FEDERAL COURT OF AUSTRALIA

SZUVC v Minister for Immigration and Border Protection [2016] FCA 463

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    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.

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 the Federal Circuit Court of Australia (“FCCA”) delivered on 9 December 2015: see SZUVC v Minister for Immigration & Border Protection [2015] FCCA 3546 (“FCCA Judgment”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 27 June 2014. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) visa made on 18 December 2013.

2    As the application for judicial review was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) it was therefore an interlocutory decision: r 44.12(2). For that reason, the applicant requires leave to appeal to this Court: s 24(1A) Federal Court of Australia Act 1976 (Cth).

3    Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that an application in this Court for leave to appeal an interlocutory decision must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The applicant was therefore required to file her application for leave to appeal by 23 December 2015.

Application

4    The applicant filed an application for an extension of time to seek leave to appeal and leave to appeal pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) on 4 January 2016. In her affidavit supporting the application, the applicant explained the delay of 12 days in approaching this Court on the basis that, while she had received the primary judge’s order, she did not receive the judgment during the Christmas and New Year period. The grounds of appeal set out in her draft notice of appeal are the same as those set out in her application to the FCCA for review of the Tribunal’s decision, being (as written):

1.    RRT has prejudice against me, it doesn’t believe whatever I said.

2.    Immigration Department treated me unfair and ask me for interview when I was in labour.

3.    RRT has relied untested information and said that I can find help and just pay 700 RMB to get my child registered, but this is not true in China.

4.    RRT asked some irrelevant questions and said I wouldn’t be able to come to Australia if I was discriminated against in school at China. RRT’s reasoning is illogical and irrelevant to my application.

5    In determining an application for an extension of time, the Court has regard to the length of the delay in lodging the application, the reasons for the delay, any prejudice to the respondent if the extension were granted and the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. On an application for leave to appeal, an applicant must establish that the decision in question is attended with sufficient doubt to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

6    The applicant appeared at the hearing today, assisted by an interpreter. She filed no written submissions and she made no oral submissions despite being invited to address each of her grounds.

7    The Minister accepted that the applicant’s delay of 12 days in making an application to this Court is “not substantial” and that the Minister would suffer no prejudice by reason of the delay. The Minister nonetheless opposed the grant of an extension of time and leave to appeal on the basis that the applicant’s explanation for the delay is inadequate and there is no legal merit to the proposed grounds of appeal.

Background

8    The applicant is a citizen of the People’s Republic of China. She arrived in Australia on a Student (TU 571) Visa on 12 June 2007. She was granted a further Student Visa on 22 April 2009 which expired on 28 March 2011. She remained in Australia as an unlawful non-citizen.

9    On 14 August 2013, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (now the Department for Immigration and Border Protection). Her claims for protection had two principal bases. First, that she is an adherent of the Local Church in China and second that her daughter was born out of wedlock, in violation of China’s Family Planning Policy.

10    The claims made by the applicant in her application for a protection visa are summarised at paragraph [10] of the Tribunal’s Statement of Decision and Reasons (“DR” or “Decision Record”):

•    When she was young she attended family gatherings of the Local Church with her aunt.

•    She was baptised at age of 7 years and looked on the church as her home.

•    Her parents opposed her going to church and bringing back a Christian cross. She quarrelled with her parents over her faith.

•    At school she preached to her classmates about the church and “the gospel”.

•    She introduced some of her classmates to the church choir and they were all members of the Youth Gospel Group.

•    When she was in her second year of middle school she and three classmates took part in a gospel mission and went to preach in Jiangxi Province. They raised funds for “dropout children” and prayed for the aged, weak, sick and disabled. They helped to establish Local Churches in poverty stricken villages and promised to preach to them regularly.

•    She was arrested by the local police when she was on the third Mission Tour to Jiangxi Province. Everyone in the congregation was detained and their Recovery Bibles confiscated.

•    During that time she contracted Malaria and the maltreatment and insults from the warders at the detention camp aggravated her disease. She was escorted home by the police in a very weak condition.

•    Her school adopted a discriminative attitude towards her as she had disgraced her school by being arrested. She was criticised and warned publicly at a parents’ meeting. This resulted in her being isolated at school.

•    Her parents agreed to her going overseas to study if she could earn her tuition fees and living expenses abroad. When she came to Australia she realised it was not easy getting a steady job. She asked her parents for financial assistance and they agreed on the condition that she would return to China and become engaged to a young man. She agreed, returned to China at the beginning of 2009 and became engaged.

