FEDERAL COURT OF AUSTRALIA

SZJNT v Minister for Immigration and Citizenship [2008] FCA 811

SZJNT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 423 of 2008

COWDROY J

30 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal out of time be dismissed.

2.         The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1                     The applicant applies to this Court for an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Raphael delivered on 19 December 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 19 September 2006. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the applicant a Protection (Class XA) visa (‘the protection visa’).

BACKGROUND

2                     The applicant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 18 December 2005. On 30 January 2006 the applicant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the applicant’s application on 21 April 2006. On 23 May 2006 the applicant applied to the Tribunal for a review of that decision.

3                     The applicant claimed to have well-founded fear of persecution resulting from her ‘anti-government ideas and activities’. The applicant claimed that she worked in a garment factory in the PRC but that the ‘authority of factory’ would ‘trample wantonly the basic human rights’ of the factory employees. The applicant claimed that the factory authorities refused to pay factory employees on time and ‘wilfully’ dismissed factory employees.

4                     The applicant claimed that she organised approximately 100 employees to stage a protest in the factory. The applicant claimed that the factory authorities contacted the Public Security Bureau (‘the PSB’) and informed it that the factory employees were staging ‘anti-government protests’. The applicant claimed she and approximately 20 other factory employees were arrested by the PSB. She claimed that most of those detained were released shortly after their arrest, but as she was ‘regarded as a leader’ she was detained for ‘about two months’.

5                     The applicant claimed that during her detention she was ‘beaten and mistreated’ by ‘those policemen and the criminals’. She claimed to have ‘suffered terribly’. She claimed that she confessed her ‘“anti-government” ideas and activities’ because she ‘really could not bear miserable inhuman treatment’. The applicant claimed that she was released but had to ‘promise not to seek any protests again’.

6                     The applicant claimed that the PSB ‘continually made me into troubles’ and that it was ‘impossible’ for her to survive in the PRC. The applicant claimed that her father convinced her to leave the PRC. She claimed that after her departure she was informed that two of her colleagues from the factory had been arrested by the PSB. The applicant also claimed that the PSB had talked to her father and indicated to him that the PSB was continuing its investigation into the applicant. She also claimed that the PSB warned her father that she should not do anything which would damage the reputation of the PRC government overseas.

THE TRIBUNAL DECISION

7                     The Tribunal did not accept that the applicant was a witness of truth. The Tribunal was satisfied that the applicant had created her claims in order to obtain the protection visa. The Tribunal was satisfied that the applicant had not been employed in the garment factory, and accordingly it did not accept that she had been detained or harmed by the PSB.

8                     The Tribunal was not satisfied that the applicant had fled China fearing any Convention Relating to the Status of Refugees 1951 (‘Convention’) related persecution. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant the protection visa.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

9                     By application filed in the Federal Magistrates Court of Australia on 18 October 2006 and amended application filed on 26 March 2007 the applicantsought judicial review of the Tribunal’s decision. The applicant claimed, inter alia, that:

1.      The Tribunal failed to comply with s 420 of the Migration Act 1958 (Cth);

2.      The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth);

3.      The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth).

10                  Federal Magistrate Raphael considered the applicant’s claim that the Tribunal had failed to comply with s 420 of the Migration Act 1958 (Cth) (‘the Act’). His Honour noted that s 420 of the Act does not confer private rights on which an applicant may rely: see NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470 at [34]–[36]. Raphael FM considered that the Tribunal’s duty to inquire was limited to information that was readily available and of critical importance. His Honour found that the applicant had not advanced a sufficient case to require the Tribunal to do more than note the applicant’s assertion and express its views upon it. His Honour rejected the applicant’s claim.

11                  His Honour also rejected the applicant’s argument that the Tribunal had failed to comply with s 424A of the Act, noting that the Tribunal’s rejection of the applicant’s assertions did not constitute ‘information’ for the purposes of s 424A of the Act. Raphael FM noted that even if such rejection could constitute ‘information’, s 424A(3)(a) of the Act would have excluded it from the operation of s 424A of the Act.

12                  The applicant did not provide any evidence to suggest that the Tribunal had not provided her with a fair and genuine chance to give her evidence or to present her arguments in accordance with s 425 of the Act. The Federal Magistrate rejected the applicant’s claim. Accordingly his Honour dismissed the applicant’s application for judicial review of the Tribunal’s decision.

APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL

13                  Federal Magistrate Raphael delivered his decision on 19 December 2007. Pursuant to O 52 r 15(1) of the Federal Court Rules (‘the Rules’) any appeal from that decision ought to have been filed on or before 10 January 2008. As no appeal was filed by that date, under O 52 r 15(2) of the Rules the applicant requires the leave of the Court in order to file and serve a notice of appeal. The subrule provides:

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.

