SZOBF v Minister for Immigration - [2010] FMCA 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 138

MIGRATION – Whether applicant should be granted extension of time pursuant to s.477 of the Migration Act 1958 (Cth) to file a proceeding seeking constitutional writ relief – whether delay is satisfactorily explained – whether applicant has any, or any reasonable, prospects of establishing jurisdictional error in the Refugee Review Tribunal’s decision.

Migration Act 1958 (Cth), ss.417; 476A(2); 477; 477(1); 477(2); 477(3)

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) 219 ALR 27
SZGUW v Minister for Immigration and Citizenship [2009] FCA 321
Appellant S395 of 2002 v Minister of Immigration and Multicultural Affairs (2003) 216 CLR 473
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230

Applicant:

SZOBF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2974 of 2009

Judgment of:

Emmett FM

Hearing date:

23 February 2010

Date of Last Submission:

23 February 2010

Delivered at:

Sydney

Delivered on:

4 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Ms M. Guo, Fragomen

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2974 of 2009

SZOBF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) to file an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 10 December 2008.
Section 477, relevantly, is as follows:
“(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates 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 Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
"date of the migration decision" means:
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1);”
I accept the submissions of counsel for the Applicant in relation to the relevant time limits as follows:
“The Applicant accepts that he requires an extension of time pursuant to section 477 of the Act. The decision of the Tribunal was made on 10 December 2008. By virtue of the transitional provisions of the Migration Legislation Amendment Act (No. 1) 2009 (Cth), which introduced the current section 477, the date of the decision for the purposes of calculating the expiry of the time limit is 15 March 2009. Therefore the 35 day period expired on 19 April 2009. The Applicant lodged the present application on 4 December 2009 and, therefore requires an extension of time pursuant to section 477(2) for the period between 19 April 2009 and 4 December 2009 (approximately 7 and a half months).”
On 10 December 2009, this matter came before me on an urgent basis to prevent the removal of the Applicant from Australia.
The Applicant was represented by Mr Reynolds, of counsel. As it turned out, there was no current notice under s.198 of the Act for the Applicant’s removal. In the circumstances, directions were made by me on that occasion for the filing of a further amended application by 8 January 2010 in support of the application for an extension of time and a final hearing, if an extension of time was granted. Both the interlocutory application and the final hearing were set down for 23 February 2010. Further directions were made on 10 December 2009 providing for the filing of any further evidence in support of both the application for an extension of time or any further amended application.
At the commencement of the hearing on 23 February 2010, counsel for the Applicant, Mr Reynolds, confirmed that the Applicant relied on a further amended application, filed on 8 January 2010, in support of both the application for an extension of time and final relief. As the First Respondent continued to oppose an extension of time being granted to the Applicant, it was agreed that the Court would first hear and determine the application for an extension of time made pursuant to s.477(2) of the Act.
In support of his application for an extension of time, the Applicant read an affidavit affirmed by him on 8 January 2010 and filed on that date. In that affidavit, the Applicant purported to explain his delay in seeking constitutional writ relief in respect of the Tribunal’s decision in this Court and what he had done since he had received notification of the Tribunal’s decision.
Relevantly, the Applicant stated that shortly after his arrival in Australia, on 3 May 2008, he engaged Mr Zhang of Zhang Shijing Lawyers to assist him in the preparation and lodgement of an application for a protection visa, which was lodged on 26 May 2008. The Applicant stated that, on 23 August 2008, a Delegate of the First Respondent refused him a protection visa.
The Applicant stated that, on 14 September 2008, with the assistance of Mr Zhang, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. The Applicant stated that, he had attended a hearing before the Tribunal at which time he gave evidence with the assistance of a Mandarin interpreter.
The Applicant stated that, on or about 22 December 2008, he received a letter form the Tribunal which he took to a shop owner in Hurstville whom he stated told him that his application had been rejected by the Tribunal. The letter informed the Applicant of his appeal rights and the strict limits. However, the Applicant did not suggest that he ever asked anything further about the contents of the letter beyond what he says the shop owner told him.
The Applicant stated that, in about January 2009, he went to see Mr Zhang regarding the letter form the Tribunal. The Applicant proposed that the conversation was as follows:
“I said:“I received this letter from the Tribunal, can you explain it?”
He said:“You failed at the Tribunal. You no longer have permission to work and will lose your Medicare card.”
I said:        “What can I do now?”
He said:“I can help you to apply to the Tribunal again but you will have to pay me $2,500.”
I said:        “I don’t have that kind of money.”
He said:    “Then I can’t help you.””
The Applicant stated that Mr Zhang did not provide any explanation as to the reason for the Tribunal’s decision or any suggestion as to how to proceed. The Applicant stated that due to his “poor financial situation” he was unable to afford the fees requested by Mr Zhang and because he was unable to work he continued to live with his friend rent free.
The Applicant stated that, in about April 2009, he borrowed $2,500 from a friend in order to support himself with general expenses including food and clothing.
