SZWBC v Minister for Immigration and Border Protection
[2018] FCA 759
•29 May 2018
FEDERAL COURT OF AUSTRALIA
SZWBC v Minister for Immigration and Border Protection [2018] FCA 759
Appeal from: Application for extension of time: SZWBC v Minister for Immigration & Anor [2017] FCCA 2913 File number: NSD 1885 of 2017 Judge: ALLSOP CJ Date of judgment: 29 May 2018 Legislation: Migration Act 1958 (Cth), s 48A
Federal Circuit Court Rules 2001 (Cth), r 44.12
Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 Date of hearing: 24 April, 18 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 35 Counsel for the Applicants: The First Applicant appeared in person, with the assistance of an interpreter Solicitor for the First Respondent: Mr A Markus of Australian Government Solicitor (24 April)
Ms D Watson of Australian Government Solicitor (18 May)ORDERS
NSD 1885 of 2017 BETWEEN: SZWBC
First Applicant
SZWBD
Second Applicant
SZWBE
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
29 MAY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This is an application for an extension of time in which to file an application for leave to appeal and if granted an application for leave to appeal against orders made by a judge of the Federal Circuit Court dismissing under r 44.12 of the Federal Circuit Court Rules 2011 (Cth) an application for review of a decision of the Refugee Review Tribunal made on 24 January 2015. The Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection (Class XA) Visa. The orders dismissing the application for review were made on 9 October 2017.
The application for an extension of time before me was focused upon whether or not there was any merit in the appeal should an extension of time and leave to appeal be granted. That inquiry in turn focused upon whether there was an arguable ground of review in connection with the Tribunal decision.
The first applicant is a citizen of the People’s Republic of China. He has made two applications for protection. The first was made on 23 September 2009 on behalf of himself. That application was refused by the Department and affirmed by the Tribunal back in 2010. His wife and child each made separate applications in 2010 and 2011, which were also refused by the Department. These refusals were affirmed by the Tribunal in 2010 and 2012, respectively. The first applicant made another application for protection in October 2013. In that application, he applied on behalf of himself, his wife and his child as members of his family unit. It is that application that is the subject of the current application, and the application for review in the Federal Circuit Court. A second application (on behalf of himself, his wife and child) was permitted notwithstanding the terms of s 48A of the Migration Act 1958 (Cth) because of the effect of the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235. The 2013 application was dealt with on the basis that complementary protection would be available, but not refugee protection.
The Tribunal decision to which I will refer is the Tribunal decision affirming the decision of the delegate upon this second, 2013, application.
The claims for protection were described by the Tribunal at [11] of the decision record. The first applicant was born in Fujian Province. He had 12 years of school and then occupational education in Fuzhou until 1998. Thereafter he worked for an electrical power company and resided in Fuqing. He travelled to Hungary from 2006 to 2008 for the purposes of business. Upon his return he again resided in Fuqing, leaving for Australia in October 2008. Prior to arrival he was a self-employed electrician and businessman. He is a Christian, although his claims for protection do not relate to religion or religious activities. He claims that he complained about the conduct of a work site in or before 2006, alleging that a general manager and his associates took short-cuts during operations and installation of electricity transformers in work in which he was involved. The applicant said that he made complaints to government officials about the short-cuts taken by the general manager. These government officials did not deal with the issues and passed on his complaints to the general manager himself who began to take revenge on him by obstructing his promotion. He also claims that thugs with whom the general manager was associated intimidated him, his family and his colleagues. After the applicant left China to go to Hungary the general manager was jailed but later discharged and released. The applicant says that the general manager and his associates and thugs have been looking for him and he fears harm from them as well as from the police and government officials who associate with the general manager.
