SZSUU v Minister for Immigration
[2013] FCCA 1340
•22 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSUU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1340 |
| Catchwords: MIGRATION – Application for an extension of time to seek review of decision of Refugee Review Tribunal made in 2002 – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 477 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35 SZLIH Minister for Immigration and Citizenship [2009] FCA 108 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 |
| Applicant: | SZSUU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 954 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 954 of 2013
| SZSUU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By application filed on 6 May 2013 the Applicant seeks review of a decision of the Refugee Review Tribunal dated 20 March 2002 affirming a decision by a delegate of the First Respondent not to grant him a protection visa.
As a preliminary the Applicant seeks an extension of time within which to seek such review. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) (which was introduced by the Migration Legislation Amendment Act (No 1) 2009 (Cth) (the Amendment Act)), a review application must be made to the court within 35 days of the date of the migration decision.
Clause 7(2) of Schedule 2 to the Amendment Act provides that the date of a migration decision made prior to the commencement of the amendment is to be treated as being 15 March 2009. Hence, while the Tribunal decision in question was in fact dated 20 March 2002, for the purposes of s.477 of the Act the relevant delay in the present case is a little over four years from the date of commencement of the present form of s.477(1) of the Act.
Under s.477(2) of the Act the Court may extend the 35 day period, as it considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers it necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In his application filed on 6 May 2013 the Applicant sought an extension of time. He provided reasons why he considered it necessary in the interests of the administration of justice to make such an order. He also filed an affidavit of 6 May 2013 addressing this issue.
In his application he stated that “he did not know to appeal to the Federal Court” (sic) until he was “arrested” and taken into detention, whereas in his affidavit he claimed that he:
did not make proper or suitable [his] application with respect to the Refugee Review Tribunal and could not got (sic) Barrister at law in relation to [his] case when [he] arrived in Australia. [He did not] have contact to get legal advice at [the time he swore his affidavit].
In oral submissions today, the Applicant relied on the fact that he did not understand English or how the Australian legal system operated. He claimed that he was not aware that he had a legal right to appeal in relation to the Tribunal decision and that he was only told this when he was taken into detention.
The First Respondent opposes the grant of an extension of time on the basis that it has not been established that it is necessary in the interests of the administration of justice to make such an order.
Before turning to the application before the Court there is an additional matter to which I should refer. As attested to in the affidavit of Michelle Elizabeth Stone, a solicitor employed by the solicitors acting for the Respondents in these proceedings, Ms Stone was advised that the Tribunal’s file in relation to the Applicant could not be located in the Tribunal’s archives. Hence the Court Book has been prepared using only documents from the Applicant’s departmental file. The Respondent’s solicitor addressed, and I have considered, whether any issues are raised by the incomplete Court Book, in particular in assessing the merits of the substantive application and the grounds relied on by Applicant. However, in light of the information before the Court, this does not raise such concern as to warrant any adjournment to enable further searches for the Tribunal file.
In determining whether to grant an extension of time the court is to have regard to all the circumstances. A number of factors are commonly referred to and regarded as relevant including, in particular, the length of the delay, the reasons for the delay and whether there is an acceptable or satisfactory explanation for such delay and the merits of the substantive application. In addition, factors such as any prejudice to the Respondents, the impact on the Applicant and the interests of the public at large may be taken into account (see SZMNO v Minister for Immigration and Citizenship [2009] FCA 797, SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 and SZNZU v Minister for Immigration & Anor [2010] FMCA 197). As Smith FM pointed out in SZNZI v Minister for Immigration [2010] FMCA 57 at [11]:
None of these considerations are necessary considerations, rather the court must weigh all of the relevant circumstances together, by reference to the statutory criterion in s.477(2)(b) of the Act.
In this case I have had regard to all of the circumstances insofar as I am able to do so on the material before the Court.
It is clear that the delay in the present case is significant. The explanation offered by the Applicant is an assertion that he did not know about his review rights until taken into immigration detention. I take that at its highest, notwithstanding a possible inconsistency having regard to his claim (in his affidavit). It may be that his affidavit was intended to refer to legal assistance for the purpose of the present proceedings.
It is the responsibility of an applicant to ascertain his or her review rights and any applicable time limits (SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 and SZLIH v Minister for Immigration and Citizenship [2009] FCA 108). Moreover in evidence in the Court Book is a copy of a Tribunal letter of 16 April 2002 sent to the Applicant care of his migration agent, advising him that he had not been successful and that the Tribunal had decided he was not entitled to a protection visa. The letter advised him that he had a limited right to seek review of the decision by the Federal Court, the Federal Magistrates Court (as it then was) and/or the High Court, but that there were strict time limits within which an application for review must be filed. He was strongly advised to seek legal advice promptly if he wished to seek such review. The Applicant confirmed that he had a migration agent for the purposes of his protection visa application and Tribunal review.