The Applicant stated that, in about June 2009, Mr Singh from the Department of Immigration and Citizenship (“the Department”) came to see the Applicant at his address in Hurstville. The Applicant stated he was not at home at the time of the visit. The Applicant stated that, on 26 June 2009, he went to see Mr Zhang again to see if there was anything he could do to assist the Applicant. The Applicant stated he had the following conversation with Mr Zhang:
“I said:     “Is there anything you can do for me?”
He said:    “You can not do anything because it is hopeless.”
I said:       “Why is it hopeless?”
He said:“You can apply to the Tribunal again after losing the first time, but there is little chance, hopeless.”
I said:“So it’s like in China, if you apply to the same department after losing once you can’t win again?”
He said:“Yes, that’s right. You will have to pay me another $2,500 if you want to apply to the Tribunal again.”
I said:“I can’t afford that kind of money. You think it is hopeless?”
He said:“I can do it for you if you pay me, but yes it’s hopeless.””
The Applicant stated that, on 26 June 2009, he attended the Sydney office of the Department and had a conversation with Mr Singh whom he stated informed him that he would be granted a bridging visa and that he must return to the office in 2 weeks time. The Applicant stated that Mr Singh also told him that he did not have permission to work.
The Applicant stated that, on 26 June 2009, his friend lent him $2,000 “so I can deal with my immigration issues”. However, the Applicant did not seek further advice from Mr Zhang.
The Applicant stated that, in early July 2009, he was introduced to another migration agent, Ms Wang who offered to send a letter seeking Ministerial intervention pursuant to s.417 of the Act on behalf of the Applicant for a fee of $500. The Applicant stated that, on about 6 July 2009, he met Ms Wang at Parramatta railway station and signed the pre-prepared letter which Ms Wang arranged to be sent to the Minister.
The Applicant stated that, on about 10 July 2009, he returned to the Sydney office of the Department. He said that he had a further conversation with Mr Singh in which he provided a new address in Hurstville and informed Mr Singh that he had written to the Minister on 6 July 2009 requesting Ministerial intervention. He also stated that Mr Singh told him that he had a bridging visa allowing him to remain in Australia until 24 July 2009. The Applicant stated that he asked Mr Singh if he would be able to work and Mr Singh answered that he could not.
The Applicant stated that, on about 24 July 2009, he again attended the Sydney office of the Department and met with Mr Singh who asked him to hand over his passport and told him that his bridging visa was valid until 23 October 2009. The Applicant stated that he asked Mr Singh again if he could work and Mr Singh confirmed that he could not.
Thereafter, the Applicant resumed work in order to support himself. On 8 October 2009, he was found working at a construction site near Newcastle and placed in immigration detention at Villawood.
The Applicant stated that, on about 20 October 2009, another migration agent, whose name he could not recall, assisted him to apply to the Department for his release from Villawood on the basis that he would shortly depart Australia.
The Applicant stated that, on about 22 October 2009, he received a response from the Minister rejecting his s.417 request.
The Applicant stated that, on 15 November 2009, he met with Frances Milne and told her that he needed to try and stay in Australia because he could not return to China. The Applicant stated that she responded she could arrange for someone to help him write a letter to the Minister again seeking the Minister’s intervention, pursuant to s.417 of the Act. The Applicant stated that, at Ms Milne’s request, he then signed an authority in favour of Mr Luke Pistol.
The Applicant stated that, on 19 November 2009, he was informed that the Minister had declined his second s.417 letter.
The Applicant stated that, on about 22 November 2009, he met with Mr Pistol who said he would assist him to write to the Minister again.
The Applicant stated that, on 28 November 2009, he met with Mr Pistol for a second time and had the following conversation with the assistance of a Mandarin interpreter:
“He said: “How did you find out about the Tribunal decision?”
I said:       “My migration agent told me.”
He said:    “What else did he tell you at the time?”
I said:“He said that I will lose my permission to work and my Medicare card. If I wanted to apply to the Tribunal again I will have to pay him $2,500.”
He said:“Did he tell you that you would have to leave Australia?”
I said:       “No”
He said:“Did your agent advise you that you had to return to China if you lost in the Tribunal?”
I said:       “No. He never mentioned these to me.”
He said:“After the Tribunal hearing, did you plan to stay in Australia?”
I said:“Yes, I would be arrested or detained if I return to China.”
He said:“Did your agent advise you that you had to return to china if you lost in the Tribunal?”
I said:       “No.”
He said:“So just to confirm before now you did not know that after being rejected by the Tribunal you could appeal to another Court.”
I said:       “No.””
The Applicant stated that it was not until this conversation on 28 November 2009 with Mr Pistol that he became aware that he could seek judicial review of the Tribunal’s decision in the Federal Magistrates Court.
Thereafter, the Applicant stated that, on 30 November 2009, he gave instructions by telephone to Mr Farid Varess, Mr Pistol and Ms May Guo to assist him with an application to the Federal Magistrates Court. The Applicant said that Mr Varess told him that he was out of time to file in the Federal Magistrates Court, however, if the Applicant could show that it was in the interest of justice to extend time the Court may make such an order.
The Applicant stated that, on 4 December 2009, he commenced the present proceeding.
