SZNWJ v Minister for Immigration and Citizenship

[2010] FCA 497

FEDERAL COURT OF AUSTRALIA

SZNWJ v Minister for Immigration and Citizenship [2010] FCA 497

Citation:		SZNWJ v Minister for Immigration and Citizenship [2010] FCA 497
Appeal from:		SZNWJ v Minister for Immigration & Anor [2009] FMCA 1303
Parties:		SZNWJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 358 of 2010
Judge:		KATZMANN J
Date of judgment:		21 May 2010
Legislation:		Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules O 2 r 4A, O 52 r 15, O 62 r 40C(2) Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(b), 91R(3), 474, 476, 476A
Cases cited:		Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 cited Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied Jess v Scott (1986) 12 FCR 187 applied Parker v The Queen [2002] FCAFC 133 applied Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Date of hearing:	17 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	37
The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:		Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 358 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	21 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time within which to file and serve a notice of appeal is dismissed.

2.The applicant is to pay the first respondent’s costs fixed at $1,614.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 358 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE:	21 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant is 38 years old and a citizen of the People’s Republic of China.  She claims to be a Falun Gong practitioner with a well-founded fear of persecution in her country of origin.  After arriving in Australia, she unsuccessfully applied for a protection (class XA) visa.  She was also unsuccessful in an application for a review of that decision in the Refugee Review Tribunal (Tribunal) and again before the Federal Magistrate.  

2. The applicant now wishes to appeal to this Court from the Federal Magistrate’s decision.  The Federal Court Rules (Rules) require appeals to be filed within 21 days of the delivery of judgment.  The applicant did not file a notice of appeal within this time and she applies for an extension of time to do so.  The Minister opposes the application.  Because of the time that has lapsed since the appeal should have been filed, the applicant is obliged to show special reasons before the Court’s power to extend the time can be invoked.  No such reasons have been given.  A belated, implausible, and, in any event, inadequate, explanation for the delay was offered from the bar table.  The prospects of success in an appeal are hopeless.  Consequently, the application must be dismissed.

   Background

3. Strictly, the only material before me was the Federal Magistrate’s judgment.  But the Minister’s solicitor had no objection to me informing myself from documents filed in the Federal Magistrates Court, including the record of the Tribunal’s decision and the applicant’s original application for a protection visa.  And so I have.

4. The applicant arrived in Australia on 4 December 2008.  On 15 January 2009 she lodged an application for a protection visa with the Department of Immigration and Citizenship.  In her application she explained that she took up Falun Gong exercises after a miscarriage in early 1998 and, as they lifted her mood and improved her health, she continued with them even after the Chinese Government started prosecuting adherents.  She said that on 10 June 2000, whilst 5 months pregnant, several police officers broke into her home and arrested her.  She claimed that at the police station they urged her to confess everything she did for Falun Gong.  She alleged that they forced her to squat and think about how to confess her “crimes”, that she squatted for about two hours and, as a result of her experiences, miscarried.  She claimed to have been released from custody because the officers did not want to be held responsible for killing a child.  She said that after her release the police continued to check on her and in September 2003 they again went to her home where, she said, they seized “a lot of” Falun Gong books.  She said she was detained in custody for six months and after her release had to attend the police station every week.  She also claimed that she and her husband had lost their jobs and so borrowed money and opened a small shop to which the police “always” came to check on her and “always” stole their stock.  She said she and her husband bribed a government officer for a passport.   

   Application for a protection visa

5. To obtain a protection visa the applicant had to satisfy the Minister that she is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol:  Migration Act 1958 (Cth) (Migration Act), s 36(2)(a). It is sufficient to observe that in this case that involved demonstrating that she was a genuine practitioner of Falun Gong. If she did, s 36(2)(b) of the Migration Act would enable her husband to obtain a visa, too.

6. The Department arranged for the applicant to attend an interview with a delegate of the first respondent (the Minister) but the applicant failed to attend and, on 25 March 2009, the Minister’s delegate refused the application.

7. On 24 April 2009 the Tribunal received the applicant’s application for a review of that decision.

   The proceedings in the Tribunal

8. The applicant attended a hearing at the Tribunal on 15 July 2009 to give evidence and present arguments and was provided with the services of a Mandarin interpreter.  She refused to take an oath or an affirmation, claiming that as a Falun Gong practitioner she was obliged to tell the truth.  Despite advice from the Tribunal Member that he could draw an adverse inference from her failure to do so, she was adamant she would not. 

9. Before the Tribunal the applicant claimed that she was detained in 2000 for practising Falun Gong, and was released after signing a written undertaking that she would not practise anymore.  She claimed that she signed the document because her treatment in detention caused her to miscarry and she was desperate to obtain medical treatment.  She also claimed that after her release she was kept under surveillance and required to report regularly to the police.  She maintained she was detained for a second time, for six months, in 2003-4, and that as a consequence she is unable to bear children.  She said that when she was released she was kept under 24 hour surveillance (although she had neglected to mention that in the written statement accompanying her application) and the police stole goods from her shop so she could not make a living.  

