FEDERAL COURT OF AUSTRALIA

SZKQR v Minister for Immigration and Citizenship [2008] FCA 267

SZKQR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2329 OF 2007

GILMOUR J

6 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for extension of time within which to file and serve a notice of appeal be dismissed.

2.                  The applicant pay the first respondent’s costs fixed at $945.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time in which to apply for leave to appeal from orders made by Federal Magistrate Cameron of 29 October 2007.  The Federal Magistrate’s decision dismissed an application for review by the applicant in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 March 2007.  The Tribunal had affirmed the decision of a delegate of the first respondent made on 10 November 2006 not to grant a protection visa. 

Background

2                     The applicant is a citizen of the People’s Republic of China who arrived in Australia on 5 August 2006.  The applicant claimed he had a well-founded fear of persecution due to his anti-government political opinion.  He claimed that after reading a set of books about Tiananmen Square, he was ‘shocked into anti-government beliefs’.  He and his friends allegedly copied and distributed chapters of the books and distributed leaflets on 4 June 2006 in memory of the protests.  The applicant claimed that the leaflets were quickly removed and that his friends were arrested by a police special investigations group.  Police allegedly went to the applicant’s home to arrest him as they believed him to be the leader.  As a result he claimed to have moved to his aunt’s home.  The appellant claimed that after hearing that those arrested were being tortured and after his family business was sealed by police, he decided to leave China.  Once in Australia he was allegedly told not to return because his colleagues had been gaoled and police believed he was the leader of the protest activities. 

Proceedings before the Tribunal

3                     On 15 February 2007, after the hearing, the Tribunal sent the applicant a letter pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”) inviting him to comment on certain issues by 12 March 2007.  The applicant made no substantive response.    

4                     On 27 March 2007 the Tribunal sent the applicant an invitation to attend the handing down of its decision, in which it was noted that:

The Tribunal has decided not to grant you an extension of time within which to respond to its s 424A letter… As a result of your non-compliance the Tribunal has decided to proceed to make a decision on the information currently before it. 

5                     However the Tribunal noted that it “is obliged to consider any evidence you lodge with it prior to its decision being handed down” and if such evidence was lodged “the Tribunal may consider scheduling a second hearing.”

6                     The Tribunal was not satisfied that the applicant was credible as his evidence was “implausible, contradictory, inconsistent and at times vague.”  As such, the Tribunal was not satisfied that the applicant was involved in political activities or distributing anti-government leaflets or that he was wanted by authorities.  The Tribunal therefore found that the applicant did not have well-founded fear of persecution for a Convention reason.

Proceedings before the Federal Magistrate

7                     In his application to the Federal Magistrates Court filed on 18 May 2007, the applicant claimed that:

1.                 RRT decision was unfair to my application for a protection visa.  I was prosecuted [sic] in my country.

2.         I don’t believe that I didn’t meet the Conventions related reason of prosecution [sic] and not a refugee.

8                     In dismissing the application the Federal Magistrate found that:

(i)         on its face, this ground sought impermissible merits review:  [10];

(ii)        the Tribunal had approached its task with appropriate thoroughness, set out the information before it, analysed that information and came to a conclusion which was open to it: [11];

(iii)       the Tribunal was not obliged to send a letter pursuant to section 424A of the Act, however, having done so, it did it in the way which was prescribed: [13]-[15];

(iv)       no breach of section 425 had been disclosed: [16];

(v)        jurisdictional error on the part of the Tribunal has not been disclosed: at [19]. 

THE APPLICATION FOR AN EXTENSION OF TIME

Legal Principles

9                     By Order 52 Rule 15(1)(a)(i) of the Federal Court Rules a Notice of appeal must be filed and served within 21 days after the date when the judgment was pronounced.  The decision of the Federal Magistrate was pronounced on 29 October 2007.  Accordingly, the last day for the applicant to file a notice of appeal was 19 November 2007.

10                  By Order 52 Rule 15(2), the Court may “for special reasons” and “at any time” grant leave to file and serve a notice of appeal outside the prescribed time limit.

11                  The relevant criteria in considering an application for such an application was set out by the Full Court of this Court in Parker v The Queen [2002] FCAFC 133 at [6], adopting what had been set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 at 310-311.  They include the following:

(a)        Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b)       The appellant must show an acceptable explanation for the delay;

(c)        It must be fair and equitable in the circumstances to extend time;

(d)       Any prejudice to the respondent in defending proceedings caused by the delay is a material factor militating against the grant of an extension;

(e)        The mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and

(f)        The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.

REASONING

12                  The applicant filed a draft notice of appeal on the 26 November 2007, seven days after the time ended for a notice of appeal to be filed.  The applicant, in his affidavit, filed in support of his application, claimed that he filed out of time because he only received the judgment on 19 December 2007.  He also claimed he was confused by the complexity of the Australian Court System and attempted to seek advice.

13                  The appellant appeared in person at the hearing of his application for review before the Federal Magistrate on 29 October 2007.  Judgment was given ex tempore, at the conclusion of the hearing.  The appellant confirmed this to be the case when he appeared before me.  The Notice of Appeal was filed shortly thereafter.  The fact that the applicant only received a copy of the reasons for judgment on 19 December 2007 is irrelevant. 

14                  Where, as here, the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [11].  This is subject to a consideration of the merits of the proposed appeal in order to see whether the appellant has a respectable argument: N1202/01A at [13].

15                  The first respondent submits that the appeal does not have sufficient prospect of success and that it would be unjust to allow the appeal to proceed.  I will now consider the proposed grounds.

Ground 1:

16                  The appellant’s first ground of appeal is that:

I consider the decision made by “Immigration, RRT and the Federal Ministers (sic) Court regarding my application for a Protection Visa is unfair.  

17                  This ground in effect repeats the first ground of appeal to the Federal Magistrate’s Court.

18                  The appellant has not provided particulars for this ground nor has he been able to identify in what respect(s) the Federal Magistrate’s decision was unfair.  I have considered the reasons of the Federal Magistrate as well as his conclusions particularly those summarised at [8] above. 

19                  I can find no relevant error of law in the Federal Magistrate’s reasoning or conclusion.  There is, in my opinion, no reasonable prospect of success on the merits. 

20                  The second ground of appeal alleges that the applicant was not given a full opportunity to explain his case and that protection visa cases should be treated with more care and understanding.  Before me the applicant said that his ‘feeling’ was that he did not have enough opportunity to explain his case.  There is no basis to this complaint.

21                  The Tribunal invited the applicant to send to it any documents, information or other evidence he wanted the Tribunal to consider and invited him to a hearing which he attended. A review of the reasons of the Tribunal discloses that there was a deal of information provided by the applicant to the Tribunal during the hearing.  In its reasons, after setting out the explanation given by the applicant the Tribunal states that the applicant was asked if he wished to add anything further to his claims.  He did so and that information is recorded in the reasons.  Similarly, the Federal Magistrates Court invited the applicant to a hearing which he attended. In these circumstances, the applicant’s contention is without foundation.

22                  I find that there is no merit in the notice of appeal and no chance of success.

23                  The extension of time to file and serve the notice of appeal should be refused.

24                  Accordingly, I order that the application for extension of time to file and serve a notice of appeal be dismissed. 

Associate:

Dated:         6 March 2008