The Applicant was cross-examined on his evidence by counsel for the First Respondent, Mr Reilly. The Applicant agreed in cross-examination that he would travel from Hurstville to the city to meet with Mr Zhang despite the fact that he was aware that there were many Chinese specialist migration agent solicitors in Hurstville. He confirmed that he communicated with Mr Zhang only in Mandarin.
The Applicant also confirmed that, at his request, he had the assistance of a Mandarin interpreter at the interview with the Delegate and before the Tribunal.
The Applicant was asked what he did between December 2008 and April 2009 and the Applicant responded that he did not work and lived with a friend who provided him with money for living expenses. The Applicant agreed that there were a lot of Chinese people in Hurstville. It was put to him that, if wanted to, he could have talked about the Tribunal with lots of Chinese speaking people. The Applicant responded that he could not because he did not meet many people from his province. The Applicant stated that he just lived at home all day until he went to speak to his solicitor.
The Applicant agreed that he knew that from January 2009 his solicitor needed money if he was to help him. It was put to the Applicant why he could not go and see anyone else and the Applicant responded he did not know anyone else. The Applicant said also that he did not have any spare documents to give a new solicitor. When he was asked why he could not ask for his documents back from Mr Zhang, he first responded that he did not know the law and then confirmed that he did not ask for them. It was also put to the Applicant that he could have asked the Department for documents, to which the Applicant responded that he “did not have the knowledge.”
The Applicant agreed that he did nothing further until July 2009, following the visit from Mr Singh, the officer from the Department, to make enquiries as to what he could do to assist himself.
The Applicant stated that he saw another migration agent, Ms Wang, in order to assist him to obtain a work permit so that he could work. It was put to the Applicant that he could have discussed other options with her about the Tribunal and the Applicant confirmed that he did not do so. The Applicant also confirmed that he had never asked anyone when he was living in Hurstville about what he could do about the Tribunal’s decision.
It was put to the Applicant that he was quite happy to do nothing until the Department contacted him in June 2009. The Applicant again responded that he “did not have the knowledge”. The Applicant also agreed that the reason he started these proceedings was because he was told by the immigration officers, when in detention, that he would be sent back to China.
What is clear from the Applicant’s evidence is that, until he was sought out by an immigration officer in June 2009 at his home in Hurstville, he took no further steps to assist himself in making inquiries or otherwise, other than his inquiry to Mr Zhang in January 2009, in relation to the Tribunal’s letter. When he did finally meet with another migration agent in July 2009, Ms Wang, he appeared only to be concerned with how he could obtain a work permit. He does not say he made any attempt to make any enquiries of Ms Wang or anyone else as to whether or not there was anything he could do about the Tribunal decision. I conclude that, in the circumstances, the Applicant never asked any person to read to him the Tribunal’s notification letter, dated 10 December 2008, which informed him that his protection visa application had been refused and gave him further information about his appeal rights and the strict time limits involved.
The Applicant was able to engage Mr Zhang shortly after arriving in Australia and visit his offices in Sydney. He was also able to borrow money from friends, yet, appears to have made no attempt to inquire of other lawyers or migration agents what it may cost for their advice. He was also able to borrow money “for immigration purposes” in June 2009, around the time of Mr Singh’s visit. He eventually saw two different professionals and, on both occasions, instructed only that letters be sent seeking the Minister’s intervention pursuant to s.417 of the Act.
I accept that the Applicant may not have been aware of his entitlement to have sought judicial review of the Tribunal’s decision record in this Court until he was detained. However, he made no real effort or attempt to assist himself in finding out what he may do about the Tribunal decision until he was detained.
The length of delay is not insubstantial. The Applicant on his own evidence knew on 22 December 2008 that his application to the Tribunal had been rejected. He must have known by that decision that he had not been granted a protection visa. I accept that he saw Mr Zhang in January 2009. However, as stated above, thereafter, until the approach from Mr Singh, the Applicant appeared to take no other step to make enquiries about his situation or to assist himself in any way in relation to the Tribunal’s decision or to inform himself as to the full contents of the Tribunal’s letter.
Counsel for the Applicant submitted that, because the advice he received from Mr Zhang in January 2009 was incorrect in that, according to the Applicant, Mr Zhang said he could apply again to the Tribunal, it could not be suggested that the delay was the fault of the Applicant. I am not persuaded by that submission. The substance of the advice that the Applicant received from Mr Zhang, according to the Applicant, was that Mr Zhang would need $2,500 to assist him further. The Applicant himself states that Mr Zhang did not provide any explanation as to the reason for the Tribunal’s decision or any suggestions on how to proceed. Relevantly, as stated above, the Applicant did not himself make any inquiry of Mr Zhang as to the reason for the Tribunal’s decision or any other suggestion how to proceed. It was plainly the amount of money that Mr Zhang wanted that was the impediment to the Applicant in not pursuing his advice. It was certainly open to the Applicant to seek advice elsewhere or at least to see if it was possible to obtain advice that he could afford. On his own evidence, the Applicant was able to borrow $2,500 in April 2009 from friends for food and clothing and was living rent free.

