SZVHA v Minister for Immigration

[2015] FCCA 2480

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2480

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 424AA, 425

SZBYR v Minister for Immigration (2007) 235 ALR 609
SZVCK v Minister for Immigration [2015] FCCA 2460

Applicant: SZVHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2853 of 2014

Judgment of: Judge Driver

Hearing date: 10 September 2015

Delivered at: Sydney

Delivered on: 10 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison Lawyers

INTERLOCUTORY ORDERS

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

2. 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 1958 is extended up to and including 15 October 2014.

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

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2853 of 2014

SZVHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 15 October 2014 seeking review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), made on 8 September 2014.  The application was filed two days out of time and the applicant identified on the application form that he sought an extension of time.  The application was accompanied by an affidavit, which I received, in which the applicant explained his delay in the filing of his application.  He states relevantly that he forwarded an application to the Court registry within the prescribed time limit and was given a receipt number by Australia Post for the item which he had sent by Express Post.

2. On 10 October 2014, the applicant apparently attended the Court registry to check on his application and was told by a registry officer that there was no record of it.  The applicant showed the registry officer the Express Post receipt and was advised to re-lodge his application.  That is what he did. 

3. For the purpose of considering the extension of time application, I also received into evidence the court book filed on 3 December 2014.  The applicant denied receipt of that court book, although it was established from Exhibit R1, being a letter dated 3 December 2014, that the Minister’s solicitors posted the court book to the applicant to his address for service as notified on 4 November 2014.

4. I provided to the applicant the original of the court book from the court file and explained its contents to him.  I am satisfied that he has not been unfairly disadvantaged by the late provision of the court book. 

5. Both the applicant and the Minister filed written submissions and also made oral submissions this morning.  I am persuaded, on the basis of the applicant’s affidavit, augmented by his written submissions, that he has advanced a satisfactory explanation for his delay in coming to Court.  It is unfortunate that he has apparently lost the Australia Post receipt for the original application sent by Express Post but he was not required for cross-examination and his evidence of what he did is unchallenged.  It is a little odd that the applicant’s evidence appears to be that he attended the Court registry on 10 October 2014, three days before the expiry of the time limit, but took another five days to file the application upon which he now relies.  Nevertheless, given that the delay was very short and the explanation is, on its face, plausible, I am willing to accept that the interests of the administration of justice require the granting of an extension of time in order to permit the application to be considered on its merits.

6. In that regard, I note that when the matter came before me for first court date directions on 4 November 2014, I gave the applicant the opportunity to file and serve an amended application giving complete particulars of each ground of review relied upon, plus additional evidence.  He has not taken up those opportunities. 

7. The matter was listed today for a hearing on the question of an extension of time and, if necessary, a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). The consequence of the granting of the extension of time, as I explained to the parties, is that the hearing proceeded on the basis of a show cause hearing. The issue, therefore, is whether the applicant has advanced an arguable case of jurisdictional error by the Tribunal. I did not consider the legal merits of the application for the purpose of granting an extension of time, for the reasons I gave in SZVCK v Minister for Immigration[1].

   [1] [2015] FCCA 2460 at [17]

8. The Minister’s submissions set out the factual background to his protection visa application and the Tribunal decision on it. The applicant is a citizen of China who applied for a protection visa on 2 August 2013[2]. In a statement accompanying his protection visa application the applicant claimed that his property had been subject to compulsory acquisition by the Chinese government, and that the government had paid him inadequate compensation. When he complained he was kidnapped and beaten. He further claimed that, were he to return to China, he would continue to protest the inadequate compensation and will be harmed or killed as a result.

   [2] Court Book (CB) 1–59

9. On 31 January 2014, the applicant attended an interview with the Minister’s delegate. On 24 February 2014, the delegate refused to grant the applicant a protection visa[3]. The delegate was concerned that the applicant’s assertions were not corroborated by documentary evidence, and did not accept the applicant's explanations for the lack of corroborative documentary evidence. In the absence of such corroboration, the delegate was not satisfied as to the veracity of the applicant's claims.

   [3] CB 84–110

10. The applicant applied to the Tribunal on 21 March 2014 seeking review of the delegate's decision[4]. The applicant provided a number of documents in Chinese with English translations, to the Tribunal on 27 May 2014. Specifically, these documents were a distribution notice, a compensation agreement, a property valuation, a property title certificate, a notice of eviction and two photographs[5]. The applicant appeared at a hearing before the Tribunal on 26 August 2014 to give evidence and present arguments[6].

