SZQTI v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an application for leave to extend time to bring an appeal. The application is made in respect of a decision of the Federal Magistrates Court delivered on 8 August 2012. 2 The application was filed on 30 August 2012, namely one day outside the 21 day period prescribed by r 36.03 of the Federal Court Rules for the filing of an appeal. Attached to the application is a draft notice of appeal which sets out the grounds upon which the applicant would rely if this Court were minded to grant the application. The application is supported by an affidavit of the applicant sworn on 29 August and filed on 30 August 2012. Before dealing with the proposed grounds of appeal, I shall refer briefly to the history of these proceedings. 3 The applicant claimed to be a citizen of the People's Republic of China. He arrived in Australia on 22 July 2004. He applied for a protection visa on 28 July 2004. That application was refused by a delegate of the first respondent. There was some difficulty notifying the applicant of the rejection because a letter sent by registered mail to his nominated address informing him of such refusal was returned. Despite this difficulty, the applicant lodged an application for review of the delegate's decision with the Refugee Review Tribunal ('the Tribunal') on 14 October 2004. 4 The Tribunal considered that it had no jurisdiction to entertain the application due to the fact that the application was not brought within the requisite period. That decision was made on 7 February 2005. Due to some unexplained administrative problems, nothing further took place in this matter. However, on 27 July 2011, more than six years later, the applicant applied to the Tribunal for a review of the delegate's decision. 5 The Tribunal issued its decision on 16 September 2011. The Tribunal affirmed the delegate's decision. 6 Accordingly, the applicant made application to the Federal Magistrates Court. In a decision delivered on 8 August 2012, Barnes FM found that there was no basis to overturn the Tribunal's decision: see SZQTI v Minister for Immigration & Anor [2012] FMCA 750. Accordingly, the Federal Magistrates Court ordered that the application be dismissed with costs. It is that decision which the applicant now seeks leave to appeal. 7 The test which has traditionally been applied in this Court in determining whether an application for leave to appeal should be granted is referred to in the decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. The relevant principles have also been considered in Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [17]. 8 More recently, in SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17], the Court has affirmed the principles in both the above authorities. Those principles are: first, an applicant must satisfy the Court that there is an explanation for the delay in failing to bring the appeal within the prescribed time; and secondly that the grounds of appeal sought to be relied upon show at least an arguable case. In relation to the first issue, namely the explanation for the delay, it is not always that an inadequate explanation will prevent an application being granted: see Comcare v A'Hern (1993) 45 FCR 441. 9 In this instance the delay of one day is negligible, and the Court notes the reason advanced by the applicant, namely his inability to pay the filing fee. No prejudice on the part of the Minister is suggested. Accordingly the issue of delay should not prevent the application from being allowed. 10 However, the real issue confronting the Court on this application is the potential merit of the application, that is, whether the grounds which the applicant seeks to argue constitute on their face an arguable case. The grounds of appeal contained in the draft notice of appeal state: (1) In 2001 I was arrested and mistreated by the CCP authorities over a 15-day period because I was caught attending a house church in China. I have been a pious Christian in China. The Tribunal member thought my claims are only for the purpose of enhancing my protection visa application. The Tribunals member's decision isn't fair and he made jurisdictional error. (2) The Federal Magistrate affirmed the Tribunal decision. 11 Essentially the issue which is sought to be raised in the draft notice of appeal is a challenge to the factual findings of the Tribunal. The Tribunal did not accept the applicant's claims that he had been a member of a Christian church in China. Further, the Tribunal found that attendance by the applicant at a church in Sydney and the tender of a letter from the minister of that church was evidence produced solely to support his claim. Accordingly, the Tribunal disregarded the applicant's involvement in religious activities in Sydney since July 2011, pursuant to s 91R(3) of the Migration Act 1958 (Cth). In his application before the Federal Magistrates Court, the applicant essentially challenged the factual findings of the Tribunal. 12 As referred to in the decision of Barnes FM, the Tribunal did not accept the applicant's claims that he would be involved in religious activities that would attract the adverse interest of Chinese authorities in the reasonably foreseeable future as credible, nor that there was a real chance that he would face persecution in China by the authorities for reasons of religion. 13 The learned Federal Magistrate also referred to the Tribunal's findings that it was not satisfied that the applicant had a genuine interest in religion, and found that his knowledge of the Christian religion was negligible. It was on these grounds that the Tribunal rejected the application before it. Barnes FM observed that the Tribunal was not satisfied that there was a real chance that the applicant would be subjected to persecution in China for reasons of religion, political opinion, or for any other convention reason. 14 Barnes FM also observed that the application before the Federal Magistrates Court sought essentially to challenge the factual findings of the Tribunal. Her Honour observed that it was a well-established principle that the Court could not review the merits of the Tribunal's decision. Her Honour referred to the authority of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 15 Her Honour found that the Tribunal's credibility findings were open to it for the reasons which it gave on the material before it. Her Honour found there was no basis for any allegation of lack of procedural fairness, and generally that there had been no jurisdictional error established in the application to the Court. 16 The only grounds sought to be agitated, if leave were granted to bring an appeal to the Court, are stated in the draft notice of appeal. However, these grounds are no more than a further challenge to the factual findings of the Tribunal, that is, the very matter which was considered by Barnes FM and rejected. 17 There would be no utility in the Court entertaining this appeal for the reason that on the grounds raised before this Court, there is no prospect of the appeal succeeding. It follows that the second requirement to enable a successful application to be made before this Court, namely disclosure of an arguable claim, is not made out. It follows that the application must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.