SZGXQ v Minister for Immigration and Multicultural Affairs

[2006] FCA 789

FEDERAL COURT OF AUSTRALIA

SZGXQ v Minister for Immigration & Multicultural Affairs [2006] FCA 789

SZGXQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1037 of 2006

BRANSON J
15 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1037 of 2006

BETWEEN:

SZGXQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

15 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1037 of 2006

BETWEEN:

SZGXQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	15 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to appeal from a judgment of the Federal Magistrates Court delivered on 31 October 2005.  His application to this Court was filed on 26 May 2006.  His notice of appeal should have been filed by no later than 21 November 2005 (O 52 r 15(1)).  Nonetheless, the Court may ‘for special reasons’ give him leave to file and serve a notice of appeal (O 52 r 15(2)). 

2. When asked to explain why he failed to institute an appeal within 21 days after the pronouncement of the judgment of the Federal Magistrates Court the applicant explained that he did not know of the time limit that governs appeals to this Court from judgments of the Federal Magistrates Court.  It appears that the applicant sought free legal advice early in 2006 and was advised at that time that the preferable course might be for him to write to the Minister.  He was, of course, by then already out of time to institute an appeal as of right.  The applicant’s explanation does not allow me to know what it was that eventually resulted in his filing his application for an extension of time on 26 May 2006.

3. Whilst this Court is sympathetic to individuals in the applicant’s situation (ie to persons who do not speak English and cannot be expected to be familiar with Australian legal processes), I have found the applicant’s explanation for his late approach to this Court unsatisfactory.  I am left with the impression that he did not wish to be frank with the Court.

4. While the above conclusion alone would be sufficient to support a decision to refuse to extend the time to appeal, I additionally, and more significantly, place weight on the fact that the applicant has not identified any error in the judgment of the Federal Magistrates Court.

5. It appears that the draft notice of appeal which has been annexed to an affidavit filed with the Court by the applicant was drawn by somebody else.  The applicant has conceded that he does not understand its contents.  What the applicant has said today makes it plain that his concern is that the Refugee Review Tribunal did not believe the evidence that he gave before it.  It was for the Tribunal and not for the Federal Magistrates Court or this Court to determine the credibility of the evidence given by the applicant.

6. I have given careful consideration to the reasons for decision of the Tribunal.  Those reasons show that the Tribunal took an adverse view of the applicant’s credibility for two reasons.  First, the Tribunal considered that the evidence given to it by the applicant at the Tribunal hearing was internally inconsistent.  In particular, the Tribunal noted that the applicant said that he was living in his family home, and had worked in that area for over 10 years, until just before he came to Australia.  The Tribunal also noted that the applicant told it that he was in hiding for the latter part of that period.  The Tribunal considered that the applicant’s explanation for this apparent inconsistency to be implausible.

7. The Tribunal further found that the applicant’s delay in claiming protection in Australia for over two years after his arrival, together with his failure to tell anyone during that time about his claimed persecution in China, was another reason for doubting his credibility. 

8. I can see no reason to conclude that the learned Federal Magistrate erred in dismissing the application for judicial review of the decision of the Tribunal.  The applicant has therefore failed to satisfy me that there would be any merit in his appeal were I to grant him the extension of time which he seeks. 

9. The application is dismissed.

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

Associate:

Dated:            23 June 2006

The Applicant appeared in person.
Legal Advocate for the Respondents:	Mr Cramer
Solicitor for the Respondents:	Blake Dawson Waldron
Date of Hearing:	15 June 2006
Date of Judgment:	15 June 2006