APH16 v Minister for Immigration and Border Protection
[2018] FCA 1752
•13 November 2018
FEDERAL COURT OF AUSTRALIA
APH16 v Minister for Immigration and Border Protection [2018] FCA 1752
Appeal from: Application for extension of time: APH16 v Minister for Immigration& Anor [2018] FCCA 1032 File number: VID 846 of 2018 Judge: THAWLEY J Date of judgment: 13 November 2018 Catchwords: MIGRATION – application for extension of time to appeal from decision of the Federal Circuit Court of Australia – where leave would be required to rely on grounds not raised in Federal Circuit Court if an extension granted – whether proposed grounds of appeal have sufficient merit to warrant leave and extension of time Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 48A
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Cases cited: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
BUD17 v Minister for Home Affairs [2018] FCAFC 140
BXD17 v Minister for Immigration and Border Protection [2018] FCA 765
Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; 140 ALD 524
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261
Date of hearing: 13 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 49 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
VID 846 of 2018 BETWEEN: APH16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
13 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)THAWLEY J:
The applicant applied under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia made on 27 April 2018. The Federal Circuit Court concluded that the Administrative Appeals Tribunal had not committed any jurisdictional error in its decision of 1 March 2016 affirming a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) made on 16 March 2015.
Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicant had 21 days from the date of the Federal Circuit Court decision to file a notice of appeal to this Court. Any notice of appeal should have been filed on or before 18 May 2018. The application for an extension of time was filed on 13 July 2018. The applicant therefore requires an extension of 56 days in which to appeal. This is not an insignificant delay. The statutory time limits are not to be ignored. They are not “aspirational guidelines”: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3].
The principles relevant to whether an extension of time should be granted in this context are well known: BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [82]; BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [20]-[25]. Any relevant matter may be taken into account in considering the exercise of the discretion. There are four factors which are commonly relevant and taken into account, and which are not exhaustive: (1) explanation for the delay; (2) length of the delay; (3) merit of the appeal; and (4) prejudice to the respondent (taken from Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, per Wilcox J).
I deal with the first, second and fourth of those matters before turning to the underlying facts and the merit of the proposed appeal. I note leave was granted to the applicant to file in Court a draft notice of appeal which had not been filed together with the application for an extension of time.
As to the first and second matters, the affidavit filed with the present application gave the following explanation for the delay of 56 days:
I delayed this further appeal application because I never received the court final decision either by mail or email. I was finally advised by the DIBP that my court case has been finalized and I have already overstayed my visa. I am very surprised as I had been waiting for the court decision after the court hearing, however I never received it. I wish the court can consider my situation and accept my appeal.
Evidence was adduced by the Minister to the effect that the Federal Circuit Court provided a copy of the judgment to the parties by email at 4:20 pm on 27 April 2018, shortly after judgment was delivered. The email was sent to the address provided by the applicant in his application for judicial review and his supporting affidavit in that application. Before this Court, the applicant stated that he had not received the Federal Circuit Court judgment by email. I note the email address the applicant provided to this Court is different to the email address provided in relation to the Federal Circuit Court proceeding.
Whilst I regard the applicant’s explanation for the delay as not being satisfactory, I do not give that matter great weight against the application for extension of time. The matter I give particular weight in the circumstances of this case is the merit of the proposed appeal, which I shall come to shortly.
As to the fourth matter, the Minister properly accepted that there was no prejudice to him if this Court were to grant an extension of time, beyond the public interest in the finality of decision-making and the cost to the Minister of responding to what was, in his submission, an unmeritorious application.
BACKGROUND
The applicant is a citizen of the People’s Republic of China, born in Fuqing in the Fujian Province. He worked in the Solomon Islands before arriving in Australia on 13 November 2006 as the holder of a Business (Short Stay) (Subclass 456) visa, valid until 20 November 2006.
On 20 November 2006, the applicant applied for a protection visa. That visa application was refused on 13 December 2006. The Refugee Review Tribunal affirmed the delegate’s decision on 24 April 2007.
