SZUIU v Minister for Immigration and Border Protection

[2015] FCA 791

FEDERAL COURT OF AUSTRALIA

SZUIU v Minister for Immigration and Border Protection [2015] FCA 791

Citation:	SZUIU v Minister for Immigration and Border Protection [2015] FCA 791
Appeal from:	Application for extension of time: SZUIU v Minister for Immigration and Border Protection [2015] FCCA 489
Parties:	SZUIU and SZUIV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 456 of 2015
Judge:	FARRELL J
Date of judgment:	4 August 2015
Catchwords:	MIGRATION – decision of delegate not to issue Protection (Class XA) visa – decision of Refugee Review Tribunal affirming delegate’s decision – decision of Federal Circuit Court dismissing application for judicial review – whether application for extension of time should be granted – consideration of proposed ground of appeal
Legislation:	Federal Court Rules 2011 (Cth) r 36.03 Migration Act 1958 (Cth) s 36(2)(aa)
Cases cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 SZUIU v Minister for Immigration and Border Protection [2015] FCCA 489
Date of hearing:	4 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the First Applicant:	The first applicant appeared with the assistance of an interpreter
Counsel for the Second Applicant:	The second applicant did not appear
Solicitor for the First Respondent:	Ms H Dejean of Australian Government Solicitor
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 456 of 2015

BETWEEN:

SZUIU
First Applicant

SZUIV
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	4 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.The application be dismissed.

3.The applicants pay the first respondent’s costs, as agreed or taxed.

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 456 of 2015

BETWEEN:

SZUIU
First Applicant

SZUIV
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	4 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file a notice of appeal from a judgment of Judge Lloyd-Jones of the Federal Circuit Court of Australia delivered on 18 March 2015: see SZUIU v Minister for Immigration and Border Protection [2015] FCCA 489 (“SZUIU”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal to affirm a decision of the Minister’s delegate made on 23 September 2013 to refuse to grant them Protection (Class XA) visas. The Tribunal advised the applicants of its decision by way of a Statement of Decision and Reasons dated 17 April 2014 (“Decision Record”). The Tribunal’s grounds for refusing to grant the visas were different from the delegate’s grounds.

2. The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

   BACKGROUND

3. The applicants are a husband (SZUIU) and wife (SZUIV) who are citizens of the People’s Republic of China. The applicants entered Australia on 24 September 2012 on tourist visas. They made applications for protection visas on 24 January 2013. The husband made the relevant protection claims; the wife applied as a member of his family group. The visa application disclosed that the applicants have an adult son who was studying in Australia at the time. The husband’s daughter, brother, two sisters (all married) and his widowed mother were in China.

4. The basis of the husband’s claims for protection is summarised at [8] of the primary judge’s reasons as follows:

   The first applicant claimed to have suffered past harm in [deleted] Town [deleted] City, [deleted] Province in China. He claimed that in early August 2012 he had rejected demands made by the Demolition office of [deleted] Town that his family accept meagre compensation for the acquisition of his land for the purpose of building a highway. He claimed that on 9 August 2012, after he had made a complaint to the [deleted] City government about the compensation, he was taken from his home and badly beaten by three people. He was threatened with death if he did not agree to the compensation. He then complained about the compensation to the city government in the provincial capital [deleted] on 10 August 2012. This resulted in his detention and torture for two hours by five policemen in the local police station. He and his wife then left [deleted Town] and lived with his sister 300 kilometres away until he came to Australia. He held fears that he would suffer serious harm if he returned to [deleted Town].

   TRIBUNAL DECISION

5. The applicants applied for review of the delegate’s decision in the Refugee Review Tribunal on 22 October 2013. The husband attended a Tribunal hearing on 16 April 2014 in which he elaborated on these claims. Paragraph references below are to the Decision Record.

6. Among other things, the husband told the Tribunal that he and his wife decided to leave China for Australia temporarily to save his life; his son was studying in Australia: [11]. He never signed a land acquisition agreement: [12]. He was planning to stay in Australia for two or three months to see how things went before making a decision to return home, but when the local government became aware of his escape to Australia, they seized the land and threatened his mother. They told her that he must give her a power of attorney to sign the compensation agreement: [13]. A freeway has now been built on the site of his land: [16]. He submitted an untranslated document which showed his ownership of land which had commenced in 1997: [17]. He feared being killed if he returned to China because he refused to sign the compensation agreement and had tried to petition the government in relation to corrupt officials. The compensation was too little and he was afraid that if he appealed through government departments he would be killed, for example, by an incident which appeared to be a car accident. He had no other reason for not wanting to return to China: [18]. The husband believed that the head of the town government worked with a chain of corrupt officials who had been taking bribes for about 10 years, and that person was the person most likely to arrange to harm him: [19].

7. First, the Tribunal accepted that the husband “was seriously ill treated and tortured by police at the behest of a corrupt local official ... in order to either intimidate him from pursuing the issue of inadequate compensation or to pressure him to sign a document accepting the compensation, thus giving a veneer of legality to the arrangement in order to protect the official from allegations of corruption”: [39].

