SZGUM v Minister for Immigration and Citizenship [2007] FCA 131

FEDERAL COURT OF AUSTRALIA

SZGUM v Minister for Immigration and Citizenship [2007] FCA 131 SZGUM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2125 OF 2006

BESANKO J

16 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2125 OF 2006

BETWEEN: SZGUM

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J DATE OF ORDER: 16 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to appeal be refused. 2. The applicant pay the first respondent's costs of the application. 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 NSD 2125 OF 2006

BETWEEN: SZGUM

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 16 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal from orders made by a Federal Magistrate. The Magistrate heard and determined an application for constitutional writs in respect of a decision of the Refugee Review Tribunal ('the Tribunal'). The Magistrate dismissed the application. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') not to grant the applicant a protection visa. 2 The Tribunal made its decision on 21 June 2005, and the Magistrate dismissed the application for constitutional writs on 7 September 2006. O 52, r 15(1) of the Federal Court Rules provides that a notice of appeal must be filed and served within 21 days of the date of judgment. The application for an extension of time and the purported notice of appeal were filed on 31 October 2006, which was 32 days after the end of the prescribed period. 3 The applicant is a citizen of the People's Republic of China. She arrived in Australia on 13 November 2004 on a subclass 676 visa which had been issued on 14 October 2004. 4 On or about 8 December 2004 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). On 16 February 2005 a delegate of the Minister refused the applicant's application. On 21 March 2005 the applicant applied to the Tribunal for a review of that decision. 5 The applicant made various claims in her application for a protection visa. She claimed that she was a Christian. She claimed that in China she was a local leader of a movement to promote religious freedom, and that she was involved in activities including group meetings and the production of leaflets. She claimed that in early 2004 she was arrested during a meeting of this movement and that she was beaten by the police, detained for 4 days, and thereafter was subject to police surveillance which prevented her from participating in religious activities. In her evidence to the Tribunal the applicant expanded on her claims about her practise of Christianity in China and Australia. She claimed that her detention came about because she was distributing literature. 6 The Tribunal accepted that the applicant was a Christian. It said that at the hearing she demonstrated a commitment to the practise of Christian beliefs in the broad sense of a belief in Jesus Christ as a redeemer, and adherence to the Bible and the practice of prayer, the avoidance of sin, and helping others. The Tribunal did not accept that the applicant was committed to a particular type of Christianity or a particular set of practices over and above what the Tribunal described. 7 The Tribunal said that the applicant seemed to claim that the authorities suspected that she, and the group she prayed with, were associated with a group known as the 'Shouters'. However, the Tribunal noted that the applicant did not consider herself to be a 'Shouter' and was not a member of the 'Shouter' sect. She was unable to give any details about the 'Shouters' other than that they shout when praying. The Tribunal did not accept that the applicant would be considered by the authorities in China as a 'Shouter'. She would not face harm by reason of imputed religious opinion, that is, as a 'Shouter'. 8 With respect to the applicant's claim that she was detained for distributing literature, the Tribunal said that it found the applicant's evidence 'confused and unconvincing'. The applicant was 'vague' in her descriptions of the literature she claimed she had been caught distributing. At one point, she described the literature as 'gospels' and, when prompted by the Tribunal, stated that they were invitations to the prayer group. The Tribunal found that the applicant was equivocal as to the manner in which the authorities dealt with her. She was unable to explain an apparent inconsistency. The Tribunal was not satisfied that the applicant did distribute literature and was detained for that reason. The Tribunal referred to country information in respect of religious freedom in China. The Tribunal concluded by saying that it did not accept that the manner and form by which the applicant practised her religion, both since her arrival in Australia and whilst in China, was such that the legal restrictions placed on the practise of religion in China had in the past, or would in the reasonably foreseeable future, infringe on the applicant's freedom to practise her religion in a way that she does in a manner or to a degree that would constitute serious harm under s 91R of the Act. The Tribunal said it was not satisfied that the applicant was required to modify the practise of her religion in the past or that, on her return to China, she would be required to modify her religious practices for fear of harm from the authorities. 