SZVIV v Minister for Immigration and Border Protection
[2015] FCA 736
•20 July 2015
FEDERAL COURT OF AUSTRALIA
SZVIV v Minister for Immigration and Border Protection [2015] FCA 736
Citation: SZVIV v Minister for Immigration and Border Protection [2015] FCA 736 Appeal from: Application for extension of time and leave to appeal: SZVIV v Minister for Immigration and Border Protection [2015] FCCA 1572 Parties: SZVIV and SZVIW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 635 of 2015 Judge: FARRELL J Date of judgment: 20 July 2015 Catchwords: MIGRATION – application for extension of time to seek leave to appeal and for leave to appeal – appeal from decision of Federal Circuit Court dismissing application for judicial review – decision of Refugee Review Tribunal affirming decision of delegate of Minister to refuse protection visa – consideration of merits of proposed grounds of appeal 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)
Migration Act 1958 (Cth) s 425Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZVIV v Minister for Immigration and Border Protection [2015] FCCA 1572Date of hearing: 20 July 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicants: The applicants appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Counsel 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 635 of 2015
BETWEEN: SZVIV
First ApplicantSZVIW
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
20 JULY 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 applicants 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 635 of 2015
BETWEEN: SZVIV
First ApplicantSZVIW
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
20 JULY 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 Nicholls of the Federal Circuit Court of Australia delivered on 13 May 2015: see SZVIV v Minister for Immigration and Border Protection [2015] FCCA 1572 (“SZVIV”).
At the commencement of the hearing, the Minister sought leave to change the name of the second respondent to “Administrative Appeals Tribunal”. I granted that leave.
BACKGROUND
The applicants are husband and wife who are citizens of the People’s Republic of China. Only the first applicant (“wife”) made a claim to protection. The second applicant (“husband”) was included in the visa application as her spouse.
The first applicant arrived in Australia on 19 April 2012 as the holder of a tourist visa, which expired on 19 July 2012. The first applicant applied for a Protection (Class XA) visa on 12 July 2012. The application was refused by a delegate of the Minister on 11 October 2012.
The basis for the wife’s claim for protection was set out at [4]-[5] of the primary judge’s judgment as follows (references to the court book omitted):
The applicant claimed to fear harm in China because she is a Falun Gong practitioner. She claimed to have begun practicing “Falun doctrines” to improve her health. The applicant claimed that her parents, and one of her sisters, were Falun Gong practitioners. Further, that her mother had been imprisoned, and injected with a needle while detained, which the applicant believes led to her mother’s death after she was released. Her sister also passed away at this time. The applicant also claimed that she unsuccessfully sought to “clarify” with the authorities details relating to her mother’s name, and that she raised concerns about her mother’s “murder”. She claims that, in “retribution”, the government sought out her employer and the second applicant’s employer to “put pressure” on her. She then withdrew her application to “be left in peace”.
The applicant’s father was allegedly detained by police on 13 January 2012 and his house was “raided”. The applicant received a “Criminal Detention Notice” stating that her father was detained “for utilizing cult organization to crush the legal system”. Her father was released on 23 January 2012 and urged the applicant to leave China. Later in the year her father was taken by the government for “brainwashing classes” and they threatened him with “danger” towards the applicant.
TRIBUNAL DECISION
The wife applied to the Refugee Review Tribunal (as it was then known) for review of the delegate’s decision on 7 November 2012. The Tribunal affirmed the delegate’s decision on 30 September 2014. The Tribunal summarised its conclusions at [33]-[34] of its Statement of Decision and Reasons (“Statement”):
… I am not satisfied that the applicant’s fear is genuine. I do not accept that the applicant’s claims are true. I am satisfied that she has fabricated her claims to be a Falun Gong practitioner and to have experienced harm in the past for this reason. To the extent that the second applicant has provided evidence in support of the applicant’s protection claims, I am satisfied that he has fabricated that evidence in order to support the applicant’s protection claims. I find that neither applicant has told the truth in their evidence.
