SZOWZ v Minister for Immigration and Citizenship

Federal Court of Australia|2011-08-03|Before: Rares J

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The applicant seeks an extension of time in which to file an application for leave to appeal from an order made on 14 April 2011 by the Federal Magistrates Court under r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) dismissing his application to that Court for constitutional writ relief on the basis that he had not appeared. It is now three minutes past 11.00 am and the applicant has not appeared. This matter was listed for hearing at 9.30 am today. The applicant has been called outside the Court this morning and the court officer has attempted to contact him on the mobile phone number given in his affidavit in these proceedings sworn on 11 May 2011. When telephoned, the number responded with a recording by the telephone company that the number was no longer connected.

The context of the application for an extension of time 2 The circumstances can be stated briefly. The federal magistrate exercised his power under r 13.03C(1)(c). That provided that if an applicant was absent from a hearing, the Court could dismiss the application. The Federal Magistrates Court had listed the application for final hearing on 14 April 2011 at 9.30 am and notified the applicant of that listing date by a letter dated 17 March 2011 that is on the court file. I was informed by Ms Warner Knight, who appears for the Minister, that he did not attend on that day and his Honour exercised his power to dismiss the application under r 13.03C(1)(c). 3 The application in this Court was filed on 12 May 2011. It sought an extension of time in which to file and serve a notice of appeal from the orders made by the Federal Magistrates Court on 14 April in Sydney. Because the orders made by that Court were interlocutory, the application should have sought an extension of time in which to file an application for leave to appeal. The applicant swore an affidavit on 11 May saying that he was self-represented and contending that the trial judge had failed to identify a jurisdictional error by the tribunal in his hearing. That is undoubtedly correct since no basis was made out for such a finding. The applicant then said that he believed his case had a reasonable prospect of success and he had the right to present his case to this Court since he did not agree with the decision of the Federal Magistrates Court asserting that: "… I'm only over the 21 days appeal deadline by less than a week. It's not a significant delay. The reason why I ask the court to extend the time to appeal is because I've changed my address and the previous landlord didn't hand in the letter to me until 10 May 2011. I then have to contact my English translator to prepare the appeal application." 4 The draft notice of appeal asserted that the trial judge failed to detect a jurisdictional error because the applicant had not been given an opportunity to explain and provide evidence as to why his answers about his parents' practice of Falun Gong were different to the answers that he had given to the tribunal. It also asserted that the tribunal acted as an arbiter of religious knowledge by questioning the applicant about five particular standards and quoting from a particular text. That assertion arose in the context that the applicant had made a claim, as recorded in the tribunal's decision, based on his parents having been persecuted in China for practising Falun Gong.

The applicant's claims 5 The applicant is a citizen of the People's Republic of China who arrived here on 13 January 2010. He had left China in April 2008 and came to Australia from New Zealand, before which he had been in Hong Kong. He was refused a protection visa by a delegate of the Minister on 31 August 2010. The tribunal affirmed the delegate's decision on 26 November 2010. The claims he made in his application were that his father had been forced to terminate his relationship with his mother because of their practice of Falun Gong. He claimed that his mother had been forced to leave China and had gone to the United States of America. The applicant claimed that if he returned to China he would be homeless, face torture and be thrown in gaol. He claimed that no relatives or friends were willing to keep contact with him and as the local authorities had banned Falun Gong, if he returned to China nothing could be done to protect him. His claim, as articulated in the hearing before the tribunal, was that he could not go back to China because his mother said that he would be detained since she was a Falun Gong practitioner, having practised for more than five years. 6 The tribunal found that overall the applicant's recounting of events was vague and unconvincing. He was unable even to give it the address at which he asserted he had lived for seven years from 2000 to 2007 that he had put in his application. The tribunal found that the applicant's explanations of his association with Falun Gong were indicative of a person who was making up his claim. It was unconvinced by the applicant's explanations about his inconsistent accounts of the tenets of Falun Gong and his assertions that his mother publicly practised Falun Gong at a time when that practice was prohibited in China. The tribunal also noted that he had delayed in making any application for protection, leading it not to be satisfied that any of his claims arising from events in China or his mother's practice of Falun Gong had occurred. The tribunal concluded that it was not satisfied that there was a real chance that any Convention based harm would befall the applicant in the reasonably foreseeable future were he returned to China by reason of his relationship with his mother or his claimed association with Falun Gong. 7 It found that given the applicant's lack of knowledge of Falun Gong in relation to its five exercises, the tribunal was not satisfied that he had ever been, or would be perceived to be, a Falun Gong practitioner, and accordingly, it was not satisfied that he had a well-founded fear of persecution for a Convention reason.

