BRM15 v Minister for Immigration and Border Protection
[2016] FCA 605
•26 May 2016
FEDERAL COURT OF AUSTRALIA
BRM15 v Minister for Immigration and Border Protection [2016] FCA 605
File number: NSD 1744 of 2015 Judge: MOSHINSKY J Date of judgment: 26 May 2016 Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Act 1958 (Cth), s 36(2)(a)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Date of hearing: 26 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: J Pinder, MinterEllison Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
NSD 1744 of 2015 BETWEEN: BRM15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
26 MAY 2016
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal filed 30 December 2015 be dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
On 28 February 2014, the applicant, who is a citizen of the People’s Republic of China, applied for a Protection (Class XA) visa. In the documents supporting his application he claimed that his wife had been forced to have an abortion in China, and that he feared being forced to undergo surgical sterilisation.
On 19 June 2014, a delegate of the first respondent (the Minister) refused the applicant’s application for a protection visa.
On 23 July 2014, the applicant applied for review of the delegate’s decision.
On 11 June 2015, a hearing before the Administrative Appeals Tribunal (the Tribunal) took place. The applicant attended this hearing. At this hearing, the applicant raised an additional claim, namely that his father had taken out a loan of about 1 million RMB at a high rate of interest from creditors that had connections with underworld (or criminal) figures. The applicant claimed that his father had borrowed the money because he was a gambler, but he had been unable to repay the loan and the creditors asked the applicant to repay it. The applicant claimed that his countryside house was damaged as a result, and he dared not return there, and he had been threatened in telephone calls on a number of occasions.
On 24 July 2015, the Tribunal decided to affirm the decision not to grant the applicant a protection visa. The Tribunal did not accept the credibility of the applicant’s claims and found that they were fabrications, for the following reasons:
(a)First, the Tribunal identified a number of inconsistencies between the applicant’s written statement and the oral evidence he gave at the Tribunal hearing (at [18]-[19]).
(b)Secondly, the applicant gave evidence at the hearing that he began the process of applying for an Australian visa in June or July 2013 (his passport was issued in October 2013), but he had also given evidence that he did not know that his wife was pregnant with their second child until September 2013 (at [21]). The Tribunal found that this evidence indicated that the applicant “was preparing to leave China for Australia before he had any idea that his wife was pregnant once more”, and also before the alleged abortion and before he was informed that he was required to have a vasectomy (at [21]).
(c)Thirdly, the first time the applicant raised his claim about fearing harm from criminals as a result of his father’s unpaid gambling debt was at the Tribunal hearing (at [22]). The Tribunal found that the raising of this claim at the hearing “gave every appearance of improvisation and development in response to further questions” (at [22]). The Tribunal was “not satisfied that the claim is at all credible” and found that the applicant’s preparedness to advance it “casts strong doubt over the credibility of his claims in general” (at [22]).
Ultimately, the Tribunal was not satisfied that the applicant was a witness of truth and it did not accept that his claims to fear harm in China were credible. As the applicant did not claim to fear harm in China for any other reason, and no other reason was apparent on the face of the information before the Tribunal, the Tribunal found that the applicant did not engage Australia’s protection obligations under either the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) or the complementary protection criterion in s 36(2)(aa) (at [23]-[26]).
On 18 August 2015, the applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. Before the Federal Circuit Court, the applicant’s ground of review was as follows:
We had a daughter, but in rural areas of China, that a family must have a son to maintain the family name and be breadwinner when the parents grow old. To the joy of our family, my wife was pregnant and decided to hide to escape the family planning. Unfortunately, she was founded by the family planning officials and forced for abortion on 10 Nov. 2013. I was very sad at this but the officials wouldn’t excuse me from the requirement that I would undergo sterilization. Our family decided that we must not let the officials have their way. I heard, by chance, that the Australian government protects human rights and came to Australia to seek protection.
But the Tribunal failed to consider my claims and the current situation in China. So the Tribunal said: “...I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk that he would suffer significant harm in term of s. 35(209aa) of the Act.” {No.24 of Green Book}
The Tribunal member failed to fully consider my claims and currently situation in China and refused my application, making jurisdictional error.
(Errors in original.)
At the request of the Minister, the matter was listed for a ‘show cause’ hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). That hearing took place on 9 December 2015. At the conclusion of the hearing, the judge gave ex tempore reasons for judgment. The primary judge was not satisfied that the applicant’s application dated 18 August 2015 raised an arguable case for the relief claimed, and therefore dismissed the application with costs.
