SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (13 August 2009)

Last Updated: 17 August 2009

FEDERAL COURT OF AUSTRALIA

SZMWH v Minister for Immigration & Citizenship [2009] FCA 879

SZMWH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 458 of 2009

STONE J
13 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 458 of 2009

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

JUDGE:	STONE J
DATE OF ORDER:	13 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file a notice of appeal is dismissed.
2. The applicant pay the first respondent’s costs of the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 458 of 2009

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

JUDGE:	STONE J
DATE:	13 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal to this Court from a decision of a Federal Magistrate delivered on 18 March 2009. The application was filed 21 May 2009, 43 days outside the prescribed period for filing a notice of appeal.
2. Order 52 r 15(2) of the Federal Court Rules provides that the Court may grant an appropriate extension of time if satisfied that there are ‘special reasons’ for doing so. In considering whether an extension of time should be granted the Court considers the reason for the delay, the merits of the appeal and any prejudice to the respondent that may be occasioned by allowing the appeal to be brought notwithstanding the delay; Jess v Scott (1986) 12 FCR 187. In Jess v Scott the Court held, at 195, that the expression ‘special reasons’ describes:

a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

3. The applicant is a citizen of China who arrived in Australia on 18 April 2008. On 23 April 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship. His application was refused in turn by a delegate of the first respondent and by the Refugee Review Tribunal. His application for judicial review of the Tribunal's decision was dismissed by a Federal Magistrate on 9 March 2009; SZMWH v Minister for Immigration and Citizenship [2009] FMCA 217.
4. In an affidavit filed in support of his application the applicant attributed his delay in filing a notice of appeal to his believing that the period was 28 days. This explanation would explain a delay of one week however it does not address the actual period of delay which, as noted above, was 43 days.
5. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 Wilcox J emphasised the importance of prescribed time periods, observing that:

... it is the prima facie rule that proceedings commenced outside that period will not be entertained. ... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show “an acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.

6. His Honour’s comments were endorsed by the Full Federal Court in Parker v the Queen [2002] FCAFC 133 at [6]. In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 the Full Federal Court held that an exercise of its discretion to extend the time period was not appropriate where the applicant for extension had not given a reason for delay that extended to the whole of the delay period. The Court said, at [7], that a partial explanation could not provide a sufficient explanation for the continuing delay on the part of the applicant. The same may be said of the present applicant’s partial explanation.
7. At the hearing of his application the applicant expanded his explanation slightly. He referred to his lack of English and his lack of legal knowledge. While I accept that both these factors are relevant the applicant did not provide any specific explanation of the delay or how he eventually came to make the present application. The applicant’s failure to provide an adequate explanation for the actual delay would, in itself, be sufficient reason to refuse the extension of time he seeks.
8. In any event, even had the applicant provided an acceptable reason for the delay it would still be necessary to consider the likelihood of prejudice to the respondent and the merits of the proposed appeal. I note that the first respondent does not contend that any prejudice would flow from granting the extension of time but opposes the application on the inadequate explanation and the futility of any appeal. In relation to the latter point it is necessary to consider, briefly, the applicant's claims and the decisions of the Tribunal and the Federal Magistrate.
9. The applicant claimed to have a well founded fear of persecution on the basis of his Christian faith and his membership of an underground church in China. He also claimed that his wife was involved in activities against the Chinese government, who were occupying private land with no reason to do so. He stated that on 10 September 2007 the police came to his house looking for his wife; however she was out at the time so the police arrested him and detained him for two weeks, during which time he was beaten and questioned about his wife. He was released after paying a 20,000 Yuan fine. After his release he started attending the underground church. He stated that he heard about freedom of belief in Australia and therefore obtained a passport in a false name to travel to Australia. In support of this claim the applicant provided the Tribunal with what he claimed was his Chinese Identity Card in his true name. He claimed that if he returned to China the government would persecute him for his church activities.

