SZLNL v Minister for Immigration & Citizenship [2008] FCA 869

FEDERAL COURT OF AUSTRALIA

SZLNL v Minister for Immigration & Citizenship [2008] FCA 869

Federal Court Rules O 52 r 15(2) Federal Magistrates Court Rules 2001 r 44.12(1)(a), r 44.12(2) Migration Act 1958 (Cth) s 424A Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 SZLNL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 231 OF 2008

BUCHANAN J

11 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 231 OF 2008

BETWEEN: SZLNL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 11 JUNE 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The application for leave to appeal is 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 NSD 231 OF 2008

BETWEEN: SZLNL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 11 JUNE 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 This judgment deals with an application for leave to appeal against an interlocutory judgment of the Federal Magistrates Court of Australia ('the FMCA') (SZLNL v Minister for Immigration and Anor [2008] FMCA 72). The application for leave to appeal was filed out of time. No application for an extension of time was made. In any event there are no prospects of success on an appeal and leave to appeal should not be granted. 2 The applicant is a citizen of the People's Republic of China who most recently arrived in Australia on 16 March 2007. On 22 March 2007 the applicant lodged an application for a Protection (Class XA) visa. A delegate of the first respondent refused the application for a protection visa on 14 May 2007. On 18 June 2007 the applicant applied to the Refugee Review Tribunal ('the RRT') for a review of the delegate's decision. The RRT conducted an oral hearing on 28 August 2007. During the hearing the RRT identified a number of difficulties with the applicant's claims. She had earlier entered Australia on 26 April 2006 and then returned to China on 2 May 2006. She claimed that prior to this she had been arrested and mistreated because of her involvement in China in Falun Gong. However the applicant told the RRT that when she returned to China in May 2006 she was not in any danger because she had given an undertaking not to involve herself any further in Falun Gong. She explained her claim for a protection visa in March 2007 on the basis that she had secretly returned to China with a copy of the Nine Commentaries which she proceeded to distribute but that her activities were discovered and she was told by a relative she was likely to be arrested. The RRT did not believe her. 3 The RRT in its decision said: 'Considered collectively, the unsatisfactory nature of the applicant's evidence in the ways outlined above lead the Tribunal to reject the applicant's claim that she distributed copies of the Nine Commentaries in China; that these actions were discovered by the authorities and that she faces arrest for these actions on her return to China.' 4 Another issue which arose concerned the reliability of her evidence in other respects. Her passport indicated that she had entered Samoa but the applicant denied that she had ever been to Samoa and said that the entry stamp had been put in her passport by somebody in China in return for a payment. 5 In a decision handed down on 11 October 2007 the RRT the affirmed the decision of the delegate to refuse the applicant a protection visa. 6 On 19 October 2007 the applicant sought judicial review of the RRT's decision in the FMCA. The application is expressed in the following way: '(a) We are citizens of China. If we back to our country, we will be risk of suffering persecution; within the meaning of the 1951Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees. (b) Member of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided. (c) The Tribunal failed to comply with its obligations under s424A of the Migration Act 1958 (Cth). Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in our protection, which information was not provided to the applicants in accordance with s424A. (d) Member of the Tribunal failed to understand my claims and failed to consider relevant matters, further particulars to be provided; (e) The respondent refused to grant our protection visa without any proper grounds and proper investigation; (f) The decision made by the tribunal is illogical.' 7 The FMCA found the applicant's claims to be unarguable. The Federal Magistrate said that there was no substance in the allegations that the RRT did not consider the information before it and the applicant's claims, no substance in a contention that the RRT had failed to comply with s 424A of the Migration Act 1958 (Cth) by not disclosing matters to the applicant which might be used adversely to her and no substance in a contention that the RRT arrived at its decision 'without any proper grounds and proper investigation'. 8 The application for judicial review was dismissed under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001. Rule 44.12(2) of the Federal Magistrates Court Rules 2001 provides that dismissal of an application to show cause pursuant to rule 44.12(1)(a) is an interlocutory decision (see also Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17] and SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6] and the cases there cited). Leave to appeal against the judgment of the FMCA is therefore required and has been sought by the applicant. 9 The grounds upon which leave to appeal is sought are expressed as follows: '1. The Tribunal member failed to understand my claims and failed to consider relevant matters. 2. The Tribunal there was no evidence or the other materials to justify the making of the decision. [sic] 3. The respondent refused to grant my protection visa without any proper grounds and proper investigation.' 10 In an affidavit filed in support of the application for leave to appeal the applicant said the following: '1. I am a citizen of the People's of China (the PRC), I claimed to fear persecution from the the [sic] PRC authorities as a Falun Gong practitioner. I practised Falun Gong in 1998 and become a Falun gong practitioner. Following the crackdown on Falun gong in 1999, I was detained and tortured by the authorities in 2001.' 11 At the hearing of the appeal I drew to the applicant's attention the need to seek an extension of time in which to seek leave to appeal and asked her if she wished to make such an application. She said she did. Order 52 rule 15(2) of the Federal Court Rules requires that an applicant for an extension of time show 'special reasons' why an extension of time to file an appeal should be granted. I asked her why she had not filed her application in the time required. Her response was that she had a heart disease, her health was poor and she always feels terrible. Nothing of this kind appears from the earlier record. It does not explain the fact that the application for leave to appeal was filed out of time rather than within time. Even accepting the applicant's assertions at face value, and ignoring the fact that there was no other support for them, her explanation could not, in the circumstances, amount to a special reason to grant an extension of time. 12 In any event, I would not grant leave to appeal. The proposed grounds of appeal are identical to those which were advanced before the FMCA. I agree with the Federal Magistrate that they are without substance and have no prospects of success if leave to appeal was granted. At the hearing of the appeal I invited the applicant to tell me why leave to appeal should be granted. She had not, as directed, filed any written submissions dealing with this issue. Her responses were to the effect that the FMCA had dealt only with legal issues and failed to deal with her case 'comprehensively'. She said the RRT findings were wrong and re-asserted her claim to be a Falun Gong practitioner. The factual assessment of such matters is not within the province of this Court or the FMCA. She also complained that the case of a similar applicant had been remitted by the FMCA to the RRT and obviously felt she should have the same outcome. That other case was apparently also rejected by the RRT. Necessarily, the FMCA was satisfied some jurisdictional error had been committed in the other case but that cannot assist the applicant in the present case. I am satisfied that the applicant is unable to identify any jurisdictional error in the decision of the RRT and the grant of leave to appeal would be futile. 13 In the circumstances the appropriate course is simply to dismiss the application for leave to appeal filed by the applicant. It is appropriate to dismiss it with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.