SZFUC v Minister for Immigration and Multicultural Affairs

[2006] FCA 1191

FEDERAL COURT OF AUSTRALIA

SZFUC v Minister for Immigration & Multicultural Affairs [2006] FCA 1191

SZFUC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1043 OF 2006

DOWSETT J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1043 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFUC
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.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 1043 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFUC
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal from a decision of a Federal Magistrate refusing to review a decision of the Refugee Review Tribunal.  The delay was short, and the Minister accepts that in the event that a viable ground of appeal is demonstrated, the extension of time should be granted.  For that reason the proceedings today have focussed upon identification of the ground or grounds upon which the applicant seeks to rely.

2. Although he has elaborated upon them to some extent, those grounds appear fairly clearly from a draft notice of appeal which is before me.  I will make it exhibit 1.  Much of the applicant’s complaint focuses upon his assertion that he was unable to give a fair account of himself and his claims in the proceedings in the Tribunal.  He claims to have been confused and to have had language difficulties.  He also claims to have been upset by memory of earlier persecution in China.  He says that he was told to answer the questions of the Tribunal simply.  That was probably good advice. 

3. It is necessary to consider these complaints, and others to which I will come in a moment, against the background to the applicant’s claim.  Put simply, he claims to have been a member of the underground Roman Catholic Church in China, and to have been active in the affairs of that organisation, in particular in the conduct of a printing press.  He claims that he was, on occasions, subject to persecution, or conduct which might have amounted to persecution, whilst he was in China and that he left, on the advice of church authorities, for fear of further persecution.  He has, since arriving in Australia, been an active member of a Roman Catholic congregation.

4. He was invited to appear in the Tribunal and did so.  The Tribunal questioned him about various matters, including the basic doctrines of the Roman Catholic faith.  It seems that the applicant displayed a surprising lack of knowledge concerning the great feasts of the Christian Church.  This led the Tribunal to have some doubts about the applicant’s claims but, in the end, it accepted that he had been, whilst in China, a practising Roman Catholic.  It did not accept his claims of involvement with the underground church or to have been active in the affairs of that church.

5. The Tribunal also noted other perceived inconsistencies or curiosities about the applicant’s claims.  These included the fact that he had been able to leave the country on his own passport, and that he had delayed his departure for some time after the events which, he claimed, had prompted such departure.  Whilst one may cavil with the Tribunal’s views of some aspects of the evidence, no basis has been shown for interfering.  The applicant has not shown that any of its findings were unavailable on the evidence.  Indeed, although the applicant sought to criticise some of the findings, the thrust of his argument before me has rather been that there were other matters which he would have liked to have put before the Tribunal.

6. As I have said, he claims to have been upset and unable to give a good account of himself in the proceedings before the Tribunal, and that it ought to have given him the benefit of an adjournment in order to collect his thoughts.  However he concedes that he did not seek any such indulgence.  Whilst a tribunal or court will try to meet the reasonable requirements of a litigant or witness, especially where he or she is having difficulty in coping with the proceedings, it will not always be possible to create ideal conditions for an individual applicant.  It is not possible for this court to intervene on the ground that the Tribunal ought to have extended to the applicant an indulgence which he did not seek.

7. As I have said, the applicant also says that he was under a language disability.  He asked to have the services of a Mandarin interpreter.  Such an interpreter was present at the hearing.  The applicant now feels that he was at a disadvantage because his native dialect is different from Mandarin.  It is, however, difficult to see what else the Tribunal could have done to assist him, having provided an interpreter as sought.  The applicant seems also to assert that the advice he received to answer the Tribunal’s questions “simply” in some way limited his capacity to respond.  That is placing far too fine an interpretation upon the advice which was given.  Such advice is frequently given by counsel to witnesses.  I am unable to see that any of these matters amounts to a denial of procedural fairness. 

8. The applicant also relies upon an alleged failure to comply with the provisions of s 424A and 425 of the Act.  The Federal Magistrate understood this to be a complaint that the Tribunal had not explained the process by which it reached its decision concerning his evidence.  Before me the applicant, despite several invitations, did not identify any information which should have been provided pursuant to s 424A.  It is likely that the Magistrate correctly understood the matter, and that the applicant was really complaining that he was not given notice of the thought process adopted by the Tribunal in rejecting his evidence.  That is not information of the kind contemplated by s 424A.  As to s 425, I do not understand the nature of the applicant’s complaint.  He was invited to appear and did appear. 

9. In the circumstances any appeal has no prospects of success.  There is no viable ground.  The application must be dismissed.  There will be an order that the applicant pay the first respondent’s costs of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       4 September 2006

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006