CTX15 v Minister for Immigration
[2016] FCCA 2673
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTX15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2673 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to take into account claims made by the applicant before the delegate – whether the Tribunal denied the applicant natural justice or procedural fairness by not thoroughly examining the claim made by the applicant – whether the Tribunal failed to consider the applicant’s risk of significant harm for his involvement in a forbidden religious practice – whether the Tribunal considered the factors raised by the applicant to the delegate – whether the Tribunal’s decision demonstrated bias towards the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.417, 477, 486A(2) |
| Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Prince Alfred College Incorporated v ADC [2016] HCA 37 Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 SZTES v Minister for Immigration & Border Protection [2015] FCA 719 |
| Applicant: | CTX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3480 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
The application for an order under s.477(2) of the Migration Act 1958 (Cth) be dismissed.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3480 of 2015
| CTX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on a Tourist visa on 1 March 2013. On 24 May 2013 he applied for a protection visa claiming that he would be persecuted for reason of his belief in the Local Church in China. On 20 March 2014 a delegate of the Minister made a decision not to grant the applicant a visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 24 November 2014 the Tribunal affirmed the delegate’s decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Extension of time
On 22 December 2015 the applicant applied to this Court for judicial review of the Tribunal’s decision. Such an application must be made within 35 days of the date of the decision: s.477(1) Migration Act 1958 (Cth). However, this Court has the power under s.477(2) to extend that period if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
There is no issue that the first of these conditions has been met.
In determining whether an extension of time is in the interests of the administration of justice there are a number of factors that are usually relevant. These include;
i)the length of delay;
ii)any excuse given for the delay;
iii)the merits of the substantive application; and
iv)any prejudice to the opposing party.
The Minister does not suggest that he will suffer any irremediable prejudice if an extension is granted.
The delay in this case is considerable as the applicant requires an extension of almost 12 months.
In Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [13]; [2000] HCA 67, McHugh J said, citing Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30.
In Gallo v Dawson, I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.
(Citations omitted)
This passage was cited by Gageler J when considering an extension of time under s.486A(2) of the Act in Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89; [2015] HCA 42 at [3] (“Vella”). Section 486A(2) is in relevantly identical terms to s.477(2) of the Act.
Ms Watson, who appeared for the Minister, pointed out in submissions that the applicant in Vella had conceded that the case had to be exceptional to warrant an extension of time, and that it was significant that the applicant had previously sought judicial review in respect of the same decision. While I note those differences, Gageler J did not qualify his adoption of the reasoning of McHugh J by reference to them.
In the context of a different time limitation, McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; [1996] HCA 25:
… The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
(Citation omitted)
See more recently, Prince Alfred College Incorporated v ADC [2016] HCA 37 at [99].
The reason given by the applicant for the delay is far from compelling. In his affidavit, he explained that, after the Tribunal decision the following occurred (errors in the original):
…
8.The same agent then advised me NOT to lodge any appeal to the Court as he said it was pointless. That time I did not have any money to pay for his fees.
9.Then he suggested to me to lodge another application with the Department of Immigration. I did then. And it was not successful.
10.My visa was still Okay at that time.
11.I said to him I would like to lodge an appeal to the Court. He advised me to attend to the Department of Immigration but did not bring along with any air tickets as I was advised by the Department previously about this their requirements as far as Bridging Visa extension was concerned..
12.Heeling at the advice from the Migration Agent Huang, I attended the interview with the Department hoping that my visa can be further extended pending my appeal to the Court.
13.Unfortunately, the Department decided to arrest and detent me saying I did not have air tickets to show that I had intention to leave the Country in the event that the Court Appeal failed.
14..They did not take into account of my circumstances. At that time my wife was heavily pregnant and I needed to look after her.
…
I infer from the applicant’s evidence that he knew shortly after the Tribunal decision that he was able to bring proceedings for judicial review. He claims that he did not do so because he was told it was pointless and so made some other application to the Department. When that failed, in spite of having been told an application for review was pointless, he wanted to make one but was taken into detention when he applied for a bridging visa.
