SZATQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1796

FEDERAL COURT OF AUSTRALIA

SZATQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1796

SZATQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1540 OF 2004

EMMETT J
9 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1540 OF 2004

BETWEEN:	SZATQ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed on 21 October 2004 be dismissed as incompetent. 

2.The appellant pay the respondent’s 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	NSD1540 OF 2004

BETWEEN:	SZATQ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	9 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China.  She arrived in Australia on 21 August 2001 and on 14 September 2001 lodged an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 13 December 2001 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 9 January 2002 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 April 2003 the Tribunal affirmed the decision not to grant a protection visa.

2. On 16 June 2003 the appellant filed an application for an order of review in the Federal Magistrates Court of Australia.  That application was lodged in time because the reasons of the Tribunal were not published until 20 May 2003.

3. The matter was heard by the Federal Magistrates Court on 1 September 2004.  After the hearing, the Federal Magistrates Court gave leave to the appellant to file an amended application for an order of review. An amended application was subsequently filed on 8 September 2004.  On 24 September 2004 the Federal Magistrates Court ordered that the application be dismissed with costs.

4. On 21 October 2004 the appellant filed a notice of appeal to this Court.  On 24 November 2004 the Minister filed notice of objection to competency on the basis that the notice of appeal was not filed within 21 days after the judgment of the Federal Magistrates Court was pronounced.  On 1 December 2004 the Chief Justice determined that any appeal in the matter be heard and determined by a single judge.

5. The first question is whether, although no formal application has been made, I should extend the time within which to lodge the notice of appeal.  That question involves a consideration of whether there is an explanation for the delay and whether there are any merits in the appeal itself.  The appellant has filed an affidavit, sworn 2 November 2004, in which she stated that, in order to seek legal assistance, she asked a friend to provide her documents to a solicitor’s agency.  She does not understand English and relied on her friend to make any arrangements.  She says that her friend did not send back the relevant documents until 19 October 2004 and she could therefore not file a notice of appeal in time.  In the absence of cross-examination on the affidavit, I accept, for the purposes of this proceeding, the terms of the affidavit at face value.  However, I should observe that, in the course of argument, the appellant responded to questions from me that cast some doubt on whether she understood the nature of the contents of the affidavit.

6. The appellant’s original application for an order of review identified no ground that would constitute jurisdictional error and consequently take the decision of the Tribunal outside the definition in s 474(2) of the Act of a privative clause decision. Instead, the application narrates the substantive grounds upon which the apellant claimed to be entitled to a protection visa.

7. It appears that in the course of argument the appellant complained to the Federal Magistrate that she had not been given a fair opportunity to provide complete oral evidence.  The amended application raises two grounds:

   (1)an error of law constituting a jurisdictional error; and

   (2)a procedural error constituting an absence of natural justice. 

   As to the first, the amended application particularises the appellant's complaint as follows:

   (a)The Tribunal failed to provide a fair opportunity to provide complete oral evidence and a clear explanation during the hearing before the Tribunal.

   (b)The Tribunal failed to explain to the appellant clearly and thoroughly the reason why the Tribunal thought she was not a credible witness.

   (c)The Tribunal failed to consider the appellant's claims fairly, thoroughly and carefully and failed to set out properly and fairly the ‘real chance’ test. In that regard the Tribunal did not allow the appellant to give complete oral evidence during the hearing.

   (d)The Tribunal failed to give the appellant complete information and, in particular, the information as to the state of affairs in China.  The Tribunal failed to explain that information to the appellant clearly and thoroughly, and failed to ensure that the appellant fully and completely understood the information that was to be used by the Tribunal in its decision.

   (e)The Tribunal did not give the appellant a fair opportunity to comment on certain inquiries that might have been made.

   (f)The Tribunal failed to pay attention to the fact that it is impossible for an interpreter during a hearing before the Tribunal to translate special political terms accurately and that it was therefore impossible for the appellant to comment on the very limited information given by the Tribunal during the hearing.

