SZRSE v Minister for Immigration and Citizenship
[2013] FCA 213
•15 March 2013
FEDERAL COURT OF AUSTRALIA
SZRSE v Minister for Immigration and Citizenship [2013] FCA 213
Citation: SZRSE v Minister for Immigration and Citizenship [2013] FCA 213 Appeal from: SZRSE v Minister for Immigration & Anor [2012] FMCA 1007 Parties: SZRSE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1927 of 2012 Judge: BUCHANAN J Date of judgment: 15 March 2013 Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules 2011 (Cth), r 36.03(a)(i)
Federal Magistrates Court Rules 2001 (Cth), r 44.12(1)(a)
Migration Act 1958 (Cth), s 91R(3)Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 21 February 2013 Date of last submissions: 12 February 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Ms M Stone
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1927 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRSE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
15 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant is granted an extension of time in which to seek leave to appeal.
2.The application for leave to appeal filed on 27 November 2012 is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1927 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRSE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
15 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This judgment deals with an application for an extension of time in which to appeal from a judgment of the Federal Magistrates Court of Australia (“the FMCA”), given on 1 November 2012 (SZRSE v Minister for Immigration & Anor [2012] FMCA 1007). Because the FMCA dealt with the matter before it under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the decision of the FMCA was an interlocutory decision. Leave to appeal against the decision was therefore required to be sought within 21 days under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). Leave to appeal was not sought within the stipulated time. Rather, on 27 November 2012, the applicant filed an application for an extension of time and leave to appeal. The reason stated for not filing an application for leave to appeal within the required time was that the applicant thought the 21 days in which to make his application did not include weekends.
No prejudice can be (or was) claimed by the first respondent in relation to the failure to apply within the time prescribed by the Federal Court Rules. However, attention is still required to the question of whether the applicant should have leave to appeal at all. That question must be assessed in accordance with the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (“Decor”).
Procedural history
The applicant came to Australia from China in 2007 on a student visa. He did not comply with the conditions of that visa. He was issued with non-compliance notices on 17 August 2007, 7 February 2008, 8 April 2008 and 11 June 2008, as he had not commenced a course of study. His student visa expired on 15 March 2009. Although he then became an unlawful non-citizen, the applicant did not leave Australia. He was located on 3 April 2012 and detained. On 12 April 2012, he applied for a protection visa. That application was refused by a delegate of the first respondent on 30 May 2012.
The applicant applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. A hearing was held on 2 July 2012. The RRT found all the applicant’s material claims to have been untruthful. In particular, the RRT rejected claims that the applicant and his family were practising Roman Catholics in China who participated in the underground Church in China and had thereby come to the attention of Chinese authorities. The RRT concluded that the applicant would not engage in religious activities in the future if he were to return to China and he did not have a genuine fear of persecution on that account. The RRT disregarded, as it found it was obliged to do by s 91R(3) of the Migration Act 1958 (Cth) (“Migration Act”), the fact that the applicant attended church services in Australia. The decision of the RRT, given on 12 July 2012, affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant then applied to the FMCA for judicial review of the decision of the RRT. The grounds of the application, which was filed on 9 August 2012, were as follows:
1.I am a person to whom Australia has protection obligations.
2.The RRT member was racially prejudiced against me.
3.The solicitor recommended to me by RRT spoke in favour of RRT instead of protecting me.
The FMCA dealt with those grounds in the following way:
9.The first ground in the application simply repeats that the applicant claims protection. The Court cannot adjudicate upon that claim.
10.The second ground is an allegation of bias. There is no evidence before me to support that allegation. The applicant asserts that during the hearing, the presiding member suggested that the applicant was reciting learned events. That may well be so, and would be consistent with the Tribunal’s findings. The applicant appears to be concerned that he was vigorously tested about his claims. The Tribunal is, however, entitled to test an applicant’s claims with vigour. That does not demonstrate bias. The applicant asserts that the presiding member suggested during the hearing that the applicant may be afraid to return to China because of fear of his parents, who had supported him financially in his (intended) studies. I do not have a transcript before me of what occurred at the Tribunal hearing. I do not rule out the possibility that the presiding member may have said something along those lines. If it was said, it was an inference available from the applicant’s immigration history. However, no such inference figured in the Tribunal’s ultimate decision. There is no arguable case of bias on the part of the Tribunal.
11.The third ground is a complaint against the migration agent who had assisted the applicant. It appears that the agent had been allocated to the applicant on the basis that assistance would be provided at no cost to him. The court book discloses that the applicant’s agent advocated vigorously and competently on his behalf. There is no suggestion of fraud by the agent. An associate of the agent attended the hearing before the Tribunal. She appears to have made useful submissions on the applicant’s behalf.
