FEDERAL COURT OF AUSTRALIA

SZNYE v Minister for Immigration and Citizenship [2010] FCA 500

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.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     The applicant is 18 years old and a citizen of the People’s Republic of China.  He arrived in Australia on a short-term student visa in November 2007.  He applied for a protection (class XA) visa because he claims to fear persecution if he were to return home because of his father’s (and also his own newfound) Christian beliefs.  But he failed to persuade a delegate of the first respondent (the Minister), and then the second respondent (the Tribunal), that he was entitled to one. 

2                     The applicant told the Tribunal that his father had become a Christian in February 2008, became actively involved with the church, and was in hiding from the police (with his mother and sister) after they had come to arrest him in August or September 2008.  He said he himself had become a Christian since coming to this country and if he had to return to China would be persecuted both as a result of his own beliefs and because of his association with his father.  The Tribunal did not believe him and considered that his own alleged conversion to Christianity was a sham designed to strengthen his claim to refugee status.

3                     He then applied for judicial review before the Federal Magistrate but failed to satisfy her that the Tribunal had fallen into jurisdictional error.

4                     He now applies for an extension of time in which to appeal the Federal Magistrate’s decision.  For the reasons that follow the application must be dismissed. 

The relevant principles

5                     Order 52 rule 15 of the Federal Court Rules (Rules) provides for a 21 day period from the time of pronouncement of judgment for the filing of an appeal and for its extension upon application made by motion upon notice filed within the period of twenty-one days.  Sub-rule (2) then provides as follows:

Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

6                     The Federal Magistrate delivered her ex tempore judgment on 3 March 2010.  The applicant filed his application on 12 April 2010.  As no application was filed within the 21 day period, he must show special reasons before the Court’s discretion to extend the period will be enlivened.  In Jess v Scott (1986) 12 FCR 187 the Full Court considered the meaning of “special reasons” in the rule.  The Court said at 195 that, in context, the expression was

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.

The application

7                     The applicant filed an affidavit in support of his application.  The affidavit did not comply with the Rules.  It was deficient in that it did not set out the nature of the case or the factual and legal matters in dispute as it was required to do under O 52 r 15(3)(c).  It did, however, offer a reason.  It reads as follows (without alteration):

1          The Judge didn’t tell me the time limit for the appeal.  I received the letter from the court very later and it’s passed the 21 day’s time limit.

2.         I only know the 21 days time limit for the appeal on yesterday.  I didn’t know it at all before yesterday (06/04/2010) [presumably when he went to file his appeal].  It takes time to prepare the appeal documents.

No special reasons

8                     I doubt that ignorance of the time limit would pass for a special reason.  In SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [6] Flick J described this kind of an explanation as “not satisfactory”.  In the ordinary course of events a layperson would not be expected to be aware of the Court’s time limits.  Save perhaps for exceptional cases, ignorance of a time limit cannot therefore take the case out of the ordinary.

9                     In oral submissions in support of his application given through a Mandarin interpreter the applicant explained that, as the Department and the Tribunal had sent him letters setting out the relevant time limits he expected to receive a similar letter from the Federal Magistrates Court.  The applicant was unrepresented in this proceeding as he was in the proceeding before the Federal Magistrate.  Such an expectation is understandable but it does not in my view amount to a special reason within the meaning of the rule. 

10                  In addition to the matters contained in his affidavit the applicant argued that he had just turned 18 and was not mature enough to face the situation and lacked the ability to get to know the legal processes which were very complicated.  He said he had a lot of trouble just trying to lodge his original application and was given different advice on the multiple occasions he said he attended the registry, as a result of which he was a few days late in lodging the appeal.

11                  In fact, he was 19 days late.

12                  There is no evidence to support the submission about the different advice he said he received from the registry.

13                  Mr Johnson, who appeared for the Minister, argued that the applicant’s relative youth is not a special reason within the meaning of the rule and pointed to his capacity to lodge the application, contest it before the Tribunal, bring the application for judicial review to the Federal Magistrates Court and to competently argue his case in this Court.  I do not rule out the prospect that in some circumstances immaturity might constitute a special reason, but the applicant did not present as immature, despite his youth.

14                  Accordingly, I am not satisfied that there is a special reason to give leave to file and serve a notice of appeal.

No good reason to exercise the discretion in favour of the applicant

15                  In any event, I do not consider that this is a suitable case for the exercise of the Court’s discretion in the applicant’s favour.

