BUC15 v Minister for Immigration
[2016] FCCA 1010
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUC15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1010 |
| Catchwords: MIGRATION – Review of Former Refugee Review Tribunal – refusal of protection visas – refusal of an extension of time for show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Cases cited: Applicant M29 of 2001& Anor v Minister for Immigration [2003] FCA 1266 Bandari & Anor v Minister for Immigration & Anor [2015] FCCA 2297 Daniel v Minister for Immigration [2004] FCA 21 MZZBM v Minister for Immigration & Anor [2013] FCCA 321 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 Perera v Minister for Immigration (1999) 92 FCR 6 Plaintiff M90/2009 v Minister for Immigration [2009] HCATrans 279 Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831 SZHVL v Minister for Immigration [2008] FCA 356 SZTES v Minister for Immigration [2015] FCA 719 WACO v Minister for Immigration (2003) 131 FCR 511 |
| First Applicant: | BUC15 |
| Second Applicant: | BUD15 |
| Third Applicant: | BUE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2434 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| The First and Second Applicants appeared in person |
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2434 of 2015
| BUC15 |
First Applicant
| BUD15 |
Second Applicant
| BUE15 |
Third 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 seeking review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 12 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, who are a husband, his wife and their daughter born in Australia.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 20 April 2016.
The applicants are citizens of the People's Republic of China (China).[1] The first applicant (applicant) arrived in Australia in 2001 on a visitor visa using a South Korean citizen's identity and passport.[2] The second applicant arrived in Australia in the same manner in 2005.[3] The third applicant was born to the first and second applicants and has not travelled outside of Australia. In 2009, the applicants were granted bridging visas on departure grounds. These visas were granted to the applicants another three times to enable them to resolve the health problems of the third applicant. The last bridging visa expired on 18 May 2009 and thereafter they became unlawful.[4]
[1] Court Book (CB) 179; Decision Record (DR) [8].
[2] CB 146.
[3] CB 146.
[4] CB 146 [3].
On 26 February 2013, the applicants applied for a protection visa.[5] On 30 May 2013, all three applicants attended a protection visa interview. On 30 August 2013, a delegate of the Minister refused the application.[6]
[5] CB 1-114.
[6] CB 178, [2].
On 20 September 2013, the applicants applied to the Tribunal for review of the delegate's decision. On 28 July 2014, the applicants were invited to attended a hearing on 1 September 2014. On 1 September 2014, the applicant attended a hearing before the Tribunal. The applicant was assisted by a Korean interpreter. The applicant was represented by his registered migration agent.[7]
[7] CB 178 [4].
At the hearing, the applicant confirmed that the second and third named applicants were his wife and first born child. They were included in the application as members of his family unit and did not have any claims of their own.[8]
[8] CB 178 [4].
On 12 September 2014, the Tribunal affirmed the delegate's decision.[9]
[9] CB 177-186.
The applicant’s claims
The applicant is a Chinese citizen of Korean ethnicity. He claims to fear harm from the Chinese secret police and government because he assisted North Korean refugees. More specifically, the applicant claims as follows:[10]
a)in December 1993, he entered military service in China. He was assigned as a border patrol soldier to guard against North Korean people who came to China illegally. Following an incident in 1994, he helped over 20 North Korean defectors with food and directions;
b)after completing military service in 1996, he worked in a textile factory;
c)in 1999, one of the North Korean defectors he allowed into China was arrested. The defector confessed his story, including the applicant's involvement in assisting him;
d)as a result, the applicant was captured and tortured by the secret police and detained for two weeks. For medical reasons and with money paid by his sister, he obtained special release on parole. He was required to report to the authorities every week and could not leave town without permission. His employment was terminated and he could not find further work due to his “criminal record”;
e)on 31 October 2001, the applicant paid money to a broker and with his sister's support he fled to Australia; and
f)the applicant fears that if he and his family return to China, harsh punishment and even death awaits them from the secret police and government.
[10] CB 178, [5].
