SZOGS v Minister for Immigration - [2010] FMCA 580

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 580

MIGRATION – Application to review decision of Refugee Review Tribunal – application for extension of time.

Migration Act 1958 (Cth), ss.424A, 425, 477

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197

Applicant:

SZOGS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 639 of 2010

Judgment of:

Barnes FM

Hearing date:

22 July 2010

Delivered at:

Sydney

Delivered on:

22 July 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is refused.
The application of 23 March 2010 is dismissed as incompetent under s.477 of Migration Act 1958 (Cth).
The applicant pay the costs of the first respondent fixed in the sum of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 639 of 2010

SZOGS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application filed in this court on 23 March 2010 the applicant sought review of a decision of the Refugee Review Tribunal dated 20 April 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the court within 35 days of the date of the decision, although the court may, by order, extend that 35 day period as it considers appropriate if an application has been made in writing to the court specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order and the court is satisfied that it is so necessary in the interests of the administration of justice.
In his application of 23 March 2010 the applicant applied for an order extending the time for making the application under s.477. He stated why he considered it necessary in the interests of the administration of justice to extend the time as required under s.477(2) as follows:
1. Due to limit (sic) knowledge of law, I did not know I have right to apply for Federal Magistrates Court Review.
2. Due to lack of law knowledge, I did not know there is time limit to apply for Federal Magistrates Court Review.
3. I know very little English, so I did not know I have right to apply for Federal Magistrates Court Review.
The applicant did not elaborate either in his accompanying affidavit or in submissions today on the circumstances in which he failed to apply to the court until 23 March 2010, which I note was a short time after he was detained at Villawood Detention Centre. I am invited to by the solicitor for the Minister to draw an inference from the fact that the applicant applied for review a few days after his detention that the reason was not because he did not know about his right of review, but rather that this was the only way he could stay in Australia. I am not inclined to draw such an inference as the timing of the application would be equally consistent with the applicant’s asserted lack of knowledge.
I bear in mind that it is necessary to have regard to all the circumstances of the case in relation to an application for an extension of time, as discussed in SZNZU v Minister for Immigration & Anor [2010] FMCA 197. In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 Nicholls FM (at [44]) summarised factors which may be relevant to be taken into account as part of all the circumstances when considering s.477(2)(b), including the extent of the delay and the reason for delay; whether there is any merit in the application; whether there is any prejudice to the respondents; the impact on the applicant; the interests of the public at large and; the court’s discretion itself.
As Smith FM pointed out in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 (at [11]), the considerations which might bear on the discretion are unconfined, but there are two critical considerations (albeit no consideration can be said to be a necessary consideration). First, that an explanation reasonable to the circumstances is provided and secondly, whether the applicant has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order (see Kirby J in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [48]).
The delay in this case is of some significance when seen in the context of the 35 day time limit applicable under s.477(1) of the Act. The applicant is almost 10 months out of time. The extent of the delay must be balanced against the reasons for delay. The only reasons given by the applicant in this case are his lack of knowledge of the law and his lack of English. Such factors would be very common in proceedings of this nature. There is no indication from the applicant that he took any steps after receipt of the Tribunal decision to ascertain whether he had any review rights. Nor does he provide any explanation for the failure to take such steps. He does not take any issue in relation to receipt of the Tribunal decision. Having regard to the nature of proceedings to which s.477 applies, even accepting his explanation at face value it does not provide a satisfactory explanation for the extent of the delay.
In oral submissions the applicant took issue with the fact that he did not have a lawyer. I have taken into account the applicant’s claims about his lack of knowledge of the law in relation to whether there was a reasonable explanation for the delay in seeking judicial review in relation to the Tribunal’s decision. Insofar as the applicant intended to refer to his ability to put material before the court addressing his application for an extension of time and the grounds on which he relies, I note that he had the benefit of participation in the free legal advice scheme.
In any event, what I consider critical in this case is the absence of merit in the application. If a substantive application is without merit this is a strong consideration relevant to refusal of an extension of time.
In this case the material before the court includes all the material that would be before the court on final hearing. The applicant has had the opportunity to address the grounds on which he would rely at a final hearing.
The application contains three generally expressed grounds. The applicant was given the opportunity to address those grounds in oral submissions. He did not file written submissions.
The first ground is that: “[t]he Tribunal was preoccupied, and failed to act judicially and afford procedural fairness”, the second is that: “[t]he Tribunal failed to use the most updated country information to investigate the applicant’s claim” and the third is that “[t]he Tribunal failed to comply with section 91R(3) of the [Migration] Act”.
In order to consider the merits of these grounds it is necessary to set out the background to this case and the Tribunal decision. The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2008. He applied for a protection visa in November 2008 and was invited to and attended a Departmental interview in January 2009.
On 20 January 2009 his application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
In essence, the applicant’s claims as made to the Department and elaborated on to the Tribunal were that he was a person of little education who had worked as a fisherman in China and lived at the one address in a small village. He claimed that he had been introduced to Falun Gong in January 1999 by a “fisherman friend” and that he subsequently introduced his friends and workmates to Falun Gong. In his protection visa application he claimed that he “worked very hard to study and spread the Falun Gong”.
The applicant claimed that in January 2007 he was detained by the police for nine months due to his Falun Gong activities. He claimed that since his arrival in Australia his wife in China had been threatened due to his involvement in Falun Gong. He also claimed to have been involved in some Falun Gong activities in Australia, such as distributing pamphlets in Chinatown, but claimed that he feared practising Falun Gong in Auburn in case he was discovered by the Public Security Bureau in China.
In response to Tribunal questioning at the hearing, which is discussed further below, the applicant claimed to be unfamiliar with the beliefs and principles associated with Falun Gong because he had only studied the exercises in an attempt to relieve his neck pain.
In its reasons for decision the Tribunal set out at some length the conduct of the Tribunal hearing. That is the only evidence before the court of what occurred in that hearing.
In its findings and reasons the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention-related reason. It found, for reasons which it gave, that the applicant was not a credible witness and that he had fabricated his claims to support his application for a protection visa.
The Tribunal set out the applicant’s claims that Falun Gong was his religion, that a fisherman friend taught it to him for quite a while starting in January 1999 and that he practised the exercises and worked hard to study and spread Falun Gong, introducing it to friends and workmates.
The Tribunal found that the applicant knew who the Falun Going leader was and that he wrote Zhuan Falun. However the Tribunal considered that the applicant knew very little about the beliefs of Falun Gong. It recorded that the applicant did not know the Falun Gong view of karma, the attitude to eating meat and attachments, or the basis of the chapters in Zhuan Falun. When the applicant’s lack of knowledge was pointed out to him by the Tribunal he had agreed that he really did not know about “fa”. When asked to draw the Falun Gong symbol or sign he was unable to draw a complete representation. The Tribunal recorded that when it expressed surprise at this in the hearing the applicant said he had never paid attention to it. The Tribunal considered that such a response was at odds with someone who claimed to have worked hard to study Falun Gong.