•    When she returned to Australia she changed her mind, demanded that her engagement be cancelled and was refused. Her family were upset and disowned her. She lost her financial support and had to quit school.

•    She decided to stay in Australia and try her luck here. She was in a state of torment when she met her current boyfriend. Somehow, she found herself pregnant. Her boyfriend’s family opposed his relationship with her. They had some disagreements and broke up. She is expecting her baby to be born in January 2014.

•    She found a Local Church in Australia recently. Some of the members of the Local Church in China came to Australia to visit her. In 2012, her friend went back to China and took part in a Gospel Mission organised by the Local Church. She was arrested by the local government.

•    She is applying for protection in Australia because someone like her would have a bleak future in China. If she returns to China she would be punished and discriminated against for violating the family planning policy. Her family has refused to recognise her marriage and her child, let alone support her financially. She needs a way out.

11    On 3 December 2013, the Department received a request to postpone the applicant’s protection visa interview on account of the applicant being pregnant. The Department responded by way of letter dated 5 December 2013 restating the date of the interview and advising that postponement would not be granted without a report from her treating doctor setting out a detailed description of her medical condition and an explanation as to how it would prevent her from attending the interview. Australia Post records indicated that this letter was delivered to the applicant on 12 December 2013. The applicant did not contact the Department any further and did not attend the scheduled interview on 16 December 2013. On 18 December 2013, the delegate refused to grant the applicant a Protection (Class XA) visa because she was not satisfied that the applicant was a person to whom Australia owes protection obligations under the Migration Act 1958 (Cth).

Tribunal Decision

12    The applicant applied to the Tribunal for review of the delegate’s decision on 8 January 2014. With the assistance of a Mandarin interpreter, she attended a hearing before the Tribunal on 25 March 2014 to give evidence and present arguments.

13    The Tribunal’s reasons for affirming the delegate’s decision are set out in the Tribunal’s Decision Record dated 27 June 2014.

14    The Tribunal had “serious concerns” about the applicant’s “credibility and the veracity of her claims”. The Tribunal found the applicant to be “vague and non-responsive in relation to some aspects of her claims and inconsistent and contradictory in relation to other aspects of her claims”. The Tribunal also considered several of the applicant’s claims to be “implausible”: DR at [13].

15    Inconsistencies between the applicant’s written statement and her evidence before the Tribunal were identified in respect of the following claims:

(1)    That she had owned a gospel (book) as a child. At the hearing, the applicant stated that she did not have a gospel and only the adults did: DR at [16];

(2)    That she had introduced her classmates to the church choir. At the hearing, the applicant said that there wasn’t a choir and that everyone sang, except the young children who could not sing: DR at [18];

(3)    That as a teenager she had taken part in gospel missions to, among other things, establish Local Churches in poverty stricken areas. At the hearing, the applicant gave evidence that she did not do anything to establish Local Churches as she was too young and could not do much: DR at [19]-[21];

(4)    That she was arrested by the local police during the “third Mission Tour” and detained for several days, during which time she contracted malaria and was maltreated by warders. At the hearing, the applicant gave evidence that “everyone was put in a room and locked up” for “one or two days”, later settling on two days; she made no mention of being maltreated by warders or getting malaria at this time: DR at [22]-[23];

(5)    That her school was discriminative towards her because of her arrest and she was criticised and warned publicly at a parents’ meeting. When the applicant lodged her application for a student visa, she had provided the Department with a letter of support from her school which states that the applicant, amongst other things, “conducted herself well”, held “her parents and instructors in good esteem”, kept “her mind on her studies” and “never committed any criminal activity”. When the inconsistency was put to the applicant in accordance with s 424AA of the Migration Act, she said that she “later believed in herself”, that it was “normal to be praised by the school” and that everyone “makes mistakes”: DR at [26]-[27];

(6)    That members of the Local Church came to visit her in Australia. At the hearing the applicant gave evidence that only one person from the Local Church had visited her: DR at [30];

(7)    That her family would not recognise her marriage or her child. At the hearing, the applicant said she is not married. She also gave evidence that since the birth of her child she has tried to “please her parents” and has shown her parents her daughter on video: DR at [41]-[42], [49]; and

(8)    The extent of financial support provided by the applicant’s family since her arrival in Australia: DR at [44]-[48].

