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1 On 16 December 2002, the applicant sought judicial review by the Federal Magistrates Court of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 October 2002, handed down on 21 November 2002, which affirmed a decision of the respondent’s delegate not to grant the applicant a protection visa.

SZACO v Minister for Immigration & Multicultural & Indigenous Affairs [2004

SZACO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 235 (24 August 2004)
Last Updated: 24 August 2004

FEDERAL COURT OF AUSTRALIA


SZACO v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 235






























SZACO V FOR MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 861 OF 2003




BEAUMONT, NORTH & EMMETT JJ
24 AUGUST 2004
SYDNEY



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 861 OF 2003


BETWEEN: SZACO
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BEAUMONT, NORTH AND EMMETT JJ
DATE OF ORDER: 24 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The application for extension of time be dismissed, with costs.











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 861 OF 2003


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


JUDGES: BEAUMONT, NORTH AND EMMETT JJ
DATE: 24 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

(ON APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL FROM THE FEDERAL MAGISTRATES COURT)

THE COURT:

INTRODUCTION

1 On 16 December 2002, the applicant sought judicial review by the Federal Magistrates Court of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 October 2002, handed down on 21 November 2002, which affirmed a decision of the respondent’s delegate not to grant the applicant a protection visa.

2 On 26 June 2003, Driver FM dismissed the application.

3 On 21 July 2003, the applicant filed in this Court an application for an extension of time to appeal from the judgment of Driver FM. The applicant supported his application with his affidavit sworn 21 July 2003.

4 On 19 August 2003, Wilcox J made orders extending time until 4.00 pm on Friday, 22 August 2003. No notice of appeal was filed. However, at the hearing before us, the applicant said that he had attempted to file a notice of appeal on Monday, 25 August 2003 but that the Registry had rejected it. The applicant did not have the appeal document in Court, but said that it was at his home. The applicant later brought the document to Court. It is headed as an affidavit by the applicant, sworn by him on 21 August 2003.

5 On 16 June 2004, the applicant filed a further application for an extension of time to appeal from the judgment of Driver FM. The applicant filed an affidavit in support sworn 16 June 2004. On 10 August 2004, the applicant filed a further affidavit in support. It is this application that is now before us.

6 On 16 August 2004, the respondent filed a notice of objection to competency, contending that this Court has no jurisdiction to consider a second application for a grant of an extension of time to lodge a notice of appeal.

THE APPLICANT’S CLAIM FOR REFUGEE STATUS

7 The applicant is a citizen of India. He was born in Tandoor, located in the district of Nizamabad in the State of Andhara Pradesh. He claims that as a result of his religious activities as a Christian preacher, he suffered persecution at the hands of Naxalite elements and members of extremist groups; and that the authorities failed to protect him.

8 The Tribunal accepted the applicant’s account of his particular difficulties whilst spreading the gospel, and, in particular, to the threats and assaults he suffered most commonly in the remote rural areas of Andhara Pradesh. However, the Tribunal was satisfied on the evidence that it was reasonable to expect the applicant to live elsewhere in India and avoid the harm he fears.

9 The Federal Magistrates Court held that the Tribunal had dealt adequately with the issue of relocation, and that no jurisdictional error emerged.

THE BASIS OF THE APPLICANT’S FIRST CLAIM FOR AN EXTENSION

10 In his affidavit sworn 21 July 2003, the applicant gave evidence to the following effect:

• Although present when Driver FM gave his judgment, the applicant could not speak English and ‘did not understand what was going on’.
• His solicitor did not explain to the applicant (i) the verdict; or (ii) his right of appeal.
• The applicant ‘thought that the period of appeal would be 28 days from judgment same as it is for appeals ... from a decision of the ... Tribunal ...’.
• The applicant was ‘not a lawyer conversant with Court procedures and [was] a[n] unlettered ignornoran[t], unemployed ...’.
• The applicant had dispensed with the services of his lawyer, as he could not afford his fees.
• The applicant was seriously ill between 30 June 2003 and 20 July 2003 (annexing medical certificates diagnosing glandular fever).
THE DECISION OF WILCOX J

