SZTKW v Minister for Immigration and Border Protection
[2014] FCA 1237
•14 November 2014
FEDERAL COURT OF AUSTRALIA
SZTKW v Minister for Immigration and Border Protection [2014] FCA 1237
Citation: SZTKW v Minister for Immigration and Border Protection [2014] FCA 1237 Parties: SZTKW and SZTKX v MINISTER OF IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 731 of 2014 Judge: EDMONDS J Date of judgment: 14 November 2014 Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court of Australia – application for extension of time and leave to appeal – delay not great but no appealable error to warrant grant of leave to appeal – application for extension of time refused Legislation: Federal Court of Australia Act 1975 (Cth) s 24
Migration Act 1958 (Cth) ss 36(2A), 425
Federal Circuit Court Rules 2001 r 44.12Cases cited: Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 cited Date of hearing: 14 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicants appeared in person Solicitor for the Respondents: Ms S Given of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 731 of 2014
BETWEEN: SZTKW
First ApplicantSZTKX
Second ApplicantAND: MINISTER OF IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
14 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to seek leave to appeal be refused.
2.The applicants pay the first respondent’s costs, as agreed or taxed.
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 731 of 2014
BETWEEN: SZTKW
First ApplicantSZTKX
Second ApplicantAND: MINISTER OF IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
14 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for an extension of time to apply for leave to appeal from a judgment of the Federal Circuit Court of Australia delivered on 27 June 2014: SZTKW & Anor v Minister for Immigration & Anor [2014] FCCA 1351, and an application for leave to appeal from that judgment.
The learned primary judge dismissed an application for judicial review of the decision of the Refugee Review Tribunal (“Tribunal”). The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (“FCC Rules”), and was therefore interlocutory in nature: see r 44.12(2) of those Rules. Accordingly, leave to appeal from the decision is required: see s 24(1A) of the Federal Court of Australia Act 1975 (Cth).
BACKGROUND
By way of background, the first and second applicants are wife and husband, respectively, who arrived in Australia on subclass 457 visas on 30 November 2011. The first applicant, namely, the wife, claimed to fear persecution from the Chinese authorities because of her Christian faith. In December 2007, she became a Christian and began to attend the family church every Sunday.
She claimed that in 2011, she was arrested by the police during a raid on a family church house gathering, and was beaten, tortured and detained for 15 days. The applicant began attending church in Australia soon after her arrival. In February 2012, the applicants decided to return to China after her husband had had an argument with his employer. They subsequently went to the airport but did not depart Australia because the first applicant told her husband that she wanted to stay in Australia, as there was no religious freedom in China.
The applicants applied for a Protection (Class XA) visa on 29 October 2012. On 28 February 2013, a delegate of the first respondent (“the Minister”) refused to grant the applicants a protection visa. On 25 March 2014, the applicants applied to the Tribunal for review of the delegate’s decision. The Tribunal’s findings are set out at [7] of the reasons (“R”) for judgment below.
THE PRIMARY JUDGE
The grounds of review before the primary judge complained that the Tribunal asked some misleading questions and did not take into account evidence which, in the first applicant’s words, “proves that I was prosecuted [sic] by Chinese Government”.
In respect of the first ground alleging that the Tribunal had asked misleading questions, the primary judge noted that the applicants had provided three particulars to this ground in oral submissions at the hearing, namely:
(1)The Tribunal had not believed the applicants’ explanation for not attending an interview with the Minister’s delegate, namely, that the applicants had not received the invitation;
(2)contrary to the Tribunal’s finding, the applicants’ flight to China had been delayed; and
(3)explanations given to the Tribunal for their delay in attending church after arriving in Australia.
Those matters are dealt with at R [9]–[10].
His Honour found that the submissions indicated disagreement with the findings made by the Tribunal, but did not disclose a reasonably arguable claim of error: R [11].
With respect to the second ground, that the Tribunal had not taken into account evidence that proved persecution, the primary judge noted that the applicant had not identified the evidence the Tribunal allegedly failed to consider and, in any event, in his opinion, the Tribunal did consider the evidence the applicant gave that could be characterised as persecution: R [14].
The final ground raised below urged the primary judge to reconsider the applicants’ situation and his Honour, at R [15], held that that obviously does not disclose a reasonably arguable case that the Tribunal made a jurisdictional error.
CONSIDERATION
The application for an extension of time to seek leave to appeal filed on 18 July 2014 is accompanied by an affidavit of the same date, annexing the applicants’ draft notice of appeal. The draft notice of appeal identifies two grounds as follows:
(1)There exists jurisdictional error.
And, as if by way of particulars, it further reads:
Some evidence in favour of the appellant is not fully considered or ignored.
(2)There exists wrong application of law.
And, as if by way of particulars, it reads:
In terms of s.36 (2A) of the Migration Act, if the person will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment, it can be considered as significant harm. The risk that the appellant will be persecuted by Chinese government as a member of family church is not properly considered.
The first proposed ground is identical to the second ground of review raised before the Federal Circuit Court below. As was also the case below, the applicants have not particularised what evidence is said to have been overlooked by the Tribunal, nor how his Honour is said to have erred in his consideration of that ground.
The Minister submits that the Tribunal fully complied with its obligations under s 425 of the Migration Act 1958 (Cth) (“the Act”). It validly invited the applicants to attend the hearing, which they attended on 24 September 2013 and gave evidence. The Tribunal’s summary of the applicants’ evidence does not disclose any procedural deficiencies. It is also apparent from references to the decision-record that the Tribunal raised with the applicant at the hearing the concerns that it had with her evidence and claims. Accordingly, the applicants were on notice of the determinative issues on the review, and there was nothing to suggest any of the evidence they gave was overlooked. I agree with those submissions.
As to the suggestion that the Tribunal somehow misapplied s 36(2A) of the Act, the ground itself seems to express general dissatisfaction with the Tribunal’s conclusion that there was neither a real chance of persecution for a Convention reason, nor a real risk of suffering significant harm by reason of return. The Minister submits that without more, the applicants seek to have the Court engage in an impermissible merits review. I agree.
With respect to the grant of an extension of time, the applicant’s explanation appears to be that the applicant sought advice of a friend as to the time in which the appeal must be lodged, that they were misinformed by their friend and sought clarification from the Court Registry by way of email, to which they received no response.
The Minister makes no submission as to the veracity of that evidence, and, correctly in my view, the Minister does not say that the period of delay in filing was significant, or that there would be prejudice caused by the time being extended, given the relative short period of the delay.
An application for the grant of leave to appeal must ordinarily demonstrate two things. First, that in all the circumstances of the case the decision is attended by sufficient doubt to warrant it being reconsidered by this Court, and second, that substantial injustice would result if leave were refused, supposing the decision to be wrong. Authority for that can more recently be found in the decision of the Full Court of this Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238, in particular, at [26]–[30] and the authorities there referred to.
The delay in filing the application for leave to appeal in this matter is not great and, if that were the only consideration, I would be inclined to grant an extension of time for the applicant to seek leave to appeal. However, I can discern no appealable error in the reasons of the learned primary judge to warrant a grant of leave to appeal, and for that reason there would be no utility in granting an extension of time.
CONCLUSION
The application for an extension of time to seek leave to appeal is refused with costs as agreed or taxed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 19 November 2014
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