FEDERAL COURT OF AUSTRALIA

SZTBO v Minister for Immigration and Border Protection [2014] FCA 269

THE COURT ORDERS THAT:

1.    The application for extension of time be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant applies pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (the Rules) for an extension of time within which to file an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 1 November 2013. In that judgment, the Federal Circuit Court dismissed the applicant’s claim for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), made on 19 June 2013. The Tribunal’s decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The Tribunal decision

2    At [14] of its decision record, the Tribunal described the applicant’s claims:

In summary the applicant’s claims are he lost his job at a state owned enterprise after he reported the corrupt practices of his supervisors. Since then, he has difficulty finding work. In 2001, he befriended some Falun Gong practitioners at a park in which he exercised. He gradually joined their group and began practicing what he initially was qigong but eventually realised was Falun Gong. In 2003, after the arrest of some practitioners, he ceased practice of Falun Gong in a park and began practicing underground. In 2004 he was arrested while posting anti-government flyers which were printed by Falun Gong. He was tortured and detained for 1 month, being released after paying a RMB5,000 guarantee. He unsuccessfully attempted to go to Japan in 2005 and China in 2009. During the Chinese New Year period of 2012, he decided to leave China after learning of information he may soon be arrested for practice of Falun Gong and slandering the government. He then applied through an agent for visitor visas to come to Australia, with his wife, leaving their daughter to remain in China. After arriving in Australia, the applicant’s wife returned to China. She was harassed by local police looking for the applicant and relocated with her daughter to live at the school in which she is a teacher. The applicant’s wife has been discriminated too because of the applicant by her school reducing her teaching hours. He claims he has suffered mental torture in China in the past and fears he will be arrested and detained in a labour farm by the Chinese police because of his Falun Gong practice if he returns to China. This is because he had been arrested before.

3    There is no challenge to the correctness or adequacy of that summary.

4    The Tribunal considered that the applicant had fabricated his claims. It found that:

    the applicant was not a credible witness;

    his responses at the hearing before it were often vague and evasive, and

    there were substantial and material inconsistencies and variations in his claims, in his written statement and in his oral evidence given to the Tribunal.

5    These matters were raised with the applicant at the hearing before the Tribunal. The applicant was informed that his credibility was in issue. The Tribunal considered the applicant’s responses in that regard to be:

    implausible or unconvincing, or

    unsatisfactory attempts to change his evidence once inconsistencies and implausibilities had been put to him.

6    The Tribunal rejected the following evidence given by the applicant:

    He was a practitioner of Falun Gong.

    He practised Falun Gong in China.

    He was arrested, detained or tortured for posting Falun Gong flyers.

    Injuries to the applicant’s arm and hand were caused by police because the applicant was a Falun Gong practitioner.

    He attempted to go to Japan or Canada because he was a Falun Gong practitioner.

    He was warned during the Chinese New Year period in 2012 by a friend who was an auxiliary police officer that he (the applicant) had been reported to the police for being a Falun Gong practitioner and for slandering the government.

    He learned of the disappearance or arrest of fellow Falun Gong practitioners.

    His wife had been harassed by police since her return to China.

    His wife had been discriminated against by her employer because of the applicant.

7    The Tribunal concluded that the applicant had fabricated these claims as a means to remain in Australia.

8    With respect to the claim that the applicant had lost his job after complaining about workplace corruption, the Tribunal (at [20]) said:

The Tribunal has considered the claim the applicant lost his job after complaining about corruption in his workplace, that he and his parents were threatened and thereafter had difficulty finding work. On the basis of the above findings he was not a genuine practitioner of Falun Gong, the Tribunal finds any difficulty he had finding work was not related to his practice of Falun Gong. Although the claim was not made by him expressly, on its face, there is an implied claim related to an anti-corruption political opinion. The Tribunal is not satisfied however, the applicant has suffered serious harm because of his anti-corruption political opinion. He provided no detailed evidence regarding the threats to him or his family and on the basis the Tribunal has found the applicant not to be a credible witness, it rejects those threats occurred. Moreover, the applicant has been able to accumulate funds to travel to Japan and to Australia. This indicates he had access to income sufficient to fund that international travel. Furthermore, he gave evidence of working in another province. The Tribunal considers the applicant has exaggerated the claims he had difficulty finding work as a means to remain in Australia.

