BMH16 v Minister for Immigration
[2016] FCCA 2979
•16 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMH16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2979 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – show cause application filed out of time – refusal of an extension of time. |
| Legislation: Federal Circuit Court Rules 2001 Migration Act 1958 (Cth), ss.36, 424A, 425, 427, 476, 477 |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v SGLB (2004) 207 ALR 12 |
| Applicant: | BMH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1533 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1533 of 2016
| BMH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 17 June 2016 seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 January 2016. The applicant identified in the application that he needs an extension of time under s.477 of the Migration Act 1958 (Cth) (the Migration Act) if his application is to be treated as competent. The background to this matter is set out in the Minister’s outline of submissions filed on 8 November 2016.
The Tribunal affirmed a decision of a delegate of the Minister (delegate) dated 12 June 2014 not to grant the applicant a Protection (Class XA) visa.
The show cause application was filed 152 days outside the 35 day time limit prescribed by s.477(1) of the Migration Act. Accordingly, the application is incompetent unless an extension of time is granted pursuant to s.477(2) of the Migration Act.
The applicant is a male citizen of China who first arrived in Australia on 29 October 2012 as the holder of a student visa.[1] His student visa was cancelled on 11 December 2013[2] and he applied for a protection visa on 19 February 2014.[3] He appointed a migration agent as his authorised recipient.[4]
[1] Court Book (CB) 62
[2] CB 47-56
[3] CB 1-25
[4] CB 28-30
In a two page typed statement accompanying his protection visa application, the applicant claimed he was a member of an underground Christian church in China and had been detained and harassed by police in July 2011 following a raid on their gathering. He claimed he was detained for 15 days, tortured and forced to sign a guarantee not to gather privately again. After his arrival in Australia he sent Christian materials in Chinese to his parents, which they distributed. The police discovered the applicant had sent these materials and issued a summons for him to report within one month.[5]
[5] CB 26-27
The delegate
The applicant attended an interview with the delegate on 6 June 2014.[6] On 12 June 2014, the delegate made a decision to refuse to grant the applicant a Protection visa.[7] The delegate rejected the applicant’s claims to fear harm in China on the basis of adverse credibility findings[8] and found he was not someone to whom Australia owed protection obligations.[9]
[6] CB 66-70.2
[7] CB 62-76
[8] CB 73.1-73.4
[9] CB 73.5, 76
The Tribunal’s decision
On 18 July 2014, the applicant applied to the Tribunal for review of the delegate’s decision,[10] and appointed the same agent as his representative before the Tribunal.[11]
[10] CB 77-82
[11] CB 79
The applicant attended a hearing before the Tribunal on 17 November 2015[12] and provided a copy of his passport.[13]
[12] CB 90-92
[13] CB 93-96
By a letter dated 27 November 2015, the applicant was invited to comment on or respond to information in writing pursuant to s.424A of the Migration Act.[14] Specifically, the applicant was invited to comment on information provided by him at the interview with the delegate on 6 June 2014, which gave rise to inconsistencies with the evidence he gave at the Tribunal hearing. He was also invited to comment on information indicating that he received email notification of the decision to cancel his Student visa on 11 December 2013. The applicant responded to the s.424A invitation on 22 December 2015.[15]
[14] CB 97-100
[15] CB 101-102
On 18 January 2016, the Tribunal affirmed the decision not to grant the applicant a protection (class XA) visa.[16] The Tribunal had significant concerns about the truth of central aspects of the applicant’s claims and evidence, as well as with his general credibility as a truthful witness.
