VGAU of 2002 v Minister For Immigration & Multicultural& Indigenous Affairs [2004] FCA 145 (17 March 2004)

Last Updated: 17 March 2004

FEDERAL COURT OF AUSTRALIA

VGAU of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs
[2004] FCA 145

MIGRATION - application for extension of time within which to appeal from a decision of Federal Magistrates Court - need for "special reasons" - whether applicant’s mistaken belief as to relevant period amounts to adequate explanation - relevance of strength of applicant’s proposed grounds of appeal - application for extension of time refused


Federal Court of Australia Act 1976 (Cth) s 25(1A)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 474(1), 476 (since repealed), 424, 427(1)(d)

Federal Court Rules 1976 (Cth) O 52 r 15



R v Hickman; Ex Parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 referred to
Jess v Scott (1986) 12 FCR 187 followed
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 referred to
Gallo v Dawson ( [1990] HCA 30; 1990 64 ALJR 458 referred to
Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 referred to
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 referred to
WAGJ v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 referred to
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 followed







VGAU of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V334 OF 2003




CRENNAN J
17 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V334 OF 2003

On appeal from the Federal Magistrates Court of Australia constituted by Bryant CFM

BETWEEN:	APPLICANT VGAU OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CRENNAN J
DATE OF ORDER:	17 MARCH 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for extension of time within which to file and serve the notice of appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the application.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V334 OF 2003

On appeal from the Federal Magistrates Court of Australia constituted by Bryant CFM

BETWEEN:	APPLICANT VGAU OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CRENNAN J
DATE:	17 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for leave to file and serve, out of time, a notice of appeal against the decision of Bryant CFM delivered on 4 April 2003. On 5 June 2003 it was determined pursuant to s 25(1A) to the Federal Court of Australia Act 1976 (Cth) that the application for leave and, if the extension of time is granted, the appeal, be heard and determined by a single judge of the Court.

2 The applicant is an Indian citizen, aged 23, who was born in Bikaner in the state of Rajasthan. He is of Hindi ethnicity and Hindu religion. He speaks English and declined to have an interpreter present for the hearing of this matter. He arrived in Australia on 20 April 2000 on a student visa valid until 31 July 2002. On 11 May 2000 the applicant returned to India and came back to Australia on 6 July 2000. The documents before the Court disclose that some time thereafter the applicant’s student visa was cancelled and he was placed in immigration detention. On 24 May 2002, while in detention at Maribyrnong Immigration Detention Centre, he lodged an application for a Protection visa (Class XA).

3 The Tribunal summarised the applicant’s claim before it as follows:

"The applicant claims that he left India because his life was in danger, and he feared that his opponents would kill him. He states that his opponents’ party is in power and they have influence over the local and federal administration. They will harm him because of his political activities. The authorities always take the side of the party in power."

4 The Tribunal accepted the applicant’s claim that he was a member of the Akal Bharatiya Vidiarthi Preshad ("ABVP"), a student political party, and noted that it was recognised as the student wing of the Bharatiya Janata Party ("BJP") which led the multi-party national government of India. The Tribunal also accepted the applicant’s claim that he had assisted a friend in a campaign in student elections in September 1999 and that he may have been threatened by senior students during the campaign. However, the Tribunal went on to find that these threats were not of such severity as to constitute persecution. Moreover, the Tribunal did not accept that the applicant had continued to be harassed and threatened after the election campaign during the seven months prior to his departure for Australia.

5 The Tribunal considered it implausible that the applicant would not have sought protection from the authorities before abandoning his course and leaving his home if he had been harassed and threatened as he claimed. Further, the Tribunal did not accept that the Indian authorities in Rajasthan would have refused to protect him because of his opponents’ political influence. The Tribunal noted, "As even the senior people in the applicant’s own party told him, the election was only a minor event."

6 The Tribunal accepted that the applicant had gone to Jaipur, Jalandhar and Chandigarth, as he claimed, but did not accept that he went to those places to escape persecution. Furthermore, the Tribunal did not accept that the applicant was attacked and severely injured and, as the applicant claimed, had to spend ten days in hospital when he returned home temporarily in March 2000. The Tribunal concluded the applicant was not threatened, harassed and assaulted by students who were politically opposed to him after the student elections held in September 1999. The Tribunal found that the applicant fabricated these claims to provide a basis for claiming refugee status and that he had not been persecuted in the past for reason of his political opinion. Further, the Tribunal did not accept that if the applicant were to return to India now, or in the reasonably foreseeable future, there would be a real chance he would be harmed by the people who were his political opponents in the student election campaign in September 1999.

