FEDERAL COURT OF AUSTRALIA

SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867

THE COURT ORDERS THAT:

1.    The Application for extension of time and leave to appeal filed on 24 May 2012 is dismissed.

2.    The Applicant is to 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

1    The Applicant is a citizen of China.

2    He arrived in Australia on 24 September 2010 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 10 March 2011. A delegate of the Minister refused to grant that visa on 4 July 2011.

3    On 1 August 2011 he applied to the Refugee Review Tribunal seeking review of the delegate’s decision. That Tribunal affirmed the delegate’s decision and published its reasons for decision on 2 December 2011. The Applicant claimed to have become a Falun Gong practitioner in China in 2008. But he was “… unable to provide any further information about Falun Gong at the hearing before the Tribunal, nor to provide any further indicia of his interest in, understanding of, or commitment to, the practice of Falun Gong”. In setting forth its Findings and Reasons the Tribunal stated (inter alia) :

81.    The Tribunal finds that the applicant is not a truthful witness. In making this finding, the Tribunal has had regard to internal inconsistencies in the applicant’s claims, logical impossibilities in the sequence of some of his claims, inconsistencies between the applicant’s evidence and the independent information set out above, and the applicant’s marked propensity to change his claims in order to accommodate inconsistencies or illogicalities when they are put to him for explanation.

82.    The full reasons for the Tribunal’s findings in relation to each of the claims made by the applicant are set out below. In summary, the Tribunal finds that the applicant is not now and was not in China a Falun Gong practitioner and that, for this reason, he does not have a genuine fear of persecution as a Falun Gong practitioner if he were to return to China, and that consequently there is no real chance that he would face Convention-related persecution in the reasonably foreseeable future.

The Tribunal rejected his claims. The Tribunal also set forth a number of instances where the Applicant had presented “incorrect claims”, even on his own account. It was also critical of delays on the part of the Applicant in making his application for a Protection visa.

4    Judicial review of the Tribunal’s decision was sought before the Federal Magistrates Court. That Court dismissed the application on 2 May 2012: SZQZJ v Minister for Immigration [2012] FMCA 362. The Federal Magistrate concluded that there was “… no arguable case of jurisdictional error by the Tribunal” and dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12(2) provides that for the avoidance of doubt “… a dismissal under paragraph (1)(a) is interlocutory”.

5    On 24 May 2012 the Applicant filed in this Court an Application for an extension of time and leave to appeal.

6    An extension of time is required because the Federal Magistrate’s decision was handed down on 2 May 2012 and r 35.13 of the Federal Court Rules 2011 (Cth) requires any application for leave to appeal to be filed within 14 days of the judgment being delivered. Rule 35.14 makes provision for an application for an extension of time within which to seek leave to appeal. The Application filed in this Court was about a week out of time.

7    Leave to appeal is required because the Federal Magistrate’s decision was interlocutory: Federal Court of Australia Act 1976 (Cth) s 24(1A).

8    The proposed Grounds of Appeal contained within a draft Notice of Appeal annexed to the Affidavit filed in support of the Application before this Court, were expressed as follows (without alteration):

1.    Error of law made by RRT not identified by the Magistrate Court

2.    Breach of procedural fairness ignored by the Magistrate Court

No further clarification of the “error of law” was forthcoming. The affidavit (in its entirety) provided as follows (without alteration):

1.    I am the applicant

2.    I provided the answers based on my own knowledge and are true to the best of my knowledge and belief based on my inquires

3.    I provided all truthful answers in the RRT answers while the RRT refused on believe me with no convincible reasons.

4.    I was not provided enough time during the interview to respond to the challenges the RRT brought upon me

It is presumably the assertion that the Applicant had inadequate “time during the interview” which would be relied upon to support the denial of procedural fairness Ground of Appeal.

9    The Applicant failed to appear before this Court when the matter was called on for hearing. In such circumstances, the solicitor appearing for the First Respondent sought an order that the Application be dismissed pursuant to r 35.33(1)(a)(i) of the Federal Court Rules 2011. A comparable provision in respect to the absence of a party “when an appeal is called on for hearing” was to be found in Order 19 r 5 of the now-repealed Federal Court Rules (Cth). The discretion as to how the Court may proceed remains the same. Instances may be provided where the Court has previously proceeded to hear an appeal in the absence of an appellant: eg, Nadezhkin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 128, SZJNR v Minister for Immigration & Citizenship [2007] FCA 1724 at [2] per Greenwood J; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [18] per Kenny J; SZJLH v Minister for Immigration and Citizenship, [2008] FCA 626 at [9]; SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 at [8].

