SZJFW v Minister for Immigration and Citizenship [2007] FCA 1795

FEDERAL COURT OF AUSTRALIA

SZJFW v Minister for Immigration and Citizenship [2007] FCA 1795

SZJFW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1721 OF 2007

LANDER J

16 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1721 OF 2007

BETWEEN: SZJFW

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LANDER J

DATE OF ORDER: 16 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant's application for an extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the first respondent's 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 NSD 1721 OF 2007

BETWEEN: SZJFW

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LANDER J

DATE: 16 NOVEMBER 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 an order of a Federal Magistrate made on 2 August 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 June 2006 and handed down on 20 July 2006. 2 The applicant filed his application in this Court for an extension of time on 28 August 2007. Accompanying the application was an affidavit annexing a draft notice of appeal. In that affidavit the applicant claims that the notice of appeal was not filed in time because he did not receive the judgment of the Federal Magistrate until 23 August 2007. In the draft notice of appeal the applicant largely reasserts his grounds advanced before the Federal Magistrate. He gives no explanation as to why he did not receive the judgment of the Federal Magistrate until 23 August 2007. 3 The applicant ought to have filed his notice of appeal within 21 days of the date when the judgment was pronounced: O 52 r 15. Thus it is that the applicant needs an extension of time within which to file the notice of appeal. The applicant would be entitled to an extension of time if special reasons exist: O 52 r 15(2). In determining whether special reasons exist regard needs to be had to the explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the appeal. 4 The applicant has given an explanation for the delay, although he has not given any explanation as to why he did not receive the judgment until 23 August. The delay itself is not long. It is unlikely that the Minister would suffer any prejudice if an extension of time were granted and no prejudice was advanced. Thus it is that the success or otherwise of this application depends upon a consideration of the prospects of the appeal succeeding. 5 The applicant is a citizen of the People's Republic of China who arrived in Australia on 10 November 2005. On 23 November 2005 the applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the first respondent refused the application for a protection visa on 20 February 2006. On 22 March 2006 the applicant applied to the Tribunal for a review of that decision. 6 The applicant claimed to have a well-founded fear of persecution due to his Christian religion. He began to practise Christianity in October 2002. On 1 January 2003 he and a friend were baptised. He belonged to a group which itself belonged to the underground church, not the official church. In April 2004 police found religious propaganda at the factory of the lady who had introduced him to the Christian religion. The lady and two of her employees were arrested. Soon after, he and his friend were detained due to his relationship with that lady. He claimed to have been detained for his involvement in a Christian church and detained for three months, during which time he was mistreated both physically and mentally and forced to do hard labour. He claimed that after his release he was continuously troubled by the Public Security Bureau and he was questioned and interrogated. Eventually, he thought it was safe to restart the group to strive for genuine religious freedom and independent religious practise in China. After restarting the group and distributing propaganda the applicant feared he would again be arrested and fled the country. 7 He said that the Public Security Bureau began investigating the group from around October 2005 and so on 9 October 2005 he escaped China. Soon after leaving, his friend and seven or eight other members of their group were arrested by the Public Security Bureau who learnt thereby that he was a key organiser of the group. His home was searched and his father questioned. He claimed that he would be persecuted if he were obliged to return to China. 8 The Tribunal found that the applicant was not a credible witness and was not a Christian and therefore not subject to any persecution from the Chinese authorities. The Tribunal found that the applicant's evidence was contrived, recited and inconsistent. Indeed, it found that the applicant changed his evidence as he went along. It found that the applicant lacked knowledge of the Christian religion. In particular, it found that the applicant did not know of the significance of Christmas and was vague about the Christian celebration of Easter. It noted that originally the applicant claimed that the apostle Paul wrote the Bible and later said that it had been written by more than one person and was granted by God. For those reasons, the Tribunal disregarded the evidence of the applicant's attendance at a Christian church in Sydney under s 91R(3) of the Migration Act 1958 (Cth) (the Act). 9 The Tribunal said that, individually, each of the matters to which it referred would not have led the Tribunal to draw an adverse conclusion about the applicant's credibility but, collectively, it pointed to such a finding. The Tribunal found that the applicant did not become a Christian in China as he claimed. 10 On 18 August 2006 the applicant applied to the Federal Magistrates Court for a review of the Tribunal's decision. In his amended application filed on 12 January 2007, the applicant claimed that the Tribunal made a jurisdictional error and breached natural justice, in particular, because the Tribunal breached s 424A; breached s 425 of the Act and was impliedly biased; and identified a wrong issue, ignored relevant material or made a mistake in relation to a finding of fact. 11 Her Honour found that there was no s 424A requirement imposed upon the Tribunal because the Tribunal's decision was based on information given to the Tribunal by the applicant, which was not information for the purpose of s 424A(1). The country information relied upon by the Tribunal also did not have to be disclosed: s 424A(3)(a). Her Honour also rejected the claim of breach of s 425, finding that the Tribunal raised issues relating to credibility with the applicant and gave him the opportunity to respond to those issues. 12 The Federal Magistrate found that bias was not established on the Tribunal's account of what occurred. The Federal Magistrate rejected the claim that the hearing before the Tribunal was a mere formality or carried out perfunctorily. Her Honour found that the claim of bias was an un-particularised description of what may constitute jurisdictional error and was not established. Her Honour noted that the finding in relation to s 91R(3) was open to the Tribunal and was made only after the Tribunal considered the applicant's claims relating to persecution by reason of his religion in China. Further, her Honour found that the finding on credibility was open to the Tribunal on the evidence. 13 The applicant contended before the Federal Magistrate that the Tribunal should have made further inquiries but her Honour found that there was no obligation imposed upon the Tribunal to do so and the Tribunal gave the applicant the opportunity to make his own case. The Federal Magistrate therefore found no jurisdictional error and dismissed the application for judicial review. If an examination of the Federal Magistrate's reasons or the Tribunal's reasons discloses an arguable case of error on the part of the Federal Magistrate or an arguable case of jurisdictional error on the part of the Tribunal, it would be appropriate to extend the time within which the applicant has to file his notice of appeal. 14 However, nothing has been put today which would indicate error on the part of the Federal Magistrate nor has anything been put which would disclose jurisdictional error on the part of the Tribunal. The grounds of appeal raise the same issues which were before the Federal Magistrate and with which the Federal Magistrate dealt comprehensively. The affidavit accompanying the application for an extension of time merely repeats the claims that were made to the Federal Magistrate. The applicant's review before the Tribunal failed because the Tribunal was not satisfied that the applicant was ever an adherent to the Christian faith whilst in China. That finding having been made, the applicant's case could not succeed before the Tribunal because none of his further complaints based upon his claim that he was a Christian could have been accepted. 15 On this hearing today the applicant has again expressly alleged bias on the part of the Tribunal, in addition to the grounds raised in the notice of appeal. The applicant supports his application only by reference to the written reasons for the Tribunal's decision. In my opinion, there is nothing in the written reasons which would indicate either actual bias or any apprehension of bias which would support the claim made by the applicant. Bias, of course, is a serious allegation and must be supported by appropriate particulars. Because the written reasons do not indicate any bias or any apprehension of bias, it would be inappropriate for the Court to find that the administrative decision maker had not acted in good faith: SBBS v The Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749. I specifically refuse to make that finding. 16 In my opinion, there is no prospect that the applicant's appeal, if allowed to proceed, would succeed. In those circumstances, it would be appropriate to refuse to extend the time for the applicant to lodge the notice of appeal. Accordingly, I make the following orders: 1. The applicant's application for an extension of time to file and serve a notice of appeal be dismissed. 2. The applicant pay the first respondent's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.