FEDERAL COURT OF AUSTRALIA

SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)(a)

Judiciary Act 1903 (Cth) s 55ZF

Migration Act 1958 (Cth) ss 91R(3), 91X

Federal Court Rules O 52 r 5

Federal Magistrates Court Rules 2001 r 13.03A(c)

Décor Corp v Dart Industries Inc (1991) 3 FCR 397 applied

Jess v Scott (1986) 12 FCR 187 cited

Johnston v Comcare (2002) 124 FCR 160 considered

NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 cited

Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 cited

SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 cited

SZKCE v Minister for Immigration and Citizenship [2008] FCA 302 cited

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 applied

SZKCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD2410 of 2007

LOGAN J

1 December 2008

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  The requirement that an application for leave to appeal be filed within 21 days of the date of pronouncement of the judgment of the Federal Magistrates Court on 12 November 2007 is dispensed with.

2.                  In lieu of that requirement, the time for the filing of the application for leave to appeal is extended to 7 December 2007.

3.                  Leave to appeal against the judgment of the Federal Magistrates Court on 12 November 2007 is granted to the Applicant, restricted to the following ground:

The Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal’s decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation, made in s 91R(3) of the Migration Act 1958 (Cth) that such conduct must be disregarded.

4.                  The letter of the First Respondent’s solicitors to the court be:

(a)                marked as Exhibit 2;

(b)               placed in a sealed envelope marked with a description of the exhibit and the direction “Not to be opened without the leave of the Court or a Judge”.

5.                  There is liberty to apply.

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                     The Applicant is a citizen of the People’s Republic of China.  She came to Australia on 19 April 2006.  The following month, on 17 May 2006, she lodged an application under the Migration Act 1958 (Cth) for what is known as a protection visa with the Department then known as the Department of Immigration and Multicultural and Indigenous Affairs (now, relevantly, the Department of Immigration and Citizenship).  On 26 July 2006, a delegate of the Minister within the Department refused her application for a protection visa.  Thereafter, on 29 August 2006, the Applicant applied to the Refugee Review Tribunal (the Tribunal) for a review on the merits of the Minister’s delegate’s decision.

2                     On 7 December 2006, the Tribunal decided to affirm the decision not to grant the Applicant a protection visa.  That decision and the Tribunal’s reasons were communicated to the Applicant by the Tribunal under cover of a letter 4 January 2007. 

3                     On 29 January 2007, the Applicant applied to the Federal Magistrates Court for the judicial review of the Tribunal’s decision.  It is necessary to give a brief chronology of the course of proceedings in the Federal Magistrates Court (adopting for that purpose and with slight alteration that helpfully provided by the Minister) :

4                     On 7 December 2007, the Applicant filed in this Court an application entitled “Extension of Time to file and serve a Notice of Appeal”.  It is apparent from that document that the Applicant wishes to challenge the decision on 12 November 2007 by the Federal Magistrates Court to decline to set aside the earlier order of that Court dismissing her judicial review application.  In an earlier interlocutory judgment in this matter, which I delivered on 6 March 2008 (SZKCE v Minister for Immigration and Citizenship [2008] FCA 302 at [3]), I observed:

The Minister, in his written submissions, submits that the correct characterisation for the application of 7 December is that of an application for leave to appeal against a pre-hearing judgment.  It seems to me that that is the correct way to regard the application of 7 December 2007.  The Minister, very properly, does not seek to make any adverse issue of the form of the application, but, instead, has proceeded on the basis that it is an application for leave to appeal.

I proceed therefore on the basis that the application is, in substance, an application for leave to appeal from the decision of the Federal Magistrates Court given on 12 November 2007. Strictly speaking, the application also carries with it an application for the dispensing of the time within which an application for leave to appeal ought ordinarily to be filed: O 52 r 5(2)(a) Federal Court Rules. That is because the application was filed more than 21 days after the decision of the Federal Magistrates Court was pronounced.

5                     After 6 March 2008, a series of adjournments of the hearing of the application followed, for reasons which in the very particular circumstances of this case seemed to me to be warranted, for the purpose of enabling the Applicant to have the benefit of legal advice from the McArthur Legal Centre, a community legal centre based at Campbelltown in New South Wales.  I gave reasons at the time for the granting of these adjournments.  It is not necessary to repeat them.  In the result, the application came on for hearing before me in the immigration appeals list in Sydney on 14 November 2008.

