SZLUU v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-21|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The applicant applies to this Court for an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Smith delivered on 2 June 2008 (see SZLUU v Minister for Immigration and Anor [2008] FMCA 770). The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 22 November 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') not to grant the applicant a Protection (Class XA) visa.

FACTS 2 The applicant is a citizen of the People's Republic of China ('the PRC'). Before the Tribunal the applicant claimed to fear persecution in the PRC resulting from his political opinion. The applicant claimed to have been involved in a series of disputes relating to unpaid wages with his former employer, a project manager of a construction firm in the city of Dalian, Liaoning Province. The applicant claimed that a friend of his was beaten and killed by the project manager's bodyguards during one such dispute. 3 The applicant claimed that he contacted the Public Security Bureau ('the PSB') to investigate the death of his friend. However, the police sent by the PSB to investigate the matter were allegedly bribed by the project manager and as a consequence concluded that the applicant's friend had died in an industrial accident. 4 Despite allegedly being threatened and beaten by the project manager and his bodyguards, the applicant decided to pursue his friend's case. The applicant claimed that this led to his arrest and detention by the PSB on charges of inciting an 'anti-government movement'. He claimed that he was 'cruelly tortured' by the PSB for one month and was only released after his wife bribed both the PSB and the project manager. 5 After his release the applicant returned to Fuqing City, Fujian Province. The applicant claimed that he was blacklisted by potential employers because of his anti-government activity. 6 The applicant left the PRC to 'escape from persecution'. After the applicant left the PRC, he claimed that the PSB sent summonses addressed to him in both Dalian and Fuqing City. The applicant claimed that he feared that the PSB would arrest him if he returned to the PRC. 7 The Tribunal was not satisfied that the applicant's claims were truthful or that he was of any adverse interest to the authorities in the PRC. The Tribunal observed several inadequacies in the applicant's account in support of its conclusion. These included the applicant's initial failure to raise his fear of arrest in his protection visa application and his departure from the PRC using a legitimate passport. 8 In view of its adverse finding relating to the applicant's credibility the Tribunal rejected a subsidiary claim by the applicant that he feared persecution from criminals associated with the project manager. Although the applicant had produced what he claimed to be summonses issued by the PSB to the applicant, the Tribunal expressed concerns over their authenticity and ultimately rejected their relevance in light of its other findings. 9 The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. The Tribunal accordingly found that the applicant did not satisfy the criterion under s 36(2)(a) of the Migration Act 1958 (Cth) ('the Act') for a protection visa.

APPLICATION IN THE FEDERAL MAGISTRATES COURT 10 By application filed in the Federal Magistrates Court of Australia on 20 December 2007 the applicantsought judicial review of the Tribunal decision. Such application came before Federal Magistrate Smith on 2 June 2008. 11 Before Smith FM the applicant claimed that the Tribunal incorrectly found that he had failed to raise his fear of arrest in his protection visa application; that its decision was affected by a reasonable apprehension of bias; and that the Tribunal failed to consider the applicant's claims properly and fairly. 12 Smith FM was satisfied that the Tribunal's reference to the applicant's 'new' claim to fear arrest was a reference to the claim made by the applicant early in the Tribunal hearing relating to the two summonses purportedly issued by the PSB. His Honour noted that such 'new' claim was used by the Tribunal to test the applicant's veracity and that the Tribunal's consideration of such claim did not involve any misunderstanding of the applicant's refugee claims. 13 Addressing the claim of bias, Smith FM held that there was no material before the Court that suggested any actual or apprehended bias on the part of the Tribunal. His Honour was satisfied from a reading of the Tribunal decision that the Tribunal's inferences were open to it on the evidence before it. 14 In considering the applicant's allegation that the Tribunal failed to consider his claims 'properly and fairly', Smith FM observed that it was clear that the Tribunal had fully considered the applicant's claims. In these circumstances, Smith FM could discern no jurisdictional error on the part of the Tribunal and accordingly dismissed the application for review.

APPLICATION FOR EXTENSION OF TIME 15 Smith FM delivered his decision on 2 June 2008. Pursuant to O 52 r 15(1) of the Federal Court Rules (Cth) ('the Rules') any appeal from that decision ought to have been filed on or before 23 June 2008. As no appeal was filed by that date, under O 52 r 15(2) of the Rules the applicant requires the leave of the Court in order to file and serve a notice of appeal. Order 52 rule 15(2) provides: 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.

