SZFZA v Minister for Immigration & Citizenship [2007] FCA 409 (5 March 2007)

Last Updated: 2 April 2007

FEDERAL COURT OF AUSTRALIA

SZFZA v Minister for Immigration & Citizenship [2007] FCA 409

SZFZA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1930 OF 2006

GRAHAM J
5 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1930 OF 2006

BETWEEN:	SZFZA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	5 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to read ‘Minister for Immigration and Citizenship’.
2. Refugee Review Tribunal be added as a second respondent to the Application filed 3 October 2006.
3. The applicant’s Application for Extension of Time to File and Serve a Notice of Appeal be dismissed.
4. The applicant pay the respondent Minister’s costs fixed in the sum of $1400.

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	NSD 1930 OF 2006

BETWEEN:	SZFZA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAHAM J
DATE:	5 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 What is before the Court is an Application for an extension of time within which to bring an appeal from a judgment of a Federal Magistrate, delivered on 6 September 2006. In accordance with Order 52, rule 15(1) of the Federal Court Rules (‘the Rules’), the time limit for bringing such an appeal is 21 days after the date when the judgment appealed from was pronounced. No Notice of Appeal was filed by the applicant within the requisite 21 day period. Accordingly, to enable an appeal to be brought, it has become necessary for the applicant to bring the current Application for an extension of time. As the Application was not brought until after the 21-day period had expired, it has become necessary for the applicant to demonstrate ‘special reasons’ as to why leave to file and serve a Notice of Appeal should now be granted.

2 The applicant is a citizen of India. He is a Tamil who practises the Hindu religion. He resided in Tamil Nadu. He was born on 18 June 1965. He travelled to Australia on an Indian passport, issued to him on 21 July 2001. He entered Australia under a visa issued to him on 22 September 2004, on 27 September 2004. On 30 October 2004, he applied for a Protection Visa. That Application was considered and decided adversely to the applicant by the Minister's Delegate on 16 November 2004.

3 On 6 December 2004, the applicant filed an Application for Review of the Minister’s Delegate’s decision in the Refugee Review Tribunal (‘the Tribunal’). Following a hearing in the Tribunal on 3 February 2005, the Tribunal decided to affirm the decision of the Minister's Delegate not to grant a Protection Visa to the applicant.

4 On 29 March 2005, the applicant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. That Application was heard on 6 September 2006. As no jurisdictional error was established on the part of the Tribunal, the Application was dismissed and the applicant was ordered to pay the respondent Minister’s costs, fixed in the sum of $5000. It is in respect of that decision of the Federal Magistrates Court that the current Application for Extension of Time to File and Serve Notice of Appeal has been brought.

5 The circumstances giving rise to the applicant’s claimed refugee status are unusual. It was the practice of Hindus in the city in which the applicant resided to conduct an annual procession where, as I would understand it, there was a beating of drums and associated festive activity. The Hindus were requested to moderate the noise generated by the procession when they passed through Muslim areas within the city. This would appear not to have occurred during the course of the procession in 2002, with the consequence that a number of Muslims threw stones at participants in the procession.

6 There was then some confrontation which resulted in the death of two Muslims. It is said that, by way of retaliation, Muslims proceeded to murder a Mr Manika Nadar, a Hindu leader who happened to reside next door to the applicant. It would appear that the authorities wished to pin the blame for Manika Nadar’s death on a group of Muslims. As it transpires, the applicant was away from his home at the time of the murder of Manika Nadar, and he did not witness the activity which led to Mr Nadar's death.

7 His claim for refugee status stemmed from pressure said to have been brought to bear upon him to falsely accuse certain Muslims of involvement in Mr Nadar’s death by giving evidence suggesting that he had identified them as perpetrators. The applicant also says that pressure was brought to bear on him not to give false evidence implicating Muslims in the death of Mr Nadar.

8 In the Tribunal’s reasons it was indicated that the city or town in which the applicant resided had about half a million inhabitants. The applicant says that he was sufficiently concerned for his safety that he relocated to his brother’s home in Andhra Pradesh. The applicant contended that, amongst other things, his wife had left him as a result of the matters to which reference has been made.

9 The Tribunal summarised the applicant's claim to refugee status as follows:

‘The applicant claims ... that he fears harm (death threats) at the hands of both Hindus and Muslims for reason of his membership of a particular social group: those who refuse to give false witness. There appears to be no other construction which would bring his claim within the scope of the [Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’)].’

10 Under Article 1A of the Refugees Convention, the term ‘refugee’ shall apply to any person who:

‘...

(2) ... owing to well-founded fear of being persecuted for reasons of ... membership of a particular social group ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...’