The Tribunal recorded that the applicant sought to explain his lack of knowledge on the basis that he could not read and so could not read the Falun Gong texts. However it had regard to the fact that he also claimed he had been a Falun Gong practitioner for many years and that the friend who taught him for some time had a Falun Gong text and talked to him about the beliefs. The Tribunal considered that if these claims were true the applicant would know more about Falun Gong. It did not accept that the applicant’s lack of knowledge of basic Falun Gong beliefs was because he could not read. It considered his evidence on this issue reflected adversely on his credibility generally.
Further, the Tribunal did not accept that someone could be a Falun Gong practitioner without knowing the basic beliefs such as about karma, eating meat and attachments. The Tribunal concluded, having regard to information from the Falun Dafa website about integral parts of Falun Gong including cultivation through the study of the universal principles, that the applicant’s knowledge of Falun Gong was not commensurate with his claims.
The Tribunal also had regard to the fact that the applicant appeared to change his evidence during the hearing when he was asked about where he learnt about placement of the falun (in Australia or in China). It did not accept his explanation (on the basis of his low education level) or his claim that it took him longer to explain things. The Tribunal found that the applicant’s oral evidence about whether he learned about placement of the falun while he was in Australia or was taught it by his friend in China was inconsistent. The Tribunal considered that the applicant “attempted to change his evidence to support his claims that he was studying and practising Falun Gong in China” and that his changed evidence and explanation reflected “adversely on his credibility generally”.
The Tribunal also considered that the applicant’s delay of about a year in leaving China after his claimed release from detention indicated that he was not in fear of persecution.
Having concluded that the applicant was not a credible witness and had fabricated his claims, the Tribunal did not accept that he “ever practised Falun Gong in China, secretly and in private or otherwise”, that he was detained by the village head or village committee in 2003 or by the PSB in 2007 or his claims about using bribery to obtain his release or passport. Nor did the Tribunal accept the applicant’s claims that he had been monitored, brain-washed or forced to attend re-education classes. It did not accept that he had promoted the benefits of Falun Gong in his village and introduced it to friends or workmates, or that he was so perceived by the authorities. It did not accept that his wife had been threatened or that the authorities had visited her. The Tribunal considered that “the Chinese authorities have had and have no interest in [the applicant]” for the reasons claimed.
The Tribunal then addressed the applicant’s conduct in Australia. Based on photographs the applicant had submitted, the Tribunal accepted that at some point he had been in Chinatown and had been photographed near a Falun Dafa information table and that on one occasion he had his photo taken in a street, possibly beside the Chinese Consulate. It also accepted that he had attended a Falun Gong study group in Burwood and had practised the exercises at home. However, having made an adverse credibility finding, the Tribunal did not accept that the applicant had participated in any of this conduct because he was a genuine and committed practitioner of Falun Gong, but concluded that the purpose of this conduct was to strengthen his claims to be a refugee. The Tribunal disregarded this conduct in Australia pursuant to s.91R(3) of the Act.
The Tribunal concluded that as it did not accept that the applicant had ever been a practitioner of Falun Gong in China, it did not accept he would be involved in practising Falun Gong in China on his return or that he would be imputed as a Falun Gong practitioner. It did not accept that there was a real chance the applicant would be persecuted for reasons of practice or involvement in Falun Gong if he returned to China now or in the reasonably foreseeable future and hence was not satisfied on the evidence before it that the applicant held any well-founded fear of harm for a Convention reason should he return to China.
The first ground in the application is that the Tribunal was preoccupied and failed to act judicially and afford procedural fairness. When given the opportunity to elaborate on this ground, the applicant said that the Tribunal did not take his personal situation into consideration and that he was illiterate and could not learn Falun Gong principles. He claimed that he did not know the principles and just learned the main exercises to relieve pain in his neck.
However it is apparent from the Tribunal reasons for decision that it was aware of the applicant’s claimed illiteracy and also considered the fact that he put this as the explanation for his lack of knowledge of the principles of Falun Gong. As set out above, in its reasons for decision the Tribunal specifically referred to the applicant’s attempt to explain his lack of knowledge on the basis that he could not read and so could not read the Falun Gong texts. Its conclusion that notwithstanding this a person who had engaged in Falun Gong in the manner in which he claimed would know more about Falun Gong is not such as to demonstrate or establish even an arguable case of a lack of procedural fairness or either actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
Nor, more generally, is any arguable case that the Tribunal failed to comply with any of its obligations under the Migration Act apparent on the material before the court. The material before the court does not suggest that any s.424A obligation arose. The Tribunal relied on country information, information in the applicant’s protection visa application, information the applicant provided at the Tribunal hearing and inconsistencies and inadequacies in his evidence (see the exceptions to s.424A and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]).
Nor is any suggestion of a failure to comply with s.425 of the Act apparent on the material before the court (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63). In particular, it is apparent from the Tribunal’s account of the hearing that the applicant’s credibility was a live issue at the hearing. Indeed the Tribunal recorded that it put to the applicant that it could appear that he was changing his evidence and that if the Tribunal concluded that he was doing this, it could reflect adversely on his credibility generally and the Tribunal could decide to affirm the delegate’s decision. The applicant was given the opportunity to comment or respond in relation to changes in his evidence about detention. The Tribunal also raised specifically with the applicant concern about the credibility of his claims about his inability to find Falun Gong practise sites in Sydney, about his lack of knowledge of Falun Gong as well as the question of whether a person who made claims such as his (including about the time he had been a Falun Gong practitioner and that he had spread the word about Falun Gong to many people) would have some familiarity with the principles of Falun Gong. There is no merit in ground one of the application.
Nor is there any basis for the assertion in ground two that the Tribunal failed to use the most updated country information to investigate the applicant’s claims. This ground is unparticularised. In oral submissions the applicant reiterated his claim about his lack of knowledge of Falun Gong principles because of his illiteracy.
It is apparent from the Tribunal reasons for decision that it relied on country information relating to Falun Gong, including from the Falun Dafa Information Centre and website, ranging from 2002 to 2009. This is not such that it could fairly be characterised as outdated. In any event see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]) in which it was pointed out that the weight to be attributed to country information is a matter for the Tribunal. There is nothing in the material before the court to support the contention in this ground as a matter of fact. Insofar as this ground alleges any obligation on the Tribunal to investigate the applicant’s claims, there is no particularisation of such contention and nothing in the material before the court to suggest that the applicant asked the Tribunal to investigate any aspects of his claims or that an obligation would otherwise arise in the sense considered by the High Court Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. This ground is without merit.