It follows, therefore, that there is no basis on which I could be satisfied that her fear is well-founded (the refugee criterion for a protection visa), and neither is there any basis on which I could be satisfied that there is a real risk of significant harm (the complementary protection criterion).
The Tribunal found that the wife’s evidence at the Tribunal’s hearing differed from the claims she presented in her protection visa application and written statement: see [41] of the Statement. It was of “greatest concern” to the Tribunal that she had raised several new protection claims for the first time at the hearing. One of the new claims was that she had been dismissed from her job in 2009 and unemployed in 2010 as a result of pursuing her inquiry into her mother’s cause of death.
The Tribunal found that the fact that the wife was twice able to depart China using travel documents in her own name and return once from a visit to Korea supported the finding that she was not in fact of any interest to the Chinese authorities: see [45] of the Statement. The Tribunal also found that the wife’s voluntary return to China from a visit to Korea after she said that her mother and sister had died was not “consistent with a genuine fear of harm”: see [44] of the Statement.
The Tribunal found that the wife did not provide a copy of a “Criminal Detention Notice” issued in relation to her father because it did not exist, because her father was not detained as claimed: see [48] of the Statement.
The Tribunal also referred to the wife’s delay in seeking protection in Australia, the lack of an attempt to leave China after the incident involving her mother and sister, and her delayed departure from China for almost a month after her Australian tourist visa was granted in concluding that the applicant did not have a genuine fear of harm: see [49], [50], and [51] of the Statement.
FEDERAL CIRCUIT COURT DECISION
The applicants sought judicial review of the Tribunal’s decision by an application filed on 24 October 2014. The application, which was amended on 23 January 2015, pleaded four grounds (as written):
1, I disagree with Immigration and RRT's decision since I am a genuine Falungong member. They did not consider that I will be in danger if I return.
2, RRT did not consider that I am still actively practicing in Australia and it will also bring me a big trouble if I return home.
3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.
4. RRT is unreasonable to infer the conclusion and it is wrong citation information involved in the last sentence of paragraph 29. (‘the original of which he had produced at the hearing and which had been issued in March 2998’).
The Federal Circuit Court convened a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”) on 13 May 2015. The primary judge found that no arguable case for the relief sought was raised and dismissed the application.
The primary judge rejected ground one on the basis that it sought impermissible merits review; his Honour found that the Tribunal’s findings and its conclusion based on them were reasonably open to it: SZVIV at [28].
The primary judge rejected ground two on the basis that the wife had not made any claim to the Tribunal based on her practice of Falun Gong in Australia. The primary judge found that, despite opportunities to present evidence that she had made such a claim, there was none. He noted that in her written statement concerning her claims to fear harm which accompanied her application for protection the wife said that the officers of the Department of National Security had: “... warned my father that if they discovered that we were joining in Falun Gong overseas, they would never leave us in peace.” He found that on a fair reading this was not a claim that the wife was a Falun Gong practitioner either in China or overseas and that it was open to the Tribunal, for the reasons that it gave, to find that the wife was not a Falun Gong practitioner and would not suffer harm if she returned to China for that reason: SZVIV at [28]-[32].
In relation to ground three, the primary judge said that this claim appeared to be that the Tribunal rejected the truthfulness of the wife’s claims because she did not provide evidence in support of them. He rejected this ground because the Tribunal’s adverse credibility finding was based on the Tribunal’s various findings of inconsistencies and inadequacy in the evidence provided by the applicants and those findings were not illogical and were reasonably open to the Tribunal: SZVIV at [33]-[35].
Finally, the primary judge held that ground four was an attempt by the applicants to take issue with the factual findings of the Tribunal, which were properly within the Tribunal’s jurisdiction to make. As regards the error in the date identified by the applicants, the primary judge held that the error was simply typographical, and was not a “material error to the Tribunal’s findings, nor its ultimate conclusion and decision”: SZVIV at [37]-[42].
APPLICATION TO THIS COURT
The primary judge’s judgment is interlocutory in nature: r 44.12(2), Federal Circuit Court Rules. Therefore, the applicants require leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth).
