MZXKQ v Minister for Immigration and Citizenship

THE PROCEEDING 1 The applicants seek leave to appeal out of time from a judgment of the Federal Magistrates Court, which was adverse to them. 2 The first applicant is a citizen of the People's Republic of China. He has claimed that he would face persecution because of his political profile and belief if he returned to China. The second and third applicants are his wife and son. Their claims are dependent on the outcome of his claims. The first applicant arrived in Australia on or about 14 November 1996 with the second applicant. The third applicant was born on 19 September 2003 in Melbourne. 3 Under cover of a letter dated 29 September 2005, the first applicant applied for a protection visa. He claimed to have a well-founded fear of persecution because of his involvement in the pro-democracy movement in China. The Minister's delegate refused his application on 25 November 2005. On 23 December 2005, he applied to the Refugee Review Tribunal ('the Tribunal') for review and attended a Tribunal hearing on 16 February 2006. 4 In May 2006, the Tribunal affirmed the delegate's decision. The Tribunal held that, given the passage of time, any involvement that the first applicant may have had in the pro-democracy movement was so remote that there was no real chance he would face persecution on returning to China. The Tribunal did not accept that the first applicant sought to avoid the Chinese authorities on his return from Singapore in 1995, or that he was of adverse attention to the authorities when he left China in 1996. The Tribunal found that the first applicant obtained a passport in his own name and legally departed China. He had renewed his passport on a number of occasions, as recently as August 2005. The Tribunal held that country information indicated that he would not have enjoyed this freedom of movement if he were of interest to the Chinese authorities. 5 In relation to the sur place claim, the Tribunal found: · The first applicant's claim to have attended public gatherings and to have published articles in Australia did not correspond to the profile presented at the hearing, or to the period he had been in Australia. · It did not accept that the claimed sur place activities were done on the basis of a "genuine commitment to political activism". · The articles relied on were about the Communist Party in China and not the first applicant personally. · The first applicant engaged in these sur place activities to strengthen his claim for a protection visa and they were to be disregarded in accordance with s 91R(3) of the Migration Act 1958 (Cth) ('the Act'). 6 The Tribunal did not accept that the first applicant would be persecuted as claimed if he were to return to China. It was not satisfied that he had been persecuted in the past by reason of his political profile. It was not satisfied that he had a well-founded fear of persecution by reason of his political profile, or for any Convention reason. It did not accept that the third applicant would be denied an education or suffer any form of serious harm if brought up in China. 7 The Tribunal did not reach a concluded view about the contradictory evidence concerning the first applicant's employment history or delay in applying for a protection visa. 8 On 23 June 2006, the applicants applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. In a judgment delivered on 5 April 2007, the Federal Magistrate found no jurisdictional error in the Tribunal's decision. The applicants seek to appeal out of time against this judgment. 9 The application to appeal out of time was made by an affidavit sworn by the first applicant and filed on 11 May 2007. In this affidavit, he deposed: "I now seek to appeal against this decision as I have been advised by my Counsel and reasonably believe that my case has grounds to appeal to the Federal Court. I seek the leave of the court for an extension of time to appeal as I have been informed by my solicitor and reasonably believe that: a. On Tuesday, 24 April 2007, Marlena Pitrone of the Victorian Bar Legal Assistance Scheme (VBLAS) contacted the Federal Court Registry (the Registry) staff to clarify the last day that I would be able to lodge my appeal. b. Marlena Pitrone was informed by the Registry that due to the Easter and ANZAC day public holidays that the deadline to lodge my appeal would extend to 30 April 2007. c. On Wednesday, 25 April 2007, Marlena Pitrone once again contacted the Registry and was informed that I could lodge my appeal on Friday, 27 April 2007, which would be the last day. d. VBLAS then contacted my solicitor and informed them that the appeal could be lodged on Friday, 27 April 2007. Further to this, on Tuesday, 24 April 2007, I met with my Counsel, Alan Hands. Both he and I personally attended the Registry to clarify when I could lodge my appeal. Mr Hands spoke to the gentleman at the Registry and was told that the appeal could be lodged on 30 April 2007. As a result of the information provided by the Registry, my solicitors lodged the appeal on Friday, 27 April 2007. My solicitors drew up the appeal papers and I attended their offices to sign all the relevant documents on Friday. I have since been advised that the Registry has informed them that I am one day out of time and the notice of appeal was to be filed by 26 April 2007." 10 Order 52 r 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed 21 days from the date of judgment. In this case, this period ended on 26 April 2007. The applicants filed their notice of appeal on 27 April 2007. The notice of appeal was out of time by one day. 11 An application for an extension of time was filed on 11 May 2007. Pursuant to O 52 r 15(2), the time limit may be extended for "special reasons". In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said at 195: "…the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 12 The first applicant has sought to explain the minor delay in filing the notice of appeal. If this were all, I should be disposed to grant the extension that he seeks. Indeed, the first respondent does not object to the extension of the time for filing a notice of appeal. This is not, however, all. This is a case where the prospects of success on the appeal are insufficient to warrant the grant of an extension of time. 13 The applicants' purported notice of appeal filed on 27 April 2007 records the following grounds: