SZRKB v Minister for Immigration and Citizenship

[2012] FCA 1084

FEDERAL COURT OF AUSTRALIA

SZRKB v Minister for Immigration & Citizenship [2012] FCA 1084

Citation:	SZRKB v Minister for Immigration & Citizenship [2012] FCA 1084
Appeal from:	Application for extension of time and leave to appeal: SZRKB v Minister for Immigration & Citizenship [2012] FMCA 658
Parties:	SZRKB v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1202 of 2012
Judge:	NICHOLAS J
Date of judgment:	27 September 2012
Legislation:	Federal Court Rules2011 (Cth) r 35.13 Federal Magistrates Court Rules 2001 (Cth) r 44.12(1)(a), r 44.12(2)
Date of hearing:	27 September 2012
Place:	Sydney
Division:	GENERAL DIVISION
Number of paragraphs:	14
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1202 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRKB
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	27 SEPTEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time within which to apply for leave to appeal out of time is dismissed.

2.The application for leave to appeal filed on 21 August 2012 is dismissed.

3.The applicant is to pay the first respondent’s costs of this proceeding.

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 1202 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRKB
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	27 SEPTEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Revised from transcript

1. Before me is an application for leave to appeal filed by the applicant on 21 August 2012. The application was filed out of time. By reason of r 35.13 of the Federal Court Rules, the application should have been made within 14 days of the relevant judgment being pronounced. The judgment was pronounced on 31 July 2012. No formal application to extend time has been filed. The applicant has made an oral application to extend the time within which she may file her application for leave to appeal.

2. The judgment in relation to which the applicant seeks leave to appeal was given by a Federal Magistrate (Driver FM) on 31 July 2012. By that judgment, his Honour dismissed the applicant’s application for judicial review pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (the Rules). That rule provides that the Federal Magistrates Court may dismiss an application for an order to show cause, 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 an application under r 44.12(1)(a) is interlocutory.

3. By decision of the Refugee Review Tribunal (the Tribunal) given on 22 March 2012, the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant claimed to be a citizen of China.  She arrived in Australia on 22 January 2008 under a student guardian visa.  On 31 December 2009, the visa expired, though the applicant remained in the country notwithstanding the expiration of the visa.  She lodged an application for her protection visa on 6 January 2012.  Her son’s student visa expired on 15 March 2011, though he also remained in Australia beyond that date.  The applicant’s son returned to China in January 2012 after he was unsuccessful in his own application for a protection visa.

4. It is apparent from the Tribunal’s reasons that the applicant’s claim was that she would face persecution on the ground of her religion if was required to return to China.  The applicant claimed to be a Catholic.  However, the Tribunal found that the applicant was not a witness of truth and rejected various claims made by her to the effect that she had been arrested and detained by the Chinese authorities.  It accepted that she may have had some contact with Christianity from time to time, but was not satisfied that the applicant had any strong commitment to Christianity or, in particular, to Roman Catholicism.  It found that the church in China which the applicant claimed to have attended was a Church affiliated with the state sponsored Catholic Patriotic Association (CPA).  According to the Tribunal, the CPA was founded by the Chinese authorities in 1957 in what the Tribunal described as “an attempt to circumvent Vatican control over the Catholic Church in China”. 

5. In the result, the Tribunal found that there was no real chance that if the applicant was to return to China, she would in the foreseeable future face persecution for reasons of her religion.  It therefore affirmed the decision not to grant the applicant a protection visa. 

6. In dealing with the application under rule 44.12(1)(a), the Federal Magistrate determined that the application for judicial review filed by the applicant did not raise an arguable case for the relief claimed.  The application for judicial review included three grounds which were in these terms:

   1.        I am a person to whom Australia has protection.

   2.        The R.R.T member was racially Prejudiced against me.

   3.The solicitor recommended to me by R.R.T spoke in favour of R.R.T instead of protecting me.

   (errors in original)

7. The application for judicial review was supported by an affidavit of the applicant made on 23 March 2012 which did no more than annex a copy of the decision of the Tribunal which the applicant wished to challenge. 

8. The Federal Magistrate noted that the Tribunal formed an unfavourable view of the applicant’s credibility.  His Honour also noted that there was no evidence to support her contention that the Tribunal was racially prejudiced or that it exhibited any other form of bias.  Further, his Honour also rejected the applicant’s complaint about the conduct of the registered migration agent who represented the applicant before the Tribunal.  His Honour said that on the basis of the material before him, he was unable to conclude that the migration agent represented the applicant in anything other than a professional and responsible manner.  His Honour went on to say that there was nothing whatsoever in the available material to support a claim that the migration agent had acted fraudulently.  In relation to both the matter of the Tribunal’s alleged bias and the allegations made against the migration agent, there was no evidence relied upon by the applicant aside from the affidavit of 23 March 2012, which I previously referred to.

9. The Federal Magistrate found that the applicant had failed to satisfy him that she had an arguable case that the Tribunal had committed jurisdictional error. 

10. The application for leave to appeal raises two grounds:

    1.        The Court made a wrong judgment on my credibility.

    2.        Failing to take into account very relevant facts of the matter.

11. As to the first ground, the Federal Magistrate did not make any findings in relation to the applicant’s credibility.  All that his Honour did was draw attention to the findings made by the Tribunal in relation to the applicant’s credibility in the course of determining whether or not the applicant had raised an arguable case that the Tribunal had committed a jurisdictional error.  As to the second ground, the applicant has not identified any fact that the Tribunal failed to take into account or, more particularly, any matter which she says it ignored or overlooked that could conceivably give rise to a finding of jurisdictional error. 

12. In my view it was entirely open for the Federal Magistrate not to be satisfied that the applicant had an arguable case for the relief claimed by her.  Indeed, it is difficult to see how his Honour could have come to any other conclusion on the material that was before him.  Of course, his Honour was not bound to dismiss the application for judicial review in such circumstances.  Rule 44.12(1)(a) confers a discretion.  In the present case, his Honour exercised his discretion to dismiss the application.  I am satisfied that the Federal Magistrate was fully justified in exercising his discretion in the way he did.

13. While the delay involved in filing the application for leave to appeal in this case was not substantial and was most likely the result of the applicant’s misunderstanding as to the time within which such an application should be filed, the fundamental difficulty that the applicant faces is that her application for leave to appeal has no prospects of success.  In the circumstances, I decline to grant the applicant the extension of time needed in this case.  I will also order that the application for leave to appeal filed on 21 August 2012 be dismissed.

14. Orders accordingly.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:       4 October 2012