Akk15 v Minister for Immigration

[2015] FCCA 2342

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2342

Catchwords:

MIGRATION – Application for extension of time – Protection (Class XA) visa – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: AKK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 10 of 2015

Judgment of: Judge Jarrett

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Darwin

Delivered on: 27 August 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent: Ms Newman

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”;

2. The application filed on 2 April, 2015 seeking an extension of time pursuant to s.477(2)(b) of the Migration Act1958 (Cth) is dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 10 of 2015

AKK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Applications for the judicial review of decisions of refugee review tribunals must be made within 35 days of the date of the decision sought to be reviewed: s.477(1) of the Migration Act 1958 (Cth). The court has power to extend the time if an application has been made in writing for that purpose and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order: s.477(2)(b) of the Act.

2. By this application, the applicant seeks an extension of the 35 day time limit so that he might commence an application for judicial review of a decision of a refugee review tribunal that was made on 6 January, 2015.  Any application for review by this court needed to be made by 10 February, 2015.  Using the filing date of the present application as the nominal filing date for his application for review (2 April, 2015), his proposed application for review is eight weeks out of time.

3. Ordinarily, the time limits imposed by the rules of court ought to be observed.  Extensions of time are not granted simply for the asking.  The Court must be persuaded that occasion for the favourable exercise of the discretion arises on the facts of the case before it.  The discretion is to be exercised judicially and not arbitrarily or capriciously.  That requires the identification of the factors relevant in any particular case and the weighing of those factors to derive the outcome.  Ordinarily, the following matters are seen as relevant to the exercise of the discretion reposed in the Court by s.477(2) of the Act:

   a)the length of the delay;

   b)the explanation for the delay;

   c)the presence of prejudice to the respondent; and

   d)the merits of the substantive application.

4. No other matters are present in the instant case that would add to that list.

5. The first respondent does not suggest that there is any prejudice to him if the requested extension is granted.  Accordingly, only three out of the four matters identified above are relevant.

6. I have already set out the length of the delay.  It is of about eight week’s duration.

7. The applicant has filed an affidavit in which he sets out the explanation for his delay.  In that affidavit, filed on 2 April, 2015 the applicant deposes that he forgot to sign his name on his application to this Court.  His case manager only told him about the problem about one month after he lodged his application for filing.  Because it was not signed, the applicant’s suggestion seems to be that his application was rejected for filing and languished in the Registry.    

8. However, there is nothing on the court file to indicate that he attempted to file his application any earlier than 2 April, 2015.  As the first respondent points out, even if this explained why the application was delayed by a month as the applicant claims, his application would still have been out of time by approximately a month.  No explanation has been offered for the remainder of the delay.

9. Nonetheless, there is an explanation for some of the delay given by the applicant.  That there is some explanation weighs in favour of the extension he seeks.

10. Perhaps a factor of more significance is whether the applicant’s proposed judicial review application has any prospects of success.

11. In this regard, it is important to note that, at this point, I am not deciding the applicant’s judicial review application, but rather I am determining whether he has any prospect of success in the proposed application so as to inform the exercise of the discretion pursuant to s.477(2) of the Act.  Accordingly, I turn now to consider the merits of the applicant’s proposed application.

12. To succeed in his application, the applicant must demonstrate that the tribunal’s decision is affected by jurisdictional error.  The applicant’s proposed grounds of appeal are:

    I believe I’m satisfie the Article 1 of the Refugees Convention. That I well-found fear of being persecuted for reason of personal matters and the power of the Government

    (errors in original)

13. The tribunal’s decision followed upon a hearing that the tribunal invited the applicant to attend.  The hearing took place on 17 December, 2014.  The applicant and the tribunal were assisted by a mandarin interpreter.  Although the applicant was represented in respect of the tribunal proceeding, his representative did not attend the hearing.

14. The tribunal gave its decision and the reasons for its decision on 6 January, 2015.  The tribunal accepted that the applicant is a citizen of the Peoples’ Republic of China.  He was granted a subclass 600 (visitor) visa on 4 December, 2013 and arrived in Australia on 16 December, 2013.  By 28 August, 2014 his visa had expired and he was located by the first respondent’s department and detained as an unlawful non-citizen under s.189 of the Act.  Soon after, on 5 September, 2014 the applicant lodged a valid application for a Protection (Class XA) visa.

