SZSBR And Minister For Immigration And Border Protection & Refugee Review Tribunal

[2014] HCATrans 64

[2014] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S294 of 2013

B e t w e e n -

SZSBR

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 31 MARCH 2014, AT 10.01 AM

Copyright in the High Court of Australia

SZSBR appeared in person.

DAN (PENNY) ZHANG, sworn as interpreter.

MS M.E. STONE:   May it please the Court, I appear for the first respondent (instructed by DLA Piper Australia)

HER HONOUR:   Thank you.  I understand a submitting appearance has been filed on behalf of the second respondent.

MS STONE:   That is correct, yes.

HER HONOUR:   Yes, thank you.  Now, Madam, you understand that for the purpose of these proceedings the law requires me to refer to you by the initials “SZSBR”.  The law is intended to protect people and my use of those initials is not intended to be discourteous to you.  You have filed a summons seeking to have your application for special leave to appeal reinstated.

SZSBR:   Correct.

HER HONOUR:   You rely on an affidavit that you affirmed on 19 February 2014 in support of the order that you seek.  Is that so?

SZSBR:   Yes.

HER HONOUR:   Ms Stone, do you have any objection to any part of the affidavit?

MS STONE:   No, your Honour. 

HER HONOUR:   Do you require the deponent to be cross‑examined?

MS STONE:   No, your Honour.

HER HONOUR:   Yes, very well.  The affidavit is read.  Is your affidavit the only evidence that you wish to place before the Court today in support of your application?

SZSBR:   Correct.

HER HONOUR:   Yes, thank you.  I will just ask Ms Stone something.  Ms Stone, you have filed some submissions on the question of the orders that are sought.  Do I understand there is no evidence that the Minister seeks to put on the application?

MS STONE:   There is no evidence from the Minister, your Honour.

HER HONOUR:   Yes.  Have a copy of those submissions been supplied to the applicant?

MS STONE:   They have and they have been interpreted this morning by the interpreter who is in Court.

HER HONOUR:   Thank you.  You have seen the submissions that the Minister has filed and you understand that the Minister opposes the reinstatement of your application.  Madam Interpreter, if you could explain that it is necessary for the applicant to answer audibly.

SZSBR:   Yes, I understand.

HER HONOUR:   The Minister’s opposition to the reinstatement of your application is based on his contention that your application is futile, that if it were to proceed, inevitably the Court would not grant you special leave.  I will just get you to interpret to that point, Madam Interpreter.

SZSBR:  Okay, I understand.

HER HONOUR:   The Minister draws attention to the grounds in your application for special leave and he submits that those grounds are very broadly stated and do not identify any arguable basis for successfully challenging the decision of Justice Farrell in the Federal Court of Australia.  Do you understand that?

SZSBR:   Yes, I understand.

HER HONOUR:   Is there anything you want to explain to me concerning the grounds that you wish to advance on your special leave application as to why Justice Farrell’s decision might be successfully challenged?

SZSBR:   No.

HER HONOUR:   You applied for a protection visa.  You claimed that you feared persecution in China because of your practice of Falun Gong.

SZSBR:   Correct.

HER HONOUR:   You understand that the Refugee Review Tribunal rejected your claims.  The Tribunal considered that you had made up parts of your account concerning Falun Gong.  Do you understand that the function of the Court is not to review whether the Tribunal was right in its determination of the facts, including whether it accepted your evidence or rejected it?

SZSBR:   Yes, I understand.

HER HONOUR:   Is there anything further you wish to put to me?

SZSBR:   No.

HER HONOUR: Yes, thank you. I will just ask Ms Stone some matters. Ms Stone, the failure to comply with the Rules in this case was a failure to file the written case on or before 9 January. Is that so?

MS STONE:   Yes, your Honour.

HER HONOUR: Thereafter the sequence of events relevantly is that the applicant was informed of that default and of the consequence under the Rules of deemed abandonment by letter dated 17 January 2014?

MS STONE:   Yes.

HER HONOUR:   She moved for reinstatement by her summons filed on 19 February 2014?

MS STONE:   That is correct, your Honour.

HER HONOUR:   The Minister does not submit that the non‑compliance occasioned any particular prejudice?

MS STONE:   No, and we also do not dispute the explanation provided by the applicant.  Our case is solely on the futility argument your Honour has identified.

