BPV16 v Minister for Immigration and Border Protection

Case [2018] FCA 1303

FEDERAL COURT OF AUSTRALIA

BPV16 v Minister for Immigration and Border Protection [2018] FCA 1303

Appeal from: Application for extension of time: BPV16 v Minister for Immigration and Border Protection [2018] FCCA 344
File number: WAD 68 of 2018
Judge: STEWARD J
Date of judgment: 24 August 2018
Catchwords: MIGRATION – application for extension of time to file notice of appeal from decision of Federal Circuit Court – where applicant claimed to be a follower of Yiguan Dao –where Administrative Appeals Tribunal made adverse credibility findings – whether proposed notice of appeal raises any grounds of review that have sufficient prospects of success to justify extension of time    
Legislation:

Federal Court Rules 2011 (Cth) r 36.03

Migration Act 1958 (Cth) s 36

Cases cited:

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Singh v Minister for Immigration and Border Protection [2017] FCA 150

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286

Date of hearing: 24 August 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicant: The Applicant did not appear
Counsel for the First Respondent: Ms E Tattersall
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

WAD 68 of 2018
BETWEEN:

BPV16

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

24 AUGUST 2018

THE COURT ORDERS THAT:

1.The application be dismissed with 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

STEWARD J:

Introduction

  1. This is an application for an extension of time within which to file a notice of appeal from a decision of his Honour Judge Wilson, Q.C. of the Federal Circuit Court of Australia. Rule 36.03 of the Federal Court Rules 2011 (Cth) requires that a notice of appeal be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. Judgment here was pronounced on 5 February 2018. The applicant was one day late and, accordingly, has made an application to this…

Details
AGLC
BPV16 v Minister for Immigration and Border Protection [2018] FCA 1303
Case
[2018] FCA 1303
Decision Date

CaseChat Overview and Summary

The applicant, a young man from China, sought an extension of time to appeal a decision of the Federal Circuit Court which had dismissed his application for a protection visa. The decision had been made by a delegate of the Minister for Immigration and Border Protection, and subsequently reviewed by the Administrative Appeals Tribunal. The Tribunal found the applicant not to be a credible witness. The applicant sought an extension of time to file a notice of appeal from the Federal Circuit Court decision. The only issue before the Court was whether the proposed notice of appeal raised any grounds of review that had sufficient prospects of success to justify an extension of time.

The Court found that the proposed grounds of review had no reasonable prospect of success. It noted that the Tribunal had considered the applicant’s claims and had rejected them on the basis that the applicant was not a credible witness. The Court held that the Tribunal’s findings on credibility were not open to challenge on review, and that there were no other grounds of review that had any prospect of success. The Court found that the application for an extension of time should be dismissed.

The Court dismissed the application for an extension of time with costs as agreed or assessed.

Orders

Orders of the court

1. The application be dismissed with costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an application for an extension of time within which to file a notice of appeal from a decision of his Honour Judge Wilson, Q.C. of the Federal Circuit Court of Australia. Rule 36.03 of the Federal Court Rules 2011 (Cth) requires that a notice of appeal be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. Judgment here was pronounced on 5 February 2018. The applicant was one day late and, accordingly, has made an application to this Court for leave to file a notice of appeal out of time. Background The applicant is a young man from the People’s Republic of China. He arrived in Australia in 2006 on a student visa. He was granted a further visa which expired on 15 March 2008. The applicant did not then return to China, but stayed in Australia illegally. He was intercepted on 8 April 2015 during a roadside stop and was thereafter detained. On 6 May 2015, the applicant only then applied for a protection visa pursuant to s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). A delegate of the Minister for Immigration and Border Protection (the “Minister”) refused to grant this visa on 23 October 2015. The basis for the applicant’s claim was that, whilst in Australia, he had become a follower of Yiguan Dao and that, if he were to be returned to China, he would be harmed by the authorities and unable to maintain his following. The Minister, however, did not consider the applicant to be a credible witness. This decision was the subject of an application for review to the Administrative Appeals Tribunal (the “Tribunal”) where the applicant represented himself. He explained the basis of his fear to return to China in the following terms (set out in the Tribunal’s reasons at [27]): … the applicant told the Tribunal that his religious beliefs are strictly persecuted by the government in China. He told the Tribunal that the friend who had introduced him to Yiguan Dao, Xu [Chang], had returned to China several years ago. In 2010, Xu Chang told the applicant by telephone that he regretted returning to China because Yiguan Dao followers were reported to authorities and detained, and he urged the applicant not to return. The applicant also said he has read news about the Chinese government’s persecution of Yiguan Dao. He told the Tribunal that the government of China will not allow anyone belonging to Yiguan Dao to be present in China. The applicant said he has not spoken with Xu Chang for about 2 years. The Tribunal considered that evidence of the applicant. It also reviewed the applicable country information concerning the current attitude of the Chinese government to the practice of Yiguan Dao, which remained illegal in that country. For example, at [50], it examined certain information from the Canadian Immigration Review Board and said:The Canadian Immigration Review Board in 2009 reported on the treatment of Yiguan Dao practitioners in China in these terms. In 30 November 2009 correspondence, an associate professor of sociology at the Center on Religion and Chinese Society at Purdue University stated that he is not aware of reports of ill-treatment of members of Yiguan Dao in China (30 Nov. 2009). The Professor of Chinese Studies offered the following general information:Yiguan Dao like other technically illegal religious groups operate at best in an administrative grey area. Depending on local conditions, they may have to exist in total secrecy or they could openly run publicly accessible and visible premises. A lot depends on the political climate and attitudes prevailing among local, regional, and provincial authorities. There are areas of China, for example, where (again technically illegal) Protestant house churches operate openly without much interference from local authorities, while in other regions house church leaders may end up in labour camps. Yiguan Dao groups, generally speaking, are given less political leeway than Christian groups, though recently there have been signs that official attitudes toward Yiguan Dao are shifting towards a greater tolerance. (Footnotes omitted.)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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