FEDERAL COURT OF AUSTRALIA

SZLVQ v Minister for Immigration and Citizenship [2008] FCA 818

SZLVQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 437 of 2008

COWDROY J

2 June 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the First Respondent in the amount of $1,300 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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 leave to appeal from the interlocutory decision of Federal Magistrate Driver delivered on 10 March 2008. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 29 November 2007. 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 17 June 2007. On 11 July 2007 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 22 August 2007. On 26 September 2007 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 practice of Falun Gong. The applicant claimed that she began practising Falun Gong in 1997 because of her poor health. She claimed that once the PRC government prohibited the practice of Falun Gong in 1999 she began practising ‘underground’. The applicant claimed that it was ‘suspected’ that she practised Falun Gong and she was consequently detained by the police for two days. She claimed that during such detention she was ‘questioned and physically persecuted’ then released because ‘no obvious evidence was found’.

4                     The applicant claimed that in March 2007 the police discovered that she had been leading a Falun Gong team in her district. She claimed that the police arrested her again. The applicant claimed that her husband bribed government officers to secure her release. She claimed that she applied for a ‘visitor visa’ and came to Australia seeking protection. She claimed that she has participated in Falun Gong activities since arriving in Australia.

THE TRIBUNAL DECISION

5                     The Tribunal did not accept that the applicant was a credible witness and found that she had not been truthful in her claims. The Tribunal noted that the applicant had been ‘evasive and non-responsive’ to its questions and that there had been significant discrepancies in the applicant’s evidence. The Tribunal did not accept that the applicant had been detained and mistreated in 2005 or in 2007.

6                     The Tribunal did not accept that the applicant had engaged in the practice of Falun Gong in Australia, but it considered that the applicant may have engaged in the study of Falun Gong in Australia. However, the Tribunal was not satisfied that any Falun Gong related conduct in which the applicant had engaged in Australia was engaged in otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal accordingly disregarded the applicant’s conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).

7                     The Tribunal was not satisfied that the applicant had fled China fearing any Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (‘the 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

8                     By application filed in the Federal Magistrates Court of Australia on 31 December 2007 the applicantsought an order to show cause under r 44.05 of the Federal Magistrates Court Rules 2001 (Cth). The applicant claimed that it was ‘not fair’ that the Tribunal did not accept her claims.

9                     Federal Magistrate Driver noted that pursuant to s 477(1) of the Act an application to the Federal Magistrates Court must be made to it within 28 days of the actual notification of the decision sought to be reviewed. His Honour noted that the decision of the Tribunal was handed down on the 29 November 2007, and considered that in the circumstances it was indisputable that the applicant had been actually notified of the Tribunal decision on such date. The applicant did not file an application with the Federal Magistrates Court until 31 December 2007, which was three days after the time had expired for the making of such application. In the circumstances, the applicant required an extension of time.

10                  The Federal Magistrate noted that it would have been possible for the Court, pursuant to s 477(2) of the Act, to extend the 28 day period by up to 56 days if an application for that order had been made within 84 days of the actual notification of the decision (here, 29 November 2007). In his Honour’s decision delivered on 10 March 2008 he noted that no application for such an order had been made. His Honour also noted that as 102 days had passed since the date of actual notification, any application for an extension of time could no longer be accepted.

11                  His Honour considered that while the applicant contended that she had posted her application eight days before it was filed on 31 December 2007, an application is not ‘made’ for the purposes of s 477 of the Act until it is received by the Court. Accordingly the application was incompetent.

12                  Despite such conclusion, his Honour nevertheless considered the application on the premise that the Court had jurisdiction to hear the applicant’s application. In doing so Driver FM observed that the show cause application invited the Court to review the merits of the Tribunal decision. His Honour found that there was no arguable case of jurisdictional error in the Tribunal’s decision. Accordingly, his Honour dismissed the application as either incompetent because of the Court’s lack of jurisdiction to entertain the application, or in the alternative pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) as the application had not raised an arguable case for the relief claimed.

