SZOQJ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The first appellant and her husband, who is the second appellant, filed a Notice of Appeal in the Registry on 17 February 2011. The decision from which they seek to appeal is a decision of a Federal Magistrate given on 31 January 2011 (SZOQJ v Minister for Immigration [2011] FMCA 64). The Federal Magistrate refused to grant an extension of the time within which the appellants might seek judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) by which the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to grant protection visas to the appellants. The application before the Federal Magistrate was made pursuant to s 477(2) of the Act. 2 The appellants are citizens of China. The first appellant arrived in Australia on 12 January 2008. The second appellant, who is the husband of the first appellant, arrived in Australia on 17 March 2008. On 21 October 2009, the appellants lodged an application for protection visas with the Department of Immigration and Citizenship. The husband relied upon the wife's claims for protection upon the basis that he is a member of her family unit. A delegate of the Minister refused that application on 1 February 2010. On 24 February 2010, the appellants applied to the Tribunal for a review of that decision. On 14 May 2010, the Tribunal affirmed the delegate's decision to refuse to grant protection visas to the appellants. 3 The appellants applied to the Federal Magistrates Court for an extension of time on 23 September 2010. They should have filed their application for judicial review of the Tribunal's decision by 18 June 2010. They were, therefore, more than three months out of time. 4 In his Reasons for Judgment, after considering the evidence led before him by the applicants, the Federal Magistrate said at [9]: Having considered the affidavit of the applicant [referring to the first appellant] and the fact that she was not cross-examined upon it, and having looked at the documentation in the court book, which is a copy of the applicant's PVA and other documents, I would be prepared to give the applicant the benefit of the doubt upon her statement. In other words, I would be reluctantly prepared to accept that she had not been informed by Mr Wang of the result of the Tribunal decision, that she did not get the decision record herself and that after a considerable delay she felt that something must be wrong and therefore enlisted the help of a friend who spoke English to take her to the Tribunal and obtain the copy which is now the subject of this application. 5 The Federal Magistrate went on, however, to hold that he was not convinced that any jurisdictional error had been committed by the Tribunal. The Federal Magistrate examined in some detail the arguments advanced on behalf of the appellants by their Counsel. In the end, the Federal Magistrate took the view that it was not in the interests of justice to extend the time for the filing of the application. At [18] of his Reasons, the Federal Magistrate said: This is one of those cases where the Tribunal faced with what might be a plausible series of claims is able to indicate from the evidence given by the applicant herself, inconsistencies within that evidence and with country information that it is unable to accept the truth of the claims. It hardly needs to be said that an assessment of the credibility of an applicant is a Tribunal's duty par excellence or that, provided the Tribunal can show why it has taken a view against a particular applicant, then it is not for this Court to interfere with those findings. This is not an appeal de novo, it is a judicial review. I have not been able to see in the findings and reasons of this Tribunal any indication of a jurisdictional error that would lead me to the view that the interests of justice will be served by my extending the time for the filing of the application. The application for extension of time is therefore dismissed and the substantive application will not be heard. The applicants are to pay the first respondent's costs which I assess in the sum of $5,000.00. 6 In support of their appeal in this Court, the appellants swore an affidavit which raised a number of matters in support of the grounds set out in the Notice of Appeal. They said that the Federal Magistrate was biased against them. They also sought to support their assertions that they were Christians and had attended an underground Church in China. In addition, in statements made to me today, the first appellant traversed the merits of the refugee claims which she had made to the Department and again in the Tribunal. 7 On 28 February 2011, the Minister filed a Notice of Objection to Competency which is in the following terms: The First Respondent objects to the competency of this proceeding on the grounds that: 1. The judgment of Raphael FM, given on 31 January 2011 refused to make an order under subsection 477(2) of the Migration Act 1958 (Cth) ("the Act"); 2. Pursuant to section 476A(3)(a), no appeal can be brought from a judgment of the Federal Magistrates Court that refused to make an order under subsection 477(2) of the Act. 8 Subsection 476A(3)(a) makes clear that no appeal may be brought to this Court from a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subs 477(2) of the Act. It is quite clear that the present Notice of Appeal is an attempt to seek to appeal from the Federal Magistrate's refusal to make an order pursuant to s 477(2) of the Act. It is squarely within s 476A(3)(a) of the Act and is therefore incompetent. 9 For this reason, this Court has no jurisdiction to deal with the Notice of Appeal which has been filed. The only jurisdiction which the Court has is to decide the question of jurisdiction. In my view, the Notice of Objection to Competency is soundly based and the present appeal should be dismissed. I therefore dismiss the appeal. 10 The Minister has sought an order for costs against the appellants. The advocate for the Minister assesses those costs at $500. I think the circumstances of the case are rather unfortunate. The appellants do not have a command of English. Usually applications such as this are rejected over the counter at the Registry. Unfortunately, that did not happen in this case. The appellants are not represented before me and apparently had no legal assistance in preparing their Notice of Appeal. It is asking too much of appellants who have no capacity to speak or understand English and no legal training to search out and understand s 476A(3)(a) of the Act. I think that, in the circumstances, it would be unduly harsh to order the appellants to pay the Minister's costs. I propose to make no order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.