10    Rather than acceding to the course advocated on behalf of the Respondent Minister, the merits of the Application for an extension of time were heard in the absence of the Applicant. That course at least provides some assurance to the Applicant that his application has been considered and resolved.

11    The Application for an extension of time in the present proceeding is refused. Even had an extension of time been granted, leave to appeal would also have been refused.

THE DISCRETIONS CONFERRED

12    The discretion to extend time in which to seek leave to appeal, together with the discretion to grant leave to appeal, are both directed to ensuring that justice is done as between the parties.

13    The discretionary power to extend time now addressed by r 35.14 of the Federal Court Rules 2011 formerly had its counterpart in respect to applications for leave to appeal from interlocutory judgments in Order 52 r 10(2A) of the now-repealed Federal Court Rules. A “casual disregard of the requirements of the Rules”, it has long been accepted, “is inappropriate”: Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] per Moore, Bennett and Buchanan JJ; SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814 at [18] per Logan J; SMS Technology Australia Pty Ltd v Abdullah M Al Hamed [2009] FCA 451 at [11] per Logan J.

14    The grant of an extension of time is, accordingly, not “automatic”: Gallo v Dawson (1990) 64 ALJR 458. When considering the discretion to extend time conferred by the former O 70 r 3 of High Court Rules 1952 (Cth), McHugh J observed at 459:

… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted …

Affirmed in Gallo v Dawson (No 2) (1992) 109 ALR 319 at 320 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ. See also: SZIOE v Minister for Immigration and Citizenship [2007] FCA 1176 at [26] per Gilmour J; SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 at [8] per Flick J; Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 at [39] to [40] per Spender J; Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [57] per Foster J.

15    When resolving an application for an extension of time, Cowdroy J in SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 set forth the considerations relevant to the exercise of the discretion as follows:

[21]    The court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules.

See also: SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12].

16    The discretionary power to grant leave to appeal from an interlocutory decision is also not a power to be “automatically” exercised upon application being made. Section 24(1A) of the Federal Court of Australia Act confers on the court "an unfettered discretion" in "unqualified terms": Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. Considerations which guide the exercise of that particular discretionary power are frequently expressed in terms of:

(a)    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)    whether substantial injustice would result if leave were refused supposing the decision would be wrong.

These two considerations, however, are not unrelated: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ. The “sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments”: Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908 at 910 per Burchett J. In CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5] Keane CJ and Jacobson J observed that “[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice …”.

17    Unless a particular discretionary power is subject to express or necessarily implied constraints, it is unwise and impracticable for the Court to attempt to formulate any exhaustive list of considerations which are to be taken into account. Previously acknowledged considerations relevant to an exercise of discretion, however, provide an invaluable guide as to how to approach any exercise of power. But any discretion must always be exercised by reference to the relevant facts and circumstances of each individual case.

18    In the present proceeding, there is self-evidently an overlap in those considerations which guide the exercise of both discretionary powers now in issue – one consideration being whether there is any merit in the appeal that would be pursued should the extension of time and leave to appeal be granted. Such an overlap is, of course, not surprising. The discretionary powers conferred upon the Court are primarily directed to ensuring the proper administration of justice. The proper administration of justice may well require, in a particular case, that a party should have an opportunity to advance a meritorious case notwithstanding non-compliance with a rule of the Court. Many discretionary powers conferred by rules of court converge on that same end. Rules of Court, it is well-recognised, “should never be allowed to be an instrument of tyranny”: Outboard Marine Australia Pty Ltd v Byrnes: Baukenecht (Third Party) [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA. They nevertheless serve an important role in letting the parties know where they stand and in ensuring the orderly administration of justice. Interest in compliance with rules of court, it must also be recognised, goes beyond the immediate litigious interests of the parties; it extends to the more generally expressed public interest in the orderly administration of justice. See also: McGrath and Honey in their capacity as liquidators of Pan Pharmaceuticals Ltd (In Liquidation) v Australian Naturalcare Products Pty Ltd [2006] FCA 1843 at [14] per Allsop J; Von Arnim v Medfin Australia Pty Ltd [2008] FCA 472 at [13]; R v Meyboom [2012] ACTCA 2 at [63], 256 FLR 450 at 460 per Refshauge J.

