SZMSN v Minister for Immigration & Citizenship [2010] FCA 96 (19 February 2010)

Last Updated: 19 February 2010

FEDERAL COURT OF AUSTRALIA

SZMSN v Minister for Immigration & Citizenship [2010] FCA 96

Citation:		SZMSN v Minister for Immigration & Citizenship [2010] FCA 96
Parties:		SZMSN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1166 of 2009
Judges:		EDMONDS J
Date of judgment:		19 February 2010
Date of hearing:	17 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	21
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1166 of 2009

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

JUDGE:	EDMONDS J
DATE OF ORDER:	17 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be refused.
2. The applicant pay the first respondent’s costs.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1166 of 2009

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

JUDGE:	EDMONDS J
DATE:	19 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. By application filed on 15 October 2009, the applicant seeks an extension of time to appeal from a judgment of the Federal Magistrates Court delivered on 4 February 2009: SZMSN v Minister for Immigration & Anor [2009] FMCA 100, dismissing an application for review of a decision of the second respondent (‘the Tribunal’) dated 16 July 2008. The decision of the Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the applicant a Protection (Class XA) visa.
2. Pursuant to O 52 r 15(1) of the Federal Court Rules 1979 (‘the Rules’), the applicant was required to file and serve a notice of appeal within 21 days after the date of the Federal Magistrate’s judgment. That period expired on 26 February 2009.
3. The application is accompanied by an affidavit, sworn by the applicant on 15 October 2009, in which the applicant has sought to explain the delay in filing the notice of appeal, and a draft notice of appeal.
4. The Minister opposed the application on the basis that the applicant did not demonstrate that there were special reasons why an extension of time should be granted and that there was no utility in granting an extension of time as the grounds of the proposed notice of appeal had no prospects of success.

BACKGROUND

5. The applicant is a citizen of the Peoples Republic of China (‘China’) who arrived in Australia on 5 February 2008 and applied for a Protection (Class XA) visa on 13 March 2008. On 13 April 2008 a delegate of the Minister refused the visa and on 12 May 2008 the applicant applied for review of the delegate’s decision by the Tribunal.
6. The applicant appeared before the Tribunal on 26 June 2008 and gave evidence. In summary, the applicant claimed that he feared persecution on the basis that he was a Falun Gong practitioner. He claimed to have started practising Falun Gong in 1996 and to have continued practising Falun Gong after it was banned in 1999. He claimed to have been arrested on 18 July 2003 and detained for six months. He then planned to go overseas, eventually saving money to come to Australia. He claimed that if he were to return to China, he would be arrested.
7. In affirming the decision of the delegate, the Tribunal found that the applicant lacked credibility and his material claims could not be accepted.
8. The Tribunal was not satisfied the applicant is a Falun Gong practitioner nor was it satisfied that the applicant had practised Falun Gong in either China or Australia. These findings were based upon a number of inconsistencies in, and the implausibility of, the applicant’s evidence regarding his practise and knowledge of Falun Gong, variations in his evidence regarding how he practised Falun Gong in China; his evidence regarding the circumstances of his arrest, his ability to obtain a passport and to depart China without any problems with the authorities, and his lack of association with Falun Gong practitioners in Australia. Accordingly, the Tribunal was not satisfied the applicant had a well-founded fear of persecution.

IN THE FEDERAL MAGISTRATES COURT

9. The proceedings in the Federal Magistrates Court were commenced by application filed on 8 September 2008. The application contained the following grounds:

‘1. Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

2. 1 will be sent to jail if I go back to China as I am a Falun Gong practitioner.
   
3. The Tribunal did not properly consider the current situation in China.
   
4. The Tribunal failed to consider the real situation in China which I must face as a Falun Gong practitioner.
   
5. I would like to say what I said is true and correct.’
   
10. By orders made on 2 October 2008 the application was listed for final hearing on 4 February 2009.
11. In a judgment delivered ex tempore on 4 February 2009, the Federal Magistrate dismissed the application with costs. His Honour rejected the applicant’s first ground as no particulars had been provided of the alleged procedural breaches (at [10] of his Honour’s reasons). His Honour rejected the second and fifth grounds on the basis that there were merely statements of fact which could not give rise to any jurisdictional error on behalf of the Tribunal (at [11] and [14]). The third and fourth grounds which raised the same complaint, that the Tribunal failed to consider the situation in China, were rejected as His Honour found that there was no obligation upon the Tribunal to consider this where it had rejected the applicant’s claim that he was a Falun Gong practitioner (at [12] – [13]).

APPLICATION FOR EXTENSION OF TIME

Special reasons

12. Order 52 r 15(2) of the Rules gives the Court discretionary power to grant leave to an applicant to file and serve a notice of appeal at any time for special reasons. In Jess v Scott (1986) 12 FCR 187 at 195 the Full Federal Court described ‘special reasons’ as:

‘[A]n expression describing 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.’

13. The only reason given by the applicant in the affidavit filed in support of his application which goes to explaining his delay of over eight months is that he did not know that he could lodge an appeal. The Minister submitted that this explanation is insufficient in demonstrating special reasons sufficient to justify such a departure from the ordinary rule.
14. I agree.

Proposed Notice of Appeal - No prospects of success

15. The Minister submitted that an extension of time to file the proposed notice of appeal should not be granted because the appeal would be bound to fail.
16. The applicant sought to challenge the judgment of the Federal Magistrate on the following four grounds:

‘1. The Tribunal did not consider properly the current situation in China.

2. I will be sent into jail if I go back to China as I am a Falun Gong practitioner.

3. I would like to say my claim for a protection visa is true and correct.

4. The Tribunal failed to consider the real situation in China which I must face as a Falun Gong practitioner.’
   
17. None of the grounds raised by the applicant identify any error in the decision of the court below and merely restate, in a different order, grounds two to five raised in the court below and which the Federal Magistrate rejected.
18. For the reasons given by the Federal Magistrate there was no error arising from these grounds and the Minister submitted that an extension of time should not be granted as there was no prospect of success in an appeal.
19. I agree.

CONCLUSION

20. Nothing before the Court sustains an argument that there are special reasons to grant the applicant an extension of time and in the absence of any prospect of success, there would be no utility in extending the time to file a notice of appeal.
21. The application must be refused with costs.
    

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 19 February 2010