From [31] to [49] of the decision the Tribunal dealt with the credibility of the first applicant. The Tribunal did not find him to be credible, truthful or reliable. The Tribunal considered his evidence to not be credible, with inconsistencies and changes. It also placed emphasis on the delay in coming to Australia and the delay in claiming asylum in Australia after he arrived in 2008. Four aspects particularly troubled the Tribunal. The first was the first applicant’s failure to claim asylum while in Hungary from December 2006 until August 2008. He had claimed to have fled from China to Hungary where he remained for a period of over a year and a half. He had an opportunity to claim protection not only in Hungary but also in other countries that he had visited: Austria, Slovakia and Romania.
The second aspect that troubled the Tribunal was his two voluntary returns to China after his colleagues had been beaten up, according to his evidence. This second aspect was explored over some seven detailed paragraphs. They reveal a detailed engagement with the evidence of the first applicant and do not appear to be either irrationally or arbitrarily structured.
The third particular concern was the delay in coming to Australia after the grant of a visitor visa to come to Australia. His visitor visa was granted on 2 June 2008 but he did not travel to Australia until October 2008. In the meantime (the visa having been granted in Hungary), he chose to travel back to China and then to travel to Australia from China.
The fourth particular concern was the delay in lodging the protection visa application once he arrived in Australia. This was the subject of [47] of the decision which was as follows:
… the Tribunal was concerned about the applicant’s delay in lodging his protection visa application once he had arrived in Australia. The Tribunal noted the matters that had occurred before he arrived in Australia in October 2008, yet as set out in the delegate’s decision record provided to the Tribunal by the applicants, he didn’t lodge his (first) protection visa application until almost one year later, in September 2009. The Tribunal put to the applicant that it did not understand why he would delay. In response the applicant said that when he originally came to Australia he didn’t have friends and he didn’t know this information; he then made enquiries with friends who recommended to not do anything. The Tribunal said to the applicant that it did not understand why he did not enquire with a lawyer or someone who is experienced in giving such advice. In response the applicant said that he didn’t know. The Tribunal put to the applicant that it did not seem credible that he was able to run a business in a foreign country, yet he did not think to would [sic] make enquiries about his visa status in Australia; in response the applicant said yes. The Tribunal has considered the applicant’s explanations, however it considers that if the matter he claimed had occurred to him, and if he came to Australia to be safe, he would have made enquiries, and claimed asylum, earlier than one year after his arrival. The Tribunal considers that this undermines his claims.
This paragraph was the subject of discussion at the hearing before me to which I refer below.
The Tribunal was further concerned about inconsistencies between the first applicant’s application form and the evidence to the Tribunal. It expressed these at [48] as follows:
…
· The Tribunal was concerned that in his application form, he claimed that his promotion had been obstructed (and that he had left the company), but he had not made this claim to the Tribunal, instead he claimed he had been sacked (and on his returns to China, he was looking for answers as to why he was sacked). In response the applicant said there are so many things and he doesn’t know how to say them all. The Tribunal does not find this persuasive, and considers his inconsistent evidence undermines his credibility.
· The Tribunal was concerned about the change in focus in the applicant’s evidence concerning the reasons for his complaints against the leader. In his evidence to the Tribunal, the applicant said that while he was doing a project, the work was not arranged well, one of his colleagues went up the power line, and normally the electricity needs to be cut off, but this did not occur, and his colleague was electrocuted. This occurred in about 2005. Thereafter, he and his fellow colleagues laid complaints against the leader, stating that he didn’t make good arrangements for the injured colleague, he should bear responsibility and care about the safety of all of the workers who worked on the front line, as this was a serious incident. Instead he just kept about his own interests. However, as put to the applicant, in his application form, he claimed the reason for the complaints he lodged were about the general manager saving costs, and pocketing savings for their personal interests; he did not mention his injured colleague (although the Tribunal notes that he said he had been an activist complaining about workers welfare). The Tribunal considers that if the main problem was a serious injury to his colleague, he would have said this in his application form. The Tribunal considers his omission to mention this undermines his credibility.
It was on the basis of this detailed credibility assessment that the Tribunal came to the conclusion that the first applicant’s evidence was not to be accepted. Other matters were then considered, one of which was the previous use by the first applicant of a second name. There was concern expressed by the Tribunal as to whether or not this was a false identity but the Tribunal did not consider that it needed to make a finding about whether this was a false identity or a nickname and did not rely upon it.
