SZRBS v Minister for Immigration
[2012] FMCA 743
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 743 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – application for an extension of time. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425, 477 |
| BZABK v Minister for Immigration and Citizenship and Another [2012] FCA 774 Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZRBS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 109 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant's application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 109 of 2012
| SZRBS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By application filed on 18 January 2012 the applicant sought judicial review of a decision of the Tribunal dated 1 June 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act1958 (Cth). His application was brought over seven months after the date of the Tribunal decision. Section 477(1) of the Migration Act provides that such an application must be made to the court within 35 days of the date of the decision.
Under s.477(2) the court may by order extend that 35 day period as the court considers appropriate if an application has been made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to grant such an extension of time and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this case the applicant stated in his application in relation to the extension of time:
I do not believe that my application would be reviewed by the court fairly, as I have deeply hurt (sic) by the Tribunal’s unfair decision. Therefore, I do not lodge my application with the court on time. I am in custody at the immigration detention centre now; and I face to be sent back to China. However, I really dare not to return to China, because I do have a well-founded fear of persecution by the Chinese government owing to my protest against the Communist dictatorship. So, I have to seek a judicial review.
As the applicant has made an application in writing indicating why he considers the grant of an extension of time for making the application to be necessary in the interests of the administration of justice, I must consider whether I am so satisfied. I note that the parties have had the opportunity to file all the material they seek to rely on and to address the grounds on which the applicant relies.
As Smith FM stated in SZNZI v Ministerfor Immigration & Anor [2010] FMCA 57 at [11] the considerations which might bear on the discretion under s.477(2) of the Migration Act are “unconfined”. His Honour identified two critical considerations: whether an explanation “reasonable to the circumstances” has been provided for the delay and whether there is any merit in the substantive application (see SZQLG v Minister for Immigration and Citizenship & Anor [2011] FMCA 791 and SZNZU v Minister for Immigration & Anor [2010] FMCA 197).
In this case, the delay was over six months after the expiration of the 35 day period. That is a considerable delay. It occurred in circumstances where there is no suggestion from the applicant that he did not have actual knowledge of the Tribunal decision on, or at least shortly after, the date of the decision on 1 June 2011. There is also no suggestion that he was not aware of the relevant time period for filing an application. Indeed it appears from his application that he initially chose not to file an application, believing the application would not be reviewed fairly because he was “hurt” by the Tribunal decision. He has not explained why it took until 18 January 2012 to file his application. The explanation provided by the applicant is not a satisfactory explanation for the full extent of the delay.
The extent of the delay must be balanced against the reasons given for the delay and must be seen in the context of all the other circumstances, including, in particular, the merits of the substantive application. The longer the unexplained delay, the stronger the argument on the merits would have to be to grant an extension of time.
Before turning to the merits of the substantive application, I note that I have also had regard to the absence of any prejudice to the respondent in circumstances where the case has been argued fully today, the impact on the applicant of the refusal of an extension of time (including in relation to appeal rights), the interest of the public at large in the prompt resolution of these matters and the court’s discretion itself.
The applicant has taken no steps to file an amended application, further affidavit evidence or written submissions. I have borne in mind that he unsuccessfully sought an adjournment today on the basis of undocumented bad health and that he is in detention. However he has had ample time to put before the Court any material in support of his application beyond his initial application and a copy of the Tribunal decision.
Turning then to the merits of the substantive application, there are two grounds in the application. The first ground is:
The Tribunal failed to give me a fair opportunity to comment on or respond to the information that the Tribunal used to make its decision. I may accept that the Tribunal gave me some of information used in making it decision at the Tribunal hearing. But, the Tribunal failed to ensure me to clearly understand the information, and particularly the Tribunal failed to ensure me to understand that the information would be used as evidence to affirm the decision not to grant me a protection visa. Furthermore, the Tribunal failed to make me understand genuinely that I should have a fair opportunity to comment on or respond to the information.
