SZKMG v Minister for Immigration and Citizenship & Anor

Federal Court of Australia|2008-07-18|Before: Reeves J

INTRODUCTION 1 This is an Application for an extension of time for the filing and service of a Notice of Appeal from the judgment of Federal Magistrate Cameron delivered on 9 October 2007. The Federal Magistrate had dismissed the applicant's Application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 21 August 2006.

BACKGROUND - SUMMARY OF FACTS 2 The applicant is a citizen of the People's Republic of China ('China') who entered Australia in April 2003 on a student visa. He subsequently returned to China in December 2004 for one month before coming back to Australia on 17 January 2005. The applicant was then apprehended and placed in immigration detention, where he remains. On 6 June 2006, the applicant lodged an application for a protection visa. A delegate of the first respondent refused that application on 19 June 2006; leading the applicant to apply to the Tribunal for a review of that decision the next day. 3 The applicant lodged a statutory declaration with his visa application which set out the basis of his claim to fear persecution in China. In essence he claimed to have a well-founded fear due to an imputed political opinion because his father had exposed corruption and was then been branded a Falun Gong practitioner and an enemy to the local officials. The applicant's father was allegedly jailed on that basis. The applicant also alleged that before he left China, stones were thrown at his house and someone tried to burn it down and he claimed that he was injured in an arranged 'accident' in 2002. 4 The applicant claimed that when his father sent him to Australia in April 2003 to study, he did not know that his father did so in an attempt to keep him safe from corrupt local officials. When he returned to Australia the second time, knowing this and knowing that his father remained in jail, he was so upset that he gave up studying and lost his visa. The applicant claimed that if he were to return to China he would be 'at risk of being falsely accused of following Falun Gong in Australia and jailed because of this' or being 'harmed by corrupt officials or criminals'.

THE TRIBUNAL'S DECISION 5 The applicant attended a hearing before the Tribunal on 17 August 2006 and gave evidence. The Decision Record of the Tribunal sets out the questions it put to the applicant, and his responses, and notes that his claims were largely based on 'what has been relayed to him by his parents' so that key aspects remained vague. In the circumstances, the Tribunal found that there was inadequate material to substantiate the applicant's claim that the (two) traffic accident(s) of 2002 'were deliberate plots to inflict harm on him'. 6 The Tribunal determined that even if it were to accept that 'the applicant was personally targeted [by the corrupt official exposed by his father], which it does not, the Tribunal does not accept that the applicant was harmed for a Convention reason or that there is a real chance that he will be harmed for a Convention reason'. The Tribunal observed that it would be reasonable for the applicant to relocate within China. 7 The Tribunal found that there was nothing in the evidence to suggest that the applicant's father's actions were a form of opposition to the government authorities and observed that his mother did not appear to have been imputed with a political opinion. In any event, the Tribunal concluded that pursuant to s 91S of the Migration Act 1958 (Cth) ('the Act'), 'a person who is pursued because he or she is a relative of a person targeted for a non-Convention reason does not fall within the grounds for persecution covered in the Convention definition'. 8 The Tribunal was not therefore satisfied that the applicant was a person to whom Australia owed protection obligations, and it affirmed the delegate's decision.

THE DECISION OF THE FEDERAL MAGISTRATE 9 The applicant lodged an Application for judicial review in the Federal Magistrates Court on 10 April 2007 which raised the two grounds summarised below: (a) the Tribunal had failed to properly determine the meaning of the expression "social group" according to law; and (b) the Tribunal had failed to send the applicant a s 424A letter as it was compelled to do. 10 At his hearing before the Federal Magistrate on 20 July 2007, the applicant made some further allegations including: the Tribunal had dealt with his application in a 'brash' manner; the applicant was unfamiliar with the Tribunal process; and the Tribunal should have allowed him to put additional material before it. In his decision delivered on 9 October 2007, the Federal Magistrate noted that counsel for the first respondent did not argue that the application was filed out of time, following Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105, and his Honour proceeded to consider the substantive grounds of the Application. 11 In relation to the first ground of review, his Honour found that the Tribunal had correctly determined that a family can be a 'particular social group' and the Tribunal had therefore not failed to properly determine the meaning of that expression according to law. However, his Honour also found that the Tribunal had made a finding of fact that the persecution suffered or feared by the applicant's father was not Convention-related and that the Tribunal had properly applied s 91S of the Act, by disregarding the persecution suffered or feared by the applicant's father. His Honour therefore concluded that there was no jurisdictional error demonstrated by this ground of review. 12 Turning to the applicant's allegation that the Tribunal had breached s 424A, his Honour noted that no particulars had been provided of this allegation and found himself unable to identify any breach of s 424A of the Act. His Honour observed that the Tribunal's Decision Record showed that it had relied on information provided by the applicant himself and such information was excluded from the operation of s 424A(1) by s 424A(3)(b) of the Act. Accordingly, his Honour concluded that there was no jurisdictional error demonstrated by this ground of review. 13 His Honour interpreted the first of the applicant's additional claims i.e. of 'brash' treatment by the Tribunal, to be a claim of pre-judgment and found that there was nothing before the Court to support such an allegation. He rejected the second of the applicant's additional claims, holding that the applicant's unfamiliarity with the Tribunal's processes could not be a ground of jurisdictional error. 14 The Federal Magistrate also dismissed the applicant's final additional claim, stating that 'having invited the applicant to a hearing pursuant to s 425 of the Act, the Tribunal proceeded to give him a real and meaningful hearing at which he had the opportunity to give evidence and present arguments'. His Honour also noted that the Tribunal was not under any obligation to disclose its reasoning processes to the applicant: citing SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. 15 As no jurisdictional error had been disclosed the Federal Magistrate dismissed the applicant's application for review.

