SZMJT v Minister for Immigration & Citizenship

[2009] FCA 163

FEDERAL COURT OF AUSTRALIA

SZMJT v Minister for Immigration & Citizenship [2009] FCA 163

Federal Court Rules O 52 r 15
Migration Act 1958 (Cth)

Jess v Scott (1986) 12 FCR 189 at 195
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59

SZMJT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1871 of 2008

BUCHANAN J
26 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1871 of 2008

BETWEEN:

SZMJT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	26 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve a notice of appeal is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1871 of 2008

BETWEEN:

SZMJT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	26 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The applicant in this matter seeks an extension of time in which to appeal against a judgment of the Federal Magistrates Court of Australia (“the FMCA”) delivered on 24 October 2008 (SZMJT v Minister for Immigration & Anor [2008] FMCA 1465). Under O 52 r 15 of the Federal Court Rules an appeal was required to be filed within 21 days.  That was not done.  Rather, on 3 December 2008 the applicant filed an application for an extension of time to file and serve a notice of appeal.  Such an application may be granted “for special reasons” (see O 52 r 15(2)).

2. The first question to be addressed, therefore, is whether “special reasons” have been demonstrated.  A special reason is one which takes the case out of the ordinary (see Jess v Scott (1986) 12 FCR 187 at 195 and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59). The reason given by the applicant, in an affidavit filed in support of her application for an extension of time, is that she “did not receive the whole of the judgment of Federal Magistrates Court of Australia until 18 November 2008”. Thereafter, accepting this statement at face value for the moment, a further substantial period of time elapsed. It is also well established that an extension of time will not readily be granted to prosecute an appeal which has no apparent prospects of success. I shall return in due course to further consideration of these two issues.

3. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 10 August 2007 and applied for a protection visa on 21 September 2007.  Her application for a protection visa was accompanied by a typed statement in English which alleged, in substance, that commencing in January 2007 corrupt officials and police demanded free petrol from her husband’s petrol station and upon refusal, in March 2007 various reprisals were visited upon the applicant’s husband.  The business was closed, he was arrested and placed in custody and he was fined.  He was also tortured.  Later, the applicant says, she was also beaten.  In August 2007, being told that she would be arrested, she left China.

4. On 18 December 2007 a delegate of the Minister refused the application for a visa.  The applicant applied to the Refugee Review Tribunal (“the RRT”) on 17 January 2008 for a review of the delegate’s decision.  In a decision handed down on 27 May 2008 the RRT affirmed the decision of the delegate not to grant a protection visa.

5. Prior to the hearing before the RRT on 12 March 2008 the applicant had provided no further information to it but she attended the hearing and gave oral evidence.  Her son also gave evidence.  Her son had applied for a student visa on 25 September 2006.  Details provided in the student visa application appeared to contradict important elements of the applicant’s claims for a protection visa.  Some matters in the evidence of the applicant’s son also contradicted elements of the version of events which she had advanced in her claim for a protection visa.

6. The RRT concluded that neither the applicant nor her son were credible witnesses.  It concluded that they had each fabricated evidence for the purpose of making good the applicant’s claim for a protection visa.

7. On 24 June 2008 the applicant applied to the FMCA for judicial review of the decision of the RRT.  Various assertions of error in the decision and approach of the RRT were made.  Those contentions were rejected by the FMCA.  The course of events at the hearing was described in the judgment of the FMCA (at [26]) as follows:

   26.The Applicant confirmed that she relied on the grounds contained in her application for judicial review filed on 24 June 2008. The Court gave the Applicant leave to read a document that she said was in the nature of submissions and written in support of her application by an unnamed friend. The “submissions” appeared to be a mixture of submissions and a restatement of the grounds of her application. The Applicant declined to make any further submission in support of her application. She confirmed she had filed no evidence or other submissions in support of her application.

8. The FMCA had a verified copy of the transcript of proceedings before the RRT and concluded (at [30]) that:

   “30.A fair reading of the Tribunal’s reasons makes clear that the reference by the Tribunal to the Applicant’s evidence was accurate.”

9. The Federal Magistrate was satisfied that the RRT had complied with all of the obligations upon it under the Migration Act 1958 (Cth) and that neither the proceedings before the RRT nor its decision were vitiated by jurisdictional error, including bias. Those conclusions were expressed as follows at [52]-[53]:

   52.A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

   53.In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

10. It was in those circumstances that the applicant, having failed to exercise her right of appeal within 21 days, made her present application for an extension of time.  Directions were made that the applicant file and serve full written submissions in support of the application and in support of any appeal.  That was not done.  At the hearing the applicant said virtually nothing in support of her application except to submit that the decision of the RRT was unfair and to express the hope that the Court would give her “fair justice”.  I asked her about her statement that she had not received the “whole of the judgment”.  She confirmed that, although she has since changed address, she lived at the relevant time at the address to which advice was sent that the judgment of the FMCA would be handed down on 24 October 2008 and to which a copy of the judgment was sent after it was handed down.  Although she suggested she sometimes had difficulty in gaining access to the mailbox at the apartment where she lived I am satisfied she was under no special disability or restriction which satisfactorily explained her failure to act.

11. I may now return to the two issues which I identified early in this judgment.  In my view the applicant has not established that there are “special reasons” justifying the grant of an extension of time in which to file and serve a notice of appeal.  Nor am I satisfied that there would be any prospect that an appeal, if an extension of time was granted, would succeed.  Decisions of the RRT may only be set aside by the FMCA or by this Court for jurisdictional error.  There is no apparent jurisdictional error disclosed by the decision of the RRT.  No error appears in the analysis by the FMCA of the decision or processes of the RRT.  No jurisdictional error has been identified by any material filed by the applicant in the FMCA or in this Court. 

12. In the circumstances the appropriate order is that the application be dismissed.  The applicant will be ordered to pay the respondents’ costs.

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

Associate:
Dated:        26 February 2009

Applicant appeared in person
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	20 February 2009
Date of Judgment:	26 February 2009