AKL16 v Minister for Immigration

[2016] FCCA 2578

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKL16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2578

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – extension of time application – whether the Tribunal failed to consider relevant information under sub-s.5J(1)(a) of the Migration Act 1958 (Cth) – whether the Tribunal erred by incorrectly relying on the applicant’s imputed political opinion – whether the Tribunal erred by paraphrasing the applicant’s responses – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 477

Cases cited:

BZAID v Minister for Immigration & Border Protection [2016] FCA 508

Applicant: AKL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 80 of 2016

Judgment of: Judge Smith

Hearing date: 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Sydney and by video-link to Perth

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person in Perth by video-link.

Solicitors for the Respondents: Ms A Ladhams, Australian Government Solicitor

ORDERS

1. The application for an order under s.477(2) of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 80 of 2016

AKL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia as the holder of a student visa. On 15 January 2015, he was taken into immigration detention as he no longer held a valid visa and on 13 May 2015 he applied for a protection visa. On 22 October 2015, a delegate of the Minister made a decision not to grant the applicant a visa and the applicant applied to the Administrative Appeals Tribunal for review of that decision.

Extension of time

1. On 2 December 2015, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision. An application for such review must be made within 35 days of the date of the decision: s.477(1) of the Migration Act 1958 (Cth). However, the applicant did not make an application for judicial review until 24 February 2016. Under s.477(2) of the Act, the Court has the power to extend the time for making the application on two conditions:

   …

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. It is not in dispute that the first of these conditions has been met. The question then is, whether the Court is satisfied that it is necessary in the interests of the administration of justice to make the order extending the period within which an application for judicial review may be made.

3. The matters that are relevant to this question are not expressly circumscribed by the Act; however, the following matters are regularly seen as factors relevant to the question posed by s.477(2) of the Act:

   a)the extent of the delay;

   b)the reasons for the delay;

   c)any prejudice to the respondent;

   d)any impact on the applicant if time is not extended;

   e)the interests of the public at large; and

   f)whether the grounds of the proposed application have sufficient prospects of success.

4. The application was lodged 49 days, that is, seven weeks, after the period prescribed by s.477(1). While it is not an extraordinary delay, it is a considerable one.

5. In his application for review the applicant explained the delay by stating that neither Serco nor the Department of Immigration (“Department”) had yet provided a person authorised to sign an affidavit and an affidavit is required to proceed with the application. Serco is the company responsible for the day-to-day running of the immigration detention facility at which the applicant has been detained.

6. Although the applicant filed an affidavit in support of his application, he did not give evidence to support the assertion in his application, or otherwise, to explain the delay in making the application. When that fact was raised with him at the hearing and he was informed of various options whereby he could address the lack of evidence, including by giving oral evidence. The applicant chose to rely upon what was said in the application. For that reason the assertion set out at [6] above was tendered into evidence.

7. I do not accept that there was no facility at the immigration detention centre for the preparation of the necessary documents for making a judicial review application. The applicant did not explain what efforts he had made to prepare such documents and the affidavit which he lodged with the application (which was affirmed 12 days prior to that lodgement) was witnessed by a Justice of the Peace for the Territory of Christmas Island. The fact that the affidavit was witnessed by a Justice of the Peace is inconsistent with the assertion made in the application. If the assertion was intended to be to the effect that it took some time to obtain a witness to the affidavit, then the lack of detail in the assertion leads me not to be satisfied that it is true.

8. Further, and in the alternative, even if I were to accept that there was between 2 December 2015 and 12 February 2016, no person available to witness the applicant’s affidavit, I would not be satisfied that there was a reasonable excuse for delay. In particular, the applicant does not say that he made any effort to lodge an application without an affidavit or with an affidavit that had not been properly witnessed.

9. For those reasons, I consider the applicant has not established any reasonable basis for the delay.

10. I note that the Minister is not relying on any prejudice that he might suffer as a result of the delay and that the impact on the applicant is that he may lose the opportunity to have judicial review of the Tribunal’s decision. In addition, I take into account the interests of the general public which are expressed in the time limits imposed by the legislation, as well as the interests of other litigants in the court who are abiding their time for a hearing in circumstances where they lodged an application for review within the prescribed period.

11. The remaining consideration addressed by the parties concerned the merits of any substantive application. This consideration requires a brief reference to the bases for the applicant’s application for a protection visa and the reasons for which the Tribunal affirmed the delegate’s decision not to grant him the visa.