The language of this ground would seem to suggest that the applicant seeks to rely on s.424A of the Migration Act. However there was no information relied on by the Tribunal or apparent on the material before the Court such as to trigger the operation of s.424. Rather, in reaching an adverse credibility finding, the Tribunal had regard to inconsistencies, implausibilities and inadequacies in the applicant’s evidence and the fact that claims were made for the first time at the Tribunal hearing. Any information relied on by the Tribunal was within the s.424A(3) exceptions. Insofar as the applicant seems to suggest that there was some information from a third party, there is no indication in the Tribunal reasons for decision that there was any reliance on independent country information and, in any event, that would be within the exception in s.424A(3)(a).
In order to consider this ground in more detail it is necessary to have regard to the applicant’s claims and the Tribunal decision. The applicant’s claim for a protection visa was accompanied by a written statement in which he claimed to have opened a convenience store in December 2008. He claimed that from September 2009 he had been the victim of extortion demands from a named person. He claimed he reported the extortionist to the Public Security Bureau (the PSB), but that no action was taken and the extortionist and others returned, physically assaulted him and threatened him if he reported the matter to the police. The applicant also claimed that there were threats of extortion leading up to the period of Chinese New Year and that he suggested, and other stallholders agreed, that they would close their shops over this period.
In his initial claims, the applicant claimed that on 6 February 2010 he was “suddenly arrested” by the police, accused of organising an “anti-government” storekeepers’ strike and destroying public security, and tortured and mistreated by the police. He claimed he was detained for some three months, mistreated, and suffered illness, that his friends and family arranged a bribe to obtain his release, that his property was confiscated and that since his departure family members had been subjected to investigation and questioning by the police. He elaborated on and added to his claims at an interview with the delegate. His application was refused.
The applicant sought review by the Tribunal and attended a hearing. The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal reasons for decision. The Tribunal concluded that there was no credible evidence that the applicant had a well-founded fear of persecution on any Convention ground. The Tribunal affirmed the delegate’s decision.
In its reasons for decision the Tribunal outlined a number of concerns that it had about the applicant’s credibility. The Tribunal’s findings have to be read in conjunction with its detailed account of the issues that it raised with the applicant at the hearing, including concerns in relation to his credibility.
First, the Tribunal raised the omission of the claims about the street demonstration from the written protection visa application. This claim was that rather than close their shops the store owners decided to stage a protest at which the applicant was arrested. The Tribunal recorded that it put to the applicant that this was a significant event and that if it had occurred it would have been mentioned in his application. The Tribunal recorded the applicant’s explanation for his failure to make that claim initially. It found his explanation for the inconsistency in his accounts and the omission to be unsatisfactory. In its findings and reasons the Tribunal did not accept that the applicant did not include all the details in his protection visa application as it was a “general account” and that he would put forward more information at a later stage. The Tribunal had regard to the fact that in his protection visa application the applicant provided a significant amount of detail about the events on which his claim was based. It did not believe that he thought he did not need to provide such information, although it did accept that an applicant would not put every detail of his account in a protection visa application. However the Tribunal found it inconceivable that the applicant would fail to mention in his written account such a “significant and crucial event”, notwithstanding that he did mention it later when interviewed.
The Tribunal also had regard to the fact that the account put forward in the application gave the impression that the shopkeepers proceeded with the plan to close their shops temporarily and the applicant was arrested as a result. It found that this was “significantly different” from the claim the applicant put forward to the Tribunal and that there was no “satisfactory” explanation for this.
In its findings and reasons the Tribunal found it “implausible” that, as discussed at the hearing, the applicant did not ask the shop owners he approached about the problems caused by the extortionist and that they did not say whether they had complained to the police or had been assaulted by the extortionist.
The Tribunal also put to the applicant its concerns about his evidence about getting help for the problems caused by the extortionist. He had claimed that he had approached the Business Management Association. The Tribunal raised the issue of why it took so long for him to approach that agency and also asked him whether he had approached any other body for assistance.