[16] CB 106-121
The Tribunal found that the applicant had not given credible evidence and was motivated to apply for protection because his student visa had been cancelled. It found he had fabricated his claims in order to obtain a permanent migration outcome.[17]
[17] CB 118 [79]
The Tribunal identified “significant discrepancies and omissions” in the applicant’s evidence relating to his membership and attendance at an underground church group and his activities in Australia.[18] For example, the applicant could not state how old he was when he started attending the church gatherings and could not describe the gatherings despite claiming to have attended since he was a young child.[19] The applicant only gave a “very vague and generalised account” of his claimed detention and mistreatment, despite his written statement indicating this was a significant and traumatic event.[20] It found he had shown an apparent lack of engagement or interest in the claim at the hearing and his claim was not supported by country information.[21] The Tribunal did not accept that the applicant had attended underground Christian gatherings in China with his parents or that he had been detained as a result of his attendance.[22]
[18] CB 115 [60]
[19] CB 115 [62]
[20] CB 115-116 [63], [65]
[21] CB 116 [66]
[22] CB 115 [62], [64]; CB 116 [66]
Despite claiming to have left China because he did not want to give up “seeking the truth” through Christianity, the applicant told the Tribunal that he had not attended any Christian churches in Australia.[23] The Tribunal rejected his claim made at the delegate’s interview to have had contact with the Xin Song church given he did not mention it at the Tribunal hearing and found that his lack of action since arriving in Australia supported its finding that he was not a Christian.[24] The Tribunal also rejected his claim to have obtained materials from Xin Song church (or any other church) as he could not remember the nature of the materials or why his parents wanted them. He gave inconsistent evidence about whether or not his parents were beaten when the materials were discovered by the authorities.[25] As the Tribunal did not accept that the applicant had sent materials to his parents, it did not accept that a summons had been issued for him to appear before police in China. It also found his evidence about the whereabouts of the summons inconsistent and implausible.[26]
[23] CB 116 [68]-[69]
[24] CB 117 [71]-[72]
[25] CB 117 [74]-[75]
[26] CB 117 [76]
In addition, the Tribunal found the Chinese authorities had no interest in the applicant at the time he left China as he had no difficulty obtaining his passport. It rejected his claim that he had to bribe officials to obtain the passport in light of inconsistencies in his evidence about when and where he applied for it.[27]
[27] CB 117-118 [77]-[78]
The Tribunal also relied on the applicant’s delay in lodging a Protection visa application after arriving in Australia (14 months) and shortly after his Student visa was cancelled to find that he had fabricated his claims in order to obtain a permanent migration outcome.[28] Having rejected all of the applicant’s claims, the Tribunal concluded that he did not meet the criteria in either s.36(2)(a) or s.36(2)(aa).
[28] CB 118 [79]
Present Proceedings
I received as evidence the applicant’s affidavit filed with his application which, regrettably, provides no evidence bearing upon the extension of time issue. The applicant was given an opportunity in orders made by a registrar on 4 August 2016 to file and serve any amended application or additional evidence by 13 October 2016, but he has not taken up those opportunities.
I also have before me as evidence the court book dated 4 August 2016. The applicant objected to my receipt of that evidence on the basis that the documents are in English. As I explained to him, however, most of the documents in the court book would already be familiar to him. The documents are relevant to the issues arising in relation to the extension of time.
I invited oral submissions from the applicant, first on the question of the extension of time. I informed the applicant that I wanted to explore with him why his show cause application was late and any other issues bearing on the question of whether the interests of the administration of justice called for an extension of time. I asked the applicant to explain to me why it took so long for him to come to court. The applicant told me that he had been invited to attend the Tribunal hearing and had attended. The court book discloses at pages 88 and 89 that the applicant was invited through his migration agent to attend a Tribunal hearing on 17 November 2015. The court book further discloses at pages 90 and 91 that the applicant and his agent attended. The applicant told me that at the hearing he was told that he could expect a Tribunal decision in about two months.
Again, that is consistent with what appears in the court book, given that the Tribunal decision was made approximately two months after the Tribunal hearing. The applicant told me that he had been living in Griffith up until the time of the Tribunal decision, but he subsequently moved to Sydney. That is corroborated by the address shown in his application for review to the Tribunal, in particular at court book page 78. The applicant’s current show cause application discloses an address in Sydney.
The applicant told me that he had asked his migration agent, Ms Jie Yu, to lodge a notification of change of address, but he believes that that was not done. The applicant told me that he contacted Ms Yu in April 2016 to find out the outcome of his Tribunal review as he had not heard anything. He said that Ms Yu told him that she would find out what had happened. However, the following day Ms Yu contacted the applicant and told him that she had already told him the outcome of the review.
The applicant is not able to say whether Ms Yu did or did not make any attempt to inform him of the Tribunal decision at the time it was sent to her in January 2016. The applicant told me that he asked Ms Yu if his case could be continued and she advised that he would need to pay approximately $1000. The applicant declined that invitation and, instead, contacted a person he describes as a friend who agreed to assist the applicant for $600. Between May and June this year, the applicant and his friend prepared the present show cause application.
