SZRLE v Minister for Immigration
[2013] FMCA 193
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLE v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 193 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. PRACTICE & PROCEDURE – Application for extension of time to bring proceedings – relevant considerations. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, failed to consider the evidence and reached an incorrect conclusion. |
| Migration Act 1958, ss.474, 477 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 941 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 March 2013 |
| Date of Last Submission: | 15 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application for an extension of time to bring the proceedings be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 941 of 2012
| SZRLE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia on 1 May 2011. On 11 July 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in China because he had been involved in land disputes with his village committee. On 22 August 2011 his application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The applicant seeks an extension of time within which to bring this proceeding. For the reasons which follow, that application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to his protection visa application:
a)in China, villagers are eligible to apply to their village committees for “house land” when their children attain eighteen years of age or when they marry;
b)he had two sons and had applied for land when his elder son turned eighteen but was refused. When his second son turned eighteen he went to the village committee many times but they refused to grant him land because his son was studying away from home;
c)his elder son was married and lived with him;
d)after nine years he could not bear it any longer and went to argue with the village chief. He told the chief that he would appeal to higher government authorities if his sons continued to be refused land. The chief’s son then turned him out of the house. He was so angered by this that he had a fight during which four people broke his left leg;
e)the village chief called the police who detained him for half a month for disrupting social security [sic]. He received treatment for his injuries the following day. Whilst in detention he was forced to learn village laws and regulations and to admit his mistakes. He was also forced to write a letter promising that he would not make the same mistakes again;
f)he was released on 21 June 2009. After his release the village chief told him that he would break his other leg if he continued to ask for land or appeal. The chief said that he would deprive him of any village welfare in the future;
g)he visited several law offices but none of them wanted to take the risk of dealing with his case;
h)a neighbour told him that he had to give the chief RMB50,000 to obtain house land but he could not reconcile himself with giving the chief money for land that should have belonged to him; and
i)he did not want to return to China which is corrupt and has no human rights or fairness.
The applicant repeated these claims at his departmental interview on 22 August 2011 and said that the visit to the village chief had occurred on 6 June 2009.
At the Tribunal hearing on 13 January 2012 the applicant made the following additional claims:
a)his older son had turned eighteen in 2001 and his second son turned eighteen in 2004. They had both resided away from home while attending university. His elder son returned to live with him after graduating and was married with a child. His second son returned to live with him for a while after completing university but then moved to another city. His second son would return to the village when he was older, perhaps when he was fifty years old;
b)even though it was his sons who were entitled to the land, it was his responsibility as a parent to request it for them;
c)when his sons were away from home studying, his application was refused because his sons were not living in the village. On another occasion his application was refused because only one of his sons was living in his home;
d)the only way to get land was to pay a bribe. The local officials had to pay bribes to higher officials and so they had to obtain bribes from the villagers in order to afford to pay bribes themselves;
e)he had gone to the town level government about forty times. On some occasions there was no one there or the person in charge was not there. On other occasions he left his contact details but was not contacted;
f)on the last occasion he went to the town level government he saw the person in charge and told him that his application was being denied because he refused to pay a bribe. The town official did not say anything in response to this. He also mentioned bribery to some “good town level officials” and they just smiled;
g)he complained to the county level government about four or five times and told them that his sons were not getting land because he refused to pay a bribe. He was told that there would be an investigation but nothing happened. When he returned to enquire about the investigation the officials told him that they were busy and that they were not sure whether there had been an investigation;
h)the last appeal he made to the city government was in 2009. He did not mention bribery. The city government told him that it was not its business and told him to return to his village;
i)he planned to continue to apply for the land from Australia; and
j)if he returned to China he would be gaoled because he would continue to fight for land for his sons. His human rights had been violated because he could not get what he was entitled to.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted all of the applicant’s claims about the events which had occurred to him in China but did not accept that those events had occurred for Convention reasons. In this regard:
