SZVQW v Minister for Immigration and Border Protection

[2015] FCA 775

FEDERAL COURT OF AUSTRALIA

SZVQW v Minister for Immigration and Border Protection [2015] FCA 775

Citation:	SZVQW v Minister for Immigration and Border Protection [2015] FCA 775
Appeal from:	Application for extension of time and leave to appeal: SZVQW v Minister for Immigration and Border Protection [2015] FCCA 1360
Parties:	SZVQW v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 685 of 2015
Judge:	FARRELL J
Date of judgment:	29 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) ss 36, 65, 426A
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 SZVQW v Minister for Immigration and Border Protection [2015] FCCA 1360
Date of hearing:	29 July 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms N Maddocks 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 685 of 2015

BETWEEN:

SZVQW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	29 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 applicant 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 685 of 2015

BETWEEN:

SZVQW
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	29 JULY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to seek leave to appeal and for leave to appeal a judgment of Judge Emmett of the Federal Circuit Court of Australia delivered on 22 May 2015: see SZVQW v Minister for Immigration and Border Protection [2015] FCCA 1360 (“SZVQW”). These reasons have been revised from an ex tempore judgment.

2. The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

   BACKGROUND

3. The applicant is a male citizen of the People’s Republic of China. He arrived in Australia on 13 May 2013. He applied for a Protection (Class XA) visa on 21 August 2013. The Minister’s delegate refused to grant the visa on 17 February 2014 following the applicant’s failure to attend an interview to which he had been invited. The applicant also failed to attend a hearing with the Tribunal on 21 October 2014 to which he had been invited.

4. The Tribunal summarised the basis for the applicant’s claim to protection in its Statement of Decision and Reasons dated 22 October 2014 (“Decision Record”) at [9] as follows (as written):

   The applicant claimed to have been detained for seven days in relation to a land dispute and to have faced continued restrictions on his personal liberty prior to fleeing to Australia. … The applicant claimed to have bought a 500m2 bungalow … In October 2009, the Office of Urban House Dismantling and Relocation notified the applicant of a developer’s intention to build a residential building on his land and the intention of the appropriation of the land, the applicant being given three months to sign the agreement and to leave. He had not moved out by January 2010, and the electricity and water were cut off. His brother was suspended from his employment to pressure the applicant to sign the agreement and the situation remained unresolved. At the end of February 2010, the applicant was forced to move around from place to place and signed a relocation agreement, and claimed to have petitioned the municipal government and after waiting two years received no reply. He petitioned the provincial government in August 2012. The applicant claimed that police came to his home on 3 January 2013 and that he was detained and released after seven days. He claimed he was under surveillance of the resident watch committee. He went to Beijing and made arrangements to go abroad.

   TRIBUNAL DECISION

5. The Tribunal affirmed the delegate’s decision. The Tribunal noted that the invitation to the hearing had not been returned to sender, and that the Tribunal had not received any communication from the applicant in relation to the hearing: Decision Record at [15]. The Tribunal decided, after considering the circumstances of the case, to make its decision on the review without taking any further action to enable the applicant to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth): Decision Record at [16].

6. The Tribunal considered country of origin information in relation to expropriation of land, avenues for complaint, administrative detention and exit procedures from airports in China: Decision Record at [12]-[14]. The Tribunal held that the information provided by the applicant in writing was not sufficiently detailed to enable it to be satisfied that the applicant was owed a protection obligation, either as a refugee or as a beneficiary of complementary protection: Decision Record at [19]. In particular, there was insufficient information before the Tribunal in relation to the claimed development of the applicant’s property by a developer and the appropriation of the land: Decision Record at [21]. In the absence of such detail, the significance to attach to the applicant’s assertions was unknown: Decision Record at [22].

7. In the result, the Tribunal was not satisfied that the applicant was owed a protection obligation under either s 36(2)(a) or (aa) of the Migration Act: Decision Record at [23]-[26].

   FEDERAL CIRCUIT COURT DECISION

8. The applicant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court on 17 November 2014. He relied on four grounds in his application (as written):

   1. I am scared to return back to China because I am afraid to encounter further persecution from Chinese authority. The reason why I failed to attend the Tribunal hearing was because I remembered the wrong time. Therefore, on the hearing date, I was not in Sydney. When I realised the mistake I have made, I decide to apply for a review to Federal Court of Australia and hope that I can have another chance to seek fair justices.

   2. One of the reasons why RRT refused my application was because RRT Member believed Chinese citizens are allowed to write letters of complaint at special petition bureaus under China’s petition system. This is not true and it is a lie. If RRT believes that official documents can be forged in China, why don’t they believe we are not allowed to make legal petition regarding the decisions we unsatisfied although it is legal according to official saying. Just like what I explained in my personal statement, after I lodged my petition letter to Shijazhuang City Hall, I was detained by the local police station for 7-day and monitored by the local committee. Where is the justice? If RRT member really believes it is legal for us to petition in China, how come I still encounter the detainment and restricted freedom after I was released! So please let the Federal Circuit Court considers my application carefully and gives me a fair judgment.

