SZOOX v Minister for Immigration - [2011] FMCA 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 105

MIGRATION – RRT decision – Chinese applicant claiming persecution as member of Local Church – no jurisdictional error shown – no adequate explanation for 12 months delay – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.91R(3), 424AA, 424A, 424A(1), 477(1), 477(2)

Commonwealth of Australia; Ex parte Marks [2000] HCA 67, (2000) 177 ALR 491
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159
SZNZI v Minister for Immigration & Anor [2010] FMCA 57

Applicant:

SZOOX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1835 of 2010

Judgment of:

Smith FM

Hearing date:

21 February 2011

Delivered at:

Sydney

Delivered on:

21 February 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The applicant must pay the costs of the first respondent in the amount of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1835 of 2010

SZOOX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in February 2006, travelling on a sponsored 457 visa requiring him to work in a meatworks in Western Australia. While working there, he returned to China to visit his family between August and September 2007. During 2008 he lost his employment, and on 12 December 2008 he applied for a protection visa assisted by a migration agent, Ms Weiming Qian.
The visa application attached a statement setting out his claims to fear persecution if he returned to the People’s Republic of China. He claimed that all his family were Christians, and that he himself started to practise Christianity from 1999, by attending worship in an underground church of the Local Church, also known in China as “Shouters”, which is a sect which has been particularly persecuted.
The applicant claimed that although he had training as a butcher, he ceased to work in that occupation in 2002 and “served the church” full‑time. In 2005 he drove brothers and sisters to a meeting which was raided by the Public Security Bureau, and the applicant was taken in for questioning and held for 10 days. He was mistreated and tortured before being freed. Other people were sentenced to two years prison.
After he was released he still “drove for brothers and sisters in the church” delivering Bibles. He then was recruited by his Australian employer, and obtained his 457 visa.
He said that when he returned to visit his relations in 2007, he again drove a van to bring Bibles to his home town, and these Bibles were discovered in a raid by police. After he returned to Australia, the persons who had been detained “released the truth” about his own involvement.
He presented three official documents to corroborate his detention in 2005 and his baptism, and two witness statements confirming his involvement in the Local Church in China, together with some photographs of groups of people, which he claimed corroborated his involvement in the Local Church in China and in Australia.
The applicant was interviewed by a delegate on 3 March 2009. It was put to him that his claim to have worked full‑time for the church was inconsistent with documents supporting his 457 visa application, which showed him working as a self‑employed slaughterman and seller at a trade market. The applicant said that this documentation was falsely prepared by an agent. The applicant told the delegate that he had commenced attendances at the Local Church in Sydney shortly before making the protection visa application, and had continued to be involved in its activities.
The delegate made a decision on 11 March 2009, refusing the protection visa application. The delegate said that he “positively disbelieves” that the applicant was seriously harmed in the People’s Republic of China because he was associated with the local underground church. The delegate was not satisfied that he feared harm if he returned because of such an association. The delegate took into account delays in the applicant obtaining a business visa and in his making a protection visa application, and his return visit to China, as being inconsistent with the claimed fears. The delegate referred to concerns about widespread fraud in the immigration caseload from the People’s Republic of China.
The applicant appealed to the Refugee Review Tribunal, assisted by his migration agent. He attended a hearing of the Tribunal on 27 May 2009. The hearing appears to have lasted about three hours, but a transcript is not in evidence, and I rely on the description given by the Tribunal.
According to the Tribunal, it explored the issues which had been previously considered by the delegate, and also other issues in relation to the applicant’s claims. The Tribunal said that it followed procedures under s.424AA of the Migration Act 1958 (Cth) in relation to various matters which were of concern to it. It appears to me that most of them were inconsistencies in the evidence and materials submitted by the applicant, and did not require procedures under ss.424A or 424AA.
However, there was information about the applicant’s temporary business visa documentation which ultimately the Tribunal did use as part of its reasons for affirming the delegate’s decision, and the statutory procedures were applicable to this information. In my opinion, on the Tribunal’s description of its discussion about this material, there is no evidence suggesting a failure of procedures under s.424AA. Generally, it appears to me that the Tribunal very fairly alerted the applicant to all of the concerns and matters, upon which it ultimately decided the case after taking into account his responses and various explanations.
