SZUXC v Minister for Immigration

[2015] FCCA 2247

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2247

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Applicant: SZUXC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2222 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 August 2015

Delivered at: Sydney

Delivered on: 12 August 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the First Respondent: Mr L Dennis of Sparke Helmore

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2222 of 2014

SZUXC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). The need for an order under s.477(2) arises because the applicant filed her application one day outside the 35 day period prescribed by s.477(1) of the Act.

2. To obtain the order the applicant seeks, she must satisfy the Court that it is necessary in the interests of the administration of justice that the time for filing the application be extended.  At the very least, that requires the applicant to present evidence that adequately explains the delay and to demonstrate that the application the applicant proposes to make, if an order extending time is made, has merit. 

Explanation for delay

1. The reasons the applicant states in her application for review for not having made the application within the 35-day period is that she was not notified of the Tribunal’s decision.  I do not accept that.  The Tribunal notified the applicant of its decision on 4 July 2014 by fax sent to the fax number of the applicant’s representative specified in the applicant’s initiating application for review.  That, however, does leave open the possibility that the applicant’s representative was notified but the applicant’s representative did not in terms notify the applicant herself. 

   Before me the applicant, who is not legally represented, said that she left it to her son to lodge the application and that she was ignorant of matters that related to the time by which an application should have been made to this Court.  I do not accept this to be an adequate explanation.  Accepting it is true that the applicant left it to her son to file the application with the Court, there is no explanation why her son did not lodge the application within time.  Given, however, that the application was lodged only one day out of time, the absence of any acceptable explanation will have no bearing on my determination of the application for the extension of time. 

Merits of claim is order for extension is made

1. What is determinative is whether the application the applicant proposes to make if an order extending time is made has merit.  To answer that question it will be necessary to set out the applicant’s claim for a Protection visa and the Tribunal’s reasons for not accepting the applicant’s claims. 

Claims for protection

1. The applicant is a citizen of the People’s Republic of China (China) who arrived in Australia on 1 July 2011 on a Tourist visa.  On 10 October 2012 the applicant lodged an application for a Protection visa.  The applicant’s claims for protection were based on the following alleged facts. 

2. The applicant is a practising Catholic and her immediate family have been baptised.  The applicant was part of “secret” Catholic church in China and was “in charge of organising female church-goers attending churching activities and masses”.  The Chinese authorities harassed and threatened the applicant and congregation during church services.  In December 2010, when the applicant was attending a “secret” mass at the home of a member of her church, the police entered the premises and attempted to arrest the priest and the “church-goer in charge”.  The applicant attempted to prevent the arrests and was detained overnight and charged with “illegal gathering and disturbing the public order”.  Following the applicant’s detention and her arrival in Australia, she was told that “seven or eight people from the police station” had visited her home, and she had subsequently been advised by the priest and members of the church not to return to China.

3. Before the delegate and the Tribunal the applicant relied on a number of documents.  These included a letter dated 13 March 2013 that purported to be from the archbishop of the church of which the applicant claimed she was a member, in which it was confirmed that the applicant was baptised by a priest of the church.  The letter also stated that the applicant “is seeking protection from your country and applying for protection visa” and that she “will definitely encounter various difficulties”.  Another letter, which was dated 8 March 2013, purported to be from a pastor of the church of which the applicant claims she was a member.  The letter confirmed that the applicant has been baptised, and that religious life “in our country is often restricted by the government” with “bishops, practitioners and nuns often facing the risk of being arrested”. 

Tribunal’s reasons

The Tribunal accepted the applicant was Catholic.  It found, however, that the applicant was not a credible witness.  The Tribunal relied on a number of matters for this conclusion.  First, the applicant delayed in making an application for a Protection visa.  Second, the applicant claimed she was detained at the time she and her husband were applying for a tourist visa.  Third, the applicant’s account of what occurred to her was contradicted by country information on which the delegate relied.  Fourth, the applicant claimed before the Tribunal but not before the delegate that she had a greater risk of being harmed than other Catholics, because her aunt was a nun.  The applicant, however, was unable to say to which order or society of nuns her aunt belonged.  Moreover, the applicant did not claim the aunt suffered any harm.  Fifth, the applicant’s son, who was granted a Protection visa in Australia in 2004 based on a fear of being persecuted because of his religion, had visited China for three months in 2012 without experiencing any difficulties.  That was so even though while visiting China he had attended underground Catholic churches.  The Tribunal found that this indicated Chinese authorities had no interest in the underground church or in the priest who services the congregation.  The Tribunal gave no weight to the documents on which the applicant relied.  The Tribunal relied on country information about the prevalence of fraudulent documents in Fujian province, the applicant’s inability to verify the documents purportedly from the archbishop and pastor, and on the fact that the documents address the difficulties the applicant will face in settling in Australia without addressing even obliquely whether the applicant and her husband would be at risk because of their religion.

Ground of review

1. The application for review, which the applicant filed, raises only one ground and that ground is:

   The tribunal committed jurisdictional error by asked and considered wrong question.

2. This is an unparticularised allegation of jurisdictional error.  It does not identify the question it is alleged the Tribunal considered or the reasons why such question was the wrong question.   The ground has no merit. 

3. The applicant, who I have already said is not legally represented, made a number of submissions to the Court.  All of these related to the claims for a Protection visa the applicant made before the Tribunal.  She submitted that if she were to return to China the police will arrest her and ask her details relating to her priest.  She said she was scared to go home because she will be beaten seriously and even face death.  She also said that her family was being controlled and monitored by local authorities.  The applicant submitted she was not a liar and that everything she told the Tribunal and which she was telling me was true.

4. I explained to the applicant that this Court has no jurisdiction to determine whether the applicant had a valid claim for a Protection visa.  I informed her that whether or not I believed what she said to the Tribunal was true was not relevant.  I explained that the Court’s jurisdiction is limited to determining, whether on the grounds set out in applications to the Court, the Tribunal has conducted its review of an applicant’s case according to law.

5. I had the ground stated in the application interpreted to the applicant and invited her to make any submissions she wished to make in relation to that ground. Understandably, the only submissions the applicant made were to repeat matters going to the merits of her application before the Tribunal. Nothing that the applicant submitted to me indicates she has or may have a meritorious case for the granting of relief by this court under s.476 of the Act in relation to the Tribunal’s decision to affirm the delegate’s decision not to grant the applicant a Protection visa.

6. I am satisfied that it was open to the Tribunal to make the decision it did for the reasons it gave. For these reasons, I am not satisfied it would be in the interests of the administration of justice to make an order under s.477(2) of the Act to extend the time for the applicant to make an application for review of the Tribunal’s decision. The applicant will not suffer any relevant prejudice because I have found she has no meritorious case for the judicial review of the Tribunal’s decision.

7. I propose, therefore, to dismiss the application for extension of time and order that the applicant pay the Minister’s costs.  I also propose to make an order substituting the Administrative Appeals Tribunal for the Tribunal as the second respondent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  19 August 2015