FEDERAL COURT OF AUSTRALIA

SZLUX v Minister for Immigration and Citizenship [2008] FCA 1670

SZLUX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1327 of 2008

BESANKO J

12 NOVEMBER 2008

ADELAIDE VIA VIDEO LINK WITH SYDNEY

THE COURT ORDERS THAT:

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

2.                  The applicant is to pay the first respondent’s costs of the application, fixed in the sum of $1,400.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time within which to file and serve a notice of appeal from a judgment pronounced by the Federal Magistrates Court on 20 May 2008: SZLUX v Minister for Immigration & Citizenship [2008] FMCA 655. Under O 52 r 15 of the Federal Court Rules, a notice of appeal from the judgment must be filed and served within 21 days from that date. It follows that the time limit expired on 10 June 2008. The application for an extension of time to file and serve a notice of appeal was made on 21 August 2008, some 10 weeks after the time limit had expired.

2                     The applicant is a national of the People’s Republic of China. He arrived in Australia on 20 April 2007 and on 30 April 2007 he applied for a Protection (Class XA) visa. For present purposes the basis of the applicant’s claim is summarised adequately in the following passage from the reasons for judgment of the federal magistrate (at [5]-[6]):

The Applicant claimed that in 2006 he had been involved in a project to build a road for the military. The Applicant claimed that he was never paid in respect of the project and therefore engaged a lawyer and undertook legal action to recover his due payment. In February 2007 the Applicant stated that his claim for payment in a civil court was not accepted by the local court on the basis that it should be dealt with in a military court. The Applicant claimed that in the course of preparing to lodge a second application on behalf of the Applicant, the Applicant’s lawyer was arrested on the basis he was “alleged to incite construction labourers to protest against Xin Jiang Military Region as well as local government.”

The Applicant stated that on 17 February 2007 he and another then organised an open protest by construction labourers in the central park of the city, following which the Applicant was detained for 11 days, interrogated and forced to confess his anti-government movement. The Applicant claimed he was fined and released, following which, he proceeded to draft and distribute anti-government pamphlets. The Applicant stated that on 2 April 2007, three construction labourers were arrested so he left for Jiangxi province, where he hid out with a friend and then left China on 19 April 2007. The Applicant claimed that he had been told that police regarded him as “one of key leaders to organise anti-government protests including sending many anti-government pamphlets.” He also claimed that police had searched for him in his hometown and investigated his family and friends.

3                     On 23 July 2007 a delegate of the first respondent refused the applicant’s application for a protection visa. On 24 August 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. On 20 November 2007 the Tribunal handed down a decision, affirming the delegate’s decision not to grant the applicant a protection visa.

4                     On 20 December 2007 the applicant made an application to the Federal Magistrates Court for constitutional writs in relation to the Tribunal’s decision. His application was heard by a federal magistrate on 20 May 2008 and on that day an order was made dismissing the applicant’s application. The applicant wishes to appeal from that order. To do so he needs an extension of time under O 52 r 15(2).

Issues on the application

5                     Under O 52 r 15(2) the Court may grant an extension of time within which to file and serve a notice of appeal where there are special reasons. In Jess v Scott (1986) 12 FCR 187 at 195 the Court said that the subrule provided for “an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period”.

6                     The period of delay in this case, a period of a little over two months, is substantial, although not, in my view, so substantial that it should be seen as a significant matter pointing to a refusal of an extension of time.

7                     However, there is no adequate explanation for the delay. In his affidavit in support of his application for an extension of time the applicant said that he filed a notice of appeal on 9 June 2008, but that he had been informed recently that it had been dismissed the following day. There is nothing in the Court records supporting these assertions and I think that they must be rejected.

8                     There is no evidence in this case that the first respondent will suffer prejudice if an extension of time is granted. At the same time, there is a public interest in time limits being complied with and proceedings in this Court being disposed of expeditiously.

9                     The decisive consideration in this case is the lack of merit in the proposed appeal. Of course, I am not hearing the appeal and the fact that proposed grounds of appeal appear weak or unlikely to succeed should, in the ordinary case at least, be accorded limited weight. However, the merits or otherwise of the proposed appeal is the decisive consideration in this case because, in my opinion, it is clear that the proposed appeal has no reasonable prospects of success. I would add that even if there had been an explanation for the delay, the lack of apparent merit in the proposed appeal would lead to the same conclusion, namely, that the application for an extension of time should be refused.

