FEDERAL COURT OF AUSTRALIA

SZFMK v Minister for Immigration and Citizenship [2010] FCA 1287

THE COURT ORDERS THAT:

1.    The application be refused.

2.    The applicant pay the first respondent’s costs of the application filed 1 September 2010, as agreed or taxed.

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    By an application filed on 8 September 2010, the applicant seeks an extension of time in which to appeal against the judgment and orders of Scarlett FM given on 12 September 2007.

2    At the hearing of the application before me, the applicant, who appeared in person, was assisted by an interpreter of the Mandarin/English language.

3    The time permitted to file and serve a notice of appeal is 21 days from the date of the judgment: O 52 r 15(1)(a) of the Federal Court Rules 1979 (Cth). O 52 r 15(1)(b) provides that the Court or a Judge may allow further time to file and serve a notice of appeal upon an application made within the 21 day period. In this case, the 21 day period for filing and serving a notice of appeal ended on 12 October 2007. The application for an extension of time was filed almost three years later, on 8 September 2010.

4    By O 52 r 15(2), the time limit may be extended “for special reasons”. Order 52 r15(2) of the Federal Court Rules states:

(2) Notwithstanding anything in the preceding subrule, the Court

or a Judge for special reasons may at any time give leave to file

and serve a notice of appeal.

5    In Jess v Scott (1986) 12 FCR 187, the Full Federal Court stated (at 195) that:

.. the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 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.

[A]n expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

6    In Jess v Scott, the notice of appeal was filed several days late because the applicant’s solicitor mistakenly thought that the rule prescribed a 28 day period. No prejudice resulted from the late filing. The Full Court considered that the expression “special reasons”, did not constrict “the broad measure of justice of the individual case” (at 195) and described a “flexible discretionary power” (at 195) which was “suitable for application across a range of situations…”. It approved the principles of Gatti v Shoosmith [1939] Ch 841, in which Lord Greene MR (at 845) stated that according to the “proper rule”, a mistake was not necessarily excluded as a ground for allowing an appeal out of time, as the matter “must depend upon the facts of each individual case”.

7    In Jess v Scott, the Full Federal Court discussed with approval a number of authorities which identified the merits of the case as a relevant consideration and recognised that if the proposed appeal was “flimsy” or “weak on merits”, leave to appeal out of time could well be refused, including Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; RV Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 (at 1091).

8    The Full Federal Court in Jess v Scott considered that in circumstances where the delay was only a matter of days and the solicitor frankly acknowledged his mistake, an extension should be granted. Their Honours stated, however (at 192):

It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe 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. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

9    Where no basis for an extension is advanced other than an inadequate explanation for delay, it will not amount to a special reason. In SZMSN v Minister for Immigration and Citizenship [2010] FCA 9 at [13], Edmonds J observed:

The only reason given by the applicant in the affidavit filed in support of his application which goes to explaining his delay of over eight months is that he did not know that he could lodge an appeal.

10    His Honour accepted the Minister’s submission that the explanation did not demonstrate “special reasons sufficient to justify such a departure from the ordinary rule”.

Background

11    The applicant is a citizen of China who arrived in Australia on 12 August 2004. On 27 August 2004, he lodged an application for a protection visa with the Department of Immigration and Citizenship, claiming to fear persecution because of his practice of, and adherence, to Falun Gong. On 15 September 2004, a delegate of the first respondent refused the application. The applicant applied to the Tribunal for a review of that decision and on 26 November 2004 the Tribunal affirmed the delegate’s decision. The applicant applied to the Federal Magistrates’ Court for a review of that decision. On 10 July 2006, the Federal Magistrates’ Court ordered, by consent, that it be set aside.

12    The matter was remitted to a differently constituted Tribunal, which invited the applicant to attend a hearing on 20 September 2006. The applicant appeared assisted by an interpreter of the Mandarin language, as well as by his registered migration agent.

Tribunal hearing

13    The applicant’s statement received on 27 August 2004 and a copy of the applicant’s passport were before the Tribunal.

14    The applicant, who was born in 1973, claimed to be a Falun Gong practitioner. He claimed that he was arrested in July 2003 for distributing antigovernment materials, was detained for 30 days, and was dismissed from his employment. In October 2003, he was again arrested and detained for a period of four months for “reeducation”. He claimed that he was tortured, suffered persecution and feared that he would again suffer harm if forced to return to China.

15    When questioned by the Tribunal, the applicant acknowledged that he had obtained a Chinese passport in 2000, left China without restriction in August 2004 and arrived in Australia with a tour group.

16    Before the Tribunal, the applicant claimed that he had been detained for four months in 2004 because he was a leading member of Falun Gong.

17    The Tribunal asked the applicant how he was able leave China without restriction, given his history of detention. The applicant stated that he had no criminal record, as he was detained under an administrative detention order, and that the grant of a tourist visa was not difficult.

