SZNNG v Minister for Immigration and Citizenship [2010] FCA 92 (15 February 2010)

Last Updated: 22 February 2010

FEDERAL COURT OF AUSTRALIA

SZNNG v Minister for Immigration and Citizenship [2010] FCA 92

Citation:		SZNNG v Minister for Immigration and Citizenship [2010] FCA 92
Parties:		SZNNG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1396 of 2009
Judge:		NICHOLAS J
Date of judgment:		15 February 2010
Legislation:		Migration Act 1958 (Cth) s 91R(3)
Cases cited:		Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 cited
Date of hearing:	15 February 2010
Date of last submissions:	15 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	22
	The Applicant appeared in person
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1396 of 2009

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

JUDGE:	NICHOLAS J
DATE OF ORDER:	15 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time within which to file and serve a notice of appeal be dismissed.
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 1396 of 2009

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

JUDGE:	NICHOLAS J
DATE:	15 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

BACKGROUND

1. The applicant seeks an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Smith delivered on 2 October 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 31 March 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the applicant.
2. The applicant is a citizen of China who arrived in Australia on 15 October 2008. On 4 November 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 17 December 2008. On 23 December 2008 the applicant applied to the Tribunal for a review of that decision.
3. In his application for a protection visa the applicant claimed that he had practiced Falun Gong since 2006. He claimed that in June 2008 he and three others were taken into detention when police suddenly came to his home. He said that they were held in detention, questioned and mistreated. He says he was released about 20 days later after his wife arranged his release. He claims that his wife gave an undertaking to the police that if he continued to practice Falun Gong he would be sent to a labour camp. The applicant says that his family then made the decision to send him overseas.

THE TRIBUNAL’S FINDINGS

4. The Tribunal found that the applicant was not a credible witness. It noted that the applicant’s responses to questioning about his practice and understanding of Falun Gong showed some knowledge but were “very vague and general”. The Tribunal considered certain evidence which the applicant gave, but which was not referred to in his visa statement, to the effect that he had also engaged in Falun Gong activities outside his home in China, which included putting up posters and handing out pamphlets. The Tribunal did not accept the applicant’s explanation as to why these matters had been omitted from his visa statement and it concluded that this suggested that they were “recently invented claims”.
5. The Tribunal considered the applicant’s evidence concerning three witness statements said to have been obtained from China. The Tribunal found that the applicant had been untruthful about the witness statements. It found they were not genuine and gave them no weight. The Tribunal also gave no weight to what the applicant alleged was a “certificate of release” provided to him by the authorities. It found that the applicant was not a Falun Gong practitioner in China. The Tribunal disregarded the applicant’s conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth).

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

6. By application filed in the Federal Magistrates Court on 24 April 2009 the applicant sought judicial review of the Tribunal’s decision. In this application the applicant alleged:

Since February 2006, due to my illness, my schoolmate [Mr Z] introduced me to practice Falun Gong. On 20 June 2008 I was taken to the local police station with my fellow practitioners where we were all beaten and then sent to Kiefeng City Detention centre for 20 days. I was released only after bribing the officers of the local public security authority.

The member of the Refugee Review Tribunal did not accept my claims. I think the tribunal member had bias against me and failed to consider my application according to S91R of the Migration Act 1958. The tribunal member made a jurisdictional error in making the decision.

7. The federal magistrate noted that the applicant had not filed any additional evidence or written submissions in support of his application for judicial review. As to the applicant’s allegations of bias, the federal magistrate was not satisfied that there was any apprehended bias. Nor was his Honour satisfied that there was any actual bias. His Honour concluded that the applicant had not identified any jurisdictional error on the part of the Tribunal.

THE APPLICATION TO EXTEND TIME TO APPEAL

8. On 4 December 2009, the applicant filed an application for an extension of time to file and serve a notice of appeal against the decision of the federal magistrate delivered on 2 October 2009.
9. The principles governing such an application are well established and were set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349. In particular, his Honour identified the following principles which should guide the exercise of the discretion when a court is determining whether or not to grant an extension of time:

(a) special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do;

(b) the prescribed period is not to be ignored;

(c) the prima facie rule is that proceedings commenced outside the prescribed period will not be entertained;

(d) the applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(e) the mere absence of prejudice to the respondent is not enough to justify the grant of an extension;

(f) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and

(g) considerations of fairness between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.

