SZEGK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 617

FEDERAL COURT OF AUSTRALIA

SZEGK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 617

Federal Court Rules O52 r 15(2)

SZCCN v Minister for Immigration & Multicultural &Indigenous Affairs [2005] FCA 166

VUAD of 2003 v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 186

SZEGK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD610 OF 2005 BENNETT J 9 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD610 OF 2005

BETWEEN: SZEGK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 9 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal is refused. 2. The applicant pay the respondent's costs as agreed in the amount of $750.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD610 OF 2005

BETWEEN: SZEGK

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 9 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT (Ex Tempore – Revised) 1 This is an application for an extension of time to file and serve a notice of appeal in respect of a decision of Federal Magistrate Lloyd-Jones which was delivered on 9 March 2005. 2 The applicant arrived in Australia on 15 April 2004 and lodged an application for a Protection Visa on 23 April 2004. On 30 April 2004, a delegate of the Minister ('the delegate') refused the grant of a protection visa and on 31 May 2004 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. 3 On 9 June 2004, the Tribunal wrote to the applicant setting a date for hearing of 9 July 2004 and enclosing a response to hearing invitation form asking the applicant whether he wished to come to the hearing or not. That form, dated 6 July 2004, was returned to the Tribunal signed by the applicant and with the box saying 'No, I/we do not want to come to a hearing' ticked. Underneath that box are the words 'I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it'. 4 On 4 August 2004, the Tribunal handed down its decision affirming the delegate's decision. On 25 August 2004, the applicant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 9 March 2005, Lloyd-Jones FM dismissed that application. On 30 March 2005, the time for filing the appeal from the Federal Magistrate expired. On 20 April 2005, the applicant filed an application for extension of time to file and serve a notice of appeal annexing a draft notice of appeal bearing the date 29 March 2005. 5 The application for extension of time was accompanied by an affidavit sworn 19 April 2005 and in that affidavit the applicant gives an explanation for the delay. In summary, the applicant's evidence goes to a combination of factors based primarily on his miscalculation of the relevant dates and his reliance on a friend to lodge the application for him. This is in the context of the applicant speaking no English and relying upon his friend to lodge the application. The affidavit sets out numerous telephone calls and visits by the applicant to the Federal Court to inquire about his application. It also sets out the fact that he did not receive the decision of the Federal Magistrate in time to lodge an appeal. I note, however, that the respondent notified the applicant of the orders made by the Magistrate. 6 Before me today the applicant, who appeared in person assisted by an interpreter, repeated many of the facts going to his delay. While, as was pointed out by Ms Crawley for the respondent, there is some inconsistency between what the applicant said from the bar table and the contents of his affidavit, I am prepared to accept that the applicant has explained his delay. However, that is not the end of the matter. If the applicant is unable to identify any arguable ground of appeal, the appeal will be futile and the court will not grant an extension of time in which to appeal (VUAD of 2003 v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 186 at [23]). 7 Even if I accept that valid and legitimate reasons exist for the delay, which I do, the application for extension of time should still be refused if the appeal would have no or very slight prospects of success (SZCCN v Minister for Immigration & Multicultural &Indigenous Affairs [2005] FCA 166 at [7] ('SZCCN') per Stone J). The Court is obliged also to consider whether substantial injustice would arise in refusing to grant an extension of time for leave to appeal (SZCCN at [8]). 8 In considering whether the applicant has established that there are special reasons within the meaning of Federal Court Rules O52 r 15(2) I will have regard to the length of the delay in filing the notice of appeal, whether the respondent will suffer prejudice by reason of the delay and the nature of the injustice to the applicant if he is denied the right to appeal. 9 It is in that regard, having accepted the explanation for the delay, that I look to the merits of the appeal. The draft notice of appeal annexed to the application for leave is not of assistance. The grounds set out therein are as follows: '2. I was deprived of the opportunity to explain my hard situation to obtain evidence and to given oral evidence. 3. RRT did not comply with s 425 of Act. 4. There is a procedural error in the tribunal's decision constituting an absence of natural justice.' 10 These grounds are unparticularised and do not relate to the decision of the Federal Magistrate. Two of the grounds repeat those that were before his Honour and the third raises s 425 of the Migration Act 1958 (Cth) without any further explanation. The notice of appeal does not identify any error on the part of his Honour. 11 It is not necessary to go into the facts in detail. They are set out in the decision of the Federal Magistrate. The basis of the applicant's claims of persecution in his country of origin, China, is that he is a Christian. 12 As a result of its findings, the Tribunal was not satisfied that the applicant was a Christian, a member of an underground church or that he was detained for two months as claimed. The Federal Magistrate records the findings of the Tribunal at [10]: 'As a result of the Tribunal's findings, it was not satisfied that the applicant was a Christian, a member of an underground church, or that he was detained for two months. It therefore did not accept any of his independent claims, namely that he left China because he could not 'hear from God' because he could not attend the underground church or that he would be re-arrested or forced to give up his religious beliefs. Overall, the Tribunal was not satisfied that, should the applicant return to China, there would be a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason, then or in the foreseeable future (CB p.65). In relation to the applicant's claim that China was a dictatorship, the Tribunal noted that the applicant had not elaborated on why he feared persecution for this reason. Therefore, the Tribunal was not satisfied that the applicant had made out that claim (CB p.66).' 13 The Federal Magistrate held that the applicant was given every opportunity to explain his case and that the Tribunal did not deprive him of a proper opportunity to put his case. The ground of review relied upon in that regard by the applicant was rejected. The Federal Magistrate also considered the evidence of the applicant and, in particular, his assertions regarding a telephone conversation that he said took place with the Tribunal. The applicant was cross-examined and the respondent submitted evidence which established to his Honour's satisfaction that there was no telephone call to the Tribunal. 14 His Honour observed that the Tribunal's decision ultimately turned on the insufficiency of the information before the Tribunal to satisfy it that the applicant was a refugee. The applicant's explanation, that he could not obtain evidence, would not have remedied this deficiency. He could have possibly remedied the deficiency by attending the hearing and giving evidence on his own behalf. He did not do so. 15 The applicant put to the Federal Magistrate and to me that the circumstances in which he said he did not wish to attend a hearing were generated by action and inaction on the part of a friend. That was not a matter that went to the way in which the Tribunal made its decision and is therefore not open to review by me. 16 The applicant has not identified any arguable jurisdictional error on the part of the Tribunal so as to demonstrate that the appeal may have sufficient prospects of success in order to justify the grant of extension of time sought. Indeed, when I asked the applicant today whether he could point to anything that the Tribunal did wrong he was unable to do so. Similarly, the applicant was unable to point to any error on the part of the Federal Magistrate. 17 Accordingly, I refuse the application for extension of time to file and serve a notice of appeal. I order the applicant to pay the respondent's costs as agreed in the sum of $750.00. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 17 May 2005 The Applicant appeared in person assisted by an interpreter

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 9 May 2005

Date of Judgment: 9 May 2005