SZMSE v Minister for Immigration and Citizenship

[2009] FCA 951

FEDERAL COURT OF AUSTRALIA

SZMSE v Minister for Immigration and Citizenship [2009] FCA 951

Jess v Scott (1986) 12 FCR 187 referred to

SZMSE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 585 of 2009

JACOBSON J
21 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 585 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMSE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	21 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first respondent of the application.

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 the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 585 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMSE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	21 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file a notice of appeal against orders made by Barnes FM on 6 May 2009.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal handed down on 7 August 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of the People’s Republic of China.  He claimed to have a well-founded fear of persecution on Convention grounds by reason of his involvement in and practise of Falun Gong.

3. The Tribunal did not accept the applicant as a witness of truth.  It found that his evidence about the practice of Falun Gong was rehearsed and contrived.  The Tribunal, in coming to this conclusion, took into account the applicant’s own evidence that he had left China to find work.  The Tribunal considered, on all of the evidence, that the applicant had fabricated his claims of practise of Falun Gong in China.

4. The application for review of the Tribunal’s decision in the Federal Magistrates Court contained one ground of review.  The Federal Magistrate described it in [9] as being “generally expressed”.  Her Honour said that, to a large extent, it took issue with the merits of the Tribunal’s decision.  The Federal Magistrate considered that the essence of the ground of review was a claim of actual or apprehended bias.  Her Honour was of the view that this claim was not established. 

5. The Federal Magistrate also observed that there was no suggestion or indication that the Tribunal failed to comply with the procedures under the Migration Act 1958 (Cth). Her Honour referred to well-established authority for the view that the Tribunal’s finding in relation to the applicant’s credibility was a matter for the Tribunal and her Honour pointed out that the Tribunal gave reasons for its findings. Her Honour observed at [15] that the fact that the Tribunal did not accept the applicant’s claim does not establish bias or other jurisdictional error.

6. The applicant sought to file a notice of appeal nearly three weeks after the time prescribed by the rules of court.  He is required to establish special reasons for the extension within the principle stated by this Court in Jess v Scott (1986) 12 FCR 187 at 195.

7. The applicant explained the reasons for the delay.  He filed an affidavit and sought to supplement his explanations in court this afternoon.  He told me that he had no money to pay legal fees and that he needed the assistance of a friend to prepare his notice of appeal. 

8. The exercise of the discretion to extend time is to take into account not only the reason for the delay but the question of whether the proposed appeal has sufficient prospects of success to warrant an extension of time. 

9. Whilst I do not consider the explanation for the delay to be wholly satisfactory, the factor which is most relevant in the present case to the exercise of the discretion is that I do not see that the applicant has any real prospects of success on an appeal.  It seems to me that the Federal Magistrate’s decision discloses no error and that her conclusion that there was no jurisdictional error in the decision of the Tribunal is not open to attack.

10. The applicant appeared today without legal representation.  He had the assistance of a Mandarin interpreter.  The essence of what he told me this afternoon was that he was telling the truth before the Tribunal, and he complained of the Tribunal’s failure to accept his evidence. 

11. However, as the Federal Magistrate observed, the fact that the Tribunal does not accept an applicant’s claim does not establish bias or other jurisdictional error.

12. In those circumstances and for those reasons, the order that I will make is that the appeal be dismissed.

13. I therefore order:

    1.The application be dismissed.

    2.The applicant pay the costs of the first respondent of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        21 August 2009

The Appellant appeared in person.
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	21 August 2009
Date of Judgment:	21 August 2009