SZVMG v Minister for Immigration and Border Protection

The application dated 8 July 2016 be dismissed with costs to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before the Court is an application dated 8 July 2016 for an extension of time to appeal from a decision of a Judge of the Federal Circuit Court of Australia. In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) in which the Tribunal affirmed the decision of the Minister not to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Migration Act). The Tribunal made that decision pursuant to s 426A of the Migration Act in circumstances where the applicant did not appear at the Tribunal hearing. 2 In these proceedings the applicant also sought leave to appeal from the primary decision. However as the Minister correctly submitted, the applicant does not require leave to appeal because the decision of the Federal Circuit Court was final. An extension of time is required however pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), because the applicant did not file a notice of appeal within 21 days of the judgment of the Federal Circuit Court as required under r 36.03 of the same Rules. It is not in dispute that the applicant sought to file his notice of appeal 40 days out of time. 3 The applicant appeared in person at the hearing before me. The grounds of his application were as follows: 1. I failed to attend the interview of RRT because I remembered the wrong date. I realized that I made a very serious error. Therefore I had to appeal to the Federal Circuit Court hoping getting one more chance to seek a fair judgment. 2. One of the reasons why RRT refused my application was because I couldn't provide sufficient evidence about claims. This is because those materials are very sensitive. I don't want to put my family in danger to send me the evidence, so I don't ask my family to send them to me. I hope Your Horner [sic] would consider my compelling circumstances. 3. Another reason is I was unable to explain the experience of persecution in China in details. Your Horner [sic], please consider a [sic] actual situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to other people about my experience. Besides I was very nervous during the interview, my mind was confused and I felt very scared, especially, when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decided to apply to seek judicial review to the Federal Circuit Court because I must try my best to seek another chance for myself. 4. Unfortunately, the Federal Circuit Court couldn't consider my situation. 5. I am forced to seek the chance to appeal to the Federal Court. 6. After my application was refused by the Federal Circuit Court on 8th Apr. 2016, I appealed to the Federal Court on 22th [sic] Apr. 2016. After one month, I called to the Federal Circuit Court asking whether they had received my application and replied. A lady official answered me with a Chinese interpreter that she was examining my application for exemption of my application fees. On 30th Jun. 2016, I got to the Court office and checked about my application. I was told that they could not find my file in their computer system and asked me to again lodge an application. I have to [sic] prepared the application. I implore your Court would consider my actual matter and accept my application. (Errors in original.) 4 The draft grounds of appeal on which the applicant seeks to rely are set out his affidavit dated 8 July 2016. Those draft grounds of appeal are in substantially identical terms to the grounds of the application currently before the Court. They are as follows: The reason why I failed to attend the interview because I remembered the wrong time of the hearing date and then I was not in Sydney on that date. I realized I made a serious mistake, so I applied for a review to the Federal circuit Court and hope I would kave [sic] a more chance to seek a fair judgment. One of the reasons why RRT refused my application was because I could not provide sufficient evidence about claim. This is because the evidences are very sensitive. I don't want to put my family in danger to send me the evidence, so I didn't ask my family to mail them to me. I hope Your Honer [sic] can consider my compelling circumstances. Another reason why RRT refused my application was because I was unable to explain the experience of persecution in China in details. Your Honer [sic], Please consider my avtual [sic] situation: I have suffered serious harm in China both physically and mentally, so I was scared to talk to others about my experiences. Besides, I was very nervous during the interview, my mind was very confused and I felt very scared, especially, when I was under such solemn environment. Therefore, when I received a refusal letter from RRT, I decided to apply to appeal to the Federal Circuit Court because I really want to seek another chance for myself. The Federal Circuit Court dismissed my application that made me very sad. I have to appeal to the Federal Court for the last chance. (errors in original.) 5 At the hearing of the application the applicant submitted, in summary, that he wanted an opportunity to present his case.