The Applicant does not appear to have made any effort to engage in what he agreed was a heavily Chinese populated area where he lived or make any other enquiries of any other person, professional or otherwise, about the Tribunal decision or his rights. Even when he met with Mr Pistol, it was Mr Pistol who raised the possibility of judicial review to this Court of the Tribunal’s decision unsolicited from any inquiry by the Applicant.
The length of delay from 22 December 2008 until 10 December 2009 is a significant period of time. The Applicant’s explanation for the delay, in all the circumstances, I find to be wholly unsatisfactory for the reasons referred to above.
However, in considering the Applicant’s application for an extension of time, I also have regard to other factors, including the merits of the Applicant’s grounds as reflected in the further amended application, the prejudice to each party and the public interest in ensuring that administrative decisions are dealt with expeditiously.
In having regard to the prejudice and the public interest, I also have regard to the fact that the Applicant has had an opportunity to pursue a legal right in seeking judicial review of the Tribunal’s decision record which, for all practical purposes, he has foregone. I also accept that the First Respondent has a legitimate interest in the timely disposal of applications for protection visas as does the public (SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [29]-[30]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, per Gyles J at 86). I also have regard to the fact that s.476A(3) states that the Federal Court does not have jurisdiction to hear an appeal from this decision.
Further, the Applicant was represented before this Court and has had all his grounds argued in full. Counsel for the Applicant confirmed that there was nothing further the Applicant would put in support to any of the grounds of the further amended application if an extension of time was granted. Otherwise, I accept that the prejudice to the Applicant would be significant, if he had been denied an opportunity to have the grounds of his further amended application considered by this Court. However, the merits of the Applicant’s grounds have been considered below in determining whether it is in the interests of justice that an extension of time be granted.
I also have regard to the fact that it has been accepted that an applicant’s conduct in making a s.417 application is indicative of a decision to abandon a course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law (M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 (“M211”) at [24]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198, per Goldberg J at 202). I also accept that the delay and the making of a s.417 application reinforces the propriety of a proceeding having been brought to an end (M211at [36]).
I now turn to consider the merits of the grounds of the further amended application upon which the Applicant seeks to rely. The grounds are as follows:
“1.The Tribunal committed jurisdictional error by failing to ask itself the right question and/or consider a claim expressly made or raised squarely by the material before the Tribunal.
Particulars
a.The Applicant claimed he had participated in protests in China as a consequence of the confiscation of his property by the Chinese authorities, and the Tribunal accepted that he had participated in low level protests (Tribunal Decision at paragraph 48). The Tribunal was accordingly obliged to consider the implications of its own findings and, therefore, ask itself how Chinese authorities treated persons who participated in low level public protests per se, and address whether this gave rise to a well founded fear of persecution on the part of the Applicant in the reasonably foreseeable future. It failed to do so, thereby committing jurisdictional error.
2.The Tribunal committed jurisdictional error by failing to ask itself the right question.
Particulars
The question for the Tribunal was whether the Applicant had a well founded fear of persecution for a Convention reason in the reasonably foreseeable future, whereas, the Tribunal did not ask itself the following:
a how the Applicant would behave in the reasonably foreseeable future were he to return to China (particularly whether the Applicant would engage in further protests or other activities in respect of the confiscation of his property);
b in the event that the Applicant would not engage in such behaviour, whether this was a consequence of a well founded fear of persecution and whether this in itself amounted to persecution for a Convention reason;
c. whether the Applicant held a well founded fear of persecution in the reasonably foreseeable future, as opposed to the past and at the time of departure from China.
By failing to address these questions, the Tribunal failed to ask itself the right question, thereby committing jurisdictional error.
3.The Tribunal committed jurisdictional error by failing to consider a claim expressly made or raised squarely by the material before it.
Particulars
The Tribunal did not ask itself whether the confiscation of the Applicant’s property together with his inability to seek redress without persecution because of the involvement of the Chinese authorities in the confiscation gave rise to a well founded fear of persecution by those authorities for a Convention reason.
4.The Tribunal committed jurisdictional error by filing to consider a relevant consideration and / or consider a claim made or squarely raised by the material before it.
Particulars
a. The Tribunal found that the Applicant would not have been issued with a passport in August 2007 if he was of such prominence that he was regarded by the Chinese authorities as the mastermind in organising anti-government protests (Tribunal Decision paragraph 50). In reaching its finding, the Tribunal was obliged to consider the Applicant’s explanations as to how he was able to do so, which included the payment of money to the local authorities. It did not do so, thereby failing to consider a relevant consideration or a claim.
b. The Tribunal found that the Applicant was not of interest to the Chinese authorities because he was able to leave China (Tribunal Decision at paragraph 51). In reaching its finding, it was obliged to consider the Applicant’s explanation as to how he was able to do so – namely that he was not wanted for arrest by authorities outside the Putuo District (Tribunal Decision at paragraph 42). It did not do so, thereby failing to consider a relevant consideration or a claim.
5.The Tribunal committed jurisdictional error by breaching section 425 of the Act.
Particulars
The standard of interpretation at the Tribunal hearing was inadequate to the extent that amounted to a breach of section 425 of the Act.”
The Applicant’s claims and the decision of the Tribunal are accurately summarised by counsel for the Applicant in his written submissions as follows:
“APPLICANT’S CLAIMS
11) The claims made by the Applicant to the Department are as follows (CB31-33):
a) he was born in Daopeng Village, Taohua Town, Putuo District, Zhejiang Province in China;
b) his family lived in a home which they built and they had a piece of land of approximately 950m². They made a living from growing crops on the land, although the Applicant needed to supplement his income through casual labour when it was not the season to work on the farm;
