FEDERAL COURT OF AUSTRALIA

SZLXK v Minister for Immigration and Border Protection [2014] FCA 1438

THE COURT ORDERS THAT:

1.    The application for extension of time be refused.

2.    The applicant pay the first respondent’s costs.

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 the People’s Republic of China who arrived in Australia on 23 June 2003. He applied for a protection visa on 13 September 2007. The delegate refused to grant that visa on 12 October 2007. The applicant applied to the Refugee Review Tribunal to review the delegate’s decision. On 21 December 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

2    He then sought constitutional writ relief from the Federal Magistrates Court. During the course of those proceedings, the applicant was referred to the legal assistance scheme and received assistance in the preparation of some of his grounds for challenging the Tribunal’s decision. The proceedings were heard by the Federal Magistrate who dismissed the application on 18 July 2008; SZLXK v Minister for Immigration [2008] FMCA 974. His Honour reviewed comprehensively the 12 pleaded grounds on which the applicant sought to challenge what he asserted were jurisdictional errors by the Tribunal in arriving at its decision.

3    The appellant was served with a notice of intention to remove him from Australia dated 11 December 2014, the proposal being that he would be removed today and flown to Beijing.

The present application

4    This morning, the appellant filed an application for an extension of time in which to appeal against the decision of the Federal Magistrates Court. His application was supported by a draft notice of appeal that raised four grounds, that I will describe shortly, and was supported by an affidavit of Ian Rintoul, who described himself as assisting the applicant in a voluntary capacity. The four grounds of appeal raise matters that do not refer to or engage with any aspect of the decision of the Federal Magistrate.

5    The first ground, in essence, was that the Tribunal’s and Federal Magistrates Court’s decisions were affected by legal error because the applicant had been denied natural justice in that an international treaty obligations assessment had not been completed in respect of him. The ground referred to the decision in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at 549-550 [232] and asserted that the imminent removal of the applicant would mean that he would be denied procedural fairness in respect of the Minister’s decision to remove him.

6    The second ground referred to the Tribunal’s finding that the applicant may be questioned by Chinese authorities on his return to China on the basis that they would assume, or seek to obtain confirmation from him, that he had been unlawfully in Australia and even that he had applied for a protection visa. The Tribunal had found that his unlawful status or his then (in late 2007), as it described it, “lengthy stay” here would mean that he would be perceived as someone who had tainted China’s reputation and his privileged position as an elite athlete. The Tribunal did not accept that the fact that the applicant had applied in Australia for protection would give rise to a well-founded fear of his being persecuted were he to return to China, or that he would be perceived by the Chinese authorities as a person who was anti-government, or had voiced anti-government opinions, or would engage in activities that would be perceived as anti-government were he to return to China. Accordingly, it rejected that claim for protection. The second ground also sought to challenge that finding on the basis of the recent decision of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.

7    The third ground was that the appellant’s case had not been properly assessed, having regard to the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, on the basis that his application for a visa was not invalid under s 48A of the Migration Act 1958 (Cth).

8    The fourth ground was that his removal would be a denial of natural justice, because it would pre-empt any benefit of an assessment of his application for a protection visa that he lodged on Tuesday, 16 December 2014.

The applicant’s submissions

9    The applicant is obviously an intelligent person who has very articulately, through an interpreter, represented himself today. In his oral submissions, he said that he had three bases on which he sought to invoke the Court’s jurisdiction. First, he said that he had been refused his application for a protection visa by the Tribunal, but that this had been done without an international treaty obligations assessment and that he needed to have another review of that matter. This appears to have reflected ground 1 of his draft notice of appeal.

10    Secondly, he said that he ran the risk of being detained, interrogated or imprisoned if he returned to China and that, by reason of his activities in Australia assisting other Chinese applicants for refugee status, he had come to the attention of persons whom he had assisted and who would have been interrogated when they returned to China after unsuccessfully applying for refugee status. He argued that he was at risk of having his assistance to those persons revealed to the Chinese authorities, and as well that he had been the subject of surveillance by spies or other agents of the Government of China while here. He said that the Department had notified the Chinese Embassy here to assist in his removal from Australia, pursuant to the notice that I have described, and that the first thing that would be done on his return to China would be that he would be interrogated at the airport by the Public Security Bureau police who would ask him what he had been doing for the last 11 years while he had been here and whether he had not only applied for refugee status himself but assisted others to do so. He asserted that he would be seen as having engaged in activities against the interests of China and that, accordingly, he needed an extension of time in which to seek leave to appeal so that he could challenge the decision.

11    Thirdly, he also asserted that he had not been given notice of an interview to which a delegate of the Minister had invited him to attend on 17 April 2014 to consider his fifth valid protection visa application that he had lodged on 30 August 2013. That required consideration by reason of the Full Court’s decision in SZGIZ 212 FCR 235. However, the delegate in his or her decision of 24 April 2014 was not satisfied that the applicant’s claims were credible on the basis of the material before the delegate, particularly having regard to the Tribunal’s decision in 2007 that had found that the applicant was not a reliable witness in respect of his claims to protection and having regard to his failure to attend the interview with the delegate.