10. She said she left China in December 2008 because she was persecuted.

11. She claimed to have practised Falun Gong in Australia since arriving here. 

12. The Tribunal was satisfied from independent country information available to it that some Falun Gong practitioners are at risk of serious harm amounting to persecution, including arbitrary detention and imprisonment and serious physical harm.  It was also satisfied that the persecution of those practitioners occurs mainly because of the threat posed to the Chinese government’s authority by the capacity of Falun Gong to attract and mobilise millions of followers.  In those circumstances, the Tribunal was satisfied that the persecution of Falun Gong practitioners occurs because of an imputed political opinion adverse to the government.  Thus, the only issue was whether the applicant was in fact a Falun Gong practitioner and, if so, whether she faced a real chance of persecution.

13. The Tribunal found that the applicant was not a credible witness.  It expressed many concerns about the applicant’s evidence.  Most significantly, it did not consider that the applicant displayed the level of knowledge of Falun Gong that could reasonably be expected of someone who had claimed to have practised for ten years.  Whilst the applicant was able to provide some information about Falun Gong, the Tribunal considered her knowledge to be superficial, which was incompatible with her claim that she had been a dedicated practitioner for many years.  The Tribunal noted that the information she did disclose was readily obtainable, for example, on the Falun Gong website and could have been learned for the purpose of the application.  The Tribunal considered, but rejected, the possibility that her difficulties explaining the spiritual concepts of Falun Gong stemmed from the fact that she was giving evidence through an interpreter.  The Tribunal found several of her contentions inconsistent and implausible, explicable because she was not telling the truth.

14. The Tribunal also considered that it was highly significant, and inconsistent with her claim to be a genuine and dedicated practitioner, that she said she had practised only infrequently since arriving in Australia.

15. In the result it rejected all of her key claims, decided that she did not satisfy the terms of s 36(2)(a) of the Migration Act and affirmed the decision under review. To the extent that she may have studied Falun Gong in Australia, the Tribunal was satisfied that this was done for the purpose of strengthening her claim to be a refugee, and disregarded it in accordance with s 91R(3) of the Migration Act.

    The application to the Federal Magistrates Court

16. By application filed in the Federal Magistrates Court of Australia on 31 August 2009 the applicant sought judicial review of the Tribunal’s decision.

17. The Federal Magistrate’s jurisdiction to set aside the decision of the Tribunal was confined to jurisdictional error. So, too, is this Court’s jurisdiction: Migration Act ss 474, 476, 476A; Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.

18. In her application to the Federal Magistrates Court the applicant expressed her grounds of review in these terms (without alteration):

    1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

    2. The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.

    In paragraph 72, on page 15 of the decision, the Tribunal member stated that I have not practiced Falun Gong at all during the four months that I have been living in Brisbane. Actually during the hearing I said that I practiced Falun Gong at home for that four months while I were in Brisbane. Please refer to hearing Record disc 3 at 20mins 11 seconds.

    The following is extracted from the disc 3 in relation to this matter.

    RRT member: “I found that would be difficult to believe that you’ve been to Australia for 7 months or so, where you freely participating Falun Gong and everything, but you hardly done anything.”

    I said: I practiced. I stayed 20 days in Brisbane when I first arrived. And first, we had an exhibition. That’s why I didn’t have time to practice. Then I went to Sydney.
    How to put it, because I was not familiar with this place, I did not have very good understanding here neither my English is good. After I got familiar with the environment and people here, I knew more things and I continued to practice again. After I found my job, I worked very hard to payback the debt I had because I want to go aboard. That’s why I moved to Brisbane, the place in Coominya. That place is a distant place and according to my requirement to myself, as long as I continued the reading and practicing, then I am still genuine.

    3. costs.

19. The “disc” recording of the hearing before the Tribunal was not in evidence in the Federal Magistrate’s Court.

20. The Federal Magistrate described the grounds as general and formulaic and found that no jurisdictional error was disclosed.  He also said that, although the complaint underneath ground 2 could at best be described as “particulars”, they did not support the ground.  In any event, his Honour observed that there were at least two answers to such an allegation.  First, the applicant provided no evidence in support of the allegation and it was not open to the Court to draw inferences about what might have been said, or to have occurred, at the Tribunal hearing in the absence of evidence (citing NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). Secondly, a fair reading of the Tribunal’s reasons indicated that the Tribunal did not, in fact, misstate the applicant’s evidence, even if the exchange between the Tribunal and the applicant alleged in the applicant’s application were accurate.

21. Finally, his Honour noted that the Tribunal had complied with all of its statutory obligations.  

22. Having found no jurisdictional error in the decision, he dismissed the application.

    The proposed appeal to this court

23. On 8 April 2010 the applicant filed in this Court an application for extension of time to file and serve a notice of appeal from the decision of the Federal Magistrate.  In a draft notice of appeal attached to an affidavit filed on the same date, she merely repeated in its entirety the same misconceived allegation that comprised ground 2 of the appeal to the Federal Magistrate.