The Tribunal made a decision on 6 July 2009, affirming the delegate’s decision. A copy was posted to the applicant on or about that date. The Tribunal’s covering letter reproduced in the Court Book states that it included a “fact sheet”, which I assume contained information about his rights of judicial review. However, a copy of the “fact sheet” is not in evidence, and it is unclear to me whether the correspondence drew the applicant’s attention to the short time limit for appealing to the Court.
In its statement of reasons under the heading “Findings and Reasons”, the Tribunal gave its general conclusion:
85.The Tribunal has considered his claims and the documentary evidence he has submitted in support of his claims. For the reasons set out below, including internal inconsistencies and implausibility in his evidence, the Tribunal finds that the applicant is not a witness of truth, not a genuine Local Church member or practitioner and does not hold a genuine fear of persecution in relation to China because of any involvement or activities associated with the Local Church in China.
The Tribunal commenced its reasons for these conclusions by considering the applicant’s evidence about his visit to China in 2007. It found significant inconsistencies in his evidence about his transportation of bibles, and it did not accept that he had been involved in that activity.
The Tribunal then considered the applicant’s evidence about his involvement in the Local Church before coming to Australia in 2006. It identified inconsistency concerning the applicant’s claim to have worked full‑time for the church, both within his evidence about this and how he had received remuneration, and also with the documentation supporting his temporary visa application which showed him working as a self‑employed butcher. The Tribunal decided that it should place “more weight” on that documentation, than on the applicant’s oral evidence about his occupation in China.
The Tribunal then identified conduct of the applicant which cast doubt on whether he ever held a genuine fear of persecution. It considered his evidence and explanations about his return to China, his earlier delay between receiving a passport and then applying for a visa, and his delay in applying for refugee status in Australia. It also considered his explanations for leaving his baby daughter in China, in circumstances where he claimed that she was also being exposed to persecution. The Tribunal considered the applicant’s explanations for all these actions, but was unpersuaded that he had given plausible explanations.
The Tribunal accepted that the applicant had been attending the Local Church in Sydney since November 2008, and it considered the documentary corroboration including photographs and a reference letter. However, it was not satisfied that he had engaged in that conduct otherwise than for the purpose of strengthening his claim for refugee status, and was therefore required to disregard it in accordance with s.91R(3) of the Migration Act.
The Tribunal examined the documents, photographs and a video, which were tendered in corroboration of the applicant’s claimed associations with the Local Church in China. However, it placed no weight on that material, taking into account the general doubt about such documents and the inconclusive nature of some of the material.
The Tribunal concluded that it did not accept that there was a real chance of the applicant being persecuted if he returned to China.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders, only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he should be given a protection visa or any other permission to stay in Australia.
The applicant did not file his application in the Court until 20 August 2010, which was 12 months after the expiry of the time provided by s.477(1) of the Migration Act. His application is therefore incompetent unless I extend that time, and I am precluded from doing so unless I am satisfied that such an extension is necessary in the interests of the administration of justice.
The applicant filed an inadequately sworn statement, which contains the following explanation for his delay:
4.The reason for delaying appealing to FMC:
After I was declined by RRT, I felt pessimistic. I thought there was no way out for my application. I was told by others that the fees for appealing to FMC was very expensive and I couldn’t even afford the fee to get a solicitor. Because of fearing to return China, I chose to stay in Australia illegally without a visa. Last month I heard that one friend who has the similar experience as me appealed to FMC and his case then was reviewed by RRT. Finally he got his protection visa. He told me Australia is a democratic country, the different levels of governments are not autocratic and corrupt as China. If you have solid reason, the government will provide protection to you. His case encouraged me very much. I then decided to appeal to the Federal Magistrates Court.
The Minister’s representative did not require the applicant to enter the witness box to verify these assertions, and did not seek to cross‑examine him upon them. I shall therefore assume their truth.
