SZRST v Minister for Immigration and Citizenship
[2013] FCA 177
•5 March 2013
FEDERAL COURT OF AUSTRALIA
SZRST v Minister for Immigration and Citizenship [2013] FCA 177
Citation: SZRST v Minister for Immigration and Citizenship [2013] FCA 177 Appeal from: SZRST v Minister for Immigration & Anor [2012] FMCA 1135 Parties: SZRST v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 2165 of 2012 Judge: TRACEY J Date of judgment: 5 March 2013 Legislation: Federal Court of Australia Act 1986 (Cth)
Federal Court Rules 2011 (Cth), s 35.13(a)
Federal Magistrates Court Rules 2011 (Cth), r 44.12Cases cited: SZRST v Minister for Immigration [2012] FMCA 1135 Date of hearing: 5 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 29 Counsel for the Applicant: Appeared in person Counsel for the Respondents: Mr M Alderton Solicitor for the Respondents: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2165 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRST
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
5 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The applicant pay the costs of the first respondent as agreed or assessed.
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 2165 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRST
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
5 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant has applied for an extension of time and leave to appeal from a decision of the Federal Magistrates Court delivered on 29 November 2012: see SZRST v Minister for Immigration [2012] FMCA 1135.
The applicant is a citizen of China who arrived in Australia on a student visa in 2008. On 6 February 2012, after his student visa had expired, the applicant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 5 March 2012. The appellant then applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa on 6 August 2012. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.
BACKGROUND
The applicant claimed that he is a shouter from Fuqing city. He claimed that he attended church from a young age and his grandparents took him to Church. He continued to attend church with his mother and younger brother after his grandfather had died.
He stated that his father had faced problems in China but he did not know the details of those problems. His father has gone to the UK when the applicant was 11 years old. He said that his father was granted protection by the UK government. He claimed that, if he returns as an adult, “they” will do something to him. He was not close to his father and only saw him a few times a year.
In Australia, the applicant had attended a church in Blacktown for six months after his arrival. He claimed to read the Bible. The applicant’s mother’s asylum application was refused in Australia. His brother now lives with neighbours. He claimed that he attended church more than his younger brother. He stated that his brother was warned by the government not to discuss his father. He does not know of any other issues facing his brother.
The applicant stated that he did not play any role in the church in China, nor had he been arrested or detained.
The applicant confirmed that he originally came to Australia on a student visa and studied for six months. Thereafter he ceased studying as he did not have money to pay for school fees. He was taken into immigration detention when he was having dinner with a friend in January 2012.
At the hearing, the applicant was asked questions about his knowledge of Christianity, including questions on significance of the Lord’s Prayer, baptism and the old and new testaments.
THE TRIBUNAL’S DECISION
The Tribunal had serious concerns about the length of time the applicant stayed in Australia illegally and his failure to address his immigration status. The Tribunal found that the applicant exposed himself to the risk of being returned to China where he claims to fear persecution because of his religion. The Tribunal rejected the applicant’s explanation for his failure to address those issues. The Tribunal held that the applicant did not have a subjective fear of persecution in China.
The Tribunal found that the applicant did not display a level of knowledge of Christianity commensurate with that of a person who attended church from a very young age. The Tribunal noted that the applicant’s testimony was hesitant and often confused. The Tribunal found that the applicant displayed a superficial and limited knowledge of Christianity. The Tribunal also noted the applicant’s failure to take an active and consistent role in the church in Australia militated against acceptance of his claims. The Tribunal concluded that the applicant was not a genuine practising shouter Christian.
The Tribunal also noted that the applicant was able to depart China legally without any problems. He not aware of any problems his brother faced in China. The Tribunal held that this indicated that the applicant was not of interest to the Chinese authorities. Accordingly the Tribunal was not satisfied that the applicant was someone to whom Australia owed protection obligations.
BEFORE THE FEDERAL MAGISTRATES COURT
In his application to the Federal Magistrates Court, the appellant relied upon the following grounds:
“1.I am a person to whom Australia has protection obligations.
