SZGQM v Minister for Immigration & Citizenship [2008] FCA 899 (12 June 2008)

Last Updated: 12 June 2008

FEDERAL COURT OF AUSTRALIA

SZGQM v Minister for Immigration & Citizenship [2008] FCA 899

Federal Court Rules O 52 r 15(2)

Jess v Scott (1986) 12 FCR 187
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59

























SZGQM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 265 OF 2008

BUCHANAN J
12 JUNE 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 265 OF 2008

BETWEEN:

SZGQM Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	12 JUNE 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time 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 265 OF 2008

BETWEEN:

SZGQM Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	12 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 This is an application for an extension of time in which to appeal against a judgment of the Federal Magistrates Court of Australia (‘the FMCA’) (SZGQM v Minister for Immigration and Another [2008] FMCA 68). The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 20 June 2004 and on that day lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application on 23 July 2004. On 27 August 2004 the applicant applied for a review of the delegate’s decision to the Refugee Review Tribunal (‘the RRT’). On 17 December 2004 the RRT handed down a decision in which it affirmed the decision of the delegate to refuse the appellant a protection visa.

2 On 1 July 2005 the applicant made an application for judicial review to the FMCA. The decision of the RRT was set aside by the FMCA on 21 August 2006 and the application for review of the delegate’s decision was remitted to the RRT to be determined according to law. On 19 December 2006 the RRT, differently constituted, handed down a further decision again affirming the decision of the delegate to refuse a protection visa.

3 The applicant appeared at a hearing before the RRT on 8 November 2006. The decision of the RRT which was handed down on 19 December 2006 contains a detailed summary of the questions which were put to the applicant and his responses. The principal reason why the RRT decided the application for review adversely for the applicant was that it concluded that he was not credible and that the version of events which he had advanced in his application for a protection visa should not be accepted. A number of reasons were given by the RRT in explanation of its conclusions. They included the applicant’s inability to give satisfactory details concerning a claim that he was arrested in 1999, contradictions in his evidence and the fact that the documents provided by the applicant in support of his claim for a protection visa were virtually identical to those provided in another application for review also before the RRT.

4 On 11 January 2007 the applicant made a further application for judicial review to the FMCA. This was the application which was refused in the judgment referred to above which was delivered on 1 February 2008. The applicant was represented by counsel before the FMCA. Counsel argued that the most recent proceedings before the RRT miscarried because the inconsistencies and lack of precision in the applicant’s evidence were only of marginal relevance to his basic claims and because it was not clear that the other virtually identical statement before the RRT pre-dated the statement by the applicant. These arguments were rejected by the FMCA which concluded that there was no substance to the suggestion that the RRT had concentrated on peripheral issues and that the RRT was entitled to pay regard to the virtual identicality of statements made in two separate applications before it regardless of which might have been first provided. I should note that it was not clear from the RRT decision which statement was provided first so that the submission that the applicant was relieved from any adverse consequence if his statement was first in time was speculative in any event.

5 Order 52 rule 15(1) of the Federal Court Rules establishes a time limit of 21 days from the date of judgment in which to appeal. The applicant alleges in an affidavit filed in support of his application for an extension of time that he received the judgment on 15 February 2008. Time in which to appeal expired on 22 February 2008. The application for an extension of time was filed on 27 February 2008.

6 Order 52 rule 15(2) of the Federal Court Rules provides that a time limit in which to appeal may be extended ‘for special reasons’. The reasons given by the applicant in his affidavit are as follows:

‘6. On 20 August 2007 I appeared at the Federal Magistrates Court. After the Hearing I asked the interpreter when I could get the Order and reason for judgment, I was told they would post them to me and I only waited for them. On 15 February 2008 I got the Order and judgment. I have no money to ask solicitor to prepare my application to your Court. I asked my fellow-townsman to ask a university student to assist me for preparing my documents which took a long time. Particularly we all don’t know the time limited. So I ask you could accept my application.’

7 The Minister’s representative accepted the applicant’s statement that the decision of the FMCA was not provided to him until 14 days after the judgment was delivered. Two of the three weeks allowed to file an appeal was thereby denied to the applicant. The Minister’s representative accepted that the delay was a short one. It is clear there would be no prejudice to the Minister if an extension of time was granted. However, it was submitted that nevertheless, ‘special reasons’ had not been demonstrated and that, in any event, an extension of time should be refused because an appeal had no prospects of success.

8 A special reason is one which takes the case out of the ordinary (see Jess v Scott (1986) 12 FCR 187 at 195 and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 (‘Vu’)). I can see nothing which takes the present case out of the ordinary. Even accepting that the applicant had only one week to file an appeal the explanation in his affidavit for not doing so in time does not raise any special reason. At the hearing of the appeal the applicant said only that he ‘forgot about it’ and, despite my invitation to give some further explanation beyond the content of his affidavit, was unable to do so. The explanation which the applicant has given does not provide a reason for departing from the ordinary rule.

9 Even had a special reason been established the grant of an extension of time remains discretionary (see the reference to Jess v Scott earlier). The proposed appeal has no prospects of success. For the reasons given by Jessup J in Vu (see at [31]) the existence of apparent prospects of success may not be enough on its own to justify an extension of time. Conversely, the absence of such prospects may afford a reason to deny an extension of time even if special reasons are demonstrated (e.g. see Vu per Gyles J at [2]).

10 The decision of the RRT was not open to challenge unless the RRT committed a jurisdictional error. The grounds of appeal contained in a draft notice of appeal filed with the application for an extension of time are as follows:

‘1. When I was in China, I started to practice Falun Gong. At first the Chinese authorities allowed us to practice, but in July 1999 the Chinese authorities suddenly began to prohibit us from practice Falun Gong. From then I was persecuted by them After I came to Australia I could be free to practice Falun Gong and I have took part in a lot of activities organized by Falu Dafa Association NSW, such as the silent sitting in front of the Chinese Consulate-General of Sydney, the allies in City to protest against the persecution of Falun Gong, the allies to support the members quitting of the CCP and distributed Falun Gong leaflets to the passers-by. I think I will be persecuted if I return to China due to my activities of involving Falun gong both in China and Australia. Unfortunately The Tribunal didn’t accept all my facts so the Tribunal fell into jurisdictional error.

2. I think Federal Magistrate LlOYD-JONES affirmed the Tribunal’s decision which also fell into jurisdictional error.’

11 These draft grounds of appeal raise no case for consideration. Findings on questions of credibility are matters entrusted to the RRT. Unless such findings, when made, are liable to be set aside on the basis of identified jurisdictional error it is not the function of this Court or the FMCA to review them. In the present case the FMCA found there was no jurisdictional error. I see no reason to doubt the correctness of that finding. If an extension of time in which to appeal was granted then, it appears to me, the appeal would in any event be futile.

12 The application for an extension of time in which to appeal will be dismissed. It is appropriate to dismiss it with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 12 June 2008

The Applicant appeared in person.
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	22 May 2008
Date of Judgment:	12 June 2008