FEDERAL COURT OF AUSTRALIA

SZSKO v Minister for Immigration and Border Protection [2014] FCA 105

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    Before the Court is an application for an extension of time and for leave to appeal from a decision of the Federal Circuit Court of Australia (‘the FCCA’) delivered on 17 May 2013. By such decision, the primary judge dismissed an application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 15 November 2012 which affirmed the decision of a delegate of the first respondent (‘the Minister’) not to grant the applicant a Protection (Class XA) visa (‘the protection visa’) under the Migration Act 1958 (Cth) (‘the Act’).

FACTS

2    The applicant claimed that he was born in Hebai in the People’s Republic of China (‘the PRC’) on 28 April 1975. He is married with a daughter and a son. His wife and children reside in the PRC. The applicant is the holder of a passport which was issued to him by the PRC on 30 November 2007. He arrived in Australia on 6 November 2011.

3    The applicant applied for a protection visa on the basis that if he returned to the PRC he would be persecuted because of assistance he provided to a practitioner of Falun Gong. The applicant claimed that during a visit to Japan in July 2011, a Falun Gong practitioner handed the applicant some Falun Gong materials outside of a shopping centre. After returning home to the PRC, the applicant provided the Falun Gong materials to a friend whom he knew to practise Falun Gong and had a long association with.

4    On 1 September 2011, the applicant’s friend asked him to make copies of certain parts of Falun Gong material in the applicant’s factory. However on 5 September 2011, the wife of the applicant’s friend came to the applicant’s home stating that four police officers had searched their home, seized various materials relating to the practice of Falun Gong, and took the applicant’s friend away. As a result, and fearing that the police would arrest him if his friend confessed to them that he had provided his friend with Falun Gong materials, the applicant left his home for Beijing. On the following day, the applicant approached a travel agency in Beijing and subsequently obtained a visa on 18 October 2011 to visit Australia.

5    On 7 May 2012, the applicant attended an interview with a delegate of the Minister at the Department of Immigration and Citizenship (as it was then known). The delegate noted that the applicant had not sought to apply for a protection visa until two months after his arrival in Australia. The applicant confirmed to the delegate that he was not a Falun Gong practitioner.

6    The delegate found that the applicant’s claims were not credible. The delegate did not accept that the applicant had a genuine association with, and supported, a Falun Gong practitioner as he claimed. Accordingly the applicant’s claim for a protection visa was rejected.

APPLICATION TO THE TRIBUNAL

7    The applicant sought a review of the delegate’s decision before the Tribunal.

8    The applicant claimed before the Tribunal to have a heart defect. The applicant claimed that he was a genuine refugee and that if he returned to the PRC he would not be able to afford medication for his heart problem. The Tribunal member also noted that the applicant raised a new issue, not referred to in his written statement for his protection visa application, namely that his factory was bankrupt and closed. However the applicant explained that the bankruptcy was subsequent to his interview with the delegate.

9    The Tribunal accepted that medical records relating to the applicant showed that he was diagnosed with ischemic heart disease and had a stent inserted in his heart in the PRC in 2010. The Tribunal was not satisfied though that the applicant’s medical condition would place him at risk of serious harm to his life or health if he returned to the PRC. In reaching this conclusion, the Tribunal noted that the applicant had travelled to Japan and to Australia subsequent to such treatment.

10    The Tribunal found that the applicant was not a truthful witness, and that he had fabricated his claims that he was associated with a Falun Gong practitioner in the PRC and that his factory was bankrupt. In making such conclusion, the Tribunal had regard to what it described as ‘significant inconsistencies within the applicant’s evidence and the vague and contradictory character of his evidence to the Tribunal’.

11    Accordingly the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a convention reason, and did not satisfy the criteria under ss 36(2)(a) or 36(2)(aa) so as to entitle him to a protection visa.

PROCEEDINGS BEFORE THE FCCA

12    The applicant sought judicial review of the Tribunal’s decision before the FCCA. The application was heard on 17 May 2013, and judgment was delivered on the same day: see szsko v Minister for Immigration & Anor [2013] FCCA 558.

13    The grounds of the application are stated in [15] of such decision, and reproduced as follows:

1.     My school mate, Mr Cui Yanzhi had saved my life and suffered cancer, but, his practising Falun Gong cured his illness. I bought some Falun Gong materials for him from Japan and copied 50 copies at his requirement. He was arrested by the local authorities. His wife informed me of the terrible news, therefore, I had to flee to Australia due to fearing being found that I had given Falun Gong materials to him for which I will be persecuted.

2.     The Refugee Review Tribunal failed to comsider my aplication according to S91R of The Migration Act 1958 because of the Tribunal member had bial against me.

3.     The Tribunal member made jurisdictional error while making hid decision.

[Errors in original]

14    As to the first ground of the application, the primary judge noted that it merely restated the applicant’s factual claims put before the Tribunal and that, even assuming that it raised a ground of appeal, it amounted to no more than a request for an impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

15    The primary judge found that there were three elements that arose on the second ground of the application. Insofar as the applicant alleged that there was a failure of the Tribunal to consider his application, the primary judge found that there was nothing to suggest that any claim, or any aspects thereof, had been overlooked or not considered: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

16    Further, the primary judge found that the Tribunal demonstrated in its reasons that it had a clear understanding of the definition of ‘persecution’ and ‘serious harm’ as terms of the Refugees Convention and as understood in the context of ss 91R(1) and (2) of the Act.

17    Finally, in relation to the second ground of appeal, the primary judge, understanding the word ‘bial’ to be a reference to ‘bias’, noted that the allegation of bias against a judicial officer is a serious matter that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. The primary judge found that there was no proper basis for an allegation of bias on the part of the Tribunal.

