ARA16 v Minister for Immigration

[2017] FCCA 486

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 486

Catchwords:
MIGRATION – Application for an extension of time under s.477(2) of the Migration Act – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205

CLR 507; [2001] HCA 17

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR

585; [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77

Applicant: ARA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 689 of 2016

Judgment of: Judge Barnes

Hearing date: 2 March 2017

Delivered at: Sydney

Delivered on: 2 March 2017

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time is refused.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 689 of 2016

ARA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This an application filed on 24 March 2016 including an application for an extension of time in which to seek review of a decision of the Refugee Review Tribunal not to grant the Applicant a protection visa. 

2. The Tribunal decision was dated 1 March 2004.  Under then applicable Tribunal procedures the decision was handed down on 23 March 2004.  Written notification and a copy of the decision was sent to the Applicant by letters dated 23 March 2004 addressed to his authorised recipient and his business address.  This application was not filed until some 12 years later. 

3. The Applicant, a citizen of China, arrived in Australia on 1 May 2003.  He applied for a protection visa on 20 August 2003.  In a supporting written statement he claimed to fear harm as a Falun Gong practitioner. 

4. The application was refused and the Applicant sought review by the Tribunal.  He did not provide any further evidence or submissions in support of his application. 

5. By letter of 10 December 2003 the Applicant was invited to attend a Tribunal hearing on 20 February 2004.  On its face the hearing invitation letter was addressed to the Applicant at the residential address provided in his review application, his mailing address and also to his authorised recipient.  The hearing invitation informed the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. 

6. On 15 December 2003 the copy of the hearing invitation sent to the Applicant’s residential address was returned to the Tribunal by Australia Post, marked “No Such Street/Number.”  The Tribunal recorded that the copies of the hearing invitation sent to the Applicant’s mailing address and to his authorised recipient were not returned. 

7. On 22 December 2003 the Tribunal wrote again to the Applicant (at his residential address with copies to his mailing address and his authorised recipient) advising that the presiding member was unavailable, that the hearing had to be adjourned and that the Tribunal would write again when there was a new date for the hearing.  Again, the letter sent to the Applicant’s residential address was returned but, according to the Tribunal, the letters sent to the mailing address and to the authorised recipient were not returned. 

8. On 5 January 2004, before a new hearing had been arranged, the Tribunal received a completed and signed Response to Hearing Invitation Form.  In response to the question “Do you want to come to a hearing?” the box “No” was ticked which also stated “I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.”

9. In its reasons for decision the Tribunal recorded that the copies of each of the letters sent to the Applicant’s mailing address and authorised recipient had not been returned and that on 5 January 2004, before a new hearing date could be arranged, the Applicant had advised it in writing that he did not wish to give oral evidence and had consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  In these circumstances the Tribunal was satisfied that, although the Applicant had not been invited to a hearing at a new date by the time he wrote to the Tribunal on 5 January 2004, in deciding to forego a hearing he was aware that the presiding member had changed and that a new date was being scheduled as advised in the Tribunal’s letter of 22 December 2003.  The matter was therefore determined on the evidence available to the Tribunal. 

10. The Tribunal summarised the Applicant’s claims made in connection with his protection visa application.  In essence, he claimed that he was a doctor who had been introduced to Falun Gong by a patient at some unspecified point in 1997; that he had gained benefits from it and introduced it to other patients; that after the Chinese government crackdown on Falun Gong in 1999 he was sent to a study class for one month, questioned by a supervisor, had to submit some reports and provide confessions and report regularly to the local police station; that there were no Falun Gong activities anymore; and that he no longer dared to attend Falun Gong activities in public.

11. In its findings and reasons the Tribunal pointed out that these claims were the extent of the Applicant’s claims about his involvement with Falun Gong.  It found that beyond these points the Applicant had given no details about key aspects of his experiences.  The Tribunal referred to the fact that although the Applicant implied that he and his friends practised Falun Gong in public before he was detained, he had given no details as to where or how frequently he practised or whether it was with a practice group.  Nor had the Applicant revealed whether he practised Falun Gong again in public after his detention or whether he ever practised Falun Gong in private at any time.

12. The Tribunal found that these were not the only significant gaps in the Applicant’s account of his Falun Gong activities.  It had regard to the fact that he had not explained why he described himself as an “activist” and observed that he had made no mention of any actions taken by him to protest against the crackdown on Falun Gong, no mention at all of the philosophical or moral beliefs or practices of Falun Gong or its history beyond the fact of the 1999 crackdown; and no mention of any involvement with Falun Gong since arriving in Australia.  Nor had the Applicant provided any independent evidence of any involvement with the movement, either in China or elsewhere.

13. The Tribunal stated that it would have explored these issues with the Applicant at a hearing and would, in particular, have offered him the opportunity to demonstrate his personal knowledge of Falun Gong practice and philosophy, but that it was unable to do so because he had decided to forego a hearing notwithstanding that the Tribunal had made it clear in its hearing invitation that on the information before it, it was not able to make a favourable decision. 