12.The applicant asserts that his representative also stated at the hearing that he may be afraid to return to China because of fear of his parents. In the absence of a transcript, I am unable to verify that assertion. Even if such a statement was said, it would not support any claim of jurisdictional error on the part of the Tribunal. There is no explanation why no post-hearing submission was made by or on behalf of the applicant.
12.I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. From my own reading of the court book, no such assertion is available.
On the basis of the material and arguments before the FMCA, there can be no criticism of any of these findings.
The proposed appeal to this Court
The proposed ground of appeal to this Court, if leave to appeal is granted, is as follows:
1. The Court made a wrong judgment on my credibility.
This assertion provides no foundation for an appeal. No written submissions were filed by the applicant in support of his application for leave to appeal. However, at the hearing of his application the applicant made a very short statement through an interpreter which raised one matter for consideration. It concerned the basis on which the RRT rejected his reliance on church attendance in Australia as evidence of his commitment to the Roman Catholic Church and its teachings.
The RRT’s decision
Section 91R(3) of the Migration Act provides:
91R(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
That provision cast the burden of persuasion on the applicant to make good the proposition that he did not attend church services in Australia just to strengthen his claim to be a refugee. The RRT went further than saying it was not satisfied about that issue. It made a positive finding that the applicant started attending church services in Australia to support an application for a protection visa. The effect of the oral submission made by the applicant in the present proceeding was to challenge the foundation for that finding. He did so by asking, in effect, how the finding could be accepted when he commenced attending church services shortly after having arrived in Australia on a student visa and did not apply for a protection visa until years later. Before consideration is given to this argument, some further background is appropriate.
The application for a protection visa was supported by a statutory declaration from the applicant. The applicant said:
23.I started going to the Flemington Catholic church (located near the cross of The Crescent and Hornsey Rd) soon after I arrived at Sydney. I have been to almost every Chinese Mass at 11am on Sundays during my time in Sydney the Mass is about one hour long. When I was in Melbourne and Canberra, I went to the Chinese Mass near the places I lived. I sometimes went to the Flemington church when I was back in Sydney on weekends.
The delegate of the Minister who assessed the application for a protection visa did not believe that the applicant had been raised as a Christian in a Christian family in China. The delegate said further:
I note the applicant’s claims that since arriving in Australia he has attended a Catholic Church in Flemington on Sundays. I have formed the view that this was done for the sole purpose of strengthening his claims for protection and that the little knowledge the applicant displayed about Catholicism was acquired through such attendance. I therefore disregard this activity in consideration of his Protection visa application.
This finding appeared to give no attention to the fact that the applicant’s claimed attendance at church services in Australia long pre-dated any application for a protection visa.
The RRT decision, dated 12 July 2012, contained the following statements:
20.Electronic records before the Tribunal indicate that the applicant was granted a Student visa on 3 April 2007 and he entered Australia on 26 April 2007 as a holder of that visa. On 8 May 2007 the applicant was granted a further Student visa. The applicant’s visa expired on 15 March 2009 and the applicant remained in Australia as an unlawful non-citizen after that date. He was located by DIAC Compliance on 3 April 2012 and detained pursuant to s. 189 of the Act. The applicant applied for a protection visa on 27 April 2012.
…
22.The application provided with his application a declaration in which he made the following claims.
…
k.He started going to Flemington Catholic Church soon after arriving in Sydney. He had been to almost every Chinese Mass at 11 am on Sundays. When he was in Melbourne and Canberra, he went to Mass near the places where he lived.
…
23.The applicant attended an interview with the delegate on 21 May 2012. The following is a summary of his evidence during the interview.
…
i.The delegate noted that the applicant had been in Australia since 2007 and asked him why he did not apply for protection sooner. He said that when he was in the community, he had no information about protection visas and after detention he came to know that he could apply for protection. The delegate noted that when interviewed before detention, he told the DIAC officers that his intention was to apply for a student visa to be able to visit his parents legally and he made no mention of Christianity. The applicant said that at the time he was detained, he was afraid of being deported to China and a friend had already organised a student visa for him. His brain was ‘fuzzy’ and he mentioned that he wanted to apply for the student visa.
…
k.The applicant said that he has been attending a church in Flemington since about May 2007. He has been attending every Sunday. The applicant named the priests and described the Mass. The applicant spoke about Christian beliefs and practices.
