FEDERAL COURT OF AUSTRALIA SZTMA v Minister for Immigration and Border Protection [2014] FCA 925 Citation: SZTMA v Minister for Immigration and Border Protection [2014] FCA 925 Appeal from: Application for extension of time and leave to appeal: SZTMA v Minister for Immigration and Border Protection [2014] FCCA 504 Parties: SZTMA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 602 of 2014 Judge: NICHOLAS J Date of judgment: 21 August 2014 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Migration Act 1958 (Cth) ss 36(3)-(5A), 417 Treaty of Peace and Friendship between the Government of India and the Government of Nepal 1950 Date of hearing: 21 August 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Stone of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 602 of 2014 BETWEEN: SZTMA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 21 AUGUST 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal is dismissed. 2. 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 602 of 2014 BETWEEN: SZTMA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 21 AUGUST 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from Transcript) 1 This is an application for an extension of time to seek leave to appeal from an interlocutory order of the Federal Circuit Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The primary judge's judgment was given on 14 March 2014 but the application for leave to appeal was not filed until 17 June 2014. 2 The primary judge's order the subject of the present application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) which provides that the Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. 3 There is an affidavit and a written submission from the applicant which attributes the applicant's delay in filing his application for leave to appeal against the primary judge's judgment to financial hardship, illness and the existence of a request directed to the first respondent for the substitution of a different decision under s 417 of the Migration Act 1958 (Cth) (the Act). 4 The applicant is a citizen of Nepal who arrived in Australia on 26 April 2009 as the holder of a student visa. He applied for a protection visa on 30 May 2012 which was refused by a delegate of the first respondent on 3 October 2012. By its decision made on 8 October 2013, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa. 5 Before the Tribunal the applicant claimed that he would suffer harm from members of a Maoist organisation if he returned to Nepal. The delegate did not accept this claim, but the Tribunal approached the applicant's case somewhat differently. 6 Central to the Tribunal's reasons for its decision are s 36(3) to (5A) of Act which provide: (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that: (a) the country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion. (5A) Also, subsection (3) does not apply in relation to a country if: (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. 7 The Tribunal found that the applicant had a right to enter and reside in India under the provisions of the 1950 Treaty of Peace and Friendship made between India and Nepal. In reaching this conclusion, the Tribunal had regard to the fact that the applicant had resided in India for two years or thereabouts in around 2007. The Tribunal also found that the applicant did not have a well-founded fear of Convention-related persecution in India, or that there were substantial grounds for believing that, as a necessary or foreseeable consequence of him exercising his right to enter and reside in India, there would be a real risk that he would suffer significant harm. The Tribunal also indicated in its reasons that it was not satisfied that the applicant had any well-founded fear that India would return him to Nepal. In this regard, it observed that the applicant did not identify any grounds that would cause him to fear being returned from India to Nepal. The Tribunal also found that the applicant had not taken all possible steps to avail himself of his right to enter and reside in India. In the result, and by reason of the application of section 36(3) to (5A) of the Act, the Tribunal was not satisfied that the applicant satisfied the criteria in section 36(2) governing the grant of protection visas. Given these findings, the Tribunal did not consider it necessary to decide whether the applicant would suffer harm if he were to return to Nepal. 8 Various grounds of review were considered and rejected by the primary judge as not seriously arguable. The grounds relied upon by the applicant fell into three categories. First, it was said that the Tribunal failed to consider whether the applicant would suffer harm if he was required to return to Nepal. The primary judge rejected this ground as not seriously arguable on the basis that the Tribunal only needed to decide that the applicant could enter and reside in India without fear of harm, that he would not be returned from India to Nepal, and that he had not taken all possible steps to avail himself of his right to enter and reside in India. The primary judge found in the circumstances that there was no obligation on the Tribunal to consider further the applicant's claimed fear of harm in Nepal. Secondly, it was suggested that the Tribunal denied the applicant procedural fairness in that it gave insufficient weight to the oral evidence given by the applicant at the hearing. This ground was also rejected by the primary judge as not seriously arguable. Plainly, what weight should be given to the applicant's oral evidence was a matter for the Tribunal. Thirdly, it was contended that the Tribunal prejudged the application for review and that it was biased against the applicant. This ground was also rejected as not arguable because it was not supported by any evidence. 9 Various grounds of appeal upon which the applicant seeks to rely if granted leave to appeal are set out in both the draft notice of appeal attached to the applicant's leave to appeal application and in the outline of submissions filed by the applicant on 14 August 2014. In substance, the grounds of appeal relied upon include the same allegations of prejudgment and bias that were relied upon before the primary judge and also assert that the Tribunal failed to give genuine consideration to the applicant's claim that he would suffer persecution if he was required to return to Nepal. It is also contended in the proposed grounds of appeal that the Tribunal ignored the evidence given by the applicant of Maoist atrocities in Nepal. It is thus contended that the Tribunal failed to consider relevant material, and thereby committed jurisdictional error. 10 In my view none of these proposed grounds of appeal has any prospect of success. It was open to the Tribunal to affirm the delegate's decision on the basis that the applicant was free to enter and reside in India in circumstances where it was also satisfied that the applicant could do so without fear of Convention-related persecution in that country, without fear of being returned from India to Nepal, and in circumstances where the Tribunal was satisfied that the applicant had not taken all possible steps to enter and reside in India. As to the allegations of bias and prejudgment, there is no substance to the proposed grounds of appeal which seek to raise these matters. As the primary judge noted, there was no evidence to support the allegations of bias or prejudgment. 11 In his oral submissions on this application, the applicant also suggested that there are difficulties with him returning to India and residing there. This submission related to questions of fact that were a matter for, and were considered by, the Tribunal. It does not appear to me that any proposed ground of appeal reflecting that complaint would have any prospects of success. 12 I am satisfied that the applicant's proposed appeal has no prospect of success. His application for an extension of time and leave to appeal will be refused on that basis. The applicant must pay the first respondent's costs of his application. 13 Orders accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 26 August 2014