Ajx16 v Minister for Immigration

[2017] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2494

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 63 days under s.477(2) of the Migration Act 1958 (Cth) – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.441A, 477

Cases cited:

AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143

MZABP v Minister for Immigration (2015) 242 FCR 585

SZJBD v Minister for Immigration (2009) 179 FCR 109

SZRMQ v Minister for Immigration (2013) 219 FCR 212

SZSEI v Minister for Immigration [2014] FCA 465

SZTES v Minister for Immigration [2015] FCAFC 158

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: AJX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 383 of 2016

Judgment of: Judge Dowdy

Hearing date: 24 November 2016

Delivered at: Sydney

Delivered on: 20 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N. Swan of Counsel

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. The Application filed in this Court on 22 February 2016 for an extension of time order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 383 of 2016

AJX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China aged 27 years, having been born on 11 February 1990.

2. By Application filed in this Court on 22 February 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 30 May 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa). 

3. The Applicant arrived in Australia on 18 January 2008 holding a Student (Subclass 571) visa (Student visa) which expired on 21 September 2010. However, that visa was cancelled on 9 May 2009 and the Applicant remained in Australia as an unlawful non-citizen until he applied for a Protection visa, the subject of this proceeding, on 5 December 2013. On 9 December 2013 he was issued a Bridging Visa C in association with his Protection visa application.

4. The Application to this Court was not filed within thirty-five days of the date of the Tribunal’s decision of 16 November 2015 as required by s.477(1) of the Migration Act 1958 (Cth) (the Act) and accordingly it needs an extension pursuant to s.477(2) of the Act. The Application was required to be filed by 21 December 2015 but it was filed on 22 February 2016 and is thus 63 days out of time.

Claims for Protection

1. The only document provided by the Applicant in support of his Protection visa application (including up to the time of the decision of the Tribunal) was a Personal Statement forming part of his Protection visa application, which in substance made the following claims:

   a)He was born and grew up in Fuzhou City in Fujian Province and came to Australia on 17 January 2008 on a Student visa;

   b)In May 2007, the government sent a letter to the Applicant’s family notifying them of the impending demolition of their house and indicating that compensation of only RMB 290,000 (then apparently A$42,862) would be provided;

   c)From 10 July 2007 onwards the water and electricity to the house were shut off and on 5 August 2007 the house was demolished;

   d)In September 2007, the Applicant visited on six occasions, with his father, the Demolition and Removal Office and asked for an explanation of the compensation offered. On the last visit, an altercation occurred between the Applicant’s father and an official. The police came and the Applicant and his father were detained for 15 days, until his mother paid a RMB 5,000 fine;

   e)On 15 November 2007, the Applicant and his father went to the City government about the compensation but they were told to collect further evidence. On a further visit, they were again told that further evidence was required and they were accused of having beaten government officials;

   f)The Applicant’s mother told the Applicant and his father not to return to talk to the government officials, because the Town government had come to the family home to arrest them. As they were not at home, a summons requiring their attendance at the police station was issued;

   g)The Applicant’s mother wanted the Applicant and his father to flee China. As the family had limited money, the Applicant “… on 12 May… escaped from China-ruled by Communist Party” and departed to Australia on a Student visa. (I interpolate that the apparent disconformity between the assertion that he escaped China on 12 May in what logically appears to have been 2008 and his claim to have arrived in Australia on 17 January 2008 was explained at the interview with the Delegate referred to below as having resulted from a mistake made by a friend who had helped him prepare his Protection visa application; see also [23] of the Decision Record of the Tribunal);

   h)After the Applicant arrived in Australia the Applicant’s family suffered retaliation by the local government in China. His father could not work and hence could not provide money to the Applicant. As a result, he had to withdraw from his study courses to support himself by working casually; and

   i)He was now living in fear of going back to China because if he were to return there he would “surely be punished and retaliated by local government force”.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 27 May 2014.