I have no reason to disbelieve what the applicant told me from the bar table, but, in my opinion, even if everything the applicant told me is true, it does not satisfactorily explain the applicant’s delay in coming to court. First, the Tribunal corresponded with the applicant’s registered migration agent, as it was required to do. Ms Yu told the applicant in April, after apparently checking her records, that she had notified him of the Tribunal outcome previously. The applicant has no way of verifying whether that is true or not.
If there was some failure on the part of Ms Yu to notify the applicant promptly, that might be a cause for the applicant to complain to the Migration Agent’s Registration Authority. But tardiness on the part of an applicant’s agent is not a persuasive reason for the grant of an extension of time. If, on the other hand, Ms Yu attempted promptly to inform the applicant of the Tribunal decision, but was unsuccessful in doing so, she would not have been at fault and the justification for an extension of time would be even weaker.
Curiously, in his show cause application in ground 4, the applicant asserts that his delay in coming to court was because of health problems. When I queried that with the applicant, he did not wish to say anything further. In my view, the applicant has not satisfactorily explained his delay in coming to court and, in the absence of some other compelling circumstance, the interests of the administration of justice do not call for the grant of an extension of time.
The Minister concedes that he would not be prejudiced by the grant of an extension of time, other than in relation to costs, but the Minister asserts that there is unquestionably a significant public interest in the finality of an administrative decision. Reference is made to the decision of this Court in SZVZY v Minister for Immigration & Anor (No. 2) [2015] FCCA 2622 at [20] and other authority. I accept that submission. Further, even if there had been a satisfactory explanation for the applicant’s delay, I accept the Minister’s submissions that there is no merit in the grounds advanced in the application.
Leaving aside the final ground, which only bears upon the extension of time request, there are three grounds:
1. The Tribunal did not accord the Applicant procedural fairness in that it did not give the Applicant a sufficient opportunity to give evidence, or make submissions, about what turned out to be the determinative issues arising in relation to the review.
Particulars
a) The Tribunal failed to put to the Applicant the following issues, which were crucial to its decision:
i. That is did not believe that the Applicant’s membership and attendance at an underground chu7rch group in China;
ii. That it did not believe that the Applicant attended underground Christian gatherings in China together with his parents;
iii. That is did not believe that the Applicant was detained as the result of attendance at an underground church gathering at 10am on 3 July 2011;
iv. That it did not believe that the applicant suffered mistreatment and beatings in his detention as a very young man;
v. That it did not believe that the Applicant’s relation to his activities in Australia including the contact with Christian organisations in Australia and sending materials to his parents in China.
2. The Tribunal acted unreasonably by failing to make enquiries or seek readily available information regarding an issue that was of critical importance to the review.
Particulars
a) The Applicant informed the authorities would come and search the home and look for some books so this claim was “included”. That assertion is correct and the Applicant did give the Tribunal that evidence;
b) The Tribunal considered the statement that Applicant’s father was detained for two months because the authorities discovered he had imported Bibles form Hong Kong was contracted to the Applicant’s oral evidence;
c) Had the Tribunal made further enquiries and given the Applicant an opportunity to explain the above issue, it would have been in a position to be satisfied that the Applicant provided all evidence with honesty.
3. The Applicant could not understand the proceedings. Appropriate arrangements should have been made to consider the fact that he had mental problem. The Tribunal member did not act correctly in considering whether an adjournment for a medical examination was warranted. Tribunal member decided not to take that step based on his observations was a jurisdictional error. In short, the Applicant proved that he suffered from serious threatens and pressure that he could not understand the proceedings or present his case properly.
(errors in original)
The Tribunal’s decision turned on credibility concerns based upon its analysis of the applicant’s inconsistent and implausible evidence. The Tribunal rejected the applicant’s claims of being involved with the underground church in China. The applicant was given the opportunity at the Tribunal hearing to address the applicant’s concerns and was given a further opportunity in writing following the Tribunal hearing, purportedly pursuant to s.424A of the Migration Act.
The Tribunal’s findings of fact regarding the applicant’s claims and evidence were open on the materials before the Tribunal and for the reasons that it gave. They establish a cogent basis to support the Tribunal’s adverse credit findings. The Tribunal’s findings about the credibility of the applicant’s claims and its reliance upon the independent information were findings of fact exclusively for the Tribunal to make and the Court cannot review the merits of the Tribunal’s decision.[29]
[29] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
There was nothing unfair about the Tribunal’s process. I otherwise agree with the Minister’s submissions in relation to the grounds of review.