On the basis of this lack of credibility the Tribunal then rejected the claims of the first applicant from [54] through to [60].
At [61] to [65] the Tribunal noted that there had been other claims made in previous applications. The Tribunal recorded, however, at [62] that the first applicant had been given numerous opportunities during the hearing to tell the Tribunal anything he wanted and to fully explain his claims. The Tribunal emphasised that it was making its decision upon the current application and his evidence to this Tribunal and not any other evidence or any other material.
The application for review before the Federal Circuit Court was in the following terms:
1. The decision of the Tribunal relied upon the previous decision regarding the credibility to infer the claims of protection visa under Complementary Protection Criterion:
a) is affected by the procedural unfairness [sic].
b) failed to take into account relevant considerations.
The Federal Circuit Court dismissed the application, in particular on the grounds of its lack of particularisation and the evident inaccuracy of the ground, in that the Tribunal did not rely upon a previous decision. The review of the Tribunal’s decision does not reflect a use of the previous decision. Rather, the Tribunal was at pains to rely upon the evidence put before it.
The Federal Circuit Court judge then dealt with the matter on the wider basis claimed by the first applicant that the Tribunal had prejudged his case and that it had not given him an opportunity to put his case. The first applicant also claimed that the Tribunal used what he described as a “mocking smile” which made him feel nervous. The Federal Circuit Court judge said about this at [43] of his Honour’s reasons:
… there is no evidence before the Court to support that submission. Without evidence, there is no basis to say that an arguable case can arise because of any facial feature or gesture that may, or may not have, been exhibited by the Tribunal member. Also, there is nothing on the material that is before the Court to say that the first applicant made any complaint, at the relevant time, about the conduct of the hearing. At that time, the first applicant was represented by a registered migration agent. There is no evidence of any complaint subsequent to the hearing.
The first applicant also complained to the Federal Circuit Court judge that he had tried to provide evidence to the Tribunal and the Tribunal refused to give him an opportunity to lead that evidence. The Federal Circuit Court judge was not able to divine what this complaint referred to, though his Honour considered at [44] that it may have been related to the first applicant’s explanation as to why he used a different name in the first Protection Visa application. Various other matters were raised before the Tribunal orally which were dealt with by the Federal Circuit Court judge in a manner which does not call for criticism.
When the matter came before me on 24 April, the first applicant asserted from the Bar table that he had not been given an opportunity to be heard by the Tribunal. In particular, he said that he was not given an opportunity to explain the delay between coming to Australia and making the application for protection. At the first hearing of the matter, the solicitor for the Minister pointed out the terms of [47] of the Tribunal’s decision. I then had that paragraph translated for the first applicant by the interpreter. I made it plain to the first applicant on that day that he would need to deal with this in evidence if he wanted to contest what [47] said.
After the hearing on 24 April, I had the transcript of the Tribunal hearing provided to the Court and to the first applicant. The first applicant then appeared before me on Friday, 18 May 2018. He indicated that a friend had translated the transcript for him the day before.
From that transcript it is plain that [47] is accurate. The first applicant had, however, taken advantage of the opportunity which I gave him on 24 April to file a further affidavit about his complaints. In that further affidavit he put on a statement and submission as well as documents dealing with his two names and the retainer for the migration agent in 2009. The first applicant made further submissions to me on 18 May 2018.
I will deal with his submissions and material in the affidavit, the statement and submission, and orally.
The grounds of the application were as follows:
1.The Judge of The Federal Circuit Court of Australia erroneously took side of the Minister for Immigration and Border Protection. He only asked me to produce evidence to support my claims but did not require the Minister to provide evidence to discredit my claims. This is against the principle of fairness and justice.
2.The Tribunal relied on heresay [sic] materials produced by the Government agencies which are affected by political implications and diplomatic relationship of the author’s country and China. The tribunal did not take an impartial manner to evaluate my claims but unilaterally concluded without proof that I was not a credible person.
