SZHQR v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 634

FEDERAL COURT OF AUSTRALIA

SZHQR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 634

SZHQR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL

NSD 659 OF 2006

BENNETT J
10 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD659 OF 2006

BETWEEN:

SZHQR
APPLICANT

AND:

MINISTER FOR IMMIGRATION OF MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as second respondent in these proceedings.

2.The applicant’s application for extension of time in which to file and serve a notice of appeal be dismissed.

3.The applicant pay the first respondent’s costs.

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	NSD659 OF 2006

BETWEEN:

SZHQR
APPLICANT

AND:

MINISTER FOR IMMIGRATION OF MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	10 MAY 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 the Federal Magistrates Court of 20 February 2006.

2. The key difficulty for this applicant is that he did not attend a hearing before Refugee Review Tribunal.  He claimed a fear of persecution on the basis that he was a Falun Gong practitioner in China.  The Tribunal considered the material before it and identified the lack of detail in the information available.  Putting together all of the applicant's claims and the relevant independent country information, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees.  The Tribunal did not accept that the applicant had ever been a Falun Gong practitioner or that he had suffered harm for this or any other Convention related reason.

3. The applicant appealed the Tribunal’s decision (‘the first Tribunal decision’) to the Federal Magistrates Court. Scarlett FM observed that the applicant may not have been well served by his migration agent.  His Honour accepted that the applicant had grounds for complaint against his migration agent but noted that that did not establish an error on the part of the Tribunal.  His Honour concluded that there was no reviewable error and dismissed the application.

4. On 12 September 2005 the applicant made a second application to the Tribunal seeking a review of the decision of the delegate of the first respondent.    The Tribunal held that, having already discharged its functions under the Migration Act 1958 Cth (‘the Act’) to review the delegate's decision, it no longer had jurisdiction in relation to that decision.  The Tribunal observed that there was no suggestion that the first Tribunal decision involved jurisdictional error.  The applicant’s authorised recipient had been notified of the delegate’s decision in compliance with s66 of the Act.  The applicant was therefore taken to have received the notice within the relevant period.  As the second application was received outside the prescribed time limit, the Tribunal held it to be not a valid application for review.

5. The appellant appealed the second Tribunal decision to the Federal Magistrates Court.  In the amended application the applicant asserted jurisdictional error and a failure on the part of the Tribunal to comply with s 424A of the Act.  It was asserted that such failure was in relation to the first Tribunal decision.  In effect, as was noted by Smith FM, the applicant was seeking a redetermination of the first Tribunal decision.  Smith FM observed that the matter had already been heard by Scarlett FM from whom there had been no appeal.   His Honour observed that the applicant had not appreciated the final effect of Scarlett FM’s judgment. 

6. Smith FM considered that both of the Tribunal’s reasons for finding that it did not have jurisdiction to consider the second Tribunal application were correct.  His Honour held that he, therefore, did not have power to give the orders now sought by the applicant in his application and held that he must dismiss it.  His Honour also held that it was not open to the applicant to seek to re-litigate the validity of the first Tribunal decision even by raising an argument that had not been put to Scarlett FM.

7. In his application for an extension of time in which to file the notice of appeal the applicant seeks to explain his delay in filing in this Court.  He says that he needed assistance with his appeal because he does not speak English and does not understand Australian law. 

8. None of the matters that have been raised in the applicant’s affidavits or in the draft notice of appeal raise any matter other than the merits of his case.   The applicant now asserts that he is a Roman Catholic and fears persecution on return to China for that reason.  The present affidavits make no mention of his practice of Falun Gong.  When I asked the applicant why that was so, he said that he is still a Falun Gong practitioner but has also become a Roman Catholic since arriving in Australia.  To the extent that he is seeking to raise before this Court a new claim that he fears persecution in China because he is a Roman Catholic, that is not a claim that was made to the Federal Magistrate or to the Tribunal.  I should add that it is put by the applicant, understandably perhaps, by way of mere assertion.

9. The applicant has not been able to show any error on the part of the Federal Magistrate or any jurisdictional error in either the first or second Tribunal decisions.  That is not to say that this Court has jurisdiction now in respect of the first Tribunal decision.  However, it seems to me that there has been no error shown by either Tribunal or by either of the Federal Magistrates in the conclusions that they have reached. 

10. Even if I were to accept the reasons for the delay in filing this notice of appeal, I cannot see that the appeal has any prospects of success.  The applicant has said to me that he has had numerous discussions with persons from the Department and that they are familiar with his case.  I assume that their familiarity extends to the fact that the applicant has a new basis for a fear of persecution upon his return to China.  In any event, that is not a matter for me.

11. I direct that the Refugee Review Tribunal be joined as a second respondent in the proceedings.  The application for leave in which to extend time to file and serve a notice of appeal is dismissed and I order the applicant to pay the first respondent's costs.

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

Associate:

Dated:             10 May 2006

The applicant appeared in person, assisted by an interpreter.

Solicitor for the Respondent:	L. Leerdan, Phillips Fox
Date of Hearing:	10 May 2006
Date of Judgment:	10 May 2006