Ground one
Proposed ground one contends that the Tribunal did not accord the applicant procedural fairness as it did not give him a “sufficient” opportunity to give evidence or make submissions on the determinative issues on the review. The particulars to this ground refer to five of the applicant’s claims that were not believed by the Tribunal.
This ground has no proper basis as the applicant was plainly on notice that the credibility of his claims was an issue on the review because the delegate rejected his claims on the basis of strong adverse credibility findings. The applicant was validly invited to and attended a hearing before the Tribunal. Although there is no transcript of the Tribunal hearing in evidence, the Tribunal’s reasons indicate that it discussed with the applicant at the hearing the concerns that it had with his claims and evidence.[30] By adopting this approach, the applicant was expressly given the opportunity to give evidence and present arguments on the dispositive issues on the review namely, his credibility and the credibility of his claims. Accordingly, no breach of s.425 is apparent.[31]
[30] see for example CB 111 [36], [37]; CB 112-113 [48]-[51]
[31] SZBEL v Minister for Immigration (2006) 228 CLR 153 at [47]
The Minister’s submissions also deal adequately with proposed grounds two and three.
Ground two
Proposed ground two contends that the Tribunal acted unreasonably by failing to make enquiries or seek “readily available information” regarding an issue of critical importance to the review. The particulars to this ground refer to the applicant’s claims that the authorities searched his parents’ home for books and his father was detained because he had imported bibles. The applicant asserts that if the Tribunal had made further enquiries and provided the applicant with an “opportunity to explain”, the Tribunal would have been satisfied that he had provided honest evidence. The applicant does not identify what enquiries the Tribunal should have made, other than giving him a chance to explain.
This ground cannot succeed for multiple reasons. First, it was for the applicant to make out his case before the Tribunal. If the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims were genuine it does not have any duty to make further inquiries or obtain information beyond what is provided to it by the applicant.[32] It was open to the Tribunal to make the factual findings that it did about these claims. Secondly, it is well established that sections in the Migration Act that enable the Tribunal to obtain information and require investigations[33] are permissive, not mandatory. The fact that the Tribunal did not use such enabling provisions does not indicate any error of law on its part.[34] Nor is the Tribunal under any legal obligation to consider whether it should utilise its permissive statutory powers enabling it to investigate.[35] Thirdly, whilst in limited circumstances the material before the court might establish that the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained,[36] this is not the present case. Finally, the Tribunal decision records that these claims were discussed with the applicant at the Tribunal hearing and the applicant given an opportunity to address the Tribunal’s concerns.[37]
[32] Minister for Immigration v SZIAI & Anor (2009) 259 ALR 429;Minister for Immigration v SGLB (2004) 207 ALR 12 at [17], [19], [43] and [124]
[33] See for example s.424 and s.427(1)(d))
[34] VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]–[28]
[35] WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [25]; W389/01A v Minister for Immigration (2002) 125 FCR 407 at [74]-[78] (see especially [78])
[36] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]; SZOER v Minister for Immigration [2010] FCA 1100 at [32], [39]-[54]
[37] CB 113, par 53
Ground three
Proposed ground three asserts that the applicant had a “mental problem” and the Tribunal did not consider whether an adjournment for a medical examination was warranted.
There is no evidence that the applicant ever claimed to have had a “mental problem” or that he sought an adjournment of the Tribunal hearing on this basis. There was no medical evidence before the Tribunal and none is currently in evidence before the Court to indicate that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.[38] Accordingly, this ground does not have any prospect of success.
[38] Minister for Immigration v SZNVW (2010) 183 FCR 575; Minister for Immigration v SZNCR [2011] FCA 369 at [30]-[33]; SZOVP v Minister for Immigration (No. 2) [2011] FMCA 442
Conclusions
I conclude that the interests of the administration of justice do not call for the grant of an extension of time to the applicant pursuant to s.477(2) of the Migration Act. The consequence is that the application is incompetent.
I will order that pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The Minister sought costs fixed in the sum of $5,200. This was on the basis that the matter had been listed for a final hearing if an extension of time had been granted. However, no additional preparation was required of the Minister, than had already been undertaken for the purposes of the extension of time application. The applicant claimed impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 November 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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