SZTHW v Minister for Immigration and Border Protection

[2014] FCA 485

FEDERAL COURT OF AUSTRALIA

SZTHW v Minister for Immigration and Border Protection [2014] FCA 485

Citation:	SZTHW v Minister for Immigration and Border Protection [2014] FCA 485
Appeal from:	Application for extension of time: SZTHW v Minister for Immigration & Anor [2014] FCCA 244
Parties:	SZTHW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 187 of 2014
Judge:	MARSHALL J
Date of judgment:	14 May 2014
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Date of hearing:	14 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the applicant:	The applicant represented himself
Counsel for the first respondent:	Ms S Burnett
Solicitor for the first respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 187 of 2014

BETWEEN:

SZTHW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	14 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to seek leave to appeal from the judgment of the Federal Circuit Court dated 4 February 2014 is dismissed.

2.The applicant pay the first respondent Minister’s costs of the application, fixed at $2000.

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 187 of 2014

BETWEEN:

SZTHW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	14 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to seek leave to appeal from a judgment of the Federal Circuit Court. The Court below dismissed the application before it on the basis that it raised no arguable case for relief; see rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The judgment below is interlocutory. That is why leave is required. The application for leave should have been made within 14 days of the decision below. It was made six days after that judgment.

2. Ordinarily, a six day delay in the absence of prejudice to the respondents would not be lightly refused.  However, if the leave application would be bound to fail because the proposed appeal has no prospects of success, it would be pointless to grant such an extension.  For the reasons which follow, it would be pointless in this matter to extend the time within which the applicant may seek leave to file a notice of appeal from the judgment of the Court below.

3. The applicant is a citizen of China.  He applied to the respondent Minister for a protection visa claiming that he had a well-founded fear of persecution if returned to China on account of his Christianity.  A delegate of the Minister refused the application.

4. The applicant sought a merits review of the delegate’s decision before the Refugee Review Tribunal.  The Tribunal affirmed the decision of the delegate.  It rejected the applicant’s claim that he considered himself to be a Christian.

5. The Tribunal also rejected the applicant’s evidence that his wife was subjected to harm in China on account of her “superstitious” beliefs.  It rejected his evidence that his wife was a member of a “house church”.  The Tribunal was satisfied that the chance of the applicant being subject to harm amounting to persecution by reason of his religion, if returned to China, was remote.  Finally, the Tribunal considered that occasional demands for money from the applicant by corrupt officials would not constitute “serious harm” and could not amount to persecution.

6. The Tribunal further rejected the applicant’s complementary protection claims.  It reasoned that there was no real risk the applicant would suffer significant harm if returned to China.  It found that there was no chance of him being persecuted for reasons of religion.  It also found that, although there might be some risk to the applicant from having attended church services in Australia, that fact would likely not be, if known, of any interest to the Chinese authorities.

7. Before the Court below, the applicant only took issue with findings of fact made by the Tribunal.  One ground of review took issue with a finding by the Tribunal that the applicant would not practise the Christian religion in China.  The second concerned the Tribunal’s finding that the applicant’s Australian church attendance was designed to bolster his protection visa claim.  The third sought to challenge factual findings of the Tribunal concerning the likely behaviour of corrupt officials towards him if he returned to China.  The Court below rejected each ground as not raising any issue of jurisdictional error.

8. On appeal, the applicant wishes to raise issues not raised before the Court below.  These allege bias against the Tribunal and a denial of procedural fairness and illogical reasoning.  The applicant did not seek to advance how any such claims could be made out.  They are no more than unsubstantiated allegations.  There is no jurisdictional error in the reasons of the Tribunal or appealable error in the judgment of the Court below.

9. Accordingly, the application must be dismissed with costs.  The Court fixes those costs at $2000, being a reasonable amount having regard to the affidavit affirmed by Mr d’Avigdor, solicitor for the first respondent, on 7 May 2014.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        14 May 2014