The applicant remained in Australia unlawfully from 23 May 2007 until 24 December 2013, when he applied for a Protection (Class XA) (Subclass 966) visa. For the purposes of that application, the applicant provided written submissions to the delegate identifying his claims, in essence, in the following way:
(1)He stayed in Australia after his Tribunal review because he felt there was no hope in returning to China. He had become a Christian in that time, and in March 2008, served at the “Chinese Methodist Church of Australia – Preston Preaching Centre” in Melbourne.
(2)He was baptised in 2008. He had endeavoured to spread the gospel.
(3)Many of his wife’s relatives have been Christians for many years. He later learned that their church was called “Eastern Light” group and that his parents also joined them.
(4)He and his wife reached consensus in their belief such that he also accepted the “Eastern Light”.
(5)In 2010, someone from the “Eastern Light” came to visit him in Australia, bringing brochures and books, and interesting him in learning more from the church. He decided to be a part of that organisation and he joined the World Doom Date activities organised online.
(6)In 2012, he participated in further activities seeking actively to persuade more people to confess and repent in front of God.
(7)His church (understood to be the “Eastern Light”) was classified as a cult in 1995 by the Chinese government, which has ruthlessly suppressed the church’s activities, particularly since 2012.
(8)Because he was faithful to the “Eastern Light”, he hoped to set up an “Eastern Light” church in Australia and anticipated that the Australian government would give him religious protection.
I infer that the applicant’s references to “Eastern Light” are references to the “Eastern Lightening” sect mentioned in the delegate’s statement of reasons.
DELEGATE’S DECISION
The delegate had before him the applicant’s written claims just summarised. The applicant also attended an interview before the delegate on 4 March 2015. The delegate summarised the applicant’s claims in the following way:
ŸHe is a member of Eastern Lightning, a sect that is outlawed in China, and he will be imprisoned because of his beliefs.
ŸHe has participated in online discussions about his beliefs but these discussions and blog posts were deleted by the Chinese authorities. Some of his fellow adherents were also arrested.
ŸHis late mother was also a member of the sect, and was harassed by the police because of her involvement. She died last year from a combination of poor health and stress caused by police harassment.
ŸHe attends a Methodist church in Melbourne, and also attends a ‘house church’ or informal worship meeting of the ‘Shouter’ sect. The applicant claimed to have avoided Christian worship in China in the past because of his fears. The applicant states he does not want to return to China as there is no religious freedom there, and it arises on the facts of the case that he would also fear imprisonment for his Christian worship outside of Eastern Lightning.
It is unnecessary to summarise the delegate’s decision extensively for the purposes of this application. However, I note the following:
(1)The delegate made a finding that the applicant was not and had never been an adherent of “Eastern Lightening” and that he had fabricated that claim to advance his application for a protection visa.
(2)The delegate did not accept that he applicant regularly attended a Methodist church in Melbourne, nor that he attended a home church of the “Shouter” movement.
Accordingly, the delegate concluded that the applicant did not have a subjective fear of harm in China given he had not raised any claims for protection outside of his claimed religious beliefs.
On 16 March 2015, the delegate of the Minister refused the protection visa application.
TRIBUNAL DECISION
On 17 April 2015, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal at a hearing on 4 November 2015 to give evidence and present arguments. The Tribunal also received a written statement and oral testimony from the applicant’s witness, Reverend James Ha (Pastor Ha).
The Tribunal conducted its review on the basis that, given the applicant had previously been refused a protection visa as he did not meet the criterion in s 36(2)(a) of the Act, the only relevant question before the Tribunal was whether the applicant satisfied the complementary protection criterion in ss 36(2)(aa) – see: s 48A of the Act; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [32]-[33], [47] (Allsop CJ, Buchannan and Griffiths JJ). No issue was taken with that approach.
