SZUTB v Minister for Immigration and Border Protection
[2015] FCA 925
•24 August 2015
FEDERAL COURT OF AUSTRALIA
SZUTB v Minister for Immigration and Border Protection [2015] FCA 925
Citation: SZUTB v Minister for Immigration and Border Protection [2015] FCA 925 Appeal from: Application for extension of time and leave to appeal: SZUTB v Minister for Immigration and Border Protection [2015] FCCA 1383 Parties: SZUTB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 725 of 2015 Judge: FARRELL J Date of judgment: 24 August 2015 Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules 2011 (Cth) r 35.13(a)Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZUTB v Minister for Immigration and Border Protection [2015] FCCA 1383Date of hearing: 24 August 2015 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 First Respondent: Ms N Johnson of Mills Oakley Lawyers Solicitor 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 725 of 2015
BETWEEN: SZUTB
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
24 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 applicant 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 725 of 2015
BETWEEN: SZUTB
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
24 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time to seek leave to appeal and for leave to appeal a judgment of Judge Smith of the Federal Circuit Court of Australia delivered on 29 May 2015: see SZUTB v Minister for Immigration and Border Protection [2015] FCCA 1383 (“SZUTB”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the grant of a Protection (Class XA) visa to the applicant. The application was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and was therefore an interlocutory decision: r 44.12(2).
The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.
BACKGROUND
The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 9 March 2013 on a tourist visa, granted on 29 January 2013 and expiring on 9 June 2013. He lodged an application for a Protection (Class XA) visa on 31 May 2013. A delegate of the Minister refused to grant the visa on 2 December 2013.
The applicant’s protection claims were set out in the Tribunal’s Statement of Decision and Reasons dated 12 June 2014 (“Decision Record”) at [9], further claims made in his interview with the delegate were set out at [10]-[14] and he expanded on these claims at the Tribunal hearing on 13 May 2014 as set out at [16]-[17]. The Minister briefly summarised the applicants claims as:
[The applicant] claimed to fear harm from the Chinese authorities because he protested against the demolition of his factory. He claimed he was detained for 10 days and only released when his family paid a bribe. As a result of the demolition of his factory the applicant suffered heavy financial loss and incurred total debts of over two million RMB. He also claimed to fear harm because he was unable to repay the outstanding debts he owed to a bank and other people.
TRIBUNAL DECISION
The applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision under review on 12 June 2014.
The Decision Record at [20] reveals that the Tribunal did not find the applicant to be a credible witness. The Tribunal considered that “significant aspects of the applicant’s evidence were vague, highly improbable, contradictory, and lacking in detail”. The fact that the applicant was able to travel out of China at the time he did on a valid passport in his own name indicated to the Tribunal that he was not of interest to the Chinese authorities. Further, the Tribunal was not satisfied that the applicant had owned a factory that was demolished, that he had personally petitioned authorities or that he had attracted the adverse attention of Chinese authorities. The Tribunal did not accept that the applicant would suffer harm in China because he had outstanding debts to a bank or any other party. The Tribunal considered the applicant’s evidence in detail: [21]-[26].
The Tribunal considered that the fact that the applicant’s wife was able to remain living at the family home in China indicated that the applicant was not of adverse interest to Chinese authorities or to creditors: [27]. The fact that the applicant was able to remain in China for 11 months after the claimed detention before departing China was also significant in the Tribunal’s reasoning: [28]. The Tribunal was unconvinced by a “demolition notice” submitted by the applicant which was not addressed to the applicant, did not relate to the demolition of any particular property and was stamped and dated in October 2012 when the demolition was said to have occurred in February 2012; the Tribunal noted “country information” which disclosed the availability of fraudulent documents in China and in light of this and its concerns about the applicant’s credibility found that it and a business licence submitted could be given little weight. It also found that photographs of a factory provided by the applicant did not establish his ownership of the factory: [29].
The Tribunal rejected the applicant’s claims: Decision Record at [30]-[32]. In the result, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations as either a refugee or as a beneficiary of complementary protection: Decision Record at [33]-[34].
FEDERAL CIRCUIT COURT
The applicant applied for judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court on 16 July 2014.
The application contained three grounds (as written):
1. I was able to stay in China for 11 months before I came to Australia is because I did not go to petition during this period, the authority only monitored me. I was able to issue a valid passport because I paid money for my passport, they receive my money and gave me a passport. But it does not mean that the Chinese government do not have interest in me.
