SZEQV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 652

FEDERAL COURT OF AUSTRALIA

SZEQV v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 652

SZEQV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD589 OF 2005

BENNETT J
9 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD589 OF 2005

BETWEEN:	SZEQV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	9 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file and serve a notice of appeal is refused.
2. The applicant is to 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	NSD589 OF 2005

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

JUDGE:	BENNETT J
DATE:	9 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to appeal against the orders and judgment of Federal Magistrate Scarlett of 17 March 2005.  His Honour dismissed with costs an application for judicial review that had been filed in the Federal Magistrates Court on 5 November 2004.  This application was in respect of a second hearing before the Refugee Review Tribunal (‘The Tribunal’) in respect of the applicant’s application for a protection visa in circumstances where the applicant had been allowed the opportunity to lodge a second protection visa application.

2. The application to this Court has been filed out of time.  The applicant has explained in an affidavit the reason for his failure to file in time.  He says that he did not receive a copy of Scarlett FM’s order until 7 April 2005.  His application for an extension of time was filed on 18 April 2005.  In the circumstances of such a short delay and where the respondent does not take issue with that delay, I accept the explanation of the applicant.  However, that is not sufficient for the Court to allow the applicant to file and serve his notice of appeal. 

3. If the applicant is unable to identify any arguable ground of appeal, the appeal would be futile and the Court will not grant an extension of time in which to appeal (VUAD of 2003 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186). Leave to appeal out of time will be refused if it appears that there is no prospect of success on the appeal and if there is no satisfactory explanation for delay (Wilson v Alexander [2003] FCAFC 272 at [25] and [26]). While there has been a satisfactory explanation for delay, it is necessary for me to ascertain whether the appeal has any prospects of success.

4. The applicant appears to have set out the grounds of appeal in an affidavit to which a draft notice of appeal is annexed.  As the draft notice of appeal does not set out any grounds of appeal, I shall refer to the affidavit, the six paragraphs of which are as follows:

   ‘1.I made the appeal for the court order delivered at 17 March 2005 at Sydney on the following grounds.

   2.For the last hearing of my case, the Court did not accept the supplementary evidences I submitted to Court due to its delay.  I hope this time the Court would use these evidences at hearing of my cases as I would make a timely submission.

   3.I am grateful that at the last hearing the judge accepted the fact that I have been a dissident with the political opinion unsanctioned by the Chinese Communist Party for more than ten years.  It is well known how the Chinese authority would persecute its political dissidents.

   4.I am a Falun Gong practitioner.  I am living a life according to Falun Gong belief of Truthfulness, Benevolence and Tolerance.  I have tried my best to be a compassionate and integrated person.  However the Chinese government has never stopped its persecution of Falun Gong practitioners.  I once donated the money to Australian Red Cross at the most difficult time in my life.  If in the future my financial situation is improved, I would make regular donation to Australian Red Cross.

   5.I had the contact with the US embassy at Seoul, South Korea on 25 June 2001.  If I am forced to return to China, I would be persecuted to death by the Chinese authority.

   6.I sincerely wish that your honourable judge would reconsider the serious fact that I would be subject to the ruthless persecution or the death penalty imposed by the Chinese authority if I return to China.  I wish your honourable judge would exercise your compassion and your understanding to decide my case according to the Australian law regarding the Refugee protection.’

5. To my mind, these matters do not establish error on the part of the Federal Magistrate, nor do they establish jurisdictional error on the part of the Tribunal. 

6. I note that in dismissing the application for judicial review, Scarlett FM set out many of the matters that were raised by the applicant at the hearing.  His Honour referred to a lengthy document that was apparently tendered by way of submission.  After considering all of the evidence and noting that he had some sympathy for the applicant, Scarlett FM observed that the Court is not to reconsider the merits of the case or the factual decisions of the Tribunal when exercising judicial review.  Importantly, his Honour said at [26] of his reasons:

   ‘I have conducted my own investigation of the evidence before me to see whether there is any sign of procedural unfairness or denial of natural justice. I have not been able to find any of such things. The applicant was invited to a hearing and he attended.  He submitted a variety of documents beforehand. Those documents have been translated into English.’

