SZTMN v Minister for Immigration and Border Protection
[2014] FCA 500
•16 May 2014
FEDERAL COURT OF AUSTRALIA
SZTMN v Minister for Immigration and Border Protection [2014] FCA 500
Citation: SZTMN v Minister for Immigration and Border Protection [2014] FCA 500 Appeal from: Application for extension of time: SZTMN v Minister for Immigration & Anor [2013] FCCA 2083 Parties: SZTMN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1 of 2014 Judge: MARSHALL J Date of judgment: 16 May 2014 Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 91R(3)
Date of hearing: 14 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the applicant: The applicant appeared for himself Counsel for the respondents: Ms A Wong Solicitor for the respondents: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1 of 2014
BETWEEN: SZTMN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
16 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 5 December 2013 is dismissed.
2.The applicant pay the first respondent Minister’s costs of the application.
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 1 of 2014
BETWEEN: SZTMN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
16 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant applies for an extension of time within which to appeal from a judgment of a judge of the Federal Circuit Court (“the primary judge”). The primary judge dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal. Leave to appeal is required because the notice to appeal was filed a few days out of time and immediately after the Christmas/New Year break. Given the time of year, I see no point in refusing leave to appeal, other than if the appeal would be bound to fail if leave were granted. For the reasons which follow, the Court considers that the appeal is bound to fail and that therefore leave to extend the time within which to apply to file and serve the notice of appeal should be refused.
The applicant is a citizen of China. He claimed to fear persecution by reason of his Christianity, his wife’s breach of China’s one child policy and a land dispute with authorities in China.
A delegate of the respondent Minister rejected the application. The delegate found that the applicant did not have a well-founded fear of persecution based on the 1951 Convention relating to the Status of Refugees (opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)). The delegate also considered that Australia did not have complimentary protection obligations to the applicant under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
The applicant sought a merits review of the delegate’s decision before the Tribunal. The applicant appeared before the Tribunal to give evidence and present his submissions with the assistance of an interpreter.
The Tribunal observed that the applicant’s claims centred on his “imputed political opinion” being adverse to local government officials in China and his Christianity.
On the issue of imputed political opinion, the Tribunal accepted that the applicant sought to engage local officials without success on a land dispute issue but was not satisfied that the applicant suffered harm as a result. At [17], the Tribunal said:
I do not accept there is a real chance that he would suffer any harm for this reason if he were to return to China although he might well experience understandable frustration at the unwillingness of officials to help him.
The Tribunal was not satisfied that the applicant’s involvement in Christianity was undertaken other than to advance his claims for a protection visa. It disregarded that conduct under s 91R(3) of the Act. The Tribunal went on to say that even if the applicant did practice Christianity if he returned to China, he would not face a real chance of harm at the hands of the authorities.
On the issue of complementary protection under s 36(2)(aa) of the Act, the Tribunal found that the applicant did not face any harm of the kind of he alleged.
The applicant sought judicial review of the Tribunal’s decision before the Court below. Judge Driver dismissed that application. His Honour observed that the grounds of review did not raise any jurisdictional error and that the applicant conceded effectively that he was dissatisfied with the merits of the Tribunal’s decision. His Honour held that there was no arguable case of jurisdictional error.
The applicant’s proposed grounds of appeal do not allege any jurisdictional error in the reasons of the Tribunal other than an allegation that it failed to take his “whole claim into account”. This was not an issue raised in the Court below. The applicant did not identify which of his claims, if any, the Tribunal did not take into account. This morning the applicant failed to advance any coherent arguments for an extension of time within which to seek leave to appeal.
The proposed grounds of appeal do not raise any appealable error in the judgment below, save perhaps for his Honour not granting an adjournment to allow the applicant to consult a “free legal adviser”. This was not a matter in the control of the Court below. His Honour dealt with this matter at [11] of his reasons where he said:
Up until 30 November 2013, applicants in the circumstances of this applicant were entitled to receive the assistance of advice from a panel advisor paid for by the Minister’s Department. That assistance is no longer available. In the circumstances, I was concerned that it would not be in the interests of the administration of justice to conduct a show cause hearing after a lengthy delay if the applicant was not to be in a better position to articulate a coherent assertion of error by the Tribunal. Having regard to the fact that the court book was available, I directed an immediate show cause hearing. I went through the court book page by page with the applicant and the Minister’s solicitor. I accept what he told me in response to my questions.
The above discussion does not show any error in the Court below proceeding to deal with the matter before it without adjourning where the argument would serve no useful purpose.
The application is dismissed, with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 16 May 2014
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