SZJDP v Minister for Immigration and Citizenship

[2008] FCA 225

FEDERAL COURT OF AUSTRALIA

SZJDP v Minister for Immigration & Citizenship [2008] FCA 225

Migration Act 1958 (Cth) ss 420, 421(1)

Jess v Scott (1986) 12 FCR 187 cited

SZJDP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2191 OF 2007

EDMONDS J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2191 OF 2007

BETWEEN:

SZJDP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be refused.

2.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	NSD 2191 OF 2007

BETWEEN:

SZJDP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an application filed on 6 November 2007, the applicant seeks an extension of time to file and serve a notice of appeal from the judgment of the Federal Magistrates Court (Raphael FM) delivered on 10 October 2007.  His Honour subsequently published his reasons for judgement: SZJDP v Minister for Immigration & Anor [2007] FMCA 1782.

   BACKGROUND

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 30 November 2005 under his own passport obtained in China and issued in December 2003, and on a short stay Business visa.  The applicant lodged an application for a protection visa on 13 January 2006.  On 16 March 2006, a delegate of the first respondent (‘the Minister’) refused the applicant’s protection visa application.

3. In brief, the applicant claimed a fear of persecution arising from his practise of Falun Gong.  He claimed he had been arrested, detained and ‘brain-washed’ by the authorities and warned of further consequences should he continue his activities.

4. The delegate refused the application on the basis that the applicant’s statement was ‘vague and unconvincing’.  The delegate also found the authorities’ actions in releasing the applicant ‘highly unusual’ given his refusal to renounce Falun Gong.  The delegate noted the applicant’s possession of a passport since 2003 and considered if he had genuinely possessed a fear of persecution he would not have waited until 2006 to depart China.

5. Before the Tribunal, the applicant repeated his central claims and added that his business activities prompted his departure for Australia.  The applicant claimed he joined Falun Gong in late 1999 after his marriage.  He claimed he attended meetings and exercises with fellow practitioners in Fudjio City and that such meetings were everywhere.  The applicant said he had been arrested in his home and detained for a month but had not been provided with any documentation in relation to the arrest or release.  He said he was released after paying bribes to the authorities, following which he returned to work and experienced no further difficulties. He said he practised Falun Gong in Australia only ‘slightly’ because he had been busy trying to find work.

6. The applicant said he had received information from his wife in China that the authorities were going to punish him, which prompted his decision to stay.

   TRIBUNAL’S FINDINGS

7. The Tribunal was not satisfied the applicant ‘... is in fact or was ever a Falun Gong practitioner’.  The Tribunal considered it implausible that the applicant could have joined others in public to practise Falun Gong when that organisation had been banned in 1999.  The Tribunal’s view was strengthened by the fact that the applicant had only a ‘slight’ association with Falun Gong since his arrival in Australia and the fact he had not provided any corroborative information in support of his claim.

8. Accordingly, having reached this conclusion, the Tribunal did not accept the applicant had been arrested and detained for reason of his Falun Gong activities.

   FEDERAL MAGISTRATES COURT

9. In his reasons for judgment, at [1] – [5], his Honour summarised the applicant’s claims and the Tribunal’s findings.  Before the Court, the applicant did not put forward any clear legal ground of review but complained that the Tribunal did not believe him and that the questions put to him by the Tribunal made him nervous.  However, no transcript evidence of the hearing before the Tribunal was provided in support of this claim.

10. His Honour’s reasons (at [6] – [13]) reveal that any possible or potential ground of review was fully considered.  However, his Honour concluded that he was ‘... unable to find any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached this particular decision’ (at [14]).

    APPLICATION FOR LEAVE TO APPEAL

11. Order 52 rule 15(2) of the Federal Court Rules 1979 gives the Court power to grant leave to an applicant to file and serve a notice of appeal at any time for special reasons.  The principles to be applied in consideration of such an application are set out in Jess v Scott (1986) 12 FCR 187.

12. In his affidavit filed in support of the application, the applicant acknowledges he has made an error because he thought an appeal from the judgment of the Federal Magistrate could be made within 28 days.  The Minister submits this explanation is insufficient to justify a departure from the ordinary rule prescribing the period within which an appeal must be filed and served.  Reference is made to what was said in Jess v Scott at 195 concerning the phrase ‘special reasons’:

    ‘It is an expression describing a flexible discretionary power but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.’

13. The Minister further observed that his Honour delivered judgment ex tempore and made orders dismissing the application at the conclusion of the hearing which the applicant attended, assisted by an interpreter, and submits that the applicant was immediately put on notice of the orders made and the decision reached from which any appeal was to be made.

    GROUNDS OF APPEAL

14. There are two ‘grounds’ set out in the draft notice of appeal, neither of which, the Minister submits, raise any error of law in the judgment of the Federal Magistrates Court or in the decision of the Tribunal.

15. In the first ground, the applicant complains that his Honour erred in not finding that the Tribunal had not complied with s 420 of the Migration Act 1958 (Cth) (‘the Act’). This was not a ground explicitly relied upon by the applicant in the proceedings below but was put forward by the Court as a possible basis for the applicant’s complaint that the Tribunal had not complied with s 424(1) of the Act.

16. For the reasons given by his Honour at [13], the Minister submits no error is revealed by this suggestion of his Honour below or in the Tribunal’s decision.  I agree.  This ground, as raised, cannot succeed.

17. In the second ground, the applicant complains his Honour erred in his ultimate finding that the Tribunal had not erred in reaching the decision made.  No further particulars are given.  Without more, this ground also cannot succeed.

18. In determining whether to grant the applicant’s present application, one matter which the Court is entitled to have regard to is the prospect of any appeal succeeding if that application was granted.  In the present case, the Minister submits that the judgment of his Honour below is not affected by any error and that the grounds set out in the draft notice of appeal would have no prospect of success.  I agree.

19. The applicant filed no written submissions in support of his application.  On the hearing of his application he said, through a mandarin interpreter, that he relied on what he said to the court below.

    CONCLUSION

20. For the reasons set out above, the applicant’s application for an extension of time to file and serve a notice of appeal must be refused 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 Edmonds.

Associate:

Dated:        5 March 2008

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Ms E Knight
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	3 March 2008
Date of Judgment:	5 March 2008