15. The tribunal recorded the claims made by the applicant when he made his visa application and then when he was interviewed by the first respondent’s delegate for the purposes of that application.  In particular, the applicant claimed:

    a)the authorities in China planned to construct factories in the applicant’s village and appropriated village land, including agricultural land belonging to the applicant’s family, for well below the market value. The authorities have not paid the villagers the small amount they were promised.

    b)The villagers resisted, and protested against the authorities’ plan. As a consequence, the applicant was detained and interrogated by the Chinese authorities. He experienced intimidation and threats. One of the applicant’s neighbours was pushed down some stairs by the authorities as a result of the protests, and died shortly afterwards.

    c)He needs the land as he has been a farmer all of his life and does not have skills to find another job in China. He attended school until junior high school in China and worked installing gyprock in Australia.

    d)If the applicant returns to China he will continue to protest. He fears being detained and interrogated if he tries to claim his right to his land.

16. The applicant expanded his claims at the tribunal hearing.  He added a claim that he did not want to return to China because he had borrowed a lot of money from friends and family to come to Australia and, if he returned, they would ask for the money. 

17. The tribunal expressed serious doubts about the applicant’s credibility and the plausibility of his claims.  The tribunal was not satisfied that the applicant was a credible witness and did not accept his evidence about the claimed acquisition of the village land for inadequate compensation, his involvement in ensuing protests and his short detention.  The tribunal gave detailed reasons for rejecting the applicant’s claims about those matters.  As the first respondent records in his written submissions, the tribunal made the following observations regarding the applicant’s evidence:

    a)at [30]: The tribunal observes that the times and sequences given by the Applicant in his evidence at hearing are very confused and contradictory. The applicant gave no reasonable explanation for providing a confused account of the significant and relatively recent events. The tribunal finds his muddled narrative was not indicative of truth or genuine experiences.;

    b)at [31]: the tribunal found the applicant’s evidence regarding key incidents and details very vague, sometimes confused, and in some aspects implausible;

    c)at [34]: The applicant’s evidence regarding the number of villagers affected by the land confiscation made no sense. He stated that the total number of villagers affected, in both villages, was 200; yet the number of villagers affected in his village alone was ‘1000 villagers ...;

    d)at [35]: The applicant’s evidence in hearing about whether or not the factories were built on the confiscated land was confused and inconsistent; and

    e)at [44]: As set out above, the tribunal found the applicant’s evidence about the claimed acquisition of the village land for inadequate compensation, his involvement in ensuing protests and his short detention contradictory, vague and implausible or incoherent in significant aspects. The tribunal considers the applicant’s evidence unsatisfactory and it does not accept that any of the claimed events did occur. The tribunal does not find it credible that the applicant’s village land was taken by the town authorities, or that he was involved in any protests against such forced acquisition. It follows that the tribunal does not accept the applicant was briefly detained by police at such a protest.

18. The tribunal accepted that the applicant owed money to his relatives and other villagers who helped finance his travel to Australia, but found that there was no evidence to suggest that he would experience harm from them if he returned to China and they demanded repayment.

19. The tribunal found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that the applicant would suffer significant harm in terms of section 36(2)(aa) of the Act or that the applicant satisfied the criteria set out in section 36(2)(a) of the Act.

20. In his oral submissions to me, the applicant cavilled with the findings made by the tribunal about the plausibility of his accounts.  His submissions were in line with the statement that appears as his proposed ground of review in his application.  His concern is not so much with the process of the tribunal – the way it went about its task or the way in which it made the findings that it did, but rather with the outcome of the process. 

21. I am satisfied that the applicant’s proposed application seeks merits review rather than attempting to identify any jurisdictional error in the tribunal’s decision.  I have considered the tribunal’s reasons carefully, but cannot identify any error in the tribunal’s approach. No jurisdictional error is apparent in the tribunal’s reasons. Accordingly, in my view, the applicant’s proposed judicial review application has no prospects of success.

22. Even though the applicant has provided something of an explanation of the delay of almost eight weeks in commencing this application, and notwithstanding that there is no demonstrable prejudice to the first respondent if leave is granted, given my view that the applicant has no prospects of success on the application for review that he wishes to pursue, I am not satisfied that is necessary in the interests of the administration of justice to grant the requested extension.  

23. Accordingly, the application for an extension of time must be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 August, 2015.

Associate: 

Date:  27 August 2015