7 The Tribunal also found that, in view of the political strength of the BJP, if the applicant were to return to India and resume his political activities he would be able to be protected by the authorities. The Tribunal found it was open to the applicant to live elsewhere in India and rejected the suggestion that he has a political profile that would place him at risk of harm no matter where he went in India. Nor did the Tribunal find there was a real chance the applicant would be harmed for any other Convention reason. The Tribunal found the applicant’s fears were not well founded. The Tribunal concluded it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and accordingly affirmed the delegate’s decision of 18 June 2002.

8 The applicant applied for a review of the Tribunal decision in the Federal Court of Australia together with an application pursuant to s 39B of the Judiciary Act 1903 (Cth), which application was transferred to the Federal Magistrates Court on 16 September 2002.

9 It was the applicant’s contention before Chief Magistrate Bryant that the Tribunal acted without, or in excess of, jurisdiction by failing to deal with the materials and evidence on the question of whether the applicant faced a real chance of persecution for reason of his imputed political opinion arising from his involvement with the ABVP. Her Honour found that there was information before the Tribunal which enabled it to come to the conclusion that the applicant supported a mainstream political party, albeit at a student level.

10 As to a similar contention in respect of whether the authorities would offer protection to the applicant in the light of the handling of his previous complaints to the authorities, her Honour found:

"This ground asks the Court to reassess the facts and find facts contrary to the express findings of the Tribunal . . .It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it . . . [T]he Tribunal is not required to adopt an uncritical acceptance of all or any of the allegations put before it by the applicant."

11 The applicant contended that the Tribunal’s decision was based on a finding of a particular fact that did not exist or for which there was no evidence calling in aid the former s 476(i)(g) of the Migration Act 1958 (Cth) ("the Act"). This finding was that the applicant had not been assaulted in March 2000. In finding no jurisdictional error, her Honour said:

"The allegedly non-existent "fact" was . . . the Tribunal not being satisfied of the fact that the applicant had been assaulted and was an assessment the Tribunal reached after a consideration of his claims."

12 It was further contended that the Tribunal’s decision was so unreasonable that no reasonable decision maker could have made it, which was said to arise as a result of the Tribunal misconstruing, misapplying and misinterpreting the definition of "persecution" in s 91R of the Act. This was said to arise because of the Tribunal’s finding that there was no political objective to be gained from harassing the client implied an element of motivation was necessary to a finding of persecution. In finding there was no jurisdictional error, her Honour said:

"The Tribunal was simply considering the question of whether the alleged harassment and extent as asserted by the applicant would have occurred. One of the matters the Tribunal took into account in concluding that it was not satisfied that it had, was that because there was nothing to be achieved by the alleged harassment, the Tribunal found it implausible that the harassment would have occurred. That comment by the Tribunal was not a misconstruction of the conception of persecution nor did it in any sense lead to an unreasonable result."

13 As to the applicant’s claim that he was denied natural justice because the Tribunal failed to consider exercising its power under s 427(1)(d) of the Act and failed to invite the applicant to provide further additional information pursuant to s 424 of the Act, her Honour found:

"The Tribunal informed the applicant that it was having difficulty accepting that he had been injured as seriously as he claimed if his injuries had not been obvious to a doctor only a short time later. There could be no suggestion that the Tribunal had in any way misled the applicant about its concerns on this issue and no ground of lack of natural justice or procedural fairness arises."

14 In relation to the applicant’s other complaints, which depend on complaints about the Tribunal’s finding that the applicant had not been assaulted in March 2000, her Honour found that the reason the Tribunal’s disbelief of the applicant’s account arose was, "the Tribunal’s view that it was inherently unlikely the events occurred as alleged by the applicant."

15 Her Honour found that the Tribunal’s decision was a privative clause decision for the purposes of s 474(1) of the Act, and no argument had been advanced by the applicant which established any of the exceptions to the operation of the privative clause as set out in R v Hickman; Ex Parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616. Accordingly the application for review was dismissed.

16 The applicant filed an application, in reliance on O 52 r 15(5), for an extension of time within which to file and serve a notice of appeal against the judgment of Bryant CFM. His application was filed on 2 May 2003 whereas the deadline for filing, pursuant to O 52 r 15, was 25 April 2003. The application was accompanied by a notice of appeal which was to be relied on if leave were granted to obtain the extension of time.

