SZIYO v Minister for Immigration and Citizenship

The decision of the Tribunal 8 The Tribunal accepted the applicant's father-in-law was charged with the claimed offences and later appealed the conviction. However, it did not accept any of the other claims, such as the police came to her family home after she had left; that she and her husband were considered anti-government; that she petitioned the government regarding her father-in-law's detention or that she was involved with activities related to an underground church in China. The Tribunal did not find the applicant was a witness of truth. 9 The Tribunal did not accept the applicant feared persecution because she delayed 45 days after coming to Australia to make her application for protection. It also found the claim of having "serious trouble" from the authorities was not consistent with the claim of living at the same address since 2001 with her family and operating a successful business, including having a licence issued to run that business. Furthermore, the applicant delayed leaving China until the end of October 2005 although she was in possession of a passport in 2003 and a visa since September 2005. Consequently, the Tribunal found there was no plausible evidence the applicant had suffered or will suffer persecution for a Convention reason, from the authorities or anyone else in her country, either now or in the reasonably foreseeable future if she returned there.

The decision of the Federal Magistrate 10 On 20 June 2006 the applicant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The applicant then filed an amended application on 22 September 2006. Before Lloyd-Jones FM, she relied on a further amended application filed on 18 October 2006 which asserted four grounds: · the Tribunal breached s 424A of the Migration Act 1958 (Cth) ("the Act") by not putting country information as to the modus operandi of the PSB to the applicant for comment · the Tribunal breached the rules of procedural fairness by failing to put for comment to the applicant its views that the applicant was not credible · the Tribunal did not give reasons for most of its findings in not accepting her claims and breached s 430(1) of the Act · the Tribunal was wrong to find that the applicant had unreasonably delayed leaving China. 11 The Federal Magistrate addressed these grounds and found that they raised no jurisdictional error. His Honour was of the view that the information contended came within the exemption in s 424A(3)(b) of the Act. In relation to the 45 day delay for a protection visa, the facts that the applicant had lived at the same address, operated a successful business, had a valid passport since 2003 and had a visa in September 2005, were pieces of information provided at hearing and hence exempted by s 424A(3)(b) of the Act. In any event, country information was exempted by s 424A(3)(a) of the Act from the requirements of s 424A(1). 12 In dismissing the second ground, the Federal Magistrate observed that, pursuant to s 422B, the provisions of Pt 7 Div 4 of the Act constituted an exhaustive statement of the requirements of the natural justice hearing rule in relation to this application. Further, no error of the type identified by the High Court in SZBEL v Minister for Immigration [2007] HCA 62 arose in this case. 13 In relation to the third ground, it was clear the Tribunal gave reasons for its decision and that its findings could not be read in isolation. His Honour found that the final ground was an impermissible attempt at merits review.

The application for an extension of time to file and serve notice of appeal 14 Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Court or the Federal Magistrates Court are found in O 52 r 15 Federal Court Rules. The rule provides: (1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 15 The decision of Lloyd-Jones FM was delivered on 24 May 2007. The applicant did not attend court for the judgment. In order to comply with O 52 r 15(1) the applicant needed to file her appeal by 14 June 2007. 16 In fact, the applicant filed an affidavit annexing a draft notice of appeal and an application for an extension of time on 15 June 2007. The applicant indicates in the affidavit that she could not lodge her application in time because she only received the Federal Magistrate's judgment on 13 June 2007. 17 The grounds raised in this Court are that the Federal Magistrate erred in law and was wrong to find the Tribunal acted properly in its findings. Four particulars are provided in support of those grounds:

1. That the Tribunal failed to consider the claims fairly and properly, made an incorrect finding, relied on incorrect information or irrelevant material.
2. That the Tribunal failed to comply with s 424A(1) of the Act.
3. That the Tribunal misled the applicant by asking her to provide original documentary evidence of her father-in-law's suffering which caused the applicant to believe that all her claims were accepted except for this last issue.
4. That the Tribunal failed to consider the country information before it.

