SZJKV v Minister for Immigration and Citizenship

[2008] FCA 1322

FEDERAL COURT OF AUSTRALIA

SZJKV v Minister for Immigration and Citizenship [2008] FCA 1322

SZJKV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 781 OF 2008

GRAHAM J
13 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 781 OF 2008

BETWEEN:

SZJKV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	13 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Orders that the Application for an extension of time to file and serve a Notice of Appeal be dismissed.

2.Orders that the applicant pay the respondent Minister’s costs fixed in the sum of $1,200.00.

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 781 OF 2008

BETWEEN:

SZJKV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	13 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is an application for extension of time to file and serve a Notice of Appeal under Order 52, rule 15(2) of the Federal Court Rules. 

2. The applicant arrived in Australia in December 2005.  He applied for a protection visa in January 2006.  The Minister’s delegate refused that application, whereupon the applicant sought review of the Minister’s delegate’s decision by the Refugee Review Tribunal (‘the Tribunal’). 

3. The appellant attended a Tribunal hearing and, ultimately, the Tribunal rejected the applicant’s claims because it did not accept that he was a witness of truth.  The Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. 

4. The applicant proceeded to file an application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal’s decision which had been handed down on 24 August 2006.  The application came before the Federal Magistrates Court constituted by Barnes FM on 12 September 2007, who, on that day, dismissed the application and ordered the applicant to pay the respondent Minister’s costs fixed in the sum of $3,000.  The applicant appeared in person before the learned Federal Magistrate. 

5. On 28 May 2008, the applicant filed the application for extension of time which is presently before the Court. That application was supported by an affidavit of the applicant declared and affirmed on 26 May 2008, which in turn had filed with it a draft Notice of Appeal which specified some three grounds of appeal which the applicant wished to advance before this Court if an extension of time within which to file and serve a Notice of Appeal were granted. The draft Notice of Appeal raised issues such as apprehended bias, failure to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’) and failure to provide the applicant with a ‘fair chance’.

6. The applicant has also filed a written submission on 8 August 2008 in support of his application.  That submission alleged that the Federal Magistrates Court had erred in law in finding that the Tribunal made its finding properly and fairly.  It was submitted that the Federal Magistrate erred in finding that the Tribunal had not displayed apprehended bias and the submission contended that the Tribunal had failed to provide a fair and proper assessment of the applicant’s case. 

7. In an endeavour to explain the delay in seeking to file a Notice of Appeal, the applicant relied upon impecuniosity.  Whilst the matter was not dealt with in his affidavit, he informed the Court from the bar table that his impecuniosity precluded him appealing earlier;  that a friend had helped him with his living expenses, which had allowed him to save money and to pay $250 to a migration agent on or about 28 May 2008 to obtain the assistance of the migration agent in writing out for the applicant what he wanted to say in the course of an appeal.  No approach was, according to the applicant, made by him to the migration agent to arrange for assistance prior to the preparation of the relevant documents in May of this year. 

8. When asked to indicate what it was that constituted jurisdictional error in, or putting it in the vernacular, what was wrong with, the decision of Barnes FM, the applicant, from the bar table, indicated that the Tribunal did not accept material which had been advanced by him before the Tribunal.  When asked what the material was, he indicated that it concerned a visa to Japan and going into hiding for three months.  He also mentioned findings concerning the organisation of a demonstration. 

9. In relation to the question of a visa to allow entry into Japan and going into hiding for three months, Barnes FM said, in SZJKV v Minister for Immigration and Citizenship [2007] FMCA 1613 at [17]:

   ‘17.     The Tribunal’s conclusions were based on a finding in relation to credibility of the applicant.  Credibility findings are a matter for the Tribunal.  Furthermore, insofar as … [it] is intended to take issue with the Tribunal’s approach to its concerns about the applicant remaining in China while he had a valid passport and visa for Japan and not accepting that he was able to hide in a room for three months after the protest if he had played the role he had claimed, the Tribunal account of what occurred in the Tribunal hearing in fact suggests that such issues were raised with the applicant.’

10. The applicant had been present in Court when Barnes FM decided his application for review adversely to him on 12 September 2007. 

11. In my view, the applicant has failed to establish special reasons which would warrant an extension of time within which he may file and serve a Notice of Appeal.  The applicant was unable to point to any matter upon which he relied which might sustain a finding of apprehended bias on the part of the Tribunal.  What he really wants is a merits review, and he is not entitled to that in this Court. 

12. In my opinion, the application should be dismissed. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        28 August 2008

The Applicant appeared in person.
Solicitor for the First Applicant:	B M Rayment of Sparke Helmore
The Second Respondent filed a submitting appearance.

Date of Hearing:	13 August 2008
Date of Judgment:	13 August 2008