeal be dismissed for failure of the applicant to attend a hearing relating to the application. The applicant has not provided an acceptable explanation for his delay in filing a notice of appeal from the judgment of the Federal Circuit Court and the substantive application as delineated in the draft notice of appeal raised no arguable ground of appeal. In those circumstances the time limit in r 36.03 of the Federal Court Rules did not operate so as to cause injustice and it was not necessary to grant the extension of time to do justice. 50 The application for an extension of time is dismissed, with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 8 August 2013