The Tribunal's decision
The Tribunal's reasons are set out at [7] to [23] of the decision. After recounting the factual history and relevant claims of the applicant, the Tribunal found that the applicant was not a truthful witness. It did not accept that he was arrested, tortured and released under surveillance because he assisted North Korean refugees. The Tribunal came to this conclusion for seven reasons.
First, the applicant did not mention at the hearing the specific incident referred to in his written statement that was the catalyst for him assisting North Koreans at the border instead of sending them to the authorities.[11]
[11] CB 179, [11].
Secondly, the applicant gave oral evidence at the hearing that was inconsistent with his written statement as to where and for how long he was taken into custody in 1999 after being questioned about being a spy for North Korea.[12]
[12] CB 180, [12].
Thirdly, the applicant gave oral evidence at the hearing that was inconsistent with his explanation in his written statement as to how one of the Korean defectors who received his support confessed his story. The Tribunal was not persuaded by his explanation that this aspect of his written statement was a 'guess'.[13]
[13] CB 180, [13].
Fourthly, the Tribunal did not accept as plausible that if the applicant had been detained and questioned on the suspicion of being a spy for North Korea, he would have been released on special parole and then allowed to remain in his community for over a year and a half before then being able to leave China under his own name.[14]
[14] CB 180, [14].
Fifthly, the Tribunal expressed doubts about the manner in which his sister arranged for a specialised agent to help him leave China and travel to Australia.[15]
[15] CB 181, [15].
Sixthly, the applicant was able to leave China in his own name and "using [his] own passport legally".[16] The applicant explained that he was able to depart China because the agent which he bribed was working with the national security and border authorities. The Tribunal noted that it was not aware of any country information that identified corruption in the national security bureau. Accordingly, it did not accept that he would have been able to leave China under his own name if his claims were true.[17]
[16] CB 181, [16].
[17] CB 181, [16]-[17].
Seventhly, the Tribunal considered that if the applicant had genuine fears about returning to China, he would have made his visa application before 26 February 2013, given that he arrived in Australia on 31 October 2001. It did not accept the applicant's explanation that he did not know about protection visas at that time. In addition, it noted that the applicant did not mention any fears about returning to China when he and his family were granted bridging visas in 2009 to arrange departure back to China. [18] Accordingly, it found that the applicant fabricated his claims in order to bolster his protection visa application as a means of remaining in Australia.
[18] CB 182, [18]-[19].
As a result, the Tribunal was not satisfied that the applicant would face a real chance of persecution or a real risk of suffering significant harm for the purposes of the Refugees Convention or the complementary protection criterion, either now or in the reasonably foreseeable future, if he returned to China.[19] Accordingly, the Tribunal found that the applicants were not persons in respect of whom Australia owed protection obligations.
[19] CB 183, [24]-[26].
Current proceedings
The applicants commenced these proceedings on 4 September 2015, nearly 12 months after the expiry of the deadline in s.477(1) the Migration Act 1958 (Cth) (Migration Act) for seeking relief in this Court in relation to the Tribunal’s decision. Accordingly, the proposed application for judicial review of the Tribunal’s decision is incompetent unless the Court makes an order extending time under s.477(2) of the Migration Act. The Court may only make such an order if it is satisfied that it is necessary in the interests of the administration of justice to do so. In this case, the applicant seeks to explain this delay by reference to an application for Ministerial intervention. The Minister submits that an application for Ministerial intervention is not an adequate explanation for delay for the purposes of s.477(2) of the Migration Act.[20] The Minister submits that the applicant made a choice (assisted by his migration agent) to seek Ministerial intervention. As Judge Hartnett said, "an application to the Minister under s.417 of the Act, indicates an acceptance of the decision of the Tribunal and a decision to take another course".[21]
[20] Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831 at [20]; Vu v Minister for Immigration [2008] FCAFC 59 at [29]; MZZBM v Minister for Immigration & Anor [2013] FCCA 321 at [19]; Applicant A2 of 2002 v Minister for Immigration [2003] FCA 576 at [9]-[10]; M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [24].
[21] MZZBM v Minister for Immigration & Anor [2013] FCCA 321 at [19].