The Tribunal’s decision

18    By its decision on 14 November 2006, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. In its reasons for decision given on 14 November 2006, the Tribunal referred to the applicable statutory provisions, definitions and relevant authorities.

19    The Tribunal accepted that the applicant was a Chinese citizen who was married with one child, and who probably worked in the Property Rights Transaction Centre.

20    The Tribunal did not, however, accept that the applicant was a current Falun Gong practitioner; practised Falun Gong in China; organised Falun Gong activities in China as claimed; was a Falun Gong practitioner in Australia; had been detained by local authorities for three days in 2001, 30 days in 2003 and four months in 2003/2004; had been beaten in detention; or was perceived by authorities as an organiser of Falun Gong.

21    The Tribunal’s reasons for those findings were based on the applicant’s specified inconsistencies and failure to produce documents. The Tribunal stated:

I find that the level of knowledge demonstrated by the applicant on the principles of Falun Gong practice indicated that he has a superficial knowledge of Falun Gong practice however he did not demonstrate the level of knowledge I would have expected of a person who had a long and committed association with Falun Gong practice in China from 1996 to 2004. He stated that he left his wife and child in China because they were of secondary importance to the freedom to be able to practice Falun Gong. This suggests that he is claiming a significant and passionate commitment to Falun Gong practice. The applicant did not, however, provide any independent evidence that he was known to other Falun Gong practitioners in Australia or that he had attended public practice sites other than on a few occasions. The applicant referred to his notes throughout the hearing and whilst I accept that in some circumstances an applicant may need to refresh his memory on certain matters, at hearing, I clearly indicated to the applicant that the evidence he gave me was important and would be of greater weight if he was able to answer my questions from his own knowledge and memory rather than referring to his notes.

Application to Federal Magistrates’ Court

22    By a further amended application filed on 20 July 2007, the applicant applied to the Federal Magistrates’ Court for a review of the Tribunal’s decision on the following grounds:

a) The decision is affected by jurisdictional error in that the Second Respondent failed to accord procedural fairness to the Applicant and/or breached the requirements of s 425 of the Migration Act 1958.

Particulars:

(i) That the Tribunal found (Page 108 of the Court Book):

“However he did not demonstrate the level of knowledge (of Falun Gong practice) I would have expected of a person who had a long and committed practice in China from 1996 to 2004”.

(ii) The RRT did not inform the applicant of the nature and content of the "knowledge" expected of a person having "a long and committed practice” to Falun Gong" and did not identify the above as a matter in issue.

(iii) SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.

23    The application was heard on 8 August 2007. By a decision handed down on 12 September 2007, Scarlet FM dismissed the application. In his reasons, having set out an analysis of the Tribunal’s decision, Scarlett FM considered and dismissed each ground.

24    In dismissing the alleged breach of s 425 of the Migration Act 1958 (Cth) (“the Act”), his Honour found as follows:

(a)    The applicant had always claimed that he would be at risk of harm because he was a practitioner of Falun Gong.

(b)    The applicant was well aware, since 15 September 2004, that his knowledge and practice of Falun Gong was an issue relevant to his application for a protection visa. In particular:

(i)     the delegate’s decision to refuse the applicant a protection visa put him on notice that his knowledge and practice of Falun Gong were relevant issues; and

(ii)    the decision of the previously constituted Tribunal handed down on 16 December 2004 also raised the applicant’s allegiance or claimed allegiance to Falun Gong as an issue. The earlier Tribunal stated in its reasons that it was troubled by his failure “to make himself available to allow the Tribunal to test his knowledge of Falun Gong teachings and Falun Gong exercises”.

(d)    The present case was distinguishable from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”). [In SZBEL, the Minister’s delegate did not accept the accuracy of one of three events described by an applicant for a protection visa in his statutory declaration. The delegate did not mention the two other matters on which the applicant relied. The Tribunal, upon review, rejected as implausible the applicant’s account of the two matters. The High Court observed that an applicant, when appearing before the Tribunal, was entitled to assume (unless told something different) that the delegate’s reasons for refusing to grant the protection visa identified the issues arising in relation to the decision (at [36]). The High Court stated:

[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.]

25    In the present case, the Federal Magistrate held that there was no breach of s 424A, as there was no information giving rise to the s 424A obligations (at [33]). His Honour considered that the applicant essentially complained of the Tribunal’s assessment of his evidence about his practice of Falun Gong, which did not enliven the Tribunal’s statutory obligations under s 424A of the Act.

Whether extension should be granted

Explanation for extension

26    The applicant, by an affidavit filed on 8 September 2010 in support of the application for an extension, claimed that he did not file and serve a notice of appeal or an application for an extension within the time prescribed because he was given incorrect advice by his previous migration agent. The affidavit stated:

2. When the case was remitted to the Refugee Review Tribunal, and lost in the tribunal, Mr Rados told me words to the effect: “the next stop for you is to commence proceedings in the High Court. It will cost you a lot of money.”