APPLICATION TO THIS COURT FOR LEAVE TO APPEAL

13                  On 1 April 2008 the applicant filed in this Court an application under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) for leave to appeal from the interlocutory decision of Driver FM. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) gives power to this Court or a Judge to grant leave to the applicant to appeal from a decision that is interlocutory. On 1 April 2008 the applicant also filed an affidavit which attached a draft notice of appeal. The applicant’s affidavit claims that she was not aware of the 28 day time limit and that she was unable to file an application in the Federal Magistrates Court on time due to financial difficulties. The draft notice of appeal claims, inter alia, that:

1.      The Tribunal fell into jurisdictional error in finding that the applicant was not a Falun Gong practitioner;

2.      The Tribunal fell into jurisdictional error in misconstruing s 91R(3) of the Migration Act;

3.      The Federal Magistrate did not find the Tribunal’s errors.

FINDINGS

14                  In his judgment delivered on 10 March 2008 Federal Magistrate Driver made the following order:

(1)  The application is dismissed as incompetent and (in the alternative) pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

Irrespective of the two alternatives provided, his Honour’s decision was interlocutory in nature: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [5]-[6]; see also r 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth). Leave is accordingly required to appeal to this Court pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

15                  In SZDGN Lindgren J held at [9] that there is an implied time limit of 21 days after the date of the interlocutory judgment of a Federal Magistrate in which to make an application to the Court to seek leave to appeal.

16                  It follows that the applicant should have filed her application for leave to appeal within 21 days from 10 March 2008, namely by 31 March 2008. Her application for leave to appeal was one day late, having been filed on 1 April 2008. Accordingly, the applicant requires leave to appeal from the interlocutory decision of Driver FM as well as an extension of time to file such application for leave.

17                  In SZDGN Lindgren J said at [9]:

… the implied time limit of 21 days from the interlocutory judgment within which the application for leave to appeal must be made, may be extended even after that period has expired, and even though no application for the extension was made before it expired (FCR O 3 r 3(1), (2)).

It follows from such authority that this Court, in addition to considering whether to grant leave to the applicant to file and serve a notice of appeal, must also consider whether to grant leave to the applicant to file her application for leave to file and serve such notice.

18                  In SZDGN Lindgren J also said at [11]:

If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward…, there will be:

·        no extension of time within which to apply for leave to appeal; and

·        no grant of leave to appeal…

Accordingly, the Court will consider the merits of the applicant’s draft notice of appeal in deciding whether to grant both leave to file the application for leave to appeal and leave to appeal.

19                  The first ground of appeal in the applicant’s draft notice of appeal challenges the factual finding of the Tribunal that the applicant was not a ‘genuine or a committed Falun Gong practitioner’ and that ‘she has no genuine ongoing interest in Falun Gong and if the applicant returns to China now or in the foreseeable future, she will not engage in the practice of Falun Gong or any other Falun Gong activity and will have no association with other Falun Gong practitioners’. The Tribunal’s Findings and Reasons found that the applicant had not been truthful in her claims and accordingly rejected them. Such a finding is factual and cannot be challenged in these proceedings: 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.

20                  The second draft ground of appeal claims that the Tribunal ‘misconstrued s 91R(3) of the Migration Act giving rise to jurisdictional error’. The Tribunal disregarded any Falun Gong related conduct in Australia in view of the finding that such conduct was engaged in for the purpose of strengthening her claim to be a refugee. The Court finds no error in the Tribunal’s application of s 91R(3) of the Act.

21                  The third draft ground of appeal states ‘Federal Magistrate Driver didn’t find the Tribunal’s errors’. Such a challenge is not a ground of appeal in the absence of any specific allegations.

22                  In applying SZDGN, the Court finds that the applicant’s appeal is doomed to fail and that she has not raised any arguable grounds of appeal. The Court also finds that the decision of Driver FM is not attended with sufficient doubt to warrant its reconsideration by this Court. Accordingly leave is denied to the applicant to both file and serve a notice of appeal and to file her application for such leave.

23                  It follows that the application must be dismissed with costs.

Associate:

Dated:         2 June 2008