8. Second, the Tribunal found that by his own choice the husband would not pursue his complaints in China were he to return and therefore will not be harmed on return: [42]. Notwithstanding this finding, the Tribunal accepted that if the husband were to return to his “home area”, he would again be targeted by the local official and his accomplices in an attempt to force him to sign a document recording his acceptance of the compensation deal. The Tribunal accepted that the husband felt strongly about this matter, and that if he did not comply with the request, “he will again be seriously ill treated and tortured as occurred in 2012”: [43].

9. Third, the Tribunal found that there was no “Convention reason” for the harm apparent from the evidence. By “Convention reason”, the Tribunal was referring to the five “reasons” which must share a nexus with the relevant persecution in order for the person to meet the definition of a refugee: race, religion, nationality, membership of a particular social group or political opinion. The motivations of the relevant local official, and his accomplices, appeared to the Tribunal to be centred on the protection of their financial and personal interests and not on any personal characteristic of the victims: [44]. Although the Tribunal was satisfied that the husband had a well-founded fear of being seriously harmed in his home area, there was no Convention reason for that harm, and therefore he was not owed a protection obligation as a refugee: [45].

10. Fourth, the Tribunal considered whether the husband was owed a protection obligation as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal accepted that, if the husband were to return to his home the area, there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there was a real risk that he will again suffer significant harm, given that “significant harm” includes being subjected to torture: [46]. However, the Tribunal noted that there is taken not to be a real risk that a person will suffer significant harm in a country if “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”: [47].

11. The Tribunal said that the first question in assessing relocation was whether there is an area of the country where, objectively, there would not be a real risk that the husband will suffer significant harm: [48]. The Tribunal was satisfied that if the husband relocated to some other part of China the chance of his potential persecutors locating him was remote: [49]. The Tribunal referred to the fact that the husband had remained at his sister’s home (300 km from the Town) for approximately six weeks before coming to Australia without being located, and that he could again stay with her (albeit temporarily) if he were returned to China. The Tribunal also referred to a statement made by the husband that a fellow villager in similar circumstances was able to relocate without evidence of the villager being located by the local official or his accomplices: [49]. The Tribunal was satisfied that the local official and his associates would not be aware of the husband’s re-entry into China, and the Tribunal was not persuaded by the husband’s argument that they might subsequently become aware of his whereabouts by tracing his calls to his family members: [50]. Therefore, the Tribunal found that the chance that the husband would be significantly harmed if he were to return to China but not to his home area to be remote: [52].

12. The second question for the Tribunal was whether it would be reasonable to expect the husband to relocate to another area where there was not a real risk of significant harm: [53]. The husband did not say that relocation would be unreasonable but objected to relocating within China for fear of being harmed by the local official and his accomplices wherever he went: [54]. The Tribunal noted: that the husband said he was “fairly wealthy” in China; that his business as a meat reseller could be continued anywhere; that the financial impact of losing his land was minor; that he was intelligent and mature and able to adapt to life in an entirely new environment in Australia; and that his sister, who was financially well off, would be able to accommodate him temporarily: [54]. On the basis of these factors, the Tribunal found that it was reasonable for the husband to relocate within China: [55].

13. As relocation was possible, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from China to Australia, there was a real risk that the husband would suffer significant harm. In the result, the Tribunal was not satisfied that the husband was owed a protection obligation under the complementary protection criteria.

    FEDERAL CIRCUIT COURT DECISION

14. The applicants applied for judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court on 19 May 2014.

15. The applicants pleaded two grounds of review (as written):

    1. I was offered inadequate compensation from the local government. I refused to sign the agreement and made a petition against the officials for which I and other people were beaten and handcuffed. I was tortured for two hours. We were also threatened to be killed by the thugs hired by the officials. The member of RRT ignored the facts and refused my application.

    2. The member of RRT made jurisdictional error because he failed to take all my claims and evidence into account according to S91R of the Migration Act.

16. The primary judge heard the application and reserved judgment on 3 March 2015. On 18 March 2015, the application was dismissed with costs. Paragraph references below are to paragraphs of SZUIU unless indicated otherwise.

17. The primary judge observed that ground one sought to re-agitate the applicants’ substantive protection claims and the “facts” alleged to have been ignored were unparticularised. The primary judge found that the applicants’ claims were set out in detail by the Tribunal at [4]-[37] of the Decision Record, the Tribunal had addressed those claims at [38]-[56] of the Decision Record, the Tribunal had in fact accepted the claims outlined by the applicants in ground one at [39] of the Decision Record and ground one otherwise sought to engage the Court in impermissible merits review. The primary judge accordingly dismissed ground one: [30]-[34].

18. In relation to ground two, the primary judge noted that there had been no particularisation of the ground and he held that the claim could not be sustained. The primary judge found that on a fair reading of the materials before him, it could not be said that there was a claim or some form of evidence that was not considered by the Tribunal: [35]-[36].

19. The primary judge concluded that there was no discernible error on the part of the Tribunal. Consequently, the application was dismissed.