The applicants request an extension of time pursuant to s.477(2) of the Migration Act. In the application, the applicant states that he knew of his entitlement to appeal to this Court, but was advised by his “lawyer” to instead request Ministerial intervention. He refers to a misunderstanding between him and his “lawyer”. The application is supported by an affidavit filed with it by the first applicant. Importantly, at [19] and [20], the applicant explains the delay in coming to Court:
My agent advised me to request for Ministerial Intervention. So my agent assisted me in my Ministerial Intervention request that was made on 8 October 2014 to Ministerial Intervention of Department of Immigration and Border Protection.
Unfortunately, the Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash has decided that it would not be in the public interest to intervene my case.
Documents annexed to the affidavit establish that the applicants were notified of the refusal of Ministerial intervention by letter dated 14 August 2015. I received the affidavit as evidence subject to relevance.
I dealt with the general principles concerning the granting of an extension of time in a case not dissimilar to the present in Bandari & Anor v Minister for Immigration & Anor[22] (Bandari) at [22] to [26]:
[22] [2015] FCCA 2297.
An extension of time in which to institute proceedings in the Federal Circuit Court may only be granted if the Court is “satisfied that it is necessary in the interests of the administration of justice to make the order”.
The factors considered by Wilcox J in Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs & Environment apply in determining whether an extension of time should be granted. The factors that the Court will consider in determining whether it is in the interests of the administration of justice to extend time pursuant to s 477(2) of the Migration Act can be summarised as follows:
a)the extent of the delay and any explanation for the delay;
b)the merits of the substantive application;
c)any prejudice to the respondent;
d)the impact on the applicant; and
e)the interests of the public at large.”
The first two of these considerations are the “critical considerations.
In SZTES v Minister for Immigration, Wigney J considered the nature of the power to extend time under s.477(2) and the appropriate procedure for dealing with an application to extend time where that application is made at a final hearing on the merits. His Honour outlined the following principles to be applied:
a)section 477(2)(b) imposes an express pre-condition to the exercise of the discretion in favour of an applicant, such that the extension of time must be necessary in the interests of the administration of justice. This statutory pre-condition must be demonstrated to the satisfaction of this Court and it is therefore not relevant to whether the Minister opposes or consents to an extension application in a particular case;
b)section 477(2) does not define or confine the matters to which the Court should have regard in considering the administration of justice;
c)there are some factors that are ordinarily taken into account, but are not exhaustive. Those factors include: whether there has been a reasonable and adequate explanation for the delay; whether there is any prejudice to the Minister; and whether the substance of the applicant's case is sufficiently arguable to justify the extension of time;
d)in considering whether a case is reasonably arguable, it is generally inappropriate to investigate fully the merits of the substantive case. However, obvious strengths or weaknesses may weigh for or against an extension of time; and
e)it is doubtful that the Court is bound to take into account the absence of appellate review (in respect of a refusal to extend time pursuant to s 477) in arriving at a determination of whether to exercise the discretion in the applicant's favour under s 477(2) of the Migration Act.
Wigney J also commented that, in cases where an extension application is heard on the same day as the substantive application, “and where there are properly articulated grounds that are at least worthy of debate, the better course would ordinarily be for the Federal Circuit Court to grant an extension and then deal with the merits of the substantive application”. However, it is also well established that the proper course is to refuse an extension application where the substantive application has insufficient prospects of success.
In this case, the most significant considerations are the length of the delay, the explanation for the delay and the legal merit of the application. The delay in the present case of 12 months is significant. The only explanation proffered is the request for Ministerial intervention. The applicant confirmed from the bar table that he was advised to seek Ministerial intervention by his then migration agent, Mr Song Jun Kim. Mr Kim is a registered migration agent who was representing the applicants before the Tribunal.
