SZLSZ v Minister for Immigration and Citizenship

[2008] FCA 1050

FEDERAL COURT OF AUSTRALIA

SZLSZ v Minister for Immigration & Citizenship [2008] FCA 1050

SZLSZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 598 OF 2008

STONE J
14 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA	NO CATCHWORDS
NEW SOUTH WALES DISTRICT REGISTRY	NSD 598 OF 2008

BETWEEN:	SZLSZ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	14 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        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	NO CATCHWORDS
NEW SOUTH WALES DISTRICT REGISTRY	NSD 598 OF 2008

BETWEEN:	SZLSZ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	STONE J
DATE:	14 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to appeal from a judgment of a Federal Magistrate delivered on 1 April 2008.  Pursuant to O 52 r 15(1) of the Federal Court Rules, any notice of appeal from her Honour's judgment should have been filed on or before 22 April 2008.  The application for an extension of time was filed eight days later, on 30 April 2008.  The application was accompanied by a short affidavit in which the applicant stated that he did not receive notification of the Federal Magistrate's decision until 10 April 2008 and was not aware of the time limit for lodging a notice of appeal.  The application was not accompanied by a draft notice of appeal, however in his affidavit, the applicant states that he was not given enough time to prepare his application, that his legal adviser (appointed by the Court) "didn't do her job properly” and that he did not have a fair hearing.

2. Pursuant to O 52 r 15(2) the time limited for filing a notice of appeal may be extended "for special reasons".  Before granting any extension the Court needs to be satisfied that special reasons exist.  In considering such an application the Court considers the reasons why the applicant did not file a notice of appeal within the time specified in the rules, as well as whether the likelihood of the appeal being dismissed is such that granting the extension would be a futile exercise.

3. The applicant is a citizen of China born on 13 November 1961.  He arrived in Australia on 11 March 2007.  The applicant claimed that should he be required to return to China he would be liable to persecution based on his support of Christian organisations in China.  His application for a Protection (Class XA) Visa was refused on 14 June 2007 by a delegate of the first respondent and by the Refugee Review Tribunal on 22 October 2007.  It would appear that the Tribunal rejected the applicant's claims on the basis that the applicant was not a truthful or credible witness.

4. The applicant applied to the Federal Magistrates Court for review of the Tribunal's decision.  On 10 March 2008 he attended a hearing before Emmett FM.  On 1 April 2008 her Honour dismissed the application on the basis that no jurisdictional error had been shown in the Tribunal's reasons; SZLSZ v Minister for Immigration & Anor [2008] FMCA 378. In her reasons for judgment the Federal Magistrate examined in detail the claims made by the applicant before the Tribunal.

5. Her Honour's reasons clearly show that she had great difficulty in identifying the basis of the applicant's complaint about the Tribunal's decision.  Apparently the amended application before her Honour had been prepared by a panel adviser under the legal advice scheme.  Nevertheless her Honour noted at [40]:

   The amended application does not comply with the rules of this Court and is a long and rambling document that does not clearly identify the grounds upon which the application is based.  There is no identification of individual particulars in support of the grounds.  Rather, each ground is followed by un-numerated paragraphs that appear to be more in the nature of submissions.

6. Her Honour requested the panel adviser who had prepared the amended application to attend the hearing to explain to the court the grounds of the amended application.  Surprisingly however, the adviser was not able to offer the Federal Magistrate any explanation about the nature of the grounds.

7. It is clear that her Honour was working under considerable difficulty.  Despite this, in a careful exposition of the grounds of appeal as she understood them, her Honour considered and rejected all the grounds of appeal.  At the hearing of this application for an extension of time the applicant was not able to identify any error in the Federal Magistrate's reasons or jurisdictional error in the reasons of the Tribunal.  He complained about the Tribunal's use of country information and seemed to be submitting that the Tribunal had over-generalised in applying this information to his circumstances.  Her Honour discussed this issue in detail at [45] – [56] of her reasons.  As her Honour pointed out at [53]:

   The use of independent information and the weight given to it is a matter for the Tribunal … It is open to the Tribunal to prefer independent country information that is different to evidence provided by the Applicant.  For the Tribunal to do so does not demonstrate error going to its jurisdiction.

8. Her Honour rejected the applicant's submission on this point.  She was correct to do so.  His submissions were directed to merits review which is not a basis for review in the Federal Magistrates Court or in this Court.

9. In my view her Honour's reasons are coherent and comprehensive.  I am unable to detect any error in her Honour’s failure to find jurisdictional error in the Tribunal’s reasons.  I can find no basis on which an appeal would have any chance of succeeding and consequently, it would be futile to grant an extension of time. The application for an extension of time must therefore be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             14 July 2008

The Applicant appeared for himself.
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	14 July 2008
Date of Judgment:	14 July 2008