SZRUG v Minister for Immigration & Anor
[2013] FCCA 142
•26 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRUG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 142 |
| Catchwords: MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – not in the interests of the administration of justice to extend time – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 422B, 425, 427, 476, 477 |
| Cases cited: SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 |
| Applicant: | SZRUG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2006 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 March 2013 |
| Date of Last Submission: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2013 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms S Given |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $7,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2006 of 2012
| SZRUG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 17 September 2012 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), in which to bring a substantive application pursuant to s.476 of the Act. That substantive application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 10 August 2012, which affirmed the decision of the delegate of the first respondent 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”) who arrived in Australia on 20 July 2011 (Court Book – “CB” – put before the Court by the Minister in compliance with orders made at the first Court date - CB 3). At the time of entry the applicant held a business visa subclass 456 issued on 7 July 2011 and valid until 20 October 2011. The applicant applied for a protection visa on 14 October 2011 (CB 1 to CB 28). Supporting documentation was provided with that application (CB 29 to CB 41).
Application to the Court
The application currently before the Court for consideration is the extension of time application. The sole ground of that application is as follows:
“Due to the complexity of the applicant’s case and the Tribunal’s reasoning in its decision, the applicant requests for [an] extension of time to apply for judicial review.”
The applicant, by affidavit made on 5 February 2013 and filed on 20 February 2013, further explained the delay (see further below).
Section 477 of the Act provides that an application to this Court must be made within 35 days after the date of the Tribunal’s decision (s.477(1) of the Act). The Tribunal’s decision in the applicant’s case was made on 10 August 2012. The applicant filed the substantive application to the Court on 17 September 2012. That is, 3 days after the expiration of the time period for making a competent application.
Pursuant to s.477(2)(a) of the Act, this Court may extend the time limit upon application made in writing by the applicant, if the Court is satisfied that “…it is necessary in the interests of the administration of justice” (s.477(2)(b) of the Act).
The applicant made an application in writing, requesting an extension of time on 17 September 2012.
Previously this Court has identified a number of circumstances relevant to a consideration of an extension of time application under the legislation. These are: (SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FMCA 771 at [44] and see also SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] per Judge Barnes)
“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.”
Before the Court
At the first Court date the applicant appeared in person and was assisted by an interpreter in the Mandarin language. At this time the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. A certificate on the Court’s file indicates that the applicant was provided with legal advice by that lawyer. The matter was listed for mention on 5 December 2012.
On that occasion the applicant appeared in person and was assisted by an interpreter in the Mandarin language. It became apparent that the applicant required further time to submit evidence by way of affidavit in relation to the issue of the extension of time. A timetable was set down for the filing of these documents. The matter was listed for hearing of the application for an extension of time on 18 March 2013.
At the hearing of the application for an extension of time the applicant again appeared in person. He was, again, assisted by an interpreter in the Mandarin language. Ms S Given appeared for the first respondent.
The applicant sought to read two affidavits into evidence. The first made on 5 February 2013 in small part addressed the question of the extension of time (“the February affidavit) ([2] of the February affidavit, see further below at [19]).
This was admitted into evidence without objection (as was [1] of the affidavit).
The remainder of the affidavit takes issue with findings of fact made by the Tribunal and complains about the conduct of the hearing before the Tribunal. This material was plainly not admissible as evidence in these proceedings. I have had regard to it as being in the nature of submissions.
The second affidavit was made earlier on 28 November 2012 (“the November affidavit”). It annexed a transcript (“T”) of the Tribunal hearing. I admitted this and [1] of the affidavit into evidence. The remainder of the affidavit and the other three annexures are problematic.
Paragraph 2 of the November affidavit and annexure “B” are directed to the applicant’s complaint about the Tribunal’s treatment of his household registration in China. Annexure “B” is described as “Wikipedia explanation about the Chinese Household Registration system”. This “document” was not before the Tribunal. In any event, it is irrelevant to any fact in issue before the Court, and even at best, it seeks to support a request for impermissible merits review.