c) in August 2005, the Taohua village government confiscated land in his village. The Applicant was told that his land would be confiscated, turned into a commercial fishery farm, and leased to contractors. The government would only provide RMB3000 (approximately AUD400) by way of compensation and told the villagers (including the Applicant) that it was their responsibility to support themselves (although persons over 60 would receive RMB40 per month);
d) after the plan was announced, the Applicant united with 90 other families in his village to strive for his rights and the Applicant organised villagers to lodge appeals to the local government;
e) the land was ultimately seized by the government and the confiscation was enforced by the police. Since the seizure, the Applicant’s life became very difficult because he had no savings, no land, and was unable to find a job;
f) in mid-August 2005, the Applicant organised local villagers to march to the Town Government. He was to protest with 80 to 90 other people;
g) however, on the night of the protest, he and another organiser were arrested and jailed at the local police station for 15 days. During his detention, he was beaten by the police and eventually released on a bond. He was told that if he made trouble again he would be punished more severely;
h) it took him a number of months to recover and he was unable to go to the hospital for treatment because he had no money. He relied on traditional Chinese medicines prescribed by a neighbour who was a quasi-Chinese doctor;
i) since the injury, his family’s financial situation deteriorated. They relied solely on his wife’s income from casual work and from earnings as a babysitter. He also raised chickens and geese at home to meet the shortfall;
j) the Applicant started to organise another protest. However, he first organised his passport because he feared punishment after the protest;
k) on 20 October 2008, he organised villagers to attend a higher level of government in the Putuo District to protest for a second time. He protested with 60 to 70 people and demanded a return of their land. The protest was suppressed by force and the Applicant had to escape the police;
l) the Applicant then adopted a false name (Jun Chen) and listed at his cousin’s house for 5 months which was situated in the country side at Xiangshan Town, Ningbo City;
m) the Applicant heard through a friend that the police wanted to arrest him. He then gave money to his friend to help him obtain a visitor visa to Australia. The money was raised by his wife and amounted to RMB100,000 (approximately AUD15,000), which she obtained by borrowing money;
n) the Applicant then departed for Australia.
12) The Applicant subsequently elaborated upon the above claims at the hearing before the Tribunal. Evidence as to what occurred at the hearing is as follows:
a) the Affidavit of Rita Tratt sworn on 9 December 2009. This annexes an English only transcript of the hearing before the Tribunal;
b) the Affidavit of Zhong He Chen sworn on 8 January 2010, who is fluent in English, and the Chinese dialects of Mandarin and Zhejiang (the Applicant’s dialect). This annexes:
i) an English only transcript of the hearing (annexure A). This is the same as that annexed to Ms Tratt’s affidavit;
ii) a transcript (annexure B) that includes a translation of (A) words said by the Applicant said in Zheijiang where it was not interpreted or was misinterpreted by the interpreter, and (B) words said by the interpreter in Mandarin to the Applicant where they were not said by the member at all or where the interpreter used words different to those used by the member. These portions are italicised or identified by way of footnote for convenience.
THE TRIBUNAL’S DECISION
13) The Tribunal accepted that the Applicant was involved in low-level protest activity following the confiscation of his farmland because the claims were plausible and consistent with independent country information which indicated that the confiscation of land with the payment of a relatively inadequate compensation is common practice in China (CB79 at [48]).
14) However, the Tribunal did not accept that the Applicant had a fear of harm due to his claim to have been involved in protests in both 2005 and 2007 that resulted in him having been detained and charged (CB79-81 at [49]-[50]):
a) the Applicant had not provided any evidence to support his claimed role in the protests, a copy of an arrest warrant or criminal charge made against him, a receipt for the payment of the bond he claimed to have paid for his release, or a letter from another person who participated in the protests. The Applicant also did not elaborate upon what he did in his claimed role as leader or organiser of the protests. Accordingly, the Tribunal did not accept that the Applicant was the leader, organiser or major activist of the protests;
b) the Tribunal also noted that the Applicant did not claim to have continued his anti-government activities in Australia;
c) the Applicant was legally issued with a passport on 15 August 2007, some two years after he was detained, whereas independent country information made it clear that passport applications were thoroughly checked in China. (It is noted in this regard that the Tribunal cites 3 pieces of country information, CX72393, CX 27863 and CX164795. These items, which are not included in the Court Book – the Applicant asks that the Minister provide him with a copy of these together with their submissions). Whilst the Applicant claimed that he obtained his passport before the second set of protests, the Tribunal considered that if he was of such prominence that he was regarded by the Chinese authorities as the mastermind in organising the anti-government protests he would have been on an alert list in August 2007 and no passport would have been issued;
d) the Applicant was able to leave China with a passport in his name without any difficulties. If he had been detained in August 2005 for two weeks and charged with involvement in anti-government activities, he would not have been allowed to leave China. Further, if he had changed his name to Jun Chen and lived with his cousin as claimed, the PSB would have noted his absence and put him on a national alert list, including at international airports.
15) Accordingly, the Tribunal found that the Applicant had embellished his claims to enhance his application and found that he was not of any interest to the PRC authorities (AB81 at [50]).
16) The Tribunal accepted that the Applicant had lived in Xiangshan Town with his cousin. However, because of its other findings, it was not satisfied that the reason for his movement was Convention related and if he did not wish to return to his home village then he would be able to live safely in Xiangshan where he had lived for 5 months, without there being a real chance that he would be subject to persecution. It followed that the Tribunal was not satisfied that the essential and significant reason for any difficulties he may find in getting a job on his return would be Convention related (CB81 at [52]).
17) The Tribunal also rejected any claim that the Applicant was claiming to fear persecution by reason of a wider anti-government or anti-Communist Party political view, in view of the Applicant’s limited and unsupported claims (CB82 at [53]).”