9 On 20 July 2005 the applicant lodged an application in the Federal Magistrates Court for constitutional writs in respect of the Tribunal's decision. On 4 November 2005 she filed an amended application. In her amended application she claimed that the Tribunal's decision was illogical and tainted by bias, although these claims were not particularised. 10 On 27 February 2006 the applicant filed a further amended application in which she claimed that the Tribunal had failed to carry out its statutory duty in that it had acted in breach of s 424A of the Migration Act 1958 (Cth). It seems that this was the only ground she pursued when the application came on for hearing before the Magistrate. In relation to that ground the applicant claimed that: 'The Tribunal based it's [sic] findings on the information, or lack of information, contained in the Applicant's application for a visa and was required, by s 424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment on it. The Tribunal's failure to so act was a jurisdictional error.' 11 The applicant did not give particulars of the precise information she said had been used by the Tribunal as part of the reason to affirm the decision under review. The Magistrate considered whether the Tribunal had breached s 424A(1) of the Act, and found that it had not. 12 The Magistrate also considered whether the Tribunal had complied with its obligations under s 425 and 425A of the Act in relation to a letter it sent regarding a change to the time of the hearing before the Tribunal. The Magistrate held that compliance with those sections was not necessary with respect to the letter or, even if it was, that she would not exercise her discretion to grant relief in the circumstances. 13 The Magistrate found that the findings and conclusions of the Tribunal were open to it on the material before it and that its decision was not affected by jurisdictional error. She dismissed the application. 14 The applicant's draft notice of appeal to this Court contains three grounds of appeal. First, she asserts that the Tribunal failed to comply with s 424A(1) of the Act; secondly, she asserts the Tribunal failed to consider her claims and, thirdly, she asserts that the Tribunal was biased. 15 I take the applicant to be saying that the Magistrate erred in not identifying these errors and concluding that they were errors which went to the Tribunal's jurisdiction. 16 The leading authority on the circumstances in which an extension of time may be granted under O 52 r 15 is Jess v Scott (1986) 12 FCR 187. It is not necessary to set out the relevant principles as they are well known. 17 As far as the length of the delay and the applicant's explanation for the delay are concerned, the applicant's draft notice of appeal was filed some 32 days out of time. In an affidavit, the applicant states that, although she was present at the hearing before the Magistrate, she did not hear that the case had been dismissed at the hearing. She states that she waited for the decision of the Court to be posted to her, but that she did not receive it "until very very late." It is not entirely clear whether the applicant claims that the decision was not delivered to her within the prescribed period, but for present purposes I am prepared to proceed on the basis that her claim is either that she did not receive the letter within the prescribed period or, if she did receive it within the period, that she received it so late as to prevent her from filing an appeal in time. The first respondent did not apply to cross-examine the applicant on her affidavit. 18 As far as prejudice to the respective parties is concerned, on the one hand the applicant has a significant interest in pursuing the appeal and on the other, the respondent has not suggested that he would suffer any particular prejudice if I were to extend time. 19 An extension of time within which to appeal should not be granted if it is clear that there are no arguable grounds of appeal. That is the case here. It seems that the second and third proposed grounds of appeal were not argued before the Magistrate, and the first respondent submits that she should not be permitted to raise them now. I think that is right but, in any event, the applicant has not identified any point that would suggest that they are arguable. All matters raised by the applicant in connection with them relate in one way or another to the merits of the Tribunal's decision. 20 As far as the first proposed ground of appeal is concerned, the Magistrate held that there had been no failure to comply with s 424A(1) of the Act. The reason for the Tribunal's decision was the oral evidence of the applicant and that fell within the exception in s 424A(3)(b). That was the conclusion of the Magistrate and the applicant has not identified any arguable error in the Magistrate's reasoning. My own review of the papers suggests that there is none. 21 In my opinion, the proposed appeal is not arguable and, in these circumstances, the application for an extension of time should be refused. The applicant is to pay the first respondent's costs of the application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.