Paragraph 3 and annexure “C” of the November affidavit are directed to the matter of whether the applicant used a particular name (“William Lee”) in his claimed internet activities. Paragraph 4 and annexure “D” are directed to the applicant’s claim before the Tribunal that he took certain photographs in Tibet which relate to his claimed political activities. Both were not admitted into evidence as they are directed to a request for impermissible merits review. (For background, see further below at [27]).
Extension of Time: Delay
The period of delay in bringing the application to the Court is not long. It is a period of three days.
The applicant’s explanation for the delay, which he essentially repeated at the hearing before the Court, was that put in his February affidavit ([2] of the February affidavit):
“I wasn’t able to file my application within timeframe because I needed longer time to prepare for it. The RRT’s decision has 19 pages and it is in English, I needed time to have it translated, to read it and understand it, and prepare a submission and have my submission translated to English”
[Errors in the original]
The Minister submitted that while the delay was not long, the applicant had not provided a “sufficient” explanation for the delay. This was said to be because his explanation did not take this case “outside the ordinary circumstances of litigants in proceedings of this nature”.
It was not made clear what was meant by a “sufficient” explanation. At best, this can only be understood that what was contended by the applicant was not a “satisfactory” explanation for the delay ([26] of the Minister’s written submissions).
The greater difficulty, however, is with the reason the Minister gives for this. The term “ordinary circumstances…” is of such generality when applied to the large and amorphous mass of litigants before this Court who have not succeeded in their asylum claims before the Minister and the Tribunal that it is of no real meaning.
It is to the individual circumstances of each case that initial attention must be directed. Here the delay is three days. Regard must be had to the fact that the thirty fifth day from the date of the Tribunal’s decision was a Friday, and the application was filed on the following Monday. I find, in the circumstances, that the period and circumstances of the delay is not of such a character as to refuse to extend the time for the making of the application.
What does stand against any such extension is that the grounds of the substantive application lack merit such that any extension to allow further consideration would not be in the interests of the administration of justice.
The grounds of the substantive application are as follows:
“1. The conduct of the proceedings demonstrated that the Member failed to conduct a real review of the appellant’s case or afford the appellant natural justice. The Tribunal’s failings included:
· Cutting off the applicant’s evidence when the interpreter had difficulty interpreting the applicant’s claims. The Tribunal asked the applicant to stop giving further evidence and it then moved on to the next question when the applicant had not even finished his evidence.
2. The Tribunal rejected the applicant’s credibility on no reasonable grounds.
· The Tribunal found that the applicant misled the Department and The Tribunal by providing inconsistent residential address. In the application form, the applicant provided his address in China as his registered address, which is the address recorded in his Chinese Household Registration and ID card. During the hearing, the applicant claimed that he had actually lived in different addresses from the registered address. The applicant has no intention to mislead the Department or the Tribunal.
3. The Tribunal made finding on the basis of its incorrect assumption rather than on truth,
· The Tribunal does not accept the applicant’s claims that there were no border controls between two provinces in China. In the applicant’s evidence at the hearing he claimed that the authorities checked his identity at the border from 2006 onwards. The truth is, if you travel to Tibet by public transport (train, coach bus), you need to show ID. But the applicant entered Tibet by private vehicles and therefore was not checked at all.
· The Tribunal did not believe the online photo albums and articles were published by the applicant as the albums publisher’s name was shown as “William Lee”. The applicant claims that “William Lee” is the English name that he frequently uses as the pronunciation is close to his real name “Wei LI”. He also uses this name in his email account. The Tribunal failed to invite the applicant to clarify this issue.
· The Tribunal took the view that the online photos are generic travel photographs while in fact most photos are showing severe pollutions in Tibet.
4. The applicant believes there were some incorrect interpretation by the interpreter at the hearing.”
[Errors in the original]
The background to understanding the context of the grounds is set out immediately below.
Claims to Protection
The applicant set out his claims for protection in a statement attached to his protection visa application (CB 35 to CB 41). They can be summarised as follows:
1)The applicant claimed to fear persecution due to his political opinion and feared serious and significant harm as a result of his activities publicising his political opinion.
