SZOIZ v Minister for Immigration and Citizenship

[2010] FCA 1184

FEDERAL COURT OF AUSTRALIA

SZOIZ v Minister for Immigration and Citizenship [2010] FCA 1184

Citation:		SZOIZ v Minister for Immigration and Citizenship [2010] FCA 1184
Appeal from:		Application for leave to appeal: SZOIZ v Minister for Immigration and Citizenship and Anor [2010] FMCA 552
Parties:		SZOIZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1074 of 2009
Judge:		COLLIER J
Date of judgment:		1 November 2010
Legislation:		Federal Court Act 1976 (Cth)) s 24(1A) Migration Act 1958 (Cth) ss 91R(3), 476 Federal Court Rules O 52 r 5 Federal Magistrates Court Rules 2001 (Cth) r 44.12
Cases cited:		Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 cited SZIRS v Minister for Immigration and Citizenship [2008] FCA 798 cited SZOIZ v Minister for Immigration and Citizenship [2010] FMCA 552 cited
Date of hearing:	1 November 2010
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1074 of 2009

BETWEEN:

SZOIZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	1 NOVEMBER 2010
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The application for leave to appeal and for an extension of time in which to file a notice of appeal be 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1074 of 2009

BETWEEN:

SZOIZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	1 NOVEMBER 2010
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. I have before me an application dated 20 August 2010 in which the applicant seeks two forms of relief. First, the applicant seeks leave to appeal against a decision of Driver FM delivered on 27 July 2010. Second, the applicant seeks an extension of time in which to lodge a notice of appeal from the decision of the learned Federal Magistrate.

2. In his decision dated 27 July 2010, Driver FM dismissed an application by the applicant to these proceedings for an order that the first and second respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”). On 26 March 2010 the Refugee Review Tribunal (“the Tribunal”) had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the applicant.

3. The learned Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12(1)(a) allows a Federal Magistrate, at a hearing of an application for an order to show cause, to dismiss the application if the Federal Magistrate is not satisfied that it has raised an arguable case for the relief claimed. Rule 44.12(2) provides that, to avoid doubt, a dismissal under r 44.12(1)(a) is interlocutory. It follows that the applicant requires the leave of this Court to appeal against his Honour’s decision (s 24(1A) Federal Court Act 1976 (Cth)).

4. Further, O 52 r 5 of the Federal Court Rules provides that, where an appeal from a judgment lies to the Court only with leave, the application shall be filed within 21 days after judgment was pronounced or such later date as is fixed. In this case it is not in dispute that the application for leave to appeal, filed 20 August 2010, has been filed outside 21 days after the date on which Driver FM delivered judgment. Accordingly leave is necessary for the time in which to file a notice of appeal to be extended.

   BACKGROUND

5. The applicant is a citizen of China who arrived in Australia on 12 August 2009. On 3 September 2009 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 16 November 2009. On 24 November 2009 the applicant applied to the Tribunal for a review of that decision.

6. The applicant claimed that she and her husband were Falun Gong practitioners in China. She claimed that on 26 July 2008 she, her husband and their cook at the restaurant owned by them, were practising their Falun Gong exercises when they were arrested by the police. She claimed they were then taken to the police station and her husband was beaten to the point that he had a heart attack and died. She claimed that she complained to a number of government authorities in relation to the circumstances surrounding her husband's death but that her grievances would not be heard as they were Falun Gong related. She also claimed that she had practiced Falun Gong since arriving in Australia.

   REFUGEE REVIEW TRIBUNAL

7. The Tribunal found that the appellant was not a credible witness. In particular, the Tribunal found that her response to questions about Falun Gong indicated that her knowledge was not consistent with a person who had been practicing Falun Gong for the length of time that the applicant claimed, and it did not accept her claim that she could not remember because she had a “brain problem”. The Tribunal also found that had she complained to the authorities in the way that she claimed, they would not have tolerated such behaviour had they in fact warned her to discontinue such behaviour. The Tribunal thus did not accept that the applicant or her husband practised Falun Gong in China or that they were arrested for this reason. On the basis of the above, the Tribunal also found that the applicant had not participated in Falun Gong activities in Australia otherwise than for the purpose of strengthening her claim for a protection visa, and disregarded this conduct pursuant to s 91R(3) of the Act.

8. The Tribunal concluded that the applicant did not satisfy the criterion for a protection visa, and affirmed the decision of the delegate.

   FEDERAL MAGISTRATES COURT

9. On 16 April 2010 the appellant filed an application for review of the Tribunal’s decision. In that application the applicant contended that:

   1.The Tribunal is not satisfied that there is a real chance that I will suffer serious harm for reasons of my being a Falun Gong practitioner or for any other convention reason. The Tribunal made error in this finding; and

   2.The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.

10. In relation to these grounds, the Federal Magistrate found that ground 1 appeared to seek merits review. His Honour was satisfied that the Tribunal's rejection of the applicant’s credibility was “open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility”: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. In relation to ground 2, the Magistrate found that the allegation was contrary to the facts and that, in any event, the Tribunal was under no obligation to refer to independent country information: SZIRS v Minister for Immigration and Citizenship [2008] FCA 798.

11. The Federal Magistrate stated further that the Tribunal gave adequate consideration to the applicant’s claims including her claim of memory loss; that there was no medical evidence to support the applicant’s assertion before the Tribunal or Court; and that the Tribunal’s findings in this regard were open to it on the material before it, and did not demonstrate pre-judgment.

12. His Honour concluded that there is no arguable case of jurisdictional error by the Tribunal, and accordingly, ordered that the application be dismissed.

    SUBMISSIONS OF THE PARTIES

13. At the hearing of the appeal before me the appellant was self-represented. The Minister was legally represented.

    CONSIDERATION

14. Different considerations are relevant to the exercise of the Court’s discretion to grant an application for leave to appeal against an interlocutory decision and an application to extend time in which to file a notice of appeal. In an application for leave to appeal against an interlocutory decision relevant questions for consideration by the Court are:

    ·whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered; and

    ·whether substantial injustice would result if leave were refused, supposing the decision to be wrong. (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398).

15. In an application for an extension of time in which to file a notice of appeal, relevant questions for the Court include:

    ·whether the applicant has provided an acceptable explanation for the delay;

    ·whether the applicant has, by its actions, lead the respondent to believe that the matter has been finally concluded;

    ·any prejudice to the respondent occasioned by the delay; and

    ·the merits of the substantial application.

16. A factor common to the two forms of relief is the merits of the applicant’s substantive case. In my view it is clear that the applicant’s substantive case is such that, on the draft grounds of appeal before the Court, an appeal would be doomed to failure. For that reason the appropriate order is that the application before me should be dismissed.

17. The applicant’s draft grounds of appeal are attached to an affidavit filed 20 August 2010. In that draft notice of appeal the applicant raises the following grounds:

    1.The Tribunal Member fails to consider carefully in relation to my brain injury and memory loss problem which made me cannot think of lot of things from previous.

    2.I was denied procedural fairness in connection with the making of the decision.

    3.The Tribunal does not amount to a proper basis for review in judicial review proceedings.

    [Errors in original]

18. In relation to the first ground of appeal, it is clear that the Tribunal discussed with the applicant her assertions of memory loss. The Federal Magistrate considered the circumstances in which this event occurred, and concluded that the Tribunal gave the applicant a fair opportunity to explain her asserted memory difficulties, and that the Tribunal did not have a closed mind in relation to this issue (SZOIZ v Minister for Immigration and Citizenship [2010] FMCA 552 at [22], [25], [26]). The Federal Magistrate also noted that the applicant had made no claim of brain injury or memory loss in her protection visa claims accompanying her application, and that a reading of that document would not suggest that the applicant had any difficulty in recalling specific events (at [25]). Accordingly, the Federal Magistrate was satisfied that the Tribunal’s conclusion, namely that the applicant’s claim of memory loss by reason of brain surgery was a recent invention in consequence of the adverse delegate’s decision, was a finding open to the Tribunal on the material before it (at [26]). There is no material before me which indicates that the view reached by his Honour in relation to this issue was in error.

19. In relation to the second ground of appeal it is not clear in what respect the applicant was denied procedural fairness in relation to the making of “the decision”. In relation to the Tribunal’s decision, I note that the Federal Magistrate recognised that the applicant was self-represented and considered the Tribunal’s decision himself, and further that his Honour found no arguable case of jurisdictional error on the part of the Tribunal (SZOIZ v Minister for Immigration and Citizenship [2010] FMCA 552 at [27]). In relation to the decision of the Federal Magistrate, I note that his Honour’s decision was given ex tempore however the decision is detailed with extensive consideration by his Honour of the grounds of review raised by the applicant in that Court. I am not satisfied that the applicant has been denied procedural fairness.

20. In relation to the third ground of appeal, in my view this ground is essentially meaningless. It appears to be a variation of the earlier grounds of appeal. To that extent, it is not substantiated.

21. It follows that, for the reason that the applicant’s substantive case discloses no merit (and certainly does not demonstrate that the decision of the Federal Magistrate is attended by sufficient doubt to warrant reconsideration) the application should be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        1 November 2010