SZMMT v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 4 The Tribunal did not accept that the applicant was a credible witness. It noted that her written claims were brief and she was unable to provide substantial oral detail at the hearing. The Tribunal further observed that the applicant's preoccupation when questioned appeared to be with her poor financial situation rather than the alleged fear of persecution. Finally, it noted that the applicant had left the PRC using her own passport, indicating that she was not 'of particular adverse interest to the Chinese authorities'. For these reasons, the Tribunal was not satisfied that the applicant held a well-founded fear of Convention-related persecution in the PRC.

APPLICATION IN THE FEDERAL MAGISTRATES COURT 5 By application filed in the Federal Magistrates Court of Australia on 9 July 2008 the applicant sought judicial review of the Tribunal's decision. 6 Before Emmett FM the applicant raised only one ground of appeal, that being that the Tribunal 'committed jurisdictional errors of law'. Emmett FM informed the applicant at the first directions hearing that the ground did not disclose any error capable of review. She granted the applicant leave to file and serve an amended application, however, the applicant did not file any further application. 7 Emmett FM found that the Tribunal put to the applicant its concerns relating to her evidence and recorded her responses. Her Honour found that the Tribunal's reasons were based entirely on evidence provided by the applicant. The Tribunal did not accept the applicant's claims of persecution and in consequence the Tribunal concluded that the applicant failed to meet the statutory criteria for being a refugee. Her Honour was satisfied that the Tribunal's findings, including the adverse credibility findings, were open to it on the evidence before it and that the Tribunal had applied the correct law to the facts as it found them to be. 8 Having found no jurisdictional error Emmett FM dismissed the application.

APPLICATION TO THIS COURT 9 On 2 December 2008 the applicant filed in this Court an Application for an Extension of Time to Appeal from the decision of Emmett FM. Accompanying that application was an affidavit annexing a Draft Notice of Appeal which contained the following grounds: 1. Federal Magistrate Emmett failed to find that the RRT breaches 424B of the Migration Act 1958 by failing to invite me to give additional information regarding my Protection Visa Application.

2. His [sic] Honour also failed to find that the 424A of the Migration Act 1958 also being breached as the applicant was denied by the Tribunal a complete investigation.

3. His [sic] Honour failed to find that the RRT made jurisdictional error by denying all my refugee claims based on one of its subjective finding that my application for Protection came from my son and friends' suggestion in response to my poor financial situation.

4. The RRT failed to conduct a complete investigation by concluding that my claims are extremely brief and then simply raised credibility issue without allowing me proper opportunity to clarify my refugee claims in details.

SUBMISSIONS OF THE APPLICANT 10 At the hearing before this Court the applicant appeared unrepresented but had the assistance of an interpreter. The applicant's affidavit filed in support of the application alleged that she had attempted to file the Notice of Appeal within the time limits prescribed by the Federal Court Rules ('the Rules') but that the Notice of Appeal was not accepted at the Registry. Upon questioning the applicant it became apparent that she had signed the affidavit having no knowledge of its contents. The applicant said that she had not been to the Registry on any prior occasion and that she had no knowledge of the content of her affidavit. Also, she was not aware of the claims she had made in the Draft Notice of Appeal. 11 As to the merits of her claim, the applicant said that she did not understand the legal requirements and hoped that the Court would allow her more time to stay in Australia. FINDINGS 12 The decision of Emmett FM was delivered on 5 November 2008. Accordingly, pursuant to O 52 r 15(1) of the Rules, the Notice of Appeal was required to be filed by 26 November 2008. The application and Draft Notice of Appeal were filed on 2 December 2008. Accordingly, leave is required pursuant to O 52 r 15(2) of the Rules to file the Notice of Appeal. 13 Such leave will only be granted if 'special reasons' are shown: see Jess v Scott and Others (1986) 12 FCR 187 at 195. The principles guiding the Court in its assessment of whether special reasons exist have been stated in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349. In summary, the Court is required to consider whether there has been an adequate explanation for the delay; whether any prejudice would be occasioned to the respondents if leave were granted; and whether the merits of the proceedings demonstrate that there is at least an arguable case for the applicant if leave to appeal were granted. 14 No satisfactory reason has been provided for the applicant's failure to file the Notice of Appeal within time. The Court does not accept that the explanation provided in the applicant's affidavit is genuine in view of her lack of knowledge of its contents. 15 As to the second consideration, namely whether any prejudice would be caused to the first respondent if leave were granted, it is apparent that no such prejudice exists. 16 As to the third requirement, namely that the Draft Notice of Appeal discloses an arguable case, the Court will consider the matters raised in the Draft Notice of Appeal. The Court notes however that none of the questions of law contained in the Draft Notice of Appeal were raised or relied upon before Emmett FM in the proceedings below. Therefore, to raise such issues will also require leave by the Court, independently of the application for an extension of time: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24].