2)He claimed to have travelled to Tibet on a number of occasions to collect photographic evidence of, and publish articles online about, environmental harm occasioned by the development of the Qinzang Railway by the Chinese Government (CB 37 to CB 39). The applicant variously claimed to have been detained on a number of occasions by local government authorities or police as a result of this expression of political opinion (CB 38 to CB 39).
3)Finally, the applicant claimed to fear “future persecution” and significant harm due to the authorities having knowledge of his plan to hold an exhibition displaying images, writings and drawings showing the environmental issues in Tibet (CB 40).
The Delegate
The applicant was interviewed by the delegate on 31 January 2012 (CB 45). On 9 February 2012, the delegate wrote to the applicant advising that his application for a protection visa had been refused (CB 47). The delegate acknowledged that there were “numerous issues in Tibet and anyone suspected of sympathising with such protest movements [may be] targeted by the authorities” (CB 70.6). However, the delegate considered the applicant’s testimony to be “unconvincing and lacking in details” (CB 73.6). The delegate found that the applicant could not identify what he was seeking protection from and had not thought to seek protection when he had previously been in Germany in 2010 (CB 76.2).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 14 March 2012 (CB 78 to CB 83). He attended a hearing before the Tribunal on 20 July 2012 (CB 95 to CB 105). Photographs and articles were presented to the Tribunal after the hearing on 2 August 2012 (CB 107 to CB 125).
The Tribunal affirmed the delegate’s decision on 10 August 2012 (CB 130). It held that the applicant had not provided a credible account of his claims ([95] at CB 146). The following outline reveals the areas of concern held by the Tribunal:
1)The Tribunal found the applicant’s evidence was inconsistent and contradictory in relation to his travel to Tibet and his employment history, claims of detention, residential history, and ability to travel within Tibet with reference to his previous claims. Further the Tribunal held that the explanations regarding these inconsistencies, provided by the applicant during the hearing, added further inconsistencies ([81] at CB 143 to [90] at CB 145).
2)The Tribunal also found that the material proffered by the applicant as “proof” of his political opinion was “generic”. Further, that the applicant provided vague and unconvincing evidence as to their details and authorship ([84] at CB 144 to [88] at CB 145).
3)Further, the Tribunal held that if the Chinese authorities had wanted to persecute the applicant for his political opinion the authorities would have acted sooner than as claimed by the applicant ([92] at CB 145 to CB 146)
4)Finally, the Tribunal found that the applicant had not sought protection when he had previously travelled to Germany in 2010, subsequent to his claimed periods of detention. Further, the Tribunal found that the applicant had not sought to express his political opinion since he had been in Australia ([93]-[94] at CB 146).
As a result of these concerns about the applicant’s credibility, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution, now or in the reasonably foreseeable future. Further, it did not find that Australia was obliged to provide protection on complementary protection grounds.
The Interests of the Administration of Justice: Consideration of the Grounds of the Substantive Application
Grounds One and Four
Grounds one and four of the substantive application make complaints about certain aspects of the hearing with the Tribunal.
First, the applicant complains that the Tribunal member interrupted him during the course of the hearing at times when the interpreter had difficulty in interpreting the applicant’s claims.
Second, it was not clear whether as part of this, or a separate complaint, the Tribunal was said to have “stopped” the applicant from giving further evidence.
Third, that there were instances of “incorrect” interpretation.
These can be seen as possibly falling into assertions of jurisdictional error as outlined below. That is, a denial of a fair hearing. It is the case that s.425(1) of the Act required the Tribunal (unless the matters in s.425(2) were present – see s.425(3) of the Act), to invite the applicant to a hearing to give evidence and present his arguments. Such an invitation must not be “an empty shell or a hollow gesture” (Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188; [2000] FCA 1759 at [31]).
As to interpretation, the Tribunal is obliged (under s.425 and s.427 of the Act) to provide a competent interpreter to provide a competent interpretation (Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [17] and [20]). If the interpretation is such that the applicant is unable to adequately give evidence there would be a breach of s.425 of the Act (Mazhar at [31]).
