SZUMX v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal, filed in the Court on 8 April 2016, is dismissed.
2. The first applicant is to pay the first respondent's costs of and incidental to the application, which I fix in the sum of $1756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 On 16 March 2016, a Judge in the Federal Circuit Court (the FC Court) dismissed the applicants' application pursuant to s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the former Refugee Review Tribunal (the RRT). By that decision, the RRT had affirmed a decision of the delegate of the Minister to refuse to issue protection visas to the applicant and her two children, who are the second and third applicants. 2 The FC Court Judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) (FCCR), as he was not satisfied that the application for judicial review raised an arguable case for the relief claimed. A decision pursuant to r 44.12(1)(a) is interlocutory, so that leave to appeal is required: Federal Court of Australia Act 1976 (Cth) (the FCA Act) s 24(1A). That is because the decision in the FC Court was, in effect, a judgment that the jurisdiction of the Court had not been properly invoked, and hence interlocutory in nature: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410 at [23]. Further, r 44.12(2) of the FCCR provides that a dismissal of proceedings under r 44.12(1)(a) is interlocutory in nature. Some decisions of this Court have indicated that r 44.12(2) governs the determination of whether a judgment is interlocutory for the purposes of s 24(1A) of the FCA Act: SZLQZ v Minister for Immigration and Citizenship [2008] FCA 717 at [5]-[6]; MZZBU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 840 at [25]-[26]; SZTBO v Minister for Immigration and Border Protection [2014] FCA 269 at [19]; and MZZPL v Minister for Immigration and Border Protection [2014] FCA 110 at [19]-[20]. 3 The applicant does wish to appeal against the FC Court judgment. The time fixed by r 35.13 of the Federal Court Rules within which the applicant should have commenced her application to this Court for leave to appeal - which is 14 days - expired on 30 March 2016. 4 The applicant did not file her application in this Court until 8 April 2016, nine days out of time. Accordingly, her application seeks both an extension of time in which to bring the application, as well as leave to appeal. The applicant's affidavit indicates, in effect, that the reason she did not file the application for leave to appeal within time was that she was awaiting the published reasons of the FC Court Judge. That is readily understandable, as the Judge delivered an ex tempore judgment and it would have taken some time for his reasons to be available in published form. The period of extension sought by the applicant is short and the Minister does not allege that any prejudice would be occasioned to him if the extension is granted. 5 Accordingly, it is appropriate to proceed on the basis that the real question bearing upon the application for the extension of time is the merit or otherwise of the underlying application for leave to appeal. If the proposed appeal is reasonably arguable, the extension should be granted. If it is not, the grant of the extension would be futile and it should be refused. 6 The applicant is a Chinese national. She arrived in Australia on 21 October 2005 on a student visa. She was then 17 years old. The student visa expired on 15 March 2008. Thereafter, the applicant remained in Australia unlawfully. Some four years later, on 12 March 2012, the applicant applied for a protection visa. By that time, she had married and had had a child. She has since given birth to a second child. 7 The application for the protection visa was refused by the Minister's delegate. That refusal was affirmed by the RRT. The RRT identified in its reasons, in an appropriate way, the criteria for the grant of a protection visa, set out in s 36 of the Migration Act and in Sch 2 to the Migration Regulations 1994 (Cth). The applicant has not contended that the RRT misunderstood those criteria. 8 In substance, the applicant claimed in the RRT that she feared persecution on religious grounds if returned to China. Her claims in summary were that her parents, who reside in China, are Christians; that they regularly organise and participate in house church activities; that she herself had become a Christian in China; that her parents had been arrested and beaten by police in China on account of their practice of their Christian beliefs and had suffered other detriments; that she herself had been warned by authorities about her Christian activities; and that she had been threatened with detriments, including preclusion from sitting for university entrance exams if she was again found with a Bible at her school. 9 The applicant claimed that, by reason of their concerns about these matters, her parents had sent her abroad, and so she had come to Australia in 2005. Since June 2010, she has been regularly involved in the activities of the Uniting Church of Australia Galilee Church at Campsie in Sydney, and before that, in a Korean-Chinese church in Sydney. 10 The reasons of the RRT indicate that the RRT member had concerns about the credibility of the applicant and regarded several aspects of her account as implausible. The RRT member did not accept as true significant aspects of the applicant's account which I have just summarised. In particular, the RRT member was concerned that, despite her claim to practice of her Christian belief in China, the applicant had not been baptised until December 2010 in Australia and that her knowledge of key tenets of Christian belief appeared to be limited. The member disbelieved the applicant's claims to have been a member of a house church in China. He also found, by reference to identified material, including independent country information, that the applicant could, if she wished, participate in house church activities in China without restriction and without the imposition of detriments. 