As the decision of the Federal Circuit Court was interlocutory, the applicant needs leave to appeal to this Court. The time limit to file an application for leave to appeal is 14 days. The applicant did not file an application within that time.
On 30 December 2015, that is, seven days after the deadline for filing an application for leave to appeal, the applicant filed an application for an extension of time and leave to appeal. An affidavit of the applicant in support of the application was also filed, as was a draft notice of appeal.
The two issues to be determined are whether an extension of time should be granted and, if so, whether leave to appeal should be granted.
Applicable principles
The principles applicable to each of these issues are well established. In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.
Application of principles to the facts of this case
In his affidavit in support of the applications, the applicant states that after the hearing on 9 December 2015, he began to seek a person who could help him prepare his documents to take the matter to the Federal Court of Australia, but it was not easy to find a person to help him. Finally, he found a man who was willing to help him with the application document. Unfortunately, however, the papers were completed after the deadline.
The Minister submits that this does not constitute an adequate explanation for the delay. The Minister also opposes the application for an extension of time (and the application for leave to appeal, if an extension of time were granted) on the basis that the proposed appeal has no merit. It is convenient to consider this issue first.
The applicant relies on three grounds of appeal in his draft notice of appeal. They are as follows:
1.It’s a tradition in rural areas of China that a family must have a son to maintain the family name and be a breadwinner when the parents grow old. Our parents, I and wife all did want to have a son. We decided if it was a boy, my wife would go into hiding until she gave birth. To the joy of our family the ultrasound revealed the child to be a boy. In order to escape the family planning officers, my wife went into hiding at the home of out aunt in the mountains. On 10 Nov. 2013, my wife was found at our aunt’s house and forcibly took to a hospital where, when her pregnancy was detected, she was forced to undergo an abortion. The family planning officers would force me to undergo a sterilisation. Our family couldn’t accept the cruel sterilisation. I heard by chance that Australian government protects human rights, so I came to Australia to seek protection.
2.Unfortunately, the Tribunal member had bias against us and failed to take our experience into account according to S91R of the Migration Act 1958, making jurisdictional error.
3. The Federal Circuit Court didn’t accept my appeal.
(Errors in original.)
In relation to the first ground, the difficulty with this ground is that it is simply a recitation of the applicant’s protection claims. In effect, it seeks to engage this Court in impermissible ‘merits review’ of the Tribunal’s decision. It does not disclose appealable error in the primary judge’s decision or jurisdictional error in the Tribunal’s decision.
A substantially similar ground was dealt with by the primary judge in paragraphs [12]-[24] of the reasons below. There does not appear to be any error in the approach taken by the primary judge in those paragraphs.
In oral submissions today, the applicant, who appeared for himself with the assistance of an interpreter, emphasised the difficulty of providing documentary evidence to substantiate claims such as the ones he makes. This may be so. But the Tribunal’s reasons do not suggest that it fell into error in this regard. I note that the Tribunal stated in paragraph [17] as follows:
In the present case I note that the Applicant’s claims about his experiences in China are unsubstantiated from any external source and, both in the written statement and in his oral evidence at the Tribunal, are notably brief, vague and lacking in circumstantial detail. …
This paragraph does not suggest that the Tribunal took an erroneous approach. The Tribunal merely noted that the applicant’s claims were unsubstantiated from any external source and then went on to consider (at [18]-[22]) whether the applicant’s oral evidence was credible.
In relation to the second ground, no allegation of bias was raised in the Federal Circuit Court. When asked about this allegation today, the applicant was unable to advance any substantive arguments in support of this aspect of ground two.
The second part of ground two contains a contention that the Tribunal failed to take his experience into account. This is similar to part of the ground in the Federal Circuit Court. The Tribunal’s reasons indicate that the Tribunal did consider the applicant’s experience as detailed in his evidence before the Tribunal. When asked today if there were any submissions he wished to make in support of this aspect of ground two, the applicant referred again to the difficulty of providing documentary evidence, which I have dealt with above.
The third ground does not raise any additional point.
For these reasons, the proposed appeal lacks merit, and the applications for an extension of time and for leave to appeal should be dismissed on this basis. It is therefore unnecessary to consider whether the applicant’s explanation for the delay is an acceptable explanation.
Accordingly, the applications for an extension of time and for leave to appeal will be dismissed. There is no reason why costs should not follow the event. Therefore, there will also be an order that the applicant pay the Minister’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 26 May 2016
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