Contrary to this evidence, the applicant said at the hearing before me that he did not know that he could make an application to the Court. I do not accept that. I find that the applicant was aware of the availability of judicial review shortly after the Tribunal’s decision and chose to take an alternative course. That may have been on the advice of an agent, but it was nevertheless a deliberate choice. For that reason, I consider that the course taken by the applicant stands against the exercise of the Court’s power in his favour.
In respect of the merits of the substantive application, Murphy J said the following in MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201:
In MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 (at [62]-[63]) Mortimer J said that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. This is long established. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 97, [29] French J described the test as whether the substantive application has a reasonable prospect of success, which was “to say no more than that there is a finite non-trivial probability that it will succeed” based upon a necessarily incomplete consideration of the case. His Honour then noted that “[i]t is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account”.
To similar effect, in SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [82]-[85] Wigney J referred to the need for assessment of the prospects of judicial review grounds to distinguish between grounds that are hopeless and destined to fail and those which are properly described as weak. Similarly, in SZVBN v Minister for Immigration & Border Protection [2016] FCA 898 at [46] Griffiths J held that it was enough that the applicant’s grounds were reasonably arguable and could not be summarily dismissed. I take the same view.
Consideration
Ground one
There are five grounds of review in the application. The first is:
The First Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination, in essence with the claim that the original decision as to the refusal on 24 November 2014.
It is not easy to understand this ground. First, the decision which this court has jurisdiction to review is that of the Tribunal, not the Minister or his delegate. Secondly, the decision of the Tribunal did not involve any discretion. Thirdly, the reference to “original decision” in conjunction with the date of 24 November 2014 suggests that the target of the ground is a decision made after the Tribunal’s decision (which was made on 24 November 2014).
In light of those matters, the ground is properly understood to be an attack on an application made by the applicant to the Minister for the exercise of his discretion under s.417 of the Act. As such, the ground has no prospect of success as the Minister’s power under s.417 is non-compellable (s.417(7)).
Ground two
The second ground is:
The Second Respondent denied the applicant natural justice or procedural fairness in making the determination without thoroughly examining the claim made by the applicant.
Without any particulars, it is difficult to conclude that this ground has any reasonable prospect of success. In broad terms, it is not obvious that there was any denial of natural justice or breach of any of the procedural requirements imposed upon the Tribunal by the Act. If the allegation is that the failure to thoroughly examine a claim was a denial of procedural fairness, there does not appear to be any merit in it. The applicant’s claim for asylum was based upon his claim to have converted to a particular form of Christianity and had been involved in the establishment of a secret church group. The Tribunal rejected all of the applicant’s claims for a number of reasons which, subject to one exception to which I will return, were unexceptionable. Generally speaking, the Tribunal found that the applicant was not a credible witness and rejected his evidence and claims for that reason. On account of that, the second ground has no reasonable prospect of success.
Ground three
The third ground in the application is:
The First and the Second Respondents failed to consider the risk of significant harm to the applicant, as being set out in the conclusions drawn and stated in Paragraphs 62 and 63, due to the genuine religious involvement of the Applicant in local church and the most probable consequences on their forced return to China due to their forbidden practices of their religion, which the Applicant will likely insist.
This ground is based upon the premise that the applicant’s claim to have been involved in a forbidden religious practice was accepted by the Tribunal. That premise is false and, for that reason, the ground is bound to fail.
Ground four
The fourth ground in the application is:
There was no evidence to support finding pursuant to the First Respondent’s consideration being taken of the factors raised by the applicant in the submission the applicant made with the Second Respondent.
This ground, like the first ground, is addressed to the Minister rather than to the Tribunal and for the same reasons as the first ground, has no reasonable prospects of success.
