CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 907
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 907
File number(s): SYG 1552 of 2021 Judgment of: JUDGE LAING Date of judgment: 11 October 2023 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review of a decision by the Administrative Appeals Tribunal – relevant factors – whether aspects of the Tribunal’s reasons were reasonably or logically open to the Tribunal – whether the applicant was given a meaningful hearing before the Tribunal – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 476A, 477
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
DWK17 v Minister for Home Affairs [2019] FCA 66
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 4, 27 July 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1552 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTB21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People's Republic of China (China). He arrived in Australia in 2016 on a visitor visa. On 3 May 2016, he applied for a protection visa.
On 13 February 2017, the Delegate refused the application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 10 March 2017. He attended a hearing before the Tribunal on 3 May 2021.
On 7 May 2021, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal identified a number of concerns regarding the credibility of the applicant’s evidence at [24]-[34] of its decision. The Tribunal’s concerns included the following:
(a)The Tribunal found that the applicant had given inconsistent evidence regarding the events that he claimed had led to the police in China wanting to arrest him. Despite claiming at the Department interview and the Tribunal hearing that the cause of the difficulties that he faced originated from the demolition of his family home, the applicant had not referred to this in the statement attached to his protection visa application (at [26]).
(b)The applicant was also found to have given inconsistent evidence regarding the timeline of events claimed to have led to him leaving China. At the Tribunal hearing, the applicant indicated that all the difficulties that he had faced occurred on one day in March 2015 when his home was demolished, he protested, he was beaten and escaped arrest. This contrasted with the timeline given in his written statement as well as at the Department interview (at [27]).
(c)The Tribunal considered that further inconsistent evidence had been given as to the event or events claimed to have led to the police wanting to arrest the applicant. At the Tribunal hearing, the applicant claimed that the police wanted to arrest him due to his protesting the demolition of his family home on the same day it was demolished. In contrast, in his statement the applicant claimed that the reason the police wanted to arrest him was due to a letter of complaint he had written, which did not appear to relate to his home being demolished (at [28]).
(d)The Tribunal considered that the applicant had also given inconsistent evidence as to whether he went into hiding in Wuhan prior to his departure from China in 2015 (at [29]).
(e)The Tribunal found that the applicant had given further inconsistent evidence regarding whether his family had been paid any compensation for the demolition of their home (at [30]).
(f)The Tribunal considered that a video the applicant had submitted showing houses being demolished did not necessarily indicate that the applicant’s home was demolished or that he had faced the associated difficulties that he had claimed. Accordingly, the Tribunal declined to place weight upon this video (at [33]).
(g)The Tribunal considered that the applicant’s behaviour in returning to China from overseas in 2016, in circumstances where his visa indicated that he could have remained longer, undermined his claims to have faced the difficulties that he claimed to have faced, as well as his claims to fear harm from officials and the police (at [34]).
Having regard to the above, the Tribunal concluded that the applicant was not a credible or truthful witness and that he had fabricated his claims and evidence in order to achieve an immigration outcome. The Tribunal therefore did not accept that any of the applicant’s claimed issues on account of property disputes had occurred, including any of the harm that he claimed he and his family had experienced. The Tribunal rejected the applicant’s claims to fear harm “in their entirety” (at [35]-[44]).
The Tribunal concluded that the applicant did not face a real chance or risk of relevant harm in China and found that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [45]-[53]).
EXTENSION OF TIME APPLICATION
The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa).
The Court is required “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (per Jagot and Halley JJ); see also Katoa at [12] (per Kiefel CJ, Gageler, Keane and Gleeson JJ).
Whilst the matters to which regard may be had are not expressly confined by the Act, matters that may be relevant include the following:
(a)the extent of the delay and the explanation for it;
(b)any prejudice;
(c)the impact on the applicant if time is not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (per Gordon, Edelman, and Steward JJ).
Delay and explanation
Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. As the Tribunal’s decision was dated 7 May 2021, the application needed to be filed no later than 11 June 2021 in order to be filed within time. The application to this Court was filed on 9 August 2021, nearly 2 months later. This is not insubstantial. However, it is also not as extensive as that which has attended a number of applications to this Court.
