SZINF v Minister for Immigration and Citizenship
[2007] FCA 1281
•20 August 2007
FEDERAL COURT OF AUSTRALIA
SZINF v Minister for Immigration and Citizenship [2007] FCA 1281
SZINF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1122 OF 2007COLLIER J
20 AUGUST 2007
BRISBANE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NSD1122 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZINF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
20 AUGUST 2007
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The Refugee Review Tribunal be joined as second respondent.
2.The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NSD1122 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZINF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
20 AUGUST 2007
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an application for extension of time to file and serve a notice of appeal from a judgment of Raphael FM of 12 April 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 27 January 2006 and handed down on 16 February 2006.
The Tribunal was not a party to this application. In accordance with the decision of the High Court in SAAP v MIMIA (2005) 215 ALR 162 I order the Tribunal joined as second respondent.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 11 October 2005. On 3 November 2005 the applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
In his application for a protection visa, the applicant claimed to have been a Falun Gong practitioner since 1996 and to have attended demonstrations in Beijing. The applicant claimed that he had been detained by police for 48 hours. He claimed he was unable to practise freely and was strictly supervised by government officials. The applicant claimed to have continued practising in secret and that he assisted a Falun Gong branch leader to develop their branch rapidly. In March 2005 the leader was detained and police came to search the applicant’s home the next day. The applicant paid a large sum of money for a passport to come to Australia.
The decision of the Tribunal
A delegate of the first respondent refused the application for a protection visa on 18 November 2005. On 19 December 2005 the applicant applied to the Tribunal for a review of that decision. In a letter dated 22 December 2005 the Tribunal informed the applicant that it had considered the material before it but was unable to make a decision in his favour on the information alone. Consequently, in that letter the Tribunal invited the applicant to hearing scheduled for 25 January 2006.
The Tribunal noted in its decision that the applicant failed to respond to the hearing invitation, failed to attend the hearing and failed contact the Tribunal to explain his failure to attend. The Tribunal proceeded pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”) to make a decision on the review without taking any further action to enable the applicant to appear.
Federal Magistrate
The Tribunal noted that the applicant had not provided additional information which would give the Tribunal an opportunity to explore his claims. The Tribunal listed the relevant questions which remained unanswered. It found that in the circumstances, it was not satisfied about any of the applicant’s claims and could not be satisfied the applicant had a real chance of serious harm and therefore well-founded fear of persecution for a Convention reason.
On 20 March 2006 the applicant sought judicial review of the Tribunal’s decision by filing an application in the Federal Magistrates Court. Before the Federal Magistrate, the applicant relied on an amended application filed on 7 July 2006 which raised grounds that:
·the Tribunal failed to carry out its statutory duty pursuant to s 424A of the Act
·the Tribunal did not consider the application according to s 91R of the Act
·the Tribunal was biased
·the applicant was not given a proper opportunity to explain the application.
The applicant submitted at hearing before his Honour that he only received the invitation to the Tribunal hearing at noon of the same day. However, his Honour noted that there was no evidence as to who gave the applicant the letter from the Tribunal or why he did not immediately contact the Tribunal to indicate he could not attend.
The Federal Magistrate found that in the applicant’s absence, the Tribunal was unable to reach the level of satisfaction as required by s 65 of the Act. The responsibility for providing the Tribunal with the requisite level satisfaction belonged to the applicant. His Honour found none of the grounds raised established jurisdictional error and dismissed the application.
The applicant filed his application for an extension of time on 19 June 2007. Accompanying that application was an affidavit annexing a draft notice of appeal that asserts the applicant met the criteria to be a refugee, that the Tribunal did not consider the matter properly and that the Tribunal was biased.
Federal Court
There was no appearance today by the applicant in this matter. Notwithstanding the failure to appear, I am prepared to give judgment on the merits of this case based on the material before me.
Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Court or the Federal Magistrates Court are found in O 52 r 15 Federal Court Rules. The rule provides:
(1) The notice of appeal shall be filed and served -
(a) within 21 days after -
(i) the date when the judgment appealed from was pronounced;
(ii) the date when leave to appeal was granted; or
(iii) any later date fixed for that purpose by the court appealed from; or
(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.
(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.
I have already noted that the application was filed on 19 June 2007. As the applicant clearly seeks to appeal outside of 21 days from delivery of the judgment of the learned Federal Magistrate, leave of the Court is required by O 52 r 15(2).
Before the Court grants leave however, the applicant must demonstrate “special reasons” to justify the extension of time.
There are a number of guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2):
1.Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time.
2.Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.
3.Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.
4.However, the mere absence of prejudice is not enough to justify the grant of an extension.
5.The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
(Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, adopted by the Full Court in Parker v The Queen [2002] FCAFC 133 at paras 6-7.)
Although the Minister has conceded that the he has suffered no prejudice because of the delay in filing the Notice, the applicant has not given any reason as to the delay in filing the Notice of Appeal. Accordingly it is not possible to ascertain whether the applicant’s explanation for the delay is acceptable.
The Minister has submitted however that an extension of time should not be granted because, even if a special reason for the delay is provided, the appeal has insufficient prospects of success.
In my view the appeal has no prospects of success for the following reasons:
1.The grounds of appeal are not particularised, nor supported by any evidence whatsoever. Because of the applicant’s failure to attend the Tribunal hearing no information was provided by him as to his possible refugee status; the Tribunal was entitled to decide the applicant’s case on the material before it; and there is absolutely no evidence of bias by the Tribunal.
2.I can identify no error in the findings of Raphael FM at first instance, and indeed adopt the findings of his Honour at paras 3-4.
In my view no special reasons have been demonstrated which would justify a grant of leave to file and serve a notice of appeal out of time. Accordingly the application is dismissed.
THE COURT ORDERS THAT:
1.The Refugee Review Tribunal be joined as second respondent.
2.The application be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 20 August 2007
Counsel for the Applicant: There was no appearance by the applicant Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007
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