SZIXC v Minister for Immigration and Citizenship

[2008] FCA 1355

FEDERAL COURT OF AUSTRALIA

SZIXC v Minister for Immigration and Citizenship [2008] FCA 1355

SZIXC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 689 OF 2008

NORTH J
21 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 689 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIXC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file a notice of appeal against the judgment of Lloyd-Jones FM given on 22 January 2008 at the Federal Magistrates Court of Australia is refused.

2.The applicant pay the first respondent’s costs of the application save for the costs for preparation of the written submissions of the first respondent filed 13 August 2008.

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 689 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIXC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	21 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application for an extension of time to file and serve a notice of appeal from a judgment of the Federal Magistrates Court delivered on 22 January 2008: SZIXC v Minister for Immigration & Anor [2008] FMCA 37. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal signed on 5 January 2007 which affirmed a decision of the first respondent, the Minister for Immigration and Citizenship (the Minister) to refuse to grant the applicant a protection visa. The applicant was required to file and serve a notice of appeal from the judgment of the Federal Magistrate within 21 days after the judgment was pronounced, namely on 13 February 2008: O 52 r 15 of the Federal Court Rules (the Rules).

2. Order 52 rule 15 of the Rules relevantly states:

   (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.

3. The applicant filed an application for an extension of time on 14 May 2008, twelve weeks out of time.  Accordingly the application is to be determined under O 52 r 15(2).  Order 52 rule 15(2) provides a higher threshold than O 52 r 15(1)(b) as it requires there to be “special reasons” for the Court to extend the time where the application is made more than 21 days after the relevant date. 

4. It will be relevant in determining whether to extend to the time under O 52 r 15(2) in many cases to consider the explanation for the delay and also the chances of success on appeal: Jess v Scott (1986) 12 FCR 187. In the present case the explanation given for the delay by the applicant in an affidavit filed in support of the application was that he had failed to receive notice of the handing down of the decision of the Federal Magistrate.

5. The applicant appeared on the hearing of the application and gave a different explanation, namely that he was sick and forgot to file a notice of appeal.  There is therefore some doubt as to the real reason for the delay, but in any event, an important consideration in determining the application for the extension of time is the likelihood of success on the ultimate appeal.

6. Before the Tribunal the applicant, who claims to be a citizen of China, claimed a fear of persecution because of his religious beliefs.  In his written application, the applicant stated he was involved with a Christian group called the “Shouters” in 2000.  He said that members of the group had been tortured and that in 2003 he was detained for 24 hours by the police for questioning.  He said that just before he came to Australia in September 2005, a friend of his, Ming Feng, was imprisoned and revealed under torture the names of the members of the Shouters group.  He feared that he would be imprisoned as a result. 

7. At the hearing before the Tribunal, however, the applicant claimed that he had been detained for approximately six months in April 2004.  He claimed that he had been involved in guarding the premises in which Shouters’ meetings occurred and also in transporting and distributing Bibles for the church. 

8. The Tribunal considered some independent country information about the beliefs and organisation of the Shouters movement.  Ultimately, the Tribunal rejected the applicant’s claim on the basis that his fear of harm was not credible. The Tribunal said:

   A central claim of the Applicant is that he was a member of the Shouters church in China, into which he was baptized.  However, his responses at the hearing on 8 December 2006 when asked about Christianity in general and the Shouters church in particular were so vague, evasive and confused that they do not provide any grounds for believing him to have been a member of the Shouters church or any other Christian denomination.  Nor do they provide a basis for believing that he has ever had any significant involvement with the Shouters church or any other denomination.  I am not satisfied that a member of the Shouters church would be in complete ignorance of the name, details and written works of the founder of the church Ni Duosheng (Watchman Nee) as the Applicant clearly was.  His responses indicated that he was not even aware that such a person had ever existed.  I am not satisfied that, if he was a member of this church, he would be unable to describe its religious services beyond the vague generalizations [sic] which he offered.  His responses in this area gave no indication that they were informed by any authentic first-hand experience of religious worship.  I am not satisfied that a member of this church would be completely unfamiliar with the Bible, as the Applicant confessed himself to be.  Nor, on the basis of the Applicant’s responses to more general questions about Christianity, am I satisfied that he is a practising member of any other Christian denomination.

9. From that decision the applicant sought review in the Federal Magistrates Court.  The grounds of the application were:

   1.   The Tribunal had bias against me and made a decision on my application based on the officer’s assumption;

   2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.

10. The Federal Magistrate examined the requirements for establishing a case of both actual bias and apprehended bias and noted that there were no particulars provided in support of the allegation.  Nor was there any evidence in support of the allegation despite orders having been made by the Court for the applicant to provide such evidence. The first ground was therefore rejected by the Federal Magistrate.

11. The Federal Magistrate then addressed the allegation that the Tribunal had failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth) (the Act). He noted that the ground was also not particularised. The Federal Magistrate nonetheless analysed the procedure adopted by and the evidence upon which the Tribunal relied and held that the independent country information fell within the exception in s 424A(3)(a). Further, the Federal Magistrate found that the evidence submitted by the applicant in the form of photographs and a DVD purporting to show members of the applicant’s family involved in Shouters religious activities fell within the exception in s 424A(3)(b) of the Act. Accordingly neither forms of evidence were required to be put to the applicant for comment.

12. In the draft notice of appeal accompanying the application for an extension of time the following grounds are set out:

    1.   The Tribunal had bias against me and failed to consider the claims of my application.

    2.   The Tribunal did not provide me adequate particulars of the independent information.

    3. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons.

13. It can be seen that these draft grounds raise the same matters as were determined by the Federal Magistrate.  There is no error discernible in the reasoning of the Federal Magistrate and these draft grounds of appeal are therefore bound to fail. 

14. When the applicant was asked at the hearing of the application to explain the mistakes which he said were made by the Tribunal he said that he had produced a warrant to the Tribunal but it had refused to accept it because it had not been translated into English.  He said that he had tried to provide the same document to the Federal Magistrate and it was rejected for the same reason.  Asked whether he had the document in Court at the time of the hearing of this application, the applicant said he did not because he had moved accommodation and lost it in the transfer.  There is no evidence before the Court that the applicant attempted to rely on the document. There is no mention of any such attempt either in the reasons of the Tribunal or of the Federal Magistrate.  The Court does not accept that any such event occurred on the evidence which is before it. 

15. The applicant also indicated to the Court that he had information recently obtained that the police were presently looking for him.  This is not a matter which can be taken into account in determining whether the Federal Magistrate erred because it was not a matter which was, or could be, before the Court. 

16. The applicant then made a general complaint that the Tribunal had not been fair to him.  Again, there is no evidence before the Court which would substantiate that complaint let alone the necessary suggestion that any such unfairness amounted to jurisdictional error. 

17. In view of both the doubt as to the explanation for the delay in bringing the application for an extension of time, and the lack of any real prospect of success on the appeal on the grounds which have been proposed, the application for an extension of time should be refused.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        3 September 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms A Crittenden for Clayton Utz

Date of Hearing:	21 August 2008
Date of Judgment:	21 August 2008