   3. Another reason why RRT refused my application was because I could not provide sufficient evidence to support my claim. My defence is that those petition materials were confiscated by the local police after I was arrested by them. Besides, my family and I were monitored after I was released, so I could not have chance to recollect the evidences. I secretly manage my escape to Australia with many difficulties, not even mention recollecting the evidences RRT should consider my situation carefully not just base on the evidence that I can’t provide.

   4. I hope that the Federal Circuit Court of Australia could consider my situation.

9. The Federal Circuit Court convened a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicant appeared at the show cause hearing with the assistance of an interpreter. He filed no written submissions and when invited to make oral submissions in support of his grounds he declined to do so: SZVQW at [8]-[9].

10. The primary judge held that the Tribunal complied with its statutory obligations in inviting the applicant to the Tribunal’s hearing, and then proceeding when the applicant did not appear: SZVQW at [13]-[14]. The primary judge noted that the applicant’s grounds state that he had failed to attend the Tribunal hearing because he remembered the wrong time and was not in Sydney at the time of the hearing: SZVQW at [13].

11. The primary judge found that the Tribunal had identified the applicant’s claims with specificity: SZVQW at [15]. She noted that the Tribunal took the view that the information was not sufficiently detailed for it to be satisfied that the applicant was owed a protection obligation: SZVQW at [16]. Section 65 of the Migration Act requires the relevant decision maker to refuse to grant a visa unless he or she is satisfied that the application meets the criteria for a protection visa. The primary judge held that the Tribunal’s findings appeared to be open to it on the evidence and material before it, and for the reasons it gave: SZVQW at [17].

12. The primary judge rejected the applicant’s complaint about the use of country information on the basis that it is well established that the country information that the Tribunal considers, and the weight it gives to that information, is a matter for it: SZVQW at [18].

13. The primary judge dismissed the applicant’s complaint concerning his inability to provide sufficient evidence to support his claim on the basis that, while it might be true, it did not reflect any jurisdictional error on the part of the Tribunal. It was for the applicant to provide the evidence and material upon which he wished to rely: SZVQW at [19].

14. The primary judge concluded that the applicant had not identified any error on the part of the Tribunal capable of establishing jurisdictional error, and none was apparent on the face of the record: SZVQW at [20]. Therefore, the primary judge dismissed the application because no arguable case for the relief claimed was raised.

    APPLICATION TO THIS COURT

15. The applicant filed an application for extension of time to seek leave to appeal and for leave to appeal on 15 June 2015.

16. The primary judge’s judgment is interlocutory in nature: r 44.12(2), Federal Circuit Court Rules. Therefore, the applicant requires leave to appeal to this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). 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 order is made. The primary judgment was delivered and orders were made on 22 May 2015; the application should have been filed by 5 June 2015. The applicant requires an extension of 10 days.

17. The applicant’s application for extension of time and draft notice of appeal identified one ground. It is (as written):

    The appellant found that the decision was unfair due to the appellant being unable to return to China. This is caused by the fear of persecution upon returning to my homeland.

18. The applicant filed an affidavit in support of his application. In it he repeats the ground in his application and says that the Tribunal’s decision was unfair because of his fear of persecution upon return to China. Further, he explains the reason for his delay as follows:

    The application for leave to appeal was not filed within time because the appellant did not have enough fund.

19. In determining the application for an extension of time, the Court has 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.

20. 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.

    CONSIDERATION

21. The applicant made oral submissions in support of his application. He stated that he had been a truck driver for a number of years in China. He had children there and claimed bias in access to university education based on whether a family came from a rural area or Beijing. He made complaints about the administration of the court system, noted the capacity of the police to detain citizens and links between government officials and businessmen which resulted in corruption, including corruption of the court system. He said that he was unable to approach the courts to complain about the expropriation of his land.

22. The Minister opposed the grant of an extension of time. Even though the period of 10 days is short, the Minister said that leave to appeal should not be granted because the substantive appeal has no prospects of success.

23. The Minister submitted that the applicant’s proposed ground of appeal complains as to the factual merits of the Tribunal’s decision, and does not demonstrate any error on the part of the primary judge. The Minister also notes that the entirety of the applicant’s application before the primary judge sought impermissible merits review.

24. I accept the Minister’s submissions and note that the applicant’s submissions were wholly directed to impermissible merits review.

25. The proposed ground of appeal has no prospects of success. It raises complaint only about the factual findings of the Tribunal and therefore seeks impermissible merits review. I have carefully read the Tribunal’s Decision Record as well as the primary judge’s reasons. I perceive neither jurisdictional error on the part of the Tribunal nor any appellable error on the part of the primary judge.

26. I will dismiss the application and order the applicant to pay the first respondent’s costs, as agreed or taxed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       29 July 2015