11 Accordingly, the RRT member did not accept that the applicant had a well-founded fear of persecution in China on account of her Christian beliefs. 12 The applicant was unrepresented in the Federal Circuit Court as she has been on this application. 13 The application for judicial review in the FC Court raised three grounds, which I summarise as follows: (a) the RRT had not understood the difference between house churches and public churches in China, had relied on irrelevant materials and had not considered fully the difficulties the applicant will face as a member of a house church with the consequence that the RRT made "wrong decisions"; (b) the RRT member's decision had been affected by bias; and (c) the RRT's conclusion that the applicant did not have a well-founded fear of harm if returned to China was wrong. 14 In his reasons for decision, the FC Court Judge summarised the applicant's claims, in greater detail than I have, set out the course of events in the RRT, and examined in some detail the reasons of the RRT. The FC Court Judge noted, appropriately, the limited function of that Court on an application for judicial review pursuant to s 476, that is to say, that it was not for the FC Court to consider afresh the evidence before the RRT and to make its own decision on the merits of the application for the protection visa. Instead, the FC Court's function was to consider whether the RRT had acted lawfully by complying with the legal framework required by the Migration Act. The FC Court Judge was correct to take that approach. 15 As to the first ground of the application in the FC Court, the Judge noted that the RRT had identified the material upon which it relied in concluding that it was open to the applicant to practise her Christian faith if so minded in house church activities in China. The applicant did not identify to the FC Court Judge any jurisdictional error of the kind which would warrant an order for judicial review, nor could the FC Court Judge identify such an error. 16 As to the second ground, the FC Court Judge proceeded on the basis that a claim for bias must be clearly proved and firmly established: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128 at [90]. The approach of the FC Court Judge was correct. He noted that the applicant had not identified any basis for concluding that the RRT had a firm predisposition to the rejection of her claim for a protection visa and so was biased. 17 For the purposes of determining the present application, I have reviewed the reasons of the RRT, but have not been able to identify a basis upon which it could be held that the FC Court Judge should have found that the RRT member was affected by bias. It is true that some of the RRT member's conclusions are expressed in firm terms and that, in some instances, inferences adverse to the applicant were drawn from identified events for which alternative and more innocent explanations were also readily available. It could be said, therefore, that the RRT member appears to have been ready to draw inferences which were adverse to the applicant. However, that is not sufficient to establish a claim of bias. It may reflect only the firmness of the conclusions which the RRT member had drawn concerning the applicant's claims. Accordingly, the FC Court Judge was correct to reject the second ground of review. 18 The applicant's third ground in the FC Court seemed to be an invitation to the FC Court to review the underlying merits of her claim for a protection visa. A similar invitation was made to this Court and, as already noted, that is not the function either of the FC Court or of this Court. It is, accordingly, unsurprising, that the FC Court Judge found that Ground 3 did not raise an arguable case for the relief claimed. 19 In her submissions in support of the application for leave to appeal, the applicant raised some additional matters. First, she complained that the RRT had been selective in its assessment of the evidence before it. However, my reading of the RRT reasons indicates that the RRT did have regard to all the evidence before it and it is well-established that it is for the RRT to decide for itself the significance which it attaches to particular items of evidence. 20 The applicant also complained that the FC Court Judge had declined to receive additional information and had instead relied only upon the materials which were "on the Immigration's file". The FC Court Judge dealt with the application that he receive additional material in paragraph 20 of his reasons, noting that the additional information had not been before the RRT. He also noted that there was no suggestion that the material had not been before the RRT as a result of some error in approach by the RRT. On that basis, the FC Court Judge declined to have regard to the material, holding that it could not demonstrate legal error of the required kind in the RRT's decision. No error in approach by the FC Court judge has been shown in that respect. 21 In all these circumstances, I do not consider that the applicant has raised an arguable case that the decision of the FC Court be wrong. On that basis, the Court would not grant leave to appeal.