FEDERAL COURT OF AUSTRALIA

MZXKQ v Minister for Immigration and Citizenship [2007] FCA 1123

MIGRATION – refusal of protection visa – extension of time in which to appeal from Federal Magistrates Court – no tenable argument for jurisdictional error

Jess v Scott (1986) 12 FCR 187 cited

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70 referred to

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to

MZXKQ, MZXKR AND MZXKS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 353 OF 2007

KENNY J

3 AUGUST 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for an extension of time to file and serve a notice of appeal be refused.

2.                  The applicants pay the first respondent’s costs of the application, save for the costs arising from or associated with the preparation of the affidavit of Pamela Anne Summers sworn on 30 July 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE PROCEEDING

1                     The applicants seek leave to appeal out of time from a judgment of the Federal Magistrates Court, which was adverse to them.

2                     The first applicant is a citizen of the People’s Republic of China.  He has claimed that he would face persecution because of his political profile and belief if he returned to China.  The second and third applicants are his wife and son.  Their claims are dependent on the outcome of his claims.  The first applicant arrived in Australia on or about 14 November 1996 with the second applicant.  The third applicant was born on 19 September 2003 in Melbourne.

3                     Under cover of a letter dated 29 September 2005, the first applicant applied for a protection visa.  He claimed to have a well-founded fear of persecution because of his involvement in the pro-democracy movement in China.  The Minister’s delegate refused his application on 25 November 2005.  On 23 December 2005, he applied to the Refugee Review Tribunal (‘the Tribunal’) for review and attended a Tribunal hearing on 16 February 2006. 

4                     In May 2006, the Tribunal affirmed the delegate’s decision.  The Tribunal held that, given the passage of time, any involvement that the first applicant may have had in the pro-democracy movement was so remote that there was no real chance he would face persecution on returning to China.  The Tribunal did not accept that the first applicant sought to avoid the Chinese authorities on his return from Singapore in 1995, or that he was of adverse attention to the authorities when he left China in 1996.  The Tribunal found that the first applicant obtained a passport in his own name and legally departed China.  He had renewed his passport on a number of occasions, as recently as August 2005.  The Tribunal held that country information indicated that he would not have enjoyed this freedom of movement if he were of interest to the Chinese authorities.

5                     In relation to the sur place claim, the Tribunal found:

·                    The first applicant’s claim to have attended public gatherings and to have published articles in Australia did not correspond to the profile presented at the hearing, or to the period he had been in Australia.

·                    It did not accept that the claimed sur place activities were done on the basis of a “genuine commitment to political activism”.

·                    The articles relied on were about the Communist Party in China and not the first applicant personally.

·                    The first applicant engaged in these sur place activities to strengthen his claim for a protection visa and they were to be disregarded in accordance with s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).

6                     The Tribunal did not accept that the first applicant would be persecuted as claimed if he were to return to China.  It was not satisfied that he had been persecuted in the past by reason of his political profile.  It was not satisfied that he had a well-founded fear of persecution by reason of his political profile, or for any Convention reason.  It did not accept that the third applicant would be denied an education or suffer any form of serious harm if brought up in China.

7                     The Tribunal did not reach a concluded view about the contradictory evidence concerning the first applicant’s employment history or delay in applying for a protection visa.

8                     On 23 June 2006, the applicants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.   In a judgment delivered on 5 April 2007, the Federal Magistrate found no jurisdictional error in the Tribunal’s decision.  The applicants seek to appeal out of time against this judgment. 

9                     The application to appeal out of time was made by an affidavit sworn by the first applicant and filed on 11 May 2007.  In this affidavit, he deposed:

“I now seek to appeal against this decision as I have been advised by my Counsel and reasonably believe that my case has grounds to appeal to the Federal Court.

