SZQMH v Minister for Immigration & Border Protection

[2014] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQMH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1574

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 477

Cases Cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant: SZQMH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 933 of 2014

Judgment of: Judge Emmett

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 933 of 2014

SZQMH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed 7 April 2014, was filed more than 530 days from the date of the decision sought to be reviewed.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit 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 Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3)  In this section:

‘date of the migration decision’ means:

(a)  in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

(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); or

(c)  in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

(d)  in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

1. The decision of the Refugee Review Tribunal (“the RRT”) is dated 23 October 2012. In the circumstances, the applicant’s application for judicial review to this Court, submitted on 7 April 2014, is 496 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

2. Pursuant to s.477(2) of the Act, this Court may extend the 35 day period if the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.

3. On 17 June 2014, the applicant attended a directions hearing before me. On that occasion, I explained to the applicant that in considering his application, the court would have particular regard to the explanation for his delay and the prospects of success of his application for judicial review.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that may flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicant confirmed that he wished to continue with the application for an extension of time to seek judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 7 July 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 7 July 2014.

6. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

7. The matter was set down for an interlocutory hearing for the application for an extension of time today.

8. My Chambers received a document, dated 29 May 2014, from the applicant, in which the applicant referred to economic reasons and his daughter’s illness as reasons for his failure to file his application within the 35 day period.

9. The applicant’s application for an extension of time is opposed by the respondent. The first respondent’s solicitor, Ms Stone, did not seek to cross-examine the applicant on his explanation for his delay. Ms Stone’s submissions in support of the first respondent’s opposition to the applicant’s application for an extension of time are based on the basis that there is no utility in the Court in granting such an extension as there are insufficient prospects of success for the applicant’s substantive application. 

10. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter. 

11. In support of his application for an extension of time, in relation to his explanation for the delay, the applicant maintained the explanation given by him in the document, dated 29 May 2014, relating to his financial circumstances and the illness of his child. 

12. The applicant confirmed that he relies on the grounds of his application filed on 7 April 2014, as follows:

    “Grounds of Application:

    1. The RRT failed to take into account evidence and information as a whole when it reached the finding that the applicant was not genuine Falun Gong practitioner. The RRT reached the finding largely based on the different knowledge level the applicant demonstrated at two RRT hearings.

    2. Based on this finding the RRT then concluded that the applicant was not a truthful witness and consequently denies his persecution claim as a whole without putting weight to any other evidence provided by the applicant or relevant country information. The investigation conducted by the RRT was affected by bias and subjective reasoning.”

13. Each of the grounds was in interpreted for the applicant and he was invited to say whatever he wished in support of the grounds and in support of his application in general. 

14. The applicant’s submissions to this Court were based on his disagreement with the findings and conclusions of the RRT.

15. I accept as accurate the first respondent’s summary of the applicant’s claims and the RRT’s decision, as follows:

    “The applicant’s claims:

    7. The applicant claimed to be a Falun Gong practitioner who was twice arrested, detained and physically mistreated in China.  He claimed that his mother was arrested and detained for months in 2006.  The applicant claimed that he was arrested by police when he went to inquire about her within weeks of her arrest and that at the end of 2007 he was arrested for the second time.

    The Decision of the Tribunal:

    8. The RRT rejected the applicant's credibility and all of his material claims.[1]

    8.1 The RRT relied in so finding primarily on inconsistencies in the applicant's evidence and claims, which corresponded to matters it put to the applicant in an invitation to comment purportedly pursuant to section 424A of the Act.[2]

    8.2 The RRT further relied on the applicant's approach to the Chinese authorities in Australia to obtain a passport, and his delay in applying for a protection visa.[3]

    9. The RRT further found any punishment occasioned to the applicant for reason of his illegal departure from China (by boat) would be pursuant to a law of general application not applied in a discriminatory way.[4]  Based on its findings of fact with respect to the applicant's Convention claims the RRT found the applicant was not owed complementary protection.[5]”

    [1] CB 161[109]

    [2] CB 162[112]-[116]

    [3] CB 163[117]-[119]

    [4] CB 164[125]

    [5] CB 165[126]

16. There is nothing on the face of the tribunal’s decision record to suggest that its adverse findings in respect of the applicant were not open to it on the evidence and material before it and for the reasons it gave. 

17. In relation to the applicant’s complaint in Ground 1 asserts that the RRT largely based its findings on the different knowledge level that the applicant demonstrated at two tribunal hearings, the first being an earlier and differently constituted tribunal hearing, held on 30 May 2011.

18. However, it is clear from the RRT’s decision record that the RRT did not listen to a recording of the previous tribunal hearing.  In particular the RRT stated that:

    “It is for that reason the tribunal has not listened to a recording of the hearing held on 30 May 2011.  The tribunal has, however, listened to a recording of the interview between the delegate and the applicant that took place on 7 February 2011.”

19. To the extent that the RRT had regard to discrepancies in evidence or information provided by the applicant to the delegate and evidence and information provided by the RRT, there is nothing to suggest that the RRT was not entitled to do so. 

20. The RRT’s rejection of the applicant’s claim to be a Falong Gong practitioner is based on adverse credibility findings. The RRT’s findings would appear to be open to it on the evidence and materials before it, including its adverse credibility findings. The RRT’s credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

21. Otherwise, the applicant’s complaints in ground 1 appear to be more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

22. To the extent that Ground 2 appears to suggest that the RRT was biased against the applicant, such an allegation must be dismissed. Moreover, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

23. Further there is no evidence whatsoever before this Court to support an allegation of bias or apprehended bias and a fair reading of the RRT’s decision record does not on its face suggest that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

24. In his affidavit in support of his application filed on 7 April 2014, the applicant asserts that he was denied “a fair investigation” in relation to his claims. 

25. If that claim is intended to be an assertion that the RRT should have investigated his claims further, no such obligation arises in respect of the RRT. There is no general obligation on the RRT to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

26. Whilst I make no final finding as to whether or not the decision is affected by a jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant. 

27. I have also had regard to the applicant’s explanations for his delay and find them to be entirely unsatisfactory.

28. In the circumstances I am not satisfied that it would be in the interests of justice to extend time to the applicant to seek a judicial review of the decision of the RRT, dated 23 October 2012.

29. Accordingly, the application for an extension of time to seek judicial review of the RRT’s decision should be refused with costs. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 21 July 2014