SZVKD v Minister for Immigration

[2015] FCCA 2921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2921

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – extension of time application under s.477 of the Migration Act 1958 (Cth) – bias –no jurisdictional error – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

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

Applicant: SZVKD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3028 of 2014

Judgment of: Judge Street

Hearing date: 29 October 2015

Date of Last Submission: 29 October 2015

Delivered at: Sydney

Delivered on: 29 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M Glavac
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for extension of time under s.477 of the Migration Act 1958 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3028 of 2014

SZVKD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of Tribunal made on 22 September 2014 affirming the decision of the Delegate not to grant the applicant a protection (Class XA) visa.

2. The application was filed on 31 October 2014 outside the 35 day period provided under s.477 when, accordingly, an extension of time is required under s.477 of the Migration Act 1958. In that regard, an extension of time ordinarily requires a satisfactory explanation for the delay and a sufficiently arguable ground to warrant an extension of time in the interests of the administration of justice. This matter was the subject of directions on 20 November 2014, providing an opportunity for the applicant to file affidavit evidence, an amended application and submissions, and fixing the matter for hearing today in relation to an extension of time or under r.44.12 for a show cause hearing. No documents were filed by the applicant.

3. The applicant was found to be a Chinese national and that China was the appropriate country of reference for the assessment of the applicant’s refugee claims and as the receiving country for assessment of the complementary protection claims. I accept the first respondent’s submission that no explanation has been advanced in relation to the delay in the filing of the application and, on that ground alone, I refuse to extend time under s.477 of the Migration Act 1958.

4. The ground of the application is as follows:

   The tribunal kept mention that my evidence was vague and unusual. However, such consideration was very subjective.  The tribunal did not believe that I am a genuine refugee at the first place.  This is unfair and injustice.

5. I accept the first respondent’s submission that the ground identified fails to identify any arguable jurisdictional error.  The bald assertion of “unfairness and injustice” does not identify an arguable jurisdictional error.  It was a matter for the Tribunal to determine whether it accepted the applicant’s credit or not in relation to the applicant’s claims and evidence.  This was a case where the Court found the applicant not to be a credible, truthful or reliable witness and identified reasons in relation to the findings made that the applicant’s evidence was vague, evasive, changing and inconsistent.

6. The Tribunal set out the basis for its adverse findings in relation to the applicant’s credit and, accordingly, the reference in the applicant’s grounds to the Tribunal not believing that he was a genuine refugee fails to identify any arguable jurisdictional error.  To the extent that the ground refers to the consideration by the Tribunal as being subjective, the Tribunal provided detailed reasons.  Insofar as the adverse findings are said to be a basis upon which the Tribunal might be said to have biased, that is an allegation that must be clearly made and properly proved.  No such allegation is proved. 

7. Further, adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits.  The ground identified in the application fails to identify any arguable jurisdictional error. 

8. The applicant arrived in Australia on 14 August 2013 as the holder of a tourist visa subclass 600 granted on 22 July 2013 that was valid for three months.

9. The application for protection was lodged on 26 August 2013.  In summary, the applicant’s claim of fear of persecution was based on allegations in relation to conduct of a gangster in China, for whom the applicant did some work and from local police who the applicant contended were in league with the gangster.  It was in these circumstances that the Tribunal made the following relevant findings.

   24. The Tribunal has considered whether there could be any other reason for the difficulties with the applicant’s evidence, such as nervousness at appearing before a Tribunal, however the Tribunal does not accept that this can explain the difficulties with his evidence. The Tribunal has also considered the applicant’s vague and evasive evidence in relation to how he completed his protection visa application form, and whether this could be relevant to the inconsistencies referred to above. However, the applicant finally said to the Tribunal that what he had told the person who assisted him to fill in the application form was true and correct, and the Tribunal is not satisfied that the assistance the applicant received to complete the protection visa application form can explain the inconsistencies in his evidence.

   Credibility summary 

   25. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims.

   Findings of fact

   26. On the basis of the adverse credibility finding, the Tribunal finds that the applicant has not been truthful about his work and employment in China. The Tribunal does not accept that: the applicant operated a small business; during which time he did work for a gangster; the gangster did not pay him; the gangster did not like his work; the gangster threatened and physically harmed him; the gangster’s behaviour cause the applicant to leave his province and start work in [X] province; the gangster caused the applicant to be underpaid for work he did in [X] province; the gangster threatened his family, or told his wife that the applicant should not return to China; the gangster organised for the applicant to be detained; or that the applicant was detained at all. The Tribunal does not accept that the applicant holds or has held a genuine fear of harm from the gangster or his followers or police, nor that there is any chance of the applicant facing harm from a gangster or his followers or police or any other Chinese authority.

   27. The Tribunal considers that the applicant does not face a real chance of serious harm in the reasonably foreseeable future on the claimed bases.  The Tribunal is not satisfied that anyone seeks to cause the applicant (or his family) harm now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future in China. The Tribunal finds that the applicant does not meet the refugee criterion in s.36(2)(a).

   Complementary protection

   28. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied as to the applicant’s claims other than it accepts that he is a 44-year-old man from China. The Tribunal does not accept on the evidence before it that if the applicant was to return to China, there is any reason for him to face a real risk of significant harm. On the evidence before it, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

   29. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

10. For the reasons given, I am satisfied the application fails to identify any arguable case of jurisdictional error, and that in these circumstances an extension of time is not warranted in the interests of the administration of justice. Further, if the matter was not one in respect of which an extension of time was required under s.477, for the reasons given I would have been satisfied it was appropriate to exercise the Court’s powers under r.44.12 to dismiss the application under r.44.12 for want of an arguable case. The application for an extension of time under s.477 is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015