FEDERAL COURT OF AUSTRALIA

SZOZG v Minister for Immigration and Citizenship [2011] FCA 756

THE COURT ORDERS THAT:

1.    The Application for an Extension of Time as filed on 6 May 2011 is refused.

2.    Pursuant to Order 62 r 4(2)(c) of the Federal Court Rules, the Applicant is to pay the costs of the First Respondent fixed in the gross sum of $2,460.00.

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

1    The Applicant is a citizen of China who arrived in Australia on 26 May 2007.

2    On 23 September 2010 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. A statutory declaration provided in support of the application stated “… my parents and I feared I would be detained because of our active involvement with the underground Christian Church”. A delegate refused to grant that visa on 22 October 2010. The delegate was “not satisfied that the applicant has a level of knowledge of Christianity consistent with someone who had committed to Christianity ...”. Moreover, after having reviewed his conduct since his arrival in Australia, the delegate concluded:

I find that there is a record of deception and abrogation of knowledge in the migration history related to the applicant, which casts serious doubt on the genuineness of the applicant’s claimed fear of persecution.

I find the applicant has prolonged his stay in Australia for reasons other than the convention related reason claimed.

I find that the applicant does not have a genuine fear of convention based harm and that there is not a real chance of persecution occurring. I therefore find that the applicant’s fear of persecution, as defined under the Refugees Convention, is not well founded.

The Applicant then applied on 25 October 2010 for review by the Refugee Review Tribunal (the “Tribunal”). That Tribunal affirmed the decision not to grant the visa. The Tribunal was also not satisfied as to the claim being mounted by the Applicant. Thus, for example, the Tribunal found as follows:

Refugee claims

103.    Having had the opportunity to speak directly with the applicant for several hours, the applicant did not impress the Tribunal as a reliable, credible and truthful witness. In reaching this view the Tribunal has had regard to: inconsistencies and changes in his evidence to the Department and Tribunal regarding why he does not want to return to China, his desire to remain in Australia and his refugee claims; the lack of detail the applicant provided regarding significant aspects of his evidence; his failure to provide to the Tribunal plausible explanations for significant inconsistencies and changes in evidence and other concerns as detailed below.

A little later the Tribunal also found as follows:

105.    The Tribunal’s concerns are compounded by information before the Tribunal which reveals that the applicant had several communications with the Department in 2009 and 2010 during which he had the opportunity to articulate his refugee claims; notwithstanding those opportunities he did not reveal any claims to be a refugee until lodgement of his protection visa application …

3    On 10 February 2011 the Applicant then filed an application with the Federal Magistrates Court of Australia seeking review of the Tribunal’s decision. That application was heard on 7 April 2011 and on that date ex tempore reasons were given dismissing the application: SZOZG v Minister for Immigration and Citizenship [2011] FMCA 244.

4    On 6 May 2011 an Application for an Extension of Time was filed in this Court. An extension of time was sought in which to file a Notice of Appeal. The affidavit filed in support of the Application simply stated (without alteration):

1.    My application for a protection visa was refused by DIAC and RRT. I lodged my application to be reviewed at Federal Magistrate Court. The judge did not consider all information provided fairly.

2.    I am a Christian. There is no religious freedom in China. I will be put in jail if caught.

3.    The judge did not consider my risk to return to China. I am a Christain. My case was dismissed on 07/04/2011. It is not fair.

The Draft Notice of Appeal set forth the Grounds of Appeal as follows (without alteration):

1.    RRT had bias against me and did not make fair decision for my application

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

3.    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.