11 The applicant appeared in person before Wilcox J.

12 His Honour indicated to the Minister’s representative that the applicant was four days late, and said:

‘The application was filed – so the time ran out 17 July and it was filed on 21 July and it’s four days late and that again is not an enormous time. Again, I looked at it to see whether the appeal was arguable. I think it’s arguable although I don’t think it’s likely, my view is it’s arguable but unlikely to succeed I think. It [sic] think it’s not quite as strong as ... the other case which you probably don’t know anything about anyway. I feel that it would be wrong of me to shut the appellant out given that it’s only four days and I think it’s arguable although a difficult argument. So I’m inclined to grant the extension of time unless you want to say anything about that.’

13 On behalf of the respondent, it was submitted to Wilcox J that the respondent’s ‘only concern is the absence of what [are the] grounds of review [in the application]’.

14 Wilcox J then decided to grant the applicant a further three days in which to appeal, asking the interpreter to assist in explaining this.

15 However, as mentioned, no appeal was filed although the applicant claims he attempted to do so. The applicant’s affidavit sworn on 21 August 2003 was as follows:

‘1. The Tribunal took into account document and matters advise [sic] to my case, being cable and country information reported to the Commonwealth Department of foreign affairs without notice to me.
2. The decision of the Tribunal made on 30-10-02 was beyond its jurisdication [sic] in that:-
(I) The Tribunal did not place sufficient importance to my claim that the extreme groups as Naxalite those who belonged to RSS and other Hindu groups, they were trying to kill me.
(II) I am a Christian preacher I explained to RRT. The Naxalites threatened me physically and harmed possibly death at the hands of Naxalites and or fundamentalist groups arising from his religious activities.
(III) Lack of current knowledge about the Hindu extremist groups and Naxalites groups.
3. The Tribunal was biased in that the tribunal failed to take sufficient notice of my real fear of persecution and instead [relied] on irrelevant consideration such as ascertaining the manner of my departures from India.

4. The RRT didn’t believe I have been admitted to the hospital on 10-09-1999 incident.’
THE BASIS FOR THE PRESENT APPLICATION

16 In his affidavit sworn on 16 June 2004, the applicant first repeated the contents of his affidavit sworn 21 July 2003, and then added the following:

‘I am disgraced with decision of the RRT. The RRT made decision without giving any importance to my evidence, which I presented at the time of hearing.

I do believe that if I am compelled to go back to my country I will be persecuted. The RRT did not account the fear of persecution and made decision without considering this issue in his decision.’

17 In his affidavit sworn 10 August 2004, the applicant repeated, in terms, the claims made in his affidavit sworn on 21 August 2003.

CONCLUSIONS ON THE APPLICATION

18 In any application to extend time for an appeal, an applicant must show that his or her case is reasonably arguable, so as to avoid the prospect that any appeal would be futile.

19 As mentioned, the Tribunal accepted the applicant’s account of his particular difficulties whilst spreading the gospel and, in particular, to the threats and assaults he suffered most commonly in the remote rural areas of Andhra Pradesh. But the Tribunal went on to find ‘that it is reasonable to expect the applicant to live elsewhere in India and avoid the harm he fears’, for these reasons:

• The size of the Christian population in India is about 23 million.

• The Constitution of India provides for religious freedom.

• Whilst there have been specific incidents of violence towards members of the Christian community and Christian preachers, there has never been persecution of Christians or Christian preachers at the hands of the government of India or the community at large. In a number of states in India, there are no reports of incidents of violence towards Christians at all, and there is no evidence to suggest mistreatment of Christians in those states where they form a majority.