2. My family was able to continue living in China because all documents and bank loans were signed under my name, so the bank would only request me to repay the debt. If I return to China, the Chinese government will not allow me to flee abroad again, so I couldn’t live in China. The reason why I said I do not have any documents because I did not take any documents with me when I came to Australia and now I am afraid to ask my wife to find these documents for me through phone as my wife is likely to be monitored by government officials, it will put her in danger.
3. I wish to the Federal Circuit Court of Australia could consider my situation.
After summarising the Tribunal’s reasoning, the primary judge held at [26]-[27] of SZUTB:
[26] There is no evidence before the Court to suggest that the Tribunal failed to observe any mandatory procedural requirement under the Act including ss.424A and 425. Further, there is no suggestion of any reasonable apprehension of bias or any other denial of procedural fairness.
[27] The Tribunal’s reasons turned upon its findings of fact all of which appeared to be based upon its own assessment of the applicant’s evidence including the way in which that evidence was given before it. I cannot see any reasonable argument that any of those findings might be impugned upon judicial review.
In the result, the primary judge concluded that there was no identifiable argument that the Tribunal’s decision was affected by jurisdictional error and that the application ought be dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules: SZUTB at [28].
APPLICATION TO THIS COURT
The application lists two grounds (as follows):
1. The federal circuit court sent me wrong documents. The reasons for judgment is for SZUOK, a citizen of Sri Lanka. I think their work was carefulness and the federal circuit court did not take my case into prudent consideration.
2. The appellant found that the decision was unfair due to the appellant being unable to return to China. This is caused by the fear of persecution upon returning to my homeland.
The applicant appends a draft notice of appeal with three grounds of appeal listed, which are similar to those in the application (as written):
1. The federal circuit court sent me wrong documents. The reasons for judgment is for SZUOK, a citizen of Sri Lanka. I think their work was carefulness and the federal circuit court did not take my case into prudent consideration.
2. RRT did not consider my situation in China and the risk if I go back to China.
3. The process at present is out of my expectation, which had ran out of my financial ability. I hope the Federal Court can judge fairly.
As the judgment of the Federal Circuit Court is interlocutory in nature the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). Under r 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days of the date on which the judgment from which the appeal is sought was pronounced or the order is made. The primary judgment was delivered and orders were made on 29 May 2015; the application should have been filed by 12 June 2015. The applicant requires an extension of 10 days. The affidavit affirmed by the applicant on 15 June 2015 did not provide any explanation for the delay.
In determining the application for an extension of time, the Court has regard to 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.
Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
CONSIDERATION
The Minister opposes both the extension of time and the grant of leave to appeal. The Minister notes that the applicant has not provided an explanation for his delay in filing the application. Further, the Minister submits that the applicant has failed to identify any error on the part of the primary judge, and no error is apparent.
The applicant appeared at the hearing today with the assistance of an interpreter. When asked to explain the reason for the delay and each of the grounds of review, the applicant said that the delay was caused by his lawyer who prepared the documents and he did not understand the grounds set out in them.
A delay of 10 days is not long, but the reason for the delay is not an acceptable one.
In relation to proposed ground one in the draft notice of appeal which is the same as that in the application, the Minister submits that it cannot succeed because it is plain from the reasons in SZUTB that the primary judge gave detailed consideration to the applicant’s claim. The applicant made no comment in relation to this ground. I accept the Minister’s submission. Further, while it may cause unnecessary concern to the applicant that the Federal Circuit Court registry sent the applicant reasons for decision in a different case (SZUOK), it does not disclose any arguable case of error by the primary judge. The reasons in SZUTB reveal that the primary judge gave the applicant’s case careful consideration and the fact that a copy of the reasons was attached to the affidavit filed by the applicant in support of his application demonstrates that the applicant received those reasons.
The Minister submits that proposed ground two in the draft notice of appeal impermissibly seeks to agitate the merits of the applicant’s factual claims for a protection visa, which is beyond this Court’s jurisdiction. Ground two of the application is to similar effect. The Minister submits that the Tribunal’s factual findings were open to it on the evidence before it and for the reasons that it gave. When invited to comment, the applicant could not suggest a basis on which he says that the Tribunal failed to consider his situation in China or any risk to him if he returned. I accept the Minister’s submission.
In relation to proposed ground three, I accept the Minister’s submission that the proposed ground of appeal fails to identify any arguable case of error in the approach or judgment of the primary judge.
I have carefully read the Decision Record of the Tribunal and the primary judge’s reasons. I am satisfied that the applicant has not identified an arguable case for jurisdictional error on the part of the Tribunal or appellable error on the part of the primary judge.
I will dismiss the application. I order the applicant to pay the first respondent’s costs, as agreed or taxed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 24 August 2015
0
4
3