The Full Federal Court in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 per Mansfield and Selway JJ (“P119/2002”) set out “two types of interpretation errors” that can lead to jurisdictional error. Relevantly, in P119/2002 at [17]:
“The claimed obligation upon the Tribunal under s.425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s.425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.”
Before the Court the applicant drew attention, in particular, to T22, line 23 to T23, line 11:
“[APPLICANT]: Through the trip to Tibet, the cultural change and the change on the human rights there actually shock us a lot since 2001. What Chinese government has done is to separate and put in place like the reservation area to the local 2 million Tibetan people, and what’s even worse they were not even allowed to contact the Dalai Lama. Actually they have difficulty in sustaining their life, because Chinese government was using the excuse that they were actually over…
MEMBER: Can you just ask him to clarify that last sentence? And also, I don’t need to hear a general description of the situation in Tibet. What I’m interested in, is if there is anything you want to add about your particular claims, which is what I’m assessing, as I’ve explained several times.
[APPLICANT]: I’m actually expressing why I want to do this cause.
MEMBER: Well please be brief. Just summarise that main points that you want to make.
[APPLICANT]: The thing that I did is not to reveal the hard life the Tibetan people were living. We actually tried to told that the water they drank from the running water pipe was actually polluted and poisoned in the upper stream.
MEMBER: Okay. Is that all?
[APPLICANT]: I hope the Han people can participate in this case, because the Tibetan people have already lost their rights for speaking themselves.
MEMBER: Okay.
[APPLICANT]: Many years of dedication actually make China people become more selfish. They only concentrate on their short term interests, and if the city they lived in was polluted they will rise up to protect against the government about the pollution. However they didn’t care about the pollution in Tibet.
MEMBER: Alright, okay well I’m going to call someone now to come and close the hearing and then I’ll let you know what will happen next. Okay, so basically what will happen now is that I will go away and carefully consider everything that you’ve told me today. I will make a decision and write to you and you should get that decision in a few weeks time. Do you have any questions?”
He submitted that this supported his claim now that he was interrupted by the Tribunal member and that the Tribunal “always interrupted” him. Further, that this reveals that the interpreter was “unable to translate”.
Dealing first with the complaint that the Tribunal member constantly interrupted him. It is clear that at the hearing the Tribunal was focussed on obtaining specificity about the applicant’s actual circumstances and what he claimed had occurred in the past. The applicant, in reply, exhibited a constant propensity to focus on matters of generality and the political situation in Tibet.
What the applicant has referred to at T22 must be seen in light of what preceded it. For example, at T21, lines 28 – 32:
“MEMBER: Sorry my question was what activities would you do if you returned to China in relation to Tibet, I’m not interested in these general things that you’re talking about, you need to answer my specific questions. So what in particular would you do if you went back to China in relation to your political activities?”
It is clear that the Tribunal member was concerned with focusing the applicant on his own claimed activities rather than the exposition of general political observations that the applicant, constantly, wanted to make. The Tribunal’s approach in this regard was reasonable.
This can also be seen with reference to T21, lines 15 – 18:
“MEMBER: Okay well we’re getting off the issue that you’re asking about. So we’ll move on now. As I explained to you I’m not interested in other people I’m interested in you and your activities. So if you went back to China would you continue to express an opinion about Tibet?”
The Tribunal’s approach was that its requisite “satisfaction” (with reference to s.65 of the Act) depended on the applicant’s capacity to explain and expand on his own claimed personal experiences rather than a commentary on political and environmental issues in Tibet. The Tribunal’s thinking in this regard is also made plain in its own account of the hearing (see [72] at CB 141).
In this context therefore the following can be said about what the applicant relies on at T22 to T23. First, it is a reflection of the applicant’s inability to understand, or accept, that what the Tribunal saw as relevant to the disposition of the review was the applicant’s own claimed experiences. His ultimate inability to provide satisfactory answers in this regard led, in part, to the unfavourable outcome to him.