THE ABSENCE OF EXPLANATION AND ABSENCE OF MERIT

19    The present application for an extension of time is refused because:

•    no explanation has been provided for the failure to file an Application for leave to appeal within time; and

•    this Application is, in any event, without merit.

The decision of the Federal Magistrate is not attended with sufficient doubt to warrant it being reconsidered on appeal.

20    In dismissing the application before him, the Federal Magistrate set forth in his reasons for decision the grounds upon which the Applicant sought review, namely (without alteration):

1.    RRT doubted my evidences which was based on independent country information. It is opposite to the spirit of justice.

2.    RRT ignored my true situation in China. It is opposite to the spirit of a refugee signatory country.

3.    I fear to go back to China. I have to appeal until my application that is considered carefully.

In his ex tempore reasons, the Federal Magistrate concluded:

[12]    The applicant’s difficulty in these proceedings is that the grounds identified in his show cause application do not rise above a dispute over the merits of the Tribunal decision. I explained the difficulty to the applicant and invited oral submissions from him. He declined to make any submission. Following oral submissions from Ms Liddle for the Minister, I again invited submissions from the applicant. He complained that he was not believed by the Tribunal and complained that his knowledge of Falun Gong was regarded as superficial. Both of those assertions are correct, but neither assertion says anything about the validity of the Tribunal’s decision.

[13]    On my own reading of the decision and the material in the court book, I see no arguable case of jurisdictional error by the Tribunal. The applicant has certainly not pointed to any.

Given the grounds of review and the absence of explanation, the conclusion of the Federal Magistrate may, with respect, have been inevitable. The adverse credibility findings made by the Tribunal made any judicial review of the Tribunal’s decision difficult. But the Federal Magistrates Court and this Court should forever remain alert in ensuring that adverse credibility findings are not impermissibly employed as a means of protecting or insulating from judicial scrutiny decisions of the Tribunal. The courts should, for example, be conscious of criticisms made of the manner in which the Tribunal functions and the prospect that its practices may be “too confrontational or adversarial”: Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?’ (1998) 5 A J Admin L 78. Where the liberty of the subject is potentially at stake, courts should be vigilant in protecting such residual legal rights as the Legislature has left in the hands of claimants.

21    The decision of the Federal Magistrate in the present proceeding, however, remained a decision to dismiss the Application before him pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules. No error is exposed in the manner in which that discretion was exercised.

22    The Affidavit filed in support of the present Application together with the proposed Grounds of Appeal in the draft Notice of Appeal, provide no greater assistance in identifying any possible basis upon which the Applicant should be extended an opportunity to challenge the decision of the Federal Magistrate.

23    Paragraphs 2 and 3 of the Affidavit are presumably directed to a challenge to the factual merits of the decision made by the Tribunal. But such a challenge does not give rise to jurisdictional error. Paragraph 4 requires separate consideration. There is no indication in the reasons for decision of the Tribunal that the Applicant raised any concern as to an inability to fully answer the questions being put to him. The hearing before that Tribunal took about 2 ½ hours. Nor is there any other reason to reach a conclusion that the Applicant was not given a proper opportunity to present his claim. The allegation was not raised for consideration before the Federal Magistrate and no reason is given as to why that Ground of Appeal should be permitted to be raised for the first time on appeal.

24    In the present proceeding it is not considered that the proposed Grounds of Appeal have any prospects of success. That is a sufficient basis upon which an extension of time may be refused. That decision is only further reinforced by the history of delay on the part of the Applicant in presenting his claims for refugee status for resolution.

25    No error is discernible in the reasons for decision of the Federal Magistrate.

26    Nor has any explanation been provided as to why the Application for leave to appeal now before this Court was not filed within time. The Application for extension of time and leave to appeal is refused. The Application is dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The Application for extension of time and leave to appeal filed on 24 May 2012 is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:

Dated:    17 August 2012