5    The Application first came before this Court on 24 May 2011. On that occasion the Applicant sought an adjournment so that he could secure legal representation and organise some “documents”. Although there was no explanation as to steps that had previously been taken to secure representation, the proceeding was adjourned to 30 May 2011. The Applicant was also informed that on 30 May 2011 the Court would proceed upon the basis of the Court Book that was previously used by the Federal Magistrate. To do so would minimise any prejudice to the Applicant as he would be dealing with documents he had previously seen and in a format with which he was familiar. The Applicant was also forewarned as to a difficulty he may confront in the absence of any real explanation for not filing a Notice of Appeal within time. It was, perhaps, curious that an Applicant who is presently detained at the Villawood Detention Centre in Sydney was seeking an adjournment of one month, rather than one week; those in detention, it is understood, generally voice a grievance as to the length of their time in detention, rather than any grievance occasioned by an early hearing. But an adjournment was sought and granted, albeit for less time than was sought. The circumstances of each individual person necessarily require that their particular position be considered.

6    When the Application came back before the Court on 30 May 2011, the Applicant provided an “Explanation Letter” stating (inter alia) that the delay in filing a Notice of Appeal was attributable to the violent protests that had occurred at the Villawood Detention Centre on 20 April 2011 and to advice he said had been given to him by an officer of the Department that he had 35 days within which to appeal. A further adjournment was sought but refused. The Applicant, it was considered, had been given an adequate opportunity to prepare his appeal and any further adjournment would serve no useful purpose.

7    The Applicant appeared before the Court on both 24 and 30 May 2011 unrepresented although he had the assistance of an interpreter.

The Grounds of Appeal

8    Considerable disquiet has previously been expressed with notices of appeal being filed in this Court which merely repeat “standard form” grounds: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [4] to [5]; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5]; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] per Conti J; SZJXU v Minister for Immigration and Citizenship [2008] FCA 1129 at [23] to [25] per Tracey J; SZLMM v Minister for Immigration and Citizenship [2008] FCA 801 at [17] to [18] per Jessup J. See also: SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [11]. Sometimes the Grounds of Appeal in different proceedings are reproduced verbatim, sometimes even with the same spelling mistakes being repeated. It is an observation made not only by this Court but also by the Federal Magistrates Court: e.g., SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669 at [24] per Emmett FM.

9    It is also noticeable that within any one sitting of the Full Court of this Court during an appeal period, grounds are frequently repeated with individual appellants, each seeking to appeal from a decision of the Federal Magistrates Court, relying upon the same or substantially similar grounds: cf SZMIP v Minister for Immigration and Citizenship [2009] FCA 217. The grounds may vary from one sitting of the Full Court to another – but there remains, apparently, a single source from which the grounds for that particular sitting emanate.

10    The present proceeding is yet another instance.

11    The Grounds of Appeal as set forth in the Draft Notice of Appeal as filed in this proceeding may, for example, be compared to those set forth in the Notice of Appeal resolved in SZORL v Minister for Immigration and Citizenship [2011] FCA 553. The Grounds of Appeal in that case were expressed as follows:

1.    RRT had bias against me and did not make fair decision for my application

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application

3.    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China.

And in SZOPX v Minister for Immigration and Citizenship [2011] FCA 552, the Grounds of Appeal were there expressed as follows:

1.    RRT had bias against me and did not make fair decision for my application

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

3.    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.

12    Obviously enough, applicants or appellants in this Court are receiving advice – or so-called “assistance” – from a common source. It is self-evident that people seeking refugee status in this country on a genuine basis need or may seek assistance if their applications are to be properly considered by both the Federal Magistrates Court and this Court on appeal. Equally self-evident is the fact that they are not receiving competent advice if Grounds of Appeal are drafted with little (if any) regard to the particular circumstances of each individual litigant. Grounds of appeal which may have found some measure of success in one case may be manifestly inappropriate to a different case involving different factual and legal issues. Such grounds also have the very real prospect of being divorced from the grounds upon which the application has been conducted at first instance before a Federal Magistrate.

13    Those responsible for the administration of the Migration Act 1958 (Cth) should take steps to monitor those who offer advice. In many cases the advice provided is incompetent and misguided. If litigants are simply filing proceedings in this Court with a view to prolonging their stay in this country, those who assist them in doing so may well be committing a contempt of this Court and, if convicted, face punishment – including imprisonment: e.g., Australian Competition and Consumer Commission v Info4PC.com Pty Ltd [2002] FCA 949 at [138] to [139], 121 FCR 24 at 54 per RD Nicholson J. If litigants are genuinely seeking to invoke the jurisdiction of the Federal Magistrates Court and this Court, they deserve the assistance of those who can truly give proper advice. Either way, those responsible for the administration of the Act need to take steps to root out the incompetent advisors.

