Case: BRGAB of 2007 v Minister for Immigration &amp; Citizenship [2007] FCA 1748
Outcome: considered
This appeal from the decision of Jarrett FM was set down for hearing on 7 November 2007. On that occasion the appellant made an application that I disqualify myself from hearing the matter. No proper basis was made out as to why I should disqualify myself ( BRGAB of 2007 v Minister for Immigration &amp; Citizenship [2007] FCA 1748 at [12] ). 9 The appellant then applied for an adjournment. 10 For the reasons in BRGAB [2007] FCA 1748 at [18] [25], the oral hearing continued as scheduled on 7 November 2007. The appellant chose not to make oral submissions on this occasion or to sit in the Court to hear the oral submissions made on behalf of the Minister ( BRGAB [2007] FCA 1748 at [22] ) to which she could later respond in writing. 11 I granted the appellant an extension of time in which to file and serve her written submissions after the hearing. The appellant subsequently made two requests that this time be extended on the basis of her incapacity to prepare those submissions because of her mental state. One of those requests was accompanied by a medical certificate. I granted the appellant extensions of time on both occasions. On the occasion of the last extension which was not as lengthy as that sought, the Court notified the appellant that no further extensions of time would be granted. No written submissions have been received from the appellant. On the extended day on which those submissions were due, the appellant sought a further extension. She now says that she now wishes to forward the Federal Magistrate's judgment to counsel who may be interested in her case and requests that the Court makes an Order 80 referral to that counsel. 12 The matter was set down for hearing and orders were made to file submissions on 2 August 2007. The appellant's submissions were due to be filed by 30 October 2007. The hearing was scheduled for 7 November 2007. Since the hearing, the appellant has had over one month in which to file written submissions, being submissions that should have been filed prior to the hearing. That is, the appellant has had four months in which to prepare and file her submissions. 15 The appellant appeared in person before the Federal Magistrate. She prepared and relied upon detailed written submissions in relation to that application. Those detailed contentions of fact and law are before me. The appellant drafted the notice of appeal herself and, as she acknowledged at the hearing, the grounds of that notice reflect the grounds of the application that had been advanced before his Honour ( BRGAB [2007] FCA 1748 at [19] ). 16 At the hearing before the Tribunal, the appellant abandoned the grounds set out in her application for the protection visa that were based on her ability to continue then current litigation in Australia. She advanced two new claims with which the Tribunal dealt: &#8226; A media release issued by the Australian Federal Police on 31 July 2006 in relation to charges brought against the appellant had been reported in Japan ('the AFP media release'). The Japanese authorities were aware of the fact that the appellant had been charged with criminal offences. The appellant was concerned about the effect of this media release in Japan where 99.8% of defendants who appeared before a judge in criminal cases were found guilty. &#8226; There had been entries posted on an Internet bulletin board in Japan ('the bulletin board') that said that the appellant must be a Korean or that she should be a Korean. She feared persecution based on the statement that she was of Korean nationality. She also told the Tribunal that the bulletin board was not the cause of persecution but evidence of it. 17 The Convention ground relied upon by the appellant was nationality: a Japanese who had been charged with a criminal offence. The appellant said that the Japanese government would not be interested if she were a national of another country. The Tribunal rejected this as a basis for Convention-based persecution. It concluded that, if she were stopped or interviewed at the airport on return to Japan as the appellant said she feared, or if she were subsequently required to report to the authorities, the essential and significant reason would not be her nationality but the fact that she had been charged with criminal offences in Australia. This would also be the reason for any impact on her access to employment as a scholar in Japan and on her ability to travel overseas.