FEDERAL COURT OF AUSTRALIA SZUJJ v Minister for Immigration and Border Protection [2017] FCA 137 Appeal from: SZUJJ v Minister for Immigration & Anor [2016] FCCA 2243 File number: NSD 1667 of 2016 Judge: MARKOVIC J Date of judgment: 21 February 2017 Catchwords: MIGRATION – application for extension of time and leave to appeal – application dismissed Legislation: Migration Act 1958 (Cth) Federal Circuit Court Rules 2001 (Cth) Federal Court Rules 2011 (Cth) rr 35.13(a), 35.14 Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Deighton v Telstra Corporation Ltd [1997] FCA 1568 Gallo v Dawson (1990) 93 ALR 479 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 Date of hearing: 21 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms W E Warner Knight, Australian Government Solicitor Counsel for the Second Respondent The second respondent filed a submitting notice, save as to costs. ORDERS NSD 1667 of 2016 BETWEEN: SZUJJ Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MARKOVIC J DATE OF ORDER: 21 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) MARKOVIC J: 1 Before me is an application for extension of time to seek leave to appeal from the interlocutory orders and judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 19 August 2016: SZUJJ v Minister for Immigration & Anor [2016] FCCA 2243 (SZUJJ). The Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the second respondent (Tribunal) dated 17 April 2014. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Visa). 2 The applicant's judicial review application was dismissed by the Federal Circuit Court at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). A dismissal under r 44.12(1)(a) is interlocutory: r 44.12(2) FCC Rules. Accordingly, the applicant requires leave to appeal from the judgment and orders made in SZUJJ. 3 Rule 35.13(a) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) requires an application for leave to appeal to be filed within 14 days after the date on which the judgment was pronounced or the order was made. That is, the applicant was required to file her application for leave to appeal by 2 September 2016, which she failed to do. The applicant filed her application for leave to appeal and extension of time on 27 September 2016. Accordingly, the applicant requires an extension of time to seek leave to appeal: r 35.14 Federal Court Rules. background 4 The applicant is a citizen of China who arrived in Australia on 6 June 2013 on a visitor visa. She applied for the Visa on 4 July 2013. 5 The applicant claimed to fear persecution in China because of her Falun Gong practice and association with Falun Gong practitioners. She claimed that: (1) through her parents' contacts she met a person who talked about Falun Gong. Her parents were not in good health so they joined the group to exercise and, under their influence, she also began to practise Falun Gong; (2) the applicant claimed that, as her parents were spreading Falun Gong, the government began to pay them attention. Because her parents feared this would affect the applicant's studies they sent her to study in Shenyang and to live with her aunt. Thereafter she lived and worked in Beijing as an office clerk; (3) the applicant was told by the family's lawyer that, because her parents had organised Falun Gong, they were sentenced to three years' imprisonment and that, because she also practised Falun Gong, she should not return home, although she had intended to introduce her parents to her new boyfriend. Accordingly, she stayed in Beijing; (4) in September 2012 the applicant's boyfriend asked her to enrol in a preparation class for a master's degree in tourism management at Beijing Union University. While she was studying she met a Falun Gong enthusiast, they became good friends and, as a result of this friendship, she understands Falun Gong deeply; and (5) she exercised secretly but because her boyfriend had seen what happened to her parents and he feared she would be persecuted she did not do the exercises precisely. 6 On 10 December 2013 a delegate of the Minister refused to grant the applicant the Visa. The applicant then applied to the Tribunal for review of the delegate's decision. She appeared before the Tribunal on 4 April 2014 to give evidence and present arguments and on 17 April 2014 the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant the Visa. the Tribunal decision 7 The Tribunal was satisfied that the applicant was a national of China and assessed her claims against that country. The Tribunal had concerns that the applicant was being evasive and, on occasions, clearly appeared to be avoiding answering its questions. 8 The Tribunal asked the applicant about her passport. She confirmed it was a genuine passport obtained in February 2013 from the Public Security Bureau in Chongqing and that she had previously held another passport which she thinks she obtained in 2011 but which she lost. The Tribunal noted that this was inconsistent with her written claims that she had been contacted by the family's lawyer, who informed her that because her parents had organised Falun Gong they were imprisoned and because she is a Falun Gong practitioner she should not return home. The applicant said she applied for the passport in Chongqing but then returned to Beijing and the Public Security Bureau sent the passport to her. 9 The Tribunal also asked the applicant about her Falun Gong practice and that of her parents. The Tribunal noted that her evidence on those topics was vague and that her evidence about her Falun Gong practice and knowledge was highly unpersuasive and lacking in the detail which it considered reasonable to expect of a genuine Falun Gong practitioner. The Tribunal did not accept that the applicant had knowledge of the Falun Gong book, Zhuan Falun, an important text for Falun Gong practitioners and, although the applicant claimed that she had been practicing Falun Gong for some years, found that she did not know the names of the exercises. When the Tribunal asked the applicant about her Falun Gong practice in Australia, she: (1) informed the Tribunal that she started practising in June or July 2013 and that in July 2013 she went to a place in Hurstville every day but that she had not done that since then; (2) said that while she said she read the book about Falun Gong, she did so irregularly; and (3) was unable to demonstrate the exercises, provide their names or the verses recited before the exercises are undertaken. 