I seek the leave of the court for an extension of time to appeal as I have been informed by my solicitor and reasonably believe that:

a. On Tuesday, 24 April 2007, Marlena Pitrone of the Victorian Bar Legal Assistance Scheme (VBLAS) contacted the Federal Court Registry (the Registry) staff to clarify the last day that I would be able to lodge my appeal.

b. Marlena Pitrone was informed by the Registry that due to the Easter and ANZAC day public holidays that the deadline to lodge my appeal would extend to 30 April 2007.

c. On Wednesday, 25 April 2007, Marlena Pitrone once again contacted the Registry and was informed that I could lodge my appeal on Friday, 27 April 2007, which would be the last day.

d. VBLAS then contacted my solicitor and informed them that the appeal could be lodged on Friday, 27 April 2007.

Further to this, on Tuesday, 24 April 2007, I met with my Counsel, Alan Hands.  Both he and I personally attended the Registry to clarify when I could lodge my appeal.  Mr Hands spoke to the gentleman at the Registry and was told that the appeal could be lodged on 30 April 2007.

As a result of the information provided by the Registry, my solicitors lodged the appeal on Friday, 27 April 2007.  My solicitors drew up the appeal papers and I attended their offices to sign all the relevant documents on Friday.

I have since been advised that the Registry has informed them that I am one day out of time and the notice of appeal was to be filed by 26 April 2007.”

10                  Order 52 r 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed 21 days from the date of judgment.  In this case, this period ended on 26 April 2007.  The applicants filed their notice of appeal on 27 April 2007.  The notice of appeal was out of time by one day.

11                  An application for an extension of time was filed on 11 May 2007.  Pursuant to O 52 r 15(2), the time limit may be extended for “special reasons”.  In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said at 195:

“…the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression ‘for special reasons’ implies something narrower than this.”

12                  The first applicant has sought to explain the minor delay in filing the notice of appeal.   If this were all, I should be disposed to grant the extension that he seeks.  Indeed, the first respondent does not object to the extension of the time for filing a notice of appeal.  This is not, however, all.  This is a case where the prospects of success on the appeal are insufficient to warrant the grant of an extension of time.

13                  The applicants’ purported notice of appeal filed on 27 April 2007 records the following grounds:

1. His Honour erred in finding that the Refugee Review Tribunal considered whether the applicant was at risk of persecution because of his political associations.

2. His Honour erred in finding that the Refugee Review Tribunal’s decision was not affected by jurisdictional error.

3. Further grounds and particulars to be provided upon provision of legal advice which is pending.”

As will be seen, the notice was vague and did not specify any grounds with particularity.

14                  In written submissions filed on 24 July 2007, counsel for the applicants sought to make good this defect by raising the following grounds of appeal:

1. The Tribunal erred in failing to take into account relevant considerations;

2. The Tribunal breached s 424A of the Act;

3. The Tribunal breached common law natural justice obligations; and

4. The Tribunal failed to consider one of the integers of the applicants’ case.

CONSIDERATION

15                  In the following consideration, I address each of these matters and others mentioned at the hearing.

16                  In written submissions, the applicants’ counsel argued that the Tribunal failed to take into account: (1) the first applicant’s well-founded fear of persecution, and a specific incident of persecution; (2) the total available country information; and (3) the first applicant’s political profile in Australia.  At the hearing, the applicants’ counsel abandoned the argument about the first applicant’s profile in Australia and his sur place claims.  The applicants’ counsel conceded that, in this regard, the Tribunal had correctly applied s 91R(3) of the Act.  

17                  For the reasons I am about to state, I reject the relevant considerations ground.  The Tribunal’s reasons make it plain that it considered the whole of the first applicant’s claims. 

18                  At the hearing, the applicants’ counsel referred to the first applicant’s claim that, in 1991, he attended a candlelight pro-democracy ceremony where he was the victim of a police assault.  Counsel contended that the Tribunal had not properly considered this claim.  Assuming that this matter is a ‘relevant consideration’ in the sense that the Tribunal was bound by law to consider it, this submission must also be rejected.  The Tribunal’s reasons contain two unequivocal references to the incident.  It is plain that it turned its mind to this claim. Under the heading “Claims and Evidence”, the Tribunal said that the first applicant referred to this matter when the Tribunal asked him what would happen if he returned to China.  The Tribunal returned to the same incident under the heading “Findings and Reasons”, where it expressly stated that it had considered the first applicant’s account of his political activities in China, including this incident.  On the Tribunal’s approach, even if the first applicant’s account of this incident was accepted, it could not affect the Tribunal’s finding that these events were “so remote” that there was no real chance that he would face persecution if he returned to China.

