SZLZF v Minister for Immigration and Citizenship

[2008] FCA 1728

FEDERAL COURT OF AUSTRALIA

SZLZF v Minister for Immigration and Citizenship

[2008] FCA 1728

SZLZF v MINISTER FOR IMMIGRATION AND CITIZENSHIP
and REFUGEE REVIEW TRIBUNAL

NSD 1161 of 2008

LINDGREN J
5 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1161 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLZF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	5 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time be dismissed.

2.        The appellant 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 1161 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLZF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	5 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant seeks an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of Australia.  That judgment was given on 3 June 2008.  The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal’s decision was signed on 7 January 2008 and handed down on 24 January 2008.  The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate and the Minister respectively) to refuse to grant to the appellant a Protection (Class XA) visa.

2. By O 52 r 5(2)(a) of the Federal Court Rules, the time for the filing of a notice of appeal is 21 days from the date of the judgment.  That period ended on 24 June 2008 in the present case.  The application for an extension of time was filed on 24 July 2008.

3. The appellant has not appeared this morning upon the matter being called.  The first respondent has requested that the Court proceed with the hearing and I think that that course is the appropriate one to follow.  The appellant was notified of the hearing fixture this morning.  He gave a post office box address on the application that he filed.  By statement of financial position seeking a waiver of fees, he gave a residential address.  On 25 July 2008 the National Appeals Registrar of the Court wrote to the appellant at both of those addresses advising that it was expected that the Court would hear the application during the sitting period from 3 November to 28 November 2008.  On 15 September 2008 the National Appeals Registrar wrote to the appellant at both addresses advising of the hearing fixture this morning at 10.15 am.  According to the Court file, no letter was returned by the postal authorities.  An interpreter has attended Court this morning to assist the appellant.

4. The appellant is a citizen of China who arrived in Australia on 15 June 2007.  On 3 July 2007 he lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for the protection visa on 2 October 2007.  On 16 October 2007 the appellant applied to the Tribunal for a review of that decision.

5. Before the Tribunal the appellant claimed to have a well-founded fear of persecution on account of his adherence to the beliefs and practices of Falun Gong.  He asserted that he had helped organise and recruit Falun Gong members and had been arrested, detained and tortured on that account.  He claimed that he would not enjoy the benefit of human rights in China.

6. At the Tribunal hearing, the appellant further claimed that he had suffered harm due to the one-child policy administered in China.  He alleged that his wife had been sterilised and that he had been forced to pay a substantial fine.

7. The appellant alleged that he had continued to follow Falun Gong practices since arriving in Australia. 

8. The Tribunal found that the appellant lacked credibility.  The Tribunal member surveyed at length and in detail various accounts which the appellant had given and of retractions and inconsistencies.

9. The Tribunal did not accept that the appellant was genuinely committed to the practices of Falun Gong in Australia, finding that the practices in which he engaged in Australia had been undertaken for the sole purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

10. In addition to rejecting the Falun Gong claims, the Tribunal did not accept that the appellant had breached one-child policy.  Again the Tribunal pointed to significant inconsistencies in the appellant’s evidence, which I need not recount.

11. Finally, the Tribunal was satisfied that any punishment to which the appellant would be subject due to his illegal departure from China would be due to the enforcement of a law of general application. 

12. In the result, the Tribunal did not accept that the appellant had a well-founded fear of Convention-related persecution in China.

13. Before the Federal Magistrates Court, the appellant relied on two grounds.  First, the appellant asserted that the Tribunal had erred in that there was no evidence before it upon which it was entitled to find that Chinese family planning laws were laws of general application.  The second ground was that the Tribunal had failed to consider the appellant’s claims.

14. The learned Federal Magistrate found both grounds not supported for reasons which his Honour gave and which do not demonstrate obvious error.

15. With the application for extension of time filed in this Court, the appellant filed an affidavit in support to which was attached a draft notice of appeal.  The grounds of appeal set out in that document are:

    (1)The respondent did not carefully consider the information which is in favour of the appellant.

    (2)There was no evidence on the other material to justify the making of the decision.

    (3)       Member of the Tribunal failed to understand respondent’s claim and        failed to consider relevant matters further.  Particulars to be provided.

    No further particulars have been provided.

16. In order to obtain the extension of time sought, the appellant would need to demonstrate that there are special reasons for the extension:  see Jess v Scott (1986) 12 FCR 187 at [195].

17. It is clear that the appellant has not demonstrated special reasons supporting the grant of an extension of time.  There is no explanation for his delay, although admittedly the delay is not very long.  More importantly there is no reason to doubt the correctness of the decision of the Federal Magistrates Court.

18. For the above reasons the application should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        17 November 2008

The appellant did not appear

Solicitors for the First and
Second Respondents:  Mr B O’Brien of DLA Phillips Fox Lawyers

Date of Hearing:  5 November 2008

Date of Judgment:  5 November 2008