SZVCK v Minister for Immigration

[2015] FCCA 2460

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2460

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – grant of an extension of time for show cause application – interlocutory dismissal of the application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 424A, 477

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SBBS v Minister for Immigration (2002) 194 ALR 749

SZTES v Minister for Immigration [2015] FCA 719

Applicant: SZVCK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2602 of 2014

Judgment of: Judge Driver

Hearing date: 8 September 2015

Delivered at: Sydney

Delivered on: 8 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

3. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the filing of the show cause application under s.476 of the Migration Act is extended up to and including 19 September 2014.

4. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

5. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2602 of 2014

SZVCK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 25 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution.  Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently set out in the Minister’s outline of legal submissions, filed on 2 September 2015. 

2. The applicant is a national of the People’s Republic of China. She arrived in Australia on 15 August 2013 on a visitor visa which she applied for on 10 June 2013 and was granted on 26 June 2013[1].

   [1] Relevant Documents filed on 30 October 2014 (RD) 45

3. On 28 August 2013, the applicant lodged her application for the protection visa[2]. Annexed to the application was a translation of her written statement [3] in which she claimed that she departed China because she helped her mother, a sincere Christian, distribute copies of a document prepared by other Christians, which demanded the release of her aunt, who was also a Christian and had been detained because of her gospel teaching. The applicant also claimed that her mother and some other believers had previously been arrested in December 2000 for teaching the gospel.

   [2] RD 1-31

   [3] RD 27-28

4. On 30 January 2014, the applicant was interviewed by a delegate of the Minister. To the delegate, the applicant claimed that she stopped practising Christianity in 1994 after attending two church gatherings. At the second gathering, she was arrested, detained and tortured by the local police, and was forced to provide a written guarantee that she would not be involved in church activities (the 1994 incident) [4].

   [4] RD 48

5. On 4 February 2014, the application for the visa was refused[5]. The delegate rejected the applicant’s claims in their entirety and did not accept that the applicant had a genuine fear of harm in China.

   [5] RD 44-58

6. On 25 February 2014, the applicant applied for review to the Tribunal[6]. By letter dated 4 June 2014, the Tribunal invited the applicant to comment on or respond to information pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act) by 30 June 2014[7]. No response was received from the applicant.

   [6] RD 59-65

   [7] RD 70-71

7. On 22 July 2014, the applicant appeared at a Tribunal hearing, at which the matters raised in the s.424A letter were discussed. The applicant also gave evidence that she still believes in Christianity and sometimes attends church in Australia[8].

   [8] RD 85 [a]

8. On 25 July 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa[9].

   [9] RD 82-80

9. The Tribunal comprehensively rejected the applicant’s claims[10].  It found that the applicant was not a credible witness and that she had fabricated her claims for protection[11].

   [10] RD 88 [15]

   [11] RD 84 [13], 88 [15], 90 [19]

10. The Tribunal gave a number of reasons for its adverse credibility finding, including the applicant’s:

    a)failure to mention the 1994 incident (being her central reason for claiming protection) in her written statement, despite describing certain events in detail in that document[12];

    b)changing and contradictory evidence regarding when she stopped working in China and when she commenced living in a hotel because she was hiding[13];

    c)admission that she had initially given untruthful evidence to the delegate regarding whether she had applied for a visa for any other country[14];

    d)evidence to the delegate that she applied for a visa to the United States in early May 2013, and the timing of the issuing of her passport (in February 2013) were inconsistent with her written statement that she made a decision to leave China after her aunt was arrested on 30 May 2013[15];

    e)inability to provide to the Tribunal significant details regarding her mother’s alleged arrest although she provided those details in her written statement[16],  her inability to explain why she thought she would be accused of helping others to appeal given the documents she distributed did not relate to appeals[17], and her inconsistent evidence regarding the number of documents she distributed[18]; and

    f)delay in leaving China after her visitor visa was issued was inconsistent with her claim to fear being arrested and tortured in China[19].

    [12] RD 85 [b]

    [13] RD 85 [c]-[d]

    [14] RD 86 [e]

    [15] RD 86 [f]

    [16] RD 87 [i]

    [17] RD 87 [k]

    [18] RD 87 [l]

    [19] RD 88 [n]

11. The Tribunal rejected the applicant’s explanation that her inconsistent evidence was due to the death of her parents and poor memory, given the lack of documentary evidence about those matters[20]. The Tribunal rejected all of the applicant’s claims in their entirety, including that she had come to the adverse attention of the authorities as a result of the 1994 incident[21]. Given its finding that the applicant was not a credible witness, the Tribunal also rejected the applicant’s evidence that she attended church in Australia and found that she has no interest in or commitment to Christianity[22]. The Tribunal therefore found that the applicant would not engage in any religious activities if she returned to China[23] and found no real chance that the applicant would be persecuted for any Convention reason in China[24].

    [20] RD 88 [14]

    [21] RD 88 [15]

    [22] RD 89 [16]

    [23] RD 89 [17]

    [24] RD 89 [18]

12. The Tribunal then considered whether the applicant could be granted the visa on complementary protection grounds, however in light of its finding that the applicant had fabricated her protection claims, found that the applicant also did not satisfy that criterion[25].