The third ground is a generally expressed complaint that the Tribunal failed to comply with s.91R(3) of the Act. The applicant was unable to elaborate on this ground. The Tribunal was clearly aware of s.91R(3) and applied it accordingly and no arguable error is apparent in the manner in which it did so. There is no merit in this ground.
Hence, when considering the factors relevant to an extension of time under s.477 of the Act it is of considerable significance that there is no merit in the applicant’s grounds. Indeed, were this a final hearing, the application would be dismissed on that basis alone.
The first respondent accepted that rejection of the applicant’s application for an extension of time would have an impact on the applicant, as it would likely follow that he would be required to leave Australia at some point in time. Given the manner in which the hearing has been conducted and the material before in this court, there would be no additional cost of litigation constituting prejudice to the first respondent were an extension to be granted, but it would in any event lead to a dismissal of the application as the grounds have no merit.
There is nothing in the material before the court to suggest that the interests of the public at large would be served by an extension of time in this case, having regard to the need to avoid delay, expense, and protraction of legal proceedings. I have borne in mind, on the other hand, that the interests of the public would not be served by return of a refugee to a country of claimed persecution, although the Department and Tribunal have found that the applicant is not a refugee.
In conclusion, having regard to all of the circumstances in this case including the very limited explanation for the substantial delay in seeking judicial review and the absence of any merit in the substantive grounds of judicial review, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day period within which an application must be made to this court under s.477 of the Migration Act. The application of 23 March 2010 for review of the decision made by the Tribunal on 20 April 2009 is out of time and hence should be dismissed as incompetent.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. His disagreement with the merits of the Tribunal decision and the fact that the Tribunal did not believe him is not a reason for not awarding costs to the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 12 August 2010