FEDERAL COURT OF AUSTRALIA

SZKSM v Minister for Immigration and Citizenship [2008] FCA 632

SZKSM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2486 of 2007

RYAN J

8 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an 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 in the sum of $800.00.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application for extension of time to file and serve a notice of appeal from orders of Cameron FM of 30 October 2007.  The application for leave to appeal has been filed with an affidavit sworn by the applicant in support of the application to which a draft notice appeal is attached.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which had been handed down on 24 May 2007. 

Background

2                     The applicant is a citizen of the People’s Republic of China and arrived in Australia on 23 November 2006.  On 18 December 2006, the applicant filed an application for a protection (class XA) visa, which was refused by a delegate of the first respondent (“the Minister”) on 20 January 2007.  On 31 January 2007, the applicant filed an application in the Tribunal for review of the delegate’s decision.  The applicant claimed to fear persecution due to his practice of Falun Gong.  The applicant allegedly commenced practising Falun Gong in 1997 for health reasons.  He claimed to have promoted it to others.  According to the applicant, he obtained a passport by paying a bribe and left China in order to avoid persecution directed towards Falun Gong practitioners generally.

3                     The Tribunal conducted a hearing on 6 March 2007 and published its decision on 24 May 2007 affirming the delegate’s decision not to grant the visa.  The Tribunal did not accept the applicant’s claims, finding that he possessed a limited knowledge of the principles and practice of Falun Gong, which was not explicable by his limited education.  The Tribunal also found his inadequate recollection of protests in 1999 against official repression of Falun Gong inconsistent with what would be expected of a person who had practised and promoted Falun Gong during the period which the applicant had claimed.  The Tribunal concluded by stating that it;

‘ … does not accept that the applicant is, or has ever been, in China or Australia, a Falun Gong practitioner or that he has ever been involved in promoting the benefits of Falun Gong as claimed.  … …The Tribunal does not accept that he will be involved in practicing Falun Gong in China upon his return.  The Tribunal therefore does not accept that … he will be persecuted for reasons of involvement in Falun Gong if he returns to China now or in the reasonably foreseeable future, …’

4                     On 4 June 2007 the applicant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. 

5                     Before Cameron FM, the applicant claimed that the Tribunal had failed to comply with section 424A of the Migration Act 1958 (Cth) (“the Act”), had failed to understand the applicant’s claims and had refused the applicant a protection visa without proper grounds.  The applicant also asserted that the Tribunal’s decision had been illogical and reiterated his belief that he would be gaoled if forced to return to China.  The learned Federal Magistrate found that the information relied upon by the Tribunal in reaching its decision had been supplied by the applicant as part of the review and was therefore subject to the exception in s 424A(3)(b) of the Act.  That included information concerning the applicant’s acquisition of a passport.  No further particulars had been provided to support the assertion that the Tribunal had misunderstood the applicant’s claims and his Honour found that the Tribunal;

‘... clearly understood, investigated and considered the claim but failed to be satisfied that the applicant had met the criteria for a protection visa.’

6                     His Honour further considered that the applicant appeared to have misconceived the Tribunal’s fact finding role and reiterated that it was under no obligation to conduct a further investigation beyond the matters which it had canvassed.  The applicant’s restatement of his claim to fear persecution in China was regarded as amounting to a request for impermissible merits review. 

7                     Finally, in relation to s 425 of the Act the learned Federal Magistrate held that there was no evidence before the Court to support a claim that the applicant had not been well enough to give evidence or respond to questioning.  On 30 October 2007 Cameron FM dismissed the application. 

8                     On 19 December 2007, the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal from the orders of Cameron FM of 30 October 2007.  That application was necessary because a notice of appeal had not been filed and served within the time limits prescribed by the Rules of this Court.  The application was accompanied by a supporting affidavit sworn 10 December 2007 attaching a draft notice of appeal and setting out the grounds of the application as follows;

‘(1)(a)  I am Falun Gong practitioner from China.  I will face a threat to my personal security or human rights abuse of my human dignity if I return to my country.

(b)       The Tribunal failed to comply with its obligations under section 424A of the Migration Act 1958.  Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in my protection, which information was not provided to the applicant in accordance with section 424A.  For example, “information that the applicant departed China legally was used against him to support an inference that the authorities are not seeking him …,” which was significant in the Tribunal’s analysis.

(c)        Member of the Tribunal failed to understand my claims and failed to consider relevant matters.

(d)       The respondent refused to grant my protection visa without any proper grounds and proper investigation.’

9                     The draft notice of appeal attached to the affidavit lists the grounds of appeal as follows:

‘(1)      I am Falun Gong practitioner from China.  I will face threat to my personal security if I return to my country.

(2)       Member of the RRT failed to understand my claims and failed to consider relevant matters.

(3)       The respondent refused to grant my protection visa without any proper grounds and proper investigation.’

10                  The orders sought in the draft notice of appeal are:

‘(1)      A writ of certiorari quashing the decision of the Refugee Review Tribunal.

(2)       The tribunal should reconsider the matter according to law by a differently constituted Tribunal.

