SZNAK v Minister for Immigration and Citizenship

[2009] FCA 950

FEDERAL COURT OF AUSTRALIA

SZNAK v Minister for Immigration and Citizenship [2009] FCA 950

Jess v Scott (1986) 12 FCR 187 referred to

SZNAK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 545 of 2009

JACOBSON J
21 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 545 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNAK
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 first respondent’s 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 the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 545 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNAK
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 and serve a notice of appeal from orders made by Emmett FM on 7 May 2009.  Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal handed down on 10 November 2008.  The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa.

2. The applicant claimed to have a well-founded fear of persecution in China on the grounds of religion, imputed political opinion and membership of a particular social group by reason of his practice of Falun Gong.  He also relied upon his wife’s practice and activities in relation to Falun Gong.

3. The Tribunal was not satisfied of the credibility of the applicant.  The Tribunal found the applicant’s evidence that he had left China without difficulty to be inconsistent with independent country information.  The Tribunal found that the applicant’s evidence concerning his employment by a Chinese government body was inconsistent with his claim of persecution.  The Tribunal also found that claims made by the applicant that his children were under surveillance were implausible. 

4. Upon the basis of its adverse credibility finding, the Tribunal did not accept that the applicant practised Falun Gong in China, and it gave no weight to the witness statements, including those of the applicant’s children, provided to support his claim.

5. In addition, the Tribunal was not satisfied that the applicant’s evidence about his conduct in Australia was otherwise than for the purpose of strengthening his refugee claim. Accordingly, the Tribunal disregarded that conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth).

6. The application for judicial review before the Federal Magistrate raised three grounds of review, each of which contained particulars.  The grounds were as follows:

   ·The Tribunal committed jurisdictional error when making an irrational determination that the applicant was not a witness of truth.

   ·The Tribunal constructively failed to exercise jurisdiction by disregarding corroborative evidence of the applicant’s claims.

   ·The Tribunal committed jurisdictional error by failing to give the applicant notice under s 425(1) of the Migration Act and committed an error of the kind identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

7. The Federal Magistrate dealt comprehensively with each of the grounds of review.  Her Honour set out in some detail the relevant passages of the transcript of the hearing before the Tribunal in coming to her finding that the application ought to be rejected.  Her Honour’s conclusions are summed up in [93] and [94] of her reasons, which I will set out in full below:

   93.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 at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then 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 record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law in reaching those conclusions.

   94.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.

8. The application for an extension of time to file and serve a notice of appeal was filed 12 days outside the time provided by order 52, rule 15(1)(a)(i).  The applicant gave an explanation of the reasons for the delay this morning.  The essence of the applicant’s explanation is that he mixed up the time period which was allowed for the filing of the application.

9. Whilst I am of the view that the explanation was not entirely satisfactory, the substantial reason why I have come to the view that leave ought to be refused is that I do not consider the applicant to have any prospects of success on the appeal.

10. The draft notice of appeal repeats the grounds of review that were conducted before the Federal Magistrate.  One new ground of appeal is raised in the draft notice.  It is that her Honour failed to consider whether bribery and corruption could provide a plausible explanation for how the appellant was able to legally leave China. 

11. I do not consider that this raises any arguable ground of appeal.  The issue was fully addressed by her Honour at [27] to [44] of her Honour’s reasons for judgment.  All of the other proposed grounds of appeal do not raise any possible prospects of success.  I can see no error in her Honour’s reasons. 

12. The applicant appeared this morning in person.  He was assisted by a Mandarin interpreter.  He contended that the Tribunal was biased against him, in particular because it failed to thoroughly understand his claim and because it doubted his credibility. 

13. However, as the Federal Magistrate observed at [93], the Tribunal’s decision made it clear that the Tribunal understood the claims, explored them and had regard to all of the material that was provided in support.  Also, as her Honour said in the passage referred to above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on findings which were open to it and to which it applied the correct law.  There is no basis for the allegation of bias.

14. The appellant sought to argue this morning that he has a further ground to raise, namely his political opinion which he says is opposed to the Communist Party.  That was raised only in the most general way.  There are two answers to it.  First, it was not raised below, except to the extent that the appellant relied on his practice of Falun Gong.  This issue was fully dealt with in the reasons of the learned Federal Magistrate.  The second reason for rejecting it is, as I have said, the generality of the claim.

15. For these reasons, I do not consider that special circumstances have been established within the well-known principle stated in Jess v Scott (1986) 12 FCR 187 at 195.

16. Accordingly, I see no reason to justify a departure from the ordinary rule prescribing the period within which a notice of appeal must be filed and served.  Accordingly, the order I will make is that the application be dismissed.

17. The ordinary order to make in these circumstances is that the applicant pay the costs of this application, and that is the order I will make.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        24 August 2009

The Appellant appeared in person.
Solicitor for the Respondents:	Clayton Utz

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