At T[32], the Tribunal noted that the applicant had made a range of different claims for protection associated with his application, including fear of returning to China because he was an adherent of the banned “Eastern Lightening” cult, because he had attended “Shouter” sect meetings in Australia, and due to his membership of the Methodist Protestant faith through his attendance and participation in the Chinese Methodist Church of Australia (CMCA).
At T[33], the Tribunal noted that the applicant had advised the Tribunal in writing and at the hearing that he no longer held beliefs in “Eastern Lightening”, which by that time he had come to regard as heretical. The applicant retracted all other beliefs, including “Shouter” sect beliefs, and indicated he intended to continue serving in his current church, the CMCA.
At T[34], the Tribunal stated that it considered the applicant’s shifting claims in relation to his faith suggested the claims may have been based on expediency and led it to question the credibility of his Methodist faith. However, the Tribunal considered the applicant’s claims in light of the testimony of Pastor Ha, which it considered to be open, sincere and genuine. The Tribunal also noted the documentary evidence of the applicant’s participation in church activities and that he spoke knowledgeably about those activities and his role in relation to them. The Tribunal recorded that the applicant spontaneously used possessive terms such as “our” church, and the Tribunal ultimately formed the view that his attachment to the CMCA was genuine.
At T[35], the Tribunal said it considered that the applicant’s faith had been intermittent since he was baptised in 2008, with “periods of lesser participation and divergence into the Eastern Lightening sect”. Nevertheless, the Tribunal accepted that the applicant had become an active member of the CMCA over the 12 months preceding the Tribunal’s decision to the exclusion of other faiths.
From T[36] to T[41], the Tribunal dealt in some detail with the applicant’s participation in church activities and with his current beliefs. At T[42] the Tribunal found, in summary, that the applicant held and practiced Christian beliefs in the Methodist tradition, and that he had a profile as an active participant. The Tribunal found that the applicant’s preaching activities were of a limited nature within the applicant’s personal network and that he did not have a profile as a leader in the CMCA.
At T[44] to T[47], the Tribunal stated that the applicant was vague about which church he would attend in China and that he frankly stated that he had not been in China for 10 years and was not familiar with the current situation. The Tribunal accepted that the applicant would join an unregistered church if he returned to China. It took this matter into account in considering whether the applicant faced a real risk of significant harm on return to China. The Tribunal referred to country information which indicated that many Protestants in China worshipped at churches which were not officially registered. It put to the applicant that in 2015, the Department of Foreign Affairs and Trade (DFAT) reported that, although both the Fujian province and the county contained relatively large numbers of Protestants, there were few reports of repression of house-church Christians in the province or the county. The Tribunal put to the applicant that, according to the DFAT report, the view of academics was that, in general, the official policy on religion had been applied relatively liberally in Fujian, although there had been occasional crackdowns on house-churches and underground Catholics.
The Tribunal took into account the applicant’s responses to the country information which had been put to him by the Tribunal. At T[50], the Tribunal concluded that, having considered all of the evidence, the applicant would be able to continue his participation in worship and prayer in a manner similar to his current practice. The Tribunal did not consider the applicant would change his practice on return, and did not accept that he faced a real risk of significant harm at the hands of the authorities for his religious practice, including his current activities “to spread the work of God”.
At T[51], the Tribunal referred to the nature of the applicant’s involvement in church committees and found that those roles did not elevate the applicant’s profile to a leader in the church such that he would attract adverse attention. At T[52], the Tribunal found that the applicant did not face a risk of harm on account of his wife’s beliefs. At T[53], the Tribunal concluded that the applicant’s past association with Eastern Lightening was not such that he faced a real risk of harm
At T[54], the Tribunal stated:
The Tribunal acknowledges the contribution the applicant has made to the life of the CMCA, Preston, and that he is an asset to the Church. However, in summary, the Tribunal does not accept that the applicant will be arrested or face any adverse consequence from the authorities or anyone else because he is Christian and will openly preach. The Tribunal does not accept that the applicant faces a real risk of significant harm as exhaustively defined in s.36(2A). On this basis, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm for any reason.