14    To fail to take such steps only exposes to criticism the existing judicial process. Such criticism is also not new. In Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, 179 ALR 513, Kirby J thus observed:

[13] The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.

These concerns have also been voiced by other Judges of this Court: Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931 at [5] per Beaumont J; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 at [6] per Mansfield J. See also: SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [33].

15    Concern may also be expressed as to whether some persons who hold themselves out as willing to assist go beyond providing misguided “assistance” in the conduct of cases before the Federal Magistrates Court and this Court, and also provide the same misguided “assistance” as to the best way to present to the delegate of the Minister and thereafter the Refugee Review Tribunal a claim contrived by reference to facts divorced from the true position. If that be the case, the proper resolution of genuine cases may be prejudiced from the outset.

16    Those entrusted with the administration of the Migration Act can take little satisfaction in drafting and implementing legislation which may provide for review by the Federal Magistrates Court and a subsequent appeal to this Court in circumstances where it is manifestly apparent in many cases that appellants have no comprehension as to what is happening. Strive as Courts may to assist unrepresented litigants, there would be grave hesitation before describing the existing procedures as “access to justice”. Access to Court time alone is not access to justice. It is not uncommon for an unrepresented appellant, with little command of English, to hesitantly contend via an interpreter that a case has been affected by “jurisdictional error” or (more recently) to routinely contend that the Tribunal and the Federal Magistrate are “biased” – but, not surprisingly, to be unable to say what that error may be or the factual basis for any allegation as to bias. See also: SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267 at [11].

17    The time has long since passed when something should be done to address repeated and obvious deficiencies.

18    In the present proceeding the Applicant provided details as to the name and contact details of the person whom he said had assisted him in the drafting of the Grounds of Appeal. That person, when contacted by telephone, opposed the provision of those details to the Minister. The provision of those details, accordingly, was deferred to enable an application to be made to the Court opposing disclosure. No such application was in fact made. But an affidavit was filed which stated in part that the person identified by the Applicant did in fact draft the “proposed Notice of Appeal” and that she “did it for free”. In the absence of knowing more as to the services in fact provided by the person in the present case, no opinion can or should be expressed as to the circumstances in which her assistance was provided and whether or not she has similarly provided assistance to others. The name and contact details of the person are now available to the Minister. It remains for him to take such steps as is considered appropriate.

An Extension of Time?

19    But such matters may be left to one side. Before the Applicant can advance any of his proper Grounds of Appeal, he must first obtain an extension of time in which to appeal. In the present proceeding the decision of the Federal Magistrate was published on 7 April 2011. The Application for an Extension of Time was filed in this Court on 6 May 2011.

20    Order 52 r 15 provides that an appeal is to be filed within 21 days, although a discretion is also there conferred to extend time. Rule 15 provides as follows:

Time for filing and serving notice of appeal

(1)    The notice of appeal shall be filed and served:

(a)    within 21 days after:

(i)    the date when the judgment appealed from was pronounced;

(ii)    the date when leave to appeal was granted; or

(iii)    any later date fixed for that purpose by the court appealed from; or

(b)    within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(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.

(3)    An application for leave under subrule (2) must:

(a)    be in accordance with Form 54A; and

(b)    include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and

(c)    be accompanied by an affidavit setting out:

(i)    the nature of the matter; and

(ii)    the factual and legal issues in dispute; and

(iii)    the reasons why leave should be given.

(4)    If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

(a)    file a notice to this effect; and

(b)    serve a copy of the notice on each other party to the application.

21    No appeal was filed within 21 days after 7 April 2011. The Application for an Extension of Time was filed approximately one week after that 21 day period expired. The extension of time which is sought is thus comparatively short.