10                  The applicant submitted to the Federal Magistrates Court that the Tribunal’s decision was affected by jurisdictional error. He put forward a number of grounds in support of that claim. The federal magistrate considered each ground carefully and rejected each one. Without any particular elaboration, the applicant’s contention before this Court was that the federal magistrate had erred in rejecting each ground of his application.

11                  The first contention of the applicant (embodied in ground 1 of the proposed notice of appeal) is that the Tribunal, having told him that it would write to him identifying inconsistencies in his evidence and giving him an opportunity to comment, did not write to him. It seems that the applicant is attempting to identify the type of error which led to the granting of constitutional writs in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1.

12                  The Tribunal did not write to the applicant after the hearing in the manner suggested, but the federal magistrate found that it had not undertaken to do so. The federal magistrate noted that the applicant had not applied to put the transcript of the hearing before the Tribunal before the Court and she noted the following passage in the Tribunal’s reasons:

The Tribunal indicated it had gone through details which cast doubt on his credibility and the veracity of his claims. Also the Tribunal considered some of his story implausible, but the Tribunal would not decide his case on implausibilities, in light of the inconsistencies. The Tribunal asked whether he wanted further time to give comments on each and every of the points. He stated he did not wish to have further time.

13                  The federal magistrate noted that when the applicant was asked about the events in this passage he said there must have been a “mistranslation”. She noted that the Court was entitled to accept the Tribunal’s decision record as accurately reflecting those matters to which it refers as taking place at the hearing, in the absence of any evidence to the contrary. She rejected the applicant’s complaint. I do not think there is a reasonably arguable error in the federal magistrate’s reasoning.

14                  The second contention of the applicant (embodied in ground 2 of the proposed notice of appeal) is that the Tribunal had not put its questions fairly or assessed his answers properly. Furthermore, the Tribunal had failed to consider his claims properly and fairly.

15                  The Tribunal rejected all of the applicant’s claims, in that it did not accept as proved the various factual assertions he made. It concluded that “the applicant has fabricated the whole story for the purposes of gaining refugee status”. It reached those conclusions because of inconsistencies in the applicant’s factual assertions and “his evolving and changing evidence during the hearing”. In dealing with the applicant’s complaints about the procedure adopted by the Tribunal and its conclusions, the federal magistrate made the following points.

(1)        The Tribunal considered the applicant’s claims in detail and explored them with him in the course of his evidence. Apparent inconsistencies were put to him by the Tribunal and his responses were considered by the Tribunal. There was no error in the way in which the Tribunal had deal with a particular claim made by the applicant, namely, the reason he had changed his household registration.

(2)        The Tribunal’s findings and conclusions were open to it. The Tribunal provided reasons for rejecting the applicant’s evidence.

(3)        The Tribunal did not ask irrelevant questions or questions which the applicant did not understand. The Tribunal’s decision record does not suggest that the applicant did not understand the questions he was asked or had any difficulty in providing meaningful responses.

In any event, it was for the Tribunal “to obtain and have regard to whatever evidence it deems to be relevant and give it such weight as it deems appropriate” (see [33] of the federal magistrate’s reasons).

(4)        The applicant indicated that he did not wish to have further time to comment on the various points raised with him.

16                  The federal magistrate dealt with the applicant’s claims thoroughly. Again, I do not think there is a reasonably arguable error in the federal magistrate’s reasoning.

17                  The third contention of the applicant (embodied in grounds 3 to 6 inclusive of the proposed notice of appeal) is that the Tribunal failed to comply with s 424A of the Act. The thrust of the claim is that, because the applicant’s evidence was misunderstood or misstated by the Tribunal, it was not information given by him for the purpose of the application for review and therefore not within the exception in s 424A(3)(b) to the obligation in s 424A(1). There are a number of answers to this claim. There is no evidence that the Tribunal misunderstood or misstated the applicant’s evidence. Even if it did, it would remain information given by the applicant for the purpose of the application for review, although there might be other grounds upon which the Tribunal’s decision could be challenged. In my opinion, it is not reasonably arguable that the Tribunal failed to comply with s 424A of the Act. In so far as the applicant may seek to broaden the challenge under s 424A to include the grounds advanced before the federal magistrate I do not think it is reasonably arguable that there is an error in the federal magistrate’s reasoning (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196; 235 ALR 609 at 616 [18]).

Conclusion

18                  The application for an extension of time within which to file and serve a notice of appeal is dismissed. The applicant must pay the first respondent’s costs.

Associate:

Dated:         12 November 2008