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[2010] FCA 94
Federal Court of Australia
2010-02-19
Edmonds J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 By way of application filed on 6 November 2009, the applicant seeks an extension of time to appeal from a judgment of the Federal Magistrates Court delivered on 16 September 2009: SZMTI v Minister for Immigration & Anor [2009] FMCA 984. The judgment dismissed an application for review of a decision of the second respondent ('the Tribunal') dated 30 April 2009 which affirmed a decision of a delegate of the first respondent ('the Minister') to refuse to grant the applicant a protection visa. 2 Pursuant to O 52 r 15(1) of the Federal Court Rules 1979 ('the Rules') the applicant was required to file and serve a notice of appeal within 21 days after the date of the Federal Magistrate's judgment, that is, by 8 October 2009. 3 The application was accompanied by an affidavit, sworn by the applicant on 4 November 2009, in which the applicant sought to explain the delay in filing a notice of appeal, as well as a draft notice of appeal. 4 The respondent opposed the application on the basis that the applicant had not demonstrated that there were special reasons why an extension of time should be granted and that there was no utility in granting an extension of time as the grounds of the proposed notice of appeal had no prospects of success.
BACKGROUND 5 The applicant is a citizen of the Peoples Republic of China ('China') who arrived in Australia on 28 February 2008 and applied for a Protection (Class XA) visa on 5 March 2008. On 10 April 2008 a delegate of the Minister refused the visa and on 24 April 2008 the applicant applied for review of the delegate's decision by the Tribunal. 6 The Tribunal, as originally constituted, made a decision on 29 July 2008 affirming the delegate's decision. That decision was quashed by order of the Federal Magistrates Court on 2 December 2008. Following the remittal of the matter to a differently constituted Tribunal, a new hearing was held on 13 March 2009. The second Tribunal, by decision dated 30 April 2009, also affirmed the delegate's decision. 7 In summary, the applicant claimed to fear persecution due to being a Falun Gong practitioner. He claimed to have begun practising Falun Gong after being introduced to it after suffering an injury in December 2004. He claimed to have later practised Falun Gong each night at his home after work and that, in February 2007, police came to his home and found Falun Gong material there. He was detained at a police station and mistreated overnight before being released, after his brother, who worked in the Public Security Bureau, paid a bribe. The applicant claimed that police then came to his home regularly to check on him, that he did not return to work after being released and that he eventually found an agent to assist him to come to Australia. The applicant also claimed to have attended Falun Gong practice sites in Australia. 8 In affirming the decision of the delegate, on the second occasion the Tribunal found the applicant lacked credibility. It was not satisfied the applicant had given truthful evidence about his life and experiences in China and other aspects of his evidence were implausible. 9 The Tribunal found the applicant to have given inconsistent evidence about the length of his alleged detention in 2007 and to have given confused evidence about his residential addresses in China until he left for Australia. The Tribunal noted that the applicant had given varying evidence regarding his having worked after his release from detention. The Tribunal found implausible the applicant's evidence that the police had not questioned his wife, despite finding Falun Gong material in her handbag and the applicant's evidence regarding the effect of the bribe paid by his brother to secure his release. The Tribunal further doubted the veracity of the applicant's evidence due to his ability to obtain a passport after his release without difficulty. As a result of these findings, the Tribunal did not accept that the applicant had ever been a Falun Gong practitioner in China or that the claimed incidents occurred. 10 While the Tribunal accepted that the applicant had attended Falun Gong study sessions and a rally in Australia, it determined that the applicant had done so for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal disregarded these activities pursuant to s 91R(3) of the Migration Act 1958 (Cth) ('the Act'). 11 Consequently, the Tribunal was not satisfied the applicant had a well-founded fear of persecution.