In relation to these claims of approaching the Business Management Association, the Tribunal found it “implausible” that the applicant did so three months after the wholesaler who had encouraged him to buy the business suggested that course of action. It found his explanation that he thought he might be fortunate and the extortionist would stop coming and that he was scared he might be beaten to be unconvincing, particularly as he claimed that the visits from the extortionist had continued and that this was the only option presented to him by his associate who had brought him to the province in the first place. The Tribunal found it implausible that the applicant would have waited three months before seeing if the Business Management Association could help him.
At the Tribunal hearing it was also put to the applicant that, on his own evidence, the Business Management Association was involved with government. The applicant said it was different as it was an association for business. The Tribunal recorded this explanation and the applicant’s failure to make further inquiries. It found his claims in that respect to be implausible.
The Tribunal also recorded that it raised with the applicant its credibility concerns about his evidence about the purpose of the street demonstration and, in particular, the issue of why he would take the risk of protesting openly to try to influence the government in circumstances where he had said there was no point approaching any government agencies beyond the Business Management Association because they were all in collusion and no effective action would be taken.
The Tribunal found implausible the applicant’s claim that he did not make inquiries about any other agency to which he could complain considering “what was at stake for him”. It found that to not bother to make such inquiries but to stage a public protest so that the public and government officials walking past would learn about it and take action was “implausible and far-fetched”. The Tribunal did not accept the explanation that if more people knew about the problems during the protest that would have more influence on the government to take action in circumstances where the applicant had made clear his fear of the extortionist and would have known that staging such a protest would have placed him at a significant risk of harm from the extortionist or from the police.
The Tribunal found that if the applicant saw no purpose in making inquiries with any other agency because of collusion, it was implausible that he would take the risk of holding a protest in the expectation that the general public, government officials, and the media walking by would in some way be “incited to exert sufficient pressure” on the government to stop the extortion and to take action against officials and police allowing it to happen.
The Tribunal also put to the applicant its credibility concerns about his evidence about seeking help from the person who had encouraged him to buy the business. It put to him that as that person was profiting from his store, it was implausible that he would not have subsequently discussed with him the outcome of the meeting with the Business Management Association. The Tribunal considered the applicant’s explanation that he believed that it was the only help that the wholesaler could provide and no other suggestions had been made but did not accept that, given their business relationship, he would not have sought further advice or discussion.
It was these factors to which the Tribunal had regard in its findings and reasons and which led it to find that the applicant was not a witness of truth and that his evidence was not credible. The Tribunal accepted that the applicant had operated a convenience store business in a particular city, but found not credible his account of being extorted and beaten by a local criminal, staging a protest, being arrested, detained, maltreated, and released on condition of reporting to the police, as well as his claim that the police had continued to look for him and visit his wife and family. The Tribunal found there was no credible evidence before it that the Chinese authorities had any interest in the applicant as claimed.
The Tribunal accepted that the applicant had used another person’s passport to leave China and travel to Australia, but found no credible evidence for why he chose to depart China in that way. It did not believe his claims of using this means of leaving China because of his difficulties with the extortionist, being involved in a protest or arrest and maltreatment by the authorities.
It observed that the applicant advanced no claim to fear returning to China solely because of the use of someone else’s passport to travel and found no evidence that there was a real chance he would suffer persecution for a Convention reason for using someone else’s passport. The Tribunal affirmed the delegate’s decision.
In light of the Tribunal’s account of the hearing and its findings and reasons, it is apparent that there is no merit in ground one. As indicated, there was no information relied on by the Tribunal in making its decision that triggered the operation of s.424A of the Migration Act. The inconsistencies and implausibilities with which it was concerned arose out of the distinction between the applicant’s written protection visa application and his claims made to the Tribunal (not his oral evidence to the delegate) (see s.424A(3)(ba)). Information provided by the applicant himself for the purposes of the review did not have to be put to him for comment under s.424A (see s.424A(3)(b)). This was not a case in which there was an endeavour to comply with s.424A by reliance on the provisions of s.424AA.