17 Order 52 r 15(2) relevantly provides that:

"...the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."

18 The meaning of "special reasons" as identified in r 15(2) was considered by a Full Court in Jess v Scott (1986) 12 FCR 187 at 195 and, the phrase means a reason which justifies departure from the general rule in a particular case. An application to extend time for special reasons will commonly require consideration of the history of the proceeding, the conduct of the parties, the length of delay, the applicant’s explanation of the delay, and the consequences to the parties of grant or refusal of the extension sought. Furthermore, as submitted by the respondent, an application to extend time within which to file an appeal requires consideration of the prospects of the applicant succeeding on appeal. See: Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 20; Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459. Where prima facie the proposed grounds of appeal do not disclose an arguable case no useful purpose would be served in granting leave to appeal out of time.

19 The applicant filed an affidavit in which he explained the short delay as a mistake on his part. He thought he had twenty-eight days rather than twenty-one days within which to file a notice of appeal. He was acting for himself.

20 In the written submissions in this proceeding in support of the application to extend time the applicant stated:

"1. The Court did not accept that I was threatened and attacked after the election campaign.
2. The Court did not accept that I was not able to get the protection from the Authorities
3. The Court did not accept the doctor could not examine the injuries when I had medical before getting the student visa.
4. The Court did not accept that I was harrased (sic) in Jaipur."

21 It is clear from these submissions that insofar as the proposed notice of appeal seeks to raise jurisdictional error on the part of the Tribunal the applicant’s complaint is nevertheless that the Court declined to reassess the facts or find facts contrary to the express findings of the Tribunal.

22 The Tribunal considered whether the applicant was threatened after the election campaign, whether he was able to get protection from the authorities, whether he had an injury which could be overlooked by the doctor and whether he was harassed in Jaipur. The Tribunal found against the applicant on each of these issues on the merits. It did so it said because of implausibility which led to the Tribunal’s rejection of the applicant as a credible witness. While opinions may vary about implausibility, if a decision as to implausibility is open and not perverse there is no jurisdictional error: Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 ("Avesta").

23 As Bryant CFM found the Tribunal was simply not persuaded by the applicant on the issues. Her Honour also found the Tribunal’s findings on those issues were open to it. There was no error of law let alone a jurisdictional error arising out of the Tribunal’s failure to be satisfied to the requisite standard on those issues.

24 Further, the facts alleged to be non-existent were not facts which could have warranted relief under the former s 476(i)(g) of the Act. The alleged non-existent "fact" was an assessment reached by the Tribunal after a consideration of the applicant’s claims at the end of which process the Tribunal was not satisfied the applicant had been assaulted. As stated by the Full Court in relation to the now repealed s 476 of the Act, in Avesta at [16]:

"An attack on the correctness of the reasons for finding that the appellant was not believable is a challenge to the correctness and rationality of the reasoning process, and does not provide an available basis for review of the decision reached as a result of that reasoning."

25 Moreover, the Tribunal was not under any obligation to make further enquiries under s 427(1)(d) of the Act. See: The Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 2426 at [86]; WAGJ v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] and [25]. The circumstances were, in any event, that the applicant was alerted to the Tribunal’s concerns about the plausibility of his account. There was no suggestion that the applicant was able to make other material available, which might have led to a different conclusion. There was no error of jurisdiction arising out of either s 427(1)(d) or s 424 of the Act.

26 The Court cannot undertake a review of the merits as sought by the applicant: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [37]. In my view, the Chief Magistrate was correct to hold that there was no jurisdictional error on the part of the Tribunal.

27 The broader grounds of appeal alleging that the Tribunal acted in bad faith or with bias are unparticularised and there was no evidence before the Court on either of these matters. The particulars in relation to the allegation of bad faith (and implicitly bias) which were before her Honour, repeated the particulars in relation to the applicant’s complaints about the Tribunal’s findings on the merits and the alleged errors of jurisdiction said to arise out of s 476(i)(g), s 427(1)(d) and s 424 of the Act. Asserting errors of law of a serious kind without any particulars, evidence or submissions on the points cannot amount to a prima facie case of jurisdictional error.

28 As the applicant could not succeed, prima facie, on any of the grounds of appeal raised in the proposed notice of appeal, it is not appropriate to exercise the discretion available under O 52 r 15(2) to extend the time for filing the original notice of appeal, even though the delay was short and explained. The applicant must pay the respondent’s costs of the application.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated: 17 March 2004

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 February 2004
Date of Judgment:	17 March 2004