SZUXD v Minister for Immigration

[2014] FCCA 2128

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2128

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to the Court filed out of time – refusal of an extension of time.

Legislation:

Migration Act 1958 (Cth), ss.424A, 477

Applicant: SZUXD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2230 of 2014

Judgment of: Judge Driver

Hearing date: 11 September 2014

Delivered at: Canberra, via telephone link to Sydney

Delivered on: 11 September 2014

REPRESENTATION

Applicant in person

Solicitors for the Respondents:

Ms N Johnson

Mills Oakley

INTERLOCUTORY ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2230 of 2014

SZUXD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me a show-cause application, filed on 11 August 2014.  The applicant seeks to review a decision of the Refugee Review Tribunal (Tribunal) made on 19 November 2013.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Fujian Province in China and had claimed religious persecution.  His application was rejected by a delegate of the Minister and he sought review by the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing which he attended.

3. The Tribunal records that it found his evidence vague and lacking in detail.  The Tribunal records at [11] of its reasons[1] that it had to repeat its question several times to elicit meaningful answers to some of the questions.  The Tribunal found at [12] of its reasons[2] that the applicant had not been truthful about his claims of past harm in China. 

   [1] Court Book (CB) 93

   [2] CB 96

4. The Tribunal noted that the applicant had been living in New Zealand for two and a half years before coming to Australia and had not claimed protection there.  The Tribunal also noted that although the applicant entered Australia in December 2011 he did not claim protection until some 11 months later.

5. The Tribunal accepted that the applicant had been baptised as a Catholic in China, although it rejected the baptismal certificate he relied upon as a fabrication.  The Tribunal found that there was not a real risk that he would suffer harm in Fujian Province in China as a Roman Catholic.

6. The applicant requires an extension of time for his application given that the period for seeking review, pursuant to s.477(1) of the Migration Act 1958 (Cth) (Migration Act) expired on 24 December 2013. The application is some seven months out of time.

7. In his application, the applicant seeks the exercise of the Court’s discretion under s.477(2) of the Migration Act. His grounds for an extension of time are that he suffered a period of serious ill health. Secondly, that he was poorly advised by Mandarin-speaking legal practitioners who did not tell him that he could seek an extension of time and, finally, that it would not have been logical for him to delay coming to court.

8. The applicant has not provided affidavit evidence to verify his assertions.  However, even if I were to accept as reasonable his explanation for the significant delay of seven months in coming to court, I would not be persuaded that the interests of the administration of justice support the exercise of the Court’s discretion in his favour.  That is because his application fails to raise a serious legal question to be tried.

9. The application contains four grounds.  The first ground takes issue with [16] of the Tribunal’s reasons in which the Tribunal dealt with a photograph that the applicant had provided to the Tribunal in support of his involvement in children’s church activity.  The applicant claims that the Tribunal did not explain why it did not accept the photograph.  In fact, the Tribunal does explain in that paragraph that the photograph simply shows a group of children standing in front of what appear to be two religious posters.

10. There was nothing in the photograph to establish that it was taken at a religious gathering, let alone a gathering in an unregistered church.  The Tribunal found that the photograph was not evidence supporting the applicant’s claims of his involvement in the underground Catholic Church.  I see no error in the Tribunal’s approach.

11. The applicant asserts that the Tribunal was under an obligation to disclose adverse information to him but there was no such information in these circumstances.  The photograph had been produced by him and the Tribunal did not have to give notice of its own reasoning process.

12. Likewise, the applicant’s objection in Ground 2[3] has no substance. The applicant asserts that the Tribunal should have put to him, pursuant to s.424A of the Migration Act, country information concerning document fraud in China. The country information was, in my view, not information requiring disclosure pursuant to s.424A.

    [3] [17] of the tribunal’s reasons

13. In any event, although the Tribunal rejected the baptismal certificate as a fabrication, at [18] the Tribunal accepted that the applicant had been baptised in China.  In my view, therefore, nothing in particular turned on the rejection of the certificate purportedly verifying the baptism.

14. Grounds 3 and 4 in the application take issue with the Tribunal’s reasoning process as to its forward-looking assessment of whether the applicant faced a real risk of harm in China as a Roman Catholic.  The assertions in those paragraphs of the application simply go to the merits of the Tribunal decision.  Those merits are beyond the scope of these proceedings.

15. The applicant refers to another decision by the same Tribunal member in which she had taken a different view on the question of the persecution of unregistered church members in China.  The solicitor for the Minister told me that she had read that decision and the decision related to the circumstances of an unregistered Protestant Christian in a different province in China.  Nothing of significance can be drawn from that decision in relation to this case.

16. The applicant, in Ground 4, also refers to reports of the arrest of Church leaders in some parts of China but it is not apparent whether that was even put to the Tribunal let alone what significance it would have in relation to the validity of the Tribunal decision.  It was for the Tribunal to determine what country information it should rely upon.

17. In his oral submissions, the applicant asserted that he did not understand questions put to him by the Tribunal because he had some language difficulties.  I did not understand this to be an assertion of interpretation problems but, rather, an assertion of his capacity to deal with the questioning of him by the Tribunal.

18. I accept, from [11] of the Tribunal decision[4], that the applicant experienced difficulties in responding to the Tribunal’s questions.  That fact, however, of itself could not support the contention that the hearing opportunity afforded the applicant was not a fair one.

    [4] CB 93-96

19. In his submissions in reply, the applicant orally raised an entirely new claim that his grandfather, in February 2013, had been apprehended by the police carrying a cross.  The applicant claims that in an ensuing struggle in which the police sought to remove the cross from his grandfather, his grandfather was thrown against a wall and severely injured and he subsequently died.  The applicant concedes that he did not put this claim to the Tribunal even though the events would have been fresh in his mind at the time of the Tribunal hearing.  Given that the Tribunal did not know of the claim, the Tribunal was not in a position to deal with it and no issue of jurisdictional error can flow from that claim.

20. I conclude that I should refuse the applicant’s request for an extension of time, pursuant to s.477(2) of the Migration Act. I will so order.

21. It follows that the Court has no jurisdiction to deal with the judicial review application and the Application in a Case filed on 11 August 2014, in which the applicant sought to restrain the Minister from removing him from Australia pending the outcome of judicial review.

22. The Minister seeks an order for costs in consequence of the refusal of an extension of time.  The applicant did not wish to be heard on costs.  The Minister seeks costs to be fixed in the sum of $2,500 and I will so order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 September 2014