SZHWJ v Minister for Immigration and Citizenship [2007] FCA 1424

FEDERAL COURT OF AUSTRALIA

SZHWJ v Minister for Immigration and Citizenship [2007] FCA 1424

SZHWJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1015 OF 2007

GRAHAM J

13 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1015 OF 2007

BETWEEN: SZHWJ

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 13 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The names of the respondents be changed to read 'Minister for Immigration and Citizenship' and 'Refugee Review Tribunal'. 2. The application for extension of time to file and serve a Notice of Appeal be dismissed. 3. The applicant pay the costs of the respondent Minister 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 1015 OF 2007

BETWEEN: SZHWJ

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 13 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 What is before the Court is an application for an extension of time within which to bring an appeal from a judgment of a Federal Magistrate delivered on 31 August 2006. In accordance with Order 52 rule 15(1) of the Federal Court Rules ('the Rules'), the time limit for bringing such an appeal is 21 days after the date the judgment was pronounced. 2 No Notice of Appeal was filed by the applicant within the requisite 21 day period. Accordingly, to enable an appeal to be brought it has become necessary for the applicant to bring the current application for an extension of time. 3 As the application was not brought until after the 21 day period had expired, it has become necessary for the applicant to demonstrate 'special reasons' as to why leave to file and serve a Notice of Appeal should now be granted. 4 The applicant is a national of the People's Republic of China. He was born on 20 January 1955. He arrived in Australia on 14 April 2005. On 20 May 2005 he applied for a Protection (Class XA) visa. That application included, by way of answer to questions 40 to 44, an assertion that the applicant was a Falun Gong member who suffered persecution from the Chinese authorities because of his Falun Gong activities. 5 By letter dated 17 August 2005 the applicant was advised by the Delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs that his application for a Protection (Class XA) visa had been refused. 6 On 20 September 2005 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's Delegate's decision. By letter dated 14 October 2005 the Tribunal invited the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The appointed time and place for the hearing was 9.30 am on Wednesday, 9 November 2005 at Level 11, 83 Clarence Street, Sydney. In a 'Response to Hearing Invitation' dated 1 November 2005, the applicant advised the Tribunal that he wanted to attend the appointed hearing and needed an interpreter who could speak or interpret from the Mandarin language. On the appointed hearing date the applicant failed to attend before the Tribunal. 7 In his original application for constitutional writ relief in respect of the Tribunal's decision, filed 16 December 2005, the applicant included, as part of the grounds for his application, 'I worried about my safety so I did not attend the interview invited, as we all know that Chinese spies are everywhere in Sydney'. When the application for constitutional writ relief was before the Federal Magistrates Court the applicant informed the learned Federal Magistrate that he was 'in Canberra that day'. 8 By a decision dated 9 November 2005, which was handed down on 29 November 2005, the Tribunal affirmed the decision of the Minister's Delegate not to grant the applicant a protection visa. In the decision of the Tribunal the following appeared: '… the mere fact that a person claims to fear persecution for a particular reasons does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason/s claimed … …based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes protection obligations in Australia.' 9 The Tribunal was not satisfied that all the statutory elements of the grant of protection were made out. Accordingly the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason in the People's Republic of China. 10 It is important to remember that proceedings before the Tribunal are inquisitorial, rather than adversarial. The Tribunal Member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. 11 In a case such as that brought by the applicant under his application for review to the Tribunal, it was for him to advance whatever evidence, or argument, he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as 'the Refugees Convention') had been made out. 12 By virtue of the applicant's failure to appear before the Tribunal on the day on which and at the time and place at which he was scheduled to appear, the Tribunal was empowered by s 426A(1) of the Migration Act 1958 (Cth) to make the decision on the review which it did, without taking any further action to allow or enable the applicant to appear before it. 13 When the application for constitutional writ relief in respect of the Tribunal's decision was before the Federal Magistrates Court, consideration was given to an Amended Application of 7 March 2006. The applicant appeared in person before the learned Federal Magistrate. To use the words of the learned Federal Magistrate: '15. The Amended Application provides no clue as to how the Tribunal could have made an error in the decision where the Applicant did not attend the Tribunal and had not submitted any documentation or given any evidence other than the original protection visa application. … 18. The Applicant accepted the fact that by choosing to go to Canberra he did not attend the Tribunal hearing. …' 14 The learned Federal Magistrate considered the decision of the Tribunal to be a privative clause decision. In the circumstances no constitutional writ relief could be granted. The application for such relief was dismissed with costs. 15 The draft Notice of Appeal attached to the applicant's affidavit filed 4 June 2007 in support of an application for an extension of time in which to file and serve a Notice of Appeal from the judgment of Federal Magistrate Scarlett, said to have been given on 31 August 2005 but in fact given on 31 August 2006, states the intended grounds of appeal as: 'I lodged Protection Visa application and it was refused on 17th August 2005. Because I was in Canberra, I couldn't attend the hearing. The tribunal affirmed the decision without any further action.' 16 In his affidavit in support of the application, the applicant indicated that he had an inability to read English and that when he received 'the letter' he had to find someone to explain to him what it said and this wasted 'many, many days'. The applicant informed the Court that the letter of which he spoke, and which presumably advised him of the decision of the learned Federal Magistrate, had been received by him some time in October 2006. However, his application for an extension of time within which to file and serve a Notice of Appeal was not itself filed until 4 June 2007, almost eight months later. I am not satisfied that the applicant has satisfactorily explained his delay in instituting an appeal. 17 The applicant has certainly failed to demonstrate that there is any merit in the case which he would wish to advance on the hearing of an appeal to justify a grant of an extension of time within which he may file and serve a Notice of Appeal. 18 Accordingly, I order that the application for extension of time to file and serve a Notice of Appeal be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.