9    The Tribunal was not satisfied that, if returned to China, the applicant would face a real chance of persecution by the Chinese police or any other authorities because he is a Falun Gong practitioner, or that he would face a real chance of harm because of his political opinion, or for any other Convention reason now, or in the reasonably foreseeable future. The Tribunal concluded that the applicant had not satisfied the requirements of s 36(2)(a) of the Act.

10    The Tribunal considered the application of the complementary protection provisions of s 36(2)(aa) of the Act to the applicant’s circumstances, but was not satisfied that the requirements of that provision had been made out. In that connection, the Tribunal (at [25]-[26]) said:

The applicant has claimed he and his parents were threatened and he has had difficulty in finding work in China because he reported the corrupt practices of his former supervisors at a state owned enterprise. For the reasons discussed above, the Tribunal rejects the applicant or his family were threatened. Additionally, as noted above, the applicant worked in another province and has been able to accumulate funds to travel to Japan and to Australia. This indicates he had access to income sufficient to fund that international travel. In any event, the Tribunal considers the applicant having difficulty finding employment does not amount to significant harm.

On the basis of the Tribunal’s findings set out above that he is not a practitioner of Falun Gong, the Tribunal too rejects the applicant’s claims give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to China, there is a real risk that he would suffer significant harm in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa).

The Federal Circuit Court judgment

11    The applicant’s proceeding for judicial review was commenced on 17 July 2013 by the filing of an application to show cause. The application contained two unparticularised grounds, namely:

1.    My evidence was not considered seriously by RRT.

2.    Decision made by RRT is not fair to me.

12    The applicant’s complaint, as developed in oral submissions, was that the standard of interpretation at the Tribunal hearing, where the applicant had the assistance of an interpreter translating from Mandarin to English, was inadequate. When pressed on this by the primary judge, the applicant raised two issues.

13    The first was the Tribunal’s concern about the applicant’s inconsistent evidence with respect to the distribution of flyers. In this connection, the applicant had asserted that the Tribunal did not understand his explanation of the apparent inconsistency. It is instructive to set out the Tribunal’s findings in this regard:

During his interview with the visa officer he stated the Falun Gong flyers he posted said ‘Falun Gong is good’, ‘quit the Chinese Communist party’, ‘quit the youth league’ and Chinese Communist party is condemned by heaven’. At the hearing his evidence was the flyers stated ‘kill communists’ and ‘prosecute Jiang Zemin’. He explained the inconsistency that there were 5 or 6 different flyers printed by Falun Gong At the hearing he remembered those and during the interview he remembered others. The Tribunal considers this an unconvincing attempt by the applicant to change his evidence once the inconsistency was put to him. The Tribunal considers this further evidence the applicant is not a genuine Falun Gong practitioner or he would have been more familiar with and consistent in his evidence regarding the contents of the flyers.

14    Having considered this part of the Tribunal’s decision record, the primary judge was satisfied that the Tribunal had understood, but did not accept, the applicant’s explanation for the inconsistencies. I can see no error in that finding.

15    The second issue raised by the applicant was that the Tribunal did not understand his explanation about a timing issue surrounding Chinese New Year in 2012. The applicant had claimed that a key event had occurred around Chinese New Year, whereas the Tribunal was satisfied that it had occurred several months before. The applicant explained that Chinese New Year celebrations start several months before the actual day. Once again, it is instructive to note what the Tribunal found in that regard:

The applicant agreed his statement was correct that he learned from his friend about his pending arrest around Chinese New Year time 2012. The Tribunal put to him Chinese New Year was on 23 January 2012 and his visitor visa was approved on 13 January 2012. He would have started the process of applying for the visitor visa at least one or two months before that. He agreed he applied about a month before. The applicant therefore applied for the visitor visa almost two months before Chinese New Year, before the time he was told anything by his friend. The applicant explained that according to Chinese culture, Chinese New Year period is anything up to a couple of months before and a month after the actual day of Chinese New Year. This was a cultural difference lost in translation. The Tribunal rejects as fabricated the applicant’s explanation Chinese New Year extends to cover the period in which he applied for his tourist visa, in November or December 2011 one or two months before his tourist visa was granted and before the actual date of Chinese New Year. The Tribunal considers this inconsistency further evidence his claims are fabricated.