14. The Tribunal did not draw an adverse inference from the Applicant’s decision to forego his right to give oral evidence.  It also accepted that a written statement may not be the place for a detailed account of religious or philosophical beliefs or religious activities and experiences.  However, having regard to the Applicant’s claims that he was a Falun Gong practitioner and an activist whose health and happiness had been increased by his involvement with the faith, the Tribunal found that this would be a significant element of the Applicant’s life and that it would have expected the Applicant to provide more than the minimal detail he had offered about such a centrally important area of his claims. 

15. Given the vagueness and superficiality of the Applicant’s description of his Falun Gong involvement and the lack of any evidence of involvement since he left China, the Tribunal was not satisfied that the Applicant was ever a Falun Gong practitioner or activist as claimed or that he ever had any substantial involvement with the Falun Gong movement.  Hence it was not satisfied that the Applicant was for this reason ever arrested, placed in a study class, forced to sign confessions or subsequently subjected to police monitoring as claimed.  Nor was it satisfied that his claimed loss of friends and family harmony was due to any involvement with Falun Gong. 

16. The Tribunal noted that the Applicant made no other Convention-related claim.  It reiterated that his claims concerning his Falun Gong involvement were “unsubstantiated and deficient in detail on important points” and found that they did not provide sufficient grounds for the Tribunal to have confidence in the claimed basis for the Applicant’s professed fear of persecution.  On the available evidence and without a chance to test the Applicant’s claims the Tribunal was not satisfied he had ever been a Falun Gong practitioner or activist or that he was subject to the treatment he claimed for that reason.  It was not satisfied the Applicant met the Refugees Convention criterion.  It affirmed the decision not to grant a protection visa. 

17. As indicated, the application for judicial review was filed on 24 March 2016, more than 12 years after the date (and the handing down) of the decision and well outside the 35 day time-limit in s.477(1) of the Migration Act 1958 (Cth) (the Act) which has been in its present form since 2009. I have considered whether I am satisfied that it is necessary in the interests of the administration of justice to extend that 35 day period within s.477(2) of the Act.

18. In considering the application for an extension of time, I have had regard to the discussion by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 of the principles regarding an extension of time, as well as the consideration of principle by Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 referred to with approval by the Full Court on appeal (see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110). I bear in mind that s.477(2) of the Act does not define or confine the matters to which the court should have regard. Factors ordinarily taken into account include whether there has been a reasonable and adequate explanation for the delay in commencing the proceedings, whether the Applicant’s substantive case is sufficiently arguable, and any prejudice to the Minister or to the Applicant including the absence of a right of appeal. In considering the merits of the substantive case I recognise that it is generally inappropriate to investigate fully such merits (see MZABP at [63]).  I have had regard to the weighing exercise necessary in a consideration of all the circumstances (see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77 at [10]).

19. The Applicant included grounds for the extension of time in his application.  He did not file any affidavit evidence in relation to the delay, despite being given the opportunity to do so on more than one occasion.  However today he was given (and took) the opportunity to give oral evidence to explain the reasons for the delay. 

20. His evidence was to the effect that he was made aware of the Tribunal decision, but his then agent told him he could either apply to the court or not.  In other words, he acknowledged that he was informed as to the availability of judicial review as an option in relation to the Tribunal decision.  However, he said that he got the impression that even if he applied to the court, it would not help much.  He also stated that after some time the agent’s firm closed and he thought that this showed that the agent was not honest.  I note that there is nothing in what he said to raise any concern as to fraud on the Tribunal (cf. SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35).

21. On his evidence it also appears that the Applicant took no further steps to regularise his situation or to seek judicial review until quite recently, when taking steps to regularise or ensure the visa status of his son who was born in Australia in 2004.  His evidence in that respect was that the lawyer he saw about his son’s situation asked him about his situation and that he had provided papers to the lawyer who recommended that he make the application to the court, which he did. 

22. In the written grounds for the extension of time in the application (which were not provided as sworn evidence) it was suggested that the Applicant’s previous migration agent had misled and ill-advised him about the process and the limitation period for appealing to the court or even for any possible review application within the guidelines under ministerial intervention.  However, contrary to this written statement, the Applicant’s oral evidence (which I accept) made it clear that he was notified of the Tribunal decision and made aware of the availability of judicial review.  He did not address his awareness of any limitation period.  His explanation for the delay in seeking judicial review is, as the solicitor for the First Respondent put it, hopelessly inadequate.  He did not explain why in 12 years he took no steps to attempt to seek judicial review or any other action to regularise his position until a lawyer for his son raised the issue.  There is not a satisfactory explanation for the lengthy delay. 

23. The delay in this case was extensive.  However it is not necessary for present purposes to decide whether such an extensive delay is in itself sufficient to refuse the grant of an extension of time as the First Respondent submitted.  I have also had regard to the grounds relied on, and as discussed below, am of the view that they are not sufficiently arguable to support the application for an extension of time.  I have also had regard to all the circumstances, including the absence of any suggestion of prejudice to the Minister and the issues raised by the Applicant, in particular his concern that if his son had to return to China, presumably with him (as he says the son is an Australian citizen) the son would not be able to continue his study here or study in English. 