2. In the result the Delegate rejected the Applicant’s claims, including his core claim that his family home had been demolished on 5 August 2007. This was because documentary evidence from four different sources indicated that the Applicant was still living there nearly four months after he had claimed that the home had been demolished.

3. Further, the Delegate considered that the Applicant’s delay in applying for a Protection visa was inconsistent with the actions reasonably expected of a person who feared returning to his own country due to a fear of persecution and he found that the Applicant’s reasons for the delay in lodging his Protection visa application were unsatisfactory.

4. Accordingly, the Delegate was not satisfied that the Applicant faced a real chance of being persecuted under the Refugees Convention criterion or that there was a  real risk he would subject to significant harm under the complementary protection criterion if he were to return to China and he refused grant a Protection visa to the Applicant. 

Decision of Tribunal

1. The Applicant applied to the Tribunal on 24 June 2014 for merits review of the Delegate’s decision. In his application he gave as the address to which the Tribunal should send correspondence concerning the application:

   PO Box 1249

   Auburn

   NSW, 1835

2. However, on  6 November 2014 the Tribunal received from the Applicant a Change of Contact Details form which informed the Tribunal that his new contact details for his residential and postal address were:

   3 Carrabah Road

   Auburn, NSW

3. I note that the evidence does not make clear whether this form was handed over at the Tribunal hearing on 6 November 2014 but that it was is likely.

4. On 6 November 2014 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.

5. In the result the Tribunal found that the Applicant was not a credible witness and that he had not been truthful in his claims and that overall his evidence to the Tribunal was not consistent, plausible, persuasive or convincing. It concluded that the events described by the Applicant did not occur and that he had fabricated his claims for the purpose of his Protection visa application and it did not accept that his family home had been demolished or that he and his father went to the Demolition and Removal Office and asked for an explanation for inadequate compensation and it rejected his claims in their entirety: see [26] and [53]-[55] of the Decision Record of the Tribunal

6. From [27]-[52] of its Decision Record the Tribunal considered and analysed the issues which caused its concerns about the Applicant’s credibility.

7. At [27]-[28] the Tribunal recorded that the Applicant only had a “brief idea” of why the Delegate refused his Protection visa application and was unimpressed that the Applicant did not bother to clearly understand the reasons for refusal, or provide the Tribunal with material to address the Delegate’s concerns. This raised a concern as to the genuineness of the Applicant’s claimed fear of returning to China.

8. At [29] the Tribunal found that the Applicant’s central claim that his family home had been demolished suffered from “inconsistent”, “implausible” and “unpersuasive” evidence, for the reasons that it then gave at [30]-[36] of its Decision Record.

9. At [37]-[41] it considered the documentary evidence from four documentary sources which indicated that the Applicant was living in the family home three months after its claimed demolition. The Applicant claimed that some of these four documents had been fraudulently obtained by his parents in support of his Student visa application. The Tribunal found that these matters impacted adversely on the Applicant’s credibility and that the Applicant had not been truthful in relation to information provided to the Department and the Tribunal about his family home.

10. At [42]-[47] of its Decision Record the Tribunal considered inconsistent evidence given in relation to the Chinese Government agencies, to which the Applicant claimed he and his father had made complaints about the resumption of the family home. It found that these inconsistencies were a further indication that the Applicant had fabricated his claims relating to the demolition of the family home.

11. At [48]-[50] the Tribunal recorded that the Applicant’s claims in relation to what he feared if he returned to China were vague and implausible, and that there was an inconsistency between:

    a)his claim of fear of punishment and retaliation by Chinese local government officials made in his Protection visa application;

    b)his claim of fear from developers looking for him made at his interview with the Delegate; and

    c)his claim of fear from builders made at the Tribunal hearing.

12. At [51]-[52] it found that the Applicant’s delay in lodging his Protection visa application was inconsistent with action reasonably expected of someone who fears persecution in his own country and that the Applicant’s reasons justifying his delay in this respect were unpersuasive and unsatisfactory.