…
25.The applicant sought review of the delegate’s decision on 6 June 2012. On 18 June 2012 the Tribunal wrote to the applicant pursuant to s 424A of the Act inviting his comments on, and response to, the information which the Tribunal considered would be a reason or part of the reason for affirming the decision under review. The Tribunal referred to the applicant’s migration history and the delay in his application for the protection visa. This was said to be relevant as it may indicate that the applicant did not have a genuine fear of persecution in China and it was also relevant to the assessment of the applicant’s credibility. It was also said to be relevant as it may indicate that the applicant engaged in religious activities in Australia for the purpose of strengthening his claims to be a refugee. The Tribunal also referred to some of the evidence given by the applicant in his Compliance interview and his interview with the delegate, which was also said to be relevant to the applicant’s credibility. The Tribunal required the applicant provide evidence of his attendance in church in Australia. The applicant did not respond to the Tribunal’s invitation within the prescribed time.
(Emphasis added)
At the hearing, it appears that the RRT tested the applicant about why it took so long to apply for a protection visa if he was, as he claimed, afraid of returning to China. The point of the inquiry, apparently, was to explore if the application for a protection visa was unrelated to a genuine fear of persecution. That was, of course, legitimate. The premise behind the inquiry appeared to be that the application for a protection visa was only rendered necessary by detention and was not genuine. However, that premise might call into question the proposition that the applicant set about shortly after arrival to bolster the claim which he made some years later. That proposition infers a high degree of calculation and forward planning, years in advance. Although the assessment of the merits of a claim for a protection visa is the province of the RRT, it must not proceed simply by guesswork or unfounded speculation. Its findings must have a logical foundation.
The RRT made a number of observations to the effect that the applicant could have found out about protection visas or would have known about them from his contacts in the Chinese community or from his student flat mates but these observations also, like the RRT’s questions to the applicant, appeared to concern with why the applicant would delay so long applying for a protection visa if he was genuinely concerned for his safety in China.
There was also reference in the RRT’s decision to extensive questioning of the applicant at the hearing about his circumstances, and that of his family, in China. Then, the RRT recorded the following:
51.The Tribunal referred to the applicant’s earlier claim that he thought he could not apply for protection because he held a student visa and asked him when he first learned about protection visas. He said that when he was detained, there were other students there and they told him he could apply. The Tribunal noted that if he thought he could not apply for protection while holding a student visa, he must have known about protection visas before. He said that before detention he did not know that he could apply for protection if he held a student visa. The Tribunal asked him when he first knew about protection visas, not when he realised he could apply. He said that it was two years after he stopped going to school, in about 2010. The Tribunal asked the applicant if he had any evidence of going to church in Australia. He said that he had provided a certificate from the church proving his attendance. The Tribunal informed the applicant that it did not appear to have a copy of that document. He said that he gave it to his previous representative.
52.The Tribunal discussed with the applicant s. 91R(3) of the Act. The applicant said that when he just came to Australia, he did not know about Australia at all.
(Emphasis added)
The RRT recorded that, after the hearing on 2 July 2012, the applicant’s representative provided written submissions to it. The RRT summarised the contents of those submissions in its decision. Those submissions were in the papers before the FMCA. They made no reference to the operation of s 91R(3) of the Migration Act, or to the attendance of the applicant at church services in Australia. Then the RRT recorded:
56. The representative requested the Tribunal grant more time to provide additional submissions. The Tribunal initially did not agree to provide the full period requested by the applicant, however, following further requests from the applicant’s representative, the Tribunal allowed the applicant more time, as requested. The representative undertook to provide additional submissions by 10 July. The Tribunal allowed the applicant until 10 July 2012 to provide further submissions. However, no further submissions had been made to date and the representative had not contacted the Tribunal to explain their absence, given several requests for more time.
(Emphasis added)In its more formal findings, which followed its discussion of the material before it, the RRT found the applicant to have no credit. The RRT said:
68.The applicant [sic - Tribunal] has formed the view that the applicant was not a person of credibility. There were considerable inconsistencies in the applicant’s evidence and many issues with respect to which the applicant was unable to provide a meaningful explanation. On occasions the Tribunal found the applicant to be evasive as he preferred to recite the evidence which was contained in his written statement rather than respond to the questions posed to him. The Tribunal does not accept that the applicant was confused at the hearing or that his mind was not working well. In the Tribunal’s view, that explanation was merely an attempt by the applicant to explain the deficiencies in his evidence.