In light of those findings, the Tribunal was not satisfied that the applicant satisfied the complementary protection criterion in s 36(2)(aa) of the Act: T[55], [57].
On 1 March 2016, the Tribunal affirmed the decision of the delegate.
FEDERAL CIRCUIT COURT DECISION
On 21 March 2016, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.
Annexed to the application for judicial review was a document titled “Attachment to Grounds of Application”, which contained 11 numbered paragraphs under the headings “Orders sought by Applicant” and “The Grounds of the Application are”. The applicant also filed a supporting affidavit repeating paragraph [1] of the “Grounds of the Application” set out in the Attachment. The affidavit stated:
I, a Chinese national arrived in Australia in 2006. Having commitment of Methodist faith, I have engaged myself in daily prayers, bible study, preaching gospels and church administration
At J[2], the Federal Circuit Court identified the grounds before it in the following way:
The grounds of the application are set out in a document attached to the application. That document has been conveniently and accurately summarised by the First Respondent into six grounds, these being:
i.his application was not given fair consideration;
ii.the Tribunal failed to consider the evidence provided including from Pastor Ha;
iii.the Tribunal failed to consider his claims that he was a Christian and a preacher;
iv.the Tribunal failed to give him a chance to comment on the “outstanding questions” at the hearing;
v.the Tribunal’s issues with the Applicant’s credibility are “unacceptable”; and
vi.the Tribunal was biased in its decision.
The Federal Circuit Court set out the background from J[4] to J[16]. At J[17], the Federal Circuit Court stated in respect of the six grounds summarised above:
Turning to the grounds of the application as summarised:
a.Grounds 1 and 2 – in my view, it is not open to the Court to find that the Tribunal did not give a fair consideration to the Applicant’s claims. The Tribunal summarised the Applicant’s claims and the evidence that he gave in support of the claims. The Tribunal considered that the evidence that was given in support of the claims by Pastor Ha and found that the testimony of that witness was open, sincere and genuine (at [34]). The Applicant was aware of the basis of the delegate’s decision and provided information and gave evidence in light of that decision. It is not apparent that there has been any failure on the part of the Tribunal to accord procedural fairness to the Applicant.
b.Ground 3 – the Tribunal considered at length the Applicant’s claims in relation to his religious beliefs. It found that the Applicant would be able to continue his participation in worship and prayer on the basis that he had carried it out in Australia, and that it was preaching practice centred around the Applicant’s social and church network (Tribunal decision at 50). The Tribunal considered the Applicant’s witness’s evidence, that of Pastor Ha, in respect of the Applicant’s preaching activity and concluded that it was of a limited nature and that it would take place within the Applicant’s social network of friends. At [40], the Tribunal found that it did not accept that the Applicant would engage in any other form of preaching in China and that the Applicant did not have a profile as a leader in the church. It is apparent that the Tribunal considered the Applicant’s claims to be a Christian and a preacher. There is no error apparent in the decision and the Applicant is seeking impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
c.Ground 4 – in his application, the Applicant referred to a failure to give the Applicant a chance to comment on “outstanding questions”. The Applicant did not define what those open questions were. He did not raise fresh matters nor did he identify those matters to the Court when asked about them.
d.Ground 5 – this ground raises a criticism of the Tribunal’s doubts regarding the Applicant’s credibility. As noted above, the Tribunal raised in passing, questions in relation to the Applicant’s credibility but on balance found that the Applicant’s claims in relation to his adherence to the Christian faith and his involvement in the church were believable. The refusal to grant the Visa on the part of the Tribunal was not based on credibility findings.
e.Ground 6 – this ground raised an allegation of bias. The ground was not particularised and no information has been provided to the Court, whether in writing or in oral submissions, to support a finding that the Tribunal was affected by bias.
DRAFT NOTICE OF APPEAL
As noted earlier, the application to this Court for an extension of time was not accompanied by a draft notice of appeal. The applicant’s supporting affidavit filed on 13 July 2018 included:
…
2.Application for Federal Circuit Court has been dismissed and I do not agree with its decision.