Grounds 1 and 3

Counsel for the Applicant agreed that grounds 1 and 3 are mirror images of each other. Counsel for the Applicant submitted that, because of the confiscation of his land, the Applicant was denied the capacity to earn a livelihood of any kind thereby threatening his capacity to subsist. Counsel for the Applicant submitted that such conduct amounts to persecution and that the Tribunal, having accepted that the Applicant’s land was confiscated, should have considered whether or not the economic consequences of that confiscation amounted to persecution.
True it is that, the Applicant did not regard the compensation as fair or adequate, leading to his claim to have organised protests. However, a fair reading of the Tribunal’s decision record makes clear that the Applicant’s only claim of a well-founded fear of persecution arose from his claim of the profile that he had with authorities in China by reason of his leadership role in organising the protests.
Mr Reynolds submitted that the Tribunal should have considered further why the land was confiscated, such as: whether it was by application of law; and, whether the law was appropriate and adaptive in the circumstances. I reject such a submission. The plain evidence before the Tribunal from the Applicant was that his land was confiscated in order to provide a commercial fishery and in respect of which he was compensated.
I reject counsel for the Applicant’s submission that the Tribunal should have considered whether there was a particular social group of farmers from the Applicant’s region whose land was confiscated in circumstances amounting to persecution for a Convention related reason. Such a claim must emerge clearly from material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) 219 ALR 27 at [68]). In the case before this Court, it clearly does not.
Counsel for the Applicant submitted that because the Tribunal accepted that the Applicant had participated in low level protests, although it rejected his claim of having been an organiser or leader of protests, the Tribunal was obliged to consider whether participants in low level protests were at risk of persecution in China for a Convention related reason. In support of that submission, Mr Reynolds referred to SZGUW v Minister for Immigration and Citizenship [2009] FCA 321 where Jacobson J found that it was an error for a tribunal to fail to consider the question of whether an applicant had a well-founded fear of persecution in circumstances where his land had been illegally confiscated by the local government and developers. However, the facts of that case are entirely distinguishable from the case before this Court. As is stated above, it is clear from the Applicant’s claims, that he does not assert that the confiscation was illegal. He explains in his protection visa application that he was told that his land would be turned into a commercial fishery farm and leased to contractors. Further, he was paid compensation.
Moreover, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered whether the Applicant made any more specific claims of a fear of persecution in China because of his wider anti-government or anti-Communist party views. However, the Tribunal found that the Applicant did not make any such further specific claims and that the Applicant’s claims were “limited and unsupported”.
As stated above, the Tribunal was prepared to accept that the Applicant may have had his land compulsorily confiscated and paid compensation that he regarded as unfair and inadequate and accepted that the Applicant may have participated in protests as a result. However, the Tribunal rejected the Applicant’s claims of having been a leader or organiser of such protests and rejected the Applicant’s claims to be of any interest to authorities in China.
The Tribunal found that the Applicant was not a credible witness and that he had “embellished his claims in order to enhance his application for a protection visa”. The Tribunal did not accept that the Applicant is of any interest to authorities in China because of his low level involvement in protest activities or any other Convention related reason.
I do not accept that a fair reading of the Tribunal’s decision record suggests at all that the material and information before the Tribunal gave rise to a claim before the Tribunal of a fear of persecution by the Applicant by reason of his low level participation in protest activities in China or that the confiscation amounted to a claim of a fear of persecution by reason of the confiscation of his land for a Convention related reason. Nor was there any claim by the Applicant that the confiscation of his land caused him to fear persecution. The Applicant claimed that it was his alleged conduct in leading and organising protests, giving him a profile with authorities, that gave rise to his alleged fear of persecution by authorities in China. The Tribunal disbelieved those claims.