10. The applicant has sought to explain the reasons behind his delay in filing a notice of appeal. In doing so he makes three points. First, he says that he was searching for someone to assist him because he could not afford a solicitor. Secondly, he says that he knew only one Justice of the Peace who could witness his documents but the person in question was often unavailable. Thirdly, he said he was unaware of the 21 day time limit for filing a notice of appeal. His explanation has been criticised by the solicitor appearing for the Minister. However, on the view I take, it is not necessary to pursue the question of whether or not the applicant’s explanation is sufficient for the purposes of determining this application.
11. The real difficulty faced by the applicant is that he has not put forward any evidence or argument which suggests to me that his application has any serious prospects of success. I will come to the specific matters which he relied upon in a moment. I am, however, of the opinion that it would be futile to grant any extension of time in circumstances where the applicant is unable to demonstrate any arguable basis for setting aside the decision of the federal magistrate.
12. The applicant’s task of persuading me that he has some arguable grounds of appeal was not assisted by the fact that he has not filed any draft notice of appeal or any other document, however it might be described, which identifies the particular grounds upon which he seeks to challenge the Tribunal’s decision.
13. It is apparent when one considers the submissions made by the applicant today that he considers that the Tribunal’s decision was unfair and wrong. But as to whether its decision was wrong in the sense that it reflected jurisdictional error, nothing has been put forward which would provide any arguable basis for such a complaint. The federal magistrate took the same view of the applicant’s overall approach to challenging the decision of the Tribunal, observing that the applicant approached the hearing in the Federal Magistrates Court as though it involved a merits review of the Tribunal’s decision. As his Honour correctly pointed out, the proceeding before that Court, and I would add, the proceeding before this Court, does not involve any merits review.
14. As previously stated, the applicant argued before the federal magistrate that the Tribunal (which was constituted by a single member) was biased against him. The allegation of bias as articulated before the federal magistrate was dealt with by his Honour in para [19] of his reasons. His Honour said:

The assertion that the Tribunal member “had bias against me” has not been given any evidentiary substance, particularly in the absence of a transcript. The applicant today complained that the Tribunal’s questioning, and its failure to accept his various explanations for the points which were put to it, showed that he had been treated unfairly. However, it was the task of the Tribunal to put to the applicant fairly, matters which might go against him, and the fact that the Tribunal did this does not show that it had closed its mind at that time. I can understand the applicant being disappointed with the outcome of the case and the Tribunal's failure to accept all his explanations. However, the ultimate outcome does not show that the Tribunal prematurely closed its mind to a proper consideration of all his evidence, including his explanations about the matters which were put to him. I can find no evidence satisfying principles of apprehended bias which were identified by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [32], nor satisfying tests of actual bias (see Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [35] and [72]).

15. What the federal magistrate said concerning the state of the evidence below still holds true. The applicant has not attempted to put before me any evidence with which to support his allegations of bias.
16. When addressing me the applicant raised a number of other matters which I have assumed he wishes to rely upon in support of his allegation that the Tribunal’s decision was affected by actual or apprehended bias.
17. The applicant said that he had been misled by the Tribunal. As the federal magistrate pointed out in para [5] of his reasons for judgment, the Tribunal set out a detailed description of the hearing in its statement of reasons for decision. His Honour said, correctly in my view, that he should accept that description of what transpired. It does not give rise to any suggestion that the applicant was misled by the Tribunal. In the absence of any evidence to the contrary it was not open to his Honour to take any other course. His Honour noted that “[t]he applicant was given the recording at the end of the [Tribunal] hearing, and has been given further opportunities to submit a transcript to this Court, but he has not done so.”
18. One particular matter relied upon by the applicant in support of his allegation that the Tribunal was biased against him, was his contention that the Tribunal found that he did not mention the topic of Xinxing when being questioned about the theory and practice of Falun Gong. However, it is apparent from the Tribunal’s reasons for decision that the Tribunal did not come to any such conclusion. Rather, the Tribunal directed its attention to the lack of emphasis that the matter of Xinxing received in the applicant’s evidence which in its view was inconsistent with his claims. I do not regard that matter as providing any support for an allegation of actual or apprehended bias.
19. The applicant also contended that the Tribunal had, during the course of the hearing, stated that the applicant was “a nuisance” and “unreasonable”. If correct, these were clearly matters which should be demonstrable by reference to a transcript or recording of the proceedings before the Tribunal. I note that the applicant made no mention of this matter before the federal magistrate during the course of the hearing before him. In addition, while the applicant told me that he is unfamiliar with the legal system and legal principles, it seems to me unlikely that the potential significance of such statements should have escaped his notice until now. I am satisfied that there is no substance to this complaint.
20. The applicant also asserted that the Tribunal had made certain observations concerning the authenticity of his passport which led him to believe that the Tribunal was suspicious of his claims from the outset of the hearing. Again, this is a matter that was not raised before the federal magistrate. It is another allegation which, if correct, could be verified by either a transcript or the recording of the proceedings before the Tribunal.
21. Having considered the factors identified by Wilcox J referred to in para [9] above, I am of the opinion that the application for an extension of time should be refused. It seems to me that to grant an extension of time would in this case be pointless given that the proposed appeal has not been shown to have any real prospect of success. There is no suggestion, in my view, that the Tribunal’s decision is affected by any jurisdictional error. I also am of the view that the allegation of bias has not been shown to have any substance.
22. For these reasons, I refuse the applicant’s application for an extension of time to file his appeal. I also order the applicant pay the first respondent’s costs.
    

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated: 18 February 2010