The primary judgment was delivered and orders were made on 13 May 2015. 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 orders made. To be within time, an application should have been filed by 27 May 2015. The applicants filed their application for extension of time in this Court on 2 June 2015, 6 days later.
The applicants rely on eight grounds in their application. They are (as written):
1. The Applicant failed to receive a copy of judgement and reasons of judgement from the Court despite her repeated attempt to search for the actual judgement. After the expiry of the 14 days, she still is unable to obtain her copy of judgement.
2. The applicant does not have any legal advice or assistance in relation to the court processes.
3. The applicant was misadvised by the Court officer that the copy of the Judgement will be sent to them by post, but that never comes.
4. The first and the Second Respondents failed to consider the risk of significant harm to the applicant due to the imputation of a political opinion to the Applicants by the Chinese authorities and the most probable consequences on their forced return to China due to their forbidden practices of their religion.
5. The Second Respondent failed to give the Applicants an opportunity for a fair hearing in accordance with s 425 of the Migration Act.
6. The Second Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination.
7. The Second Respondent denied the applicant natural justice or procedural fairness in making the determination.
8. In the determination of the Second Respondent was in an improper exercise of power whereby no relevant considerations have been taken into account other than the decision record of the First Respondent, and the Second Respondent allegedly did not fairly conduct the fact finding under the statutory requirement by way of using irrelevant line of questioning in the hearings.
In determining the application for an extension of time, the Court must have 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 delay 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.
The applicants appeared in person and with the assistance of an interpreter. They provided no written submissions. The Minister provided written submission and appeared by his representative.
CONSIDERATION
The Minister’s representative submitted that both the grant of an extension of time and leave to appeal should not be allowed because the substantive appeal lacks merit and has no prospect of success. The Minister accepted that the Court would not treat the short delay as an impediment to the grant of an extension of time if the proposed grounds were sufficiently meritorious and that it would suffer no material prejudice if the extension of time were granted.
The primary focus of the Court at the hearing was the prospects of success of the substantive appeal. The hearing was conducted on the basis that grounds one to three of the application are directed to the application for an extension of time and did not require further consideration. Grounds four to eight are directed to the substantive grounds of appeal on the basis of which leave to appeal is sought.
The wife’s submissions in relation to grounds five, six and eight were essentially the same: she submitted that the Tribunal failed to provide a “risk assessment”, that is, it did not consider that if she had been dismissed by her employer for the reasons set out in her application for protection and if she returned to China she will not be able to survive because the Department of Public Security will find her and she will not be able to work. She says the Tribunal did not sufficiently take into account that if she were returned to China she would not be able to find employment and therefore could not survive. She submitted that persecution need not be physical; it can be mental resulting from incapacity to work. The wife confirmed that her concerns arose out of events in China, not because of anything which has occurred since she left China.
In relation to ground seven, the wife submitted that the Tribunal’s process was not fair because it required evidence of her father’s detention, but she says that the applicants left China secretly and it was not possible to take documentation of that kind through customs.
The Minister’s written submissions contended that ground four invites impermissible merits review and the other grounds were insufficiently particularised and did not relate to the grounds considered by the primary judge.
With the benefit of the applicants’ oral submissions, grounds four, six, seven and eight raise essentially the same issues as those raised before the primary judge with some elaboration in relation to the nature of the meaning of “persecution”. For the reasons given by the primary judge, I consider that it was open to the Tribunal to make the findings which it did and to draw the conclusions as to the credibility of the applicants and their claims to protection that it did. No jurisdictional error by the Tribunal or legal error by the primary judge is disclosed. Grounds four, six, seven and eight should therefore be rejected. In relation to ground five, the applicants failed to provide any particulars and the ground was not argued before the primary judge. Having regard to the Tribunal’s detailed Statement, I see no basis on which to find that the applicants were not afforded a hearing as required by s 425 of the Migration Act 1958 (Cth) and I would not be disposed to grant leave to appeal to raise it now.
I dismiss the application. I will order that the applicants pay the first respondent’s costs as agreed or taxed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 20 July 2015
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