3.The tribunal did not act independently but was influenced by previous decision of previous constituted tribunal. Hence, it was biased against me. As a result, justice not fully executed. The tribunal failed to fulfil its duties as required in S420(b) of the migration act 1958.
4.After we received the decision from the then Refugee Review Tribunal, we did not apply direct to the Federal Court but the Federal Circuit Court for judicial review. Therefore, it has gone beyond the 35 days [sic] time limit.
The three proposed grounds of appeal were similarly expressed and were as follows:
1.The Judge of the Federal Circuit Court erroneously took side of the Minister for Immigration and Border Protection by asking me to produce evidence to support my claims but not the Minister to support the base of their assessment for not believing my claims. This is against the principle of fairness and justice to be exercised by a judge and common law system.
2.The tribunal relied on here-say [sic] materials produced by the Government bodies which are severely affected by political implications and diplomatic relations of the authors’ Government and China. It did not take an impartial manner to evaluate my claims and concluded that I was not credible without producing any documentary proof to substantiate its assessment.
3.The tribunal did not independent but was influenced by previous decision of previous tribunal assessment, and hence, it was biased against me. As a result, justice was not fully exercised and the tribunal failed to fulfil its duties as required in S420(b) of the migration act 1958.
The first ground of both the grounds of application and grounds of appeal are self-evidently bad. There is no basis to think that the Circuit Court judge was biased, either actually or in an apprehended fashion. It goes without saying that it is for the first applicant to make his case before the Court, especially in the employment of the show cause rule (r 44.12).
The second ground is also hopeless. The Tribunal was entitled to use such information as it was able to inform itself about the country of origin of an applicant. In any event, the reasons do not display any particular reliance upon country information that would lead to the conclusion of any unfairness.
The third ground of the application and of the appeal is misconceived. The Tribunal conducted its own consideration of the evidence of the first applicant, including a detailed consideration of the reliability of his evidence.
The material filed recently by the first applicant addressed a number of issues. First, the first applicant dealt with his second name. He identified his second name which had been used since childhood. He produced a copy of a household registration to show the two names.
Implicit in the submission is the proposition that the Tribunal did not allow him to put this material forward. As I have indicated earlier, the question of the second name was not influential in the Tribunal’s reasons.
The first applicant submitted that the Tribunal did not give him a fair chance to prove his claims but rather it was biased and prejudiced. Once again he asserted that the Tribunal member dealt with his answers with ridicule which made him nervous and uneasy.
I have examined the transcript of the hearing and I am not able to discern from that any question of inappropriate conduct towards him. As the primary judge noted, the first applicant was represented before the Tribunal and no complaint was made about the Tribunal’s conduct.
In relation to [47] of the Tribunal’s decision and the assertion that the first applicant was not given an opportunity to explain his delay in making his application for protection in Australia, I am satisfied that [47] is substantially correct. In the material provided to the Court after 24 April 2018 the first applicant produced the written arrangement with his migration agent. He submitted that the Tribunal had not been willing to receive this information. The agreement with the migration agent was dated 2 August 2009. Within a month or thereabouts an application for protection had been made. However, the point of the Tribunal’s questions was not the period from the retaining of the migration agent up to the filing of the application, but rather the delay from arriving in Australia in October 2008 and making the application. The agreement with the migration agent is of no relevance in dealing with this issue.
There is no other material placed before me by the first applicant which would found a basis for considering that the Tribunal erred in a relevant sense in coming to its decision.
I am not persuaded that the Tribunal behaved in a fashion worthy of criticism. It is impossible for me, without appropriate evidence, to conclude that the Tribunal’s demeanour was such as to warrant any criticism.
In these circumstances, I am not persuaded that there is any ground likely to succeed on an appeal. Therefore I am not prepared to extend time in which to file and serve an application for leave to appeal, as I would, if time were extended, dismiss the application for leave to appeal. The order of the Court will be that the application for an extension of time in which to file and serve an application for leave to appeal be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 29 May 2018
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