SZNEV v Minister for Immigration and Citizenship

[2009] FCA 876

FEDERAL COURT OF AUSTRALIA

SZNEV v Minister for Immigration and Citizenship [2009] FCA 876

SZNEV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 455 of 2009

STONE J
13 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 455 of 2009

BETWEEN:

SZNEV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	13 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file a notice of appeal 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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 455 of 2009

BETWEEN:

SZNEV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	13 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal to this Court from a decision of a Federal Magistrate.  The application was filed 11 days outside the prescribed period for filing a notice of appeal.  Order 52 r 15(2) of the Federal Court Rules provides that the Court may grant an appropriate extension of time if satisfied that there are "special reasons" for doing so.  In considering whether an extension of time should be granted the court considers the reason for the delay, the merits of the appeal and any prejudice to the respondent that may be occasioned by allowing the appeal to be brought notwithstanding the delay; Jess v Scott (1986) 12 FCR 187.

2. The applicant is a citizen of China who arrived in Australia on 27 June 2005.  On 7 July 2008 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.  Her application was refused, in turn, by a delegate of the first respondent and by the Refugee Review Tribunal.  Her application for judicial review of the Tribunal's decision was dismissed by a Federal Magistrate on 17 April 2009; SZNEV v Minister for Immigration and Citizenship [2009] FMCA 384.

3. In an affidavit filed in support of her application the applicant attributed her delay to her ignorance of Australian law and of the time limits within which a notice of appeal should have been filed.  While her explanation provides little detail, the delay of 11 days is not great and the first respondent has conceded that, apart from costs, it would incur no significant prejudice if the appeal were to proceed.  There is, however, the question of whether the appeal has any real prospect of succeeding.  The Court is slow to grant an extension of time if the merits of the case are such that an appeal is likely to be futile.  In order to assess the likelihood of an appeal being futile it is necessary to consider, briefly, the applicant's claims and the decisions of the Tribunal and the Federal Magistrate.

4. The applicant claimed to fear persecution in China because of her practice of Falun Gong.  She claimed that an aunt of her neighbour introduced her to Falun Gong in 2004 and that she attended her neighbour's home for five days to learn the practice.  She continued to practise in secret until June 2005 when she left China and came to Australia because she feared she might be arrested and tortured if she remained in China.  She claimed that since arriving in Australia she has continued to practise by herself in the evenings.  She claimed that her husband told her that Chinese agents in Australia collect information about Falun Gong practitioners and that these practitioners would be persecuted if they returned to China.  For this reason she continued to practise only at home.

5. The applicant also claimed that her mother, in a telephone conversation, told her that the Chinese authorities had taken her neighbour into custody and had tortured her until the neighbour confessed that she and the applicant were taught Falun Gong by the neighbour's aunt.  The applicant also claimed that the Chinese police had been to her parents’ home and that a warrant was issued for her arrest.

6. The Tribunal found that the applicant was not credible in relation to some key aspects of her claims.  It did not accept that her friend was arrested and detained by the authorities in China or that the authorities were seeking to arrest the applicant.  In making this finding the Tribunal noted that the applicant was living in Australia approximately 3 years before she approached other practitioners in Australia.  The Tribunal said that in its experience genuine practitioners contact other practitioners almost immediately upon their arrival in Australia and become involved in practice sites and other activities.  The Tribunal did not accept that the applicant was unaware that Falun Gong was practised publicly in Australia as her daughter had been living in Australia many years and would have known that this was the case.

7. The Tribunal found that the documents provided by the applicant relating to the arrest of her neighbour and the warrant for the applicant’s arrest were not genuine and were provided in an effort to improve her claims.  The Tribunal also found that a witness statement dated 18 April 2008 purportedly from the applicant's neighbour was not genuine.  This statement predated the neighbour’s claimed arrest and the Tribunal did not accept that the neighbour would have prepared a statement merely in anticipation that the applicant might need it at sometime.  It found that the witness statement was prepared in an attempt to strengthen the applicant's claims.

8. Because it was unconvinced by the applicant's claim to be a Falun Gong practitioner, the Tribunal found that she did not have a well-founded fear of persecution if she returned to China. Because it did not accept that the applicant was a genuine Falun Gong practitioner the Tribunal did not have regard to the applicant's practice of Falun Gong in Australia which it found was conduct engaged in by the applicant in Australia for the purpose of strengthening her claim to be a refugee. It therefore held that it must disregard that conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth).

9. In her application for review of the Tribunal's decision in the Federal Magistrates Court, the applicant claimed that the Tribunal had failed to consider her application in accordance with s 91R and s 424A of the Migration Act. The Federal Magistrate referred to specific paragraphs in the Tribunal’s decision where s 91R is discussed and concluded that the Tribunal was well aware of the proper test to apply. His Honour added however that the Tribunal was not required specifically to consider the elements of this section because the applicant's factual allegations were rejected. The Federal Magistrate accepted a submission made by the first respondent that the applicant's delay in seeking out Falun Gong practitioners following her arrival in Australia was not advanced by the applicant in support of her claim and thus did not fall within the scope of s 91R(3).

10. In relation to s 424A his Honour held that the information relied upon by the Tribunal when reaching its decision was:

    information provided by the applicant to the Tribunal for the purpose of her application for review, information provided in writing to the minister's department, country information and other information held by the Tribunal as a result of its experience of considering claims by persons claiming to fear persecution in China because of their adherence to Falun Gong.

11. His Honour held that accordingly, the information fell within s 424A(3) and thus was an exception to the obligation imposed by s 424A(1).  Having found no jurisdictional error in the decision of the Tribunal, the Federal Magistrate dismissed the application.

12. The draft notice of appeal attached to the applicant's affidavit states only one ground of appeal namely that the Tribunal's conclusion in relation to the witness statement submitted by the applicant was unjust.  This ground of appeal appears to be only an invitation to the Court to review the merits of the application for a protection visa and it is beyond the jurisdiction of this Court.  An appeal based on this ground has no prospects of success. 

13. Similarly the applicant’s submissions at the hearing of the application were also directed to the Tribunal’s findings on the merits and amounted to pleas to the Court to remit the matter to the Tribunal for reconsideration.  The applicant submitted that she had been persecuted in China and had not merely left in fear of persecution.  She provided no details nor did she allege that she had made this claim to the Tribunal.  Given the factual findings of the Tribunal this line of submission could not advance the merits of any appeal.

14. Moreover, having reviewed the Tribunal's decision for myself, I find no evidence of jurisdictional error in it and therefore am satisfied that the Federal Magistrate's decision was correct and that an appeal in this matter has no likelihood of success.  For these reasons the application for an extension of time must be dismissed with costs. 

15. The first respondent sought costs fixed in the amount of $1,564.  This is the amount provided for in the Federal Court scale of costs and fees in respect of an application for leave to appeal or an extension of time under the Migration Act.  The first respondent would be entitled to that amount on submitting a short form bill unless the applicant were to object within 14 days.  Given that the amount sought as fixed costs is the same as the amount payable under a short form bill I see no reason why the applicant should be deprived of an opportunity to object, whether or not she is likely to do so.  For this reason the application for a fixed cost amount is refused.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        13 August 2009

The applicant appeared in person
Solicitor for the Respondent:	R White, Sparke Helmore

Date of Hearing:	13 August 2009
Date of Judgment:	13 August 2009