SZCZX v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 5 September 2007 the applicant's application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal was dismissed [2007] FMCA 1588. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as he was then known) to refuse to grant a protection visa to the applicant. 2 On 27 September 2007, one day after the expiry of the relevant time limit for filing a notice of appeal, the applicant filed an application for an extension of time within which to appeal and a Notice of Appeal which, for present purposes, I shall treat as a draft notice of appeal. On 8 February 2008 the first respondent, apparently unaware that an application for an extension of time had been made, filed a Notice of Objection to Competency of the Appeal. At the hearing of the application, Mr Snell, who appeared for the first respondent, confirmed that the application and accompanying affidavit had not been received. He indicated, however, that he was in a position to deal with the application immediately. Mr Snell said that the first respondent opposed the extension of time on the basis of the futility of an appeal and that his submissions opposing the appeal were made in support of this position. The first respondent did not want to make any submissions on the issue of delay. 3 As I explained to the applicant, in considering whether to grant an extension of time the Court has regard to the reason for the delay and whether, should leave be given, the appeal would have any prospect of success. No reason was given for the delay but, given that it was a delay of only one day, I would not refuse leave on that basis especially in the case of a litigant in person. Consequently the issue to be considered is the issue of futility. 4 The applicant is a citizen of the People's Republic of China who claims to have a well-founded fear of persecution by the Chinese authorities because of his involvement with Falun Gong. The sole ground put forward in the draft notice of appeal is that the Federal Magistrate failed to find the Tribunal made a jurisdictional error by ignoring facts related to a Mr Li and Mr Dong Ma. The draft notice of appeal states: The appellant stated that he and Mr Li together practised Falun Gong In July 1996. After one year he and Mr Li organized the second station. Mr Li and he edited, printed and distributed over thousands of leaflets, handbills and promotion materials of Falun Gong. On 21 July Both he and Mr Li were arrested. On 22 May 2001 Mr Dong Ma and he were arrested. When he was released, he was under the surveillance of the PSB. The Tribunal member ignored and overlooked the above facts. The Tribunal member fell into jurisdictional error. 5 The applicant provided the Tribunal with various documents in support of his claims. The Tribunal considered the evidence provided by the applicant but doubted the veracity of the applicant's claims. In particular, the Tribunal was not satisfied as to the truth of the applicant's claims concerning his involvement with Falun Gong in China or the harm he claimed to have suffered as a result of such involvement. Furthermore, the Tribunal was not satisfied that the applicant was involved with Falun Gong activities in Australia. The Tribunal found his responses to questions concerning Falun Gong were generally devoid of significant supporting details and gave no indication that they arose from authentic first hand experience. The Tribunal did not accept the applicant's claims of being a Falun Gong practitioner or that he had any significant involvement with Falun Gong in China or Australia or that he had been arrested, detained or tortured in China. On that basis, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed the delegate's decision. 6 Before the Federal Magistrate (who was unable to detect any jurisdictional error in the decision of the Tribunal) the applicant relied on an amended application filed on 12 April 2007. One of the grounds of the amended application was based on an error made by the Tribunal in the s 424A letter sent to the applicant and dated 5 September 2006. The Federal Magistrate commented on the error and in this way: In that letter, several matters were put to the applicant for his comment concerning his passport and travel. It was also put to the applicant that there was an inconsistency between the evidence of his witness that they practised together at weekends "in Parramatta and in parks at Central Station and in Ashfield", and his own evidence that he "practised in Parramatta, Campsie and Ashfield". In response to the letter, the applicant identified a confusion on the part of the Tribunal as to the evidence which had in fact been given by the applicant and his witness. 7 The error concerned the Tribunal's confusion between Ms X, a witness for the applicant at the Tribunal hearing and two friends of the applicant, one of whom lived at Campsie and one at Ashfield. The applicant corrected the error and the correction was accepted by the Tribunal in the following passage which was quoted by the Federal Magistrate: I have also considered the evidence given by the applicant's friend at the hearing. I accept that the Tribunal's letter to the Applicant of 5 September 2006 was partly in error in identifying a discrepancy between her evidence and his concerning sites where they practiced in Sydney, as the applicant himself points out in his written response. However, a clear discrepancy remains between the evidence given by the Applicant and the witness in this area. As acknowledged by the Applicant in his written response, the witness stated at the hearing that she and he practiced at weekends in Parramatta, Central Station and Burwood, while he claimed that he practiced only in Parramatta and Campsie. I am not satisfied as to the plausibility of the Applicant's further explanation that he did not mention practicing in Central Station and Burwood "because I thought they were not the regular practice sites I go and I go to these places basically for different Falun Gong activities". On the basis of this discrepancy I am not satisfied that any significant weight can be placed on the evidence of the witness in support to the Applicant's claim to be a Falun Gong Practitioner. 8 The applicant submitted that the Tribunal fell into jurisdictional error by confusing the evidence and consequently relying on alleged inconsistency in the applicant's evidence in affirming the delegate's decision. It is clear, however, that at the time of making its decision the Tribunal was no longer confused and had taken the applicant's response into account. Nevertheless the discrepancy to which the Tribunal referred remained and was pertinent to the Tribunal's decision. 9 At the hearing of the present application the only submissions made by the applicant were directed to a review of the merits and exhortations to do justice. Unfortunately they were of no assistance in relation to the issue presently to be determined. 10 In my opinion, an appeal in this matter, were an extension of time to be granted, would be doomed to failure. The Tribunal expressly identified all supporting documents and written claims provided by the applicant and explained why they did not cause the Tribunal to believe his evidence. The Federal Magistrate dealt with extensive grounds of review and was unable to detect any jurisdictional error and no error in his Honour's reasons has been identified that might give some hope for success in an appeal. For this reason the application for an extension of time within which to appeal must be dismissed. The first respondent should have his costs in the amount of $1,700. 11 Finally, I should note that in a number of documents filed by the first respondent, the applicant has been identified as "SZCZK" however the correct designation is "SZCZX", which was the designation used in the Notice of Appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.