6                     When the application was called on for hearing in November the Applicant first made a statement about her experiences with officials of the Department in relation to the extension of her existing visa in the interval between when the application was last before the Court in August this year and the present hearing. As was correctly submitted on behalf of the Minister, whatever may have occurred in this regard, and there was no suggestion that the solicitors firm presently acting for the Minister was involved, that was not relevant to the question of whether leave to appeal ought to be granted. It will though be necessary to make some observations on the subject later in these reasons.

7                     The Applicant also handed up and stated that she wished to rely upon a letter dated 10 November 2008 addressed to the Court. For the purposes of the leave to appeal application the relevance of the letter is that it signifies a request on the part of the Applicant to add a further ground to the bases upon which, were leave granted, the appeal against the Federal Magistrate’s decision would be prosecuted. Materially, the letter reads:

More importantly I attach a copy of the Federal Court decision of SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (19/6/2008) and highlighted sections of my RRT decision on 4 January 2007. I have been informed that the RRT appears to have erred and made an error of law in taking into account my Falun Gong activities in Australia. Mention of these Australian activities also made in the Federal Magistrates Court decision (see attached). [sic]

Attention was drawn by highlighting to particular passages in the attachments.

8                     I mean no disrespect to the Applicant in observing that, though the letter is signed by her, it exhibits a standard of literacy in English and forensic sophistication quite beyond her, having regard to my observations of her at the November and earlier hearings. That is not in any way to gainsay her ability to seek to rely upon it.

9                     Mr Baird of the solicitors for the Minister, whose conduct of the case for the Minister on the hearing of the application and on earlier occasions gave practical exemplification to the letter and spirit of the model litigant obligations promulgated by the Attorney-General in Appendix B to the Legal Services Directions made pursuant to s 55ZF of the Judiciary Act 1903 (Cth), had been made aware of the contents of this letter prior to the hearing being called on. On behalf of the Minister he did not object to the passage quoted in the letter being treated as an additional foreshadowed basis of challenge with whether to grant leave to appeal ought to be granted being determined accordingly. This seemed to me to be an appropriate course to take. I directed that the letter and its attachments be marked as Exhibit 1 so as to identify them. Because the letter identifies the Applicant’s name and having regard to s 91X of the Migration Act, I also directed that these materials be a confidential exhibit.

10                  The reasons for judgment of the Federal Magistrates Court delivered on 12 October 2007 recite the history of the proceedings in that Court to that point. They also record that the learned Magistrate was unpersuaded that the medical certificate sent to the Court the previous day proved that she was unfit to attend court. In that circumstance and on the application of counsel for the Minister his Honour concluded that there was no adequate explanation for the Applicant’s absence from attendance at the hearing. Accordingly, his Honour ordered that the application be dismissed pursuant to the power conferred by the then r 13.03A(c) of the Federal Magistrates Court Rules 2001. A consideration of the merits of the application did not form part of the reasons for dismissal.

11                  The learned Federal Magistrate did consider the merits of the judicial review application when deciding on 12 November 2007 whether to set aside the judgment which had been entered in default of appearance on 12 October 2007. On 12 November 2007 the applicant appeared in person to give evidence and to make submissions concerning the setting aside of the default judgment.

12                  At the time, the grounds specified in the judicial review application filed in the Federal Magistrates Court were cast in the following terms:

1                     I am a Falun Gong practitioner from China.

2                     I have been detained by Chinese government for my Falun Gong activities.

3                     RRT ignored relevant material and gave rise to jurisdictional error. [sic]

13                  Against this background, it is not, with respect, surprising that the learned Magistrate concluded that no jurisdictional error was apparent. His Honour’s reasons disclose that, insofar as grounds 1 and 2 sought the review of findings of fact made by the Tribunal, those findings were reasonably open to the Tribunal on the material before it and having regard to its assessment of the Applicant’s credibility. Ground 3 remained unparticularised at the hearing on 12 November 2007. In light of that the learned Magistrate treated it as not giving rise to any discernable basis of jurisdictional error challenge.

14                  The learned Magistrate also found the Applicant’s explanation as to her absence on 12 October 2007 to be unsatisfactory. Both the Applicant and a person described as her “boyfriend” gave evidence in support of the application to set aside the default judgment. His Honour remarked:

12        The applicant’s evidence today concerning her condition on 12 October 2007 was unresponsive, unsatisfactory and not sufficiently clear. The medical certificate supplied to the Court says that the applicant was suffering from influenza and in her evidence today the applicant said that her complaints included a very sore head, an inability to walk at all and pain all the time, which she thought might have come from psychological pressure. Although the applicant has said that she had a fever and said during cross-examination that she also had a sore throat, she does not actually say in her evidence that she had the flu and the intervention of psychological considerations is surprising in the circumstances.

13        I find the applicant’s evidence to be unconvincing and I am particularly concerned that notwithstanding the time available to have obtained a medical certificate supporting her inability to attend Court, none has been supplied.

14        Evidence was led from the applicant’s boyfriend, who was the person who faxed the medical certificate to the Court the day before the listed hearing. Significantly, he said that when he was told of the applicant’s illness he went to her home to collect the medical certificate to take it to his work so he could fax it from there to the Court and to the respondent’s solicitors, and yet although he expressed himself to have been “very, very worried” about the applicant’s condition, he was not so concerned that he went to the trouble of seeing her again before the following afternoon.

15        There is no evidence from the applicant’s boyfriend of her condition on the evening before the hearing nor during the course of the day of the hearing other than that when he saw her on the afternoon of the hearing day her fever had passed, her face was pale and she had said that she was very, very uncomfortable.

16        I find the evidence of the applicant’s boyfriend to be of no assistance to me in determining whether the applicant was fit enough to attend Court on the morning of 12 October 2007, given the lack of time he appears to have spent with the applicant around the time when the hearing was due to take place and the fact that his evidence really only repeats what the applicant said to him rather than expresses his own observations on the applicant’s alleged condition at the times when he did see her. Consequently, I find that the applicant has not demonstrated a satisfactory explanation for her failure to attend the hearing which was listed on 12 October 2007.

15                  Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being Décor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant “had to show an arguable case that the RRT’s decision should be quashed on the grounds of jurisdictional error”.

16                  Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory.

17                  The present case nicely illustrates the point. The refusal by the Federal Magistrates Court on 12 November 2007 to set aside the order of dismissal made on 12 October 2007 and to reopen the proceeding for the judicial review of the Tribunal’s decision did not have the legal effect of finally determining as between the Applicant and the Minister the merits of that proceeding. However, the practical effect of the refusal to reopen was to leave in place the order of dismissal of the challenge to the Tribunal’s decision. That, in turn, had the practical effect of leaving standing the decision of the Tribunal affirming the refusal to grant the Applicant a protection visa. An appreciation of the practical effect that some, strictly interlocutory judgments may nonetheless have led Branson J in Johnston v Comcare (2002) 124 FCR 160 at [8] to observe that leave to appeal is more readily granted where a decision, if allowed to stand, will have “the practical effect” of determining a claim of an applicant to be entitled to an order, rather than in a case concerning practice and procedure only. I have approached the question of whether to grant leave in this case with this sentiment in mind.

18                  As to the question of an order extending time, the Full Court observed in Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23]: “Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days”. In that case, the Full Court noted that the effect of the Rules was that, had the judgment below been final, not interlocutory, the granting of an extension of time within which to appeal would have required “special reasons” to be shown. In that regard, the Full Court drew attention to the observations which had been made in relation to that requirement by an earlier Full Court in Jess v Scott (1986) 12 FCR 187.

19                  The Full Court in Nguyen seems to have been of the view that it would be incongruous not to adopt a similar approach to the granting of an extension of time within which to apply for leave to appeal to that required in relation to the granting of an extension of time within which to appeal. That said, the Full Court (at [27]) rejected the adoption of any narrow, pedantic approach to the granting of an extension of time. In the circumstances of that case, the Full Court regarded it as preferable to deal with the application by reference to the prospects of any appeal rather than by considering whether such delay as had occurred justified the refusing of an extension of time.

