FEDERAL COURT OF AUSTRALIA

SZKRL v Minister for Citizenship [2008] FCA 226

Migration Act 1958 (Cth) s 91R(3)

Federal Court Rules 1979

Minister for Immigration  & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Jess v Scott (1986) 12 FCR 187cited

Minister for Immigration & Multicultural Affairs v Roda Kabail [1998] FCA 1320 cited

NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10cited

Howard v Australian Electoral Commission [2000] FCA 1767 cited

W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 cited

WACF v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1385 cited

SZKRL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2343 of 2007

EDMONDS J

5 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be refused.

2.                  The applicant pay the first respondent’s costs in the sum of $1,500.

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

REASONS FOR JUDGMENT

1                     By an application filed on 28 November 2007, the appellant seeks an extension of time to file and serve a notice of appeal from a judgment of the Federal Magistrates Court (Cameron FM) delivered on 26 October 2007.  His Honour subsequently published reasons for judgment: SZKRL v Minister for Immigration [2007] FMCA 1814 (‘SZKRL’).

Background

2                     The appellant, a citizen of the People’s Republic of China (‘the PRC’), arrived in Australia on 10 October 2006 and applied for a Protection (Class XA) visa on 23 November 2006.  On 7 February 2007, the appellant’s protection visa application was refused by a delegate of the first respondent (‘the Minister’) and the appellant sought review of the delegate’s decision by lodging an application with the second respondent (‘the Tribunal’): SZKRL at [1] – [3].

Applicant’s claims and Tribunal proceedings

3                     The appellant’s claims made to the Department in support of her protection visa application and at the hearing before the Tribunal were comprehensively and accurately summarised by his Honour below: SZKRL at [6].

4                     When making her application, the appellant claimed she became a Falun Gong practitioner in March 2006 (corrected by her at the Tribunal hearing to have been January 2006).  She was introduced to Falun Gong by her cousin’s husband and noted that her stomach problems improved after practising for one month.  The appellant travelled to the Philippines in March 2006 and then to Australia in October 2006.  She practised Falun Gong at home when she was not busy and applied for a protection visa because she was a Falun Gong practitioner and would practise and spread the teaching.

5                     The appellant did not provide any further written material to the Tribunal, but attended a hearing before the Tribunal and gave oral evidence in support of her claims.  She said she had worked in the wholesaling of motor parts and from 2003 had operated her own business.  She closed the business in January 2006 because the authorities inspected the shop and confiscated products.  In relation to the authorities’ actions in January 2006, the appellant said she did not know why they came into her shop.  The Tribunal asked her if she had any reason to believe that the officials had confiscated her goods for any of the reasons set out in the Convention and she said that it seemed that they did not.

6                     The appellant said that since January 2006 she had nothing to do because she was still in trouble over this matter.  She was worried and stressed and developed eating and stomach problems.  She was advised by a relative to try to practise Falun Gong to improve her health.  The appellant said that from January 2006 she did not have a certain time to practise, and practised whenever she had the time.

7                     The appellant confirmed with the Tribunal that she had never come to the attention of the authorities because of her practice of Falun Gong as she had practised secretly in China and only her husband and close family knew about it.  She said that she was afraid because she had two children.  The appellant said that she sought protection not only because of her adherence to Falun Gong but also because of her business.  She said that without her business she had no income and could not live ‘there’.

The Tribunal’s decision and reasons

8                     His Honour also included in his reasons a summary of the Tribunal’s findings: SZKRL at [7].  His Honour noted that after considering the claims made by the appellant and the evidence before it, the Tribunal found that it was not satisfied that the appellant was a person to whom Australia owed protection obligations.  His Honour set out the findings and reasons that formed the basis of the Tribunal’s decision as follows:

(1)               The Tribunal found that the appellant was not committed to Falun Gong in China and did not have a significant interest in Falun Gong.

(2)               It found that her involvement with Falun Gong in China was minimal and, at its highest, was limited to performing the exercises at home.  It found that the appellant practised at home and had not engaged in any other Falun Gong activities in China because of her lack of interest in Falun Gong and not because she was fearful of the authorities.

