NBML v Minister for Immigration and Citizenship

[2007] FCA 283

FEDERAL COURT OF AUSTRALIA

NBML v Minister for Immigration & Citizenship [2007] FCA 283

NBML v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2404 OF 2006

MARSHALL J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2404 OF 2006

BETWEEN:

NBML
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.The application for an extension of time within which to file and serve a notice of appeal is dismissed.

3.The applicant pay the first respondent’s 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	NSD 2404 OF 2006

BETWEEN:

NBML
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time to file and serve a notice of appeal from a judgment of a Federal Magistrate.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia in early 2005. Soon thereafter the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as the department of the first respondent was known then. In his application for a protection visa, the applicant claimed to have a well-founded fear of persecution by reason of being a Falun Gong practitioner in China.  The applicant claimed he advocated the practice of Falun Gong to his family and friends and that he was warned by the police to cease that practice. The applicant claimed that when the Chinese authorities banned Falun Gong, he was arrested ‘under the name of anti-socialism’ and sentenced to imprisonment for one year ‘because I didn’t listen and follow the policies of the Central Chinese Party’. The applicant claimed his family paid a bribe to release him from prison.

3. A delegate of the first respondent refused the application for a protection visa. The applicant then applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a decision in his favour on this information alone and inviting him to attend a hearing. The applicant did not reply to the hearing invitation and failed to attend the hearing on the scheduled time and date.

   THE DECISION OF THE TRIBUNAL

4. Failing the applicant’s attendance at hearing, the Tribunal, pursuant to s 426A of the Migration Act 1958 (Cth), proceeded to make a decision without taking any further action to allow or enable the applicant to appear before it. The Tribunal considered the claims of the applicant to be essentially untested assertions which were unclear and lacking in detail in important respects. The Tribunal found there to be no persuasive evidence, on the information before it, to enable a positive state of satisfaction that there is a real chance the applicant will face serious harm for the purposes of the Convention either now, or in the reasonably foreseeable future, if he returns to China.

   GROUNDS BEFORE THE FEDERAL MAGISTRATE

5. By amended application filed at the hearing before the Federal Magistrate the applicant sought judicial review of the decision of the Tribunal claiming the following unparticularised grounds:

   ‘The Tribunal failed to bring to my attention a critical factor upon which the decision was likely to run so that I might have a chance to deal with it.

   In Tribunal’s decision letter, the officer listed some facts I provided to him about my backgrounds. He held questions to some of them, but not all. He wanted answers for those questions. But he failed to put them in writing to me and gave me an opportunity to reply.

   RRT officer didn’t give my application enough weight, although I have provided lots of information. Tribunal officer must have brought an impartial mind to the consideration of my claims.

   As I stated above, the RRT officer didn’t assess all of my statement provided to him as he had listed in his decision letter, but picked up those on which he wanted to rely on for his decision making. Something which was not clear to him, and he failed to give me the opportunity to deal with. Given that the decision was made subjectively and on a bias basis.’

6. The applicant claimed in his initial application to the Federal Magistrates Court that he did not receive the letter from the Tribunal concerning the hearing before it.

   THE JUDGMENT OF THE FEDERAL MAGISTRATE

7. The Federal Magistrate found, after taking oral evidence from the applicant about the circumstances of his claimed non-receipt of the letter inviting him to the hearing, that such evidence was unconvincing. The Federal Magistrate found that the Tribunal letters, which were correctly addressed and did arrive at the appropriate time, were either disregarded or the significance of them was not understood by the applicant. The Federal Magistrate said that pursuant to s 441C(4)(a) of the Act, the applicant would have been taken to have received the letter seven working days after the date of the document. The Federal Magistrate found that the Tribunal was entitled to proceed as it did relying on s 426A (1) of the Act.

8. The Federal Magistrate noted the first complaint of the applicant alleged a breach of s 424A of the Act, however no information was used in the decision of the Tribunal which was required to be disclosed to the applicant under s 424A. Rather, the Tribunal referred to a lack of information. Further, the Federal Magistrate found that the complaint about the failure of the Tribunal to give the application enough weight was an attempt to review the merits of the Tribunal’s decision. Similarly, the Federal Magistrate found there to be no evidence of bias in the Tribunal and considered that the Tribunal had not ignored relevant material.

   APPLICATION FOR EXTENSION OF TIME

9. The applicant filed his application for an extension of time on 11 December 2006, about five months out of time. The applicant claimed he did not attend the Tribunal hearing because he did not receive the invitation to the hearing. In his draft notice of appeal, the applicant raised the following grounds:      

   ‘1.I didn’t attend the Tribunal hearing because I hadn’t received the invitation, so the decision made due to my absence could be unfair.

   2.I believe the Federal Magistrates Court didn’t give me a fair judge. I was interrupted many times when I was answering questions or interpreting something and I believe the Judge had in his mind that assumption that I wasn’t telling the truth and he didn’t consider my situation sincerely. The decision was affected by this assumption and that was unfair for me.

   3.I require the Court consider my case according to my situation.’

10. The applicant did not appear before this Court and so did not offer an explanation for not seeking to appeal from the judgment below within 21 days or at an earlier time than December 2006.

11. No good reason has been offered for the delay. In accordance with Jess v Scott (1986) 12 FCR 187 at 195, there is nothing “out of the ordinary” in the circumstances of this matter to qualify for a “special reason” under O52 r15(2) of the Federal Court Rules 1979 (Cth) to justify an extension of time within which to appeal. The judgment appealed from is free from doubt. The decision of the Tribunal is free from jurisdictional error. In these circumstances, leave to extend time to file and serve a notice of appeal must be refused, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        6 March 2007

The Applicant did not appear.
Counsel for the First Respondent:	A Markus
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007