13. Accordingly, the Tribunal found that the Applicant did not have a well-founded fear of persecution and there was no real risk that the Applicant would suffer significant harm if he returned to China and it thus affirmed at [61] the Delegate’s decision not to grant a Protection visa to the Applicant.

Application for Extension of Time to Apply to this Court

1. The grounds for the extension of time in the Application filed in this Court on 22 February 2016 are as follows:

   1.In the review application to AAT, I have nominated my postal address to PO Box 1249, Auburn NSW 1835. I always have received the AAT letter posted to the address in respect of acknowledgement and invitation of hearing.

   2.However, the AAT's notification of decision and decision record were sent my old address at 3 Carrabah Road, Auburn NSW 2144. I did not receive that letter dated on 15 November 2015.

   3.In the past, the AAT always sent letter to the postal address rather than residential. I therefore am reliant upon the expectation that the AAT would send me the decision record to the postal address as well.

   4.After the AAT resent the notification of decision and decision record by email on 19/02/2016, I submitted the application immediately without delay.

2. In considering whether it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:

   a)Whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;

   b)Whether there is any prejudice to the Minister; and

   c)Whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]).

3. In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 [62] per Mortimer J.

Consideration of Extension Application

1. The delay of 63 days is not great in terms of this area of litigation. There is no real or actual prejudice to the Minister and the loss of the Applicant’s right of appeal to the Federal Court of Australia (if extension is not granted) has a militating tendency in favour of a grant of an extension.

2. On the other hand, I do not consider that the Applicant has given an adequate explanation for his delay. The simple fact of the matter is that initially the Applicant required the Tribunal to send correspondence to “PO Box 1249, Auburn, NSW” and the Tribunal used this address when it sent its letter dated 8 October 2014 inviting the Applicant to appear before the Tribunal on 6 November 2014. However, on 6 November 2014 the Applicant required the Tribunal to send correspondence to “3 Carrabah Road, Auburn, NSW” and the Tribunal correctly used this address when it forwarded the Decision Record of the Tribunal to the Applicant under cover of its letter dated 17 November 2015.

3. When (as in this case) the Tribunal gives a document to a review applicant by post, the Tribunal is obliged to send the document to the “last address for service” or the “last residential or business address” provided “to the Tribunal by the recipient in connection with the review”: see s.441A(4) of the Act. The last residential and postal address for correspondence which was provided to the Tribunal by the Applicant was 3 Carrabah Street, Auburn, NSW. As was its obligation, the Tribunal sent the notification letter to that address.

4. As the Applicant had on 6 November 2014 changed the address for correspondence to be sent from the Tribunal it was up to him to check on any mail delivered to that new address and in all the circumstances I do not consider that he has given a reasonable explanation for the delay in commencing the present proceeding in this Court.

5. I record that at the hearing on 24 November 2016 in this Court when the Applicant was in reply he alleged from the Bar Table a conversation at the Tribunal hearing with the Tribunal member to the effect that, notwithstanding his completion of the Change of Contact Details form, he stressed to the Tribunal member and he expected that any correspondence was still to be sent to PO Box 1249, Auburn. This conversation had not been given in affidavit form, despite consent order 4 of 18 March 2016, which provided that the Applicant was to file and serve any affidavit evidence on which he intended to rely by 13 May 2016. In these circumstances I considered that it was far too late and would be unfair to the position of the Minister to call the Applicant into the witness box to give admissible evidence of this alleged conversation.

6. Nevertheless, whilst I do not consider that the Applicant has given a reasonable explanation of his delay in commencing the proceeding in this Court, I would not refuse to extend time under s.477(2) of the Act if I was of the view that the Applicant had reasonable prospects of success for his substantive grounds.

