FEDERAL COURT OF AUSTRALIA

SZQKA v Minister for Immigration and Citizenship [2012] FCA 513

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant has applied to the Court for an extension of the time within which he might appeal from a judgment of a Federal Magistrate given on 8 February 2012 (SZQKA v Minister for Immigration and Citizenship [2012] FMCA 90). By that judgment, the Federal Magistrate dismissed judicial review proceedings brought by the applicant in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 27 May 2011. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant a Protection (Class XA) visa (protection visa) to the applicant.

2    The applicant should have filed his Notice of Appeal in this Court by 29 February 2012 (r 36.03 of the Federal Court Rules 2011). He did not do so. His application for an extension of time was filed on 13 March 2012. That application was, therefore, filed 13 days after the expiration of the time by which the applicant was required to lodge his Notice of Appeal.

3    In his affidavit affirmed on 5 March 2012 in support of his application, the applicant sought to explain his delay in filing his Notice of Appeal. In that affidavit, the applicant said that he thought that his appeal could be lodged at any time within 28 days after the date of the Federal Magistrate’s judgment and that he believed that he still had time to appeal when he first took steps to do so. This explanation is not satisfactory. However, a delay of 13 days is inconsequential. No prejudice has been suffered by the Minister. The Minister does not seek to rely upon the 13 day delay as a separate and independent justification for his opposition to the applicant’s application.

4    However, the Minister opposes any extension of time on the ground that the applicant’s putative appeal is without merit. Were I to conclude that the applicant’s putative appeal would be without merit, I would be entitled to rely upon that conclusion in considering whether to grant the requested extension of time (see Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [17]).

Background

5    The applicant is a citizen of China. He arrived in Australia on 15 October 2010. On 25 October 2010, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused his application for a protection visa on 21 January 2011. On 23 February 2011, the applicant applied to the Tribunal for a review of that decision. As I have already mentioned, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant.

6    In his application for a protection visa, the applicant claimed that he had built a large chicken farm on land situated next to the main road just outside his village. He said that, by early 2009, his chicken farm had a stock of 20,000 hens and occupied 5 Mu area of land. He claimed that the annual profit which he derived from the chicken farm was 400,000 Yuan Mb.

7    The applicant claimed that his chicken farm was strategically located because it was near the place where the Nanmeng town government planned to build an agricultural trading market. He said that the value of the land upon which the chicken farm had been constructed rose rapidly. He said that he had received many offers to purchase the chicken farm.

8    The applicant claimed that, on 6 August 2010, his village head came to his home and invited the applicant to go to the village head’s home for dinner. That evening, at the dining table, the village head offered to buy the applicant’s chicken farm. The applicant declined to sell. A few days later, in the morning of 10 August 2010, the village head again visited the applicant at his home. He repeated his offer to purchase the chicken farm. The applicant again declined. The applicant claimed that the village head then became angry and promised retribution.

9    The applicant claimed that, on the next day, 11 August 2010, when he rose in the morning, he discovered that many of his hens had died. On advice from a veterinary surgeon who looked at the dead hens, the applicant believed that they had been poisoned. He said that he complained to the Nanmeng police about the matter. The applicant also claimed that, in the evening of 11 August 2010, after he had buried the dead hens, he was forced off the road by a black car occupied by two men. He said that the men tied him up with glue tape and covered his eyes. He said that they took him to an old house and tortured him by punching and kicking him. He said that, after this beating, his nose and face were swollen and his face was covered in blood. The applicant claimed that, in the course of meting out this beating, the two men mentioned that they were, in effect, acting on instructions of the village head. After the beating, the two men took the applicant back to his village and pushed him out of the car near his home.

10    On 13 August 2010, the applicant went to Nanmeng Police Station to lodge a formal complaint about the incident on 11 August 2010 in which he had been beaten. On 14 August 2010, according to the applicant, the police from Nanmeng Police Station required that he attend there. He did so. He said that the police then handcuffed him and hit him with an electric rod. They told him that he should not make fraudulent complaints against the village head. They threatened him with prison if he did so again.

11    The applicant also claimed that, on 30 August 2010, he and his wife went to the provincial capital and asked for the help of a travel agent friend to get to Australia. The applicant then travelled to Australia. His wife remained in China.

12    The applicant claims that, if he is returned to China, he will be persecuted by the Chinese Communist Party continually. He claims to be very scared. He seeks protection.

