FEDERAL COURT OF AUSTRALIA SZRHC v Minister for Immigration and Citizenship [2012] FCA 1086 Citation: SZRHC v Minister for Immigration and Citizenship [2012] FCA 1086 Appeal from: Application for extension of time and leave to appeal: SZRHC v Minister for Immigration & Anor [2012] FMCA 693 Parties: SZRHC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1277 of 2012 Judge: NICHOLAS J Date of judgment: 27 September 2012 Legislation: Federal Court Rules 2011 (Cth) r 35.13 Federal Magistrates Court Rules 2001 (Cth) r 44.12(1)(a), r 44.12(2) Date of hearing: 27 September 2012 Place: Sydney Division: GENERAL DIVISION Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1277 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRHC Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 27 september 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time within which to apply for leave to appeal, and the application for leave to appeal, are dismissed. 2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1277 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRHC Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 27 september 2012 PLACE: SYDNEY REASONS FOR JUDGMENT Revised from transcript 1 Before me is an application for an extension of time to seek leave to appeal and, if leave is granted, leave to appeal, the judgment of a Federal Magistrate given on 9 August 2012. The application was required by r 35.13 of the Federal Court Rules to be filed within 14 days of the judgment being pronounced. The application now before me was filed on 29 August 2012, which was 6 days out of time. 2 When the application for an extension of time was filed the applicant indicated that he wished to have it determined on the papers. The first respondent (Minister) agreed to that course and I made a consent order providing for the filing of written submissions. Those orders were not complied with by the applicant and earlier today the Minister applied for an order that the application be dismissed on that basis. I declined to take that course but instead offered the applicant the opportunity to make oral submissions in support of his application for an extension of time. The matter was stood down until later in the day to enable that to occur, and in particular, to ensure that an interpreter was available to assist the applicant in that task. 3 The order made by the Federal Magistrate on 9 August 2012 dismissed the applicant's application for judicial review pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules). Rule 44.12(1)(a) provides that the Federal Magistrates Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) makes it clear that an order dismissing an application under r 44.12(1)(a) is interlocutory. 4 The application for judicial review was filed on 22 March 2012. It sought an order that a decision of the Refugee Review Tribunal made on 27 February 2012 affirming the decision of the delegate of the Minister not to grant the applicant a protection visa be quashed. The applicant claimed to have become involved in a commercial dispute in China which involved false accusations being made against him by his business partners and persecution by local government authorities and the judiciary. He claimed to have a well founded fear of persecution by such agencies if he was to return to China. 5 The two grounds relied upon the applicant in the application for judicial review were as follows: 1. There is a [judicial] error in my case. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria on for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. The Refugee Review Tribunal (the Tribunal) did not follow this direction. During the interview with the Tribunal, I provided evidence in the situation of communication difficulties. I speak Mandarin with strong local accent (Jiangxi accent). The Tribunal did not consider the affection of failing in communication in my case and consequently recognised the failing as inconsistent evidence (para. 70 of Decision Record). 2. There is an unfair judgement made by the Tribunal. The Tribunal questioned me about evidence about the company's registration and business agreements. This expectation was not reasonable as I was persecuted and fled from China. The documents were not accessible for me. Thus, the Tribunal examined my case unfairly. (errors in original) 6 The Federal Magistrate considered each of these grounds. As to the first of them, the Federal Magistrate found that it did not raise an arguable case for jurisdictional error. As his Honour said, the Tribunal is not bound to follow the UNHCR handbook. But having said that, his Honour noted that the Tribunal paid specific attention to general principles concerning the difficulties of proof in refugee cases. The Federal Magistrate also found that there was no support for the applicant's contention that there were interpretation difficulties at the hearing before the Tribunal. The Tribunal noted in para [24] of its reasons that when the applicant appeared at the hearing before it on 15 February 2012 to give evidence and present arguments he had the assistance of a Mandarin interpreter. Moreover, the affidavit evidence relied upon by the applicant at the hearing before the Federal Magistrate said nothing at all about any difficulties in interpretation encountered during the Tribunal hearing. 7 As to the second ground, the Federal Magistrate understood this as an expression of the applicant's dissatisfaction with the outcome of the Tribunal's decision. It was in this sense, as is apparent from the Federal Magistrate's reasons, that his Honour understood the applicant to be asserting that the hearing before the Tribunal was unfair. It is also apparent that there was no evidence before his Honour which could support an allegation that there was procedural unfairness of any kind. 8 His Honour was not persuaded that the applicant had advanced an arguable case of jurisdictional error by the Tribunal. Accordingly, he dismissed the application for judicial review pursuant to r 44.12(1)(a). 9 In this Court, the applicant seeks both an extension of time and leave to appeal so that he may raise two grounds of appeal. They are as follows: 1. The Refugee Review Tribunal (RRT) made an error of law from a denial of natural justice in my case. The evidence was negligently ignored by RRT and the FMC. I am under the serious risk of persecution. 2. The FMC did not consider my situation. I fled from China and my whole family experienced fear and threat. There have been persecutions happening to me and my family since the day we pursuing justice in China. (errors in original) 10 Ground 1, insofar as it asserts there was a denial of natural justice before the Tribunal, was not an allegation made, at least not in terms, before the Federal Magistrate. It is true that the applicant asserted that there was unfairness, but this was largely of an unspecified kind and, as his Honour found, there was nothing before him to support a claim that there had been a denial of natural justice in this case. The balance of ground 1 really reflects a dissatisfaction with the Tribunal and the Federal Magistrate's treatment of the evidence. I am not satisfied there is any substance to ground 1. 11 Ground 2 asserts the Federal Magistrate did not consider the applicant's situation. This allegation is also taken up in the supporting affidavit that is relied upon by the applicant, in which it is asserted that the Federal Magistrate did not fairly consider all the information provided by the applicant. There is no substance to this allegation. It is apparent from the Federal Magistrate's reasons that he gave detailed consideration to the applicant's application for judicial review and that he gave the applicant ample opportunity to satisfy the Federal Magistrate that there was some arguable basis for finding jurisdictional error in this matter. 12 The supporting affidavit also includes an allegation that the Tribunal was biased against the applicant. That is not an allegation that was made below, and it is therefore not one that would be entertained in this Court given that there was, and remains, no evidence of bias. 13 I agree with the Federal Magistrate that the grounds specified in the applicant's application for judicial review did not raise any arguable case of jurisdictional error. I am also satisfied that his Honour was entitled to dismiss the application for judicial review for the reasons he gave. His Honour's judgment does not reflect any misunderstanding of the facts or any error of principle. 14 I will make the following orders: (a) The application for an extension of time within which to apply for leave to appeal, and the application for leave to appeal, are dismissed. (b) The applicant is to pay the first respondent's costs of the application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 15 October 2012