16                  The relevant considerations include the length of the delay, the explanation for it, the presence or absence of prejudice and the merits of the proposed appeal.  See, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, implicitly approved by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6]-[7] and applied numerous times in this Court.  Superimposed on these considerations is the obligation of the Court imposed by s 37M of the Federal Court of Australia Act 1976 (Cth) to best promote the overarching purpose of the Rules when exercising any power, that is, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  The overarching purpose includes:

(a)        the just determination of all proceedings before the Court;

(b)        the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)        the efficient disposal of the Court's overall caseload;

(d)        the disposal of all proceedings in a timely manner;

(e)        the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

17                  The delay is not substantial.  The Minister disavowed any prejudice.  However, the proposed appeal enjoys little prospect of success.  The just determination of proceedings involves justice to all parties, not merely to the applicant.  Where the chances of success are poor, it would not be an efficient use of the Court’s resources to allow the applicant to file his notice of appeal.  This is such a case.

18                  The grounds of appeal set out in the draft notice read (without alteration):

1          The Refugee Review Tribunal has bias against me and didn’t make fair decision for my application.

2          I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge didn’t consider my application fairly. The judge dismissed my application on 3 March 2010. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court

19                  No particulars were provided of the bias contention and it was apparent from the argument at the hearing that – with one exception to which I will shortly return – the applicant’s complaint was with the outcome, not the process.  In oral submissions, when asked why he thought the Tribunal was biased, he said:

The RRT and the Department did not accept any of my claims and believed I had some purpose to make such claims.  RRT reached conclusion I was untruthful witness.

20                  He said it could have asked for other witnesses here and in China.

21                  The applicant also complained that the Federal Magistrate refused to allow him to call further evidence and then rejected his application because he did not present evidence to support his contentions.  That was the unfairness to which the notice of appeal is apparently directed.

22                  There is nothing on the face of the Federal Magistrate’s reasons to support the submission that she refused to allow him to call further evidence.  However, even if the contention is accepted, the submission betrays a fundamental misunderstanding of the Federal Magistrate’s jurisdiction and of her reasons.  Her Honour could only review the Tribunal’s decision for jurisdictional error:  Migration Act 1958 (Cth) (Migration Act), ss 474, 476 and Plaintiff S157 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.  Put simply, she had no power to receive evidence concerning the merits of the application.  The remarks in her reasons about an absence of evidence related to a submission that he had asked the Tribunal for additional time to provide documents and information which, he said, had been refused.  Her point (as I understand it) was that, to the extent that the applicant might have been arguing he had been denied procedural fairness in the Tribunal, which, if proved, would amount to jurisdictional error, the argument would need to be supported by evidence.  There is no error in that observation.

23                  The exception, which I mentioned in paragraph 19 above, is an argument the applicant advanced before me, but which was not raised in the Court below.  The argument was that the Tribunal’s adverse findings were (or may) have been reached because of some problem with the way the interpreter may have translated what he said.  If there were any substance in the submission, I would have expected it to have been raised before the Federal Magistrate.  It does not even rate a mention in the draft notice of appeal.  The precise nature of the problem was never articulated.  And there is no evidence to support it.  Save in exceptional circumstances, it is considered “contrary to all principle” to permit a party, after the case has been decided against him, to raise a new argument which, whether deliberately or inadvertently, he did not put at the hearing when he had an opportunity to do so:  Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 and Coulton v Holcombe (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491 at 497.  These circumstances do not fall within any recognised exception. 

24                  On its face the draft notice of appeal raises a jurisdictional error: the claim of bias.  Bias was not a complaint before the Federal Magistrate either.  In Liteky v United States (1994) 510 US 540 at 550 Scalia J said that:

The words [bias or prejudice] connote a favourable or unfavourable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts). [emphasis in the original]

25                  It is rare for bias (actual or presumed) to be made out on the basis of the reasons of a decision-maker alone: cf. SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44] (relating to an allegation of bad faith).  It is abundantly clear that, when the applicant complains of bias, he is complaining solely on the basis that the decision went against him:  the Tribunal did not believe me, so it must have been biased.  In law, that argument is doomed to fail.

26                  The applicant put his grounds of review before the Federal Magistrate in the following way (without alteration):

1          I have provided many evidences to the tribunal to support my claim but the tribunal did not accept any of them.

2          I have become a genuine Christian in Australia but the tribunal said I did it just to strengthen my claim to be a refugee but it is not ture.

