SZIVV v Minister for Immigration & Citizenship [2007] FCA 221

FEDERAL COURT OF AUSTRALIA

SZIVV v Minister for Immigration & Citizenship [2007] FCA 221 SZIVV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1758 OF 2006

DOWSETT J

23 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1758 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIVV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 23 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Refugee Review Tribunal be joined as second respondent and that the existing respondent become the first respondent. 3. The name of the first respondent be amended to "Minister for Immigration and Citizenship". 4. The appellant pay the first respondent's costs of the appeal. 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 1758 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIVV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 23 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a federal magistrate, exercising jurisdiction conferred by s 476 of the Migration Act 1958 (Cth) (the "Act"). The first respondent (the "Minister") has given notice of objection to competency of the appeal upon the ground that the decision was an interlocutory decision, and that leave to appeal is necessary. That submission appears to be correct, but in the circumstances of this case, if the appellant were to demonstrate a viable ground of appeal, I would have no hesitation in granting such leave. It is therefore appropriate that I address the substantive merits. 2 The appellant arrived in Australia on 24 January 1998, and on 9 March 1998, applied for a protection visa. A delegate of the Minister declined the application, and the appellant sought review of that decision by the second respondent (the "Tribunal"). Broadly speaking, the appellant claimed that as a university student, he had taken part in the pro-democracy movement in China in 1989. He joined the Freedom Society Committee, which aimed to disclose the corrupt activities of government officials. Five members of the group were arrested, tortured and imprisoned, but the appellant escaped and hid. Two members of the group were sentenced to death. To escape a similar fate, the appellant travelled to Australia via Hong Kong. 3 The Tribunal examined his claims but found itself unable to accept them as reliable. On that basis the application was refused. The decision was dated 20 January 1999. A letter bearing that date was despatched to the appellant, notifying him of the decision. The appellant took no further step in connection with his application for a protection visa until 16 May 2006, when he applied in the Federal Magistrates Court for review of the Tribunal's decision. 4 As a result of amendments made to the Act in 2005, any such application had to be made within 28 days of actual notification of the decision, or within a further period of 56 days, provided that an application for extension of time was made within 84 days of such notification. Where actual notice was given prior to 1 December 2005, the date of such notification is taken to be 1 December 2005. Thus, subject only to the question of whether the appellant had received notice prior to that date, he had until 23 February 2006 to make his application. The federal magistrate found, as a matter of fact, that the appellant had received actual notice prior to 1 December 2005. If that finding stands, then the magistrate had no jurisdiction to hear the application. This was the basis upon which the magistrate disposed of the matter. 5 In his notice of appeal, the appellant does not address the question of time. He asserts in par 6 that: 'Regarding to other issues raised from the Tribunal's decision, it is obviously ill-founded without any substantial evidences excepting it is erroneous findings based. It's [sic] poor knowledge and understanding about membership of a particular social group and political opinion activities and organisation in china.' 6 Other grounds include error of law and jurisdictional error by the Tribunal. Those grounds could not have been addressed by the magistrate in view of his finding as to jurisdiction. I do not read par 6 as challenging the finding of fact as to actual notification of the Tribunal's decision. The final sentence of the paragraph demonstrates that it is dealing with the adverse finding of fact concerning the appellant's claim to be a refugee. Before me, the appellant provided a further outline of argument, but there is no suggestion of an appeal against the finding as to actual notification. 7 I have explained the position to the appellant and have indicated to him that it is open to him to apply to amend his notice of appeal to challenge the finding of fact. I have also indicated to him that I would be minded to allow such an application only if he explained why he had not raised the issue at an earlier stage and demonstrated that he had a viable ground of appeal. If there were any reason to suspect that the finding could be successfully challenged, I would consider referring this matter for pro bono assistance. However I have perused the magistrate's reasons in which he considered various relevant documents and oral evidence given by the appellant. He was clearly unimpressed by the appellant as a witness. Although I consider that drawing an inference as to receipt of a document prior to a particular date, in a case such as this, is a difficult matter, I conclude on the evidence as recorded by the magistrate that the finding was reasonably open to him. 8 Had I examined the transcript of evidence, I might have identified some issue which would assist the appellant, but that is not my job. The possibility that anything would emerge is a bare possibility. The finding, as I have said, appears to have been reasonably open, particularly given the magistrate's view of the appellant as a witness. Further, his evidence must be seen in context of the fact that he took no step in the proceedings until 2006, notwithstanding the fact that his application to the Tribunal was heard in 1999. It is very difficult to accept that he would have waited all that time, without making inquiry. 9 The appellant has not demonstrated any viable ground of appeal. In those circumstances, there is no basis for allowing him to amend, assuming that he were to seek to do so. Further, no point would be served by giving him leave to appeal. In those circumstances the appeal must be dismissed. 10 I order that the Refugee Review Tribunal be joined as second respondent and that the existing respondent become the first respondent. I order that the name of the first respondent be amended to "Minister for Immigration and Citizenship". The appeal is dismissed. I order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.