20                  In VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 127, [26] in relation to the allowing of a new ground to be argued on appeal which was not raised below. It was there stated:

26        It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.

In this case, because the practical effect of an extension of time and a grant of leave to appeal would be to permit the Applicant to raise a ground not raised below it seems to me that each of the considerations mentioned in VAAC is pertinent to the exercise of the discretions to extend time and grant leave to appeal. Here, there is no question of any evidentiary embarrassment to the Minister were a s 91R(3) ground to be permitted to be raised and no other possible prejudice is evident. If the Applicant’s claim for a protection visa was indeed not dealt with according to law by the Tribunal then, given the nature of her claim, there are potentially serious consequences for her in the event that she is returned to China without having the chance for the merits of her claim to be decided according to law. The prospects of the proposed additional ground will therefore be highly influential in relation to the fate of the present application.

21                  Especially that is so in the present case as the explanation given by the Applicant in her supporting affidavit for why an application for leave was not filed in time was not, in itself, particularly compelling. In that affidavit she stated that “[On] 12^th of November hearing, I was not given any result of the hearing. I have not been served the court decision up till now. My natural justice has been denied. As the result I failed to lodge appeal application by the time limit.”[sic] The published reasons for judgment of the Federal Magistrates Court record that the Applicant was in attendance on 12 November 2007 when her application was dismissed for reasons apparently given ex tempore. It is not clear though whether or not those reasons for judgment were simultaneously translated for the Applicant. Further, I do bear in mind the ignorance of the English language that she has consistently displayed before me in the course of proceedings to date.

22                  In deciding whether or not to reopen the judicial review proceeding it was pertinent for the Federal Magistrates Court to consider not only the explanation, if any, for the failure on the part of the Applicant to appear at the date, time and place appointed for the hearing of the judicial review application but also the merits of that application. The learned Magistrate approached the question of whether or not to reopen the proceeding in just this way. Absent the belated raising of an issue as to whether there had been a violation of the requirement in s 91R(3) of the Migration Act that conduct engaged in by a visa applicant be disregarded in certain circumstances, an application of the principles which attend whether to grant leave would, in my opinion, lead to a conclusion that leave to appeal ought to be refused.

23                  As pleaded, the grounds upon which the judicial review of the Tribunal’s decision was sought were doomed to fail. Had this not been the case and notwithstanding the considerable reservations the learned Magistrate so obviously had concerning the adequacy of the explanation given by the Applicant for her failure to attend court on 12 October 2007 one might have expected that the proceeding in the Federal Magistrates Court would have been reopened. If the explanation for absence was unsatisfactory but the grounds of the application were nonetheless arguable, such delay and expense as had been occasioned by the failure of the Applicant to appear on 12 October 2007 the justice of the case might have required an order for costs associated with the appearance that day being the Minister’s costs in the proceeding in any event (or some other form of order for costs in favour of the Minister) but an order for reopening nonetheless. A failure so to deal with the application for reopening in such a way might very well have attracted a grant of leave.

24                  Subsection 91R(3) of the Migration Act provides:

(3)        For the purposes of the application of this Act and the regulations to a particular person:

(a)        in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)        the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

25                  In SZJGV  v Minister for Immigration and Citizenship (2008) 247 ALR 451 the Full Court held that this subsection first required a decision-maker to make findings of fact as to the conduct, if any, in which a visa applicant had engaged in Australia. Having so done and if it is found that the visa applicant has engaged in conduct in Australia, s 91R(3) had the effect, so the Full Court decided, that the decision-maker must for all purposes disregard the person’s conduct in Australia, unless the person satisfies the decision-maker that he or she has engaged in the conduct in Australia otherwise than for the purpose of strengthening the person’s claim to be a refugee. The statutory command to disregard was all embracing, so it was held, with it constituting a breach of s 91R(3) and an error of law for conduct in Australia to be taken into account for the purpose of assessing whether or to what extent to accept the credibility of a visa applicant’s claim in respect of events said by that person to have occurred outside Australia.

26                  Should the Applicant’s belated raising of an asserted violation of s 91R(3) of the Migration Act make any difference to this outcome?

27                  As in SZJGV, no point concerning s 91R(3) was taken before the Federal Magistrates Court on 12 November 2007, although the learned Magistrate did observe (at [26]) that, “jurisdictional error is not apparent in relation to the Tribunal’s decision”.