In his oral submissions, the applicant explained that he had discussed the Tribunal’s decision with his migration agent, but decided that he could not afford to pay her the amount she required to assist him to appeal. He also told me that he felt disappointed and discouraged from appealing, because the Tribunal and the Department had not believed him. He said that this attitude changed after he heard that other people had successfully appealed, and also when his wife encouraged him to do so.
I have considered all of these explanations. I do not consider that in themselves they provide a reason “in the interests of the administration of justice” for overlooking a relatively substantial delay. I might understand why the applicant initially made a choice not to apply to the Court, and then changed his mind, but this is not conduct which provides an acceptable reason for waiving a time limitation. The time limit provided by the Migration Act has been inserted to require people not to delay making a decision about exercising their right to challenge the validity of a Tribunal decision, and there is a general public interest in such time limits being respected in relation to public administration (see Commonwealth of Australia; Ex parte Marks [2000] HCA 67, (2000) 177 ALR 491 at 495‑496).
The absence of a fully acceptable explanation for delay does not necessarily lead to the refusal of an extension of time (see SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]). It is, however, a significant factor to take into account in the present case.
The other significant factor in the context of the present case is whether the applicant has pointed to arguable grounds of review in his substantive application. The application was set down today for a final hearing concurrent with the application for extension of time. For reasons which I explain below, I have formed a clear opinion that there is not sufficient merit in the substantive application which would, itself, provide grounds for extending time. In my opinion, there are no other factors which allow me to extend time, when weighed in balance with the whole circumstances.
I must therefore dismiss the application as incompetent.
My reasons for concluding that the substantive application lacks merit arise from the formulation of the grounds of application, and my inability unaided by any legal submissions or arguments to identify any arguable ground of jurisdictional error.
The application contains the following grounds:
1.RRT considered my case unfairly. They doubt my claim without substantive evidence.
2.Procedural Fairness has been denied by RRT.
3.RRT did not consider my situation in China. I will be put in jail if I go back.
The allegation in Ground 1 that the case was considered “unfairly” is not explained. If unfairness in the nature of actual or apprehended bias is alleged, then there is no evidence to give substance to such an allegation.
If procedural unfairness is alleged, as it is expressly in Ground 2, then such an allegation is unexplained by the applicant’s documents and submissions, and I am unable to identify any procedure required by law which was not followed by the Tribunal. As I have explained above, I found no material error in its application of procedures under ss.424A(1) and 424AA.
If Ground 1 is a challenge to the fairness of the reasoning of the Tribunal, as I am inclined to think it probably was intended, then I am unable to identify any argument presented by the applicant that does more than argue with the outcome and merits of the Tribunal’s reasoning. However, in my opinion that reasoning was logical, and was well open to the Tribunal on the evidence which was before it.
Contrary to Ground 3, in my opinion, the Tribunal patently did consider all of the applicant’s evidence and claims to fear persecution in China.
The applicant made a number of specific criticisms in his written statement, in particular, criticising the Tribunal’s reliance upon his inconsistencies about transporting bibles during his 2007 visit, about its treatment of a witness statement, about its treatment of his inconsistencies about his claims to receive remuneration from the church, and about its rejection of his explanation for returning to China.
These are matters which, in my opinion, the Tribunal’s decision shows that it fully addressed the relevant evidence. I am not persuaded that any of the applicant’s criticisms have identified particular unreasonable or illogical reasoning, or conclusions which were not open on the evidence, so as to give rise to jurisdictional error under principles of jurisdictional unreasonableness, as recently considered in the High Court and Federal Court (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159, and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48).
Moreover, the Tribunal’s decision on credibility was supported by many other points identified by the Tribunal, and any errors in the matters specifically addressed by the applicant in his written and oral submissions would not, in my opinion, independently provide jurisdictional error.
After considering all of the material, in my opinion no arguable jurisdictional error has been raised by the application, so as to assist my discretion to overlook the delay in bringing the application.
For all the above reasons, I have therefore concluded that an extension of time should be refused, and the application should be dismissed as incompetent.

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

Date: 2 March 2011