SZVKP v Minister for Immigration & Border Protection

[2015] FCCA 787

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 787

Catchwords:
MIGRATION – Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 424AA, 477

Cases cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34
Singh v Minister for Immigration and Citizenship [2013] FCA 813
SNSYE v Minister for immigration and Citizenship [2010] FCA 500
Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
SZIQP v Minister for Immigration and Citizenship [2008] FCA 169
SZHFX v Minister for Immigration and Citizenship [2008] FCA 355
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant: SZVKP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3058 of 2014

Judgment of: Judge Emmett

Hearing date: 27 March 2015

Date of Last Submission: 27 March 2015

Delivered at: Sydney

Delivered on: 27 March 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Ramiya Krishnan
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3058 of 2014

SZVKP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review, filed on 4 November 2014, is in excess of 300 days from the date of the decision sought to be reviewed.

2. Pursuant to s.477(1) of the Act, the applicant was required to file and serve his application for judicial review of the RRT decision within 35 days of the date of the decision.

3. The decision of the Refugee Review Tribunal (“the RRT”) is dated 21 October 2013. In the circumstances, the applicant’s application for judicial review to this Court, filed on 3 November 2014, is 344 days in excess of the 35 day time limit provided for in s.477(1) of the Act.

4. Under s.477(2) of the Act, this Court has power to extend time to the applicant if it is satisfied that it is necessary in the interests of the administration of justice to do so.

5. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

6. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]).

7. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19]).

8. The applicant attended a directions hearing on 5 March 2015 before a Registrar of this Court. On that occasion, the applicant was directed to file and serve by 18 March 2015 by way of affidavit any evidence to be relied upon, together with written submissions in support of the applicant’s application for an extension of time. The applicant was further provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, together with a copy of the costs schedule of this Court.

9. The applicant confirmed to the Court this morning that there have been no documents filed by him, either in accordance with those directions or otherwise.

10. The applicant confirmed that he relied on the explanation for his delay as identified in the applicant’s application for judicial review, filed 4 November 2014. The applicant identified the grounds of his application for an extension of time as follows:

    “1. I have been suffering from financial hardship, I could not afford the court application fee until today. (sic)

    2. I could not afford the professional people or lawyer fee to complete my application.

    3. Now I borrowed the application fee and I wish the court to accept my application.”

11. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.

12. I explained to the applicant that the particular factors that will be operating on the Court’s mind in considering the applicant’s application for an extension of time are his explanation for his delay and the prospects of success of his application for judicial review.

13. The applicant confirmed that his explanation for his delay in filing his application for review of the RRT was that he has been suffering from financial hardship and could not afford professional people or lawyers to complete his application, and that he eventually borrowed the application fee.

14. The solicitor for the first respondent, Ms Krishnan, confirmed that she did not wish to cross examine the applicant and, for that reason, the applicant was not required to give that evidence under oath.

15. The applicant’s explanation for his delay is unacceptable in light of the significant delay of more than 300 days. It was open to the applicant at any time to make an application to waive the application fee in this Court. There is no evidence before this Court to suggest that any such application was made and refused.

16. The background of this matter and the RRT’s decision record are accurately summarised by the first respondent in their written submissions as follows:

    “Background

    5. The applicant is a 25 year old citizen of China who first arrived in Australia in December 2007 on a student visa, which ceased on 15 March 2010. On 23 July 2012 the applicant applied for the visa: Court Book (CB) 1-36. On 23 October 2012 he attended a Department interview and on 29 October 2012 a delegate of the Minister refused his visa application: CB 39 and CB 52-63. The applicant sought review of the delegate’s decision on 22 November 2012: CB 64-68. He appeared before the Tribunal on 9 October 2013: CB 78-80.

    6. The applicant claims that his mother worked at the Birth Control Council in China for more than 10 years: CB 30. While there, she refused to engage in and sought to report corruption in the implementation of birth control policy: CB 31-32. As a result, the applicant and his family have been imputed with an anti-government political opinion. His family have suffered harm for this reason. His mother was charged with economic fraud in May 2011, convicted and sentenced to one year’s imprisonment: CB 33. His father lost his business and his sisters, who had worked in his father’s business, were forced to leave their hometown to make a living: CB 33-34. Should the applicant return to China he will also suffer harm at the hands of corrupt officials: CB 34.

    TRIBUNAL DECISION

    7. On 21 October 2013 the Tribunal affirmed the delegate’s decision. Having regard to the vague and changing nature of his claims and evidence, the Tribunal found that the applicant was not a witness of truth and that the account of events on which his protection claims were based was false: CB 96 [22]. In particular, it expressed concern about the following:

    7.1 The applicant’s inconsistent evidence as to when he first learned of threats to his family and thus threats to himself. There was a gap of some 3 years between when he told the delegate and the Tribunal this had taken place: CB 93 [14]

    7.2 The applicant’s inconsistent evidence as to who told his mother not to issue invoices to villagers upon payment of social compensation fees. In his statement provided in support of his visa application, he said that it was Mr Xinan Zhang. However, at the Tribunal hearing he said that it was Mr Hualin Chen. The Tribunal did not accept the applicant’s explanation that ‘Mr Zhang only talked to his mother, but it was Mr Chen who had threatened his mother’ as it was directly contradicted by the applicant’s statement, in which he said Mr Zhang ‘became angry and threatened my mother that he was going to take vengeance on my family’ when she insisted on invoicing fined families: CB 94 [15]

    7.3 In his statement, the applicant claimed that Mr Chen only threatened his mother when in March 2011 she wrote an anonymous letter reporting corruption to the ‘upper level government’. However, at the hearing, he claimed that Mr Chen had been threatening the applicant’s mother for 3 years, commencing in June 2008. Further, if this claim was true, then having regard to the applicant’s claims concerning Mr Chen’s significant power and influence, it was ‘hard to understand’ how the applicant’s mother could have got away with defying her boss for 3 years without suffering any punishment or harm in that time: CB 94-95 [19]

    7.5 The applicant’s delay of 4.5 years after arriving in Australia in lodging an application for the visa. The Tribunal did not consider the applicant’s explanation for delay convincing: CB 95-96 [20]-[21].