GROUNDS OF THE PRESENT APPLICATION 16 The applicant filed his Application for leave to file his Notice of Appeal out of time on 19 May 2008. His application was supported by an Affidavit which annexed a draft Notice of Appeal. In summary, the grounds for appeal set out in that draft Notice of Appeal are that: (1) the Federal Magistrate erred in law in striking out the application for judicial review because he should have held the appellant was not able to properly articulate his case because he was not provided with legal assistance by the Department; (2) the Federal Magistrate 'erred in dismissing the appellant's application because the appellant was unable to provide reasons and properly particularised grounds of judicial review' in circumstances where the applicant had 'no legal expertise in addition to language constraints'; and (3) the applicant has 'recently obtained documented evidence in terms of providing additional information in relation to his claims' that the Tribunal's decision was 'unjust and incorrect' and that he should be given an opportunity to present this new evidence. In his Affidavit in support, the applicant states, among other things, that: he has been in immigration detention since March 2006; that during that period he has had no access to any legal advice; that English is his second language; that he has therefore been unable to fully understand the technicalities related to the filing appeals in this Court; that he does not have any legal knowledge himself; and that the immigration agent who dealt with his application for a protection visa failed to inform him of his rights of review/appeal.

THE CONTENTIONS 17 At the hearing of this Application the applicant appeared in person unrepresented and assisted by an interpreter. Mr Snell appeared for the first respondent. 18 The applicant made lengthy oral submissions which primarily focused on the way in which the Tribunal dealt with his application for review. In the process, he mentioned seven grounds of appeal - though it is to be noted there are only three grounds of appeal contained in the draft Notice of Appeal (as set out above). Furthermore, the applicant made various additional allegations including an allegation that the Tribunal was biased, that the independent country information used by the Tribunal was unreliable and that the Tribunal had committed a number of errors in the way it dealt with his application, particularly in its interpretation of the expression 'special social group' in s 91S of the Act. Again, it is to be noted that none of these specific allegations is raised in the draft Notice of Appeal. 19 At the end of his lengthy oral submissions, I pointed out to the applicant that he had not made any submissions upon why the Court should grant him leave to file his Notice of Appeal out of time. The applicant responded by mentioning many of the matters set out in his Affidavit, particularly the difficulties arising from being in detention and not having any legal assistance. 20 Mr Snell relied upon the written submissions he had earlier filed. In his oral submissions, he submitted that the applicant had not put forward any special reason why he should be granted leave to file his Notice of Appeal out of time and that, in any event, the application should be refused on discretionary grounds because the appeal had no reasonable prospects of success.