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.”
In respect of ground one, the Federal Magistrate found that no jurisdictional error had been demonstrated. The applicant appeared to be dissatisfied with the Tribunal’s findings. The applicant complained at the hearing that the Tribunal had delayed in handing down its decision. The Federal Magistrate found that this delay did not constitute jurisdictional error. The Federal Magistrate concluded that the Tribunal had squarely dealt with the applicant’s claims.
The Federal Magistrate held that there was no evidence to support the allegation of prejudice. The Federal Magistrate found that the Tribunal’s finding in relation to the applicant’s limited knowledge of Christianity was open to it on the evidence and material before it and held that there was nothing before the Court to suggest that the Tribunal was biased.
Ground three was abandoned at hearing. The applicant stated that it was “typed in error”.
The application was dismissed under r 44.12 of the Federal Magistrates Court Rules 2011 (Cth). This rule empowers the Federal Magistrates Court to dismiss an application for an order to show cause if the Court is not satisfied that the application has raised an arguable case for the relief claimed.
THE APPLICATION FOR EXTENSION OF TIME AND LEAVE TO APPEAL
In the application for extension of time and leave to appeal, the applicant set out the following grounds:
“1.I’ve been mistakenly filed wrong application form
2.I’ve misunderstood the definition of 21 days
3.It thought 21 days exclude weekends”
The applicant relied upon a single ground in his Draft Notice of Appeal:
“1. The court made a wrong judgement on my credibility.”
A decision by the Federal Magistrates Court to dismiss an application under r 44.12(1) is interlocutory in nature: see r 44.12(2). As a result leave to appeal to this Court must be obtained before any appeal can proceed: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
An extension of time within which to file the application for leave to appeal is also required. By r 35.13(a) of the Federal Court Rules 2011 (Cth) any such application must be filed within 14 days from the date on which the judgment below was pronounced. The applicant filed his application for leave to appeal one day late.
The applicant appeared in person to argue his applications. He had the assistance of an interpreter.
The applicant said that he had mistakenly used a wrong form to make his original application and that it was returned to him by the Registry. He had then downloaded the correct form from the internet, completed it and filed it. He was labouring under a misapprehension that he had 21 days from the Federal Magistrate’s Court decision in which to lodge his application. In this regard he had been misinformed by others in the detention centre.
The applicant said that the “court” to which he referred in his proposed appeal ground was the Tribunal. This ground was based on his assertion that he had told the Tribunal the truth “based on true facts”. The Tribunal had not taken into account that he had “told them the truth.”
In oral submissions the applicant devoted most of his time to rehearsing his factual claims. He reasserted that he had told the truth to the Tribunal. He said that the Tribunal’s scepticism about his knowledge of basic Christian doctrine was misconceived. He said, for example, “just because I did not know about the Bible does not mean God is not in my heart.”
At relevant times the applicant has been in detention. He is not fluent in the English language. In such circumstances, the fact that he had lodged his application a mere one day outside the prescribed period would not be an insuperable obstacle to his application being heard.
The principal difficulty which he confronts is that it is necessary for him to demonstrate, in order to succeed in his proposed appeal, that the Federal Magistrate’s decision is attended by sufficient doubt as to warrant it being reconsidered by this Court and that a substantial injustice would result if leave to appeal were refused on the assumption that the decision was wrong.
The ground which the applicant wishes to pursue in the event of leave to appeal being granted seeks to challenge the factual findings of the Tribunal and, in particular, its findings relating to his credibility. Even if made out these submissions would not establish that he had a reasonably arguable case that the Federal Magistrate’s decision was affected by appellable error and that leave should be granted in order to remedy a substantial injustice.
In my view the applicant has failed to demonstrate any sound basis for this Court’s interference with the exercise of the Federal Magistrate’s discretion. In those circumstances there is nothing to be gained by enlarging time in which the applicant may file his application for leave to appeal.
Both applications should be dismissed with costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 5 March 2013
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