• The overwhelming majority of India’s 23 million Christians and Christian preachers do not encounter difficulties in carrying out their religious practices. Having regard to the number of incidents, the number of persons affected and the fact that the overwhelming majority of incidents have occurred in a just a few states (and particularly in Gujarat), if the applicant resides in a state other than his own, or those particular states where numbers of incidents have been reported, he does not face a real chance of being targeted or harmed by reason of his religious belief or practice or arising from his actual or perceived conduct as a preacher.

• There are sizeable Christian populations in a number of states in India including Tamil Nadu, Kerala and Goa; and Christians form the majority in the states of Nagaland, Mizoram and Meghalaya.

• The Assemblies of God and other Pentecostal and evangelical movements such as those followed by the applicant have a long history in India and are present in differing forms in Nagaland, Mizoram, Meghalaya, Kerala and Tamil Nadu.

• The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.

• In response to the possibility of relocation, the applicant referred to language and cultural differences in other states. However, as indicated to the applicant at the hearing, and as subsequently put to him in detail in writing, English is the second official language of India and is widely spoken in a number of states including Mizoram, Nagaland, Meghalaya, Goa, Tamil Nadu and Kerala. The applicant speaks, reads and writes English and the Tribunal was not satisfied that language would be a barrier to him relocating.

• The applicant added that relocation was not viable because he was not just a Christian but a preacher, and he suggested that if he went to an area populated by Christians, they would not need him. He also claimed that as a preacher he had to preach to those who belonged to the same denomination as him, for example, he could not be a preacher in a Catholic church. However, the Tribunal found the applicant’s assertion that he would not be needed in an area which is predominantly Christian to be unconvincing: a feature of any Christian community is the need for spiritual guidance. The applicant could continue with his activities of spreading the gospel without any difficulties in another part of India where Christians form the majority, or form a significant part, of the population. Further, the applicant would be able to find a Christian denomination elsewhere in India which reflected his religious beliefs, akin to the Assemblies of God, of faith healing and speaking in tongues. Neither of these matters would lead to any difficulties or barriers in the applicant being able to genuinely access domestic protection.

• In his oral evidence, the applicant referred to the culture of other states in India being different. But apart from referring in general terms to a ‘different style of living’ and food, he was unable to point to any logistical barriers which would prevent him from relocating.

• The ‘practical realities’ are that the applicant is able to relocate ‘without difficulty’ and that he will not encounter any difficulty in spreading the gospel in the same way that he has done in the past. He will have the same level of protection as all other Indians. No one can provide absolute protection to an individual. This is beyond the degree of protection normally to be expected of the government. There is nothing illusory or unpredictable about the protection that is available in India to persons like the applicant.

20 Accordingly, the Tribunal was satisfied that relocation was ‘a real option’ and that the applicant had genuine access to meaningful protection in his country of origin.

21 As has been seen, in his several affidavits, the applicant has sought to challenge a number of the Tribunal’s factual findings. But in order to obtain judicial review, he must, of course, establish the existence of a jurisdictional error. Yet, upon analysis, the challenges made by the applicant are, in truth, no more than an attempt to obtain judicial review by inviting the Court to revisit the facts. On no view could this, on its face, involve any jurisdictional error. (Although the applicant’s affidavit refers to ‘bias’, there is no foundation at all for this allegation.)

22 In the result, in our opinion, on the relocation aspect, which is the only live issue, the applicant’s prospects of success in any appeal are not reasonably arguable. No arguable ground for judicial review has been demonstrated, bearing in mind the need to show jurisdictional error. In other words, in our view, it would be futile to allow the proposed appeal to go forward. It must follow that, for this reason alone, we would refuse the application for extension of time.

23 In the circumstances, we need not consider the respondent’s objection to competency.

ORDERS

24 We make the following orders:

1. The application for extension of time be dismissed, with costs.


I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 24 August 2004



Solicitor for the Applicant: The applicant appeared in person



Counsel for the Respondent: Mr S Lloyd



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 17 August 2004



Date of Judgment: 24 August 2004
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