The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.
Accordingly, in my view, grounds 1 and 3 have no, or no, reasonable prospects of success.

Ground 2

In support of ground 2, counsel for the Applicant submitted that whilst the Tribunal accepted that the Applicant engaged in low level protest activity, it did not address the question of why the Applicant had engaged in low level activities. I understand the Applicant’s argument to be that the Tribunal should have considered whether he had refrained from engaging in high level activities because he may be persecuted. Counsel for the Applicant submitted that there were only two possible reasons that the Applicant did not participate in high level activities, those were:
i)That the Applicant did not want to;
ii)That he was fearful to so participate.
Further, there was not any evidence whatsoever before the Tribunal to support a finding by the Tribunal that the Applicant did not participate in high level activities because he did not want to or because he feared persecution. A fair reading of the Tribunal’s decision record makes clear that the only evidence before the Tribunal was the Applicant’s evidence that he had participated in high level activities as a leader and organiser and had come to the attention of authorities for that reason and been persecuted. That evidence was rejected by the Tribunal on the basis that it did not find the Applicant to be a credible witness and his claim to have been a leader and organiser was disbelieved. There was no evidence before the Tribunal that could have grounded a finding that the Applicant did not engage in high level activities because of any fear of persecution. As stated above, the Applicant’s clear evidence was that he had engaged in such high level activities.
Counsel for the Applicant also referred to Appellant S395 of 2002 v Minister of Immigration and Multicultural Affairs (2003) 216 CLR 473 where the High Court of Australia found that where an applicant had to modify his or her behaviour such conduct, being imposed on an applicant, is capable of amounting to persecution for a Convention related reason. However, those facts are not similar to the case before this Court. There is no evidence before this Court whatsoever by the Applicant of any modification of his behaviour.
Accordingly, in my view, ground 2 has no, or no, reasonable prospects of success.

Ground 4

Counsel for the Applicant submitted that the Tribunal did not give active consideration to the Applicant’s explanations as to how he was still able to obtain his passport and how he was able to leave China.
In relation to the Applicant’s explanation as to how he obtained his passport, the Tribunal found that the Applicant was legally issued with his Chinese passport of 15 August 2007, some two years after he claimed to have been detained. The Tribunal noted that the Applicant claimed that he obtained his passport before he participated in the second set of protests in October 2007 and used money to buy a visa to come to Australia.
The Tribunal had regard to country information before it that disclosed that the authorities in China maintain an alert list that covers people who are under investigation, including prior to the issue of a formal arrest warrant. The Tribunal rejected the Applicant’s claim that he was detained by police for 2 weeks in the second half of August 2005, having been convicted of an anti-government offence. The Tribunal was satisfied that, if he was of such prominence that he was regarded by the Chinese authorities as a mastermind in organising the protests, he would have been on an alert list in August 2007 when his passport issued. It was open to the Tribunal to prefer the country information in preference to the Applicant’s claims and evidence. The country information to which a tribunal has regard and the weight it gives that information is for the tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
In the circumstances, those findings would appear to amount to a consideration of the Applicant’s explanation and a rejection of that evidence.
Counsel for the Applicant further submitted that the Tribunal failed to have regard to the Applicant’s evidence as disclosed in the transcript that he obtained his passport by obtaining local police approval because they were unaware of the Applicant’s participation in an anti-government movement and because he paid them money. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal specifically referred to the Applicant’s evidence that in order to obtain his passport he had to go to the Public Security Bureau (“the PSB”) in his district to get a document from them but that the local PSB were not aware of his record. The Tribunal noted that it put to the Applicant that it was having great difficulty accepting that the PSB would not know his offence if he had been detained and charged in 2005 as he claimed. The Tribunal noted that the Applicant then claimed that a friend helped him to pay money to the PSB. Whilst counsel for the Applicant may have characterised that payment of money to the PSB as a bribe and that it was paid to a local sub-police station, there is no evidence to suggest that the Applicant was asserting that such money was paid other than in the ordinary course of obtaining his passport.
Counsel for the Applicant made a further complaint that the Tribunal misunderstood the Applicant’s evidence as to the role of the sub-police station in issuing his passport by reason of deficiencies in the interpretation. However, even if there were such deficiencies in the interpretation of references to a local or sub-police station as opposed to a local PSB, such an error has not apparently played on the mind of the Tribunal in considering the Applicant’s evidence.
Evidence was called before this hearing by the Applicant from a Mr Chen, interpreter, to the effect that there is a distinction in China between a sub-police station and the PSB. However Mr Chen agreed that there is no such precise English translation of the police and PSB hierarchy. The Tribunal appears to have distinguished between the Applicant’s PSB in his district as the local PSB and the PSB, being the head office bureau who would issue alerts upon information provided from other authorities.
In relation to the Applicant’s claim that the Tribunal did not have regard to the Applicant’s evidence about how he was able to leave China using his own passport issued in his own name, such a complaint is not made out on a fair reading of the Tribunal’s decision record. The Tribunal noted that it put to the Applicant that the manner in which the Applicant was able to leave China using his own passport raised serious doubts about his claims and noted the Applicant’s response that the PSB wanted to arrest him in Putuo, but he was not wanted elsewhere. In any event, I accept the submission of counsel for the First Respondent that the Tribunal’s consideration of that evidence is clearly subsumed in the Tribunal’s finding of greater generality of rejection of the Applicant’s claims to be of interest to the authorities in China (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630).
Accordingly, in my view, ground 4 has no, or no, reasonable prospect of success.