10 The Tribunal concluded that the applicant's evidence was not credible and that it was not satisfied the applicant was a witness of truth. The Tribunal considered that the applicant had manufactured the totality of her claims about her parents, her Falun Gong practice and her fear of harm in China. It did not accept that the applicant was or ever had been a Falun Gong practitioner or that her parents ever practiced Falun Gong in China. Nor did the Tribunal accept that the applicant's parents were in prison because of Falun Gong practice, that the applicant had ever participated in any Falun Gong related conduct in China, that she had practised or intended to practise Falun Gong in Australia or would seek to do so if she returned to China. 11 Thus the Tribunal was not satisfied that there was a real chance the applicant would suffer harm if she returned to China now or in the reasonably foreseeable future. Having regard to all of the evidence, it was not satisfied that the applicant had a well founded fear of persecution because of her religion, political opinion or imputed political opinion or for any other Convention reason should she return to China now or in the reasonably foreseeable future. 12 The Tribunal also considered the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) and, in light of its findings, was not satisfied that the applicant would suffer significant harm for any reason on her return to China. It was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa). proceeding before the Federal Circuit Court 13 The applicant raised two grounds of review in her application to the Federal Circuit Court which are recorded at [10] of SZUJJ as follows: 1. RRT in unfair. By asked me about my work status and my China address are not related to my Protection application. RRT should not be unsatisfied my credibility, because of I didn't provide my work status and China address. 2. As a Fulun Gong practitioner, once I come back to China, they will persecute me not matter I am a senior practitioner or junior practitioner. (errors in original) 14 In relation to the first ground the primary judge observed that the nature of the unfairness alleged was not clear on the face of the application, nor had it been clarified or explained at the hearing, but that it appeared to be an assertion that the questions asked of the applicant by the Tribunal concerning her work in Australia and her addresses in China: unreasonably put her in a bad light; or were questions which the law otherwise required not to be asked because the answers to those questions could have no proper relevance to the Tribunal's review. 15 The primary judge noted that the applicant did not attempt to make an argument to the effect of the latter characterisation of her claim and that, in any event, he did not think that such a characterisation would be arguable because the Tribunal is entitled to ask questions which elucidate the claims before it even if the answers put an applicant's credibility into question. The primary judge found that the questions that were asked by the Tribunal were of that nature: SZUJJ at [12]. 16 The primary judge also held that the former characterisation of the claim was not arguable because it disputed a tribunal's ability to consider an applicant's credibility and to ask questions relevant to that consideration, which the Tribunal was entitled to do: SZUJJ at [13]. 17 The primary judge then considered ground 2, noting that it was no more than an invitation to the court to undertake merits review, which it was not empowered to do. Consequently the primary judge found that ground was not arguable: SZUJJ at [14]. 18 The primary judge concluded that the applicant had not demonstrated that she had an arguable case for the relief she claimed and dismissed the applicant's application pursuant to r 44.12 of the FCC Rules: SZUJJ at [15]-[16]. the application for an extension of time and leave to appeal 19 By her application filed on 27 September 2016 the applicant applies for an extension of time to seek leave to appeal and for leave to appeal from the whole of the judgment in SZUJJ. The grounds of the application are, as written: 1. I called the Federal Court of Australia in NSW on 06/09/2016 three times regarding my application; an officer told me that everything was alright. 2. I receive sealed applications with file number NSD1504/2016. 3. Federal Court of Australia should approve this extension of time as it was not my fault. 20 The application annexes a draft notice of appeal which includes three grounds of appeal in the following terms: 1. The Refugee Review Tribunal (RRT) made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT. 2. I did not receive any decision report after Federal Circuit Court interview; in that case Federal Circuit Court should remit my case back to RRT. 3. The Federal Circuit Court did not consider my situation 21 The application was accompanied by an affidavit affirmed by the applicant on 21 September 2016 on which she relies. In that affidavit the applicant states: My application for a protection visa was refused by DIBP and RRT. I lodged my application to be reviewed at Federal Circuit Court. The judge did not consider my case fairly. 