24. There are five grounds in the Application.  First, insofar as any of these grounds appear to seek review of the delegate’s decision, such attempt is misconceived as the court has no jurisdiction to review the decision of the delegate in the present circumstances. 

25. Grounds 1 and 2 are conveniently considered together.  Ground 1 is that the Tribunal “failed to exercise discretion and did not take into account all relevant considerations in making the determination”.  Ground 2 is that the Tribunal denied the Applicant natural justice or procedural fairness “in making the determination without thoroughly examining the full claim in particular to his claim of harm suffered as made by the applicant”.  The Applicant did not explain these grounds in submissions.

26. There is nothing in the material before the court to satisfy me that either of these grounds is such as to support the application for an extension of time, whether expressed in terms of “reasonably arguable”, “sufficiently arguable” or “reasonable prospects of success”. 

27. On the contrary.  There is nothing to support the general, unparticularised assertion that the Tribunal failed to have regard to any relevant consideration or failed to examine and consider the Applicant’s “full” claim.  The Tribunal considered, but rejected, the Applicant’s claim to have suffered past harm.  It considered the prospect of future harm.  There is no evidence of any integer of the Applicant’s claims which the Tribunal did not consider. 

28. Further, as to the issue of discretion, the Applicant notified the Tribunal that he did not wish to give oral evidence at a hearing and that he consented to the Tribunal proceeding to make a decision without taking further action to allow or enable him to appear before it. There is nothing to suggest that there was not proper notification of the hearing invitation in accordance with the provisions of the Migration Act as they stood at the relevant time. Nor is there any evidence to support any arguable claim that the manner in which the Tribunal proceeded was unreasonable or outside its jurisdiction or denied the Applicant procedural fairness or to indicate any arguable claim that the Tribunal failed to consider all the integers of the claims made by the Applicant. The Tribunal detailed those claims as made in connection with the protection visa application and addressed such claims.

29. Neither of these grounds is reasonably arguable on the material before the court.   

30. Ground 3 is that the Tribunal “failed to consider at all the risk of any significant harm that may be caused to the applicant, on his forced return to his country of origin”.  Reference is made to paragraph 7 of the Tribunal decision in which it stated its conclusions and findings.  Issue is taken with the Tribunal’s reasoning and with what is said to be the absence of “any evidence to support these findings or conclusions”. 

31. Insofar as this is a contention that the Tribunal erred by not considering the complementary protection criterion, such a complaint is misconceived. At the time of the Tribunal decision, the complementary protection provision in s.36(2)(aa) of the Act had not yet been enacted. Beyond this, the fact that in its concluding summary the Tribunal did not repeat its earlier discussion of the evidence before it (in which it gave reasons for its findings) is not indicative of even arguable jurisdictional error. Moreover, on the evidence before the court, it is not reasonably arguable that the Tribunal failed to consider the Applicant’s evidence, insofar as there was evidence before it, having regard to its identification of gaps and defects in that evidence.

32. There is nothing in the material before the court to support an arguable ground of unreasonableness or illogicality in the decision (if that was intended by this ground). 

33. I note generally that a Tribunal does not have to have rebutting evidence before finding that a particular assertion is not made out.  To the extent that the Applicant challenges the Tribunal’s findings of fact, he seeks impermissible merits review.  This ground is not reasonably arguable. 

34. Ground 4 is that there was “no evidence to support a finding pursuant to the [Tribunal’s] consideration being taken of the factors raised by the applicant in the various written submissions the applicant made with the First and Second Respondents”.  This complaint is not arguable.  The Applicant did not make any written submissions to the delegate or to the Tribunal, beyond the written statement attached to his protection visa application.  Those written claims, as described above, were set out by the Tribunal and considered.  There are no reasonable prospects of success for such ground. 

35. The final ground alleges that the Tribunal’s decision was an improper exercise of power and showed “bias” against the Applicant.  There is no basis pleaded or apparent for any complaint of an improper exercise of power, whether by reason of actual or apprehended bias on the part of the Tribunal (as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28) or otherwise. There is no arguable substance in this or any of the other grounds in the application.

1. In view of the inordinate delay, which is not satisfactorily explained, and the lack of merit in the grounds of review, notwithstanding the absence of prejudice to the Minister, the absence of a right of appeal and the issue raised by the Applicant about his son, in all the circumstances, I am not satisfied that it is in the interests of the administration of justice to grant an extension of time.  Such application should be refused.

2. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $6,000.  While the Applicant was unsuccessful on the basis that an extension of time was refused, the matter was listed for hearing of the extension of time application and, if granted, for final hearing.  I accept that this necessitated additional preparation by the First Respondent.  I am satisfied that the amount of costs sought is appropriate and reasonable having regard to the nature of this and other similar matters.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 16 March 2017