16    After considering this passage in the Tribunal’s decision record, the primary judge was satisfied that the Tribunal had understood, but did not accept, the applicant’s explanation. I can see no error in that conclusion.

17    The applicant also expressed concern that the Tribunal rejected his claims relating to physical injuries. The primary judge noted, however, that the Tribunal had accepted that the applicant had suffered injuries, but had rejected the claim that those injuries were caused by the police because the applicant was a Falun Gong practitioner. I am unable to see any error in that finding.

18    The only other matter raised by the applicant was his asserted concern about his wife and child in China. He said that he had no reason to stay in Australia apart from his fear of harm in China. The primary judge expressed sympathy for this position, but found that the applicant had not demonstrated an arguable case of jurisdictional error by the Tribunal. For that reason, the primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), which provides that, at a hearing of an application for an order to show cause, the Federal Circuit Court may, if not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application.

The application for an extension of time

19    The dismissal of an application in the Federal Circuit Court pursuant to r 44.12 of the FCC Rules is an interlocutory judgment: r 44.12(2). Leave is required to appeal from such a judgment: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

20    An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced: r 35.13(a) of the Rules. In the present case, the applicant was required to seek leave to appeal by 15 November 2013. He did not lodge such an application until 2 December 2013.

21    Notwithstanding this, r 35.14 of the Rules confers a discretionary power to extend the time within which to file an application for leave to appeal. In respect of such applications, considerations relevant to a favourable exercise of the discretion include the length of delay, whether the applicant has provided an adequate explanation for the entire period of the delay, and the prospects of success of the applicant’s proposed grounds of appeal: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867; SZSKO v Minister for Immigration and Citizenship [2014] FCA 105.

22    Although the applicant has supported his application with an affidavit, he has not provided, in that affidavit, an explanation of why his application for leave to appeal was not filed within time, as required by r 35.14(3)(c)(ii). That said, in his application for an extension of time and for leave to appeal, the applicant does suggest that he was confused about the time within which he was required to seek leave to appeal.

23     The Minister accepts that the delay in the present case is short and that no prejudice will be suffered by reason of an extension of time being granted. Nevertheless, the Minister submits that an extension of time should be refused because there is no merit in the present application. The Minister submits that even if the Court were to grant an extension of time, the applicant would require leave to appeal. For such leave to be granted, the applicant would need to show that the judgment below is attended by sufficient doubt to warrant its reconsideration and that, assuming the judgment to be wrong, substantial injustice would result if leave were to be refused: DÉcor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397. The Minister submits that the judgment below is clearly correct and that the applicant has not raised any matter that would cast sufficient doubt on that judgment to warrant its reconsideration. I accept those submissions.

24    The draft notice of appeal provided by the applicant contains the following grounds of appeal:

1.    Decision made on FCC on 1 November 2013 is not fair to me

2.    I was persecuted in China. I fear to go back. I will suffer persecution again if I go back.

25    At the hearing of the application, I invited the applicant – who had the assistance of an interpreter – to address, orally, the reason or reasons why time should be extended. The substance of his initial response was that he wanted time to provide more evidence. He referred to the Tribunal’s adverse credit findings and said that he would take a lie detector test. Later, he said that the Tribunal’s decision was not fair to him. He said that he had no friends or relatives, just himself. He pointed to an injury to his left elbow and to what he described as a stabbing wound on the palm of his left hand. Finally, he said that it was hard to escape from China. China, according to him, was “not stable”. He said that if I wanted him to go to China, it would be inhumane.

26    In the course of these responses, I endeavoured to explain to the applicant that it is not the function of the Court to determine the facts of the case. I explained that it is the function of the Tribunal to determine the facts.

27    It is apparent that the focus of any appeal to this Court by the applicant would be his dissatisfaction with the Tribunal’s findings of fact and his desire to persuade the Court that it should come to a different view of the facts that is favourable to him and that supports his claims.

28    The applicant has not identified any appealable error in the Federal Circuit Court judgment, and no appealable error is apparent to me. Therefore, even though the delay in filing his application for leave for appeal is only a short one, I am satisfied that it would be futile to extend time to enable the application to be filed. The judgment of the Federal Circuit Court is not attended with sufficient doubt to warrant its reconsideration.

Disposition

29    The application for an extension of time should be dismissed with costs.

Associate:

Dated:    26 March 2014