3. I did not appeal to the High Court because the High Court proceedings were beyond my means.

4. I therefore sought the exercise of the minister’s discretion under s417.

27    At the hearing of the appeal, the applicant amplified his affidavit by an oral explanation for the considerable delay in filing a notice of appeal or seeking an extension.

28    The applicant stated that between 2006 and 2009, he relied on solicitors or barristers, only attended one relevant hearing, and did not personally prepare the documents for the case. His legal representatives advised him of the results of his application.

29    The applicant acknowledged that in about October 2007, he was informed that his application to the Federal Magistrates’ Court had been dismissed. He stated that his solicitor told him at the end of 2007 that he could lodge an appeal to the High Court, but did not recommend it, as it was expensive and might not succeed. Instead, the solicitor advised the applicant to write to the Minister, which he did at the end of 2007. In September 2009, the applicant learnt that about a year earlier the Minister had rejected his application. The applicant then retained a new migration agent who advised him to lodge an appeal to the Federal Court.

30    The first respondent submitted that lodging an application for Ministerial intervention under s 417 of the Act did not adequately explain the applicant’s delay. Rather, that conduct indicated acceptance of the legal validity of the decision and a conscious decision to challenge it by alternative means. Further, much of the applicant’s delay postdated his receipt of advice about the outcome of the Federal Magistrate’s Court application.

31    In my opinion, the applicant’s oral explanation was not compelling. There was a delay of almost three years since the Federal Magistrate’s decision. The applicant, who was represented by solicitors and counsel in that application, acknowledged that in October 2007 he was informed of its outcome and the possibility of lodging an appeal. The applicant’s oral assertion that his migration agent advised him to appeal to the High Court after the Federal Magistrate’s decision was inconsistent with his affidavit, which asserts that he was advised to appeal to the High Court after the Tribunal’s decision. Further, by the applicant’s account, he learnt of the Minister’s rejection of his application in September 2009, but still failed to take immediate action and did not file an application for an extension until 8 September 2010.

32    In the absence of cogent evidence, I am unable to conclude that the applicant’s legal representatives and migration agent misadvised him. Other aspects of the applicant’s narrative are inconsistent or vague. There is no convincing and sufficient explanation for the very lengthy delay.

Whether proposed appeal has sufficient merit

33    More significantly, as the first respondent submitted, the proposed appeal has insufficient prospects of success.

34    The applicant’s draft notice of appeal filed on 8 September 2010 states:

His Honour erred in failing to find that the decision of the Tribunal was affected by the jurisdictional error in that the second respondent failed to accord procedural fairness to the Applicant and/or breached the requirements of s 425 of the Migration Act.

Particulars:

(a)    Mistakes made by the interpreter at the RRT hearing denied the applicant a meaningful hearing invitation.

(b)    the RRT did not inform the applicant of the knowledge it considered a Falun Gong practitioner of the applicant’s claimed background should hold and did not identify this matter as an issue.

Particular 1

35    Particular 1 to the alleged breach of s 425 of the Act was not raised before the Federal Magistrate. If an extension of time to file the notice of appeal were granted, leave would be required to raise it now. The factors relevant to a grant of leave to raise a new ground on appeal were discussed by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11].

36    The applicant was legally represented before the learned Federal Magistrate and no explanation for the failure to raise the ground below was advanced. It would not be in the interests of justice to permit it to be entertained if it lacked sufficient prospects of success: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]-[27].

37    In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (at [17]), Mansfield and Selway JJ, in their joint judgment, referred to the respondent’s submission that in order to demonstrate jurisdictional error arising from inadequate interpretation, an applicant would need to establish that:

(a)    the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or

(b)    the errors made by the interpreter at the Tribunal hearing were material to the conclusions adverse to the applicant.

38    Their Honours acknowledged that the above proposition appeared to reflect the views expressed in Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at [27], Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 and Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18]. As the appellant did not contend that the Tribunal’s obligation was more stringent, Mansfield and Selway JJ observed that it was unnecessary to determine “whether the existing authorities go so far as the respondent acknowledged” (at [18]).

39    Mansfield and Selway JJ nevertheless tested the appellant’s argument by reference to the proposition. They concluded that only one error in translation was established, to which the Tribunal attached no significance (at [21]).

40    The Honours stated:

[22] Consequently, the translation of the hearing before the Tribunal was not so inadequate that it could be said that the appellant was effectively prevented from giving evidence at the Tribunal hearing. In fact, the converse is the more accurate view of the interpretation of the hearing. Nor could it be said that the single error that was identified was material to the conclusions reached by the Tribunal. In the result the only identified basis of review in relation to the translation of the hearing before the Tribunal under s476(1)(a) of the Act is not made out.