    The application for extension of time

24. In her affidavit in support of her application for leave to extend time the applicant stated (without alteration):

    1.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

    2.The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.  In paragraph 72, on page 15 of the decision, the Tribunal member stated that I have not practised Falun Gong at all during the four months that I have been living in Brisbane. Actually during the hearing I said that I practised Falun Gong at home for that four months while I were in Brisbane.  Please refer to hearing Record disc 3 at 20mins 11 seconds.

25. The application was filed on 8 April 2010 well outside the time fixed by the Rules for an appeal.

26. Order 52 r 15 relevantly provides:

    Time for filing and serving notice of appeal

    (1)The notice of appeal shall be filed and served:

    (a)       within 21 days after:

    (i)        the date when the judgment appealed from was pronounced;

    (ii)       the date when leave to appeal was granted; or

    (iii)any later date fixed for that purpose by the court appealed from; or

    (b)within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

    (2)Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

    (3)      An application for leave under subrule (2) must:

    (a)       be in accordance with Form 54A; and

    (b)include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and

    (c)       be accompanied by an affidavit setting out:

    (i)the nature of the matter; and

    (ii)the factual and legal issues in dispute; and

    (iii)the reasons why leave should be given.

27. The judgment of the Federal Magistrate was pronounced on 8 December 2009.  Four months elapsed before this application was filed.  The effect of O 2 r 4A of the Rules is that in calculating the time, the period from 24 December to 14 January in the next year is excluded.  Accordingly, the applicant had until 20 January to file her appeal.  However, the application was not made until 8 April, some 78 days outside the prescribed period.  Consequently, she needs to show special reasons before her application can be entertained.

28. The Full Court explained in Jess v Scott (1986) 12 FCR 187 at 195 that an unduly narrow approach to the interpretation of the expression was not called for. In short, a special reason is one which takes the case out of the ordinary.

29. In this case the applicant’s reasons could not be described as out of the ordinary and I am therefore bound to dismiss the application. 

30. In any event, there is no presumptive right to an order granting an extension of time.  If special reasons are shown, an applicant is merely entitled to ask the court to exercise its discretion in his or her favour.  But the applicant still bears the onus of showing that the justice of the case requires the favourable exercise of the discretion.  (cf. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 551 and 554, Dawson J agreeing at 544.) An application will not be granted unless the Court is satisfied that it is proper to do so. An applicant must offer an acceptable explanation for the delay and show that it is fair and equitable to extend time. The principles are set out in detail in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 per Wilcox J (implicitly approved by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6]-[7]).

31. In addition, the Court is enjoined to interpret and apply the Rules and any power conferred or duty imposed by them in a way that best promotes their overarching purpose, which is the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible:  Federal Court of Australia Act 1975 (Cth), s 37M(1) and (3). To this end I am bound to have regard to the matters in s 37M(2):

    (a)the just determination of all proceedings before the Court [and, I interpolate, not merely this matter];

    (b)the efficient use of the judicial and administrative resources available for the purposes of the Court;

    (c)the efficient disposal of the Court’s overall caseload;

    (d)the disposal of all proceedings in a timely manner;

    (e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

32. The application was filed well outside the prescribed time for an appeal.  The affidavit included no explanation for the delay.  At the hearing, through an accredited Mandarin interpreter, I invited the applicant to speak in support of her application and, in particular, to

    
    
    

    provide an explanation for the delay.  At first she simply protested that she was a genuine Falun Gong practitioner and the findings of the delegate and the Tribunal to the contrary were “not fair”.  When pressed, she offered only this explanation for why it had taken her so long to approach the Court:

    I did lodge the application but to the wrong place.  I tried to file the application on an upper level but went to Federal Court 1.

33. Putting aside the failure to give evidence to explain the delay, this account lacks the ring of truth.  But even if it were true that the applicant tried to file her application but went to the wrong place to do so, such an explanation is manifestly inadequate.  Apart from anything else, it is silent about when the attempt was made and could not conceivably explain the length of time that elapsed before this application was made.  No notice of a prospective appeal was given to the Minister at any time before this application. 

1. In any case, the draft notice of appeal raises no question of jurisdictional error and an appeal based on it would be bound to fail.  A mistake of fact, especially of the kind of which the applicant complains does not (without more) amount to an error of law, let alone an error going to jurisdiction:  Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Consequently, the overarching purpose of the Rules would not be served by upholding this application.

   Costs

2. In anticipation of the outcome the Minister applied for costs in the fixed sum of $1,614, which is the amount recoverable in accordance O 62 r 40C(2) and item 43F of Schedule 2 to the Rules.  The Minister relied on an affidavit of the solicitor who appeared for him in which he stated that the actual costs incurred were higher.

3. The applicant offered no reason why she should not pay costs in the event that her application was unsuccessful.  Accordingly, I make the order sought.

   Orders

4. I therefore order that:

   1.The application for extension of time within which to file and serve a notice of appeal is dismissed. 

   2.The applicant is to pay the first respondent’s costs fixed at $1,614.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:       21 May 2010