13    The applicant was interviewed by the delegate on 10 December 2010. The delegate recorded that, at that interview, the applicant’s story was supplemented in significant ways. The delegate did not find the applicant credible and found that the applicant’s claims overall were implausible. The delegate described the claims as “merely uncorroborated assertions” and rejected his claim for a protection visa.

The Proceedings in the Tribunal

14    The applicant appeared before the Tribunal and gave evidence on 18 April 2011 with the assistance of an interpreter fluent in the English and Mandarin languages. At that hearing, the Tribunal raised a number of concerns which it had with the applicant’s version of events. For example, the Tribunal questioned the applicant as to why he had not encountered any further difficulties after he had fled his village. The Tribunal also raised with the applicant why he had not initially said anything about selling his farm and the payment of RMB 200,000, which he had subsequently claimed was a payment to persuade him not to make further complaints about his village head. The Tribunal also drew the applicant’s attention to the fact that his account of his abduction and subsequent complaint to the local police had varied from one version of events to another. The Tribunal also had concerns about several other aspects of the applicant’s story.

15    On 20 April 2011, the Tribunal wrote to the applicant inviting him to comment upon or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review (see s 424A of the Migration Act 1958 (Cth) (the Migration Act)). In that letter, the Tribunal identified the following matters as matters of concern:

The particulars of the information are:

•    At your interview with the delegate, you said that the land on which you had your chicken farm was sold to the village leader for RMB200,000; the land was worth that amount per acre and the settlement date was 20 August 2010. You told the Tribunal that you did not know what the value of the land was per acre; you did not sell the land to the village leader; he took it by force and only after he had demolished the structures on the land did he offer you the amount of RMB200,000, not as a purchase price, but as money to persuade you not to make any complaints about his conduct.

•    At your interview with the delegate, you were asked where your wife was living and you said that she was still in the village where you both lived when you were in China. You did not mention that she had been harassed by the village leader and, because of that harassment, had to flee and live with relatives in another village, as you had told the Tribunal.

•    At your interview with the delegate you were asked how many chickens were poisoned and you said 8,000. To the Tribunal, you said that 4,000 chickens were poisoned.

The evidence you gave the delegate at your interview as mentioned above is relevant because it appears to be inconsistent with the evidence you gave about those matters to the Tribunal. This may lead the Tribunal to conclude that you are being untruthful and if the Tribunal does not believe you it would find that your fear of persecution is not well founded and so this information would be the reason, or part of the reason, for affirming the decision of the delegate to refuse to grant you a Protection visa.

16    The applicant requested a copy of the recording made of the hearing held on 18 April 2011. On 4 May 2011, that recording was furnished to him.

17    On 18 May 2011, by letter dated 15 May 2011, the applicant provided a detailed typewritten response to the Tribunal’s letter dated 20 April 2011. It is not necessary to traverse the detail of that response.

18    In its Decision Record, after setting out the relevant law, the Tribunal recorded the various claims made from time to time by the applicant and the evidence which he gave in support of those claims from time to time. The Tribunal addressed those matters by reference to the applicant’s application for a protection visa, the interview with the delegate, the applicant’s evidence before the Tribunal and the applicant’s response to the Tribunal’s letter dated 20 April 2011.

19    At [96], the Tribunal embarked upon an exposition of its findings and reasons. The Tribunal dealt in detail with a number of significant inconsistencies between the various accounts given by the applicant concerning the poisoning of his hens, the selling of his chicken farm and the aftermath of those events. At [124]–[127] of its Decision Record, the Tribunal said:

124.    The applicant’s evidence on issues that are relevant and central to his refugee claim has been inconsistent in the respects discussed above. His explanations for these important discrepancies are not satisfactory and, considered cumulatively, these areas of inconsistency lead the Tribunal to find that the applicant is not a witness of truth and his account is false.

125.    For these reasons, the Tribunal disbelieves the applicant’s claim that the leader of his village pressured the applicant to hand his farmland over to him; that this person or others poisoned the applicant’s chickens; that the applicant was abducted and maltreated; that the applicant was detained and maltreated by local police; that the applicant abandoned his farmland; that the village leader then took possession of it and demolished structures on the land; that the village leader offered the applicant an amount of money so he would not complain; and that the village leader harassed the applicant and his wife including the claim that someone watched them.

126.    The Tribunal accepts that the applicant comes from a village in Hebei province and that he operated a chicken farm there. Beyond that, there is no credible evidence before the Tribunal as to why the applicant left China. There is no credible evidence that the applicant left China to avoid harm from the leader of his village or Chinese authorities as he has claimed. There is no credible evidence before the Tribunal that if the applicant returns to China there is a real chance he will suffer persecution on the grounds he has claimed.