19                  I note too that the first respondent contended that, in the Federal Magistrates Court, the applicants’ relevant considerations argument had not extended to the ‘candlelight ceremony’.  The first respondent objected to the matter being raised on the appeal and therefore, I interpolate, being considered on the extension of time application.   It is unnecessary to determine whether or not this matter was raised at first instance, because it suffices to say (as I have done) that the applicants’ argument was untenable.

20                  The substance of the applicants’ case at the hearing was that the Tribunal failed to have regard to the “US Department of State Country Reports on Human Rights Practices – 2004, published February 2005”, which had accompanied the applicants’ submissions to the Tribunal of 21 March 2006. 

21                  This contention is also untenable.  Under the heading “Claims and Evidence”, the Tribunal specifically referred to this document.  It said:

“A statutory declaration dated refers to his involvement as a supporter of the June 1989 pro-democracy movement and reiterates his claims about his political activity in Australia (as set out in submission dated 21 March 2006).  Attached to this submission is a copy of the US Department of State Country Reports on Human Rights Practices – 2004, published February 2005.”

22                  Shortly thereafter, under the heading “Findings and Reasons”, the Tribunal specifically referred to the “US Country Reports on China for 2004 published February 2005”.  It said:

“The country reports indicate that the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies or collected money in support of the pro-democracy protest activity (DFAT cable BJ51854 of 21 September 1992; Peter Coyne Dissent in China – 1993; US Country Reports on China for 2004 published February 2005).”

The last citation is plainly a reference to the same document as that submitted by the applicants.  Counsel for the applicants argued that the differences in the Tribunal’s description make this doubtful.  This submission is not reasonably maintainable.  Although one description is longer than the other, both descriptions are adequate to identify the same document.  It is unsurprising that the Tribunal would use the shorter description on the second occasion it referred to the same document.  The applicants did not cite another document that could have been described in the same terms. 

23                  Fairly read in this way, the Tribunal’s reasons make it clear beyond doubt that it took into account the country information contained in the document that the applicants submitted to the Tribunal with their submissions of 21 March 2006.  This conclusion is confirmed by the Tribunal’s further statement, under the heading “Claims and Evidence”, that “[t]he Tribunal has had regard to the material referred to in the delegate’s decision…”, because reference to the delegate’s decision shows that the delegate also considered the “US State Department Report on Human Rights Practices: People’s Republic of China – 2004, dated 28 February 2005”.   This was apparently the same as the document that the applicants submitted to the Tribunal in their submissions of 21 March 2006.

24                  I have found it unnecessary to consider the first respondent’s submission that country information is not a ‘relevant consideration’ in the administrative law sense.  For present purposes, I have assumed that, in this case at least, the Tribunal would have fallen into jurisdictional error of some kind had it made findings concerning the Chinese authorities absent any country information to support them.

25                  I have also found it unnecessary to consider an affidavit sworn by Pamela Anne Summers on 30 July 2007.  The first respondent faced difficulties in seeking to rely on it. The affidavit was not in evidence in the Federal Magistrates Court, although, according to the first respondent, this point was not taken below.  I doubt that the first respondent’s reliance on s 79 of the Evidence Act 1995 (Cth) was sustainable.  I doubt that Ms Summers’ familiarity with the practice and procedures of the Tribunal would constitute “specialised knowledge” upon which the opinion she gives can be said to be wholly or substantially based for the purposes of this provision: compare Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70 at [106]-[107] per Black CJ, Emmett and Middleton JJ.  The affidavit was not formally filed until the hearing, although, according to the first respondent, this was the result of the applicants’ tardiness in filing their submissions.  Ultimately, the first respondent did not press the tender of the affidavit, although counsel outlined a case for its admissibility, in the terms indicated.