The explanation given by the applicant in his application form and in a subsequently filed affidavit is that he could not afford the application fee and had not known that he could apply for exemption or the legal procedure. Whilst I am not unsympathetic to the difficulties that may affect unrepresented litigants in navigating the system, such lack of knowledge is not usually regarded as a sufficient explanation for delay: see for example DWK17 v Minister for Home Affairs [2019] FCA 66 at [11]-[12].
Regardless, the delay and explanation are not such that they would have persuaded me in this case to have declined the extension of time if I had considered the substantive application meritorious, in the sense of providing a reasonably arguable basis upon which the applicant could succeed. I consider the merits of the substantive application below.
Prejudice, the public interest and impact upon the applicant
I do not place significant weight upon the issue of prejudice in this case in the absence of any specific prejudice being identified by the Minister.
There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]-[17].
As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.
Merits of proposed grounds
The applicant commenced the current proceedings through an application lodged on the evening of 6 August 2021, which was taken to have been filed on 9 August 2021. The applicant relied upon an amended application filed on 19 October 2021 containing the following grounds:
1. Tribunal made wrong findings.
Tribunal said I did not refer to demolition of the houses in my statement. It was wrong.
2. Tribunal did not properly consider my evidence.
3.Tribunal considered some trivial matters and depended on it to doubt my credibility.
4.My mandarin is not very well. I could not fully understand words of the interpreter at some time.
It is not fair to me.
Thus, jurisdictional error exist.
This matter was listed for hearing on 4 July 2023. At the hearing, a concern arose regarding the applicant’s ability to understand the interpreter. The applicant submitted that he was not able to understand everything that was being interpreted. Although the applicant had requested a Mandarin interpreter in his application, at the hearing he explained that he required an interpreter in a particular dialect (Fuqing). The hearing was accordingly adjourned to 27 July 2023, so that an interpreter in the dialect requested by the applicant could be arranged.
Grounds 1 and 2
Ground 1 contended that the Tribunal wrongly considered that the applicant had not referred to the demolition of houses in his statement. At hearing, the applicant submitted that he had, in fact, referred to the demolition. He explained that ground 2 was directed to his complaint that this evidence was not properly considered.
I accept that the applicant did refer to the demolition of houses in his statement provided to the Department, where he expressed:
… New leader came to power. The houses could not be built or renovated. All shelves should be removed, no matter what was on the half way of the decoration or not. Fuqing Government required people could only buy the houses built by developers.…
Hundreds of workers dressed in auxiliary police uniforms and carrying shields, tear gas and other anti-riot gear were sent to the village in an effort to intimidate residents und force them to drop their resistance to the demolition of the houses under construction…
We had sought better compensation for giving up our construction projects. The Government had blocked construction work since October, we were there without violence between the two sides. The riot exploded as the Government pushed to force demolition on the projects…
On [a date in late 2015], the police came to my home to search and said I slandered officials. I was not at home, my family secretly told me to hide…
The applicant’s statement was set out at [14] of the Tribunal’s decision. At [15], the Tribunal summarised the applicant’s evidence before the Department at interview as follows:
15.At the Department interview held on 12 January 2017 the applicant reiterated his claim to fear harm from the local police as he will be arrested by them on return and imprisoned for life. He said he fears he will be arrested by the police and beaten to death. He added that his home, owned by his parents, was demolished [in] 2015 by property developers and they were given no compensation. He said he will be arrested by the police as he tried to stop the demolition of his property. He said he was almost arrested on [a date in late 2015] when the police came for him but he escaped. He said this was the first time he thought of leaving China.
At [26], the Tribunal reasoned:
26.In contrast, despite claiming at the Department interview and Tribunal hearing that the cause of and central to the difficulties he faced was the demolition of his family home, he did not refer to this in his statement attached to his protection visa application. Rather, he only indicated in his statement attached to his protection visa application, outlined above, that when the new leader came to power, houses could not be built or renovated and people could only buy the houses built by developers. He said to achieve this goal, the Government blocked drainage channels, causing vegetable fields to be inundated for days after heavy rains and destroying thousands of dollars worth of produce. He claimed he called on villagers to protect their interests and reject these unfair policies, and as a result violence took place in the village where he lived, exploding into large-scale violence [in] 2015. While he referred to workers dressed in auxiliary police uniform as being sent [in] 2015 to intimidate the residents to drop their resistance to the demolition of houses under construction, he never referred to his own house being demolished in his statement or as the reason that led to his protesting. The Tribunal views the inconsistency as significant and is of the view that if true he would be consistent as to the cause of the difficulties that led to the police wanting to arrest him. His inconsistent evidence adds to the finding he is not a credible witness.