In the Federal Magistrates Court 12 The proceedings in the Federal Magistrates Court were commenced by application filed on 22 May 2009. The application contained a single ground of review stated as follows: '1. 1 have been a Falun Gong Practitioner. Since December 2004, I've started practiced Falun Gong introduced by my mother-in law due to my suffering ongoing pain. In January 2007, I was detained, beaten and mistreated by the local police. After my brother bribed two a PBS director I was released. But in the Decision of RRT, the delegate said; "The Tribunal found t hat the applicant was not a Falun Gong practitioner in China". I think the delegate didn't consider my true expirence of practice of Falun Gong in China. I think the delegate has bias towards my application of protection visa, which is a jurisdictional erroe while making his decision.' 13 By orders made on 11 June 2009 the application was listed for final hearing on 16 September 2009. 14 In a judgment delivered ex tempore on 16 September 2009, the Federal Magistrate dismissed the application with costs. Written reasons for decision were later provided by the Court. 15 In her reasons for judgment, her Honour noted that it was not clear whether the applicant was taking issue with the decision of the delegate or the Tribunal (at [21]). Her Honour considered whether there was actual or apprehended bias on behalf of the Tribunal but found that neither had been made out on the evidence that was before the Court (at [23] - [28]). 16 Her Honour noted that, to the extent that the applicant was taking issue with the findings of fact, findings of fact are for the Tribunal and no jurisdictional error was established from the Tribunal's adverse credibility findings. Her Honour also noted that there was no material before the court that would demonstrate any failure by the Tribunal to comply with its procedural obligations under the Act, in particular, ss 424A or 425 (at [30]).
Special reasons 17 Order 52 r 15(2) of the Rules gives the Court discretionary power to grant leave to an applicant to file and serve a notice of appeal at any time for special reasons. 18 'Special reasons' was described in Jess v Scott (1986) 12 FCR 187 at 195 as: '[A]n expression describing a flexible discretionary power, but one requiring a case to 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.' 19 The only reason given by the applicant to explain his delay is that he did not receive the written reasons for judgment until 9 October 2009, despite the fact that he was present at the hearing when the ex tempore reasons were given. Additionally, the applicant does not explain the further delay of four weeks between his receipt of the written reasons for judgment and the filing of his application for an extension of time. The applicant should provide a satisfactory explanation for the entire period of the delay: QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 at [7]. The applicant did not act promptly even after being furnished with a copy of the written reasons. 20 The Minister submitted that the applicant had not demonstrated special reasons sufficient to justify such a departure from the ordinary rule. 21 I agree.
Proposed Notice of Appeal - No prospects of success 22 The Minister also submitted that an extension of time to file the proposed notice of appeal should not be granted because there are insufficient prospects of success in the appeal. 23 The applicant seeks to challenge the judgment of the Federal Magistrate on the following two grounds: '1. In my application forms of protection visa, I stated my grounds and provided evidences of my refugee, particularly, at the Tribunal hearings, I repeated my grounds and evidences, but the Tribunal didn't accept my grounds and evidences and affirmed the decision of the Immigration Department. I think the Tribunal member failed to consider my claims and evidences according to S91R of the Migration Act 1958 because of the Tribunal member's bias against me. 2. The Federal Magistrate Barnes FM didn't point out the Tribunal members jurisdictional error.'
Ground one 24 This ground does not identify any error in the decision of the court below and largely restates the ground asserted before that court and rejected by it. The applicant provided no evidence before the court below to support an allegation of bias and there was no error in the court's finding that bias had not been made out.
Ground two 25 This ground does not identify any error in the decision of the Federal Magistrate and merely makes a factual assertion. 26 For these reasons, the Minister submitted that an extension of time should not be granted as there is no prospect of success in an appeal. 27 I agree.
CONCLUSION 28 Nothing before the Court sustains an argument that there are special reasons to grant the applicant an extension of time and in the absence of any prospect of success, there would be no utility in extending the time to file a notice of appeal. 29 The application must be refused with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
SZMTI
Minister for Immigration & Citizenship