FEDERAL COURT OF AUSTRALIA SZVYB v Minister for Immigration and Border Protection [2017] FCA 256 Appeal from: Application for extension of time and leave to appeal: SZVYB v Minister for Immigration and Border Protection [2016] FCCA 2179 File number: NSD 1641 of 2016 Judge: YATES J Date of judgment: 21 March 2017 Catchwords: MIGRATION – application for protection visa – application for extension of time and for leave to appeal – whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review Legislation: Migration Act 1958 (Cth) s 36(2)(a), 36(2)(aa) Federal Court Rules 2011 (Cth) r 35.13(3)(a) Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Date of hearing: 1 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Maddocks of DLA Piper ORDERS NSD 1641 of 2016 BETWEEN: SZVYB Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: YATES J DATE OF ORDER: 21 MARCH 2017 THE COURT ORDERS THAT: 1. The applicant's Application for Extension of Time and Leave to Appeal filed on 26 September 2016 be 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. REASONS FOR JUDGMENT YATES J: INTRODUCTION 1 The applicant applies for an extension of time within which to seek leave to appeal and for leave to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court), which dismissed the applicant's application for judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal's decision was to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Protection (Class XA) visa (a protection visa). The operative date of the Federal Circuit Court's judgment is 26 August 2016. 2 As the Federal Circuit Court's judgment was interlocutory in nature, leave to appeal to this Court is required. An application for leave to appeal must be brought within 14 days of the judgment being pronounced: r 35.13(a) Federal Court Rules 2011 (Cth). In this case, the application for leave to appeal should have been filed by no later than 9 September 2016. Unfortunately, because of incorrect information provided to the applicant, his application for leave to appeal was filed 17 days out of time on 26 September 2016. This is the reason why an extension of time is sought. 3 The Minister accepts that the applicant's explanation for his delay in filing the application for leave to appeal is reasonable and that the Minister will suffer no prejudice should an extension of time and leave to appeal be granted. The Minister submits, however, that the present application should be refused because the applicant's proposed appeal lacks merit. 4 The applicant appeared at the hearing of the present application with the assistance of an interpreter. The applicant's claims 5 Without descending to matters of detail, the applicant claims to be a citizen of Lebanon who has a well-founded fear of persecution for a Convention reason should he be returned to Lebanon. He contends that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Migration Act). 6 The applicant was born into a Christian Maronite family. His claims for protection are based on events following an incident on 30 August 2013 near a village where he lived, in which a cross was desecrated by (the applicant says) Muslims. The applicant says that, following the incident, "bearded men" came to his village on a number of occasions over three or four months seeking his whereabouts because he was thought to be the person who had informed the Mayor of his village about the acts of desecration. The applicant says that, as he did not feel safe in the village, he departed to another location in Lebanon. He subsequently left Lebanon and arrived in Australia on 10 January 2014. His application for a protection visa was made on or about 30 January 2014. The Tribunal 7 The Tribunal found the applicant to be, generally speaking, an unreliable witness. The Tribunal provided cogent reasons for coming to that view, including (what the Tribunal found to be) numerous inconsistencies between, on the one hand, evidence given by the applicant to the Minister's delegate or information provided in his visa application and, on the other hand, the evidence given by the applicant to the Tribunal. Furthermore, the Tribunal noted that the applicant's account was not assisted by exaggeration and generalised responses and explanations. The Tribunal was prepared to accept, in some cases with expressed hesitation, certain facts advanced by the applicant. However, it did not accept the existence of other facts advanced by the applicant, some of which the Tribunal found to be far-fetched. 8 In the event, the Tribunal was not satisfied that the applicant faced a real chance of persecution, or faced a real risk of significant harm, by reason of, or arising from, his religion: s 36(2)(a). Similarly, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant harm: s 36(2)(aa). The Tribunal also noted that there was no suggestion that the applicant satisfied s 36(2) of the Migration Act on the basis of being a member of the same family unit as a person (holding a protection visa) who satisfied s 36(2)(a) or (aa). The Tribunal therefore affirmed the delegate's decision not to grant the applicant a protection visa. The Federal Circuit Court 9 Before the Federal Circuit Court, the applicant raised two grounds, stated as follows: 1. The Member of the Tribunal failed to accept my fear of persecution at the hand of the intruders as a lack of persuasive explanation. 2. The Tribunal failed to accept my real risk because he failed to accept and understand the incident and the harm at the hand of the Muslims. 10 On 10 March 2015, the Federal Circuit Court ordered that the applicant's application be dealt with on a show cause basis. 11 In his reasons for judgment, the primary judge noted certain findings of fact made by the Tribunal, including its finding that, generally speaking, the applicant was an unreliable witness. No doubt relying on McHugh J's observations in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [67], the primary judge said that it was entirely proper for the Tribunal to make credibility findings as the Tribunal was "par excellence" best placed to make those findings. His Honour observed that it was open to the Tribunal to accept certain aspects of the applicant's evidence yet reject other aspects of his evidence: see at [13]. 