FEDERAL COURT OF AUSTRALIA

SZUIL v Minister for Immigration and Border Protection [2015] FCA 230

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant seeks an extension of time for leave to appeal and, if granted, leave to appeal against a decision of the Federal Circuit Court of Australia (“FCC”) delivered on 14 November 2014: SZUIL v Minister for Immigration and Border Protection (No 2) [2014] FCCA 2694 (“November 2014 decision”). The primary judge dismissed an application to set aside orders made by the FCC on 13 August 2014 for reasons recorded in SZUIL v Minister for Immigration and Border Protection [2014] FCCA 1878 (“August 2014 decision”).

2    By the August 2014 decision, the FCC dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“RRT”) dated 15 April 2014. The application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on the basis that the applicant had failed to attend the hearing scheduled on 13 August 2014.

3    The November 2014 decision did not finally determine the applicant’s rights and was, therefore interlocutory in nature: see SZTOJ v Minister for Immigration & Border Protection [2015] FCA 126; SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391.

Background facts

4    The applicant is a citizen of the People’s Republic of China who arrived in Australia on 2 January 2013. On 7 January 2013, she applied for a Protection (Class XA) visa. The application was made on the basis that the applicant feared harm if she returned to China by reason of being a Falun Gong practitioner in China and by reason of having suffered harm on that basis in China. The visa application was refused on 5 August 2013.

RRT’s decision

5    On 4 September 2013, the applicant applied to the RRT for review of the delegate’s decision. By letter dated 20 January 2014, the applicant was invited to appear before the RRT on 4 March 2014. By letter dated 16 April 2014, the applicant was informed that the RRT had decided to affirm the delegate’s decision.

6    According to the RRT’s statement of decision and reasons, the RRT quizzed the applicant about her understanding of the principles and practices of Falun Gong. It found her knowledge of Falun Gong to be very weak. The RRT found that the applicant was not a Falun Gong practitioner “and hence on her return to China she will not be perceived as a Falun Gong practitioner and she will not engage in Falun Gong related activities and therefore she will not face any persecution there for any Falun Gong related reason”. The RRT found that the applicant had never been a Falun Gong practitioner and that she had fabricated her claims to have been one.

7    The RRT concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations. Therefore, it found, the applicant did not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. For these reasons, the RRT affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.

FCC’s decision

8    On 15 May 2014, the applicant applied to the FCC for judicial review of the RRT’s decision.

9    The application contains the following two grounds:

1.    The cruel doing of China to members of Falun Dafa practices still goes on. A somewhat 600,000 people are being tortured everyday in the prisons, detention centres for brainwashing and mental facilities. Even more cruelly, between 2000 and 2008 about 65,000 members were killed taken organs out, sometimes even when they were alive. This was the crime that’s “never seen on Earth”. Statistics from Canada shown 52 records proved the action of organ taking while alive. Therefore the Communist Party in China is the humanity-damning cult throughout, every man with sense will charge against it and it has to be imperative taken action by Heavens to end the force. Therefore in Paragraph 45, RRT ignore the fact that I will be persecuted if I back to China.

2.    RRT has no any knowledge of how the Chinese government persecutes Falun Dafa practices. So the decision made by RRT is unfair.

August 2014 hearing

10    On the evening of 12 August 2014, the FCC received a facsimile from the applicant, which attached a medical certificate in the following terms:

THIS IS TO CERTIFY THAT on 12/8/2014

I examined [the applicant] who in my opinion is suffering from: medical illness and will be unfit for work

From: 12/8/2014 To: 16/8/2014 inclusive

12th August 2014

Dr Yik Choon Chong

General Practitioner

2510098F

11    The FCC judge was not satisfied that the applicant’s request for an adjournment was supported by sufficient evidence and it was therefore refused. In reaching that conclusion, her Honour referred to the decision of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. The applicant does not suggest that her Honour erred in refusing to adjourn the hearing in August 2014.

12    At paragraph 7 of her August 2014 reasons, the FCC judge recorded that, at a directions hearing on 4 August 2014, the applicant was given leave to file and serve an amended application, and any further evidence and submissions, in support of her application for judicial review. At that directions hearing, her Honour explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by that Court and, on their face, did not raise an arguable case.