More generally, there is no obligation under s.424A to put to an applicant concerns about his evidence arising from inconsistencies, gaps, defects, lack of detail or specificity, or the Tribunal’s conclusions in weighing up such evidence by reference to those shortcomings (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). In any event the Tribunal did put key inconsistencies and concerns to the applicant for his comment or response.
While the applicant did not expressly or by implication seek to assert a failure to comply with s.425 of the Migration Act, this is not a case in which it can be said that the Tribunal failed to comply with its obligation to put determinative or dispositive issues to the applicant in the manner discussed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. On the contrary, on the Tribunal’s account of the hearing it specifically raised with the applicant issues of concern in relation to his credibility. He had the opportunity to comment and the Tribunal took those responses into account in its reasons for decision. There is no merit in ground one.
Ground two is that:
The Tribunal displayed a complete lack of having basic knowledge about actual situation in China. His decision greatly relied on his own guess or assumption according to western people’s views. The Tribunal’s decision is completely wrong and unfair.
First, insofar as this ground may be seen as taking issue with the Tribunal’s use of independent country information, this was not a case which turned on independent country information. I note, in any event, the remarks of Callinan J in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 at [291]. The applicant does not identify any independent evidence that he gave to the Tribunal and which it failed to take into account. As set out above, the reason the applicant’s claim was not accepted was because of the Tribunal’s adverse credibility finding in respect of his underlying claims.
In oral submissions the applicant took issue with whether or not the detention and mistreatment of a person in the position he claimed he had been in and the maintenance of records about such a person would amount to persecution. He also contended that the Tribunal failed to raise its suspicions and doubts in relation to this issue with him. He claimed that if the police in China knew that he held a certain political opinion and was trying to disrupt harmony in society that would constitute persecution.
However the difficulty for the applicant in this respect is that the Tribunal did not accept his underlying claims about past events. It was on that basis that it found that he did not have a well-founded fear of persecution based on any Convention ground. The Tribunal decision did not turn on whether what the applicant claimed had occurred constituted persecution but rather on whether the circumstances which the applicant claimed had occurred had in fact occurred. The Tribunal’s findings in relation to credibility were open to it on the evidence before it for the reasons which it gave. Credibility findings are a matter for the Tribunal.
Insofar as ground two takes issue with the factual findings of the Tribunal, such complaint seeks impermissible merits review. This is not a rehearing and this Court cannot decide whether or not the applicant is a refugee. Ground two is without merit.
In all the circumstances, having regard in particular to the extensive delay, the unsatisfactory explanation for the delay and the absence of any merit in the grounds of review, I am not satisfied that it is necessary in the interests of the administration of justice to extend the time for making the application. The application for an extension of time should be dismissed.
Before I make the orders I will hear submissions in relation to the wording of the orders. The reason I raise the issue of the wording of the orders is because in BZABK v Minister for Immigration and Citizenship and Another [2012] FCA 774, Foster J took issue with the court making an order dismissing an application for judicial review as incompetent after dismissing an application for an extension of time. His Honour suggested that the preferable course was to make the order dismissing the application for an extension of time and an order for costs and leave the matter there. There was said to be no need to make an order dismissing the applicant’s application for judicial review.
RECORDED: NOT TRANSCRIBED
As indicated, the application for an extension of time should be dismissed. In framing the orders to be made in this case I have had regard to the remarks of Foster J in BZABK.
The first respondent seeks costs in the sum of $5,100. The applicant claimed that he should not have been unsuccessful before the Tribunal and on that basis should not have to pay costs. However the applicant’s belief in the unfairness of the Tribunal decision and that he should have succeeded is not a basis for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent.
However, having regard to the lack of complexity in this matter and doing as best as I can on the material before me, having regard to other matters of this nature I consider that a reasonable and appropriate amount is the sum of $4,500.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 27 August 2012
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