    [4] CB 111–121

    [5] CB 130–158

    [6] CB 174–176

11. By decision dated 8 September 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa[7].

    [7] CB 186–195

The Tribunal decision

1. The Tribunal found that the applicant was not a witness of truth[8]:

   a)the Tribunal did not accept the applicant’s claims that he owned property that was later demolished by a government building project[9];

   b)the Tribunal did not accept that the applicant was offered a compensation agreement, the amount of which he disagreed with, or that he was kidnapped, beaten and threatened in order to get him to sign that agreement[10];

   c)the Tribunal did not accept the applicant’s wife was threatened after he left China[11]; and

   d)the Tribunal did not accept the applicant’s claims that he would be harmed or killed if returned to China[12].

   [8] CB 188 at [11]

   [9] CB 188 at [11] -[13] and CB 191 at [25]

   [10] CB188 at [11], CB 189 at [14] -[19] and CB 191 at [25]

   [11] CB188 at [11], CB 189 at [19] and CB 191 at [25]

   [12] CB188 at [11], CB191-192 at [26]

2. The Tribunal was particularly concerned with the bundle of documents provided by the applicant to the Tribunal on 27 May 2014. The Tribunal noted that, at the interview with the delegate, the applicant had said that he had no documents, other than photographs, relating to the offer of compensation made to him, or any other paperwork relating to his property dispute

3. The documents were not provided by the applicant until well after the delegate raised the issue of the lack of documentation in his decision record[13]. The Tribunal put this concern to the applicant at the hearing, pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act)[14] and the applicant responded immediately that he was not concerned a lot about the grant of the protection visa, but the events did happen. He also told the Tribunal that if his protection visa application were refused he would be fine and would return to China immediately[15].

   [13] CB190 at [21]

   [14] CB190 at [22]

   [15] CB190-191 at [23]

4. The Tribunal did not accept the applicant's explanation for the inconsistencies in his evidence, and found the inconsistencies to raise significant concerns about his credibility and the genuineness of the documents received by the Tribunal[16]. Noting the prevalence of document fraud in China, the Tribunal found that the applicant's documents had been fabricated[17] and found that the applicant was not a truthful witness, and as such rejected all of his core protection claims[18].

   [16] CB 190-191 at [23]

   [17] CB 191 at [24]

   [18] CB 191 at [25]

The present application

1. There is a general assertion of jurisdictional error by the Tribunal.  The applicant’s difficulty is that the grounds in his application do not clearly point to any particular jurisdictional error, except, perhaps, the assertion of a failure to properly consider his claims.  That assertion is not supported by the terms of the Tribunal decision.  The applicant had been found by the delegate not to be a truthful witness.  His credibility was clearly in issue before the Tribunal.  Unfortunately, the applicant did not help his cause by submitting documents to bolster his claims which the Tribunal rejected as fabrications.

2. The Tribunal put its concerns to the applicant at the hearing conducted, pursuant to s.425 of the Migration Act, in purported compliance with s.424AA of the Migration Act. The applicant chose to respond immediately but his explanations were not accepted by the Tribunal.

3. No jurisdictional error is evident from the face of the Tribunal's decision or from the material before the Court.

4. The Tribunal's conclusions as to the applicant's credibility were logically and reasonably open to it on the evidence before it. The basis of that adverse credibility finding was that the applicant's oral claims to the delegate and the documentary evidence to the Tribunal were contradictory, and the applicant did not provide a satisfactory explanation for that contradiction. This issue was clearly raised with the applicant for comment in the context of the hearing, and as such the Tribunal complied with its obligations under s.425 of the Migration Act.

5. As the basis of the Tribunal's finding was the inconsistency between the applicant's oral claims to the delegate and the documentary evidence to the Tribunal, this would not constitute “information” that would attract obligations under s.424A(1) of the Migration Act[19]. However, in any event, the applicant's documentary evidence to the Tribunal would be exempt from obligations under subsection 424A(1) by s.424A(3)(b), and the Tribunal did put the applicant's oral claims to the delegate to him for comment in compliance with s.424AA of the Migration Act. Consequently, to the extent that any obligations did arise under s.424A(1) of the Migration Act, they were properly discharged by the Tribunal.

   [19] cf. SZBYR v Minister for Immigration (2007) 235 ALR 609

6. In his closing submissions, the applicant told me that he did not require protection, provided that he was permitted to stay in Australia for a period sufficient for his asserted problems in China to be dealt with. I note that he said much the same to the Tribunal.  The applicant is presently holding a bridging visa, which he will retain until the legal process upon which he has embarked has been completed.  As I pointed out to him, he has, for practical purposes, got more or less what he has sought. 

7. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules, that the application be dismissed.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale at the time that the application was filed.  The applicant sought an explanation for the costs order, which I gave him.  He claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  

9. I will order, that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  15 September 2015