(3)       Cost.’

11                  On 9 January 2008 Deputy District Registrar Farrell made directions which included;

‘(4)      No later than five (5) clear working days before the hearing date the applicant file and serve full written submissions upon which the applicant seeks to rely in support of the application, and in support of any application were the Court to grant an extension of time and/or leave to application, so that the Court is able to assess in the application whether there is utility in granting the extension of time and/or leave to application.’

12                  The applicant has not filed any written submissions and has failed to comply with the order of the Deputy District Registrar.  The applicant today explained that omission by claiming that he had not received notice of the order.  When invited to make oral submissions in support of his application today the applicant claimed that he did not have the ability to make submissions directed to legal error by the Tribunal or the Federal Magistrates Court.  Although notified of today’s hearing by letter dated 1 April 2008, he had not had time to retain legal representation.  Accordingly, he applied for an adjournment of today’s application.  However, having regard to the time which has elapsed since the application to this Court was filed and served and the fact that he has been kept apprised, since January 2008, by the solicitors for the respondent of proceedings in this Court, the application for an adjournment was refused.

The first respondent’s submissions 

13                  In written submissions on behalf of the Minister it has been submitted that the guiding principles for this Court when considering whether to grant leave to appeal out of time were articulated by Wilcox J in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, at 348-349.  The Minister contended that, despite the discretion available under O 52 r 15(2) of the Rules of this Court to grant an extension of time to file and serve a notice of appeal, the Court should not do so in this case. 

14                  First, the Minister submitted that the applicant had a period from the date of Cameron FM’s orders of 30 October 2007 until 20 November 2007 to file and serve a notice of appeal and has failed to provide an acceptable explanation for failing to do so.  Second, it was submitted on behalf of the Minister, the grounds listed in the draft notice of appeal failed to identify any appealable error by the learned Federal Magistrate.  Ground 1 in the draft notice of appeal, it was contended, identifies no error in the Tribunal’s decision, merely stating claims regarding the applicant’s alleged fear of persecution in China.

15                  It was then pointed out that ground 2 in the draft notice of appeal had been contained in the applicant’s application before Cameron FM and that the learned Federal Magistrate had correctly held at [23]of his reasons that;

‘… Although the Tribunal does have power to undertake investigations it is under no obligation to exercise that power.

… …

This was a straightforward application for review and the absence of any inquiries by the Tribunal except in relation to the independent country information which it obtained is not indicative of jurisdictional error and this asserted ground of review is not made out.’

16                  It was therefore contended on behalf of the Minister that the application should be dismissed with costs fixed pursuant to O 64, r 2(c) of the Rules of this Court.

Disposition of the application

17                  Order 52, r 15(1) and (2) of the Federal Court Rules provide;

‘Time for filing and serving notice of appeal

(1)       The notice of appeal shall be filed and served -

(a)        within 21 days after -

(i)         the date when the judgment appealed from was pronounced;

(ii)        the date when leave to appeal was granted;  or

(iii)       any later date fixed for that purpose by the court appealed from;  or

(b)       within such further time as is allowed by the Court or Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2)       Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’

The “special reasons” required by subrule (2) were considered by a Full Court in Jess v Scott (1986) 12 FCR 187, at 195.  The Court held that the expression describes a;

‘… flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.’

18                  Further it stated, at 195;

‘What is needed to justify an extension is indicated in rule 15(2) by the words “for special reasons.”  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days.  In that context, 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 rules 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.’

19                  In Minister for Immigration and Multicultural Affairs v Kabail [1998] FCA 1320, Tamberlin J considered whether any “special reasons” had been shown and whether the Court ought to exercise its discretion and grant an extension.  In that case, his Honour was not persuaded that the explanation given for the delay was “special” as there was “nothing unusual or out of the ordinary.”

20                  In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9, a Full Court of this Court held at [7] that it was not appropriate to exercise its discretion to grant an extension of time as no sufficient explanation had been provided for the whole of the delay in filing the notice of appeal.  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 Mansfield J considered it appropriate to exercise the discretion noting at [14] of his reasons that the circumstances of the case, including the conduct of the applicant in question, amounted to “special reasons.”

21                  Order 52, r 15(3) requires that:

‘An application for leave under subrule (2) must:

(a)       be in accordance with Form 54A;  and

(b)       include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing;  and

(c)        be accompanied by an affidavit setting out:

(i)         the nature of the matter; and

(ii)        the factual and legal issues in dispute;  and

(iii)       the reasons why leave should be given.’

22                  The applicant’s affidavit accompanying the application fails to set out any reasons why leave should be given and no explanation has been provided for the delay in filing the application for leave to appeal.  I am therefore not persuaded that there are any special reasons why I should exercise the Court’s discretion and grant an extension of time in which a notice of appeal may be filed.  Nor have I been able to discern any reasonably arguable prospects of the appeal succeeding if leave were granted.  Accordingly, the application for extension of time to file and serve a notice of appeal must be dismissed with costs which, I shall fix in the sum of $800.

Associate:

Dated:              8 May 2008.