SZLNQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 15 August 2008, Lloyd-Jones FM delivered Reasons for Judgment (SZLNQ v Minister for Immigration & Anor [2008] FMCA 1151) in respect of an application made in the Federal Magistrates Court by the present applicant/appellant ("the appellant") for relief in that Court pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). The decision in respect of which judicial review was sought was a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 27 September 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. On 12 September 2008, the appellant filed a Notice of Appeal in this Court seeking to challenge the decision of the Federal Magistrate to which I have referred. 2 The Notice of Appeal was filed out of time. To be within time, it should have been filed by no later than 5 September 2008. The first respondent has filed a Notice of Objection to Competency of the Appeal initiated by the appellant's Notice of Appeal filed on 12 September 2008 on the ground that the Notice of Appeal was filed out of time. 3 Order 52 r 15(2) of the Federal Court Rules provides that the Court or a Judge for special reasons may, at any time, give leave to file and serve a Notice of Appeal. 4 When the matter was called on for hearing this morning, I raised with the appellant the question of the competency of his appeal and indicated to him that I was content to treat the document, which he filed on 12 September 2008, as an application for an extension of time within which to file his Notice of Appeal and to treat the document which was filed as a proposed Notice of Appeal. 5 I asked the appellant whether he was content to proceed in that fashion, and he indicated that he was. Mr Snell, who appears for the first respondent, indicated that he was prepared to deal with the matter on that basis but also submitted that leave to file a Notice of Appeal out of time should not be granted in the circumstances of the present case because no special reasons could be demonstrated. In particular, Mr Snell relied upon the fact that the Grounds of Appeal, set out in the Notice of Appeal, constituted no more than a complaint about the merits of the Delegate's decision and the Tribunal's decision and raised no appropriate ground for review in this Court. In my view, in considering whether special reasons can be demonstrated within O 52 r 15(2), I would ordinarily need to consider the prospects of the foreshadowed appeal. But, in the present case, for reasons which I will explain, I proposed to deal with the O 52 r 15(2) leave point first and to do so upon the assumption, for the moment, that the appellant's prospects on the appeal itself are arguable. 6 In the present case, bearing in mind that the process was filed only a week after the latest date within which it could have been filed as a matter of right, and also bearing in mind that the first respondent cannot demonstrate any prejudice as a result of the late filing of the process, it would not take much for me to grant the extension of time sought. 7 There is material in the affidavit sworn and filed by the appellant which suggests that he may have been given inaccurate information by Registry staff as to the time within which he was required to file his Notice of Appeal. Having regard to the possibility that he may have been misled - and I pause here to indicate that when I use that word I do not suggest anything deliberate was done - as to the time within which he might file his Notice of Appeal, it seems to me that the proper course for me is to regard that possibility, as verified by him in his affidavit, as constituting "special reasons" within O 52 r 15(2) and to grant leave to the appellant to file his Notice of Appeal out of time. That is to say, to grant an extension of time within which the appellant might file his Notice of Appeal to 12 September 2008. Accordingly, I propose to grant that leave to the appellant. 8 I will now turn to consider the appeal, treating the Notice of Appeal as filed as containing the grounds of appeal relied upon by the appellant in support of his appeal. 9 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 26 May 2007. On 5 June 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the appellant's application for a protection visa on 20 June 2007. On 18 July 2007, the appellant applied to the Tribunal for a review of that decision. 10 In the proceedings before the Tribunal, the appellant claimed to have a well-founded fear of persecution by reason of his practice of Falun Gong. He claimed that in 2004, the relevant authorities in China became aware that he and his family were practising Falun Gong. The relevant county leader allegedly told the appellant that he could be arrested at any time for practising Falun Gong and ordered him to write a repentance letter, so the appellant claimed. The appellant stated that he then moved to the neighbouring Gaofeng County to avoid persecution and subsequently left China. He claimed in the proceedings before the Tribunal that, after he arrived in Australia, he was informed that the Chinese authorities were looking for him. 11 The Tribunal was not satisfied that the appellant was a Falun Gong practitioner and did not accept that the appellant had practised Falun Gong in China or in Australia. At pages 8 and 9 of the Tribunal decision, the Tribunal gave detailed reasons for these findings. They were factual findings, going to the merits of the appellant's claims. In the course of making those findings, the Tribunal noted that the appellant claimed to have conducted Falun Gong exercises only once or twice. 