Ground 1 17 Section 424B of the Migration Act 1958 ('the Act') sets out the requirements for a written invitation to an applicant under ss 424 and 424A of the Act. The Tribunal was unable to make a decision upon the information supplied by the applicant and accordingly it extended an invitation to her to attend a hearing pursuant to s 425 of the Act. The applicant accepted the invitation and attended before the Tribunal on 20 May 2008. 18 The applicant provided evidence to the Tribunal and there was no requirement for the Tribunal thereafter to communicate with her or to request further information. A Tribunal hearing is inquisitorial in nature and the Tribunal is not obliged to prompt or illicit information which the applicant chooses not to provide: see Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2007) 201 ALR 437 at [58]. It is the responsibility of the applicant to advance its argument and evidence in support of its contention of a well-founded fear of persecution: Abebe v The Commonwealth of Australia; Re The Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia and Another; Ex parte Abebe (1999) 197 CLR 510 at [187]; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 231 ALR 412 at [76]. 19 The Tribunal was entitled to proceed to make its decision on the evidence before it and the onus lay upon the applicant to provide all the information upon which she relied. There is no apparent basis to support the applicant's claim, and the Court is satisfied that this ground of appeal would not succeed.

Ground 2 20 No particulars are provided in support of this ground of appeal. 21 The obligation under s 424A(1) is to provide an applicant with clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal is required to ensure, as far as is reasonably practical, that the applicant understands why the information is relevant to the review and the consequences of it being relied upon. The Tribunal must also invite the applicant to comment or respond to the particulars. An exception is provided under s 424A(3)(b) to information which is provided by the applicant for the purposes of the application for review. 22 The Tribunal made its decision based upon the information provided by the applicant at the hearing and as such the information fell within the exception of s 424A(1) by virtue of s 424A(3)(b). The information which the Tribunal is required to disclose does not include its subjective appraisals and thought processes: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. 23 There is no demonstrable breach of s 424A as claimed.

Ground 3 24 The Tribunal found that the applicant was not a credible witness. It observed that her written claims were brief and that she was unable to provide substantial details orally at the hearing. The Tribunal observed that the applicant referred to her financial situation rather than her fear of persecution. The Tribunal's decision recorded that the applicant had said during the hearing that she and her son had 'run out of money' and that they had discussed 'how they could remain in Australia and have a life here'. It also was recorded that she had said her 'son and other friends had suggested that she apply for a protection visa'. 25 Given that no transcript of the Tribunal hearing was tendered at the hearing of the Federal Magistrate the Court must accept the Tribunal's summary of the verbal exchange between the applicant and the Tribunal. The Tribunal's finding that the applicant's claim was partly motivated by a desire to remain in Australia for financial reasons rather than a fear of persecution was a finding open to it on the evidence outlined above. Accordingly, there was no error by Emmett FM in her conclusions and the ground is rejected.

Ground 4 26 For the reasons stated in ground one, the obligation rests on the applicant to supply all of the material in support of her claims. 27 The Tribunal will have breached s 425 where it fails to notify an applicant of determinative issues arising under the review if these issues are different than what the delegate of the Minister considers dispositive: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]. However, the decision maker is not required to advise of any adverse conclusion which has been arrived at which would obviously be open on the known material: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. 28 The Tribunal must identify the dispositive or determinative issues: see SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486. However, the Tribunal is not required to identify the significance of the questions that it puts to the applicant or the ultimate matter of the issue to which those questions may be relevant: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 243 ALR 691 at [88]. 29 As stated earlier, the transcript of the hearing before the Tribunal is not available to this Court. However, the Tribunal had noted that the applicant was able to leave the PRC freely and that she had lived in the PRC for four years since the claimed demonstrations in which she participated took place without her having been arrested or detained or suffering persecution. 30 Emmett FM was satisfied that a fair reading of the Tribunal's decision disclosed that the Tribunal had put to the applicant its concerns concerning her evidence and that it noted her responses. The Tribunal was entitled to determine its own view of the credibility of the witness and in doing so formed the view that she was not credible. 31 The Court is satisfied that there is no merit to this ground. 32 It follows that the Court is not satisfied that the notice of appeal would have any prospect of success at a hearing. For these reasons the Court dismisses the application for leave to grant an extension of time in which to file the proposed appeal. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 26 February 2009 Counsel for the Applicant: Applicant appeared in person

Solicitor for the First Respondent: Australian Government Solicitor