14                  On 28 March 2008 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal. On the same day the applicant also filed an affidavit which attached a draft notice of appeal. The applicant’s affidavit claims that the applicant has not yet received a ‘full copy’ of the Federal Magistrate’s decision. The draft notice of appeal claims inter alia that:

1.         The Federal Magistrate erred in law;

2.         The Federal Magistrate erred in finding that the Tribunal acted properly in its findings;

3.         The Tribunal failed to comply with s 420 of the Act;

4.         The Tribunal failed to comply with s 424A(1) of the Act;

5.         The applicant’s application was not ‘fairly and carefully assessed’ by the Tribunal.

15                  On 26 May 2008 the applicant filed submissions in this Court which makes allegations in addition to those contained in her draft notice of appeal. The applicant claims that the Tribunal decision was affected by apprehended bias, and claims that the Tribunal erred in relying upon the information in the applicant’s ‘visitor visa application’ despite her claims that she had no part in the preparation and lodgement of such application.

FINDINGS

16                  Order 52 rule 15(1) of the Rules provides:

            (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;

The applicant’s claim that she has not yet received a ‘full copy’ of the Federal Magistrate’s decision accordingly has no bearing upon the time limit in which a notice of appeal could have been filed. The Court will proceed on the basis that the applicant requires leave under O 52 r 15(2) of the Rules to file a notice of appeal out of time.

17                  ‘Special reasons’ must be shown to justify this Court granting an extension of time to the applicant pursuant to O 52 r 15(2) of the Rules. Such words have been considered by the Full Court in Jess v Scott and Others (1986) 12 FCR 187 where the Full Court said at 195:

What is needed to justify an extension of time is indicated in r 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 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.

18                  In considering whether ‘special reasons’ exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Parker v The Queen [2002] FCAFC 133; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

19                  In considering the applicant’s explanation for the delay, the Court notes that she states that she did not think that she could appeal from such decision until she received a ‘full copy’ of the Federal Magistrate’s decision. Whilst such explanation is barely adequate, the Court is prepared to accept that the applicant may not have been aware of the Court’s time limits for the filing of a notice of appeal. The Court also considers that there would not be undue prejudice to the Minister if the Court were to grant leave to the applicant to file a notice of appeal out of time.

20                  Although ‘[t]he object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice’ (Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 per McInerney J at 262-3, quoted by the Full Court with approval in Jess v Scott and Others (1986) 70 ALR 185 at 191), the merits of the substantial application are determinative as to whether or not the Court’s discretion will be exercised: ‘should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances’ (Jeffers v R (1993) 112 ALR 85 at 86). As such, the merits of the substantial application will be of vital significance in considering whether there exist ‘special reasons’ under O 52 r 15(2) of the Rules.

21                  Insofar as the draft notice of appeal alleges that the Tribunal fell into error, such allegations essentially repeat the grounds of review raised before the Federal Magistrate. The Court considers that his Honour made no error in his consideration and rejection of such grounds.

22                  The draft notice of appeal alleges that the Federal Magistrate erred in law and erred in finding that the Tribunal acted properly in its findings. In the absence of any particulars, this Court considers that such allegations are too vague to constitute a meaningful ground of appeal. The Court finds that the grounds contained in the applicant’s draft notice of appeal are without merit and accordingly have no reasonable prospects of success should leave be granted to raise such grounds on appeal.

23                  In considering the additional allegations made in the applicant’s outline of submissions, the Court finds that the applicant’s claim relating to the Tribunal’s consideration of the information in the applicant’s ‘visitor visa application’ essentially seeks to interfere with the factual finding of the Tribunal that the applicant had been employed at the Shenzhen Airport Ticketing Service Co Ltd. This Court has no jurisdiction to interfere with such finding of fact: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42.

24                  The applicant’s allegation of apprehended bias was not raised before the Federal Magistrate, and accordingly leave is required for the applicant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. If it is ‘expedient in the interests of justice that the question should be argued and decided’, leave may be granted: see O’Brien and Others v Komesaroff (1982) 150 CLR 310 at 319 per Mason J. Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26].

25                  No evidence has been submitted in support of the claim of apprehended bias. The only evidence the Court has before it is the Tribunal decision itself. In SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 the Full Court said at [16]:

It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves…

26                  The Tribunal decision does not contain any evidence of bias against the applicant. The Court considers that the applicant’s allegation of apprehended bias has no merit.

27                  The applicant has not demonstrated any prospects of success in the draft notice of appeal. Although the Court accepts the explanation for the applicant’s delay and considers that the Minister would not be unduly prejudiced if leave were granted to the applicant to file a notice of appeal, the lack of merit in the draft notice of appeal and submissions leads the Court to conclude that ‘special reasons’ do not exist under O 52 r 15(2) to justify the Court granting leave to the applicant to file a notice of appeal out of time: see Jeffers v R at 86.

28                  It follows that the application must be dismissed.

Associate:

Dated:         30 May 2008