16    The Tribunal considered the following claims to be implausible:

(1)    That a girl of six or seven years in China would have opposed her parents in relation to her religious upbringing, defied them, attended church every Sunday for two hours and got baptised against their wishes in view of the applicant’s evidence that she did not really understand the Bible as a child: DR at [15];

(2)    That the applicant would have spoken to her classmates about “the church experience” when her evidence was that she did not really understand it as a child and that she liked playing with the other children there: DR at [17];

(3)    That the applicant’s parents would have allowed their 15 or 16 year old daughter to remain locked up in a police station as punishment, even if they were upset or angry with her: DR at [24];

(4)    That the police would simply release the applicant and the other adults arrested following the “third Mission Tour” without punishment after two days, as it was a banned activity: DR at [25];

(5)    That her parents would leave her locked up in a local police station to punish her but also agree to and pay for her to study in Australia: DR at [29];

(6)    That members from the Local Church would travel to Australia for the purpose of comforting the applicant: DR at [31];

(7)    That the applicant used social media to talk about the church with church members in China, noting the “country information” which indicated that there is a “great firewall” in China and it was unlikely that she would have been able to use social media that way for a period of six years without being discovered by Chinese authorities: DR at [36]-[37];

(8)    That the applicant’s parents would send their 18 year old daughter to a strange country where she had no family members, was not familiar with the language or culture, had not previously been employed and expect her to earn enough to pay her tuition fees and living expenses without any support from them: DR [47];

(9)    That the applicant’s parents would then “in effect, bribe her to return to China to get engaged to be married”: DR [47]; and

(10)    That, instead of the applicant’s parents providing funding, the applicant’s friends in Australia, whom she met through work or school, were financially supporting the applicant and her daughter to the extent of $400 or $500 per week: DR [53].

17    The additional concerns of the Tribunal included:

(1)    The applicant’s “superficial and poor knowledge of the Bible and Christianity” in view of her claim to have attended Local Church in China for two hours each Sunday from the age of six or seven years until she was 18 years old: see DR at [32]-[33];

(2)    The fact the applicant had arrived in Australia in June 2007 but had not joined a Local Church in Australia until July 2013: DR at [34]-[35];

(3)    The applicant’s voluntary return to China in January 2009 for 40 days before returning to Australia in March: DR at [38]; and

(4)    The applicant’s delay in lodging her protection visa application. She arrived in Australia on 12 June 2007 and lodged her application more than six years later, on 14 August 2013: DR [39]-[40].

18    Having considered this evidence, the Tribunal found that the applicant was “not a witness of truth” and had “fabricated her claims for the purpose of obtaining a Protection visa”: DR at [54]. The Tribunal rejected the entirety of the applicant’s claims relating to her membership with the Local Church in China: DR at [54]-[59].

19    The Tribunal accepted that, as an unmarried parent, the applicant would have to pay the social compensation fee applicable under China’s family planning laws so that her daughter could be registered. However, as it was of the view that the applicant’s family are supporting the applicant in Australia, the Tribunal believed that the applicant’s parents would have the financial capacity to pay the social compensation fee. The Tribunal also accepted that the applicant may face some discrimination as an unwed single mother but that this would not amount to persecution: DR at [60].

20    Further, although the Tribunal accepted that the applicant had been attending church in Australia since July 2013, the applicant did not satisfy the Tribunal that she had engaged in this activity in Australia otherwise than for the purpose of strengthening her claim to be a refugee. In accordance with the former s 91R(3) of the Migration Act (as then enacted) the Tribunal disregarded this conduct when it assessed the applicant’s claims: DR at [61].

21    Having considered the applicant’s claims “singularly and cumulatively” the Tribunal found that there is no real chance that the applicant would be at risk of persecution on the grounds of religion or membership of a particular social group or for any other Convention reason if she returns to China now or in the reasonably foreseeable future: DR at [63].

22    Mindful that the former s 91R(3) does not apply to the complementary protection criterion, as the Tribunal had found that the applicant is not a genuine member of the Local Church and will not seek to practise Christianity upon her return to China, and that she will be able to pay the social compensation fee, the Tribunal was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm: DR at [64]-[66].

23    In the result, the Tribunal was not satisfied that the applicant was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: DR at [67].

Decision of the FCCA

24    The applicant applied for judicial review of the Tribunal's decision by an application filed in the FCCA on 25 July 2014. The applicant attended a show causing hearing on 9 December 2015. The primary judge delivered an ex tempore judgment that day. The grounds of the application to the FCCA were the same as those relied on in the draft notice of appeal and they are set out at [4] above.