In the circumstances of this case the Applicant has not provided a satisfactory explanation for the extent of the delay. The Applicant’s lack of English, lack of a lawyer and lack of familiarity with the Australian legal system are characteristics that he shares with the vast majority of protection visa applicants. That, of itself, does not provide satisfactory explanation for the considerable delay in seeking judicial review.
Furthermore, when one turns to the merits of the substantive application the grounds relied on by the Applicant lack merit and fail to raise even an arguable case of jurisdictional error on the part of the Tribunal.
In order to address such grounds it is necessary to outline the background to the application, the claims the Applicant made and the Tribunal decision.
The Applicant, a citizen of the People’s Republic of China, arrived in Australia in September 2000. He applied for a protection visa in September 2000. The Applicant set out his claims in his protection visa application. In essence he claimed to fear persecution for reason of being a Falun Gong practitioner and for his claimed involvement in the publication and dissemination of articles promoting that movement. His application was refused by a delegate of the First Respondent. He sought review by the Tribunal.
While the Tribunal file is not in evidence, relevantly, in its reasons for decision the Tribunal pointed out that in the statement in support of his review application the Applicant said that he did not consider that the delegate had carefully and thoroughly considered all of his claims. He thought that he would suffer persecution on return to China. Beyond this the Applicant was said to have repeated the claims contained in his primary application. There is no claim today to suggest that this was an incorrect description of the Applicant’s review application. Nor is there any suggestion that other claims were put to the Tribunal in writing. According to the Tribunal the Applicant elaborated on his claims based on Falun Gong activities in the Tribunal hearing.
In its findings and reasons the Tribunal summarised the Applicant’s claims that as a member of the Falun Gong movement he feared persecution for reason of political views that would be imputed to him and for reason of his membership of a particular social group. He claimed that he became a Falun Gong practitioner in 1997, that he set up a Falun Dafa research society and that he wrote for a Falun Gong publication. He claimed the publication had been discovered by the PSB and that he was therefore at risk as a known Falun Gong practitioner.
However the Tribunal found that the Applicant was not an impressive witness, that on occasion he seemed to be making up his answers as he went along, that some aspects of his evidence at the hearing were implausible, some internally inconsistent and some inconsistent with independent evidence. The Tribunal did not consider the Applicant was a reliable witness.
The Tribunal did accept that the Applicant joined the Falun Gong movement in or about 1997 and that he was an ordinary member of that movement until he came to Australia in September 2000. However having regard to concerns it set out it did not accept his remaining claims. In particular the Tribunal did not accept the Applicant’s claims about production and involvement in a magazine, Falun Dafa, and hence about the subsequent discovery of the printing press by the authorities.
In that respect, the Tribunal had regard to the fact that in his protection visa application the Applicant had claimed that he was a major writer for this publication whereas he had modified this claim at the Tribunal hearing and claimed to have written one article for the magazine which had been published in three monthly instalments.
The Tribunal was of the view, having regard to independent evidence about the attitude of the Chinese authorities to those engaged in disseminating information about Falun Gong, that the Applicant’s claim that the magazine came to an end when the printing press was seized by the PSB and 20 other people were arrested would have been a serious matter if substantiated. However it did not accept the evidence of the Applicant about publication of this magazine. It did not accept that he had the breadth and depth of knowledge of the movement to be satisfied it was credible that he would be asked to be a contributor to the magazine. It found that his evidence with respect to discovery of the printing press and the time at which this had occurred and his claimed inability to produce a copy of a magazine (of which 600 copies were said to have been published) not to be plausible. In essence, the Tribunal was of the view that had the printing press been discovered as claimed, the Applicant would have been apprehended before he was able to leave China.
The Tribunal also had regard to the fact that at the hearing the Applicant demonstrated only a rudimentary knowledge of Falun Gong and the fact that he had failed to produce any supporting or corroborative evidence of his involvement in the Falun Gong movement. This was so despite the fact that on two separate occasions, it had informed the Applicant of the importance of his producing independent evidence of this nature.
The Tribunal recorded that at the end of the hearing it gave the Applicant at least 28 days, with the offer of more time, to provide independent evidence of his involvement with Falun Gong in China, but that he did not do so. The Tribunal pointed out that by the time of its decision, the Applicant had had nearly 12 months to produce supporting evidence, that nothing had been forthcoming and no explanation had been offered for the Applicant’s inability to produce independent evidence of his authorship of an article in support of Falun Gong or even a supporting letter from his wife.
