SZVKN v Minister for Immigration

[2015] FCCA 3557

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3557

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of the decision of the Refugee Review Tribunal – no satisfactory explanation for the delay – lack of merit of the substantive application – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

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

Cases cited:
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
WZASQ v Minister for Immigration & Anor [2013] FCCA 1726

Applicant: SZVKN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3049 of 2014

Judgment of: Judge Nicholls

Hearing date: 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Sydney

Delivered on: 25 March 2015

REPRESENTATION

Applicant: In Person

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

ORDERS

1. The application made on 3 November 2014 for an extension of time pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3049 of 2014

SZVKN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 3 November 2014 asking the Court to extend the time by which the applicant can make a competent application pursuant to s.476 of the Act to seek review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 September 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

The Extension of Time

1. Section 477(1) of the Act provides that such applications (pursuant to s.476 of the Act) must be made within 35 days of the date of the Tribunal’s decision. The Tribunal’s decision was made on 25 September 2014 (CB 99). Therefore, the application for review pursuant to s.476 of the Act needed to have been made on or before 30 October 2014. The application was lodged on 3 November 2014. Therefore, it is 4 days out of time. As it stands, the application is not competent.

2. Section 477(2) of the Act provides that the time set out in s.477(1) of the Act may be extended where an application seeking an extension of time has been made in writing, and the Court considers that it is in the interests of the administration of justice to do so.

3. The applicant has made such an application. The grounds in support are in the following terms (applicant’s application of 3 November 2014):

   “1. I didn’t know I was out of time.

   2. I was looking for a lawyer.

   3. I was collecting my evidents”

   [Errors in the original.]

4. The issue now, therefore, is whether the extension of time should be granted. The elements relevant to this are not exhaustive (SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55]). However, as I identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], some of the elements include the length of the delay, any satisfactory explanation for it and the merits of the grounds in the proposed substantive application.

Before the Court

1. Orders made in this matter at the first Court date on 27 November 2014 set down the application for an extension of time for hearing on 25 March 2015. The applicant was given the opportunity to file any evidence by way of affidavit and any amended application. Nothing further has been filed.

2. The applicant appeared at the hearing today in person and was assisted by an interpreter in the Mandarin language. Ms F Taah appeared for the Minister. The applicant was, and continues to be, held in “Immigration Detention”. A bundle of relevant documents was in evidence before the Court (“the Court Book” – “CB”).

3. It is not clear whether the applicant sought to press his application for an extension of time, or indeed whether he sought to press any of the purported grounds of the proposed substantive application.  When given the opportunity by the Court today to say whatever he wanted to say, the applicant responded that he had nothing to say. 

4. It is not clear, therefore, what purpose the applicant sought to achieve by coming to Court today.  In spite of the applicant's lack of prosecution of his matter, it is nonetheless necessary to address the application for an extension of time.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 5 September 2009 on a student visa (CB 14). The applicant’s student visa expired on 15 March 2012 and the applicant has remained in Australia since that date. On 15 July 2014 the applicant was located and detained by departmental officers as an “unlawful non citizen” (CB 1 to CB 11). The applicant applied for a protection visa on 18 August 2014 (CB 12 to CB 45). His claims to protection were supported by an attached statement (CB 46).

2. His claims to protection were that he would be forced to join the military if he returned to China. The applicant had undergone military training in high school, but had left the training early, which resulted in him being forced to leave the school and this damaged his reputation (CB 46).

3. On 4 September 2014 the delegate refused the application for a protection visa (CB 63 to CB 78). The delegate found that the applicant was not a credible witness (CB 70 and CB 76).

4. The applicant applied for review to the Tribunal on 8 September 2014 (CB 79 to CB 80). The applicant attended a hearing before the Tribunal on 25 September 2014 (CB 93 to CB 95). On the same day, the Tribunal affirmed the delegate’s decision to refuse the grant of a protection visa to the applicant (CB 99 to CB 106).

5. The Tribunal considered the applicant’s evidence at the hearing to be “vague, unconvincing and [lacking] credibility” ([33] at CB 105). The Tribunal raised the issue of the applicant’s five year delay in making a visa protection application ([17] at CB 103). The Tribunal found the applicant’s submissions “unconvincing” in this regard “in light of other evidence”, which indicated that the applicant had engaged a migration agent in Australia, in relation to another visa application, had lived with Australian relatives, and had previously applied for judicial review ([34] – [35] at CB 105 to CB 106).

