DFH19 v Minister for Immigration
[2020] FCCA 2146
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFH19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2146 |
| Catchwords: MIGRATION – Application for summary dismissal – judicial review – protection visa – extension of time – application lodged 17 years out of time – no adequate reason for delay – application without merit – application for summary dismissal granted – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) Migration Amendment (Complementary Protection) Act 2011 |
| Cases cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Huynh v Minister for Home Affairs [2018] FCA 665 |
| Applicant: | DFH19 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2740 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| The Applicant appeared In Person. |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The First Respondent’s Application in a Case filed on 2 April 2020 be granted.
The Applicant’s application for an extension of time be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2740 of 2019
| DFH19 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant brought an application seeking judicial review of a decision of the Refugee Review Tribunal, as it then was (‘the Tribunal’) filed on 22 August 2019. The first respondent, by Application in a Case filed on 2 April 2020, applied to summarily dismiss the application on the basis that the applicant’s case has no reasonable prospect of success.
At the hearing before me the applicant was heard through an interpreter to ensure that she was able to have an effective hearing.
The applicant is a citizen of China who arrived in Australia on 18 November 2000 holding a tourist visa. Some time around late November or early December 2000 (it varies in the records filed) the applicant applied for a protection visa. The application for the protection visa was refused by a delegate of the Minister in February 2001, following which the applicant applied for review by the Tribunal. In March 2002 (some 18 years ago) the Tribunal affirmed the decision of the delegate.
Extension of Time
The application for judicial review is over 17 years out of time. The applicant sets out the grounds for her extension of time as follows:
(1) I did not know the Federal Circuit Court can review the RRT’s decision until recently.
(2) I have been in fear of returning to China.
(3) Failure to disclose just became reviewable.
The applicant filed a supporting Affidavit on 23 August 2019, however that document contains no evidence other than annexing a copy of the Tribunal’s decision in this matter. In this case the time limit has expired for a very long time. There is no evidence before me as to the reasons for the delay and the dot points given in the application provide no adequate explanation for such a lengthy delay.
I note the submissions of the Minister relying upon the comments of McHugh J, in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. I also note that the longer the delay, the more persuasive the explanation must be, even in migration matters: see, for example, Huynh v Minister for Home Affairs [2018] FCA 665 at paragraph [18], and Tran v Minister for Immigration and Border Protection [2014] FCA 533 at paragraph [38]. Nonetheless, in cases involving protection applications the Minister rarely suffers any prejudice. None is alleged here. Most importantly, the significance of the matter for the applicant is a particularly weighty factor. As a result, it seems to me that it is appropriate to consider whether or not the applicant has an arguable case and place significant weight upon that factor in determining whether or not to grant an extension of time.
The Applicant’s Claims
The applicant’s claim for protection is detailed in pages 4 to 6 of the Tribunal’s decision. Primarily the applicant claims that her religion is that of Falun Gong and that she was persecuted by the local government as a result of that. The applicant repeated that claim a number of times in the hearing before me. She says that if she were to return to China she would be beaten to death in prison by police, as she alleges some other Falun Gong practitioners had been: see page 5 of the decision.
The applicant claims she began to practice Falun Gong in 1998 after seeing a colleague exercise it and she would share books and information on it with friends. The applicant said she continued to practice Falun Gong after it was banned and in February 2000 attended a local protest and demonstration. She said that police attended her work and she was sent to the police station for questioning. The applicant said a cousin assisted her to leave the police station and she went into hiding. The applicant said that around twenty people that practised Falun Gong were detained and that her husband assisted her in obtaining a passport and visa and she then left China. She believes that she is on a wanted list in China and would be imprisoned if she were to return. She produced a document dated 2 February 2000 that appeared to be a circular of people on a wanted list.
The applicant was invited to and attended before the Tribunal to give evidence and make submissions.
The Tribunal questioned the applicant about her involvement with Falun Gong and the extent of her practice of Falun Gong whilst in China: see pages 10 to 11 of the decision. The Tribunal found inconsistencies in the applicant’s claims with respect to her practices and formed the view that she did not understand the concept of the teachings and could not accurately name the book of teachings. The Tribunal found that her claims about her involvement and history were thin and hesitant: see page 12 of the decision. Ultimately, the Tribunal did not accept that the applicant was a Falun Gong practitioner, nor that she participated in any demonstration, nor that she was wanted by the police.