i)the Tribunal noted that the reasons which the village committee gave to the applicant for the refusals to grant him land were first that his sons were not living in their home village and then that the only son who was living there could be accommodated in the applicant’s home. The Tribunal found that these reasons were not related to any Convention ground. Whilst accepting that the actual reason the applicant’s applications were refused was that he would not pay a bribe, the Tribunal found that that did not amount to a refusal for a Convention reason either. Given his evidence that the village committee sought bribes so that they could afford to bribe higher officials, the Tribunal found that the applicant was not specifically targeted by the village committee for a Convention reason;
ii)the Tribunal found that the evidence before it did not suggest that the injury or harm which the applicant suffered when he went to the home of the village head had been for a Convention reason but rather that he had been injured when he was asked to leave the premises and became involved in a fight. The reason given for the applicant’s subsequent detention, that he was guilty of disrupting public order, was consistent with those circumstances and was not for a Convention reason. The Tribunal found that the evidence before it did not suggest that the police’s failure to provide medical treatment for the applicant’s injuries had been for a Convention reason. The Tribunal also found that the applicant did not claim, nor did the evidence indicate, that the requirement that he learn village laws and regulations, admit his mistakes and promise not to repeat them was for a Convention reason;
iii)the Tribunal noted that despite years of making applications for land, the applicant had not been threatened by the village head or physically harmed or detained before the incident in June 2009. The Tribunal thus found that the actions of the village head following the applicant’s release from detention were a reaction to the June 2009 incident and not motivated by a Convention reason; and
iv)the Tribunal found that the applicant’s complaints and appeals to higher authorities were not unsuccessful for a Convention reason. The Tribunal noted that the applicant had not alleged that he had been harmed by the higher authorities for complaining that his applications had been refused because he refused to pay a bribe. Rather, the applicant gave evidence that there was little reaction from the higher authorities to his suggestion that bribery was an issue. The Tribunal also found that the applicant was not imputed with any anti-government opinion by virtue of his complaints and appeals to the higher authorities; and
b)the Tribunal found the applicant’s claim that he would continue to apply for house land if he returned to China to be exaggerated given that it would be entirely futile. The Tribunal found that even if he did so, there was no real chance that he would be persecuted in the reasonably foreseeable future given that he had not been persecuted in the past for a Convention reason for repeatedly applying for land or for appealing or complaining to higher authorities.
Application for extension of time
Section 477 of the Act provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates 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 Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates 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 Magistrates 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)…
(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); …
As the Tribunal’s decision was dated 15 March 2012, the applicant had until 19 April 2012 to commence these proceedings. However, the application was not filed until 30 April 2012 and so it was brought out of time.
The consequence of this is that the Court must now consider the two questions posed by s.477(2).
Written application for extension with reasons
In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application and affidavit of 3 July 2012 specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The next matter to be considered is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. Although the matters which may be relevant to this consideration are not confined, in the circumstances of this case I consider the relevant questions to be whether the applicant has a satisfactory explanation for the delay in the commencement of these proceedings and whether the allegations made in the application have reasonable prospects of success.
Does the applicant have a satisfactory explanation for the delay?
The essence of the affidavit sworn or affirmed by the applicant on 3 July 2012 was that he first sought to make an application to the Court on 18 April 2012 and also sought a reduction in the filing fee by reasons of financial hardship, a request which was not granted until 30 April 2012, the date on which the application was filed. Although the applicant was cross-examined on this evidence, the Court’s correspondence file contains a form filed by or for the applicant seeking a reduction of Court fees on the basis of financial hardship. The applicant’s affidavit verifying that application was sworn or affirmed on 15 April 2012. Below that affidavit appear certain requisitions made by the Court’s registry and signed by a registry officer on 18 April 2012. It appears from the form that the requisitions were adequately addressed and that on 30 April 2012 a registry officer approved the application for a reduction in the filing fee. Information contained in this form was disclosed by the Court to the Minister’s solicitor before the applicant concluded his oral evidence.