Second, the Tribunal’s direction to the interpreter to ask the applicant to clarify what he had just said (see T22, line 32), while appearing to have been stated in the middle of the applicant’s sentence, does not, in context, represent some “interruption” to the applicant’s evidence such that he was prevented from giving his evidence and therefore denied a fair hearing.
Plainly the applicant had again started to expound on matters of generality. Whatever he claimed the Chinese government had generally done or was doing to the Tibetan people was not at issue. He did not claim to be Tibetan, nor to be perceived as such by the authorities. What was at issue were his claimed activities in Tibet, the articles and photographs he said he had published and the Chinese authorities response to this, if any.
Third, the Tribunal’s request for clarification was, in the circumstances, reasonable. The Tribunal’s initial request was plainly directed to the applicant’s response to its earlier questions as to whether (T22, lines 4-9):
“MEMBER: Okay. I’ve asked you all the questions I need to ask you. Is there anything else you want to tell me you feel is important to your case?
[APPLICANT]: I would like to talk about why we would like to do the cause.
MEMBER: I’m sorry what cause?”
The Tribunal was plainly seeking some clarification of the applicant’s “political commentary” about what the Chinese government had allegedly done in Tibet and how it related to him (see also in this regard T21, lines 15 – 19 and T18, lines 43 – 44).
In all therefore and with specific reference to T22, I cannot see that the Tribunal interrupted the applicant such that he could not give his evidence in the way now claimed by the applicant. Nor can I see that the Tribunal acted in such a way elsewhere in the hearing (again with reference to the transcript). Ground one therefore, to the extent that it asserts the Tribunal interrupted the applicant and prevented him giving his evidence, simply cannot be supported at a factual level. This complaint is not such as to argue that it is in the interests of the administration of justice to extend time to allow for further consideration or argument.
The situation against the applicant in this regard is even stronger with ground four, and that part of ground one asserting difficulty on the part of the interpreter. That is, the applicant complains that the interpreter made mistakes in the interpretation.
He relies only on the transcript. Unfortunately for the applicant, the transcript records only what was said in English. There is no comparison or analysis by a qualified interpreter, or even transcriber, as to what was said by the applicant in Mandarin and interpreted in English and vice versa. The applicant was given a reasonable opportunity in terms of time and the opportunity of legal advice to explain the significance of putting such material before the Court. As it stands, the absence of any such evidence renders the complaint without substance and therefore of no assistance to the applicant in satisfying the Court that time should be extended.
The applicant also relied on T22 and the part of the transcript extracted above to say that the Tribunal member interrupted the interpretation because the interpreter was unable to “translate”. That is, he seeks to explain the Tribunal’s request for explanation not because of any deficiencies in what he said, but that the interpreter failed in the interpretation to coherently convey what he had said.
This complaint cannot proceed to an arguable case in the absence of any evidence such as that referred to immediately above. I should note again, and in relation also to this complaint, that the applicant has had opportunity to present such evidence. The need for such evidence was raised with him at the earlier occasions before the Court. The applicant has had access to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”, whom he consulted.
What remains therefore, the transcript as it is, does not assist the applicant in this complaint in supporting his application for an extension of time.
The absence of such evidence also, similarly, militates against the applicant in relation to his complaint that there were a number of instances of “innocent interpretation”. Further, before the Court the applicant did not point to any other part of the transcript in relation to this specific complaint.
On what is before the Court the applicant’s inability to satisfy the Tribunal cannot be said, at the factual level, to have emanated from any inadequacy in the interpretation.
Further, the applicant was represented by a migration agent before the Tribunal (although he was not present at the hearing). As the Minister submits, no complaint was made to the Tribunal by either the representative or the applicant about the interpreter ([37](c) of the Minister’s written submissions). The representative wrote to the Tribunal after the hearing and no reference was made to any interpretation mistakes (CB 107 to CB 109).
At the hearing the Tribunal put the applicant on notice that if he had difficulty with the interpreter he was to make it known (T1, lines 38-39). At no time during the hearing did the applicant express any difficulty in understanding the interpreter.