Consideration 8 An extension of time in which to bring or seek to bring an appeal will be granted where the Court considers that there is a reasonable explanation for the delay and that there is some identified and sufficient basis for the grant of leave to appeal: see Jess v Scott (1986) 12 FCR 187 at 191-192; Jackamarra v Krakouer (1998) 195 CLR 516; SZJFC v Minister for Immigration [2009] FCA 1322 at [20]. The Minister has asked that I exercise my power under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to dismiss the application for an extension of time by reason of the failure of the applicant to attend today's hearing. That section applies to an application for leave to appeal or an extension of time in which to institute an appeal by force of s 25(2BA). 9 In my opinion, the applicant's explanation for the need for an extension of time in which to file an application for leave to appeal has no substance. The applicant has not filed any further material since 12 May 2011 and, in particular, has not sought to identify any substantive basis of error by either the trial judge or the tribunal. He was notified by the appeals registry on 29 June 2011 of the listing of this application today. The solicitor for the Minister confirmed that listing in a letter written to the applicant on 5 July 2011. It was the responsibility of the applicant to notify the Federal Magistrates Court and the Minister of any difficulty he had in attending at that Court. Nothing in his material filed in this Court explains his failure to attend at the hearing below. Had some misadventure occurred, he could, no doubt, have applied to the trial judge to grant him a hearing under the rules of that Court, or alternatively in the exercise of the implied jurisdiction if, through no fault of his own, he had not been able to attend at the hearing: Taylor v Taylor (1979) 143 CLR 1. 10 The applicant was given an opportunity to attend and give evidence before the tribunal which he exercised. The tribunal made inquiries about his knowledge and practice of Falun Gong. However, it did not appear to descend into detail so as to be capable of being seen to be an "arbiter of religious knowledge" or otherwise conduct itself so as to raise any issue that might attract a finding of jurisdictional error. Having read the tribunal's decision carefully, I am unable to perceive any apparent jurisdictional error, and certainly none of the kind that the applicant seeks to be made the subject of an appeal to this Court. 11 In my opinion, the present application should be dismissed on its merits. There is no sufficient explanation as to why the applicant failed to attend before the Federal Magistrates Court at the hearing of his application on 14 April 2011. Given that there is no such explanation, it is safe to infer that no good reason existed as to why he failed to attend. Indeed, it would have been, as I have said, open to him to apply to the Federal Magistrates Court to restore his application had such a reason existed. This Court would be concerned to deal with some identified error in the power exercised by his Honour under r 13.03C(1)(c) of the Federal Magistrates Court Rules in dismissing the application by reason of the applicant's failure to attend before that Court. But, no such error has been identified. Moreover, there appears to be no substance in any substantive application for leave to appeal that the applicant might wish to make.

Conclusion 12 The application for an extension of time to file and serve a notice of appeal is, of course, incompetent since the trial judge's order is interlocutory. Allowing for the fact that the applicant might have been excused in respect of that technical error and then permitted to agitate the substance, had there been any, of an application for an extension of time in which to file an application for leave to appeal, such an application would have been futile on the material presently before me. It follows that the application should be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Federal Magistrates Court Rules 2001(Cth)r 13.03C(1)(c)

Federal Court of Australia Act 1976(Cth)ss 25(2B)(bb)(ii), 25(2BA)

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