Then the RRT set out detailed reasons for its findings on credit, extending over three pages. None of those matters refer to the applicant’s attendance at church services in Australia. The RRT said:
69.The Tribunal considers these inconsistencies and deficiencies to be significant and the combination of these to be fatal to the applicant’s credibility. In the Tribunal’s view, these matters suggest that the applicant had not been truthful in his claims concerning the events in China.
Then the RRT explained its reasons for its conclusions, which are important to a consideration of the present issue. The RRT concluded that, despite his denials, the applicant did in fact know about protection visas from shortly after his arrival in Australia. The RRT said:
71.The applicant provided a number of reasons why he did not seek protection earlier. He claims that he did not know about protection visas. The Tribunal does not accept that this was so. The applicant claims to have lived with other international students (he claims that his flatmate was in Australia illegally) and to have attended a course, at least initially. Information about protection visas is widely known in the community. The Tribunal is of the view that even if the applicant was not familiar with the process or the statutory requirements for seeking protection, he was aware that such visas existed and, if he genuinely had any interest in seeking protection, the applicant could have acquired the information …
and:
73.The Tribunal has formed the view that the applicant was aware of protection visas before his detention but made the deliberate decision not to seek protection until his detention. The fact that the applicant did not seek protection for five years of his residence in Australia suggests to the Tribunal that he had no fear of persecution in China and that he had not been truthful in his claims.
and:
76.The applicant did display some knowledge about the Bible and Catholic beliefs in his interview with the delegate. The applicant claims that he has been attending church since his arrival in Australia and the Tribunal accepts that he has done so. Given the Tribunal’s rejection of the applicant’s claims with respect to events in China, the Tribunal is of the view that any knowledge that the applicant has concerning the Christian and Catholic faith was acquired as a result of the applicant’s attendance in church in Australia and not his religious involvement in China.
77.The Tribunal has found that the applicant has no commitment to Christianity. The Tribunal has rejected the applicant’s claims that he comes from a committed and pious religious family and that he and his family had been involved in the practise of Christianity in China. The Tribunal has formed the view that the applicant had fabricated his claims relating to the events in China. In light of these findings, the Tribunal is of the view that the applicant’s attendance in church in Australia was to enable him to gain knowledge about Christianity and to assist him in any future application for protection. In particular, the Tribunal rejects the applicant’s claim that he had no knowledge about protection visas until 2010 or until his detention. The Tribunal has formed the view that in the same way as the applicant acquired information about work permits and employment opportunities, he was also informed about the possibility of applying for protection shortly after arriving in Australia and that was the reason he started attending church. The applicant has not satisfied the Tribunal that he engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal disregards such conduct in accordance with s. 91R(3) of the Act.
Consideration of the RRT’s decision
I find the logical support for the proposition that the applicant contrived his accepted church attendances in order to support his eventual claim for a protection visa years later to be questionable. Were it not for the following factors I would have given serious consideration to whether I should grant the applicant leave to appeal, uphold his appeal and remit the matter to the RRT for further attention, at least to the question which arises under s 91R(3) of the Migration Act and then, if necessary, to his wider claims. There are three factors which have avoided that.
The first is that assessment of the facts, as such, is not within the province of this Court. I could only intervene if it was established to the necessary standard that the RRT had failed to discharge its duties in accordance with the Act. Despite my misgivings about the approach taken by the RRT, and my concern about the basis for making such firm findings of fact on what appears to me, with respect, to be a flimsy foundation (at least so far as disclosed by the decision itself), I could not find that the conclusion of the RRT was irrational or outside the legitimate scope of its functions and powers. The second factor is that s 91R(3) of the Migration Act imposes the burden of persuasion upon the applicant. The third factor is that it is apparent from the passages I have extracted from the decision of the delegate and the decision of the RRT that the operation of s 91R(3) was a live issue. The applicant had a number of opportunities to put a better case, or more material, to the RRT. Those opportunities were not taken.
Conclusion
Therefore, while I retain considerable doubt about the foundation for the finding by the RRT that the applicant’s attendance at church services in Australia beginning shortly after his arrival in 2007 was calculated to support a later application for a protection visa, I could not be satisfied that the applicant discharged the persuasive burden on him in accordance with s 91R(3) of the Migration Act to permit the RRT to take those matters into account. Ultimately, in light of the forgone opportunities to deal further with the matter, I am bound to accept that he did not.
In those circumstances, the test in Decor has not been satisfied. An appeal would have no prospects of success. An extension of time will be granted but leave to appeal will be refused. Despite my reservations, there is no reason in principle why costs should not follow the event.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 15 March 2013
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