Having regard to the above, I accept the Minister’s submission that the Tribunal considered and engaged with the applicant’s evidence, including the references to demolition in his statement. Although the applicant had referred more generally to the demolition of houses under construction in his village in his statement, he did not state that his own house had been demolished or that this had been the reason that led to his protesting.
I therefore accept the Minister’s submission that it was open to the Tribunal to have reasoned in the manner that it did at [26] and that grounds 1 and 2 are unable to demonstrate any arguable basis for finding jurisdictional error.
Ground 3
Ground 3 contended that the Tribunal relied upon “trivial matters” to doubt his credibility. In this regard, the applicant submitted at hearing that he did not understand why the Tribunal did not trust him and why they did not believe him.
I accept the Minister’s submission that the Tribunal’s assessment of the applicant’s credibility was not based upon “trivial matters”, but rather upon a detailed consideration of the difficulties it had identified with his evidence. This included a number of inconsistencies that it had identified therein. The Tribunal’s reasoning in this regard, at [22]-[44] of its decision, is summarised in some detail above. The Tribunal was concerned that the applicant had provided inconsistent evidence regarding the events that he claimed had led to the police in China wanting to arrest him, as well as regarding the timeline of events. The applicant was also found to have given inconsistent evidence as to whether he went into hiding in Wuhan and whether his family were paid compensation for the demolition of their home. Additionally, the Tribunal was concerned by the applicant’s previous willingness to return to China despite the risk that he claimed to have faced there.
I do not accept that any of the matters relied upon by the Tribunal can be characterised as so “trivial” that they were incapable of logically informing the Tribunal’s credibility assessment. I am unable to perceive any arguable basis for finding that it was closed to the Tribunal to have relied upon these matters in reaching its conclusions on the applicant’s credibility. Nor has any such basis been identified by the applicant.
Ground 4
Ground 4 contended that the applicant’s Mandarin was insufficient for him to understand the interpreter at times during the Tribunal hearing.
Interpreter issues can, in some circumstances, result in jurisdictional error: see for example Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [17]-[50] per Kenny J. This may occur, inter alia, when an applicant’s inability to understand an interpreter is such that they are denied a real and meaningful hearing.
However, as I explained at the hearing of this matter before the Court, a difficulty with this ground is that the applicant has not identified what he was unable to understand at his hearing before the Tribunal nor how this was said to have impacted upon the Tribunal’s review. Paragraph 9 of the Tribunal’s decision indicates that some early communication issues at the Tribunal hearing were identified and addressed by the Tribunal:
9.At the beginning of the hearing the applicant indicated that due to his limited schooling, he did not understand when the Tribunal asked whether he understood the interpreter. He then clarified that he had difficulty understanding the Tribunal's explanation as to the protection criteria. The Tribunal repeated its explanation and he then said he understood. He then confirmed on a number of occasions that he understood the interpreter and did so at the end of the hearing. The Tribunal is satisfied from the applicant's evidence and the manner of his responses that were responsive, coherent and consistent to the questions asked that he understood the interpreter. It is satisfied that the applicant was able to effectively give evidence using the interpreter.
At the hearing before the Court, the applicant acknowledged that this was consistent with his recollection of the hearing before the Tribunal. However, the applicant sought an opportunity to review the audio of the Tribunal hearing with a view to identifying issues with the standard of interpretation and/or his understanding of it. This was in circumstances where the applicant observed that the hearing had occurred “a long time ago”. Orders were consequently made requiring the audio of the Tribunal to be provided to the applicant and permitting further evidence and submissions to be filed in this regard, as well as allowing liberty to apply (which was explained). No further material was ultimately filed by the applicant.
In the above circumstances, I cannot be satisfied that an arguable case has been demonstrated to the effect that interpretation issues or some other lack of understanding on the part of the applicant resulted in jurisdictional error.
CONCLUSION
Taking into account the above considerations, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended in this matter. I am therefore obliged to dismiss the application before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 11 October 2023
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