FEDERAL COURT OF AUSTRALIA

SZLVM v Minister for Immigration & Citizenship

[2008] FCA 1245

SZLVM v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 897 of 2008

GORDON J

15 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

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

2.                  The applicant pay the first respondent’s costs of the application to be taxed in default of agreement.

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 to file and serve a notice of appeal against an order of Federal Magistrate Emmett of 21 May 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth)(“the Act”). 

2                     The applicant had lodged an application for a protection visa on 20 June 2007.  The applicant made claims for protection under the Refugee Convention, by reason of an asserted adherence to Falun Gong and her protest against the government for its inadequate compensation to her arising from the government’s displacement of her family from their home.  A delegate of the first respondent refused the application on 28 August 2007.  On 24 September 2007, the applicant applied to the Tribunal for a review of that decision.  It is that review application which resulted in the decision of the Tribunal affirming the decision of the delegate.

3                     The applicant is a citizen of the People’s Republic of China who claimed that she was persecuted due to her practice of Falun Gong and her protest against the government for its inadequate compensation to her family.  She claimed to have been arrested and detained following the demolition of her home “as she protested” against the amount of compensation paid to her family.

4                     The Tribunal accepted that the applicant’s family were displaced at some time in the past, that the applicant viewed that compensation paid by the government as inadequate and that the applicant had been detained at some unspecified point in the past for opposing her family’s displacement.  However, the applicant did not claim a fear of persecution in China arising from those events.  In relation to the evidence about her Falun Gong activities, the Tribunal found that the evidence was not consistent and rejected her claim of having begun to familiarise herself about Falun Gong whilst still living in China.  The Tribunal also found that the applicant’s attendance at the Campsie Falun Gong study group in Australia was for the purpose of strengthening her claim to be a refugee.  This latter conduct was therefore disregarded by the Tribunal:  s 91R(3) of the Act.

5                     The application before the Federal Magistrate had three grounds of review:

1.         Jurisdictional error has been made.

2.         Procedural fairness has been denied.

3.         [The Tribunal] did not give me letter to explain doubts.

6                     Although the applicant participated in the Panel Advice Scheme, none of these grounds were particularised prior to or at the hearing before the Federal Magistrate.  In fact, the applicant declined to make any submission to the Court in support of any of the grounds or in support of the application generally.  This aspect I will need to return to consider later in these reasons for decision.

7                     In any event, the Federal Magistrate proceeded to consider the Tribunal’s reasons.  After addressing specific findings made by the Tribunal, her Honour concluded that the Tribunal complied with the statutory regime in the making of its decision including the conduct of its review:  see [37].

8                     The draft notice of appeal sets out three grounds of appeal, namely:

1.         The Tribunal had bias against me and did not make a fair decision for my application.

2.         I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge did not consider my application fairly.  The Judge refused my application on 21 May 2008.  It is not fair.  I am Falun Gong practitioner.  I will be persecuted if I return to China.

3.         I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.

GROUND 1

9                     It is not sufficient for the applicant to have a “vague sense of unease or disquiet” about the manner in which the decision was made (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at 441 per Weinberg J).  Rather, it would require the possibility that “a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct” could form an apprehension of bias: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-5.  An allegation of bias is serious and will seldom ever be established simply by reading the reasons for decision of the Tribunal:  SBBF v Minister for Immigration [2002] FCAFC 358 and SBBS v Minister for Immigration (2002) 194 ALR 749.  There is nothing in the present case to support such an allegation whether as alleged or at all.

10                  The Tribunal decision was underpinned by three primary findings: (1) that the applicant’s decision to leave China for Australia was economically-motivated and did not possess a Convention nexus; (2) that the applicant had not practised Falun Gong in China; and (3) that the applicant’s Falun Gong-related conduct in Australia should be disregarded under s 91R(3) of the Act.

11                  The Tribunal’s decision to reject an application for a protection visa is not so unreasonable that no reasonable person could have made such a decision:  cf Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  The Tribunal’s findings had clear evidentiary bases.  While I understand that the applicant finds the decision unfavourable, given the Tribunal’s findings that the applicant’s evidence concerning Falun Gong was not consistent and rejected her claim of having begun to familiarise herself with Falun Gong whilst still living in China, an appeal would have no prospects of success.  What in fact the applicant seeks is merits review of the Tribunal’s fact finding function.  That is not the role of this Court:  see Part 8 of the Act and Abebe v Minister of State for Immigration and Multicultural Affairs (1997) 49 ALD 603 at 604.  Moreover, this ground of the proposed notice of appeal seeks to reintroduce a ground of review not included in the application before the Federal Magistrate:  see Coulton v Holcombe (1986) 162 CLR 1 at [7] and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48].  Even if the notice of appeal had been filed within the prescribed time limit, I would not have granted leave for the applicant to rely upon this new ground.  This proposed ground of appeal would have no prospects of success.

GROUNDS 2 AND 3

12                  The applicant appears to misconceive the role of the Federal Magistrate.  Findings of fact, including findings of credibility, are the exclusive province of the Tribunal subject to issues of unreasonableness: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67].  As discussed earlier, the Tribunal’s conclusion was supported by sufficient evidence and did not disclose any irrationality on the part of the decision-maker. 

13                  To the extent that the applicant is complaining that the Federal Magistrate failed to consider the merits of her claim for a protection visa, the applicant is impermissibly seeking merits review.  Moreover, there is nothing to support the applicant’s contention that the Federal Magistrate did not allow her to say anything in support of her application for review.  Her Honour’s reasons for decision in fact record that “the Applicant declined to make any submission to [the] Court in support of any of the grounds or in support of her application generally.”

14                  The Federal Magistrate clearly outlined her Honour’s reasons for rejecting the applicant’s allegations of jurisdictional error, want of procedural fairness and failure on the part of the Tribunal to explain its doubts.  There was a clear explanation of the factual and legal bases for her Honour’s findings in relation to the Tribunal decision.  As such, it cannot be said that her Honour failed to “explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law”: SZKLO v Minister for Immigration and Citizenship & Anor (2008) 102 ALD 115 at [26].

CONCLUSION

15                  I have read the Tribunal’s reasons and the reasons of the Federal Magistrate.  I am not able to identify any apparent jurisdictional error in the Tribunal, nor any error in the Federal Magistrate’s approach.

16                  This of course, is not the appeal, but an application for an extension of time to allow an appeal:  O 52 r 15 of the Federal Court Rules and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.  The applicant was six days out of time.  The applicant asserted that the reason why the notice of appeal was not lodged within time was because she was sick.  That explanation is not satisfactory.  However, given that I am not able to identify any basis for an argument that the Federal Magistrate erred, I see no utility in granting an extension of time to permit a futile appeal.

17                  For those reasons, the orders of the Court will be:

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

2.                  The applicant pay the first respondent’s costs of the application to be taxed in default of agreement.

Associate:

Dated:         15 August 2008