3          The Tribunal did not accept my explanation for the conflicts with the photos I submitted in support of my claim.

27                  None of these grounds raised an error that could conceivably go to jurisdiction.  

28                  The Federal Magistrate questioned the applicant about his grievances.  He told her he had asked the Department to call his father to verify his account but there was no suggestion that he had asked the Tribunal to obtain any further evidence.  As she pointed out in her judgment, it was the Tribunal’s decision that was under review, not the Minister’s.  Her Honour held that on the material before her the Tribunal was not bound to make further inquiry.  She referred to the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 where six members of the High Court said at [1] that the Tribunal had no general duty to undertake its own inquiries and at [25]:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

29                  Nothing disclosed about the Tribunal’s decision-making in the Federal Magistrate’s reasons (which was the only material before me) supports the conclusion that there was a constructive failure on the part of the Tribunal to conduct a review of the applicant’s application by reason of a failure to make further inquiries. 

30                  The applicant argued before the Federal Magistrate and in this Court that the Tribunal had made its decision in a hurry without waiting for him and he had later received documents that supported his claims.  Yet, the Federal Magistrate pointed out that in its reasons the Tribunal mentioned that the applicant had informed it that he had documents in Chinese from his father’s church and neighbour and agreed to give the applicant time to produce the originals and to have them translated.  What is more, she noted that the Tribunal said that at the end of the hearing it allowed the applicant further time to provide translations of documents he had produced and that it had regard to further documents provided to it by the applicant after the hearing.  To the extent that any request may have been refused, her Honour said the Tribunal’s reasons did not disclose that and there was no other evidence to support such a conclusion.  Her Honour also noted that consent orders the applicant signed at the directions hearing showed that the applicant was given the opportunity to file evidence, including any transcript of the Tribunal hearing but did not avail himself of it.

31                  Her Honour correctly observed that ground 2 impermissibly sought merits review.  She found nothing in the material before the court to indicate that the Tribunal had failed to proceed in accordance with s 91R(3) of the Migration Act, which obliged it to disregard any conduct of the applicant in Australia unless he satisfied it that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.  Her Honour found that it was open to the Tribunal to accept the applicant’s evidence that he had attended church services in Australia, for no other purpose than to strengthen his claim to be a refugee. She correctly stated that the weight to be attached to the applicant’s evidence was a matter for the Tribunal.

32                  Her Honour also considered the way the Tribunal considered allegedly corroborative evidence the applicant submitted to it.  That evidence included an exchange of correspondence (4 letters) between him and his parents.  Two of the letters were said to be drafts, written by the applicant and bearing his signature.  The Tribunal did not accept that the letters were genuine.  It could not understand why the applicant would keep drafts or why they would be signed and did not believe there was any reasonable explanation for it.  In the circumstances it found that the letters were “created by or for the applicant to provide documents to support his claims”.  Her Honour held that it was open to the Tribunal to reject the documents on the basis that the applicant was not a credible witness and referred to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (S20).  The summary of this part of the Tribunal’s reasons in her Honour’s judgment does not suggest that it committed any jurisdictional error. 

33                  The Tribunal did not accept other documents sent to it purporting to corroborate the applicant’s claims.  I infer that it meant that it did not accept that those documents were genuine.  It did so, the Federal Magistrate reports, because it had already found that the applicant was “not a witness of truth”.  S20 could be cited in support of that determination.  Gleeson CJ said in S20 at [49]:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

34                  Those documents are not before me.  However, her Honour’s description of the reasoning process falls squarely within the majority decision in S20. 

35                  The Tribunal also decided that photographs submitted by the applicant purporting to support his claim about his father’s situation were not reliable evidence that his father became a Christian or was persecuted for his Christianity or that his family had to go into hiding to avoid harm.  Her Honour held that this finding too, was open to the Tribunal.  There is no obvious error in that conclusion. 

36                  Neither in his application, nor in his oral submissions, did the applicant advance any reason that would justify disturbing the Federal Magistrate’s decision and there is nothing in her reasons to support the inference that there is any reasonable prospect of success on an appeal.  Accordingly, even if I were persuaded that the applicant had demonstrated special reasons for filing his notice of appeal out of time, I would decline to exercise my discretion in his favour.

37                  Consequently, I dismiss the application with costs.

Orders

38                  I therefore make the following orders:

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.

Associate:

Dated:         21 May 2010