The Tribunal also found that the applicant’s claims about her departure from China lacked credibility: see pages 12 to 13 of the decision. Ultimately the Tribunal concluded that the applicant did not face a well-founded fear of persecution and therefore did not meet the criteria for a protection visa.
Grounds of judicial review
The applicant sets out five grounds for judicial review in the following terms:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to consider the criterion in s36(2(aa).
3. The Tribunal failed to provide an opportunity for the applicant’s claims to be heard.
4. The Tribunal made a finding without supporting evidence.
5. The Tribunal failed to disclose whether there is any existing document issued under the Act without telling the applicant.
Grounds One and Three
Ground 1 and 3 address substantially the same issue, namely, whether or not the applicant was given a proper opportunity to be heard. The applicant made no submissions before me as to any details relating to the hearing, other than to generally complain that she had not received a fair decision. The decision of the Tribunal indicates she was given an opportunity to appear before the Tribunal member and make submissions and give evidence. The Tribunal’s decision states (at page 4):
The Tribunal has before it the Department’s file, which includes the protection visa application and a written statement in support of the application. The Tribunal also has before it materials in support of the application for review. The applicant gave oral evidence to the Tribunal on Friday, 22 March 2002.
There is nothing in the material to indicate that these grounds show an arguable basis for judicial review.
Ground Two
Ground 2 alleges that the Tribunal failed to consider the criteria in s.36(2)(aa) of the Migration Act 1958 (Cth).
The difficulty with this complaint is that the relevant section was not inserted into the legislation until the Migration Amendment (Complementary Protection) Act 2011 (No. 121 of 2011), which only commenced in operation on 24 March 2012, applying to applications not finally determined as at that date. Thus, the provision that the applicant relies upon was not enacted at the time and certainly does not apply to her case.
This ground has no basis upon which it could succeed.
Ground Four
The applicant was unable to point to a finding that she specifically referred to other than her complaints that the Tribunal had not accepted that she was a Falun Gong practitioner. As the solicitor for the Minister pointed out (at [28] of their written submissions):
28. With regard to each of these findings the Tribunal set out the evidence it had considered from pages 4 to 12 of the decision. The Tribunal provided reasons for each finding, with references to the evidence that supported these reasons, on pages 12 and 13 of the decision. The Tribunal did not accept that the applicant was a Falun Gong practitioner because (12):
28.1. At the hearing, the applicant was reluctant to demonstrate a Falun Gong exercise and could not provide a reason as to why.
28.2. The applicant evidence indicated that she did not understand the concept of the Falun and in the heading could not accurately name the main book of teachings.
28.3. The photos of group Falun Gong practice were weak evidence as they could easily have been contrived.
28.4. The applicant’s claims about the nature and history of her involvement with her practice group indicated a lack of familiarity with the operation of Falun Gong practice groups.
Aside from rejecting the applicant’s claims, it does not appear that the Tribunal made findings of fact which would require supporting evidence. I am not persuaded that the applicant has an arguable case in this regard.
Ground Five
At the hearing before me the applicant was unable to explain what she meant by this ground. It is unclear on the face of it what document the applicant refers to in the context of this case. There is nothing that the applicant raised that would indicate that this ground has some arguable basis for success.
Conclusion
In this matter I am not satisfied that the applicant has shown that she has an arguable case for judicial review. Nor am I satisfied that she has provided any adequate explanation for an extremely lengthy delay. The delay in this case is extremely long, being for a period of over 17 years. I do note, however, that there is little prejudice to the Minister if an extension of time were granted.
Having regard to all of the circumstances, I am not persuaded that it is appropriate to grant an extension of time and indeed, even if I were to do so the case would be futile. I am of the view that the applicant has no arguable case, either for an extension, or with respect to the underlying judicial review application. I therefore dismiss the applicant’s application for an extension of time.
Costs
As the first respondent has been entirely successful, the first respondent is entitled to their costs. They seek the scale fee of $3,737.00. I am satisfied it is an appropriate amount given the work involved in this particular case and the material that has been filed. I therefore order that the applicant pay the Minister’s costs fixed at $3,737.00.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 4 August 2020
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