In all, neither grounds one or four, even taken at their highest, are factor such that time should be extended.
Ground Two
In ground two the applicant complains that there were “no reasonable grounds” for the Tribunal “rejecting” his credibility. This is particularised with reference to the Tribunal’s finding that he had misled the Tribunal and the Minister’s department in relation to his residential address.
Before the Court, the applicant referred to the transcript of the Tribunal’s hearing at T6, lines 25 – 30. The applicant’s complaint is that he explained to the Tribunal that, in providing his history of residential address in the application for a protection visa, he followed what was in his household registration document which, irrespective of where an applicant actually resides, is taken to be the relevant “residential address”.
It is the case that the Tribunal did find that the applicant had provided “inconsistent evidence about where he was living after 2009” ([89] at CB 145). However, the problem for the applicant now is that this Court has no power to substitute its own findings of fact for those of the Tribunal. The question for the Court is whether it was reasonably open to the Tribunal to make the finding that it did on what was before it.
In this regard it is plain that the applicant’s answers to relevant questions in his protection visa application form and what he later told the Tribunal were contradictory. This is sufficient to dispose of the complaint. While a different Tribunal may have come to a different finding, or even not have regarded it of such significance as to affect its view of the applicant’s credibility, that does not assist the applicant now.
The complaint that the Tribunal did not accept his explanation, regarding his household registration, also does not assist him. The Tribunal was not obliged to uncritically accept the applicant’s explanation.
Further, it is important to note that, contrary to what is implied in this complaint, this matter was only one of eight separate matters that led to the adverse credibility finding. All were reasonably open to the Tribunal on what was before it (see [81] at CB 143 to [94] at CB 146).
In his submissions the Minister understood the applicant’s complaint as an assertion that the Tribunal’s decision was illogical or irrational. Even if this is the case, I agree with the Minister that the plurality of the High Court’s reasons for judgment (Crennan and Bell JJ, and Heydon J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611) when applied to the circumstances of this case and the Tribunal’s decision record, mean that no such error can be found in the Tribunal’s decision (see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1).
The Tribunal’s various and numerous findings relating to the applicant’s lack of credibility were all reasonably open to it on what was before it. It gave reasons for this. Any such complaint therefore would not justify the grant of any extension of time.
Ground Three
Ground three asserts that the Tribunal made findings on “incorrect assumptions” rather than the “truth”. In particular, and from what he told the Court, the applicant’s complaint can more readily be understood as a challenge to a number of the factual findings made by the Tribunal.
I should note that the task statutorily set for the Tribunal is to reach, or not reach, the requisite level of satisfaction that the applicant meets one of the criteria set out in s.36(2) for the grant of a protection visa. If it reaches this level of satisfaction the visa must be granted (s.65 of the Act). If not, the visa grant must be refused (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] per Beaumont, Merkel and Hely JJ and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In this task, the Tribunal’s conclusion is based on, and informed by, its findings of fact in relation to the issues determinative of the review. If such findings, including findings on credibility, are reasonably open to the Tribunal on what is before it and it gives reasons, then the exercise can be said to be within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407) (“Durairajasingham”).
The applicant’s “particulars” and complaints before the Court identify two areas of concern to the applicant.
First, the applicant complains that the Tribunal did not accept his claim that there were no border control points between relevant provinces in China. That is, in travelling to Tibet from another Chinese province.
The applicant’s evidence and explanation in this regard was given by him at the Tribunal hearing (see T14, lines 20-43) and in submissions by his migration agent (see [5] at CB 109).
The difficulty for the applicant now is that, contrary to his assertion that he told the Tribunal at the hearing that there were no border controls, his evidence was (T14, lines 27 – 31):
“MEMBER: But weren’t your – wasn’t your ID card checked when you went over the border into Tibet?
[APPLICANT]: At the beginning the ID card was not checked, and that actually started from 2006 to 2007, sometimes they did check the ID card.”