12    The applicant explained orally that he had complained about his case officer, who was not the delegate, both to the Department and to the Australian Security Intelligence Organisation, and asked for a replacement case officer on the ground that he feared that the one he had was either a Chinese spy or was biased against him. He said that he had not known of the invitation to attend the interview and that his claims, which he was entitled to have re-examined, had not, in fact, been dealt with properly.

13    He said that he was not aware that he had a right to apply to this Court to challenge the decision of the Federal Magistrates Court until immediately before the current application for an extension of time was filed. He said that he was not aware of the Court procedures and that I should grant the extension of time sought.

Consideration

14    Section 476A of the Migration Act restricts the jurisdiction of this Court to grant constitutional writ relief or otherwise review decisions made by the Minister, his delegates or the Tribunal under the Act. Essentially, for present purposes, this Court can only exercise appellate jurisdiction in matters arising under the Act, being in the applicant’s case the jurisdiction to grant leave to him to appeal out of time and, if an extension of time is granted, to consider whether to set aside the Federal Magistrates Court’s decision. This Court has no jurisdiction to deal with any alleged deficiencies in the subsequent way in which the applicant’s case has been progressed to the point of his imminent removal from Australia which he has been notified would have occurred today but for this hearing.

15    I have carefully read the decision of the Federal Magistrate to see whether there was any apparent error of law or other matter that might suggest a basis on which the applicant might be able to challenge his Honour’s reasoning, conscious of the fact that the applicant is appearing for himself and is not familiar with the law or the intricacies of the Migration Act. I have not been able to detect any error that is apparent in his Honour’s reasoning or the way in which his Honour dealt with the very detailed challenges that were made to the way in which the Tribunal had dealt with the application to review the delegate’s decision to refuse him a protection visa in 2007.

16    In my opinion, none of the proposed grounds of appeal raises any basis on which it could be suggested that his Honour’s decision is in error. The first ground raised issues to do with an international treaty obligations assessment. Such an assessment must be made with respect to the complementary protection ground provided in s 36(2)(aa). That ground came into force after amendments to the Migration Act on 24 March 2012, over four years after the Tribunal’s decision. The failure to conduct an international treaty obligations assessment could not have provided any basis on which to challenge the decision made over four years before such an assessment became legally relevant under s 36(2)(aa). The complementary protection ground is now considered in addition to a claim under the Refugees Convention but was not applicable to the decision of the Federal Magistrates Court.

17    The second ground suggested that his Honour was in error in failing to set aside the Tribunal’s decision on the basis that there was a threat to the applicant’s life or liberty by reason of the fact that he might be detained were he to return to China on the basis of what North J had held in WZAPN [2014] FCA 947. The Tribunal made a specific finding that the applicant’s treatment, were he returned to China and questioned by the authorities there in relation to what he had done in Australia, would not give rise to a well-founded fear of persecution. I am unable to see any arguable error in the way in which the Tribunal approached the matter or why it could be said that merely questioning the appellant on his return about his activities would amount to systematic and discriminatory conduct within the meaning of s 91R(1)(c) of the Act for the reasons I gave in SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 at [53]. Moreover, there was no finding by the Tribunal that the appellant would be detained in any way for the questioning.

18    The third ground asserts that the decision in SZGIZ 212 FCR 235 was in some way relevant. I am unable to see how it could be relevant for the purposes of considering an error by the Court below. His Honour was dealing with the Tribunal’s consideration of the application for a protection visa on the basis that the Tribunal had dealt with that as a valid application, as, indeed, it was. To the extent that the ground seeks to challenge what the delegate decided on 24 April 2014, it too proceeds on an erroneous assumption. That is because the delegate acknowledged that the further application that the applicant made on 30 August 2013 was a valid application and required proper consideration in accordance with law which the delegate gave it, albeit in circumstances where the applicant was not present. Whether or not there was some error in the way in which the matter proceeded before the delegate could not affect the validity of the Tribunal’s decision over six and a half years earlier, or the decision of the Federal Magistrates Court that reviewed the Tribunal’s decision.

19    The fourth ground deals with the new application for a protection visa lodged earlier this week that could not possibly affect the correctness of the Federal Magistrates Court’s decision in 2008 or the Tribunal’s consideration of the claim for a protection visa in the previous year.

20    The principles on which the Court considers an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) are well-known. The Court ordinarily considers, first, the nature of the explanation for the delay and, secondly, whether the case proposed to be brought is strong on its merits and one which ought to be heard in fairness to the parties, or whether it is a flimsy case and weak on the merits, in which case an extension may not be granted. In such applications, the Court does not go into detail on the merits: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, with whom Kirby J gave concurring reasons on this point at 540-541 [66(4)]; Jess v Scott (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ.

21    In my opinion, there is no prospect that any appeal, if an extension of time were granted and leave to appeal were also granted, could succeed on the grounds advanced, or on any other basis on my own review of his Honour’s decision in which, as I have said, I have not been able to perceive any obvious errors in reasoning.

Conclusion

22    For these reasons, I am of opinion that the application for an extension of time must be refused with costs.

Associate:

Dated:    24 December 2014