I accept that the applicant sought to file his initiating application before the time limit expired. I also infer, given the nature of the registry officer’s requisitions and the work required to satisfy them, that the time taken by the applicant in that process was not unreasonable. As the applicant could not file his application with a reduced filing fee until he satisfied those requisitions, I am satisfied that the delay from 18 to 30 April 2012 was not unreasonable.
I am also willing to accept the significance to the applicant of a reduced filing fee. Although the applicant appears to have used the services of his migration agent to at least make the application for a reduced filing fee, that does not lead me to conclude that it was unreasonable of him to seek such a reduction. In his cross-examination, the applicant described himself as a casual worker with irregular employment.
In those circumstances, I find that the applicant has provided a satisfactory explanation for his delay in commencing the proceedings.
Reasonable prospects of success
The next question to be considered is whether the application has reasonable prospects of success. As a result, it is necessary to consider the merits of the substantive part of the application which the applicant has brought to the Court.
In the application commencing these proceedings the applicant alleged:
1.RRT have discrimination on me, failed to consider my real situation and country’s situation.
2.RRT failed to comply with Refugee Regulation.
I belong to a member of a social group, I was mistreated and persecuted.
Tribunal discriminated against applicant
The first ground of the application appears, amongst other things, to allege that the Tribunal was biased against the applicant. At the hearing of this application the applicant made a submission to the effect that the Tribunal was biased, saying that it represented the government and did not believe him. However, the applicant did not identify whether his allegation was that the Tribunal was in fact biased or that a fair-minded lay observer might reasonably have apprehended the possibility that it was. In the absence of a properly articulated and particularised allegation of bias, the Court should not find an assertion of this sort to be made out.
In any event, the only evidence touching on issues of this sort is what was contained in the Court Book which was exhibit A and, in particular, the Tribunal’s decision record reproduced there. Consideration of that material does not support a conclusion that a finding of actual or apprehended bias should be made.
Tribunal failed to consider the evidence
The remaining aspects of the first allegation appear to allege that the Tribunal failed to consider all the evidence before it. Again, no particulars of the allegation have been provided. In those circumstances, the allegation has not been made out.
Tribunal failed to find that the applicant was entitled to protection
The second ground of the application alleged that the Tribunal erred in concluding that the applicant was not entitled to protection even though he belonged to a particular social group and had been mistreated and persecuted. Once more the applicant has not provided particulars of the allegation, relevantly, details which would identify the particular social group of which he was supposedly a member. The applicant did not expressly submit to the Tribunal that he was a member of a particular social group and it is not apparent that a claim of that sort could be tolerably clearly discerned from his evidence and submissions to the Tribunal. Consequently, to the extent that the applicant says that he was a member of a particular social group, I conclude that no such claim was made and that the Tribunal did not err by failing to consider a claim of that sort.
The Tribunal did consider the claims which the applicant did make, but having done so, concluded that he did not have a well-founded fear of persecution in China for a Convention reason. The applicant might disagree with that conclusion, but even if a different conclusion was reasonably open on the evidence, the Court is not permitted to substitute its own view on the merits of the applicant’s visa application for that of the Tribunal’s. All it may do is set the Tribunal’s decision aside and remit the matter to the Tribunal to be determined in accordance with law, should a jurisdictional error be identified. I am not persuaded that the Tribunal’s decision is affected by jurisdictional error by reason of the matters alleged in the second ground of the application.
Conclusion
Although the applicant has a satisfactory explanation for his delay in commencing the proceedings, I have concluded that the substantive part of the proceedings has no reasonable prospects of success because the applicant has not identified any jurisdictional error affecting the Tribunal’s decision. In those circumstances, I conclude that it is not in the interests of the administration of justice to extend time to commence the proceedings.
Consequently, the application for an extension of time will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 27 March 2013
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