(3)               The Tribunal further found, on the basis of the appellant’s oral evidence to it, that she did not have a genuine fear of persecution at the time she left China before coming to Australia.

(4)               In making these findings the Tribunal noted the following matters:

(i)                  the appellant started practising Falun Gong because of her health problems and that she did not believe in it initially;

(ii)                the appellant started practising ‘as a trial’ and that her cousin’s
husband told her to practise to see if her health improved first;

(iii)               her intention in travelling overseas was to relax and it was only after coming to Australia and becoming more familiar with Falun Gong that she became a committed practitioner;

(iv)              the appellant had no difficulties with the authorities in China;

(v)                when applying for the visa to Australia the appellant was not thinking about Falun Gong;

(vi)              when asked to give examples of how she applied the principles of Falun Gong in daily life, the appellant gave vague answers.  She was unable to give specific examples.

(5)               As to the appellant’s involvement with Falun Gong in Australia, the Tribunal was not satisfied that:

(i)                  the appellant’s actions demonstrated a commitment to Falun Gong;

(ii)                the appellant failed to engage in Falun Gong activities in Australia, other than performing the exercises, for several months because she did not know the practitioners or because she did not know about any such activities;

(iii)               the appellant was a committed Falun Gong practitioner or that she was involved in the practice of Falun Gong in Australia because of her commitment to Falun Gong;

(iv)              the appellant’s involvement in Falun Gong in Australia was conducted otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention; and

accordingly, the Tribunal disregarded the appellant’s conduct in Australia in accordance with s 91 R(3) of the Migration Act 1958 (Cth) (‘the Act’).

(6)               The Tribunal found that should the appellant return to China ‘now or in the reasonably foreseeable future’, the level of her engagement in Falun Gong would not change from her past engagement in Falun Gong in China because the Tribunal found that the appellant was not a committed Falun Gong practitioner.

(7)               As the Tribunal found that at most the appellant might perform the exercises in private only, it found that there was no real chance that the appellant would be detected by the Chinese authorities or face persecution due to her involvement with Falun Gong.

(8)               As to the problems the appellant had with her business in China, the Tribunal found that those claims did not give rise to a claim of persecution for a Convention reason, noting that the appellant had stated that this occurred due to a tax dispute and she further said in her oral evidence that she did not consider that there was any Convention related reason in the actions of the authorities.

Proceedings in the Federal Magistrates Court

9                     On 24 May 2007, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision handed down on 1 May 2007.  The appellant appeared at the hearing held on 26 October 2007, at the conclusion of which his Honour delivered ex tempore reasons for judgment.

10                  As noted above, his Honour summarised the background to the matter, the appellant’s claims and the findings and reasons that formed the basis of the Tribunal’s decision: SZKRL at [1] – [7].  His Honour also listed the three grounds contained in the application for judicial review (SZKRL at 18]), namely:

‘(i)       I have been a Falun Gong practioner [sic] since January 2006.  1 need to have a time to study books and attend the activities.

(ii)        I am fear of persecution if I go back to China because I am a Falun Gong practitioner.

(iii)               I will keep on practising Falun Gong.’

11                  His Honour found that these grounds effectively invited the Court to undertake a review of the merits of the appellant’s application and ‘to make findings on her claim different from the findings which were made by the Tribunal’.  His Honour found correctly that the Court could not engage in merits review and that findings of fact were uniquely within the jurisdiction of the Tribunal: SZKRL at [10] – [11];  see Minister for Immigration  & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  No error is disclosed in his Honour’s finding that the grounds pleaded by the appellant in her application failed to demonstrate any jurisdictional error on the part of the Tribunal.

12                  His Honour noted further that at the hearing before him the appellant also raised an allegation that the Tribunal’s finding ‘was not reasonable’ because she was a genuine Falun Gong practitioner: SZKRL at [9].  His Honour found that this ground effectively amounted to the appellant expressing ‘emphatic disagreement with the Tribunal’s findings and decision’.  His Honour found that such a complaint again invited impermissible merits review and could not succeed.  For the reasons outlined at [11] above, no error is apparent in this approach.

