FEDERAL COURT OF AUSTRALIA

SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

THE COURT ORDERS THAT:

1.    The application for an extension of time dated 24 October 2011 is refused.

2.    The applicant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    This proceeding is an application for extension of time for the applicant to file an appeal from the judgment of the Federal Magistrates Court (SZQCZ v Minister for Immigration and Anor [2011] FMCA 674).

2    The applicant is a citizen of China who arrived in Australia on 23 March 2008 on a student visa. She lodged an application for a protection visa with the Department of Immigration and Citizenship on 11 June 2010. She claimed that she was a Christian who had attended unregistered church meetings in China. As a result she said that she faced arrest and a jail sentence if she returned to China and continued to practice her religious beliefs. A delegate of the Minister for Immigration and Citizenship refused the application on 28 September 2010. The applicant applied to the Refugee Review Tribunal which affirmed the decision of the delegate to refuse a protection visa. The applicant then applied to the Federal Magistrates Court seeking a judicial review of the decision of the Tribunal. The Court dismissed the application.

3    The task of the Federal Magistrates Court in dealing with the judicial review application brought by the applicant was restricted to a determination as to whether the Tribunal’s decision was affected by jurisdictional error: see s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin 170 CLR 1 at 35 per Brennan J.

4    If time to appeal is extended, this Court’s task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

5    For the reasons I set out below I have determined to dismiss the application for an extension of time and order the applicant pay the respondent’s costs.

Procedural history

Application to the Refugee Review Tribunal

6    On 21 October 2010 the applicant applied to the Tribunal for a review of the decision of the delegate. She attended a hearing before the Tribunal on 15 February 2011. On 7 March 2011 the Tribunal refused the application for a protection visa, determining that the applicant did not have a well founded fear of persecution for a Refugee’s Convention reason. Amongst other things, the Tribunal had regard to independent country information that there were no recent reports of harm to unregistered churchgoers in the applicant’s home province of Fujian. The Tribunal considered the applicant had not suffered serious harm in the past because of her religious practices, and was unlikely to do so in the future.

7    On 7 April 2011 the applicant applied to the Federal Magistrates Court for review of the Tribunal’s decision. On 7 September 2011 that Court (Nicholls FM) found that there was no jurisdictional error in the Tribunal’s decision and refused the application.

8    Pursuant to r 36.03 of the Federal Court Rules any appeal from the judgment of Nicholls FM was required to be filed within 21 days after the judgment - that is by 28 September 2011. No appeal was filed within this time limit. On 24 October 2011 the applicant filed an application in this Court for an extension of time within which to file a Notice of Appeal. The applicant’s proposed appeal was about four weeks late.

9    The applicant did not appear at the hearing before this Court. For the reasons I set out I have determined to dismiss the application and order the applicant to pay the Minister’s costs.

the applicant’s failure to appear

10    The Application for an Extension of Time filed on 24 October 2011 stated:

The Court will hear this application at that time and place stated below. If you or your lawyer do not attend then the Court may make orders in your absence.

It stated that the time and date of the hearing would be advised to the applicant by the registry. The hearing before this Court was then scheduled for 13 February 2012 and the applicant was so advised by letter dated 23 November 2011 from the National Appeals Registrar. The Court’s file indicates that this letter was not returned. Further, there is no indication on the Court’s file that the registry was contacted by the applicant seeking an adjournment or advising of any difficulty in attendance on the date fixed.

11    There was no appearance by the applicant when the matter was called for hearing inside and outside the Court using the acronym SZQCZ, or when the applicant was called by name outside the Court. In the period between the hearing and delivery of this judgment my chambers have not been contacted by the applicant seeking to explain or justify her non-appearance.

12    In reliance on the non-appearance of the applicant, the Minister applies to dismiss the application for extension of time pursuant to Part 36 of the Federal Court Rules - which relates to Appeals. Rule 36.75 relevantly provides:

(1)    If a party is absent when an appeal is called on the hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed;

…

13    Similarly, s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (“FCA”) provides:

A single Judge (sitting in Chambers or in open court) or a Full Court may:

(bb)    make an order that an appeal to the Court be dismissed for:

(i)     …

        (ii)     failure of the appellant to attend a hearing relating to the appeal.