18    As to the third ground of the application, namely that the Tribunal fell into jurisdictional error, the primary judge found that no particulars had been provided to support such a claim, and that the material before the Court did not disclose any relevant error.

19    Accordingly the primary judge dismissed the applicant’s application for judicial review with costs.

APPLICATION TO THE FEDERAL COURT OF AUSTRALIA

20    The decision of the primary judge dismissing the application for judicial review was an interlocutory decision given that the primary judge ordered the proceedings be dismissed pursuant to rr 44.12(1)(a) and 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) (‘the FCCA Rules’). Accordingly, leave is required to appeal to this Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

21    Further, pursuant to r 35.13(a) of the Federal Court Rules 2011 (Cth) (‘the FCA Rules’), an application for leave to appeal must be filed and served within 14 days after the date on which the judgment sought to be appealed from was pronounced or the order was made. This Court has power to extend such time pursuant to r 35.14 of the FCA Rules.

22    The appeal to this Court was commenced by the applicant filing an application for extension of time and leave to appeal on 26 September 2013. An affidavit has also been filed by the applicant dated 18 September 2013.

23    The application for leave to appeal refers to a judgment of the FCCA given on 20 February 2013 at Sydney. Such date is clearly erroneous. On 17 December 2012, the applicant sought review of the decision of the Tribunal under s 476 of the Act. That application came before the primary judge for the first time on 20 February 2013 when his Honour made several directions. The second and third such directions granted leave to the applicant to file and serve by 10 April 2013 both an amended application giving complete particulars of each ground of review and an affidavit containing additional evidence. Significantly, and as is recorded in the decision of the primary judge, his Honour endeavoured to explain to the applicant, by an interpreter, the nature of the proceeding. The applicant was referred to a lawyer on that Court’s ‘RRT Legal Advice Scheme’. The proceeding was then adjourned to 17 May 2013.

24    On 17 May 2013, and upon the application of the Minister, a show cause hearing occurred pursuant to r 44.12(1)(a) of the FCCA Rules. The record of the FCCA shows that the hearing commenced at 10.15 am on 17 May 2013 and concluded approximately one hour later. The primary judge dismissed the applicant’s application on the same day.

25    Irrespective of the erroneous date referred to in the applicant’s application for leave to appeal, given that the primary judge’s judgment was pronounced on 17 May 2013, the application for leave to appeal is out of time by approximately four months.

26    In determining whether an application for an extension of time should be granted, the Court has a broad discretion as set out in r 35.14 of the FCA Rules. Essentially, the Court must consider what the interests of justice require. It must be shown that strict compliance with the time limits of the FCA Rules will result in injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. The onus of satisfying the Court that the extension of time is warranted in the circumstances of the case rests squarely upon the applicant: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56].

27    The Court must be provided with a satisfactory explanation for the delay. In the absence of such information, leave should not be granted: Parker v The Queen [2002] FCAFC 133 at [6]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

28    Although some leniency should be afforded to self-represented litigants in migration cases, especially where those litigants are not fluent in English, the affidavit of the applicant merely states in relation to the delay in filing his application as follows:

After the hearing, I waited for the order and judgment of your Court, but I haven’t gotten them.

My friend advised me to call your Court, I asked a person to call your Court and got response that your court has posted your order to me on April, but I didn’t find it. I feel very sad, because to apply to your Cour has limited time. I beg your Cout will consider my condition and accept my application.

[Errors in original]

29    Significantly, the affidavit does not state when the applicant received a copy of the judgment. Further, it may be inferred from the record that the decision of the primary judge was given in the FCCA ex tempore on the day of the hearing when the applicant was present. The Court concludes that the applicant has not provided a satisfactory explanation for the delay in filing his application to this Court.

30    It follows that the application for an extension of time is dismissed. For completeness however, the Court will consider whether the application for leave to appeal demonstrates that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused supposing the decision of the primary judge to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Such considerations are cumulative: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 at [5].

31    The primary judge was unable to find any error on the part of the Tribunal. The grounds sought to be relied upon if leave were granted to bring an appeal to this Court raise identical issues to those considered by the primary judge.

32    The applicant appeared unrepresented before this Court but assisted by an interpreter. When asked if he wished to make any oral submissions, the applicant stated that he was in need of a legal practitioner. He also stated that he felt that there was an element of unfairness in his case. When the Court inquired what was meant by such statement, the applicant replied that this was a matter for a legal advisor to consider and that he wished to gain access to a lawyer to prepare his case properly.

33    As referred to above, the applicant was referred for pro bono legal assistance during the application before the FCCA. A letter from Counsel dated 21 March 2013 confirms that such advice was provided to the applicant.

34    Despite receiving legal advice, the applicant did not seek to amend his application before the FCCA nor put on any further evidence. The primary judge states at [19] of his Honour’s judgment:

Nothing further has been filed by the applicant in these proceedings. Unsurprisingly, the Minister today sought that the Court proceed immediately to a “show cause” hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

35    His Honour also records in his decision that he endeavoured to explain to the applicant that the Court could not intervene where a Tribunal made an adverse credibility finding against the applicant, and where those findings and its constituent findings were reasonably open to the Tribunal on the material before it.

36    The applicant has not sought to further elucidate his claim before this Court. In submissions in reply, the applicant claimed that before the FCCA, his interpreter told him that it was unnecessary to answer at length questions asked by the primary judge. This complaint has not been raised previously, and no evidence was put on in support of it.

37    On the material before the Court, it cannot be said that the decision of the primary judge is attended by any doubt. Accordingly, the Court would also refuse leave to appeal had an extension of time been granted.

38    As the application for an extension of time has failed, the applicant is to pay the costs of the Minister.

Associate:

Dated:    19 February 2014