Relevant principles 18 An applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave: O 52 r 15(2). Guiding principles of assistance to the Court in considering whether to grant leave were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as follows:

1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time.
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.
4. however, the mere absence of prejudice is not enough to justify the grant of an extension.
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

This case 19 Although the applicant filed written submissions those submissions were confined to the merits of the proposed appeal. At the hearing however the applicant reiterated that she had not received the Reasons for Judgment of his Honour until 13 June 2007. 20 The Minister has not claimed prejudice in defending the proceedings caused by the delay; further, the Minister has submitted that, even if the applicant did not receive the written reasons for judgment until 13 June 2007, the applicant was on notice of the date, time and place at which his Honour's judgment was handed down. However the Minister has submitted that, having regard to the absence of any real prospect of success, the application should be dismissed with costs. 21 In view of the minimal delay in filing and serving the notice of appeal, I am prepared to find that no prejudice was caused to the Minister by the delay. 22 Further, on the best possible case put by the applicant, I accept that the applicant was not aware that judgment had been delivered by his Honour on 24 May 2007 and was not so aware until 13 June 2007. 23 However even if I were to grant an extension of time in which to file and serve a notice of appeal, the appeal has no real prospects of success for the following reasons:

1. in relation to the applicant's claim that the Federal Magistrate was wrong in finding that the Tribunal had considered the applicant's claims properly and fairly - in my view this claim is not substantiated by the particulars provided by the applicant in her submission. The decision record of the Tribunal demonstrates that the Tribunal has considered the claims of the applicant. The applicant's true complaint is that the Tribunal did not accept her claims, however the view of the Tribunal as to the facts of the case is a matter for the Tribunal as the arbiter of fact in such matters (s 474, Bocks v Minister for Immigration and Multicultural Affairs [1999] FCA 1671 at [9]).
2. in relation to the applicant's submission that the Federal Magistrate was wrong in finding that the Tribunal has properly considered issues of the credibility of the applicant - it is clear that such issues are issues for the Tribunal, and not subject to review by this Court: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 417.
3. in relation to the applicant's submission that the Federal Magistrate was wrong in finding that the Tribunal had considered her evidence independently and without bias - an allegation of bias is a serious matter, and in this case is completely unsubstantiated by any evidence.
4. in relation to a particularised claim in the applicant's affidavit accompanying the draft notice of appeal that the Tribunal failed to comply with its obligations under s 424A(1) of the Act - the applicant does not identify the "particulars of information" the Tribunal was required to give to the applicant to satisfy s 424A. As pointed out by the majority of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615: "Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of 'particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'." In this case Lloyd-Jones FM considered the applicant's claim as to s 424A in some detail at [11]-[19] of his Honour's Reasons for Judgment. I am not persuaded that his Honour erred in his consideration of this issue.
5. In relation to the particularised claim in the applicant's affidavit accompanying the draft notice of appeal that she had been misled by the Tribunal - there is no evidence that this is the case or that the Tribunal made any representations to the applicant as to the additional information it sought from the applicant. Further, the extent to which the Tribunal accords weight to evidence is a matter for the Tribunal as the arbiter of fact.
6. In relation to the particularised claim in the applicant's affidavit accompanying the draft notice of appeal that the Tribunal failed to consider independent country information - the choice and assessment of country information is a factual matter for the Tribunal alone and is not the subject of review by this Court (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]).
7. Finally, I do not accept the submission of the applicant at the hearing that the decision of the applicant was illogical. I note that this ground was not raised before his Honour. In any event, illogicality does not constitute jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]. 24 In circumstances where the applicant is unable to identify any arguable ground of appeal, an appeal would be futile and the court should not grant an extension of time: Jess v Scott (1986) 12 FCR 187 at 195. In my view in this case the applicant is unable to identify an arguable ground of appeal. Accordingly, the appropriate order is that the application for extension of time to file and serve a notice of appeal be dismissed with costs.

1. The application for extension of time within which to file and serve a notice of appeal be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Blake Dawson Waldron