SZRIA v Minister for Immigration and Citizenship
[2012] FCA 1345
•20 November 2012
FEDERAL COURT OF AUSTRALIA
SZRIA v Minister for Immigration and Citizenship [2012] FCA 1345
Citation: SZRIA v Minister for Immigration and Citizenship [2012] FCA 1345 Appeal from: Application for extension of time and leave to appeal: SZRIA v Minister for Immigration & Anor [2012] FMCA 686 Parties: SZRIA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1256 of 2012 Judge: NICHOLAS J Date of judgment: 20 November 2012 Legislation: Federal Magistrates Court Rules 2001 (Cth) r 42.12(1)(a), r 42.12(2)
Federal Court Rules2011 (Cth) r 35.13
Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Migration Act 1958 (Cth) s 36(2)(aa), s 414(1)Date of hearing: 20 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr M P Cleary Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1256 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRIA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time within which to apply for leave to appeal, and the application for leave to appeal, are dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1256 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRIA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
20 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from transcript)
Before me is an application for an extension of time to seek leave to appeal and, if the extension is granted, leave to appeal the judgment of a Federal Magistrate given on 7 August 2012 dismissing an application for judicial review pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12(1)(a) provides that the Federal Magistrates Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) makes it clear that an order dismissing such an application is interlocutory in nature.
Rule 35.13 of the Federal Court Rules2011 (Cth) requires an application for leave to appeal an interlocutory judgment to be filed within 14 days of the judgment being pronounced. The application now before me was filed on 3 September 2012, which was 13 days out of time. An affidavit filed by the applicant with the application for the extension of time does not include any explanation for the delay in the filing of the application.
The hearing of the applicant’s application was fixed for today. The applicant failed to attend and for that reason, the application will be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I make that order in circumstances where I have had an opportunity to consider the reasons of the Federal Magistrate, the Refugee Review Tribunal’s (Tribunal) decision and the proposed grounds of appeal which the applicant filed with his application.
BACKGROUND
The applicant is a Chinese citizen who arrived in Australia on 30 April 2011. On 25 July 2011 the applicant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 16 September 2011.
The applicant applied to the Tribunal for review of the delegate’s decision on 12 October 2011. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa on 23 March 2012. The applicant then sought judicial review in the Federal Magistrates Court in an application filed on 4 April 2012.
The applicant claimed to have been persecuted by the Chinese government for providing shelter to a Falun Gong practitioner. He claimed to have left China because he feared for his own safety.
The applicant claimed he has never been interested in Falun Gong and that he has never practiced it, but he came to the authorities’ attention as a result of his dealings with an old friend who was, he claimed unbeknown to him, a Falun Gong practitioner. The applicant claimed that he feared he would be subject to detention and mistreatment if returned to China.
The Tribunal found the applicant was not a credible witness. It found that the applicant’s claims were implausible. It did not accept his evidence as truthful. The Tribunal found that the applicant does not have a well founded fear of persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future.
PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT
In his application for judicial review, the applicant relied upon the following grounds:
1. RRT and DIAC have bias against me.
2. RRT’s reasoning is illogical and prejudicial.
3.I was not given opportunity and resource to respond to RRT’s third party information.
(errors in original)
The Federal Magistrate rejected the applicant’s claims of bias, and observed that there was nothing in the evidence or the particulars to support any such claim. His Honour also found that the Tribunal’s adverse credibility finding was open to it on the evidence, and there was a logical basis for the Tribunal’s reasoning. His Honour also found that there was no obligation upon the Tribunal to disclose the country information referred to by it, and there was no legal error in the way the Tribunal dealt with the country information. The Federal Magistrate dismissed the application with costs.
THE PROPOSED APPEAL
The proposed Notice of Appeal relies upon the following grounds:
1. Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.
2.Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.
3.Error of the Honour, Judge of Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.
(errors in original)
Before granting the applicant an extension of time I would need to be satisfied that the proposed appeal which the applicant seeks leave to commence has some reasonable prospects of success. In this case I am not satisfied that the proposed appeal has any prospects of success. The various grounds relied upon by the applicant before the Federal Magistrate were correctly rejected for the reasons given by his Honour.
Counsel for the first respondent (Minister) has drawn to my attention the absence of any express finding made by the Tribunal in terms that reflect the language of s 36(2)(aa) of the Migration Act 1958 (Cth) (Act). That provision took effect on 24 March 2012. The Tribunal’s decision was made on 23 March 2012 but not corrected until the day the amendment took effect. In those circumstances, the Minister has raised the possibility that the amendment was in effect before the Tribunal’s review had been completed. For the purpose of argument I will assume that to be so.
It is apparent from the terms of the Tribunal’s findings that it was satisfied that the applicant did not face any risk of harm in China. In the circumstances, there is no reason to think that there was any jurisdictional error committed by the Tribunal as a result of it having failed to separately address s 36(2)(aa) of the Act.
For the above reasons, the application for an extension of time to seek leave to appeal and the application for leave to appeal will be dismissed. The applicant must pay the first respondent’s costs.
Orders accordingly.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 28 November 2012
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