    [25] RD 90 [19]-[20]

The present proceedings

1. These proceedings began with a show cause application, filed on 19 September 2014. The application was filed 21 days outside the period prescribed under s.477(1) of the Migration Act and the applicant sought an extension of time. In her affidavit accompanying that application, made on 12 September 2014, the applicant explained the reason for the delay. I received that affidavit into evidence and the applicant was cross-examined on it. I accept the applicant’s evidence that she attempted to file her application within time but the application was returned to her as she had not provided the correct application fee.

2. That explanation is corroborated by another affidavit, which I also received, made on 28 August 2014, which simply attached the Tribunal decision.  I draw an inference that that affidavit was provided with the initial application on 29 August 2014. 

3. The applicant also provided submissions which were filed on 16 January 2015, which sought to provide a further explanation for her delay.  Those submissions were confusing and unhelpful.  The submissions referred to migration agents in Chinatown demanding $3,000 for the preparation of court documents.  Whatever difficulty the applicant may have encountered in that regard, it did not prevent her from preparing and submitting to the Court an application and supporting affidavit within the prescribed period.  In reality, the only problem was the filing fee. 

4. I am satisfied that the applicant has provided a reasonable and plausible explanation for her delay in coming to Court. 

5. The Court can only grant an extension of time, pursuant to s.477(2) of the Migration Act, if it is satisfied that such an extension is necessary in the interests of the administration of justice. Ordinarily, the consideration of the interests of the administration of justice would include some examination of the legal merits of the application. In the present case, I eschewed that course for two reasons. The first was recent guidance from the Federal Court[26] that in circumstances where a detailed examination of the merits of an application is called for, the preferable course is to grant the extension of time[27].  Secondly, the application had been listed today for hearing, not only on the extension of time but also for a show cause hearing if required.  I decided in the circumstances that the interests of the administration of justice required the granting of the extension of time and made the necessary order.

   [26] SZTES v Minister for Immigration [2015] FCA 719 per Wigney J

   [27] Ibid at [49]

6. For the purposes of the hearing on the extension of time and the show cause hearing, I also have before me as evidence the book of Relevant Documents filed on 30 October 2014. 

7. I have also had regard to the written and oral submissions of the parties. 

8. Unfortunately for the applicant, her application does not disclose an arguable case of jurisdictional error by the Tribunal.  The show cause application contains two grounds:

   1.I have been a Christian since 1994. I attended family churches for which I was caught and detained. I feared being caught again, so I came to Australia for seeking relief freedom and protection. The Tribunal member didn’t believe my experience.

   2.The Tribunal failed to consider my application according to S91 R of the Migration Act 1958 because of the Tribunal’s bias against me.

9. The Minister’s written submissions deal with those grounds.  The Minister’s submissions were read to the applicant before I came on the bench.  I pointed out to the applicant that the first ground was simply a recitation in summary form of her claims for protection and a recognition that her claims were not believed.  No jurisdictional error is even asserted by that ground. 

10. The second ground asserts bias.  I invited the applicant to explain why she thought the Tribunal was biased.  She told me that this was because she was not believed and had told the truth.  As I explained to her, however, an adverse credibility conclusion is not necessarily indicative of bias.  I took the applicant to several of the Tribunal’s concerns with the applicant’s claims.  Those included the Tribunal’s concern over the applicant’s apparent indecision concerning her religious activities and faith[28].  I also took her to the Tribunal’s concern at the applicant’s apparent untruthful evidence concerning her attempt to go to the United States[29].  On being presented with the array of adverse credibility conclusions identified by the Tribunal, the applicant did not wish to make any further submissions.

    [28] RD 85 [13a]

    [29] RD 86 [13e]

11. I agree with the Minister’s submissions in relation to the two grounds. Ground 1 is a repetition of aspects of the applicant’s claims for protection and identifies no error by the Tribunal. To the extent that this ground is a complaint with respect to the Tribunal’s findings of fact, those findings were open on the available material before the Tribunal and were not unreasonable, illogical or irrational. Credibility findings are a matterpar excellence for the Tribunal[30]. A credit finding is sound if it was open on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility[31].

    [30] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J

    [31] Kopalapillai v Minister for Immigration (1998) 86 FCR 547

12. The allegation of error made in Ground 2 cannot be sustained as there is nothing in the Tribunal’s reasons that suggests that the Tribunal erred in construing or applying s.91R of the Migration Act or any of the relevant provisions of the Migration Act to the applicant. In those circumstances, the applicant’s allegation of bias is merely an expression of her disagreement with the Tribunal’s decision. Bias is a serious allegation, which must be distinctly made and clearly proven[32]. The allegation is not supported by any particulars. Nor is there any evidence before the Court that is capable of substantiating such an allegation. There is nothing in the reasons for decision of the Tribunal that would enable the Court to draw the inference that the Tribunal member approached its task other than in good faith.

    [32]Minister for Immigration v Jia Legeng (2001) 205 CLR 507; SBBS v Minister for Immigration (2002) 194 ALR 749; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

13. I have considered for myself whether the Tribunal’s decision record discloses any arguable case of jurisdictional error.  In my view, it does not. 

14. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. 

16. Although the applicant was alert to the possibility of a costs order, she was surprised by the amount.  She is concerned about her capacity to pay.  As I pointed out to her, however, the issue is whether the costs have been reasonably and properly incurred.  I am satisfied that they have.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 10 September 2015