28                  There are passages in the reasons of the Tribunal which arguably do evidence that the Tribunal’s findings concerning the Applicant’s activities in Australia influenced conclusions reached by the Tribunal concerning the Applicant’s credibility generally and in particular whether or not she had practised Falun Gong in China. I set out these passages below:

I asked the applicant when she learned to do the five exercises and she said before 2000.  I repeated the question and she said 1995.  I asked how often she did the exercises between 1995 and 2000 and she said “Very little” – sometimes once a week or once a fortnight.  She said that after 2000 she did the exercises once a week.  She said that she does the exercises in Australia “sometimes” – sometimes once in half a month or a month.  She does them at her home.  I put to her that most practitioners I had spoken to exercise more frequently.  She replied that everyone is different.

I asked whether being a Falun Gong practitioner involved anything other than performing the exercised.  She asked whether I meant in China or in Australia.  She said that in Australia she takes part in “activities”.  These activities consist of a parade at Town Hall stationer once a month.  I asked the purpose of this parade, and she said that Falun Gong practitioners get together to hold activities.  She said that she does not do any other Falun Gong activities in Australia.  She then added that sometimes there is a parade in Chinatown.  I asked what happens at these parades and she said that they take photos and distribute materials.  I asked what the purposes of taking photos was, and she said that the other practitioners take photos – maybe they have lodged protection visa applications as well.

I asked the applicant about the content of the Falun Gong materials that she distributes.  She said “I forget”.  I asked whether she could tell me anything about the materials at all, but she said that she cannot remember.  I asked whether she has any Falun Gong materials at home.  She said that she is not sure.  I asked whether she has any books about Falun Gong.  She said that she does not, and that she has not seen any books about Falun Gong.  I then asked her the name of the founder of Falun Gong, which she knew, and asked whether he had written any booked.  She replied that he had written Zhuan Falun.  She said that she had read this book before, but now she forgets what it is about.  She read it in China in 2005.  She read it “roughly” at her home.  She did not know whether Master Li had written other books, she only read that one book.  I asked her what Falun Dafa means and she said that she does not know; nor did she know that a Falun is.

…

I asked the application what it would to her if she was unable to practise Falun Gong any more.  She said that this was impossible because she is addicted to Falun Gong.  I put to her that she only practised once a week. She replied that this is what she likes to do.  It would be impossible for her not to do this – it is beneficial to her health.

…

I asked her to tell me anything at all about the material she distributes and she said that she does not know anything.  She said that she has forgotten what was written on the pieces of paper she handed out.  I asked why she handed out this material and she said that because she is a Falun Gong practitioner, sometimes she needs to distribute this material.  I asked by Falun Gong practitioners need to do this and she replied that they ask other people to practise Falun Gong.  I asked why she had taken photos of herself handing out this material and she said that the photos were her “material”.  I asked the application about the purpose of a demonstration depicted in one of the photos she submitted, and she said that it was to let other people know that they were Falun Gong practitioners.  I asked about a banner that she was standing in front of in one of the photos (concerning organ harvesting) and asked what it was about.  She said that she had forgotten.

…

I put to the applicant that in view of her lack of knowledge of Falun Gong I did not think that she was a genuinely committed practitioner.  Further, it seemed to me that the Falun Gong activities that she had engaged in, in Australia were done for the purpose of strengthening her claims to refugee status, as she demonstrated so little understanding of Falun Gong.  The applicant did not respond.

..

I found the applicant to be a highly unsatisfactory witness.  For most of the hearing she appeared to be deliberately attempting to avoid answering my questions.  Many questions had to be repeated several times before she gave a meaningful answer.  From the outset, when I asked her when she started to practise Falun Gong, she provided contradictory and inconsistent answers, saying at first that it was in 2000, then that it was “in the 1990’s”, and then that it was in 1995.  When asked to resolve this contradictory evidence, she said that she took up “formal” practice after 2000, but was then unable to explain what she meant by this term, or to specify how her practice was different before and after 2000.

