SZDOD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 160 (2 March 2005)

Last Updated: 3 March 2005

FEDERAL COURT OF AUSTRALIA

SZDOD v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 160

SZDOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N48 OF 2005


STONE J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N48 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	2 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs in the amount of $750.

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	N48 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	2 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant has filed an application for an extension of time to file and serve a notice of appeal from the decision of a Federal Magistrate given on 26 November 2004. The Federal Magistrate held that there was no jurisdictional error to be found in the reasons of the Refugee Review Tribunal (‘Tribunal’) and consequently dismissed the application.

2 The applicant is a citizen of India. The relatively unusual situation that confronted the Tribunal was set out by the Federal Magistrate at paragraphs [3] to [6] of his reasons.

"In the present case the Tribunal faced a curious situation. The applicant made an application for a protection visa and presented in support evidence by way of an Indian passport establishing an identity which I shall describe as "KG". A life history for that person was given a statutory declaration sworn before a Justice of the Peace on 10 July 2003. The applicant, claiming to be KG, said that he and his family "faced a more severe situation" by members of a political party, the BJP, or by people associated with it, because of "my influential socio-economic, political and business position in the community" and as supporters of the politics of the Congress Party. He claimed that he had a fear of "being hunted by the BJP terrorists, because they are continuously searching for me to kidnap and kill", and that the police would not protect him against this.

The delegate rejected these claims in the course of refusing the visa application. The applicant appealed to the Refugee Review Tribunal in the name of KG and attached an unsworn statutory declaration purporting to give more information concerning the claims previously made.

However, when invited to a hearing before the Tribunal, the applicant submitted a further statutory declaration in which he said his real name and personal details were completely different, and presented another Indian passport in relation to a name which I will refer to as "JS". In that statutory declaration, the applicant claimed that, far from belonging to Congress Party supporters, his family had been active members of a group called the People’s War Group who were pursuing left wing or communist ideologies through radical methods. He claimed that his father had been shot by police, and that he had suffered periods in custody before escaping and coming to Australia on what he now claimed was a false passport in the name of KG."

3 The Tribunal left aside the inherent issues of credibility that arise from the inconsistent statutory declarations sworn by the applicant. The Tribunal stated that:

"I had considerable difficulty with his credibility. Even if I ignore his original claims and make my findings exclusively on the basis of the second set of claims – revolving around purported membership of the [People’s War Group]– and even if I accept that his real name is [JS] and that the passport on which he entered Australia contains false information about his identity, I am unable to accept that he has a well-founded fear of persecution in India because of [People’s War Group] membership. This is because his written oral evidence contains implausibilities, discrepancies, inconsistencies and contradictions.

4 The Federal Magistrate held that there was no arguable error in the Tribunal’s decision and dismissed all grounds of appeal.

5 In the present circumstances, the delay in filing the notice of appeal is relatively short and the applicant, who it would appear has no legal training, was evidently unaware of the requirements of Order 52, rule 5 prior to filing his application. Nevertheless, even if I accept that valid and legitimate reasons exist for the delay, the application must still be refused if the prospects of the appeal succeeding are so slight that there is no real utility in an appeal: see Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319; Deighton v Telstra Corp (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Kalaba v The Queen (unreported, Finn J, 13 September 1996); and Engler v Commissioner of Taxation [2002] FCA 620 per Nicholson J at [12].

6 The application to this Court is accompanied by an affidavit sworn by the applicant on 12 January 2005 and a draft notice of appeal. The applicant put forward three grounds of appeal but, at the hearing, elected to press only the following two grounds:

(a)	The applicant was unable to engage a solicitor due to financial hardship and his request for an adjournment in order to instruct a solicitor was wrongly rejected by the Federal Magistrate.
(b)	The Tamil language interpreter used in the Federal Magistrates Court ‘could not vividly express’ the applicant’s statements because the interpreter was a Sri Lankan Tamil and his Tamil language is very different from that spoken by the applicant.

7 The first ground of appeal must be rejected. The applicant had ample time to engage the services of a solicitor prior to the hearing before the Federal Magistrate and financial inability to do so does not denote error by his Honour. He now says that he is confident that he will be able to obtain legal assistance given time. Even if that is true (and there is no evidence on the point) it has no bearing on the question of whether his Honour was correct.

8 In relation to the second of the above grounds of appeal, I am not satisfied that any difference between the applicant’s Tamil language and that of the interpreter was sufficient to deny the applicant a fair opportunity to put his case. He does not assert that the interpreter incorrectly translated his submissions but only that the translation was not ‘vividly expressed’. It seems to me that this is an oratorical objection rather than one of content and, even if correct, would not lead me to conclude that the applicant was unable to convey the substance of his submissions to the Federal Magistrate. It would not support a claim of jurisdictional error. At today’s hearing the applicant repeated his claim adding that sometimes he was unable to understand words used by the interpreter. He was, however, unable to give any instances of the context in which this occurred or how it might have affected the submissions he wished to make. In my view this ground of appeal must be rejected.

9 The applicant has been unable to demonstrate any jurisdictional error in the reasons of the Tribunal and therefore I am satisfied that his Honour’s reasons are not in error. Having regard to the Tribunal’s reasons and the judgment of the Federal Magistrate, I am of the view that any appeal from his Honour’s judgment would be futile. This being so the application for an extension of time must be dismissed. The applicant must pay the respondent’s costs in the amount of $750.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 2 March 2005

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 March 2005
Date of Judgment:	2 March 2005