The Tribunal did not accept that the Applicant was a person who had ever published articles in Falun Gong periodicals in China. Nor, having regard to the inconsistency between the Applicant’s evidence and independent country information, did the Tribunal accept the Applicant’s claims that he was detained by the PSB in 1999 and held for three months. It also found implausible the Applicant’s claim that after he came to Australia his wife was interviewed on two occasions by the PSB and informed that the Applicant was on a blacklist. The Tribunal did not accept that officers from the PSB would have volunteered that the Applicant was on a blacklist.
The Tribunal also had regard to the fact that while the Applicant’s conduct in 1999 was said to be serious enough to detain him for some three months because he was an organiser, he had no difficulty obtaining a passport in his own name in mid-2000. Having regard to independent country information evidence, the Tribunal did not accept that the Applicant would have been cleared by the PSB for the issue of a passport if he were of any adverse interest to the authorities or that if a printing press had been discovered in July 2000 (as the Applicant eventually claimed) he would have been able to leave China without interference if the authorities had any adverse interest in him. The Tribunal did not accept that the Applicant would have been able to keep his correct name from interrogators if he had been interrogated and mistreated during detention as claimed.
The Tribunal considered the Applicant’s claims about his suffering and that of his family at the time of the Cultural Revolution and the pro-democracy movement. It observed that he did not claim to have suffered personally as a result of his family background since the Chinese Government had repudiated the Cultural Revolution. It also found, on the basis of independent country information, that it was not satisfied there was a real chance of him being subjected to serious harm which amounting to persecution as a mere participant in the 1989 pro-democracy demonstrations.
The Tribunal was not satisfied that the Applicant was ever other than an ordinary participant in the Falun Gong movement. It was not satisfied that he would be of adverse interest to the authorities on return to China. It found that his fear of persecution in China in the foreseeable future for any Convention reason was not well-founded.
In his application filed in these proceedings, the Applicant relied on four grounds. The first merely reiterated his claim to be an asylum seeker with a well-founded fear of persecution. It seeks impermissible merits review.
The second ground is that the Tribunal failed to understand his claims and failed to consider relevant matters. It states “further particulars to be provided”. No further particulars were provided. The Applicant was ordered to file an outline of submissions and list of authorities before what was to be a show cause hearing in the event that an extension of time was granted. He did not do so.
Bearing in mind that the Applicant is self-represented and in detention, I asked the Applicant today to elaborate on this ground and gave him the opportunity to explain what he meant by saying the Tribunal misunderstood his claim and failed to consider relevant matters. He did not identify any claims that were misunderstood or not considered by the Tribunal.
However, in oral submissions, the Applicant contended, for the first time, that the claims he made to the Department and the Tribunal were claims that in fact were not his real claims and had been made by his then migration agent. He claimed he told his agent that his real claims were that he had breached the Chinese family planning policy, that he had had five children, only raised three of them and had had to give two of them to other people to raise and that he wanted protection so that all his children could be with him.
He took issue with the fact that he had not been given an opportunity to attend an interview with the Department, that the delegate refused his application and that when he went to the Tribunal, the Tribunal refused his application. He confirmed however that, as the Tribunal recorded in its reasons for decision, he attended a Tribunal hearing.
In its reasons for decision, the Tribunal referred in some detail to what occurred in the Tribunal hearing. The Tribunal account of the hearing is the only evidence before the Court of what occurred at the hearing. The Applicant had the assistance of an interpreter. The Tribunal recorded that the Applicant said he had no problem understanding the interpreter.
The Tribunal recorded that it noted that the Applicant had three children. This is clearly a reference to the content of his protection visa application. The Tribunal continued:
I asked the Applicant to confirm that he did not claim he had been persecuted because he had not complied with the one child policy.
He said:
No, he had difficulty registering the children, but had paid the financial penalty.
In other words the Tribunal specifically raised with the Applicant the possibility that a claim arose in relation to a well-founded fear of persecution on the basis of a failure to comply with the family planning laws in China. However he expressly disclaimed such a claim and indicated that he had registered his children and paid the financial penalty.
Insofar as ground 2 may be taken to be a contention that the Tribunal erred in failing to consider whether the Applicant had a well-founded fear of persecution on the basis of breach of the Chinese family planning policy, the Tribunal specifically raised with the Applicant whether he made such a claim. He not only denied this but also told the Tribunal that he had paid the financial penalty and had his children registered. There is no record, and nor does the Applicant claim, that he made any claim to the Tribunal in relation to having five children rather than three children, notwithstanding that he attended the Tribunal hearing. The Tribunal did not err in failing to consider a claim that was not made in connection with the protection visa application or review.