The applicant was able to demonstrate some knowledge of some aspects of Falun Gong, for example, the names of the exercises, the name of the founder, and the fact that practitioners are supposed to be good people and do good deeds.  She was also able to demonstrate one exercise.  I note, however, that this basic factual information is readily available, for example, on the Falun Gong website.  Moreover, the applicant claims to practise Falun Gong “very little” in both the PRC and in Australia, providing vague and inconsistent responses as to precisely how often, ranging from once a week to once a month.

…

I do not consider that the applicant displayed the level of knowledge of Falun Gong that could reasonably be expected of a practitioner of at least five years standing, who has had the opportunity to practise both inside and outside China.  Having considered the oral evidence presented by the applicant at the hearing, I am not satisfied that she is now, or was prior to her departure from the PRC, a Falun Gong practitioner.  The applicant’s lack of knowledge of the spiritual and theoretical beliefs of Falun Gong leads me to conclude that she is not a Falun Gong practitioner.  Because I do not accept that the applicant is now, or ever was a Falun Gong practitioner, I do not accept that she came to the attention of the PSB prior to her departure, or that she was ever detained in the PRC as a Falun Gong practitioner.

The applicant claims to practise Falun Gong in Australia alone at home, once a week, just as she claims to have done in the PRC.  The main “Falun Gong activity” in which she claims to engage in Australia is distributing Falun Gong material.  However, she was unable to tell me anything about the content of the material which she claims to distribute.  Nor was she able to tell me the purpose of demonstrations in which she claims to have participated, and in which she submitted photographs of herself standing in front of a banner referring to persecution of Falun Gong practitioners in China.  In view of her apparent lack of knowledge or understanding of the material she claims to distribute, or the purpose of demonstrations in which she claims to have participated, I am satisfied that, to the extent that the applicant has engaged in these activities in Australia, this is not done out of a genuine commitment to Falun Gong, but rather, to strengthen her claim to be a refugee.  Accordingly, this conduct must be disregarded, pursuant to s 91R(3) of the Act.

In all the circumstances, I do not accept that the applicant was a Falun Gong practitioner in the PRC or that she came to the adverse attention of the authorities as such prior to her departure.  I am not satisfied that she has carried out Falun Gong related activities in Australia out of genuine commitment to Falun Gong.  As I do not accept that the applicant is a genuine or committed Falun Gong practitioner, there is not reason, based on the credible evidence before me, to suppose that she should seek to practise Falun Gong it she were to return to the PRC.  In these circumstances I am not satisfied that the applicant has a well founded fear or persecution in the PRC as a Falun Gong practitioner.

29                  On the hearing of the application I queried whether or not in the circumstances of this case the interests of justice might be served by treating argument on the application for extension of time and leave as argument on any appeal and determining the appeal instanter in the event that the procedural application was successful. The Minister did not raise any objection to that course, although his representative had not, given the shortness of notice by the Applicant as to a desire to rely upon a s 91R(3) point, had the opportunity to confirm whether an application for special leave to appeal had been made in respect of the Full Court’s decision in SZJGV.  I was informed earlier in the week by counsel appearing on behalf of the Minister in another case that an application for special leave had been instituted and remained pending. That this was the position was confirmed having regard to available lists published by the High Court with respect to pending special leave applications.

30                  It seems to me preferable not to put the position with respect to whether there has been a breach of s 91R(3) by the Tribunal any higher at the present than “arguable”. That it is arguable and the potential consequences for the Applicant in the event that an extension of time and leave to appeal were refused dispose me, as a matter of discretion, to extend time and to grant leave to appeal. Upon reflection, the better course, it seems to me, given that a special leave application is pending, is not to proceed to determine the appeal. To allow that appeal on the strength of the applicability of what was said of s 91R(3) by the Full Court in SZJGV and to return the case to the Tribunal may be to proceed on what proves to be a false legal premise. On the other hand, if special leave is refused or an appeal against the decision in SZJGV is dismissed, the appeal in this case would be able to be heard relatively quickly. It seems to me preferable to await the disposal, one way or the other, of proceedings in the High Court in SZJGV. I expressly refrain from reaching any concluded view as to whether there has been a breach of s 91R(3).