41    At the hearing of the present application, the applicant orally submitted that he had provided a CD and documents to his first migration agent, who should have provided it to the Court. The applicant asserted that the CD and documents would show that the interpreter’s version of his answer to the Tribunal’s questions about his knowledge of Falun Gong did not match what he had actually said. The applicant, who had listened to the CD of the hearing himself, considered that the interpreter was unable to express the meaning he wished to convey, and his new migration agent had “their own interpreters” who “confirmed my views on that”. The applicant invited the Court to listen to the CD.

42    The applicant did not specifically identify any interpreter who challenged the translation of the interpreter who assisted before the Tribunal. While the applicant himself asserted the inadequacy of the interpreter’s Chinese to English translation at the Tribunal hearing, before me, the applicant required an interpreter, through whom he addressed the Court. It appeared that his command of English remained inadequate and it was unclear on what basis the applicant could assess the accuracy of the translation of the interpreter who assisted him before the Tribunal.

43    To the extent to which the applicant’s submission constituted an informal application, without notice to the first respondent or the Court, to admit fresh evidence on appeal, I refused it, because, according to the applicant’s description, it was a recording of an interpretation which, in his opinion and that of unidentified persons, did not sufficiently capture what he had intended to convey. Such material fell well short of evidence of a comparison by a qualified independent expert which could assist the Court in relation to the accuracy of the interpretation below.

44    Further, were the evidence of a qualified, independent interpreter available, it would also be necessary to establish that any errors were material to the adverse findings or had prevented the applicant from giving evidence. While the applicant asserted that errors in translation had occurred, the sole example specified was the interpreter’s mistranslation of the name of his workplace, which, he said, led the Tribunal to conclude that it did not exist. Any such error was, however, not material, as the Tribunal expressly stated:

The applicant gave evidence that he was employed in the Tianjin Stock Exchange from 1995 until 2003. The country information indicates that Tianjin does not have a stock exchange … There is, however, a Property Rights Transaction Centre which has a main exchange market, stock custody market, technology stock market, an assets market and six district level exchanges. … I consider that [the applicant] was probably employed in the Property Rights Transaction Centre between 1995 and 2003’ however, in translation from Mandarin to Chinese the name of the employer has been generalized to a descriptive title rather than the actual name of the institution. I have not taken any adverse view of the applicant’s evidence because of this very minor inconsistency.

45    In my opinion, particular 1 of the ground of the proposed appeal has no reasonable prospects of success.

Particular (b): failure to alert the applicant to a matter in issue

46    In my opinion, the learned Federal Magistrate correctly held that there was no breach of s 425 of the Act as alleged in particular (b).

47    Section 425 of the Act states:

425 Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

    (a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

48    Section 425 of the Act requires the Tribunal to give the applicant an opportunity to ascertain the relevant dispositive issues arising in relation to the decision under review. (see SZBEL at [32]-[35], discussed above).

49    In contrast to SZBEL, in the present case, as the Federal Magistrate observed, the decision of the first respondent’s delegate put the applicant’s whole account in issue. The previously constituted Tribunal also found that the applicant had no affiliation at all with Falun Gong, and at the hearing before the subsequently constituted Tribunal, the member questioned the applicant about the philosophy and practice of Falun Gong. The Tribunal’s assessment of the quality of his responses was not “information” of which s 425 required disclosure. The Tribunal (and the antecedent processes) consistently and clearly indicated that the applicant’s claims to membership and practice of Falun Gong, and consequently his knowledge of it, remained in question. The Tribunal was not required to “give an applicant a running commentary upon what it thinks about the evidence it is given”: See also SZBEL at [48] and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 154/2002 (2003) 77 ALJR 1909; 201 ALR 437; [2003] HCA 60 at [54].

50    In SZBEL at [54], the High Court stated:

The explanations which the prosecutrix gave for her conduct were not accepted by the tribunal member, and this course was open despite the one factual error which he made as to the presence of the prosecutrix's husband during the first hearing. The tribunal member was not obliged to set out every detail of the reasoning process which he eventually employed for the prosecutrix's consideration.

51    Nor did the Tribunal err in requesting the applicant to describe his knowledge, understanding and commitment of Falun Gong, which was an issue it was entitled to explore. See Walt v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [30]; SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].

Conclusion

52    The applicant advanced no satisfactory explanation for the very considerable delay in filing and serving a notice of appeal or seeking an extension to do so. While the want of an adequate explanation could in some cases be outweighed by the strong merits of a proposed appeal, in the present case, the particulars of the ground of the proposed appeal (one of which was not raised before the Federal Magistrate) have no reasonable prospects of success.

53    The application for an extension of time to file and serve a notice of appeal should be refused.

Associate:

Dated:    23 November 2010