Nor is there any evidence or claim from the Applicant that identifies any claim made other than the claims made in connection with his protection visa application. As indicated, the Tribunal referred to the Applicant’s statement in support of his application for review which was said to repeat the claims he made in the primary application and take issue with the delegate’s decision. In the course of describing the hearing the Tribunal recorded that no information had been provided by the Applicant to support his claimed involvement with Falun Gong. It gave him the opportunity to provide such information. No supporting or corroborative evidence of such involvement was provided. Nor was there any explanation for the Applicant’s inability to provide such information. Again, there is no claim or indication today to suggest that the Tribunal did not accurately describe the information before it.
Nor is there anything in the Tribunal reasons for decision to support any claim that the Tribunal misunderstood the claims that were made by the Applicant, failed to consider any integer of the Applicant’s claims or any evidence before it in a manner constituting jurisdictional error. There is no substance in such a ground.
The third ground is that the “respondent refused to grant [the] protection visa without any proper grounds and proper investigation”. There are, of course, two Respondents. However the decision under review in these proceedings is the decision of the Refugee Review Tribunal. Insofar as the Applicant appears to contend that there was some obligation on the Tribunal to investigate his claims or to produce rebutting material before failing to accept his claims, this misunderstands the role of the Tribunal. It is for an applicant to put evidence and material before the Tribunal in support of his claims and for the Tribunal to determine on the basis of that material whether the Applicant has a well-founded fear of persecution for a Convention reason. If the Tribunal is not satisfied that the Applicant meets the criteria for the visa for which he applied, then under s.65 of the Act the inevitable result is that the Tribunal must refuse the application. As discussed in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14, the Tribunal is not in the position of a contradictor.
Nor is there any general obligation on the Tribunal to conduct an investigation. There is nothing in this case to support any contention that there was a critical fact, the existence of which was easily ascertained, about which the Tribunal possibly ought to have made an inquiry in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. There is no substance in ground 3.
The fourth ground in the application is that the delegate never interviewed the Applicant. However, as the First Respondent submitted, the decision and procedures of the delegate are not susceptible to review by the Court in these proceedings. This ground does not assert any error on the part of the Tribunal. The Applicant attended a Tribunal hearing. There is nothing in the Tribunal account of that hearing to raise any concern about the Tribunal’s compliance with its obligation to raise dispositive issues with the Applicant.
There is no substance in any of the grounds raised by the Applicant in his application for review. As outlined above, in oral submissions today the Applicant claimed that the claims made in his protection visa application were not his real claims but were made by an agent whose name he found in a paper. He claimed that he told his agent that his real claim was that he breached the Chinese family planning policy.
This claim may be seen as raising a contention of fraud on the Tribunal by the migration agent in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. However there is no evidence in support of this claim before the Court. The evidence of the Tribunal’s account of the Tribunal hearing is to the contrary. The Applicant pursued claims of involvement in Falun Gong, notwithstanding that he was clearly questioned at some length by the Tribunal about various aspects of his claims. He was asked about his knowledge of Falun Gong as well as his claimed involvement, to which he responded. In addition, as indicated the Tribunal specifically raised with the Applicant whether he was claiming he was persecuted because he had not complied with the one child policy. He made it clear that he was not making such a claim. Moreover towards the end of the hearing the Tribunal gave the Applicant the opportunity to explain why he thought he was of interest to the Chinese authorities and what he thought would happen to him if he returned to China. There is nothing to indicate (and the Applicant did not claim today) that he told the Tribunal that he had a claim in relation to breach of the family planning policy. Apart from the difficulties of establishing fraud on the Tribunal in the requisite sense in SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170; [2008] FCAFC 152 the Full Court of the Federal Court referred to the fact that in SZFDE the High Court had seen no scope for jurisdictional error in circumstances where a review applicant had colluded in fraud practised on an administrative decision-maker or review body. On the basis of such authority, even if there was a fraudulent misrepresentation about the basis for the Applicant’s claims in the protection visa application by his agent, the Applicant’s complicity in such misrepresentation through the course of the Tribunal hearing would deny him the right to complain about it. On the material before the Court there is no substance in the Applicant’s claim in this respect.
In addition to the delay in bringing these proceedings and the absence of any merit in the substantive application I have had regard to the other factors to which I referred, including the absence of any significant prejudice to the Respondents were an extension of time to be granted, the impact on the Applicant’s inability to appeal if an extension of time was not granted and the interests of the public at large, not only in relation to return of people to their home countries, but also the prompt and speedy resolution of applications for judicial review.
However, having regard to all of the circumstances, in particular the significant delay and the absence of any merit in the substantive application, I am not satisfied that it is necessary in the interests of the administration of justice to grant the extension of time sought by the Applicant.
The application for an extension of time should be refused.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. It is appropriate that he meet the costs of the First Respondent. In the circumstances of this case I am satisfied that the amount sought (the sum of $3,326 which is specified in relation to a show cause hearing under the Federal Circuit Court Rules) is appropriate in the context of these proceedings.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 September 2013
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