SZVQX v Minister for Immigration

[2016] FCCA 873

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVQX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 873

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2)

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: SZVQX

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3184 of 2014

Judgment of: Judge Manousaridis

Hearing date: 7 April 2016

Delivered at: Sydney

Delivered on: 7 April 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms M. Stone of
DLA Piper

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

3. The applicant pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3184 of 2014

SZVQX

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal).  By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The application under s.477(2) is necessary because the Tribunal made its decision on 17 September 2014 but the applicant did not file his application with this Court until 17 November 2014. I will first briefly set out or identify the principles that must guide me in determining this application for an extension of time.

3. Under s.477(2) of the Act the Court may order the extension of the 35 day period if two things are satisfied. First, the application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

4. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include: (a) whether there has been a reasonable and adequate explanation for the applicant’s delay; (b) whether there is any prejudice to the Minister; (c) whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   The factors to which I have referred at paragraph 47 above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (section 477, subsection (2), paragraph (b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case.  They are simply sensible guidelines developed by the courts which have utility in most cases.

   [1] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]-[48]

5. In most cases the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship, in the context of extending time for making an appeal, the “court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2] What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

6. I then turn to the applicant’s explanation for delay.  The applicant, who is not legally represented, has provided an explanation for the delay in an affidavit made by him on 13 November 2014.  The applicant there says that after he received the Tribunal’s decision he had no money to engage a lawyer to prepare his judicial review application to this Court.  The applicant requested his friend assist him with finding a person who could help the applicant prepare his application, but it was “hard to find a person to help me”. After some time the applicant found a Chinese student, who prepared the applicant’s “application documents”, and lodged them with the Court.  In addition, the applicant states he was unaware of any time limit. 

7. In my opinion, an inability to engage a lawyer and ignorance of the time limit prescribed by s.477 of the Act are not adequate explanations for delay. Given the relatively short time by which the applicant delayed making his application, however, the applicant’s not providing an adequate explanation for the delay will not carry great weight against my making an order under s.477(2) of the Act if I were to be satisfied the applicant would have a meritorious case if an order extending time were made. That is the question to which I now turn.

8. The starting point is to set out the applicant’s claims for protection.  The applicant’s claims were based on the alleged facts, which I will shortly set out, which the applicant stated in a statement titled “Why I Came to Australia?”. That statement accompanied the applicant’s application for a protection visa.  The alleged facts were as follows.

9. The applicant owned a transport business in China. A former schoolmate of the applicant’s, Mr J, who owned a brick and tile delivery business, suggested he subcontract his business to the applicant. The applicant agreed, and in May 2012 the applicant began delivering goods for Mr J. Initially, Mr J settled the account promptly, but by May 2013 he owed the applicant RMB40,000. One month later, the applicant demanded Mr J settle the outstanding account within one week, and the applicant ceased working for Mr J.  The applicant’s wife, who received information from a former classmate and employee of Mr J, informed the applicant that Mr J was a gambling addict, and that he had “gambled away all the working capital in the business”.

10. On 1 June 2013 Mr J went to the applicant’s house and asked the applicant for a loan of 100,000 yuan.  The applicant told Mr J that he did not have money to lend him.  The applicant spoke to Mr J about his unsettled account, but Mr J became “very upset”. On 5 June 2013, when the applicant was returning home, two policemen “pulled” the applicant over at the town entrance on a routine check. Police, however, found a pistol in the applicant’s toolbox. The applicant was in “total shock” as he had never touched a gun in his life. The applicant was taken to the police station for questioning and beaten.  Later that day Mr J went to see the applicant, and told him he could find someone to get the applicant out of trouble, that keeping a weapon unlawfully was an “offence for jail sentence”, that he could ask someone to tell the police to handle the applicant’s case at the local level, and that a payment of 100,000 yuan would secure the applicant’s release from police custody.  The applicant accepted this proposal and sent the money to Mr J’s home the following day.

11. Five days later Mr J went to the applicant’s home and informed him that the matter had been reported to the city PSB, and that it was likely the applicant would be jailed.  The applicant requested Mr J use his connections to help him.  After giving the matter further thought, the applicant suspected Mr J colluded with the police to set up the applicant in an attempt to extort money from him.  The applicant claimed there is “no place we can seek justice against them” and as a result he had no choice but to go into hiding by travelling to Australia.