26                  At bottom, the gravamen of the applicants’ complaint at the hearing was that the country information before the Tribunal should have led the Tribunal to conclude that the first applicant had a political profile that would have attracted the Chinese authorities’ adverse attention if he returned to China.  This is in essence to challenge the merits of the Tribunal’s determination that the country information supported the contrary findings.  This challenge, even if made out, would not support a finding of jurisdictional error.  It is the Tribunal’s responsibility to identify the country information upon which it rests its decision and to determine the weight to be given the various items of country information.  This is not a concern of a Court on judicial review: compare NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.

27                  Further, it does not follow from the fact that the Tribunal made findings contrary to the first applicant’s case, without specifically explaining why it preferred some information to other, that the Tribunal failed to consider the matters on which the first applicant relied.  The law does not require the Tribunal to refute all items of evidence that are contrary to its findings of material fact:  see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593 per Kirby J.

28                  At the hearing, the applicants’ counsel also argued that the Tribunal’s failure to discuss the country information supporting the first applicant’s case was a failure to deal with one of the integers of the applicants’ claim.  For the reasons already given, this submission must be rejected.  It is, moreover, clear from the Tribunal’s reasons that the Tribunal did in fact consider all integers of their claim: see [4]-[7] above.

29                  Counsel for the applicants also submitted that the Tribunal breached s 424A of the Act in relation to the adverse inferences it drew from inconsistencies in the evidence given by the first applicant.  He did not specifically identify these inconsistencies.  Counsel for the applicant submitted: (1) the inconsistencies constituted ‘information’ for the purpose of s 424A(1) and the information and invitation referred to in that subsection should have been given in a way prescribed by s 424A(2).  The failure to comply with s 424A(1) constituted jurisdictional error, so counsel said.

30                  This ground is also without merit.  The Tribunal’s reasons showed that, under the heading “Findings and Reasons”, the Tribunal noted a number of inconsistencies in the first applicant’s evidence.  For example, it said:

“The applicant gave inconsistent evidence at the hearing about how he avoided the Chinese authorities on his return in 1995.”

31                  This evidence clearly comes within s 424A(3)(b) of the Act.  By virtue of this provision, s 424A does not apply to information that the review applicant gave for the purpose of the application to the Tribunal.  Further, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, Finn and Stone JJ made it plain at 477 that the word ‘information’ “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”.

32                  The Tribunal also noted that the first applicant’s evidence in his post-hearing submissions did not “correspond to the profile that [he] presented at the hearing or to the period that [he] has been in Australia”.  This evidence too comes within the exception in s 424A(3)(b).  Finally, the Tribunal noted that:

“…the applicant gave contradictory information at the hearing about his employment since his arrival in Australia.  The Tribunal also notes the applicant’s evidence that he did not lodge a protection visa application until eight years after his arrival because the Australian authorities do not publicise the success of applications.  However, having regard to the above findings, the Tribunal need not reach a concluded view on this evidence.”

Again, it is plain enough that the exception in s 424A(3)(b) would apply and, in any event, this contradictory information did not play a part in the Tribunal’s decision. 

33                  It seems, therefore, that to the extent that the Tribunal relied on inconsistencies in the first applicant’s evidence, these inconsistencies arose from the applicant’s evidence at the hearing and his submissions to the Tribunal.  This material was plainly given by him to the Tribunal for the purpose of its review.  Accordingly, s 424A was not engaged. 

34                  In written submissions, counsel for the applicant submitted that the Tribunal breached its common law natural justice obligations by failing to provide the applicant with copies of the country information upon which it relied.  At the hearing counsel abandoned this argument.  In any case, s 422B of the Act governs this matter.  This section provides that Div 4 of Pt 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Hence, in so far as the applicants relied on the residual operation of the common law requirements of procedural fairness, this ground, if pressed, must fail. 

35                  As the appeal the applicants seek to bring is without prospects of success, a grant of leave to extend the time in which to appeal would be futile.  I would dismiss the application for an extension of time to file and serve a notice of appeal.  The applicants should pay the first respondent’s costs save for the costs arising from the preparation of the affidavit of Ms Summers sworn on 30 July 2007.

Associate:

Dated:         3 August 2007