SZGVA v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 340

FEDERAL COURT OF AUSTRALIA

SZGVA v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 340

SZGVA V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 547 OF 2006

JACOBSON J
SYDNEY
30 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD547 OF 2006

BETWEEN:

SZGVA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

30 March 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The applicant be granted an extension of time in which to file and serve a notice of appeal from the decision of Scarlett FM dated 18 October 2005.
2. The applicant file and sere the notice of appeal within seven (7) days of the making of these orders.
3. The hearing of the appeal is to be dealt with as a ‘fast track’ appeal and appropriate directions for the hearing of the appeal be made accordingly.
4. The costs in the application be costs in the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD547 OF 2006

BETWEEN:

SZGVA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	30 March 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 the judgment of Federal Magistrate Scarlett given on 18 October 2005. 

2. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) dated 4 March 1997.  The RRT affirmed a decision of a delegate of the Minister not to grant a protection visa.  The application for an extension of time was filed on 14 March 2006.

3. The only issue which may be arguable on an appeal is whether the RRT had before it a claim of persecution on religious grounds.  The RRT dealt with the application upon the footing that the applicant claimed to fear persecution for reasons of his political opinion.  The issue arises because in his statement of reasons for claiming refugee status the applicant said, inter alia:

   "My whole family believes in Catholicity. But in the rural areas of China, religious believers were attacked, it is not allow to have meetings, nor religious beliefs, we are forced to believe in communism.  This violates severely the Universal Declaration of Human Rights of UN."

   Background

4. The applicant is a citizen of the People's Republic of China.  He arrived in Australia on 7 October 1994 and subsequently made an application for a protection visa. 

5. On 15 January 1997, the RRT wrote to the applicant stating that it had considered all of his papers in relation to the case, but it was unable to make a favourable decision on that information alone.  The RRT invited the applicant to attend an oral hearing on 24 February 1997, but the applicant failed to do so.

6. The RRT stated that the applicant claimed to fear persecution in China for reasons of his political opinion and that the agent of persecution was, or would be, the State.  The applicant claimed that his forbears had been persecuted by the Communist regime and that they had suffered seriously under the regime. 

7. The RRT noted that the applicant claimed that he came from a Catholic family; it referred to the fact that the CCP held a political campaign to rectify what was described as "Right deviationist thinking" and to crack down on those who held different views.  It noted that the applicant claimed that he was dismissed from his position in the Church and that he was charged with propagating superstition and organising an illegal church; it also noted his claim that in 1993 he was forced to reform through labour, and that he eventually tried to get into Hong Kong.

8. The RRT accepted the applicant's claim that his forebears had suffered to a considerable degree during the first decades of the Communist revolution in China.  However, the RRT considered that the applicant had not indicated that the consequences of his family background were such as to continue the history of suffering into his own life.

9. The RRT said that while willing to accept that the applicant had some links with Catholicism, it did not accept that he engaged in pro-church behaviour to the extent which he claimed.  It said that even if he had become an active promoter of the Church his evidence that led to his sacking as an official and his period of reform through labour was brief.  The RRT said that the fact that he could rearrange his life led to a conclusion that his misfortunes fell short of persecution.  The RRT did not accept that the applicant was arrested and forced to return in custody to his village.  The RRT accepted that the applicant attempted to leave China for Hong Kong but it did not consider that this constituted persecution.

10. Federal Magistrate Scarlett was of the view that the applicant's delay in the proceedings was unwarranted and that this of itself justified a discretionary decision by the court not to grant relief in the application for review of the RRT's decision. 

11. The learned Federal Magistrate went on to say that the grounds of review raised by the appellant amounted to no more than challenges to the factual findings made by the Tribunal.  The learned Federal Magistrate also observed that the applicant did not attend the hearing in the RRT and that this left the RRT in a position where it did not have sufficient information on which it could be satisfied that the applicant had a well-founded fear of persecution.  The learned Magistrate found no reviewable error.

    Discussion

12. In his affidavit in support of the application for an extension of time, the applicant merely states that he does not agree with the judgment of Federal Magistrate Scarlett.  He says that the judgment failed to consider the RRT's decision and that there was no basis for it.  He also says that he did not know about the appeal being out of time and asks that any further application should be accepted. 

13. I note that the applicant is in immigration detention. 

14. Whilst the solicitor for the Minister observes that the affidavit does not contain any explanation for the delay, I think that in the circumstances I would not decide the application against the applicant on that ground.

15. The applicant attaches to his application a draft notice of appeal which contends in very general terms that the RRT failed to consider and properly exercise a discretionary power and that the judgment of Federal Magistrate Scarlett failed to consider that the RRT had no basis for the decision to which it came.

16. The Minister's solicitor argues that there are no prospects of success on an appeal.  She submits that the possible claim for persecution on the ground of religion was interlinked with the claimed fear of persecution on political grounds.  She also submits that on a fair reading of the decision of the RRT, the RRT dealt with all of the applicant's claims including any possible claim to fear persecution on religious grounds.

17. The only question which I need to address is whether it is at least arguable that the RRT failed to deal with an integer of the applicant's claim. 

18. Whilst there may be some force in what was put by the solicitor for the Minister, I think that it is sufficiently arguable that the RRT failed to deal with a claimed fear of persecution on religious grounds and that I ought to exercise my discretion to extend the time for filing the notice of appeal. 

19. Although, as I have said, the notice of appeal is in very general terms, it does sufficiently raise the point which I have referred to as warranting an extension of time and I will make an order extending the time for filing the notice of appeal.

20. I will extend the time for filing the notice of appeal to seven days from today's date.  I note that as the applicant is in detention, the appeal should be dealt with as a fast-track appeal and in due course directions can be made accordingly.  The costs of the application for an extension of time are to be costs in the appeal.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             4 April 2006

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	30 March 2006
Date of Judgment:	30 March 2006