Ground 5

Ground 5 relates to identified mistranslations by the Applicant as supported in the affidavit of Zhong He Chen, affirmed 8 January 2010, and filed on that day. Mr Chen’s affidavit annexes a transcript of the hearing before the Tribunal, together with Mr Chen’s interpretations of exchanges between the Applicant and the Tribunal and the subsequent interpretation by the interpreter. The Applicant’s complaint centres around the failure of the interpreter to interpret accurately the Applicant’s reference to local sub-police station as opposed to the PSB.
The First Respondent did object to Mr Chen’s affidavit. The transcript makes clear that the interpreter attempted to interpret local sub-police station as local PSB on some occasions. The relevant portion to which the Applicant refers is the Applicant’s evidence where he states that in August 2005, he was detained by the sub-police station for 15 days and the interpreter appears to have translated ‘sub-police station’ as the ‘local government’, which the Tribunal appears to have understood to be the PSB. As stated above, Mr Chen’s evidence to this Court under cross-examination was that there are not precise English translations for the various terms relating to police stations and the PSB in China. I accept Mr Chen’s evidence that there are no such precise English translations.
The other issue is that the Tribunal put to the Applicant that it was having difficulty in accepting that the Applicant could obtain a passport when it was the PSB that detained him in August 2005. The correct interpretation, according to Mr Chen, which I accept, states that the Member’s question was interpreted by the interpreter as referring to the local sub-police station. The Applicant agreed that the local sub-police station was not aware that the Applicant had participated in the anti-government movement and the Applicant responded that he had got help from a friend to whom he had paid some money.
I accept that the interpreter did seem to confuse in translation “sub-police station”, “PSB”, “local PSB”, “PSB in the district” and “local sub-police station”.
However, after this somewhat confusing conversation the Member went on to summarise the Applicant’s evidence as follows:
“But then you left Shanghai airport on 2 May 2008 using your passport issued in your name and your photograph without claiming that you had any difficulty whatsoever. And I am having great difficulty in accepting that this would have been the case if you were regarded as a leader and organiser of a political protest. The police believed that you were the mastermind and you’d been jailed at the local police station for 15 days and most specifically that you’d been convicted of an anti-government offence. Again this goes to the matter of your truthfulness and your claims and credibility. Do you understand what I have just said and would you like to comment? Answer, Yes”
That summary by the Tribunal, which Mr Chen does not suggest was inaccurate (other than that the interpreter did not interpret “an organiser”), clearly and accurately states the substance of the Applicant’s evidence as recorded in the Tribunal’s summary above. In the circumstances, in my view, it would appear that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated (WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66]).
To the extent that there is evidence in Mr Chen’s affidavit of other imperfect translations and complaints on four occasions by the interpreter of the difficulty in the Applicant’s accent, a fair reading of the transcript does not suggest that the difficulties faced by the interpreter were not real difficulties that any interpreter would have faced. It does not suggest that the difficulties show that the interpreter was inaccurate or unreliable overall. In my view, the interpretation was generally fair and accurate and it could not be said that the Applicant was effectively prevented from giving evidence at the Tribunal hearing because of any inadequacy in the translation (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [20] and [22]).
Accordingly, ground 5 has no, or no, real prospects of success.
A fair reading of the Tribunal’s decision record suggests that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record suggests that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
It would appear that the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. In the circumstances, the grounds of the further amended application have no, or no reasonable, prospects of establishing jurisdictional error in the Tribunal’s decision.
I have given careful consideration to all the matters referred to above in the exercise of discretion as to whether or not an extension of time is in the interest of justice. In my view, it is not. The application should be dismissed and the proceeding before this Court is therefore incompetent.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 4 March 2010