    8. The Tribunal did not accept the applicant’s nervousness or absence from China during the relevant events overcame the deficiencies in the applicant’s evidence, noting that the applicant’s evidence was that he kept in regular contact with his parents: CB 96 [23]-[24].

    9. Accordingly, while accepting for the purposes of determining the application for review that the applicant’s mother worked in ‘some role’ within the Family Planning Committee in China, the Tribunal found that there was no credible evidence that any person or official in China wished to harm, or otherwise had any interest in, the applicant or his family. It therefore concluded that the applicant did not have a well-founded founded fear of persecution, and that there were no substantial grounds for believing that the applicant would face a real risk of significant harm should he return to China: CB 96-97 [25]-[26].”

17. I understand the applicant’s grounds of judicial review to be as follows:

    1. The decisions of the Department and the RRT are not fair and reasonable because they failed to take “a good consideration” of the applicant’s claim, ignored the applicant’s background and his actual persecution in China.

    2. The RRT failed to “prudently consider” his risk of harm if returned to China.

    3. The RRT failed to consider the applicant’s statements, explanation and evidence in support.

    4. The RRT was unreasonably suspicious of the truthfulness of the applicant’s claims.

18. Those grounds were interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds.

19. Ground 1 asserts that the RRT’s decision was not fair or reasonable as it failed to take into consideration his claim, ignoring his background and actual persecution in China.

20. The applicant was asked if there was anything further he wished to say in support of that ground, and the applicant said that he simply confirmed those statements.

21. Ground 2 asserts that the RRT failed to prudently consider his risk of harm if he was to return to China.

22. Ground 3 asserted that the RRT failed to consider his statements, explanation and evidence provided in supporting his claim as a whole.

23. The applicant declined to say anything further in support of either Grounds 2 or 3.

24. Ground 4 asserts that the RRT unreasonably suspected the truthfulness of his claims. The applicant said that the RRT had rejected him because it did not accept that his evidence was genuine, and that if further evidence was needed in relation to his mother’s position, it could be provided.

25. The RRT’s decision record makes clear that it comprehensively rejected all claims made by the applicant to fear persecution in China for the reasons asserted. The RRT found the evidence of the applicant to contain various internal inconsistencies, to be vague and changing in nature. The RRT also referred to specific concerns about the applicant’s evidence in some detail. The RRT put to the applicant its concerns to about his evidence and noted the applicant’s.

26. The RRT put certain information to the applicant as to claims he had made before a delegate of the first respondent, and stated that those concerns were put to the applicant pursuant to s.424AA of the Act. The RRT summarised various exchanges it had with the applicant, in particular the applicant’s delay lodging a protection visa application. The RRT noted that the applicant had arrived in Australia on 19 December 2007 and had been granted a student visa on 15 November 2007, which was valid until 15 March 2010.

27. The RRT noted that the applicant studied in Australia until the end of 2008 and that his visa was cancelled in 2009. The RRT noted that the applicant stated that since 2008 he had done nothing in Australia, undertaking no work and no study, and that he said he had stayed in Australia because his father had told him he should stay, as there “may be problems”. When he was asked why he did not lodge a protection visa following that information, the RRT noted the applicant’s response that he did not know he could apply for such a protection visa.

28. Ultimately, the RRT found the applicant’s explanations to the concerns that it had to be unsatisfactory, and led to its finding that all of the applicant’s protection claims were false. The RRT considered other general reasons or explanations offered by the applicant for deficiencies in his evidence, including nervousness and that his parents did not tell him anything. However, the RRT found that the deficiencies in the applicant’s evidence were not able to be overcome. The RRT concluded that the applicant did not satisfy either the refugee criterion in s.36(2)(a) of the Act or the alternative complementary criterion in s.36(2)(aa) of the Act.

29. Whilst I make no final finding as to whether or not the decision of the RRT is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been raised by the applicant this morning. The applicant’s grounds do not identify or particularise any error capable of review by this Court. It is well-established that the RRT is not obliged to accept uncritically all an applicant’s claims (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

30. The RRT’s findings would appear to be open to it on the material and evidence before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). The applicant’s complaints, such as they are, appear more to be a disagreement with the findings and conclusions of the RRT. Such a complaint invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

31. The RRT’s decision record makes clear that it understood the applicant’s claims and considered whether he was at risk of harm in China, either for a convention ground or on the basis of complementary protection. The RRT’s decision record makes clear that it considered the applicant’s risk of harm on return to China and had regard to the applicant’s written material and oral evidence at the hearing. The RRT made clear its reasons for its adverse credibility findings. Accordingly, none of the applicant’s grounds of complaint appear to establish any jurisdictional error on the part of the RRT.

32. Whilst I make no final finding as to whether or not the RRT’s decision is affected by jurisdiction error, none is apparent on the face of the RRT’s decision record, and none has been identified by the applicant this morning. Whilst I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the RRT’s decision, in balancing the interests of both parties and the overall interests of justice, there is a significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491).

33. In light of the unsatisfactory explanation for the applicant’s delay and that the applicant’s application for judicial review of the RRT’s decision appears to have no prospects of success, in the circumstances, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

34. Accordingly the applicant’s application for an extension of time should be refused with costs. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  13 April 2015