Chen, Deqing v Minister for Immigration and Multicultural Affairs

[1998] FCA 591

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 359 of 1998

BETWEEN:	DEQING CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	29 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

This is an application by Mr Chen for an extension of time within which to file and serve a notice of appeal from the judgment of Branson J, delivered on 31 March 1998.  Extension of time was required because the appeal had not been filed and served within the time limit.  In fact, the notice of appeal was six days out of time.  However, I am informed by the respondent that no prejudice can be claimed if an extension of time is granted in the matter.

It is said by the respondent that the decision of Branson J was clearly right and for this reason there would be no point granting leave for an extension of time within which to file a notice of appeal.  The principal question raised before her Honour appears to be the significance of the cancellation of the applicant’s Hukou, for household registration.  The effect of the deprivation of Hukou is discussed in the course of her Honour's judgment.

The Tribunal in this matter accepted that the cancellation of the applicant’s Hukou was on the basis of political opinion; that is for reasons arising out of the applicant’s refusal on political grounds to accept employment with the Yinkou Education Commission.  Her Honour saw the crucial issue for the Tribunal's determination as being whether the cancellation of the applicant’s Hukou amounted, in the circumstances, to persecution.

Her Honour found that looking at the decision of the Tribunal as a whole, although she was uneasy about some aspects of the consideration, a case had not been made out that the discrimination on political grounds was of sufficient degree to amount to persecution.  In my view, there is an available argument, which may not ultimately be accepted but which could properly be raised, to the effect that the deprivation of Hukou in the circumstances could or would amount to persecution within the meaning of the Convention.

Accordingly, having regard to the shortness of the delay;  the fact that there is an argument and that no prejudice can be claimed, I think it is appropriate to grant an extension of time within which this application may be filed in order to afford the applicant an opportunity to ventilate the argument.  I note that the decision of Branson J, delivered on 31 March, is detailed both as to considerations of fact and law.  However, the task before me is not to decide whether or not her Honour is in fact right but whether there is a reasonable argument which could be raised and is of sufficient strength to warrant consideration by a Full Court.

In my view, the matter is not beyond argument and accordingly I make an order that the application be granted.  I make no order as to costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             29 May 1998

Applicant:	Litigant in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 May 1998
Date of Judgment:	29 May 1998