Tribunal’s decision

1. In his protection visa application the applicant explained that he had been in detention for months with lots of anti-Chinese government people, and feared that the Chinese government would punish him because he had been locked up with them. In an interview with the delegate the applicant explained that these people were Falun Gong practitioners. The applicant made no written claims to the Tribunal, and at the hearing conducted by the Tribunal on 30 November 2015 told the Tribunal that his only fear was that the Chinese authorities would arrest him one day because he had been detained with Falun Gong practitioners. He told the Tribunal that he did not himself, identify as a follower of Falun Gong.

2. The Tribunal accepted that active Falun Gong followers were targeted for harm by authorities in China but found that the claim that the applicant would be targeted merely for having been detained with such followers and even being exposed to some of their beliefs was far-fetched. The Tribunal found there was nothing in the applicant’s history or profile to indicate that there was a real chance that he would be imputed with a political opinion, or otherwise be of adverse interest to the Chinese authorities and, for that reason, it found that he did not satisfy the criteria for the grant of a protection visa.

Consideration

1. There are three grounds raised by applicant:

   a)a relevant consideration was not taken into account (religion) under sub-s.5J(1)(a) of the Act;

   b)the delegate and the Tribunal paraphrased the applicant’s response, thereby not reflecting his intentions as the applicant’s first language is Chinese, not English; and

   c)a mistake of fact: the applicant was claiming in the first instance, an imputed political opinion, was incorrect. He was claiming on the grounds of religious persecution.

2. Sub-section 5J(1)(a) provides that, for the purposes of the application of the Act and the regulations to a particular person, the person has a well-founded fear of persecution if “the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. The first and third grounds are that the Tribunal erred by considering the applicant’s claims on the basis that his claim was that the Chinese authorities would persecute him for reasons of his political opinion, or imputed to him by reason of his having been detained with followers of Falun Gong.

3. The applicant argues that the Tribunal should have considered it found the basis that any persecution of the applicant would be for reason of his religion. There is no merit at all in these grounds. The Tribunal not only rejected the possibility that the applicant would be imputed with a political opinion simply for having been detained with (and being exposed to the beliefs of) Falun Gong practitioners, but also found that he would not be of adverse interest to the Chinese authorities for any other reason: [21]. In light of that, it is clear that the Tribunal dealt conclusively with any claim arising from the applicant’s detention with other people, regardless of what characterisation might be given to the reason for which the Chinese authorities might persecute the applicant.

4. The submissions by the applicant appear also to raise, in respect of these grounds, the argument that the applicant in fact claimed to be a Falun Gong practitioner. That argument is simply inconsistent with the evidence before the Court. First, there is nothing in writing to suggest that the applicant made any claim other than that he had merely been in detention with Falun Gong practitioners; and secondly, the Tribunal’s reasons disclose that when he was asked whether he identified as a follower of Falun Gong, the applicant said that he did not: [16]. This point appears to be linked to the second ground which is an assertion that there was some misinterpretation of the applicant’s evidence. However, there is no evidence of any misinterpretation.

5. The applicant relies upon the following passage in the Tribunal’s reasons in support of the second ground:

   [17] …The Tribunal asked the applicant if he applied for the Protection visa only so that he would have grounds to apply for a Bridging visa. At first he said yes, although the Tribunal is not relying on that answer as it was a complicated question and the Tribunal is not sure the applicant understood the question at first. …

6. In my view, although it is possible that this passage reveals an instance of miscommunication that could possibly have been caused by an error in translation, the proposed argument is very weak. First, the balance of [17] of the Tribunal’s reasons shows that any miscommunication appears to have been overcome:

   … After asking the question a number of ways the applicant said he applied for the Protection visa because he believes he’s a refugee. He fears he’ll be hurt or arrested by the authorities in China, maybe not as soon as he returns, but maybe in the future. He maintains he fears this because he has been detained in Australia alongside Falun Gong followers.

7. Secondly, the miscommunication in question, even if accepted, did not go to any claim made by the applicant and, in particular, did not concern any claim that the applicant was himself a follower of Falun Gong. Thirdly, there was no other instance of miscommunication or potential mistranslation relied upon by the applicant. It is very unlikely in light of that, that it could be concluded that the process before the Tribunal was unfair as a result of the translation: see BZAID v Minister for Immigration & Border Protection [2016] FCA 508 at [52]-[53].

8. For those reasons, in light of the other considerations, including the lack of any reasonable excuse for the delay, I consider that there are insufficient merits in the grounds raised by the applicant to conclude that it would be in the interests of the administration of justice to extend the period within which to make an application for judicial review of the Tribunal’s decision.

Conclusion

1. The application for an order under s.477(2) extending the period under s.477(1) will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 21 October 2016