FEDERAL COURT OF AUSTRALIA

SZUHK v Minister for Immigration and Border Protection [2015] FCA 197 

Citation:	SZUHK v Minister for Immigration and Border Protection [2015] FCA 197	
		
Appeal from:	Applications for extension of time and for leave to appeal:  SZUHK v Minister for Immigration & Anor [2014] FCCA 2713	
		
Parties:	SZUHK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL	
		
File number(s):	NSD 1285 of 2014	
		
Judge(s):	SIOPIS J	
		
Date of judgment:	24 February 2015	
		
Date of hearing:	24 February 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	17	
		
Counsel for the Applicant:	The Applicant did not appear.	
		
Counsel for the First Respondent:	
Ms A Wong	
		
Solicitor for the First Respondent:	
DLA Piper Australia	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1285 of 2014	

BETWEEN:	SZUHK
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J	
DATE OF ORDER:	24 FEBRUARY 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The application for extension of time to appeal and the application for leave to appeal are dismissed.
2.	The applicant is to pay the first respondent’s costs to be agreed or taxed.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1285 of 2014	

BETWEEN:	SZUHK
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J	
DATE:	24 FEBRUARY 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
1		The applicant has made an application for extension of time to appeal and an application for leave to appeal from the decision of the Federal Circuit Court delivered on 19 November 2014.
2		The applicant applied for a protection visa on the basis that she feared persecution if she was to be returned to China.  In her visa application, the applicant claimed that she feared harm from local government officials, who, she said, had interfered with her clothing wholesale business, and also that the officials had threatened her and forced her to pay bribes to them.  The applicant said that after she complained to the authorities, the local government officials burned down her factory, and that the applicant’s father received a call warning the applicant to behave or that she too would be burned.
3		The application for a protection visa was refused by a delegate of the Minister on 19 August 2013.  An application for review was made to the Refugee Review Tribunal (the Tribunal) on 19 September 2013.  The applicant then attended a hearing before the Tribunal on 14 March 2014.
THE TRIBUNAL
4		The Tribunal made adverse credibility findings against the applicant, and the Tribunal rejected all of the applicant’s claims.  The Tribunal was not satisfied that the applicant owned a factory and ran a clothing business in China and was forced to pay bribes to the local government officials.  The Tribunal also did not accept that the applicant complained to the authorities, and that as a consequence the local government officials burned down her factory.  Nor did the Tribunal accept that the applicant’s father received a call warning the applicant to behave or that she too would be burned.
5		On the basis of those factual findings, the Tribunal found that the applicant failed to satisfy the criteria in s 36(2) of the Migration Act 1958 (Cth), and also found that the applicant did not satisfy the criteria in s 36(2)(aa).
THE FEDERAL CIRCUIT COURT
6		The applicant then brought an application for judicial review before the Federal Circuit Court, based on the following grounds of review:
(1)	That the Refugee Review Tribunal had denied that I owned a factory and a business, which is true.

(2)	The Refugee Review Tribunal has been wrong to question my honesty.

(3)	The Refugee Review Tribunal says I’m honest in relation to my employment, and accepts my employment may be limited, but denied that I had a business.  This is unreasonable.

7		The matter was then listed as a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on 19 November 2014.  The matter was in the docket of Judge Lloyd-Jones.  But on that day, Judge Lloyd-Jones was sick and the matter was adjourned and moved to Judge Driver’s docket.  Judge Driver heard the application the afternoon of 19 November 2014.  Judge Driver dismissed the application.  His Honour found that the first two grounds of the grounds of review, in effect, sought to interfere with, or attack, factual findings, which were plainly open to the Tribunal to make, and did not, therefore, amount to jurisdictional error.  Judge Driver found that the third ground of review was argumentative in nature, went to the merits of the case and did not disclose any jurisdictional error.
THE APPLICATIONS IN THIS COURT
8		When the matter was called on for hearing today, there was no appearance by the applicant.  Counsel for the Minister contended that each of the applications should be dismissed, pursuant to rule 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth), on the basis of the non‑appearance of the applicant.
9		I am content to dismiss the applications on that basis.
10		However, I also dismiss the applications on the merits.
11		This is because the first three proposed grounds of appeal, in essence, repeat the three grounds of judicial review, and do not identify any alleged error by the primary judge.  I observe that, in any event, I am of the view that the primary judge’s reasons for judgment does not disclose error.
12		There is a fourth ground of proposed appeal, which is that:
The court changed the judge suddenly who was looking into my case.  The new judge didn’t read my case carefully.  This is unfair.

13		In my view, there is no substance in this complaint.  As I have said, in my view, the primary judge did not fall into error, and no appealable error arises from the fact that the primary judge, rather than Judge Lloyd-Jones, heard the applicant’s application.
14		I am, therefore, of the view that there is no prospect of success in respect of any of the applicant’s proposed grounds of appeal.
15		Accordingly, as one of the main criteria in deciding whether to extend time to appeal, or to give leave to appeal, is the prospects of success of the proposed appeal, each of the applications fails.
16		In those circumstances, the applications will be dismissed.

17		The applicant is to pay the first respondent’s costs to be agreed or taxed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.	

Associate:

Dated:	11 March 2015