NANY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 428

FEDERAL COURT OF AUSTRALIA

NANY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 428

MIGRATION – application for protection visa refused – application for extension of time to file and serve notice of appeal – unsuccessful application to obtain review of the merits and factual findings of the RRT. Migration Act 1958 (Cth) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed NANY OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1234 OF 2002 BLACK CJ, BEAUMONT & MADGWICK JJ 20 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1234 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NANY OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, BEAUMONT & MADGWICK JJ

DATE OF ORDER: 20 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for extension of time to file and serve a notice of appeal be allowed. 2. The draft notice of appeal dated 17 November 2002 be treated as the appellant's notice of appeal. 3. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1234 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NANY OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BLACK CJ, BEAUMONT & MADGWICK JJ

DATE: 20 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT:

Introduction 1 The appellant is a citizen of the People's Republic of China. In evidence before the Refugee Review Tribunal ("the Tribunal") the appellant claimed in essence, that he is entitled to claim protection because he has practised Falun Gong since 1997 and, accordingly, is on the "wanted" list and, he fears, will be placed in a labour camp and will be otherwise persecuted by the Chinese authorities if he were returned to China. 2 The appellant applied to the Court on 9 July 2002 for judicial review of a decision of the Tribunal made on 30 May 2002, affirming a decision of the Minister's delegate not to grant a protection visa. 3 In his application for judicial review, the appellant's complaints about the Tribunal's decision were stated as follows: "1. The RRT found that the applicant had fabricated his identity as [name as claimed provided] from China and of his continuing problems with the authorities due to his association with Falun Dafa. In making this finding, the RRT ignored parts of the applicant's claims in the statement attached to his application for a protection visa submitted on 23 April 2001, and in his oral hearing with the RRT on 9 May 2002. In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is [name as in passport provided] rather than [name as claimed provided] and give [sic] riseto jurisdictional error. 2. The RRT has failed to accept the applicant's claim that he is a genuine Falun Gong practitioner since May 1997. The RRT's finding that any prospect of adverse attention from the authorities on the basis of this activity was remote was vitiated by jurisdictional error." 4 A Judge of the Court dismissed the application ([2002] FCA 1347) on 28 October 2002. 5 On 19 November 2002 (that is, one day after the twenty-one day period for filing a notice of appeal had expired), the appellant filed and served an application for an extension of the time to appeal. 6 The grounds for the extension application are, in essence, that although the primary Judge's reasons were given orally on 28 October 2002, the appellant had to rely on a brief explanation of them by an interpreter and that the appellant needed to see the Judge's written reasons "to prepare a thorough submission for appeal". 7 The Minister opposes the extension application contending, inter alia, that the discretion whether to extend time should be exercised adversely to the appellant on the ground (at least) that any appeal would not have any reasonable prospect of succeeding. 8 In order to understand the Minister's contention, it will be necessary to summarise both the Tribunal's and the primary Judge's reasons and then to explain the proposed grounds of the appellant's intended appeal.