FEDERAL COURT OF AUSTRALIA

SZSLD v Minister for Immigration and Citizenship [2013] FCA 547

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

2.    The applicant pay the respondents’ costs as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The applicant applies for leave to appeal from a judgment handed down on 2 May 2013 by Judge Nicholls of the Federal Circuit Court of Australia. On that day, his Honour dismissed the applicant’s application dated 21 December 2012 seeking review of a decision of the Refugee Review Tribunal (the RRT). The application was dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). The applicant was ordered to pay the Minister’s costs in the amount of $3,326.

2    The applicant requires leave to appeal because the dismissal of an application under r 44.12(1)(a) is an interlocutory decision, as is confirmed by r 44.12(2) of the FCC Rules.

3    It is convenient to summarise the background to the proceedings before dealing with the application for leave to appeal.

Summary of background

4    The applicant is a citizen of the People’s Republic of China (China). He arrived in Australia on 23 February 2008 holding a student visa, which expired on 15 March 2010. He remained in Australia without immigration authority after this date. It appears that he has been in detention since at least 13 May 2012. It is desirable that his application be heard and determined without delay.

5    The applicant applied for a protection visa on 28 June 2012. He claimed to fear persecution if he were returned to China because of his Catholic religion. He also claimed that he feared persecution because his family was Buddhist and the area in which he lived was predominantly Buddhist. He further claimed that he was not able to relocate elsewhere within China as his family all lived within the specific area.

6    The applicant’s application for a protection visa was refused by the Minister’s delegate on 19 July 2012, essentially on the basis that the applicant was found not to be a credible witness.

7    The applicant applied to the RRT. He attended a hearing on 23 October 2012. The RRT delivered its reasons on 26 November 2012 affirming the delegate’s decision. In broad terms the RRT reasoned as follows.

8    First, the RRT had serious concerns regarding the applicant’s lengthy stay in Australia illegally. It found that the applicant’s actions in delaying his departure from China and in claiming protection in Australia were not consistent with his asserted fear of persecution.

9    Secondly, the RRT found that the applicant is not a Catholic Christian. This finding was based on the RRT’s view that the applicant did not display a level of knowledge of Catholic Christianity commensurate with that of a person who was a Catholic and who claimed to have practised Christianity in both China and Australia for many years. His testimony was described as “vague and superficial”. He was unable to recite the Lord’s Prayer. He did not know what baptism involved. He was unable to explain the difference between the Catholic Church and other churches. His knowledge of Catholic Christianity was found to be “scant” at the hearing, even though he was give an ample opportunity to discuss it. The RRT concluded that his limited knowledge of Catholic Christianity appeared to have been memorised, and lacked spontaneity and detail. His superficial and limited knowledge of Catholic Christianity was found by the RRT to have been “rehearsed and memorised” and, in any event, contained numerous errors. The RRT also noted that the applicant was able to leave China legally without hindrance. Having regard to all these factors, the RRT found that the applicant is not a Catholic Christian and there is no real chance that he would face persecution in China for reasons of his religion.

10    Thirdly, the RRT also considered whether the applicant should have the benefit of s 36(2)(aa) of the Migration Act 1958 (the Act). Having regard to its findings that the applicant was not credible in relation to his claims concerning Catholic Christianity nor his claims relating to his fear of harm for reasons of his religion, the RRT further found that there was no real risk that he would suffer significant harm in terms of Australia’s protection obligations under s 36(2)(aa) if he was returned to China.

Federal Circuit Court decision

11    As noted above, the applicant commenced proceedings on 21 December 2012 pursuant to s 476 of the Act, seeking review of the RRT’s decision.

12    The applicant’s application to the FCC simply stated under the heading “Grounds of Application” that there was jurisdictional error. Three other paragraphs under that heading identified the relief he sought.

13    When the matter first came before the FCC, the applicant was referred to a lawyer under the Court’s “RRT Legal Advice Scheme”. This was done against the background of the applicant’s bare assertion of jurisdictional error and the difficulties he faced without some particularisation. Although the applicant did receive legal advice, no amended application or further documentation was filed by him.

14    The applicant was given notice that, without of anything further from him, his application may not proceed beyond the first Court date. On that day, the Minister made an application that, in view of the absence of anything further from the applicant, the Court should proceed to an immediate show cause hearing under r 44.12 of the FCC rules.

15    In dismissing the application pursuant to r 44.12(1)(a), the primary judge found that the applicant made no attempt to explain his assertion of jurisdictional error. He found that the applicant had effectively conceded that this was because he could find no legal error in what the RRT had done. Those matters alone were found to be sufficient to justify dismissal of the application.

16    The primary judge indicated that he had reviewed the material before the Court to see whether there was any arguable case in support of the asserted jurisdictional error. He found that there was none. Accordingly, for all these reasons, his Honour made an order under r 44.12(1)(a) of the FCC rules dismissing the application.

Application for leave to appeal

17    The single ground set out in the application for leave to appeal is literally in the following terms:

1.    I have been mistakely. File wrong application form (F.M.C form).

18    The applicant also filed an affidavit in support of his application. I accept the Minister’s submission that it is devoid of substantive content and fails to identify any basis to warrant a grant of leave to appeal.

19    The Minister contends that, contrary to directions made by Registrar Morgan on 16 May 2013, the applicant failed to file a draft notice of appeal. That appears to be an error, at least in part. It is unclear what time the directions were made on 16 May 2013, but the Court file contains a draft notice of appeal which appears to have been faxed to the Registry at 9:44 am on 16 May 2013. It may be more correct to say that a draft notice of appeal was provided to the Court as it does not bear a “filed” stamp, presumably because it is only a draft notice of appeal. The solitary proposed ground of appeal is as follows:

The Court made a wrong judgment on my credibility.

20    The relevant principles in considering an application for leave to appeal are well established. It is sufficient in the circumstances here to refer to the well-known judgment of the Full Court in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. While the two core principles identified there are plainly relevant, they are not exhaustive. Nevertheless, it is clear that the applicant carries the burden of establishing that the decision sought to be appealed is attended with sufficient doubt so as to warrant a grant of leave to appeal and that substantive injustice would result if leave were refused supposing the decision were wrong. It is also relevant to bear in mind that the applicant is self-represented. The Court should be alive to the possibility that there may be an arguable error of law which, with appropriate amendment or permissible assistance, could be put into proper form (see Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [18] per McKerracher J).

21    The primary judge’s decision to dismiss the application was a decision made in exercise of the discretionary power conferred by r 44.12(1)(a). The applicant has failed to identify any arguable appellable error within the well-known principles established by House v The King so as to warrant a grant of leave. Nor, on my reading of his Honour’s reasons for judgment, is any such arguable error present. The applicant, who did not provide any written or oral submissions in support of his application, has failed to demonstrate that the decision is attended by any doubt, let alone sufficient doubt so as to attract a grant of leave to appeal. Even if the draft notice of appeal is read as though it is a challenge to the primary judge’s finding that there was no jurisdictional error in the RRT’s decision (including its adverse credibility findings), no arguable error has been identified to warrant the grant of leave to appeal.

22    In all the circumstances, I consider that the application for leave to appeal should be refused and the applicant ordered to pay the costs of the first respondent as agreed or assessed.

Associate:

Dated:    4 June 2013