SZDLP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1729 (22 December 2004)

Last Updated: 24 December 2004

FEDERAL COURT OF AUSTRALIA

SZDLP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1729

SZDLP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1716 of 2004

JACOBSON J
22 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1716 of 2004

BETWEEN:	SZDLP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	22 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.
2. The applicant to pay the 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1716 of 2004

BETWEEN:	SZDLP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	22 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to make an application for leave to appeal against the orders and judgment of Federal Magistrate Nicholls, dated 25 October 2004. On that date the learned Magistrate dismissed the application for judicial review of a decision of the Refugee Review Tribunal’s ("the RRT") and ordered the applicant to pay the respondent's costs.

2. The applicant filed his present application on 22 November 2004, several days outside of the time provided for under Order 52 rule 5 of the Federal Court Rules. It is necessary in those circumstances for the applicant to establish special reasons for an extension of time. In Jess v Scott (1986) 12 FCR 187 ("Jess v Scott"), a Full Court stated that what is necessary to satisfy the test is circumstances which take the case out of the ordinary. Here the delay is short and the applicant who, of course, has no legal training says that he was not aware of the 21-day rule.

3. However, as has been observed by the Court in Jess v Scott, even if I were to accept that special circumstances are shown, the Court still has a discretion to grant or excuse an extension. One of the factors which is of particular important in the exercise of the discretion is whether there is any prime facie strength to the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7].

4. The applicant is a citizen of India. He arrived in Australia on 8 September 2003 on a business visa and applied for a protection visa on 3 October 2003 on the ground that he had a well-founded fear of persecution by reason of his political opinions as a member of the National Congress Party ("Congress") and, in particular, he said he had been attacked by members of the Communist Party of India. A delegate of the Minister refused to grant the protection visa and the applicant applied to the RRT for a review of the merits of the decision. On 16 March 2004, the RRT affirmed the decision not to grant a protection visa and handed down its reasons for the decision.

5. In addition to the matters which I have referred to above the applicant claimed that from 1994 he was an active member of the Democratic Youth Federation of India ("DYFI"), the youth wing of the Communist Party. He claimed that his house was ransacked and he claimed that he and his family were targeted including having been arrested by plain-clothes police and accused of conspiracy against the Marxist party leader.

6. The RRT rejected the applicant's claim because it did not believe his evidence. The critical passage in the decision appears at page 19 of the decision of the RRT:

"In the light of all the above considerations, the Tribunal is not persuaded that the applicant was a member of either the DYFI or of Congress, or that he has been or would be the subject of persecution in India for reasons of his political opinion. The Tribunal has found that he has presented fabricated evidence in relation to a key claim, that relating to the alleged attack in June 2003, a few months prior to his departure for Australia. The Tribunal has also found that he has presented fabricated and contradictory evidence in relation to his claim that he was the subject of false charges. The Tribunal considers that the applicant is an unreliable witness and that his evidence is not to be believed."

7. The applicant sought review of the decision of the RRT by an application filed on 4 May 2004. The Magistrate noted that although there were eight grounds of review they lacked particulars and that no further particulars were provided despite an assertion by the applicant in his application that he would "Provide more details of grounds later".

8. The learned Magistrate noted that in his view the RRT had examined each relevant matter submitted by the applicant and looked at the relevant country information. The Magistrate also found that the applicant had been unable to show that the RRT was not entitled to make the findings which it made. He noted that the finding of credibility is a function of the primary decision-maker and no error was demonstrated in the RRT's conclusions.

9. The applicant claimed other grounds of review including bad faith and breach of natural justice but the Magistrate observed that these were not particularised and the applicant was unable to provide any detail at the hearing relating to those grounds. The learned Magistrate found that the applicant was not able to show any error in the RRT's decision and as there was no jurisdictional error the application should be dismissed.

10. The present application relies upon an affidavit sworn on 22 November 2004. The affidavit states that because of the applicant's lack of knowledge he did not file the notice of appeal within time and he requests the Court to accept the notice of appeal and he states that he will provide more detail at the time of the hearing. The applicant filed a draft notice of appeal which states the grounds of appeal in very general terms.

11. The applicant appeared before me in person today. He in effect conceded that he could not demonstrate any error in the Federal Magistrate's decision but he said that he was prejudiced because his life is in danger and that relocation within India would not assist him.

12. The application must be dismissed not because of the short delay in filing the application for leave to appeal but rather because I am satisfied that there are no prospects of appeal if leave were to be granted. Accordingly, there is no purpose to be served in extending the time within which an application for leave may be made. Thus in accordance with the principles stated by a Full Court in Decor Corporation Pty Limited v Dart Industries (1991) 3 FCR 397, I am satisfied that the decision of the Federal Magistrate is not attended by sufficient doubt to warrant it being reconsidered by a Full Court. There is no substantial injustice in refusing leave to appeal because there was no jurisdictional error in the RRT’s decision.

13. It follows that the orders I will make are that the application be dismissed. The ordinary order is that the unsuccessful party must pay the costs and therefore I will order that the applicant pay the costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 23 December 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr I Muthalib
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 December 2004
Date of Judgment:	22 December 2004