Subsection (2BA) provides that a reference to an appeal in subs (2B) includes a reference to applications for an extension of time within which to institute an appeal. The failure of the applicant to attend the hearing is a failure of an appellant to attend a hearing relating to the appeal within the meaning of subs 25(2B)(bb)(ii).

14    In the circumstances of the applicant’s non-appearance I dismiss her application for an extension of time to bring her appeal pursuant to each of r 36.75 and s 25(2B)(bb)(ii) of the FCA. In reaching this determination I have had regard to s 37M of the FCA which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. To adjourn the matter because of the applicant’s non-appearance would not have met the requirements of s 37M, even more so when the matter is an appeal against the finding of another Court. The finality of Court decisions is an important aim of the judicial system.

The application for extension of time

15    Further, having carefully considered the documents filed by the parties, I am fortified in my decision to summarily dismiss the application. For the reasons I now set out I consider that it was bound to fail in any event.

16    Rule 36.05(3)(c) requires that any application for extension of time be accompanied by an affidavit stating briefly but specifically the facts on which the application relies, and why the notice of appeal was not filed within time. This rule, in operation since 1 August 2011, replaces Order 52 rule 15(2) of the Federal Court Rules 1979.

17    The new rule no longer requires that the applicant must satisfy the Court of “special reasons” before it may give leave to file a Notice of Appeal. This change in the relevant rule is of no great moment. The expression “special reasons” in Order 52 rule 15(2) did not operate to constrict the broad and flexible discretion in a court to extend time limits under the rules so as to provide justice in the particular circumstances of a case: Jess v Scott (1986) 12 FCR 187 at 195. The applicant is required to make out a case sufficient to justify departure, in the particular circumstances of this matter, from the ordinary rule prescribing the period within which an appeal must be filed.

18    The Court has treated the factors set out in Hunter Valley Developments Pty Ltd v Cohen 3 (1984) FCR 344 at 348-9 (which related to an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 as the principles which should guide the Court in determining whether an extension of time should be granted: Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17]; Sutera v Nelson [2011] FCA 1470 at [7].

19    Accordingly, the application for an extension of time requires consideration of the following factors;

(a)    satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

(b)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension;

(c)    the merits of the appeal.

20    The Minister did not contend that there was any prejudice to him by the late appeal, and I will not deal further with that factor.

Explanation for the delay

21    In her affidavit in support of the application for extension of time the applicant deposes:

I did not file the application within time because I believe my application filed on 6 October 2011 was within time.

What this means is unclear. The Court file does not disclose any document filed on 6 October 2011, and the Minister submits that no such document was served on him. Although the Minister’s submissions took up this point, no submissions were filed by the applicant dealing with it. The issue was therefore not explained. It is of course possible that the applicant could have provided an explanation to the Court at the hearing, but she did not attend.

22    The applicant’s affidavit does not provide any comprehensible explanation for her delay in filing her appeal. By reason of this failure, and her failure to file any written submissions in response to those of the Minister on this point, I am unable to conclude that there is some acceptable explanation for the delay.

The merits of the appeal

23    It is well established that an extension of time, even for a short period, may be refused if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

24    The proposed Grounds of Appeal in the draft Notice of Appeal state, without alteration:

1.     I was denied procedure fairness.

2.     The serious harm that will happen to me was not considered.

For the reasons that I set out below, I do not consider that these proposed Grounds of Appeal have any merit.

The claim of denial of procedural fairness

25    The claim by the applicant that she was denied procedural fairness before the Tribunal is a claim that the applicant made before the Federal Magistrates Court, although under differently expressed grounds. The relevant grounds in that application stated, without alteration:

1.    The Tribunal failed to provide me with a face to face interview opportunity for which I had requested.

…

3.    The Tribunal failed to give me a fair treatment.

26    Before the Federal Magistrates Court the consideration of the procedural fairness ground essentially turned on contentions by the applicant that:

(a)    the hearing before the Tribunal was conducted by video-link rather than “face to face”;

(b)    by conducting the hearing by video-link she was denied the opportunity of providing supporting documents in person; and

(c)    she should have been given a letter from the Tribunal to “comment” on.