12 I do not think that, in making these remarks, the primary judge misled himself into thinking that the Tribunal's adverse findings on credibility were not amenable to judicial review on the ground of jurisdictional error: see the observations of the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]. I say this having regard to other observations made by his Honour in the reasons for judgment as well as his Honour's analysis of the evidence before the Tribunal. I also note his Honour's treatment of the nature of jurisdictional error and his express direction, based on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [151], that courts exercising jurisdiction under the Migration Act need to give proper attention to the merits of the application under consideration. 13 No doubt with these matters in mind, the primary judge concluded that the first ground of review was not arguable and could not be made out: see at [41] and [18]-[20]. At [20], his Honour concluded that the facts, as the Tribunal found them to be, were entirely open on the evidence and that the Tribunal's basis for the rejection of the applicant's assertions concerning fear was "very well-considered". Having regard to my own consideration of the Tribunal's reasons, I can see no error in that conclusion. 14 The primary judge reasoned that the second ground of review invited a reagitation of the factual information that underpinned the Tribunal's conclusion that the applicant did not meet the criterion that there was a real risk of significant harm. The primary judge was, with respect, correct to so conclude. The Tribunal's reasons reveal a careful consideration of the events concerning the "incident" and of the applicant's claim that he would suffer "harm at the hand of the Muslims". The Tribunal rejected the existence of such harm based on findings that were open to it on the basis of the matters discussed and analysed in its decision record. The proposed grounds of appeal 15 The applicant's draft notice of appeal contains two grounds, expressed as follows: 1. I appeared before His Honour Judge Wilson and His Honour Judge Manousaridis gave me an Order on 26 August 2016 that my application has been dismissed. 2. As I have not received the judgment now I reserve my right to lodge particulars when I receive the judgment. 16 As I pointed out to the applicant in the course of the hearing, these grounds simply state matters of fact and an expression of intention. They do not identify error in the judgment below. I endeavoured to explain to the applicant the need for him to point to what he regarded to be errors by the Federal Circuit Court and invited him to address me on that matter. 17 In response, the applicant read from a prepared statement which was translated by the interpreter. The applicant canvassed his reason for not filing his application for leave to appeal within time. He then turned to factual matters saying that his life was in danger from Muslims and that he did not understand why the Federal Circuit Court did not understand that he faced a real risk of harm. 18 It was apparent that, in making these submissions, the applicant was seeking to agitate the correctness, as a matter of fact, of the findings made by the Tribunal, which the Federal Circuit Court had accepted, and to call into question why the Federal Circuit Court did not interfere with those findings. In doing so, the applicant did not, in substance, identify any ground of jurisdictional error on the part of the Tribunal or any error in the Federal Circuit Court's reasoning or conclusions. 19 The applicant did contend that the "decision" was "not reasonable". I took the applicant to be referring, in this regard, to both the decision of the Tribunal and the decision of the Federal Circuit Court. However, when saying that the decision was not reasonable, the applicant was doing no more than expressing his disagreement with the factual conclusions reached by the Tribunal that were adverse to the applicant, which the Federal Circuit Court had accepted. 20 The applicant also relied on the fact that he had produced "evidence and reports" to the Tribunal to substantiate his claims, including a statement from the President of a municipality where the applicant worked and lived. This evidence is referred to in the Tribunal's decision record. There is no reason to doubt that the Tribunal fairly and genuinely took it into account in assessing all the evidence before it. The weight that the Tribunal sought to give to that evidence was, of course, a matter for it. I can see no error on the part of the Tribunal in that regard. 21 In his application for an extension of time and for leave to appeal, the applicant identified another ground, stated as: I explained to his Honour Judge Wilson my situation and how the Tribunal overlooked my serious fear of persecution yet another Judge gave me the Order and I was not aware that the Order was issued on 26 August 2016 because at the time I did not receive the notification the attend. 22 The purport of this ground is not entirely clear. In part, it appears to challenge the correctness of the Tribunal's conclusion concerning the applicant's fear of persecution; in part, it seems to be a complaint concerning timely notification of the judgment in respect of which he seeks leave to appeal. Neither matter adds to the present application beyond the matters I have already discussed. For the avoidance of doubt, there is nothing to indicate that the Tribunal overlooked any matter that the applicant had advanced to sustain his claim to fear persecution for a Convention reason. Conclusion and disposition 23 I accept the Minister's submission that the applicant's proposed appeal, on the grounds identified and articulated by him, lacks merit. None of the matters raised by the applicant in his draft notice of appeal, in his application for an extension of time and for leave to appeal, or in his oral submissions before me persuades me that, if time were extended and leave to appeal granted, his appeal would have any prospect of success. It would be futile, therefore, to extend time to the applicant to file his application for leave to appeal and to grant him that leave. 24 For these reasons, the applicant's application to this Court should be rejected. The applicant should pay the Minister's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 21 March 2017