6. The Tribunal found the applicant had failed to provide credible evidence for what he had been doing in Australia for the past 5 years, his ongoing financial situation and his family circumstances in China, the USA and Australia ([33] at CB 105).

7. The Tribunal noted that the applicant omitted to claim to fear harm on return to China at his Compliance Client Interview with a departmental officer ([35] at CB 106).

8. Overall, the Tribunal did not find “the applicant a credible witness, and finds that he fabricated all of his claims regarding his experiences in both China and Australia leading to claims for protection” ([36] at CB 106). The Tribunal found that the applicant’s claim to fear harm on return to China was not well-founded in the context of the Refugees Convention ([36] at CB 106).

9. The Tribunal found that the applicant would not be at risk of significant harm on complementary protection grounds noting its earlier finding in its decision record that “the applicant was not a credible witness, and that he fabricated all of his claims regarding his treatment and experiences in China and Australia” ([38] at CB 106).

The Extension of Time

1. The extension of time application directs attention to the fact that the proposed substantive application was lodged four days out of time. The application for the extension of time provides three broad grounds to support the extension of time.

2. The applicant’s explanation for his delay was that he was unaware that he was out of time, that he was looking for a lawyer and that he was “collecting” his evidence.

3. Despite the opportunity to provide relevant evidence which the applicant was given in orders made in November of last year, there is nothing from the applicant in an evidentiary context to explain the delay.

4. In these circumstances, it cannot be said that a satisfactory explanation for the delay has been provided to the Court.  The Minister submits that in these circumstances, that, in itself, would be sufficient to refuse the extension of time, and the Minister relies on authority of this Court in support of that proposition (WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [15]).

5. In any event, even if I were to accept the explanation proffered in the grounds of the application to extend time, and noting that the delay is a short period of 4 days, I do not consider it to be in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act. This is because the grounds of the proposed substantive application lack merit.

The Grounds of the Substantive Application

1. The grounds of the substantive application are as follows:

   “1. Tribunal made a jurisdictional error by falling

   2. I didn’t have lawyer last time.

   3. I will provide evidences this time.”

2. As I said earlier, none of these assertions were explained by the applicant before the Court today despite the opportunity given to him.  The Court was therefore left with what was written in the application to the Court. 

3. The grounds of the substantive application lack merit. Even if time were to be extended, the grounds lack any merit such that they could be said to have any, let alone a reasonable, prospect of success at a final hearing.

4. Ground one, with respect to the applicant, is meaningless. It asserts no jurisdictional error. At their highest, grounds two and three may be said to be an attempt to argue that if the applicant is given another opportunity before the Tribunal, he would engage a lawyer and provide evidence.

5. The Tribunal's conclusions, and its findings of fact that informed those conclusions, were reasonably open to it on what was before it.  I cannot see that there is any error in the exercise of the Tribunal's jurisdiction in this regard.  I should note that the Tribunal was entitled to take into account the applicant's claim to fear harm in China, based on events that he said that occurred there, and that this also should be seen in light of what the Tribunal found to be the long delay in the applicant applying for a protection visa after arrival in Australia.

6. That is, that the applicant's claim to fear harm was based on events said to have taken place before his arrival in Australia, yet he waited many years before making a claim to protection.  The Tribunal was also, in my view, reasonably entitled to rely on the fact that it found that the applicant had engaged a lawyer and had sought judicial review in relation to another application for another visa. 

7. In short, the Tribunal was plainly of the view that he applied for a protection visa after being found by immigration officials as having remained in Australia without lawful authority. Not only, therefore, is there no assertion of jurisdictional error in the grounds of the proposed substantive application, nor on the evidence before me, can I see that any other jurisdictional error arises in the Tribunal's decision. 

Conclusion

1. The grounds of the proposed substantive application lack any merit and, therefore, do not support the granting of the extension of time sought by the applicant.  The extension of time, therefore, should be refused on that basis, and on the basis that there is no evidence to provide any satisfactory explanation for the delay. Nor can I see that there is any other circumstance in this case that would argue for the granting of the extension of time. Nor, despite opportunity today, has the applicant said anything to give rise to any concern that there may be some other relevant factor that could have assisted him in his application before the Court today.

2. In all, therefore, the application to extend time should be refused, and I will make the order as sought by the Minister.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 25 March 2015