7. His Honour's conclusions are set out at [30] of his reasons:

   ‘The tribunal made certain findings and gave reasons for those findings.  There was evidence before the tribunal that allowed the tribunal to make those findings.  The fact that a Court may not have made the same factual findings is not relevant to these proceedings.  The Court is not entitled to substitute its own view of the facts for the view of the tribunal.’

8. As his Honour said at [31] of his reasons:

   ‘The applicant is quite clearly an intelligent and well educated man.  He appears to be a polite and very personable man. Unfortunately for him, the tribunal did not accept his evidence on a number of important points.’

9. The applicant appeared before me in person assisted by an interpreter.  He pointed out that he had not had the benefit of legal advice in respect of the proceedings before the Tribunal, and sought an adjournment to enable him to obtain legal advice.  I note, however, that this issue was not raised before Scarlett FM and that his Honour conducted an independent review of the Tribunal’s decision.

10. The applicant also handed up a document, which I have taken to be in the form of written submissions, setting out further grounds in support of his application:

    ‘The applicant was notified of the decision that is the subject of the application on the 28^th of October 2004, which is the date that the applicant was refused protection visa by the Refugee Review Tribunal (RRT) and on the 17^th of March 2005 was the date that the applicant was also refused to be granted a protection visa by the Federal Court.

    The applicant claims:

    1.He has more evidence now (since 25^th of April 2005) to prove that he is a true refugee, and his life and safety and security is facing real and immediate danger or at least the depravation of his basic human right and/or other severe human right violations if he returns to the Communist Chinese Territory.

    2.He claims he wants the decision to be reversed and henceforth grant him a protection visa.

    The grounds of the application are:

    1.During his court appearances he misunderstood a lot of what the officials said, due to his limited English abilities, but since the 25^th of April 2005, he has received help from many English speaking friends, he has received written references and many other evidences from them, that he did not have before mainly due to the fact that his English is poor and he lacked help from other people.

    2.The applicant claim the court mistreated him by not providing a lawyer and not providing him enough legal advices. He also claimed that the immigration official mistreated him during one of the court appearances, one of the officials asked him: “Why do you use a female interpreter?” Which is totally irrelevant to the case and caused him to be emotionally anxious and confused and henceforth he did not perform and speak well in court.

    3.The applicant wants to know clearly why he was refused to be granted a protection visa, and what legal requirements did he not fulfil. If he was refused to be granted a protection visa and the reason is failing to provide enough reasonable evidence to support the he is a true refugee and his life will be in danger if he returns to Communist China, the how much more evidence does he need to get to reach the requirements.

    4.He will get more evidence and written references from his eyes witnesses and will do exactly what the court say to fulfil the requirements of the court and handing over the reasonable and correct documents and evidences needed for a refugee’s protection visa.

    5.He will need the court to provided him interpreters and legal advisors every time simply because his English is not very good and don’t know enough about the law.’

11. Unfortunately, none of those grounds establish error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  Having read the Tribunal’s decision, it is my opinion that the Tribunal’s findings were based upon an assessment of the credibility of the applicant.  The Tribunal made factual findings as to the applicant’s credit and as to its acceptance of his claims and those findings were, in my opinion, open to the Tribunal on the material before it.

12. The proposed appeal does not possess sufficient prospects of success.  Accordingly, the application for an extension of time in which to file and serve a notice of appeal should not be granted. 

13. The order of the Court is that the application for an extension of time to file and serve a notice of appeal be dismissed.  I also order the applicant to pay the respondent’s costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             24 May 2005

The applicant appeared in person assisted by an interpreter

Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 May 2005
Date of Judgment:	9 May 2005