22 The applicant did not file any written submissions in support of her application. When invited to make submissions at the hearing she informed the Court that she had written down her grounds of appeal and submitted them. She said that she was told by the Court that she or they "got it wrong" and that she had to submit it again. Those matters go to the reason for the delay. The applicant did not wish to make any further submissions, in particular about the merits of the proposed grounds of appeal. legal principles 23 As noted above, r 35.13 of the Federal Court Rules requires an application for leave to appeal to be filed within 14 days after the date on which judgment was pronounced or the order was made. The applicant's application was filed 39 days after the orders from which the applicant seeks leave to appeal were made. The applicant thus needs an extension of time of 25 days. 24 The purpose of the discretion to extend time is to enable the Court to do justice between the parties. In Gallo v Dawson (1990) 93 ALR 479 McHugh J, in considering an application for extension of time to file a notice of appeal under O 60, r 6 of the rules of the High Court, observed that: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties… This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time… When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal… It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted… 25 The likelihood of leave to appeal being granted and the reasons for the delay are relevant considerations for the purpose of an application for extension of time: Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] (per Lindgren J); Deighton v Telstra Corporation Ltd [1997] FCA 1568 (per Lee, Heerey and Nicholson JJ). 26 In relation to an application for leave to appeal, an applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Explanation for the delay 27 The applicant's affidavit filed in support of the application does not, as required, set out why the application for leave to appeal was not filed within time. However, the application itself refers to the applicant making three calls to the registry of this Court on 6 September 2016 and subsequently receiving a sealed application bearing file number NSD1504/2016. The Minister submitted that this explanation is consistent with the fact that the Court initially mistakenly accepted the applicant's proceeding as an appeal on 7 September 2016. Had the applicant not required leave to appeal, she would have been within time to commence an appeal on that date. 28 Given that the applicant is unrepresented I would accept that this constitutes a reasonable explanation for the delay. But, as the Minister submitted, there is no utility in granting an extension of time for leave to appeal. This is because of the view I have come to in relation to the issue of prospects of success of the proposed appeal. prospects of the appeal 29 In the first ground of her notice to appeal, the applicant asserts that the Tribunal made an error of law and that she is under serious risk of persecution, which was "undervalued" by the Tribunal. This ground appears to re-agitate the second ground raised before the primary judge. As his Honour correctly observed, this complaint is no more than an invitation to the Court to reach a different finding on the merits. Ground 1 of the draft notice of appeal does not identify any appellable error in the reasons for judgment of the primary judge nor any jurisdictional error on the part of the Tribunal. 30 In the second ground of the draft notice of appeal the applicant asserts that she did not receive a written copy of the judgment of the Federal Circuit Court and for that reason the Federal Circuit Court should remit her case to the Tribunal. This is not a proper ground of appeal. It does not identify any error in the primary judge's judgment. It may be an attempt to explain the applicant's delay in filing her application for leave to appeal but it does not raise an arguable ground of appeal. 31 Ground 3 in the draft notice of appeal contends that the Federal Circuit Court did not consider the applicant's situation. Once again, this appears to be an attempt at merits review. The primary judge correctly identified at [14] of SZUJJ that the court is not empowered to reach a finding on the merits of the applicant's protection visa application different to that of the Tribunal. As the Minister submitted, the merits of a case, including matters of weight to be given to evidence and issues of credibility, are for the Tribunal, not the court, to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292. 32 To the extent that the applicant alleges by ground 3 that the primary judge did not consider her grounds of review, that does not raise an arguable ground of appeal. The applicant raised two grounds of review in her application to the Federal Circuit Court, both of which were considered by the primary judge and dismissed. 33 In my opinion, the proposed appeal has no prospects of success. Accordingly, the applicant has failed to demonstrate that there is sufficient doubt about the correctness of the judgment below to warrant its review and that, if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were refused. It would thus be futile to grant an extension of time for leave to appeal. conclusion 34 In light of the matters set out above I will make the following orders: (1) the application for extension of time and leave to appeal filed on 27 September 2016 be dismissed; and (2) the applicant pay the first respondent's costs as agreed or taxed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate: Dated: 2 March 2017