THE TRIBUNAL DECISION

10. The Tribunal did not accept that the applicant was a witness of truth. The Tribunal based this adverse credibility finding on a number of findings regarding the applicant’s evidence. First, the Tribunal noted that when questioned about his membership of the church and his activities and beliefs, the applicant was evasive, gave only rudimentary responses and displayed a limited knowledge of Christianity. This led the Tribunal to conclude that the applicant was not a member of an underground church and was not a Christian.
11. Secondly, the applicant’s account of his application for a passport in his own name was lacking in detail and implausible. The Tribunal could not be satisfied that either the passport or the identity card bore the applicant’s true name, or if one was his true name, which of the documents was in his true name. The Tribunal was not satisfied that the applicant was forced to obtain a passport in another name for the reason claimed.
12. Thirdly, the applicant’s evidence in relation to his claimed arrest and detention was unconvincing, lacking in relevant details and contradictory. The Tribunal was not satisfied that the applicant was arrested or detained as claimed for any reason.
13. Fourthly, the applicant showed a lack of interest and engagement in his wife’s separate visa application which indicated to the Tribunal that his claims were fabricated and he was going through the motions as told to him by his advisers merely for the purpose of extending his stay in Australia. The Tribunal was not satisfied that the Chinese authorities had an adverse interest in the applicant’s wife for any Convention related reason and found that his claims about his wife’s activities were fabricated. Therefore the Tribunal found that his wife’s political opinion was not imputed to him and he was not targeted for this reason or by reason of his membership of her family unit.
14. Overall, the Tribunal was not satisfied that the applicant had suffered past persecution or that he faced a real chance of persecution for any Convention related reason in the reasonably foreseeable future should he return to China.

THE FEDERAL MAGISTRATE’S DECISION

15. Before the Federal Magistrate the applicant made eight specific claims all of which were carefully considered by her Honour. Those claims and the analysis of them are fully set out in her Honour’s reasons for decision and do not require repetition here. Her Honour was satisfied that the Tribunal had explored the applicant’s evidence with him at the hearing and put the matters of concern to him. The Federal Magistrate was satisfied that the Tribunal had considered the claims of the applicant with a degree of logic and clarity and that the Tribunal did not rely on any information that enlivened the obligation of ss 424A or 424AA of the Migration Act 1958(Cth). Her Honour stated that at the heart of the Tribunal decision was its adverse credibility finding in relation to the applicant’s own evidence. Such evidence is expressly excluded from s 424A obligations by s 424A(3). The Federal Magistrate was satisfied that the Tribunal correctly applied s 91R(3) of the Act in disregarding the conduct of the applicant in Australia as the Tribunal was not satisfied that his conduct was entered into other than for the purpose of strengthening his claims.
16. Her Honour summarised her conclusion as follows, at [75]:

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes it clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

17. Her Honour concluded that the Tribunal had complied with its statutory obligations in making its decision and that the decision was not affected by jurisdictional error.
18. In the draft notice of appeal attached to the applicant’s affidavit filed in support of the application for an extension of time, the applicant lists 12 numbered grounds of appeal, which include that the Federal Magistrates Court failed to comply with s 476 of the Act and failed to investigate the applicant’s claim. Section 476 sets out the Federal Magistrates Court’s jurisdictional basis in relation to migration decisions and it is not clear to me what the reference to s 476 is intended to convey.
19. The claim that the Federal Magistrate failed to investigate the applicant’s claims seems to be a criticism that the Federal Magistrate did not engage in merits review. As such a review is beyond the jurisdiction of the Federal Magistrates Court this ground clearly could not succeed.
20. The remaining grounds of appeal refer to alleged errors of the Tribunal. They do not raise any issue that was not competently and correctly dealt with by the Federal Magistrate. In my view none of these grounds has any likelihood of success. Accordingly, it would be futile to grant the extension that the applicant seeks and therefore the application must be dismissed with costs.
    

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated: 13 August 2009

The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	K Hooper, DLA Phillips Fox

Date of Hearing:	13 August 2009
Date of Judgment:	13 August 2009