November 2014 hearing and reasons

13    The applicant appeared unrepresented at the November 2014 hearing of the FCC, although with the assistance of an interpreter. She did not provide any further medical evidence to explain her non-attendance at court on 13 August 2014. The FCC judge concluded that the applicant’s explanation for her failing to appear at the hearing on 13 August 2014 was unsatisfactory for the reasons which her Honour gave in August 2014.

14    The applicant was invited to make oral submissions in support of her application for judicial review.

15    The November 2014 reasons record that the applicant had nothing further to say in relation to ground 1 in the application. After reviewing parts of the RRT’s reasons, the FCC judge concluded:

13.    There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and material before it and for the reasons it gave. Certainly, the applicant’s allegation that the RRT ignored the face that she would be persecuted if she was returned to China is not made out.

16    The November 2014 reasons do not record whether the applicant made any oral submissions in relation to ground 2 of the application. The FCC judge concluded that, for the same reasons as for ground 1, ground 2 had no prospects of success.

17    Having found no jurisdictional error apparent on the face of the RRT’s decision record, and none having been identified by the applicant, the FCC judge dismissed the application to set aside the August 2014 decision with costs.

Appeal proceedings

18    The applicant now seeks an extension of time for leave to appeal to this Court from the FCC’s decision. The application contains the following grounds:

1.    I faxed my whole completed applications on 01/12/2014 and 11/12/2014(twice), the reason I faxed three times it’s because I called up and officer told me that no officer holding my applications.

2.    I been told that I can lodge my applications of appeal from the Federal Circuit Court of Australia within 21 days, and I checked online from Federal Court website, 21 days it’s correct.

3.    The Refugee Review Tribunal (RRT) made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT.

4.    The Federal Circuit Court did not consider my situation.

19    The applicant’s draft notice of appeal contains the following grounds:

1.    The RRT made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT.

2.    The FCC did not consider my situation.

20    The applicant appeared in person. She had the assistance of a Mandarin interpreter but did not make any oral submissions when invited. The applicant also did not file any written submissions.

21    The Minister opposed the application for an extension of time within which to seek leave to appeal. He submitted that the application should not be granted because the proposed substantive appear “lacks merit and has no prospects of success”.

Extension of time

22    The relevant considerations in deciding whether to grant an extension of time for leave to appeal are: first, the reasons for the delay and secondly, whether the application for leave to appeal has such prospects of success as not to render the extending of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]. See also WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

23    If a proposed appeal has no prospect of success an extension of time, even for a short period, may be refused: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24]; 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].

Leave to appeal

24    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish that:

(a)    in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 at [2]; (1991) 33 FCR 397 at 398–400 (“Décor Corporation”); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 (“Johnson Tiles”) at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]–[30].

Consideration

25    The applicant’s delay in filing her application for leave to appeal appears to have arisen from a misunderstanding about the deadline for filing the application. The delay was not substantial and I would be minded to grant an extension of time if the circumstances warranted a grant of leave to appeal.

26    However, I am not satisfied that leave to appeal should be granted. The applicant identified no possible appealable error in the decision of the FCC judge. I can detect no error of law on the part of the RRT that the FCC judge should have identified. The RRT’s decision was plainly based upon its view that the applicant’s claims were fabricated. The RRT did not “undervalue” the applicant’s serious risk of persecution. Rather, it concluded that there was no such risk because the applicant was not a Falun Gong practitioner and never had been, and she had fabricated her claims for protection. The applicant did not suggest that the RRT’s quizzing of her about the principles and practices of Falun Gong reflected any misunderstanding on the part of the RRT about those matters. Accordingly, there is no reason to think that the RRT’s conclusion that the applicant’s claims were fabricated was not reasonably open on the available evidence.

27    The applicant did not identify any appellable error on the part of the FCC judge in her consideration of the applicant’s situation and I do not detect any.

28    In the absence of any identified appealable error, the proposed appeal would be bound to fail and an extension of time would be an exercise in futility.

29    Accordingly, the application for an extension of time for leave to appeal is refused with costs.

Associate:

Dated:    17 March 2015