It was his representative, in subsequent submissions, who said that the applicant had said at the hearing ([5] at CB 109):
“The applicant was asked during the hearing why could he travel without problems in Tibet and Qinghai area… There are no border controls between two provinces.”
In the circumstances, it was plainly open to the Tribunal to find that the agent “contradicted” the applicant’s evidence. The Tribunal proceeded to consider the applicant’s actual evidence (as given at the hearing) and found that, given he entered Tibet “freely”, even though the authorities “checked his identity at the border from 2006 onwards”, it raised doubts about his claim to have been detained in Tibet ([83] at CB 144). This was open to the Tribunal on what was before it.
Second, the applicant complains that the Tribunal did not believe his claim to have published photographs on line (“the Picasa web address” – CB 112 to CB 114) and to have published articles on a “Google blogspot” (CB 115 to CB 122) (copies of both provided by the applicant’s representative after the hearing) which showed that the relevant publisher was “William Lee”.
The complaint now appears to be that the Tribunal failed to invite the applicant to “clarify this issue”. I understand this as a complaint that, before making adverse findings against the applicant, the Tribunal should have given him the opportunity to discuss his claim that he was in fact the publisher and used the name “William Lee”.
It is important to note the circumstances surrounding the presentation of this material to the Tribunal and the Tribunal’s treatment of it. The material was submitted after the hearing by the applicant’s representative on his behalf with an explanation as to the various photographs and articles (CB 107 to CB 109). Relevantly, the Tribunal found:
1)The photographs submitted after the hearing were given “little weight” as they were, in the Tribunal’s view: “generic travel photographs, not photographs of widespread pollution in Tibet that would draw adverse attention from the Chinese authorities” ([85] at CB 144).
2)In relation to the “online” photograph address (“Picasa web address”) the Tribunal gave them “little weight”. It did not accept that they were “posted” by the applicant. It gave reasons for this, including the unsatisfactory evidence given by the applicant at the hearing in relation to these ([86] at CB 144).
3)The article claimed to have been written by the applicant and to have appeared on his “claimed blog” was also given “little weight”. The Tribunal gave reasons for this including that the applicant provided no information about this blog at the Tribunal hearing despite being given the opportunity to do so. The Tribunal did not accept the explanation proffered by the representative on the applicant’s behalf that he had forgotten about this publication ([87] at CB 144). The representative had written that the applicant only found it after he was “asked by the Tribunal to look for his online publications” ([3] at CB 108).
The short answers to the applicant’s complaints are as follows. First, the weight to be assigned to any piece of evidence is a matter for the Tribunal (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Second, the Tribunal’s findings in relation to this material were all reasonably open to it on what was before it and it gave reasons. The Court cannot review the merits of the applicant’s claims (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The findings of credibility were within jurisdiction. (Durairajasingham).
Third, the Tribunal is not obliged to provide any commentary to the applicant about what it thinks of his evidence. The Tribunal’s obligation in the current case is to, relevantly, comply with s.425 of the Act. This is a case where s.422B operated to make the matters set out in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters is deals with (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
The applicant was invited to a hearing pursuant to s.425 of the Act. The transcript of the hearing reveals that the issues in the review were discussed (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592). The matters raised by the representative’s letter were not “issues in the review”. Rather, they were evidence submitted by the applicant to support his claims.
This evidence went to the issue of whether the applicant had published articles and photographs which would bring him to the adverse interest of the Chinese authorities. This was discussed at the hearing (T9 – T12, T18, T20 – T21). It is plain that the representative submitted this material because it was clear at the hearing that the Tribunal had concerns about the applicant’s evidence and claims in this regard.
This ground also fails to rise above a mere disagreement with what the Tribunal has done. It does not therefore support any extension of time.
Conclusion
In all, the grounds of the substantive application are of such character and nature, and lack any substance in the context of asserting jurisdictional error, that they argue against the grant of the extension of time. I cannot see, in all the circumstances, that it is in the interests of the administration of justice to extend time. I decline to do so.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.
Associate:
Date: 26 April 2013
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