12 The Tribunal considered that the appellant had only done so, if at all, in order to acquire some knowledge of Falun Gong practices for the purpose of seeking to persuade the Tribunal that he was a genuine Falun Gong practitioner. The Tribunal also found that the appellant's evidence at the hearing conflicted with assertions he had made in his protection visa application. The Tribunal found that this matter reflected adversely on the appellant's credit. The Tribunal noted that the appellant had given different accounts of how and when his family were introduced to Falun Gong, of how and when the county leader had approached him and his mother, and that the appellant had not initially stated that his wife had been a Falun Gong practitioner although, subsequently, he did so. 13 The Tribunal also formed the view that the appellant had demonstrated a lack of knowledge about Falun Gong practice and belief. Based upon these findings, the Tribunal was not satisfied that the appellant had practised Falun Gong in Australia or in China and rejected his account of past events in China. For these reasons, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in China and was not satisfied that the appellant had suffered Convention-based persecution or that there was a real chance he would be persecuted if he returned to China. 14 In the proceedings before the Federal Magistrate, the appellant claimed that the Tribunal decision was affected by jurisdictional error, that he had been denied procedural fairness in the Tribunal hearing and that the Tribunal had failed to comply with its obligations pursuant to s 424A of the Act. The learned Federal Magistrate, in considering the Tribunal's decision, in light of the claims made by the appellant, found that the first ground did not advance the appellant's position at all. In relation to the second ground, his Honour was satisfied that the Tribunal had complied with the relevant notice requirements for the hearing under s 425 of the Act and that it had raised the critical issues with the appellant during the course of the hearing. In the view of the Federal Magistrate, there was no evidence before him that the Tribunal had conducted the hearing or asked questions in any way which could be described as inappropriate, unfair or unjust. 15 The learned Federal Magistrate was also satisfied that the Tribunal was not required to put any inconsistencies or perceived lack of plausibility relating to the appellant's evidence to the appellant by reason of the operation of s 424A(1) of the Act and that any country information relied upon was excluded from the obligation contained in s 424A(1) by reason of the operation of s 424A(3)(a) of the Act. 16 It seems to me that the grounds raised before the learned Federal Magistrate were grounds which are fairly described as merits grounds and not grounds constituting appropriate grounds for judicial review. 17 As I have already mentioned, in this Court the appellant has filed a Notice of Appeal. The Grounds of Appeal set out in that document are as follows: "1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I clarify all my points at the hearing of the Federal Magistrates Court but the judge did not consider my application fairly. The judge refused my application on 15 Aug. 2008. It is not fair. I am Falun Gong practitioner. I will be persecuted if I return to China. 3. I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court." 18 The Notice of Appeal was supported by an affidavit filed on 12 September 2008. That affidavit does not contain any additional material going to the Grounds of Appeal to which I have just referred. As I have already mentioned, the affidavit does, however, contain some suggestion that the reason the Notice of Appeal was lodged late was a combination of the late provision to the appellant of the Federal Magistrate's orders and an incorrect indication from perhaps someone in the Registry of the Federal Magistrates Court or the Registry of this Court that the appellant had until 23 September 2008 to lodge his Notice of Appeal. 19 In oral submissions before me today, the appellant has repeated his contention that the decisions of the delegate, the Tribunal and the learned Federal Magistrate were not fair and did not fairly reflect the merits of his claims. This is a complaint which amounts to the seeking of a merits review of the decisions and, in particular, the decision of the Federal Magistrate and cannot be pursued in this Court on an application such as that presently before me (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; (2000) 74 ALJR 405 per McHugh J at [67]). 20 I have come to the view that the appellant has not made out a case for overturning the Federal Magistrate's decision or for judicial review of the Tribunal's decision. 21 As far as Ground 1 is concerned, which is the allegation of bias on the part of the Tribunal, it needs to be remembered that this ground was not argued in the proceedings before the learned Federal Magistrate. Such an allegation must be distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Rarely will bias on the part of the Tribunal be apparent from the written reasons only (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358). 22 In the present case, there was nothing in the material which is before me which indicates bias. Furthermore, there is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the question of determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982 at [27]-[32]). 23 Ground 1 has not been made out. 24 Ground 2 and Ground 3 should be considered together. There is no particularity to the grounds, as specified in the Notice of Appeal, no evidence to support them and no submissions which justify them. For these reasons, these grounds also cannot succeed. 25 I have dealt with the matter on the basis that the appeal was regularly before me for decision today. On the basis that the appeal was being heard and determined on this occasion, in my view, none of the Grounds of Appeal has been made out and, therefore, the appeal is dismissed with costs. I will order that the costs be fixed at $2,300.00. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.