8. The alleged procedural error was particularised as follows:

   (g)The Tribunal failed to demonstrate sufficient knowledge about the actual situation in China.

   (h)The Tribunal failed to provide the appellant a fair chance to explain her claims, to provide complete oral evidence and to clarify some of the issues during the hearing.

   (i)The Tribunal had a strong bias towards the appellant’s claims.

9. The notice of appeal to this Court asserts that the judgment of the Federal Magistrates Court is ‘absolutely incorrect’ and then sets out, virtually verbatim, the grounds listed in the amended application for an order of review. 

10. In its reasons, the Tribunal summarised the claims made by the appellant, both in her original application for a protection visa and in her application to the Tribunal.  In the course of doing so, the Tribunal also summarised the proceeding at the hearing before the Tribunal.  The reasons record a number of instances where questions were put to the appellant and the appellant responded.

11. The Tribunal accepted that the appellant is a citizen of the People’s Republic of China.  The Tribunal also accepted that the appellant had most recently worked as the head of personnel for a very large state-owned enterprise in Quindao as the appellant claimed.  However, the Tribunal was not satisfied that the appellant was a credible witness, at least in relation to her key protection visa claims.  The Tribunal found the appellant’s evidence about key matters inconsistent, or very general and lacking substance, or not supported by independent country information.  The Tribunal set out in its reasons the specific matters that gave rise to that conclusion.

12. In his reasons of 24 September 2004, the Federal Magistrate observed that the appellant had been represented at all times before the Tribunal by a migration agent.  He noted that the appellant was sent a letter by the Minister’s Department advising her of certain information that would be taken into account in assessing whether or not she met the criteria for the protection visa and requesting her comments on it.  The Federal Magistrate also pointed out that there was no evidence before the Tribunal that any such comments were received from the appellant and that the Tribunal itself held a hearing, which the appellant attended on 10 February 2003.

13. The Federal Magistrate records in his reasons that, when the matter came on for hearing, the appellant gave details of seven errors that the Tribunal was said to have made.  Towards the end of the hearing, she made a sustained complaint that she had never seen or received the relevant papers, including the country information concerning China, that had been taken into account by the Tribunal.

14. Because the Minister was unable to demonstrate conclusively that the appellant had the material, the Federal Magistrate, after hearing the parties, agreed to adjourn the matter for a short period so that the appellant could have access to the relevant materials and make any further submissions she wished to make.  The result was the filing of the amended application.

15. The Federal Magistrate then examined the grounds set out in the amended application.  In particular, the Federal Magistrate observed that failure of the Tribunal to give an applicant a proper opportunity to be heard is a matter of fact that must be proved by evidence.  His Honour observed that, at the very least, the appellant should have provided to the Federal Magistrates Court either on affidavit or otherwise evidence as to the proceeding.  His Honour considered that the reasons of the Tribunal gave every indication that the appellant was given a fair opportunity to respond to matters brought up by the Tribunal, there being no evidence from the appellant as to the proceeding before the Tribunal.

16. The Federal Magistrate dealt with each of the matters set out as grounds.  The appellant has advanced no further submissions beyond re-stating the grounds in the notice of appeal that, as previously noted, itself re-states the grounds in the amended application to the Federal Magistrates Court.

17. On the material before me I am not persuaded that there was any error on the part of the Federal Magistrates Court in dealing with the application for an order of review.  In any event, my examination of the reasons of the Tribunal does not indicate any jurisdictional error on the part of the Tribunal.  I am not convinced that there is any substance in the appeal.  If the appeal had been brought within time it would have been dismissed.  In the circumstances there would be no utility in extending the time for filing a notice of appeal.  It follows that the objection to competency should be upheld and the appeal should be dismissed as incompetent.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             15 March 2005

The Applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 December 2004
Date of Judgment:	9 December 2004