27    It is clear from the decision of the Federal Magistrates Court that the applicant was advised in several letters, relating to both the hearing date initially scheduled and the hearing dates adjourned at her request, that the hearing would be by video-link. The applicant was advised that if she had a preference to attend the Tribunal hearing in person in Melbourne she should contact the Tribunal. Although the ground of appeal states that the applicant had requested a face to face hearing the Court found no indication that she did so. The Court found that neither the applicant nor her agent objected to the hearing proceeding by video-link, or raised any disadvantage in that regard.

28    The Court also noted that the applicant was assisted by an interpreter and was represented in the review by a registered migration agent. In my view, more importantly, it is clear from the decision of the Tribunal that the applicant was able to put forward her case and it is hard to discern any procedural unfairness in the use of a video-conference facility. The Tribunal was entitled to conduct the hearing by video-link pursuant to s 429A(b) of the Migration Act 1958 (Cth) (“the Act”).

29    The Federal Magistrates Court also rejected the contention that the applicant could not hand documents to the Tribunal because she was not in a face to face hearing. In fact, the applicant did submit a supporting document to the Tribunal on the day of the hearing, which was referred to in its decision. If the applicant’s ground relates to an inability to physically hand a document to the Tribunal member it is hard to discern what procedural unfairness the applicant suffered as a result.

30    The applicant’s ground that she should have been given a letter by the Tribunal to “comment” on also has no merit. If this ground was a contention that the Tribunal should have given her an opportunity to comment on its proposed draft decision, there is no such obligation on the Tribunal: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]. The Federal Magistrates Court found accordingly.

31    Insofar as it was a contention that the applicant should have been given particulars of "information" which would be the reason, or a part of the reason, for affirming the delegate’s decision as required by s 424A(1) of the Act - the Court considered that no breach of the section was evident. The Court concluded that on the material before it, any such "information" was either given by the applicant in writing in relation to her own application, or given to the Tribunal in relation to her application, which therefore comes within the exemptions contained in s 424A(3).

32    The Federal Magistrates Court considered the applicant’s contention that there was a lack of procedural fairness before the Tribunal, and rejected the claim. In my view the applicant has no reasonable prospect of establishing an appealable error in the Court’s decision in that regard.

The claim of failure to consider the risk of serious harm

33    The next proposed ground of appeal is that the Federal Magistrates Court made an error of law in failing to find that the Tribunal did not properly consider the risk of serious harm to the applicant should she be returned to China. In my view this ground also has no reasonable prospect of success.

34    The Federal Magistrates Court considered this question under a ground in that appeal that “[t]he Tribunal failed to consider the country information provided by my migration agent.” This country information related to the risk of harm to people who attended unregistered churches or proselytized in relation to the same. The learned Federal Magistrate considered the contention that the Tribunal had not properly considered the risk of serious harm which the applicant faced.

35    It is clear from the decision of the Tribunal that it closely considered the question as to whether the applicant had a well founded fear of persecution should she return to China. Much of the decision dealt with the applicant’s claim that as a practising Christian in an unregistered church (as opposed to an official church) she would be persecuted should she return. The Tribunal made various findings to the effect that it considered that the applicant had not previously suffered serious harm by reason of her religious beliefs, and it was not satisfied that the applicant was at risk of serious harm in the future. It was not satisfied that she had a well founded fear of persecution if she were to return to China.

36    While it is clear that the applicant does not agree with the decision, the Tribunal clearly considered the relevant question, made relevant findings and had evidence upon which it could reasonably base its findings. It is not the role of the Federal Magistrates Court or this Court to conduct a review of the merits of the Tribunal’s findings in this regard: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

37    In my view the applicant has no reasonable prospect of establishing an appealable error in the decision of the Federal Magistrates Court under this proposed ground of appeal.

Conclusion

38    I dismiss the application for an extension of time. I also order the applicant to pay the party-party costs of the Minister.

Associate:

Dated:    2 March 2012