22    But before any extension is granted rule 15(2) requires there to be “special reasons”. That is an expression which has been considered generally in relation to appeals and in the specific context of appeal from decisions of a Federal Magistrate in respect to migration cases.

23    The onus of demonstrating “special reasons” falls upon the person applying for leave to file and serve a notice of appeal after the expiration of the relevant time limit: Narain v Euroasia (Pacific) Pty Ltd [2010] FCA 1352 at [11] per Gray J. What is intended to be embraced by the expression “special reasons” is simple enough. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served: Jess v Scott (1986) 12 FCR 187 at 195. The expression does not imply “something narrower than this”. See also Perpetual Trustee Company Ltd v Smith [2010] FCAFC 91 at [13], 186 FCR 566 at 572 to 573 per Moore and Stone JJ. The discretion is conferred for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] per Lee, RD Nicholson and Finkelstein JJ.

24    An extension of time, even an extension of a few days, may be refused where an appeal has no prospects of success: e.g., Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J. “Little injustice”, it has been said, “may be occasioned if an appeal were hopeless”: SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J.

25    Also of relevance when exercising the discretion to extend time is any explanation that may be proffered for the delay: cf Spires v Secretary, Department of Family and Community Services [2002] FCA 578 at [1], 68 ALD 577 at 578 per Mansfield J.

26    Notwithstanding the shortness of the period of time for which an extension is sought in the present proceeding, it is nevertheless considered that an extension of time should be refused because:

    although considerable reservation is expressed as to the reasons proffered by the Applicant for the delay in filing any appeal, it may be accepted that an explanation has been provided;

but that:

    none of the proposed Grounds of Appeal have any merit.

27    Reservation is expressed as to the reasons advanced for the delay in filing a Notice of Appeal within time. It may be accepted that the decision of the Federal Magistrate was given on 7 April 2011 and that on 20 April 2011 there were considerable disturbances at the Villawood Detention Centre. It may further be accepted that those detainees who were not involved in those disturbances may have been themselves considerably distressed by those disturbances. There was, nevertheless, no attention directed by the Applicant to any steps taken between 7 and 20 April 2011 to secure advice as to the possible grounds upon which the Federal Magistrate’s decision could potentially be reviewed. And it may further be queried as to whether an officer of the Department would have provided advice that an appeal may be lodged within 35 days – a discrepancy between 21 and 28 days, on the other hand, is frequently experienced.

28    Such reservations were shared by the solicitor appearing on behalf of the Respondent Minister.

29    For the purposes of resolving the Application for an Extension of Time, however, the basis upon which the extension was sought may be accepted. The primary basis upon which the Respondent Minister opposed the extension of time was the lack of any prospects of success, even should the time be extended.

30    The first proposed Ground of Appeal alleges bias and a lack of fairness – not on the part of the Federal Magistrate – but on the part of the Tribunal. No appellable error is said to have been committed by the Federal Magistrate. To the extent that the Ground of Appeal can perhaps be construed as a complaint that the Federal Magistrate erroneously rejected a like allegation as to bias on the part of the Tribunal, it is without merit. The approach to be adopted when considering an allegation of bias on the part of the Tribunal has been expressed by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425 as follows:

[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.

[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

In applying this decision, the reasons of the Federal Magistrate were as follows:

[45] … In my opinion, the Tribunal’s decision shows generally that it carefully considered all the evidence of the applicant and weighed its particular merits and demerits, insofar as it reflected on the applicant having a genuine religious commitment in China and in Australia.

[46] The applicant’s eighth point, which he raised in several of his previous points, including his seventh point, was that the defects in the Tribunal’s procedures and its reasoning which he pointed to showed that it had assessed his case with a closed mind or, in his words, that it was biased against him.

[47] I have considered all the points that the applicant made to illustrate or explain his concern about bias, but I am unpersuaded that he has pointed to any evidence giving substance to a concern that the Tribunal might not have assessed his evidence with a mind open to persuasion prior to reaching its decision (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425).