25    The primary judge determined that the issue before the Court was whether the grounds of the application raised an arguable case for the relief sought: FCCA Judgment at [36].

26    The applicant was unable to elaborate on the grounds in her appeal, indicating only that she wanted to stay in Australia and that “people would look at her funny” if she returned to China, neither of which were matters that could properly be taken into account by the primary judge in determining her application: FCCA Judgment at [38]-[40].

Ground 1

27    The primary judge understood the first ground to assert bias on the part of the Tribunal which he believed, in the absence of any additional evidence (such as a transcript), to be based on the Tribunal’s disbelief of the applicant’s claim. After noting that an allegation of bias must be clearly made and distinctly proven (relying on Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [127]) and that it is a rare and exceptional case where bias can be made out simply by reference to the Tribunal’s reasons (relying on SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] and SZHVL v Minister for Immigration & Citizenship [2008] FCA 356 at [17]) the primary judge found that there was nothing in the Tribunal’s decision to “even suggest” that the Tribunal did not bring “an open, and impartial, mind to the task”: FCCA Judgment at [41]-[45].

Ground 2

28    The primary judge found that the only evidence relevant to the second ground in the materials before him was the Department’s refusal to reschedule the interview with the delegate, subject to the applicant providing a report from her doctor indicating why she was not in a position to attend the interview. The primary judge agreed with the Minister’s submission that the conduct of the Tribunal hearing, at which the applicant had given evidence was “capable of curing any deficiencies with regard to the delegate’s conduct” and that the Tribunal’s decision, including its adverse credibility findings, did not depend on the applicant’s non-attendance at the interview with the delegate: FCCA Judgment at [46]-[47].

Ground 3

29    The applicant alleged that the Tribunal’s finding that she would be able to pay the requisite fee to have her child registered in China was based on “untested information” however she did not explain what this particular information was. The primary judge proceeded on the assumption that this complaint was directed at the Tribunal’s use of the “country information” regarding the social compensation fee. Relying on the Full Federal Court decisions in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ and Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 at [45] per Spender, Moore and Foster JJ and the decision of French J (as he then was) in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] the primary judge found that the weight to be assigned to “country information” was a matter for the Tribunal and that the Tribunal gave “comprehensive reasons” for its finding that the applicant’s evidence regarding her relationship with her parents and the availability of financial support had been inconsistent and contradictory: FCCA Judgment at [48]-[51].

Ground 4

30    The primary judge found that as the applicant did not explain what questioning by the Tribunal was said to be irrelevant, there was no arguable case in that regard.

31    Noting that at paragraph [26] of the Decision Record the Tribunal found that the information provided by the applicant in her protection visa application regarding her claim to have been discriminated against at school in China had been inconsistent with the information in her student visa application, the primary judge found the applicant’s assertion in respect of this claim to be “a misrepresentation of what the Tribunal relevantly reasoned and found”. The primary judge found that based on the material before it, it was open to the Tribunal to make the findings it did in respect of the applicant’s claim to face discrimination in China. Further, whilst a finding of inconsistency is not, of itself, “information” for the purposes of s 424A(1) of the Migration Act, the primary judge was satisfied that the Tribunal had discharged its obligations with respect to the student visa information using the facility available to it under s 424AA: FCCA Judgment at [52]-[55].

32    The primary judge also rejected the claim that the Tribunal’s reasoning was illogical. Noting that the Tribunal had provided “detailed and comprehensive reasons for its disbelief in the applicant’s claims” the primary judge did not accept that “any charge of illogicality” could be made out and the claim that the Tribunal’s reasoning was “irrelevant” was no more than a “statement of grievance by the applicant with the Tribunal’s findings”: FCCA Judgment [55]-[56].

33    In the result, the primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the applicant had failed to raise an arguable case for the relief sought in respect of any of the four grounds in her application.

Disposition

34    I would not refuse the application for an extension of time by reason only of the applicant’s delay in approaching the Court for leave to appeal the FCCA Judgment. I decline to grant the extension of time and dismiss the application because the applicant’s proposed grounds of appeal lack merit; I perceive no appellable error in the reasons of the primary judge for dismissing those grounds or jurisdictional error by the Tribunal of the kind asserted by the applicant. In the circumstances, there can be no substantial injustice to the applicant by refusing the grant of an extension of time for the applicant to seek leave to appeal. I order that the applicant pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    4 May 2016