16 On 2 July 2008 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal. Such application was accordingly nine days out of time. On the same day the applicant also filed an affidavit sworn on 1 July 2008 which attached a draft notice of appeal. The affidavit asserts that the applicant 'did not receive the whole of the judgement of Federal Magistrates Court of Australia until 26 June 2008; and I thought that I could not lodge my appeal until I received the whole of the judgement'. 17 The draft notice of appeal claims that Smith FM erred in law and erred in finding that the Tribunal 'acted properly in its findings'. Such grounds are particularised as follows: 1. The Tribunal incorrectly found that the applicant had not raised his alleged fear of arrest in his protection visa application; 2. The Tribunal was biased insofar as it unreasonably expected the applicant to give a 'logical explanation' for the issue of the PSB summons; and 3. The Tribunal failed to consider the applicant's claims properly and fairly, in particular the claims made in his response to its letter pursuant to s 424A of the Act. 18 The applicant did not appear before this Court at the hearing of his application on 19 August 2008. The Court notes that both the Court Registry and the Minister had sent letters to the applicant confirming the date, time and location of the hearing. The Court also notes that while the letter sent by the Court Registry to a nominated residential address in Marylands was returned with the words 'DOES NOT LIVE HERE!' written on the envelope, two letters confirming the hearing details sent by the Minister to another nominated address, namely a post office box in Auburn, were not returned. The Court infers from that fact that the applicant was notified of the details of the hearing of his application.

FINDINGS 19 It has been recognised that 'special reasons' require an applicant to demonstrate that there is a special justification for the Court granting leave. In Jess v Scott and Others (1986) 12 FCR 187 at 195 the Court said of the grounds necessary to be established before leave will be granted: 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.

20 In considering whether 'special reasons' exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Parker v The Queen [2002] FCAFC 133. 21 As to delay, the Court notes that whilst the applicant submits that he did not obtain the 'whole of the judgement' of Smith FM, the applicant was present when Smith FM gave his ex tempore judgment on 2 June 2008 dismissing the applicant's application for review. Accordingly, the claim that the applicant only received a copy of the reasons for judgment on 26 June 2008 is an irrelevant consideration: see SZKQR v Minister for Immigration and Citizenship [2008] FCA 267 at [13] per Gilmour J. Accordingly the Court does not accept the applicant's explanation for his delay. 22 The Court notes that the Minister does not submit that he would suffer any prejudice if leave were granted. 23 As to the merit of the proposed appeal, two grounds are sought to be raised. The first draft ground of appeal simply alleges that Smith FM erred in law. No specific breach is identified and no breach is apparent in the decision of Smith FM. In these circumstances the Court is satisfied that such ground is without merit. 24 The second proposed ground of appeal claims that Smith FM was wrong in finding that the Tribunal had acted properly in its findings. No particulars are provided in support of such proposed ground. The Court considers that Smith FM did not err in his consideration of the Tribunal's reasons for its decision. 25 In considering the applicant's allegation of bias, the Court observes that an allegation of bias must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. In the absence of particulars in support of the applicant's allegation, the Court rejects this ground of appeal. 26 Insofar as the applicant claims that the Tribunal failed to consider his review application 'properly and fairly', the Court notes that there is no material before it to support such a claim. Further, the Tribunal reproduced in its written reasons the applicant's response to the Tribunal's letter sent pursuant to s 424A of the Act, and there is nothing before the Court to indicate that the Tribunal breached its obligations under the Act in its consideration of such response. 27 The applicant has not demonstrated any prospects of success in his draft notice of appeal. Although the Court acknowledges that the Minister would not be unduly prejudiced if leave were granted to the applicant to file a notice of appeal, the inadequacy of the explanation for the delay and the lack of merit in the draft notice of appeal leads the Court to conclude that 'special reasons' do not exist under O 52 r 15(2) of the Rules to justify the Court granting leave to the applicant to file a notice of appeal out of time. 28 It follows that the application must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Applicant: The Applicant appeared in person.

Solicitor for the First Respondent: Australian Government Solicitors

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