Ground five
The fifth ground is that the Tribunal’s decision was an improper exercise of power and showed bias against the applicant. Absent any identification of the basis for the assertion of improper exercise of power, I assume that the applicant is merely asserting bias and, in particular, bias in the form of prejudgment. Such an assertion is a serious one and must be clearly made out: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-345; [2000] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J). There is no evidence that could support a conclusion that the Tribunal had such a state of mind. Similarly, there is no evidence before the court which could establish that there was a reasonable apprehension of bias. In that respect, it is difficult, if not impossible, to rely solely on the reasons for decision in order to establish an apprehended bias claim: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48.
For those reasons, the grounds raised by the applicant do not have any reasonable prospects of success.
I return, then, to the proviso mentioned in [19] above. One of the reasons for which the Tribunal disbelieved the applicant’s claims was its assessment of his knowledge of the tenets of the faith to which he claimed to adhere, namely, the Local Church in China. While it is often necessary as part of the Tribunal’s obligation to review the delegate’s decision to test the religious claims of an applicant by reference to their knowledge of a particular religion, it is possible for it to fall into jurisdictional error in doing so.
The principles concerning this issue were summarised by Jacobson J in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 as follows:
[7]First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
[8]Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 272 ALR 115 (SZLSP) at [38].
[9]Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
[10]Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. The principle which appears to follow from the Full Court authorities, and from recent High Court authority referred to in [64] of the reasons of Buchanan J, is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
On my first reading of the Tribunal’s decision I was concerned that the third of these principles may have been breached. That concern arose principally from the following passage in the Tribunal’s reasons:
[52] I do not believe that the applicant displayed the knowledge of core local church doctrinal beliefs that could have been expected from someone who claims to have been baptised into the church in China in March 2011 and who, significantly, claims to have established a secret meeting group of the local church in Japan in September 2011 and who claims to have been regularly involved in local church activities since being baptised in March 2011. …
As the applicant appeared unrepresented at the hearing, I asked the Minister’s representative whether this passage might arguably fall into jurisdictional error. In answer, Ms Watson, who appeared for the Minister, drew my attention to two important aspects of the Tribunal’s reasons: first, that the Tribunal was not assessing the applicant against the standard that might be expected of any ordinary member of the Local Church but, rather, somebody who had, on his own claims, been an organiser of secret meetings and to have established a secret meeting group in Japan. Secondly, there were references given by the Tribunal in its reasons for the source of its information about the tenets of the Local Church. At [29] it referred to a publication entitled “Crucial Elements of God’s Economy” said to have been written by one of the founders of the Local Church, witness Lee. At [34] it referred to another source of information, “The politics of Protestantism in contemporary China: state control, civil society, and social movement in a single party state”, giving precise page references concerning the doctrinal views of the Local Church. Finally, at [50] it referred to yet another source of information, this time concerning the origin and development of the Local Church: “China’s Christian millions”, once again giving page references.
In light of these references, I consider that there is a strong argument that the Tribunal did not fall into jurisdictional error in the way in which it assessed the applicant’s credibility by reference to his answers to its questions about the tenets of his claimed religion.
The argument gains further strength from the fact that the Tribunal’s findings about the applicant’s credibility were not based simply upon his apparent level of knowledge about the tenets of his claimed faith, but also on other matters including the brevity of his explanation for joining the church, and the fact that his response to the Tribunal’s questions sounded rehearsed or learned.
That said, I have not undertaken a thorough review of all the authorities relevant to this issue. I am not satisfied that this ground is completely hopeless, however, for the reasons articulated by Ms Watson for the Minister, I consider that the prospects of establishing this ground are weak.
Conclusion
Even though there may be some, albeit weak, prospect of success I am not satisfied, in light of the considerable delay in bringing this application and the lack of a reasonable excuse for that delay, that it is in the interests of the administration of justice to extend the period within which the applicant may bring an application for judicial review of the Tribunal’s decision. For that reason, the application for an extension of time under s.477(2) of the Act will be refused and the application is otherwise dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 28 October 2016
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