SZGJX v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 365

FEDERAL COURT OF AUSTRALIA

SZGJX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 365

SZGJX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2643 of 2005

ALLSOP J
31 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2643 of 2005

BETWEEN:	SZGJX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	31 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for an extension of time for the filing of a notice of appeal be refused.

2.        The applicant pay the costs of the respondent Minister for the hearing today.

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 2643 of 2005

BETWEEN:	SZGJX
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	31 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from an order made by the Federal Magistrates Court on 29 August 2005.  That order dismissed on a final basis the application for judicial review of the applicant.  It was not a summary dismissal after a hearing and so the applicant had a right to appeal to this Court from those orders.  The rules of this Court provide for a time limit of 21 days for the exercise of such an appeal right.  At the time of the handing down of the orders and reasons of the Federal Magistrates Court the applicant was in detention pursuant to the terms of the Migration Act 1956 (Cth) and was held at Villawood. 

2. The applicant gave evidence before me which I accept, as to his difficulties in obtaining interpreting and translation services in the weeks and months after 29 August 2005.  There is in evidence before me a letter from the Australian Government Solicitor setting out the circumstances of the availability of interpreting and translation services if needed at Villawood.  The fact is that I accept the applicant's evidence that he was, in effect, not aware of this and sought assistance from fellow detainees during the course of the latter part of 2005.  While it is unsatisfactory that the applicant was over two months out of time, if I were persuaded that there was an arguable ground of appeal I would not allow the delay to prevent my granting leave.

3. The difficulty that the applicant has is the identification of an arguable ground of appeal.  I do not say that critically of him.  He is a Chinese national with no training in Australian law.  Therefore in giving my reasons I propose to explain as briefly as I can the structure of the decision-making process of which he has been the subject.  The decision of the Refugee Review Tribunal which I have read and which was the subject of the judicial review application was made in 1999.  The decision sets out the circumstances of the applicant and his claims for protection.  I do not propose to set out the claims in full but the substance of them arose from activity that he had engaged in during the early 1990s.  His claims were based upon his having exposed corrupt high ranking officials in connection with the buying and selling of produce and food in or around Shanghai.  That may be an inadequate and overly brief summary but for present purposes it will suffice. 

4. To a degree the Tribunal accepted some of the evidence of the applicant.  However, significant parts of the applicant's evidence were disbelieved by the Tribunal.  The important elements of the claims of the applicant which would have, if accepted, been a substantial reason for considering the grant of a protection visa were not accepted by the Tribunal and indeed the Tribunal indicated that some of the evidence lacked credibility. 

5. The applicant must understand that it is not my function today to believe him or not believe him in his primary claims for protection.  By and large that is the function of the Tribunal in reviewing his claims afresh after the decision of the delegate.  The Tribunal must attend to the correct questions, consider the claims and material put forward by the applicant and conscientiously attempt to review all the matters put before it.  It must follow mandatory procedure laid down in the Act and it must accord the applicant procedural fairness in the hearing of his review application. 

6. It is sometimes said that questions of fact are only for the Tribunal.  That is an over-simplification and somewhat misleading.  If it were disclosed that the Tribunal had so irrationally and unreasonably approached the decision-making process the fact that the errors of the Tribunal were factual would not, or may not, protect the decision from being set aside.  The precise identification of a test in this regard can be elusive.  However it can be safely said that subject to the Tribunal misunderstanding its role or capriciously or unreasonably dealing with the application, factual conclusions will generally be within the jurisdiction of the Tribunal to make.

7. The amended application before the Magistrate set out two grounds of the application for review which were as follows. 

   1.The Tribunal recorded at RD 69.7 that the applicant, after he was freed in May 1995, “had continued working for the same company”.  The applicant says to this Court that he was not re-employed by the same company and that the Tribunal made a wrong finding of fact, resulting in jurisdictional error.  If the applicant develops this point in oral submissions at the final hearing, presumably he will need to explain the information in his original statement supporting his protection visa application at RD 27.7.

   2.The Tribunal, after accepting (at RD 75.6) that the applicant was involved in putting out an anti-corruption pamphlet that ‘would also have called for democracy”, found that this activity would not result in persecution.  However, the country information before the Tribunal indicated that the authorities punished Chinese nationals who pushed for democracy:  see for example RD 84.4 (“the party will not tolerate anyone taking advantage of those conditions to organize politically”) and RD 85.10 (“those who attempt to organize political associations to push for political reform are being very harshly repressed”).  In light of the country information, the Tribunal fell into jurisdictional error in making the above finding.

8. It can be seen from both these grounds that the complaints of the applicant were as to the factual conclusions which were reached by the Tribunal.  The second ground was also a complaint as to the conclusion of the existence of persecution on accepted facts.  That is also a factual question though one more transparently open to review if the Tribunal misunderstood the nature of persecution.  The Federal Magistrate dismissed the application primarily on the basis that the complaints were about findings of fact which were open on the evidence to the Tribunal to make.  The Federal Magistrate also indicated that the credibility of the applicant was one which was only for the Tribunal to consider.

9. Set against the qualifications which I have attempted to identify in my reasons today I see no basis for any argument that the Federal Magistrate fell into error.  I have read the Tribunal decision carefully on a number of occasions.  The Tribunal appears to have directed itself to the correct questions.  The Tribunal appears to have dealt with the material before it.  The conclusions which it reached unfavourable to the applicant were principally factual ones.  To the extent that they were not based on credit they appear to be open on the material before the Tribunal.  To the extent that they were based on the credibility of the applicant it does not appear on the material before me that the Tribunal abused its position or irrationally or capriciously reached those conclusions.  That is not to say that another person may not have accepted the evidence of the applicant.  This Tribunal member was charged with the responsibility of assessing the review of this applicant's claim and made the findings of fact that it did.

10. Although the applicant would have had an automatic and statutory right of appeal had he filed his application in time the requirement for leave to extend the time to file the notice of appeal permits and requires the Court to consider whether there is any likelihood of the appeal succeeding.  In considering that matter for the reasons I have given I do not see any basis for the likely success of the appeal.  Indeed I do not see any basis for any coherent argument as to any error of the Magistrate.  Thus I do not propose to allow the extension of time for the filing of a notice of appeal.

11. I order that the applicant pay the costs of the respondent Minister for the hearing today.  The costs are for the hearing today.  I do not propose to give detailed reasons as to why I am not ordering costs otherwise than for the hearing today.  They are evident from what has occurred previously.  This man has had to come to Court on a number of occasions.  It may not be the Australian Government Solicitor’s fault and I do not say it is but I do not see why this man should pay the multiple costs of the times he has had to come to Court when there was a difficulty.

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

Associate:

Dated:            11 April 2006

Applicant appeared in person assisted by an interpreter.
Counsel for the Respondent:	L Gazi
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 March 2006
Date of Judgment:	31 March 2006