[48] Taking into account all that the applicant has said to me today, I am not persuaded that any jurisdictional error has been identified in the evidence before me, or indeed pointed to in the submissions of the applicant which were unsupported by evidence. For that reason, I must dismiss his application.

Such reasoning, it may be said, is less than fulsome and may be the inevitable product of an ex tempore judgment. Divorced from its context, it progresses little beyond a statement that the argument as to bias is rejected. The source of any criticism, however, need not necessarily be attributable to the Federal Magistrate. Frequently it is the unrepresented litigant who fails to articulate the case sought to be advanced under the rubric of “bias”. Whatever may be the difficulties presented by an individual case, it is preferable to at least set forth in sufficient detail the basis upon which an argument is advanced and the basis upon which it is either accepted or rejected. The litigant then has the satisfaction of knowing that his argument has been understood and considered. Ex tempore reasons provided by a Federal Magistrate which do not fully explain the basis upon which relief has been refused only have the potential to transfer the review function entrusted to that Court by the Legislature to this Court and to impermissibly transform the appellate function of this Court into a Court at first instance. Notwithstanding the less than fulsome manner in which the reasons have presently been expressed, it is nevertheless considered that they do not expose appellable error.

31    The second Ground of Appeal may be construed as a complaint founded in the delivery of an ex tempore judgment by the Federal Magistrate. Reservation has elsewhere been expressed as to the delivery of ex tempore reasons of a Federal Magistrate for decisions arising under the Migration Act: SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [17] to [19]. Notwithstanding such reservation, it must necessarily be accepted that there can be no universal approach to be applied in all cases. The delivery of ex tempore reasons has both advantages and disadvantages: Kirby J, ‘Ex Tempore Reasons’ (1992) 9 Australian Bar Review 93. But there is nothing in the circumstances of the present case to warrant any conclusion that the Federal Magistrate did not “fairly” consider the arguments being advanced before him for resolution.

32    The third and final Ground of Appeal is an impermissible attempt to seek merits review.

33    Each of the proposed Grounds of Appeal lack such merit as may otherwise have warranted an extension of time in which to appeal.

34    There is no reason why the normal 21 day period prescribed by the Rules should not apply as the Grounds of Appeal sought to be advanced are without merit. Left to one side in reaching this conclusion is whether or not the Grounds have been drafted by someone who has given any attention at all to the issues to be resolved by the Federal Magistrate and to be raised on appeal to this Court, or drafted by someone who has regurgitated a set format of Grounds invoked in any and all proceedings in which her so-called “advice” or “assistance” has been sought – and, hopefully, not paid for.

CONCLUSIONS

35    The Application for an Extension of Time should be refused. There is no point in extending time to file a Notice of Appeal where the Draft Notice of Appeal itself discloses no arguable appellable error.

36    Irrespective of the manner in which the Draft Grounds of Appeal were expressed and the manner in which the case was argued before the Federal Magistrate, the Applicant was extended the opportunity before this Court to advance all of his concerns as to the decision of the Refugee Review Tribunal and that of the Federal Magistrate. However those concerns were expressed, a fundamental difficulty he confronted was the adverse factual findings as made by the Tribunal. Those were findings which were open to the Tribunal to make. The difficulties the Applicant thereafter confronted when seeking review by the Federal Magistrates Court were considerable and ultimately proved insurmountable.

37    The Respondent Minister seeks an order for costs and that costs be in a fixed sum pursuant to Order 62 r 4(2)(c) of the Federal Court Rules. An affidavit that has been filed quantifies the costs in the sum of $2,460.00. Such an order should be made.

ORDERS

38    The Orders of the Court are:

1.    The Application for an Extension of Time as filed on 6 May 2011 is refused.

2.    Pursuant to Order 62 r 4(2)(c) of the Federal Court Rules, the Applicant is to pay the costs of the First Respondent fixed in the gross sum of $2,460.00.

Associate:

Dated:    6 July 2011