SZHLW v Minister for Immigration and Citizenship

[2007] FCA 1350

FEDERAL COURT OF AUSTRALIA

SZHLW v Minister for Immigration & Citizenship [2007] FCA 1350

SZHLW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 759 OF 2007

DOWSETT J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 759 OF 2007

BETWEEN:

SZHLW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application filed on 2 May, 2007 be dismissed;

2.the applicant pay the first respondent’s costs of the appeal.

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 759 OF 2007

BETWEEN:

SZHLW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against a decision of a federal magistrate hearing an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”).  The applicant is a Chinese national who travelled to Australia on 29 August 2004 on a passport issued in March 2004, bearing a visa granted on 13 August 2004.  He claimed to fear persecution in China by reason of his activity in leading protests in connection with lost wages following the financial collapse of his employer.  It is sufficient to say, as appears from the magistrate’s decision, that the Tribunal was unwilling to accept the credibility of the applicant’s claims. 

2. As is frequently the case, before the magistrate, the applicant made many submissions which were in the nature of criticisms of the merits of the decision of the Tribunal, particularly the decision not to accept his claims. However, a number of other matters were raised. One involved reliance upon s 424A of the Migration Act 1958 (Cth) (the “Act”). Another was an allegation of bias against the Tribunal, and a third was that it had misunderstood the nature of its duty. The magistrate recognised that most of the criticisms appeared to be as to the merits of the case and correctly declined to intervene in connection with such matters. As to s 424A the magistrate concluded that the matters in question had been put to the Tribunal by the applicant in the course of his oral submissions and therefore were not subject to the requirements of s 424A. The only exception to this were the dates of his passport, visa and travel arrangements. These matters were put to the applicant pursuant to s 424A by letter dated 15 July 2005. As to the question of bias the magistrate found no evidence in support of that claim.

3. An applicant for an extension of time in which to appeal must usually do two things. Firstly, the applicant must explain the reason for the delay.  Secondly, he or she must advance a viable ground of appeal in the sense that it is at least arguable.  As to the delay the applicant said, in an affidavit in support of this application, that he did not appeal because he thought that he had to wait for the judgment and did not receive it in time.  It seems that the magistrate pronounced reasons for judgment immediately after the hearing on 27 February 2007.  If so, then the time for appeal expired on 20 March 2007.  I note, however, that the revised reasons are dated 14 March 2007.  It may be that the applicant did not receive them until shortly before the expiry of the appeal period.  He told me from the bar table today that the reason for his delay was that he entrusted the further prosecution of the matter to a friend who apparently did not get around to doing anything about it. 

4. Had I thought that there was a viable ground of appeal I would have taken an indulgent view of the applicant’s delay in launching the appeal.  This is because of the delay in the revised reasons becoming available, the probability that he suffers some disadvantage in connection with his command of English and the fact that he is unrepresented.  However, having regard to the way in which the matter was conducted before the magistrate and the proposed grounds of appeal, it is clear to me that there is no viable ground.  In the draft notice of appeal he identifies three “particulars”.  These relate to his “grounds” that the magistrate erred in law and was wrong in finding that the Tribunal acted properly.  The first particular is that the Tribunal failed to consider his claims properly and fairly.  I asked him to elaborate upon this.  He said that it really meant that the magistrate had not accepted the facts as he put them.  In other words he wishes to appeal on the merits. 

5. The second “particular” is that the Tribunal failed to comply with its obligations under s 424A. The applicant said of this ground that a friend had prepared the draft notice for him and that he did not know what it meant. That is understandable. However the magistrate has, on the face of the reasons, dealt with complaints made concerning s 424A. Her reasons are clear, and I see no basis on their face for doubting their correctness.

6. The third particular is that the Tribunal was biased.  When asked to expand upon this particular the applicant said that it related to the fact that the Tribunal had not believed him.  Again, it is an attempt to appeal on the merits.

7. In those circumstances it is clear that no viable ground of appeal is advanced.  The application must be dismissed.  I order that the applicant pay the respondent’s costs of the application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       28 August 2007

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the First Respondent:	DLA Phillips Fox
Counsel for the Second Respondent:	The second respondent did not appear.
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007