11 The Tribunal resolved the applicant's claim by stating:

‘The Tribunal rejects the claim that he is at risk of harm at the hands of the Muslims: the fact that a trial has begun [of two persons accused of murdering Manika Nadar] and the applicant is uninvolved should put to rest any fears that they may have had that the applicant would be persuaded to give evidence that would implicate Muslims (or anyone else, for that matter). The claim is thereby reduced to one where the applicant fears harm at the hands of particular local Hindus who want him to give false evidence in order to secure a conviction against Muslims. Again, it would appear that events have gone out of their hands, with the detention of two Muslim suspects and a trial underway.

Despite framing the applicant’s claim as fear of persecution for reason of his membership of a particular social group - simply because neither the applicant nor his adviser ... attempted to present a Convention nexus - the Tribunal does not accept that "witnesses who refuse to give false evidence" constitute a particular social group. They are not a recognisable nor cognisable group in society, sharing some interest or experience in common. The applicant has brought in the issue of religious conflict, but there is no fear of persecution for reason of his religion. Indeed, the persons he fears are his co-religionists and those who also share his political affiliation.’

12 The Application presently before the Court was brought approximately one week after the time fixed by the Rules for filing a Notice of Appeal had expired. The applicant contends that his delay in instituting proceedings in this Court was occasioned by the fact that he suffered from a viral illness, which incapacitated him during the period 25-29 September 2006.

13 Under Order 52, rule 15(3)(c) an Application for leave to file and serve a Notice of Appeal out of time must be accompanied by an Affidavit setting out:

‘(i) the nature of the matter; and

(ii) the factual and legal issues in dispute; and

(iii) the reasons why leave should be given.’

14 Neither Affidavit relied upon by the applicant explains the inaction of the applicant in the period from 6 September 2006 to 24 September 2006. More importantly, the draft Notice of Appeal attached to the Application for an extension of time was silent in respect of the grounds of appeal on which the applicant wished to rely, if leave to bring an appeal out of time were granted.

15 By a facsimile transmitted to the Court on 20 February 2007, the applicant sought to cure the defect in the Notice of Appeal. That facsimile bore the heading ‘Grounds Submit’. It was expressed in the following terms:

‘I would like to bring notice in connection with my claim. Once again I assure you that the murder happened near my house & the affected person (murdered person) is one of the VIP's who has got all the political power as well as wealth. The report from the court stated punishment was given to only 2 people of the 7. The court could not find out the proper reason why the other people & the murdered persons family think I am the only witness to catch the other 5 people.

On grounds of the above reason, if I leave this country then definitely there must be pressure on me by the murdered mans family to be a witness in court against 5 people. I would get a lot of problems from these 5 people Though the biggest problem should come from my religion, Hindu, against Party religion & Muslim.

Because of the above, I do not get peace of mind as there is the threat on my life all the time. I brought all of the above details in RRT, but unfortunately they did not consider properly which upset me. Really, I not know what to do in my claim. I did not get proper advice & the decision went against me.

If you could give me a chance to go to RRT once again, I will prove my claim. Please kindly consider my case & do the rightful thing.’

16 The applicant has informed the Court that he has read the Tribunal's decision. He says that, when his case was before the Tribunal, he was asked to submit evidence, but the people whom he needed to contact in India were scattered far and wide and were in hiding. He says that they have now been located. He contends that the Tribunal did not have a deep insight into the facts which he presented. He says that if he was given one more chance to go before the Tribunal he would be pleased to submit extra material that was not available to him previously.

17 The appellant says that he is aware of another case which he contends is similar to his, where the matter was referred back to the Tribunal and the applicant was granted a protection visa. It is abundantly clear from the applicant's ‘Grounds Submit’ and from his oral submissions that what he seeks is a merits review of his matter. He is quite unable to demonstrate any jurisdictional error which could provide a foundation for this Court granting him the constitutional writ relief which he seeks and which the learned Federal Magistrate held was unavailable to him.

18 I am not satisfied that the applicant has satisfactorily explained his delay in instituting an appeal, but if one were to give him the benefit of the doubt in that regard, and allow some latitude to him as a litigant-in-person who filed process in the Court but one week late, he still needs to demonstrate that there is some merit in the case which he would wish to advance on the hearing of an appeal to justify a grant of leave to file and serve a Notice of Appeal out of time.

19 I am of the opinion that the applicant has failed to establish special reasons warranting an extension of time.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 21 March 2007

The Applicant appeared in person.
Solicitor for the First Respondent:	Ms B M Rayment of Sparke Helmore
The Second Respondent did not appear.
Date of Hearing:	5 March 2007
Date of Judgment:	5 March 2007