In my opinion, it is clear that the applicants acted in a considered fashion on advice to seek Ministerial intervention in preference to coming to Court. The applicant was aware of the opportunity to appeal to the Court, but only exercised that opportunity once Ministerial intervention was refused. As I said in Bandari at [27], the request for Ministerial intervention is not an adequate explanation for the delay in coming to Court.[23]
[23]See also Vu v Minister for Immigration [2008] FCAFC 59 at [29] per Jessup J; see also Crennan J in Plaintiff M90/2009 v Minister for Immigration [2009] HCATrans 279 at [24]; Daniel v Minister for Immigration [2004] FCA 21; Applicant A2 v Minister for Immigration [2003] FCA 576; Applicant M29 of 2001 v Minister for Immigration [2003] FCA 1266; AZACG v Minister for Immigration [2013] FCCA 1364.
Further, in my opinion, the grounds in the application are hopeless. They are:
1.The interviewer at the Department of Immigration was very harsh to me.
2.The interpreter during the interview at Department of Immigration did not perform well. I felt that she could not interpret some of my words.
3.RRT did not give enough time for me to get further evidence from China and provide them. From the hearing date to the decision date, it was only 11 days
The first two grounds seek to impugn the decision of the Minister’s delegate. That decision is a “primary decision” as defined in the Migration Act and this Court has no jurisdiction to review it. The third ground is unsupported by any evidence of any request for time to gather further information and there are no particulars of any information that the applicants would have sought, had they had an opportunity to do so.
I invited oral submissions from the first and second applicants in Court today. Despite three opportunities to comment on various aspects of the extension of time issue, they declined to say anything.[24]
[24] After my judgement was delivered, the second applicant raised the issue that the applicants had been misled by their migration agent. She claims that the applicants believed they had appealed the Tribunal decision to this Court and only found out later that instead their migration agent had requested Ministerial intervention. In my opinion that assertion lacks credibility.
The Minister’s submissions otherwise deal with hypothetical arguments which have not been raised.
Ground One may be understood as an allegation of bias. If so, a claim of actual bias must be “distinctly made and clearly proved”.[25] There is no such clear and distinct pleading in support of any bias (actual or apprehended) and certainly no evidence to support it.
[25] Minister for Immigration v Jia Legeng [2001] 205 CLR 507; SCAA v Minister for Immigration [2002] FCA 668 at [38]; SBBS v Minister for Immigration (2002) 194 ALR 749; SZHVL v Minister for Immigration [2008] FCA 356.
Furthermore, robust and forthright testing of an applicant’s claims by the Tribunal does not sustain a finding of apprehended bias.[26] In the particular statutory context in which the Tribunal operates, the Tribunal is entitled to test and probe an applicant’s claims; it may require the Tribunal to question and express doubts, which is entirely appropriate.[27]
[26]SZOAF v Minister for Immigration [2010] FCA 431 at [17].
[27] per Allsop J in NADH v Minister for Immigration (2004) 214 ALR 264 at [269].
In short, in the absence of a proper pleading with full particularisation and admissible evidence, there is no foundation for any claim that there is any actual or apprehended bias by reason of the Tribunal being unduly 'harsh' towards the applicant. Accordingly the ground must fail.
Ground Two may be understood as an allegation of jurisdictional error on the ground of translation error.
Where the competence of the translator is impugned, the crucial question to be determined is whether the translation before the Tribunal "was so incompetent that [the applicant] was prevented from giving [his or her] evidence".[28]
[28] Perera v Minister for Immigration (1999) 92 FCR 6 at [38]; WACO v Minister for Immigration (2003) 131 FCR 511 at [64].
To succeed, the applicant must establish from the evidence "that he was effectively prevented from giving his evidence" or alternatively "that errors occurred in translation which were so material as to cause the decision making process to miscarry".[29]
[29] WALN v Minister for Immigration [2006] FCAFC 131 at [29].
The applicant has not identified any translation issues that prevented him from giving evidence. The applicant does not appear to have brought his doubts about the performance of the interpreter to the attention of the Tribunal at or after the hearing. In the absence of any evidence of this ground, the ground must fail.
I conclude that the interests of the administration of justice do not call for an extension of time in this case.
I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale in relation to an interlocutory decision. The second applicant claimed impecuniosity, but that is not a reason for the Court to refrain from making a costs order.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 May 2016
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