13                  To the extent that the ground sought to allege that ‘there was some illogicality or irrationality in the Tribunal’s decision’, his Honour found that there was no proper basis for such an allegation.  His Honour found that the basis of the Tribunal’s decision was ‘clear’, ‘reasoned’ and was ‘open to it on the evidence before it’ and that no jurisdictional error was disclosed: SZKRL at [12] – [13].

14                  Accordingly, his Honour found that no jurisdictional error had been demonstrated on the part of the Tribunal and dismissed the application with costs: SZKRL at [14].

Application for an extension of time

15                  The appellant was required to file and serve a notice of appeal within 21 days from the date the judgment appealed from was pronounced: Order 52 rule 15(1) of the Federal Court Rules 1979 (‘the Rules’).  His Honour delivered ex tempore reasons for judgment at the conclusion of the hearing on 26 October 2006.  Accordingly, the appellant had to file and serve a notice of appeal on or before 16 November 2007.  Instead, she filed an application for an extension of time to file and serve a notice of appeal on 28 November 2007, some 12 days outside the prescribed appeal period.

16                  The appellant now seeks an order pursuant to O 52 r 15(2) of the Rules, which provides that the Court or a Judge for ‘special reasons may at any time give leave to file and serve a notice of appeal’.  Accordingly, O 52 r 15(2) imposes a requirement that ‘special reasons’ exist (as to the nature of the power and what is meant by ‘special reasons’ see: Jess v Scott (1986) 12 FCR 187 at 195 – 196 per Lockhart, Sheppard and Burchett JJ), and even if that condition is fulfilled, it leaves a discretion to grant or refuse leave to appeal.

17                  Whether or not special reasons is established will always be a question of fact and degree in each case: Minister for Immigration & Multicultural Affairs v Roda Kabail & Ors [1998] FCA 1320 per Tamberlin J.  However, the special reasons criterion is not established in the present case.  The appellant has failed to assert any basis that could be seen as meeting the ‘special reasons’ requirement.

18                  The appellant has not advanced any explanation or any evidence for her inability to file a notice of appeal by 16 November 2007.  In her affidavit sworn on 26 November 2007 and filed on 28 November 2007 in support of her application for an extension of time, the appellant simply restates her factual claims for refugee status and asserts that she disagrees with the decision of the Tribunal and that the ‘RRT did not consider I am genuine Falun Gong Practitioner’.  These matters amount to impermissible merits review and do not advance the appellant’s case in any meaningful sense: Wu Shan Liang, ibid;  NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10.

19                  The appellant also states in her affidavit that she ‘received the decision dated on 09/11/2007’.  This is presumably a reference to the date that she claims to have received his Honour’s written reasons.  However, as the appellant attended the hearing before his Honour on 26 October 2007 when ex tempore reasons for judgment were given, this fails to explain why she was prevented from filing and serving a notice of appeal within the prescribed appeal period.

20                  The Minister submits that, even if the ‘special reasons’ requirement is found to have been met (which he does not concede), the application ought still be refused on discretionary grounds.  In his submissions, factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7].  The proposed appeal must have sufficient prospect of success to make it just that it should proceed: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13]; WACF v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].

21                  I agree with these submissions.  The grounds in the appellant’s draft notice of appeal effectively repeat the matters contained in her affidavit. The appellant states that she disagrees with the decision made by the Federal Magistrates Court, that the Federal Magistrates Court followed the decision of the Tribunal and the ‘RRT did not consider I am a genuine Falun Gong practitioner’.  Instead of indicating the orders sought on any proposed appeal, the appellant again reiterated her factual claims made in support of her application for a protection visa.  As noted above, such matters invite impermissible merits review which the Court has no power to undertake.

22                  As no error has been identified in the approach and findings of his Honour below, the application must be refused with costs.

Associate:

Dated:         5 March 2008