12. These, then, were the alleged facts on the basis of which the applicant applied for a protection visa.  The Tribunal found the applicant was not a credible, truthful or reliable witness.  The Tribunal relied on a number of matters for so finding. 

    a)First, the Tribunal had concerns about the applicant’s evidence in relation to his reasons for obtaining a passport.  The applicant had claimed he had no other option but to leave China and to go overseas.  The Tribunal noted, however, that the passport was issued in January 2013, but the applicant claimed in his written statement that his need to leave China arose in June 2013.

    b)Second, the Tribunal had concerns about the applicant’s evidence in relation to when the applicant approached an agent about coming to Australia. Before the Tribunal the applicant said he approached the agent in February 2013. The Tribunal noted, however, that if the applicant approached the agent in February 2013, the applicant made his decision to come to Australia well before he experienced problems in China, which occurred in June 2013, and that his evidence undermined the applicant’s protection claims.

    c)Third, the Tribunal had concerns about the applicant’s evidence relating to the amount of extortion money paid. The Tribunal found the applicant’s evidence about whether further moneys were paid to be vague, evasive, contradictory and changing, and the Tribunal considered the applicant’s inability to respond or to offer any explanation for his changing evidence undermined the applicant’s claim that money was paid by way of extortion or in order to be released from custody.

    d)Fourth, the Tribunal had concerns about the applicant’s evidence in relation to the timing of the request to pay more money and his detention and release. 

    e)Fifth, the Tribunal had concerns about the applicant’s evidence regarding where he lived in China and the incidents he claimed occurred.  Initially, the applicant said he only ever lived at one address in China, but after the Tribunal put its concerns to the applicant, he changed his evidence and said he went into hiding at a relative’s home.  The Tribunal found the applicant’s changing evidence undermined his claims and indicated the applicant was prepared to change his evidence in response to the Tribunal’s concerns.

    f)Sixth, the Tribunal found the applicant gave vague and inconsistent evidence about his family. Before the Tribunal the applicant gave oral evidence with respect to the dates of birth of his children and the date on which he married his wife, which were different to the dates stated in his protection visa application.  The Tribunal did not accept the applicant’s wife and children were as claimed, that the applicant experienced difficulties with Mr J or that Mr J organised for the applicant to be subjected to extortion.

13. The Tribunal did not accept that the applicant was subjected to extortion by Mr J or the police, that a pistol was found in the applicant’s toolbox and that he was set up, detained and beaten by the police, that the applicant paid RMB100,000 to be released from custody, that there were any charges or criminal investigations against the applicant, that he had no option but to come to Australia, that it was the applicant’s agent who made false claims in his student visa application, or that the applicant fears or has any reason to fear that he will be set up, charged, framed, beaten, jailed or subjected to extortion. The Tribunal also did not accept that the authorities have any adverse interest in the applicant or that the applicant has any genuine fears of harm from Mr J or the police in China.  The Tribunal found the applicant fabricated his claims to have been specifically targeted for harm or extortion or threats. 

14. Having summarised the Tribunals reasons for not accepting the applicant’s claims, I now turn to the grounds of review stated in the application.  The application for review contains two grounds. 

15. The first ground is:

    My former schoolmate, [Mr J] colluded with our local police to extort money from me. I couldn’t bear their ceaseless extorting money.  There is no place to seek justice in China, so I had no choice but to go into hiding by travelling to Australia.

16. As I have mentioned before, the applicant is not legally represented.  The applicant, although invited to do so, indicated he did not wish to make any submission in relation to this ground or the second ground, to which I will refer to in a moment. 

17. The first ground, as stated, repeats the substance of the claims the applicant made for protection which he made before the Tribunal.  The ground therefore seeks merits review, and for that reason there are no reasonable prospects the applicant will establish the Tribunal made a jurisdictional error for the reasons claimed in this ground. The role of this Court is not to determine whether unsuccessful applicants who have appeared before the Tribunal have valid claims for a protection visa.  The role of this Court when applications are made to it in relation to decisions of the Tribunal is limited to determining whether the Tribunal has undertaken the review of an applicant’s case according to law.  More specifically, the Court’s task is to determine whether the Tribunal has made any jurisdictional error having regard to the grounds stated in an application for review made to it. 

18. I then turn to the second ground, which is as follows:

    The Tribunal member failed to fully consider my claims and refused my claims, making jurisdictional error.

19. As I have already noted, the applicant did not wish to make any submission in relation to that ground either.  The ground as stated does not particularise the respects in which it is alleged the Tribunal did not consider fully the applicant’s claims. For that reason alone the applicant does not have any reasonable prospects of succeeding on this ground.  In any event, on the face of the Tribunal’s reasons for decision there appears to be no doubt that the Tribunal considered the applicant’s claims fully and gave reasons for rejecting the applicant’s claims that were reasonably open to it. For this reason there are no reasonable prospects the applicant will establish the Tribunal made a jurisdictional error for the reasons set out in the second ground. 

20. I then turn to the question of prejudice, although prejudice is usually a function of the presence or absence of any merit in the claims that are proposed to be made if an extension is granted.  If no order extending time is granted, the applicant will suffer no prejudice because the grounds of review on which the applicant proposes to rely if an extension were granted, for the reasons I have given, do not have merit and for that reason are not sufficiently arguable to justify an order extending time. If an order extending time were made, on the other hand, the Minister would suffer prejudice in his incurring costs in resisting an application based on insufficiently arguable grounds for the relief sought, and these may well be costs the Minister may be unable to recover. 

21. For these reasons I am not satisfied it is in the interests of the administration of justice that I should make an order under s.477(2) of the Act to extend the time by which the applicant may make an application for relief under s.476 of the Act. I propose, therefore, to dismiss the application for an extension of time.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 15 April 2016