SZQMU v Minister for Immigration
[2012] FMCA 87
•20 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 87 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – no satisfactory explanation for delay – no merit to grounds in substantive application – extension of time refused – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 424AA, 425, 476, 477 |
| SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZQMU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1678 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 February 2012 |
| Date of Last Submission: | 10 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made on 3 August 2011 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $3,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1678 of 2011
| SZQMU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 3 August 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 30 April 2010, to affirm the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 9 September 2009 and applied for a protection visa on 23 October 2009 (see Court Book – “CB” – CB 1 to CB 29 with annexures).
Claims to Protection
The applicant’s claims to protection were initially set out in a statement annexed to his protection visa application (CB 29). He claimed that, in 1998, following a deterioration in his wife’s health, he and his wife began to practice Falun Gong twice a week and to recommend the practice to others. Following the government ban of Falun Gong in 1999 they could only practice secretly, and worried that they may be found and detained as they had seen occur to other practitioners.
The applicant claimed that in August 1999 he was detained for (variously) 3, 6, or 7 days on suspicion of organising Falun Gong activities. He claimed to have been interrogated for 3 days during which time he was hit, and then forced to sign a “guarantee”. He was then sent “to have brain wash”.
In June 2007 someone from the Falun Gong organisation told the applicant that the government might charge him. He paid money to get a visa to come to Australia to apply for protection.
The Delegate
The applicant was invited to attend an interview with a delegate of the respondent Minister on 11 January 2010. He did not attend (CB 39).
In the absence of such an interview, the delegate was unable to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason, or that the applicant was a person to whom Australia owed protection obligations (CB 39). The delegate refused the grant of a protection visa (CB 39).
The Tribunal
The applicant applied for review by the Tribunal on 15 February 2010 (CB 40 to CB 43). He was invited to attend, and attended before the Tribunal on 7 April 2010.
The Tribunal found that the applicant’s claims “lack credibility and cannot be accepted” ([107] at CB 61). It noted inconsistencies between the applicant’s evidence before the Tribunal and that given to the Minister’s department, and between the applicant’s evidence and country information ([107] at CB 61, [108] to [116] at CB 61 to CB 62, [120] to [122] at CB 63, [124] at CB 63). The Tribunal found that the applicant was, and is, not a Falun Gong practitioner ([116] at CB 62), and disregarded his practice in Australia pursuant to s.91R(3) of the Act ([125] at CB 64). The Tribunal found the applicant was “manufacturing his evidence as he gave it and would forget contradictory statements he had made previously” ([124] at CB 62).
The Tribunal further found that the applicant’s lengthy delay in leaving China once having obtained a passport was “not indicative of someone who had been subject to persecution, feared persecution in the future and wished to leave China for his own protection” and did not accept the applicant’s explanation for the delay ([117] to [119] at CB 62 to CB 63).
Ultimately, and on consideration of the evidence as a whole, the Tribunal found that the applicant was “not a witness of truth and was prepared to fabricate his claims to give himself the profile of a refugee ([124] at CB 63).
The Tribunal was not satisfied there was a real chance the applicant would be at risk of persecution if he were to return to China ([127] to [128] at CB 64), and concluded that he did not have a well-founded fear of Convention-related persecution ([128] at CB 64). The Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa ([130] at CB 64).
Application to the Court
The application to the Court is in the following, unparticularised, terms:
“1. In making the decision the Refugee Review Tribunal affected a jurisdictional error.
2. The Refugee Review Tribunal acted in breach of section 424A of the Migration Act 1958.
3. The Refugee Review Tribunal failed to determine whether the applicant faces a real chance of [sic]”.
Before the Court
At the hearing of this matter the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr O Jones appeared for the first respondent.
The applicant stated that at the Tribunal hearing in 2010 he was very nervous and that he felt the Tribunal member had a bias towards either Chinese people, or himself. He felt this through the way that she was looking at him.
The applicant confirmed that, although he had previously requested access to the Court’s “RRT Legal Advice Scheme”, he took no action to contact, or consult, the lawyer assigned to him. He confirmed that he had received relevant correspondence from the Court’s registry.
Extension of Time
Section 477(1) of the Act provides that applications to the Court of this type must be made within 35 days of the date of the Tribunal’s decision. In the current case the Tribunal’s decision was made on 30 April 2010. The application to the Court was made on 3 August 2011. The application is therefore some 15 months out of time.
The Court does have discretion, upon application, to extend this time limit if it considers it to be in the interests of the administration of justice to do so (s.477(2)).
The applicant has made such an application (s.477(2)(a)), and gave as the sole reason for the delay that he did not know that he had a right of “appeal” to the Court. This was not put in any evidentiary context.
I have considered, in a number of cases, the elements relevant to consideration of the exercise of the discretion to extend time (see, for example, SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23]):
1)The extent of the delay and the reason for the delay.
2)Whether there is any merit in the application.
3)Whether there is any prejudice to the respondents.
4)The impact on the applicant.
5)The interests of the public at large.
6)The Court’s discretion itself.
The extent of the delay is considerable. The sole reason for the delay advanced in the application is that the applicant did not know that he could “appeal” the Tribunal’s decision. In circumstances where the applicant had the opportunity presented to him to obtain advice as to how to go about putting evidence before the Court, this untested assertion now is not a satisfactory explanation for the delay.
The applicant told the Court that a “friend” drafted his application to the Court. Whether the friend was in a position to tell the applicant about the time limit remained unexplained.
The Grounds of the Substantive Application
In any event, as the Minister submits, whatever view is taken of this untested assertion, the reason for not exercising the discretion in favour of the applicant in this instance is that there is no merit in the grounds raised, nor do the circumstances presented by way of the material in the Court Book reveal any possible legal error on the part of the Tribunal.