    APPLICATION TO THIS COURT

20. The applicants filed the application for an extension to time to file a notice of appeal on 27 April 2015. The application states that the grounds of the application are set out in the accompanying affidavit. The affidavit filed on the same day provides (as written):

    1.   We are the applicants in these proceedings..

    2.   We apply for leave to appeal from the Judgment of the Federal Circuit Court on 18 Mar. 2015.

    3. Leave to appeal is required by S24 (10) and (1A) of the Federal Court of Australia Act in 1976.

    4.   The Draft Notice of Appeal is attached to the Affidavit.

    5.   I don’t know to lodge my application to the Federal Court within 20 days limited. So I lodged my application beyond the Court time limited. I implore the Court official would consider my ignorant and accept my application.

    6.   In early Aug. 2012 I had rejected the demand made by Demolition office of [deleted] Town. I complained to [deleted] City Government about the unfair compensation for which I was beaten badly and threated with death if I didn’t agree with the compensation. Then I complained to the capital Government on 10 Aug. 2013 which resulted in my detention and tortures for two hours. I and my wife had to hide in my sister’s home until coming to Australia. The Tribunal member failed to take all my claims into account and made a decision of refusing my application, making jurisdictional error.

21. The draft notice of appeal appended to the affidavit proposed one ground of appeal, which repeats what is contained at [6] of the affidavit. It is unclear why the applicants included [2]-[3] in their affidavit. The applicants do not require leave to appeal and they did not apply for it.

22. The factors relevant to determining whether an extension should be granted include the length of the applicant’s delay in lodging the application and reasons for the delay; any prejudice to the respondent if the extension were granted; and the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

23. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), a notice of appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The application was filed on 27 April 2015, and the primary judge’s judgment was delivered, and the orders were made, on 18 March 2015. The notice of appeal should have been filed on or before 8 April 2015 to comply with r 36.03. The applicants require an extension of 19 days.

24. The day before the hearing, the Minister’s representative advised by email to chambers that an error had been made in the Minister’s written submissions. The written submissions set out a purported third ground of review in restating the grounds of the application filed by the applicants in the Federal Circuit Court. There was no third ground in the application. Due to the proximity of the identification of the error to the time of the hearing, the Minister was not able to convey the existence of the error to the applicants prior to the hearing. The error was explained to the husband with the assistance of the interpreter before the hearing commenced. I note that the Minister’s written submissions did not address the third ground which had been included by mistake.

    Minister’s submissions

25. In written and oral submissions the Minister accepted that the period of delay is short and that the Minister does not suffer prejudice by reason of the delay. However, the Minister submitted that the extension of time should be refused as the delay has not been adequately explained and there is no merit in the applicants’ proposed grounds. The Minister further submitted that, even if the extension of time were granted, the appeal should be dismissed with costs.

26. The Minister said that the ground of appeal sought to be raised in this Court simply restates a claim which was accepted by the Tribunal at [39] of the Decision Record, and does not identify any error on the part of the Tribunal or the primary judge. The ground cavils with the merits of the decision, which is beyond the jurisdiction of this Court. The primary judge was correct to dismiss the two grounds in the application before him for the reasons he gave.

    Applicants’ submissions

27. The husband appeared with the assistance of an interpreter. He did not file any written submissions. Having heard the Minister’s oral submissions the husband said that he could not return to China because he faced persecution and the villager who had relocated within China had suffered a car accident.

    CONSIDERATION

28. The applicants’ reason for delay in filing their notice of appeal is not adequate as has been affirmed in this Court on a number of occasions. It is true that 19 days is not an inordinate delay, but it is not short. Given the Minister’s concession that he does not suffer prejudice from delay of that length in this case, the lack of adequate explanation of the delay would weigh less significantly if the ground of appeal appeared to have merit. However it does not.

29. It is true that the ground as stated reflects claims which the Tribunal accepted in the Decision Record at [39] and it could be taken simply to cavil with the merits of the decision. It therefore discloses no jurisdictional error by the Tribunal for the reasons given by the primary judge in SZUIU at [31]-[33].

30. Because the Tribunal accepted that the husband had a genuine and well-founded fear of returning to China, although not for a Convention reason, this ground might be taken to be directed at the Tribunal’s decision with respect to complementary protection, as was the husband’s only submission and I will consider it in that context. The husband did not explain the circumstances in which the villager had a car accident or whether this alleged accident occurred before or after the Tribunal hearing. It does not appear to have been raised before the primary judge. The submission reflects the concern which the husband expressed to the Tribunal which is recorded in the Decision Record at [18].

1. This submission does not bear on the process by which the Tribunal made its decision. The Tribunal considered the applicants’ claims to complementary protection at [46]-[56] of the Decision Record which I have summarised at [10]-[13] above. In my view, the Tribunal member gave careful consideration to the applicants’ claims and the circumstances they would face upon return to China. In my opinion her findings were open to her based on the evidence before her and for the reasons which she gave.

2. I perceive no jurisdictional error by the Tribunal or appellable error by the primary judge. I will dismiss the application and order that the applicants pay the Minister’s costs as agreed or taxed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:        6 August 2015