CONSIDERATION 21 Order 52 rule 15(1)(a) of the Federal Court Rules requires a Notice of Appeal to be filed and served within 21 days after the date when the judgment appealed from was pronounced. Since the judgment of Federal Magistrate Cameron was delivered on 9 October 2007, the 21 day period for the applicant to file his Notice of Appeal expired on 30 October 2007. The applicant is therefore applying more than six and a half months out of time. 22 Order 52 rule 15(2) gives the Court power to grant leave to a person to file an appeal at any time if there are special reasons. In Jess v Scott (1986) 12 FCR 187 the Full Court of this Court held that the expression 'special reasons' is (at 195 - 196): '…..intended to distinguish the case from the usual course according to which the time is 21 days …Such a ground is a special reason because it takes the case out of the ordinary. … It is an expression describing a flexible discretionary power, but one requiring a case 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.' 23 In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 ('Ariaee') Justice Mansfield took into account the following circumstances in deciding that 'special reasons' existed to allow the Notice of Appeal to be filed out of time in that case (at [14]): '… the applicant at material times has been in immigration detention, that he required the assistance of an interpreter during the hearing, and that he had limited knowledge of law and practice, including it appears no awareness that the time for any appeal ran from the date judgment was pronounced rather than from the date he received the written copy of the reasons for decision.' 24 While the applicant does not expressly state in his Affidavit that he was not aware of the time limit for filing an appeal until shortly before the time he made his application to file his draft Notice of Appeal out of time, I infer that this was so. His state of knowledge can be inferred from his Affidavit where he says that he was unaware of "technicalities such as time limits on making appeals to the court". If that inference is drawn, whilst I acknowledge that applications of this kind have been described as "fact specific", I note that the circumstances of this case are quite similar to those circumstances in the Ariaee case which lead Justice Mansfield to conclude there were "special reasons" for the purposes of O 52 rule 15(2). Given that, I likewise hold that the circumstances of the applicant in this case are such that they distinguish this case from the usual course and therefore constitute "special reasons" for the purposes of O 52 rule 15(2). 25 However, that is not an end to the matter because a number of decisions of this Court (including Full Court decisions) have held that if, in an application of this kind, the putative appellant has no real prospects of succeeding on the appeal in any event, the Court should not exercise its discretion to grant leave to file the appeal out of time: see Atkinson v Commissioner of Taxation [2000] FCAFC 1621 at [12] per Hill J and at [14] per Dowsett J, and see Sackville J in the first instance [2000] FCA 998 at [3]; Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 at [12] per Whitlam, Moore and Katz JJ; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 at [5]per Sackville J; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J; W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] per RD Nicholson J;and WACF v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 1385 at [30] per Carr J 26 To determine whether the applicant in this matter has any real prospects of succeeding in his appeal requires a consideration of the grounds of appeal he has relied upon in his draft Notice of Appeal. I should record that, for a number of reasons, I do not consider I should include in my assessment of the applicant's prospects of succeeding in this appeal, the seven other "grounds of appeal" mentioned by the applicant in his oral submissions before me. Firstly and most significantly because the applicant has not sought to amend his draft Notice of Appeal to include them as part of the proposed grounds of appeal. If he did, it would have become necessary to consider the sorts of considerations discussed in NAJT v Minister for Immigration (2005) 147 FCR 51. 27 Secondly, if they were indeed intended to be grounds of appeal, they were put to me orally through an interpreter, and informally, and it would therefore be very difficult for me to discern their precise terms. 28 Thirdly, as I understood them, the grounds were all directed to error on the part of the Tribunal and the focus of an appeal to this Court from the Federal Magistrates Court must be limited to error on the part of the Federal Magistrate. In contrast, the grounds set out in the draft Notice of Appeal are, quite properly, directed to error on the part of the Federal Magistrate. 29 Fourthly, to compound the difficulty just observed, these seven other "grounds of appeal" appear to be largely, if not totally, different from the grounds of review in relation to the Tribunal's decision relied upon before the Federal Magistrate. Finally, as I have noted above, they all appeared to be different from the grounds of appeal contained in the draft Notice of Appeal and the whole process would become unwieldy if I were to attempt to consider the inconsistent 'grounds'. 30 Turning then to the grounds in the draft Notice of Appeal, grounds one and two both allege that the learned Federal Magistrate was in error in dismissing the applicant's application for judicial review when he (the applicant) had not been able to put his case properly because he was not provided with legal assistance. In addition, ground one appears to allege that the Department was obliged to provide the applicant with legal assistance because it had detained him. 31 In my view, these proposed grounds of appeal have no prospect of success. The Department has no obligation to provide legal assistance to the applicant; and neither did the Federal Magistrates Court. Apart from some limited exceptions that do not arise in this case, a person is not entitled to legal representation at public expense in this country: see Dietrich v The Queen (1992) 177 CLR 292 and WABZ v Minister for Immigration (2004) 134 FCR 271, particularly at [94] to [96] per Hill J. In any event, it is apparent from the Federal Magistrate's reasons that even without legal assistance, the applicant appears to have been able to communicate his concerns to the Federal Magistrate on each of his grounds for review and the three additional claims he made orally before the Federal Magistrate. For his part, the Federal Magistrate appears to have carefully considered each of those grounds and claims, including the relevant authorities, and he clearly expressed his reasons for rejecting each of them. 32 The third ground of appeal seems to allege that the applicant has new evidence and that he should be given an opportunity to put this new evidence before the Tribunal. The applicant does not say what this new evidence is, or how it may affect his application for a protection visa. More importantly, he does not appear to have raised this new evidence before the Federal Magistrate and it necessarily follows that the Federal Magistrate could not have committed any error in relation to it. In my view, therefore, this ground of appeal has no prospects of success either. 33 For these reasons, I conclude that the applicant has no reasonable prospects of success in relation to any of the grounds contained the draft Notice of Appeal and I therefore dismiss his application to file his Notice of Appeal out of time on discretionary grounds. 34 Accordingly, I order that the Application for leave to file and serve the Notice of Appeal out of time be dismissed with costs. I certify that the preceding thirty four(34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves

Associate: Dated: 18 July 2008 The Applicant appeared in person.

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