Ground one is a mere unparticularised assertion of jurisdictional error on the part of the Tribunal. The applicant claimed before the Court that at the hearing he “felt” the Tribunal member was biased against “Chinese people”, and himself. This was said to be because of the Tribunal’s “facial expressions”.
Such an allegation, of course, is a serious matter. This is not just some mere assertion of legal error, but jurisdictional error arising out of a challenge to the Tribunal member’s integrity. As is often said, given this circumstance, such allegations need to be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) per Gleeson CJ and Gummow J at [69] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
In the current case, the applicant has brought no evidence whatsoever to indicate, let alone establish, bias on the part of the decision maker. But even if his statement were to have been put before the Court in some appropriate evidentiary context, on its own it is a long way from establishing any indication that the Tribunal member had some pre-existing unfavourable attitude towards Chinese people, or the applicant, such that the Tribunal did not bring an impartial mind to the consideration of the merits of his claims to protection.
For that matter, nor can it be said that the well-informed lay observer would, or in the circumstances even could, reasonably apprehend that the Tribunal member did not bring an open mind to the hearing, and more generally to the conduct of the review.
The applicant has brought no evidence to the Court (despite the opportunity afforded to him) as to what he says occurred at the hearing. In these circumstances the Tribunal’s account remains unchallenged.
It is not open to this Court in these circumstances to make assumptions as to what may otherwise be said to have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
This account reveals that the Tribunal did raise with the applicant its concerns with his evidence and claims. In particular the inconsistencies in his various factual accounts of past events in China (see [53], [58], [68], [72], but in particular [81] – [89] and [94]). Further, the delay between when he obtained his passport (July 2005) and when he travelled to Australia (September 2009) (and therefore this being inconsistent with a fear of persecutory harm). Even further, the relative ease with which he passed through border control checks in China and his claim to fear persecutory harm from the Chinese authorities ([36] – [38] and [91]). Finally, it raised its concerns about the lack of knowledge about Falun Gong when invited to speak about his faith and practice in this regard ([92]).
None of this reveals bias or the apprehension of bias. The Tribunal was simply fulfilling its procedural fairness obligations to the applicant arising from s.425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”)).
But even if the Tribunal had arrived at some preliminary view as to the applicant’s credibility, which it then later allowed to inform its assessment, this, on its own, would not reveal legal error. The principles of natural justice (which of course includes the rule against bias) do: “… not require the absence of any predisposition or inclination for or against an argument or conclusion” (Jia Legeng at [72]). It is rather a closed mind, or one not open to persuasion, which would be of concern here.
The Tribunal considered all of the applicant’s claims. That is, all claims expressly made and clearly arising in the circumstances presented.
No jurisdictional error is revealed here (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).
That the Tribunal formed an adverse view of the applicant’s credibility, in the circumstances, was an exercise within jurisdiction. The Tribunal made findings of fact reasonably open to it and for which it gave cogent reasons. Findings on credibility are in this sense findings of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
Ground two asserts a breach of s.424A of the Act. No particulars are provided. The applicant said nothing about this before the Court. Just what information the Tribunal failed to put to him remains, in this sense, a mystery.
In any event, no breach is evident. The Tribunal’s adverse views of the applicant’s evidence are, of course, not “information” for the purposes of s.424A(1). The Tribunal did rely on written material submitted with the protection visa application, the applicant’s evidence to it and country information. All are exempt from the obligation in s.424A(1) (s.424A(3)(ba), (b) and (a) respectively).
In any event, even if any such obligation can be said to have arisen, the Tribunal’s use of the facility available through the mechanism of s.424AA was sufficient to engage s.424A(2A) and thereby discharge any obligation pursuant to s.424A(1) (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and see [81] – [94] of the Tribunal’s decision record).
The third ground is incomplete. What the applicant “faces a real chance of” remains known only to the “friend” who drafted the application.
If the “friend” meant that the Tribunal failed to determine that the applicant faces a real chance of persecution or serious harm on return to China, then such a complaint must fail.
The Tribunal plainly understood the correct relevant question arising on this application, and the correct test for determining whether the applicant was owed protection as a “refugee”, as that term is understood (Art.1A(2) of the Convention) ([9] – [18] of the decision record). There is nothing in the Tribunal’s subsequent analysis to show that the Tribunal misunderstood or misapplied the test.
The relevant statutory scheme requires the Tribunal to reach a requisite level of satisfaction that the applicant meets the definition of “refugee” such that the protection visa must be granted (s.65 and s.36(2) of the Act. See also SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In the current case the Tribunal was unable to reach this satisfaction. It made findings probative of the material before it, and for which it gave reasons.
No error is revealed.
In all the circumstances the applicant’s (probable) third ground has no merit. It merely challenges the Tribunal’s findings and conclusions. It does not really assert jurisdictional error.
Conclusion
Given the attack on the Tribunal member’s personal integrity in this case, it is important to note that this Court has seen before it many Tribunal decision records. This Tribunal’s account of the hearing contains indicators of balance and restraint. The Tribunal did no more than “sufficiently indicate” (SZBEL at [47]) to the applicant the concerns with his evidence. That the applicant chose to “read” facial expressions as being adverse to him can only be seen, in the circumstances, as a diversion, or an inability to see, the obvious inconsistencies in his claims.
In any event, and in all, therefore, it is not in the interests of the administration of justice to extend time for the making of the substantive application. In this circumstance this application is not competent and should be dismissed. I will make orders accordingly.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 February 2012
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