127.    There is no credible evidence before the Tribunal that the applicant has a well founded fear of persecution based on any convention ground.

20    The Tribunal then affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.

The Proceedings in the Federal Magistrates Court

21    On 29 June 2011, the applicant filed in the Federal Magistrates Court an Application for Judicial Review of the Tribunal’s decision. The grounds of review relied upon by the applicant in that Application were:

1.    Decision made by Refugee Review Tribunal is not fair.

2.    Tribunal member is not patient with me and asked me unreasonable questions and made me confused.

22    At [4]–[9] of his Reasons for Judgment, the Federal Magistrate traversed the history of the claims made by the applicant in his application for a protection visa, in his interview with the delegate and at the hearing before the Tribunal. At [10]–[12], the Federal Magistrate summarised the conclusions of the Tribunal. His Honour then moved to deal with the two grounds of judicial review relied upon by the applicant in the Federal Magistrates Court.

23    As to the first ground, the Federal Magistrate assumed that this ground was not an attempt to assert that the applicant had been denied procedural fairness but rather was the applicant’s way of advancing the proposition that the decision of the Tribunal was incorrect on the merits because it was not favourable to him. The Federal Magistrate held that this did not give rise to a proper ground for judicial review. His Honour held that the Federal Magistrates Court could not conduct an inquiry into the applicant’s entitlement to a protection visa or substitute its own views of the merits of his visa application for those of the Tribunal.

24    His Honour regarded the second ground raised by the applicant as a complaint that the Tribunal had failed to afford to the applicant a real and meaningful opportunity to give evidence and to put arguments in support of his claim to meet the criteria for the grant of a protection visa. The Federal Magistrate characterised this contention as an argument based upon a contravention of s 425 of the Migration Act. The Federal Magistrate held that the applicant had not adduced any evidence to support his assertion. To the contrary, the Decision Record of the Tribunal did not bear out the applicant’s assertions. At [18] of his Reasons, the Federal Magistrate said:

… It is plain from the Tribunal’s summary of its hearing that the Tribunal put the applicant under some pressure at that hearing when it identified to him the numerous inconsistencies in his various accounts of relevant events and pressed him to explain them. Although being put on the spot may have been uncomfortable for the applicant and although he apparently found it difficult to reconcile his stories, that does not demonstrate that the Tribunal made him confused or that he was denied a proper hearing. If the applicant was confused it was because he had not given consistent accounts of relevant events.

25    His Honour went on to find that there was nothing in the Decision Record of the Tribunal that bore out the applicant’s allegation that the Tribunal had been impatient with him.

26    Finally, the Federal Magistrate held that, contrary to the allegations made by the applicant, the Tribunal had understood his claims but had rejected them.

The Applicant’s Application in this Court

27    The grounds of appeal specified in the draft Notice of Appeal attached to the applicant’s affidavit affirmed on 5 March 2012 are in the following terms:

1.    Decision made by the Federal Magistrates Court on 16 February 2012 is not fair to me.

2.    I fear to return to China because of the persecution I have suffered there. I will be persecuted again if I go back.

28    These proposed grounds of appeal do not identify any error on the part of the Federal Magistrate and do not reveal any jurisdictional error on the part of the Tribunal. They constitute nothing more than an impermissible attempt to review in this Court the Tribunal’s decision on the merits.

29    When the applicant’s present application was called on for hearing before me, the applicant was not present at Court. The matter was called outside the Court but the applicant did not appear. The solicitor for the Minister searched for the applicant on another floor in the Court building but did not find him. In those circumstances, I dismissed the applicant’s application because of his failure to attend the hearing.

30    Later that same day, at approximately 11.12 am, the applicant attended at Court while I was dealing with another matter. Subsequently, on the same day, upon his application and without opposition from the solicitor for the Minister, I vacated the order for dismissal which I had made earlier that day. I then heard the applicant’s application. He did not make any relevant oral submission in support of the extension of time which he seeks. His only submissions were: “The earlier decisions were not fair” and “I cannot go back to China because I will be persecuted”. He had previously failed to lodge any written submission notwithstanding that he had been directed to do so.

31    In my view, the applicant’s proposed appeal is hopeless.

32    For this reason, I refuse to grant the extension of time sought by the applicant for the filing of his Notice of Appeal. To grant the extension sought would be to embark upon an exercise in futility.

33    For these reasons, I propose to dismiss the applicant’s application with costs. There will be orders accordingly.

Associate:

Dated:    18 May 2012