HER HONOUR:   Yes.  Yes, thank you, Ms Stone, I do not think I need to hear further.  Is there anything further you wish to put, Madam?  Is there anything further you wish to put?

SZSBR:   No, thank you.

HER HONOUR: The applicant applies by summons filed on 19 February 2014 for an order reinstating her application for special leave to appeal. The applicant was unrepresented in her application for special leave to appeal and the application fell to be dealt with under rule 41.10 of the High Court Rules 2004 (Cth) (“the Rules”).

The application for special leave was filed on 12 December 2013.  The applicant was required to file her written case within 28 days of that date.[1] This required the filing of the written case on or before 9 January 2014. The applicant failed to comply with this requirement and her application was deemed to be abandoned pursuant to rule 41.10.4. The Registry advised the applicant of the deemed abandonment by letter dated 17 January 2014. In her affidavit affirmed on 19 February 2014, the applicant states that she believed that she had filed a written case and a draft notice of appeal on 12 December 2013, being the date on which her application for special leave to appeal was filed.

[1] High Court Rules 2004 (Cth), r 41.10.3(c).

The first respondent, the Minister for Immigration and Border Protection, opposes the reinstatement of the application. The Minister does not submit that the applicant has failed to provide an adequate explanation for her failure to comply with the Rules. Nor does the Minister identify any particular prejudice occasioned by that failure. The Minister’s opposition is based upon considerations of futility. He submits that the proposed grounds of appeal do not identify an arguable basis for challenge to the decision of the court below and it follows that it is not in the interests of justice for the applicant to be granted the indulgence that she seeks.

The applicant is a citizen of the People’s Republic of China.  She entered Australia on a tourist visa in October 2011.  In January 2012, she applied for a protection visa.  She was invited to attend an interview with the Minister’s delegate in May 2012.  She failed to attend that interview and the Minister’s delegate determined to refuse to grant the applicant a protection visa. 

The applicant applied for a review of the delegate’s decision in the Refugee Review Tribunal.  The applicant’s claim to engage Australia’s protection obligations was based on her practice of Falun Gong and history of having been arrested in China on this account.  The applicant told the Tribunal that she fears persecution in China because, although she ceased the practice of Falun Gong following her initial arrest, the Chinese authorities would impute to her continued adherence to Falun Gong.

The Tribunal found that the applicant was not a truthful witness and that her claims were fabricated.  It did not accept that the applicant has been a practitioner of Falun Gong at any time.  It did not accept her claims to have been arrested and detained in China in connection with the practice of Falun Gong.

The applicant applied for judicial review of the Tribunal’s determination in the Federal Circuit Court.  Judge Nicholls dismissed the application finding none of the grounds in the applicant’s amended application revealed jurisdictional error.  The applicant appealed unsuccessfully to the Federal Court of Australia against the orders of the Federal Circuit Court.  On 15 November 2013, Justice Farrell dismissed the appeal. 

In her application for special leave to appeal the applicant relies on two unparticularised grounds:  1. “The Refugee Review Tribunal denied applicant natural justice and procedural fairness in making the decision”; and 2. “The Refugee Review Tribunal made a wrong test in making the decision.”  Neither ground challenges the reasons of the Federal Court which, on their face, do not disclose error. 

On the hearing of the application, the applicant has not raised any matter suggestive of the existence of an arguable basis for successful challenge to the decision of the Federal Court.  An application for special leave to appeal filed by an unrepresented applicant is generally considered on the papers by a Full Court constituted by two Justices before a determination is made either to direct that the application be served on the respondent[2] or that the application be dismissed[3]. I accept that the applicant may have misunderstood the requirements of the Rules respecting the filing of the written case. Nonetheless, it is the responsibility of applicants to acquaint themselves with the Rules and ensure compliance with them. More prominently in the determination of this application is the requirement that the applicant demonstrated that it is in the interests of justice to grant the indulgence sought. In circumstances in which I am persuaded that reinstatement of the application would be futile, the interests of justice do not favour the grant of the relief. The summons is dismissed with costs.

[2] High Court Rules 2004 (Cth), r 41.10.6.

[3] High Court Rules 2004 (Cth), r 41.10.5.

Do you understand that, Madam?  Yes, thank you.

AT 10.26 AM THE MATTER WAS CONCLUDED