3. I wish to do further review with your court and get a more fair decision.
…
As I have mentioned, leave was granted to the applicant to file in Court a draft notice of appeal containing the following proposed grounds (without alteration):
1. AAT and Federal Circuit Court failed to Consider my explanation and supporting documents to support my appeal which I believe it is a legal error
2. I am a Chinese citizen, As committed Christina who will be facing persecution by Chinese government due to my believes
3. I cannot go back to China since I am very scared to be sentenced and discriminated.
4. RRT member and the Federal Court did not well consider of my fears and persecution if return to my home country.
The Minister observed that the draft notice of appeal sought to raise grounds which had not been put to the Federal Circuit Court and submitted that, should an extension of time be granted, leave would be required to rely upon those grounds – see: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48].
One of the important factors which would arise when deciding whether leave should be granted to rely on new grounds is the prospect of success of the proposed ground, a matter which is also relevant to an application for an extension of time. Although the Minister opposed leave to rely upon the proposed grounds for the purposes of the application for an extension of time, it is expedient to engage with the proposed grounds for the purposes of determining whether the extension of time should be granted.
Caution is required in assessing the merits of the applicant’s proposed appeal in the context of an interlocutory application such as this: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]. The question of merit should be considered at a “reasonably impressionistic level” by reference to the grounds of appeal as identified: BXD17 [2018] FCA 765 at [23]; SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [13]; Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 at [23].
Grounds 1 and 4
Proposed grounds 1 and 4 are directed to the consideration by the Tribunal and the Federal Circuit Court of the applicant’s claims to fear persecution and the explanation and supporting documents provided by the applicant.
As the discussion above reveals, the Tribunal had regard to the documentary evidence provided by the applicant, and to his written and oral submissions, particularly at T[18] to T[25]. It also gave detailed consideration to the written and oral testimony of Pastor Ha – see: T[26] to T[31].
The substance of grounds 1 and 4 was considered by the Federal Circuit Court at J[17], where it dealt with grounds 1 and 2 of the six grounds of judicial review before it. The Federal Circuit Court has not been shown to have erred in its conclusions.
As the Minister submitted, the Tribunal was not obliged to accept the applicant’s claims uncritically. The weight to be given to the applicant’s claims and the evidence before it was a matter for the Tribunal: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at [17]. The applicant’s complaint in relation to the Tribunal’s consideration of his claims and supporting documentation is of insufficient merit to warrant granting an extension of time, whether or not the proposed grounds of appeal can arguably be said to fall within those put to the Federal Circuit Court.
The complaint in relation to the Federal Circuit Court misunderstands the role of that court on an application for judicial review. The Federal Circuit Court’s role was to determine whether the decision of the Tribunal was affected by jurisdictional error. The Federal Circuit Court’s function was not to embark upon a reconsideration of the merits of the applicant’s protection visa application or the veracity of his claims.
The Federal Circuit Court engaged with the material before it and addressed and determined each of the applicant’s grounds for judicial review. It has not sufficiently been shown that the Federal Circuit Court may have erred, such that an application for an extension of time should be granted.
Grounds 2 and 3
Proposed grounds 2 and 3 restate the applicant’s claims for protection. They do not purport to identify any error on the part of the Federal Circuit Court, or jurisdictional error on the part of the Tribunal. The grounds invite this Court to undertake an impermissible reconsideration of the merits of the applicant’s visa application – see: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
While an appeal to this Court, should an extension of time be granted, would be by way of rehearing, it is not an opportunity to revisit the merits of the decision of the Tribunal: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; 140 ALD 524 at [28].
The role of this Court on appeal, should an extension of time be granted, is limited to identifying and correcting appellable error on the part of the Federal Circuit Court. That might be shown in a particular case by identifying a failure by that court to identify jurisdictional error on the part of the Tribunal. However, that was not shown on this case to be sufficiently arguable to warrant an extension of time being granted.
CONCLUSION
For those reasons, the application for an extension of time must be dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 19 November 2018
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