Grounds of Attack on Tribunal Decision in this Court

1. The substantive grounds relied upon by the Applicant in his Application are as follows:

   1. The Tribunal erred in arriving at a conclusion unsupported by evidence.

   2.The Mandarin and English interpreter failed to provide accurate interpretation. That is, my case was not heard properly and relevantly.

Consideration

Ground 1

1. This ground is completely unparticularized and no meaningful submission was made at the hearing by the Applicant in support of it. Failure to particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. However, I have in some detail considered the Decision Record of the Tribunal and in the absence of any identification of the alleged errors of the Tribunal or the asserted conclusions which are said to be unsupported by evidence, it is sufficient in my view to state that the Decision Record indicates a careful, balanced and detailed examination and analysis of the Applicant’s claims for protection. In my view it does not exhibit reasoning or conclusions which could be regarded as “arbitrary”, “irrational” or “lacking an evident or intelligible justification”.

1. Further, the Tribunal’s findings about the Applicant’s credibility were in my view legally reasonably open to it on the material available. The Tribunal’s reasons for its findings that the Applicant’s evidence was implausible and inconsistent are detailed and legally reasonable. The Decision Record does not exhibit “blanket”, “reflex” or “exaggerated” adverse credit findings: AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ.

2. This ground has no reasonable prospects of success.

Ground 2

1. Mistranslation and non-translation by an interpreter at a Tribunal hearing may lead to procedural unfairness if the result is that the relevant applicant before the Tribunal has not truly had a fair hearing because the applicant has been interfered with in the presentation of his or her case to the Tribunal. This ground obviously invokes the line of legal authority that gives effect to the above general statement of the law and which was reviewed by the Full Court of the Federal Court in SZRMQ v Minister for Immigration (2013) 219 FCR 212 per Allsop CJ, Flick and Robertson JJ and in SZSEI v Minister for Immigration [2014] FCA 465 per Griffths J.

2. However, in my view the Applicant has failed to lead any evidence at all, let alone evidence establishing on the preponderance of probability, to the effect that the interpreter in the Mandarin and English languages who attended at the Tribunal hearing on 6 November 2016 “failed to provide accurate interpretation” either by mistranslation, non-translation or otherwise.

3. First, the Applicant has not tendered any transcript of the Tribunal hearing from which any problems with interpretation at the Tribunal hearing might have been evidenced, notwithstanding that consent order 3 of 18 March 2016 required that any party desiring to give evidence of the Tribunal hearing had to present such evidence as a transcript verified by affidavit.

4. The onus lay on the Applicant to establish the misinterpretation that he alleges in this ground. As Buchanan J (with Perram J agreeing) said in SZJBD v Minister for Immigration (2009) 179 FCR 109 at 125 [73]:

   [73] When an allegation is made that inadequate interpretation has effectively deprived an applicant of the hearing guaranteed by s 425 of the Act the obligation rests upon the applicant in the ordinary way to show that jurisdictional error has occurred. The power of the Court to appoint an expert does not diminish or relevantly qualify that obligation. The facility of the Court to ensure that justice is done is not a substitute for the necessity to make out a case. It is a special power to be used in appropriate circumstances but it is not available to applicants just to fill a gap in their own cases. The facts of the present case, to which I will now return, show that it was not appropriate in the present case.

5. Second, there is nothing on the face of the Decision Record of the Tribunal that evidences that there were any interpretation problems at the Tribunal hearing.

6. Further and in any event this ground is also completely unparticularized and fails to identify how the interpretation was inaccurate or how any alleged error in translation precluded the Applicant from giving his evidence to the Tribunal or having his case heard properly and relevantly. In other words there is simply no evidence before the Court which indicates in the slightest degree that there was any misinterpretation or mistranslation at the Tribunal hearing.

7. This ground also has no reasonable prospects of success.

Conclusion

1. I do not consider that the substantive grounds relied upon by the Applicant are reasonably arguable or have reasonable prospects of success and in all the circumstances I consider that it is not in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time made by the Applicant pursuant to s.477(2) is refused.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 20 October 2017