31                  I dispense with the requirement that an application for leave to appeal be filed within 21 days of the date of pronouncement of the judgment of the Federal Magistrates Court on 12 November 2007 and instead extend the time for the filing of the application for leave to appeal to 7 December 2007. A grant of leave to appeal should be granted to the Applicant but it should though be restricted to an appeal on the following ground, as derived from the s 91R(3) point sought to be raised in the letter of 10 November 2008 and that agitated in SZJGV:

The Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal’s decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation, made in s 91R(3) of the Migration Act 1958 (Cth) that such conduct must be disregarded.

32                  Because the Applicant is not legally represented, I note that the effect of O 52 r 15(1)(a)(ii) is that she must file and serve a notice of appeal expressing the ground upon which leave to appeal is granted within 21 days after today, ie not later than Monday 22 December 2008.

33                  It remains to make some brief comment about the position in which the Applicant claimed to find herself so far as her visa status was concerned in the interval between the August and November hearings. I directed that a copy of the transcript of the hearing on 14 November 2008 be prepared and made available to the Minister’s legal representatives with the Minister then making such response as he may be advised by 21 November as to the allegations made by the Applicant.  I did so because, if accepted, the Applicant’s allegations raised the spectre of possible interference by officers of the Executive Government with the Applicant’s ability freely to prosecute her application and appear on its hearing on 14 November 2008. A response on behalf of the Minister was received on 21 November 2008. It seems to me that the response ought to be marked as an exhibit but, because it names the Applicant, that it ought to be a confidential exhibit and be placed in a sealed envelope marked “Minister’s response to Applicant’s allegations concerning visa dealings” and “Not to be opened without the leave of a court or a judge”.

34                  It is not necessary to set out in detail the Minister’s response. It suffices to note that it is evident that, because she had exhausted at the time her challenges as of right to the protection visa refusal decision, the Applicant fell outside those situations for which the Migration Act makes direct provision for the grant of a Bridging Visa. It transpires though that the Department has a policy which is cast in these terms:

Seeking judicial review does not affect the operation of s 98, which provides that an unlawful non-citizen must be removed as soon as reasonably practicable. As a matter of policy, however, a non-citizen who has an outstanding application for judicial review should not be removed until judicial review proceedings are completed and then only if the department’s decision is upheld.

35                  Authorised officers have granted the Applicant progressive bridging visas since August on this basis.

36                  It seems that, when on the date of the August hearing and after that hearing had been concluded the Applicant reported to the Department, those who then dealt with her were influenced by a mistaken understanding that she was legally represented before this Court. She never has been. In hindsight and perhaps, with respect, even at the time, it would have been better for the officers concerned forthwith to have contacted either the Minister’s legal advisers or the Court’s registry for confirmation as to the orders made that day.

37                  I am very conscious that it is the Minister and his officers, not the judiciary, who administer the Migration Act. Nonetheless, the attempted removal or counselling to depart of a person seeking to represent themselves in a pending proceeding before this Court is fraught with the potential for tensions of the most serious kind to emerge between the Judicial and Executive Branches of Government. It is obvious that the policy which I have quoted is intended to avoid the emergence of such tensions. It may be that the policy needs revision so as expressly to cover the position in relation to pending applications for leave to appeal and associated extension of time applications.

38                  The differences evident between the response given on behalf of the Minister and the allegations made by the Applicant seem to me to lie more in the way that the Applicant has interpreted events than anything else. It is to be remembered that she comes from a country whose culture is different to ours and, as I have already noted, that she is all but illiterate in English. Eventually, she was granted a type of visa that would allow her to remain in Australia until 1 December 2008, i.e. which would allow her to be present at the hearing on 14 November 2008. Perhaps that result might more efficiently have been achieved and with less intervening worry for the Applicant if the orders made in August were more readily assimilated within the Department, but the result noted was nonetheless achieved in the end. That is not to me indicative of the possibility of bad faith, only, with respect, of a possible need for the Department immediately to follow up and appreciate the ramifications of court outcomes.

39                  Having considered the response, it does not seem to me to be necessary to refer the papers to the Attorney-General or to invoke procedures for the determination of whether a contempt was committed. Obviously enough, the outcome of the application today will dictate that fresh consideration be given to the Applicant’s situation on the basis that she now enjoys a grant of leave to appeal. 

40                  I shall hear the parties as to the costs of the application.

Associate:

Dated:         1 December 2008