FEDERAL COURT OF AUSTRALIA

SZTGL v Minister for Immigration and Border Protection [2015] FCA 214

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    The applicant is a citizen of the People’s Republic of China. He came to Australia on 28 September 2011, being granted entry as the holder of a student visa. Almost a year later, on 18 September 2012, the applicant applied, under the Migration Act 1958 (Cth) (the Act), to the Minister for Immigration and Citizenship, now known as for Immigration and Border Protection (Minister), for that class of visa known as a Protection (Class XA) visa. On 21 January 2013, following an interview of the applicant earlier that month by an officer of the Minister’s department, a delegate of the Minister decided to refuse the applicant’s application for a protection visa.

2    As he was entitled to do under the Act, the applicant then sought the review of the merits by the Refugee Review Tribunal (the Tribunal) of the Minister’s delegate’s refusal decision. On 9 August 2013, for reasons set out in writing, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant the applicant a protection visa. The Tribunal had offered, and the applicant had accepted, a hearing at which he could give evidence and make submissions in support of his claim for a protection visa. That claim was based on his asserted adherence to the Christian faith since 2011, prior to his leaving China; his attendance since around August 2010 at a “house church” in his home town; and his fear of persecution were he to be returned to China on the basis of his Christian faith and his seeking to follow that faith by Christian worship.

3    The Tribunal’s reasons disclose that the Tribunal member concerned was not satisfied, because she did not consider the applicant to be credible, that he was adherent to the Christian faith or had followed worship as a member of a house church. The Tribunal member consequently found that he did not have a well-founded fear of persecution by reason of religion. She also considered whether, as a result of any adherence to Christianity after arrival in Australia, a “sur place” claim might arise. Having found that the applicant’s claims to be a Christian in China were not credible, the Tribunal member noted a lack, on his part, of effort to locate a Chinese-language church or Bible in Australia or to seek baptism in Australia. She was not satisfied that he had participated in church activities here other than for the purpose of strengthening his claim to be a refugee. On that basis, and having regard to s 91R(3) of the Act, she disregarded conduct in Australia when considering whether he had a well-founded fear of persecution if returned to China.

4    The Tribunal member also considered whether he had a claim to “complementary protection” and concluded that he did not. In particular, she was not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of his being removed from Australia to China, that there was a real risk that he would suffer significant harm.

5    The applicant sought the review of the judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 20 August 2014, that Court dismissed, with costs, his judicial review application (see SZTGL v Minister for Immigration & Anor [2014] FCCA 2263). The judgment of the Federal Circuit Court was a final judgment. That being so, the applicant had an appeal as of right against that judgment to this Court but only if a notice of appeal was filed within 21 days of the date upon which that court’s judgment was pronounced (see r 36.03(a)(i) of the Federal Court Rules 2011 (Cth)).

6    The applicant did not file a notice of appeal within that time. Instead, on 26 September 2014, he filed an application for an extension of time within which to appeal, together with a draft notice of appeal and a supporting affidavit. In his supporting affidavit the applicant explains that at the time when the Federal Circuit Court delivered the reasons for judgment ex tempore (orally) and pronounced judgment he was advised that he would receive the decision in writing. He stated that he had been waiting until 10 September 2014, the date by which a notice of appeal ought to have been filed but had not received any letters from that court. He stated he had called both the department and also that court but was told to wait to receive the decision. He stated that he was advised that his visa was still valid and that he could apply for an appeal once he received the written notification of the judgment. He further stated that an officer of the department had advised him that he had 21 days to appeal to this Court from the date of receiving the judgment in writing. He further stated that he had received from the Minister’s solicitors “yesterday” (that is, 25 September 2014) a letter dated 19 September with the order of the Federal Circuit Court attached. Having received that, he then filed his application for an extension of time, and the affidavit to which I have referred, together with the draft notice of appeal.

7    The Minister did not, by his lawyer, seek to cross-examine the applicant on the facts put by him in his affidavit. The applicant, hardly uniquely, evidently did not understand that the time for an appeal ran from the date when the Federal Circuit Court pronounced orally in court after the giving of ex tempore reasons for judgment, the orders of the court. That same lack of understanding does seem to have attended advice given to him by the department. Whilst litigants in person cannot expect that this Court will grant them unreasonable indulgences in respect of the practice laid down in the rules of court, they are entitled to expect from officers of the Commonwealth, including those within the Minister’s department who take it upon themselves, for the best reasons in terms of good public administration to advise would-be appellants, that the advice given will be accurate.

8    The real question this afternoon is not whether the applicant has provided an acceptable explanation for his delay in the filing of a notice of appeal, but rather whether he has shown an arguable case in respect of one or more of his proposed grounds of appeal. The Minister quite properly conceded as much in the submissions made this afternoon to the Court. The Minister’s submission, in essence, was that even though the applicant’s explanation for delay could be regarded as reasonable, there was no point in the granting of an extension of time because the grounds of appeal, even if benignly viewed in the applicant’s favour, a subject to which I shall return shortly, provided no reasonably arguable ground of appeal. The Tribunal, quite properly, entered a submitting appearance.

9    What then are the proposed grounds of appeal? As set out in the draft notice of appeal, they are these:

1.    RRT did not believe that I am a Christian in a House Church.

2.    RRT did not believe that I will have big problems if I return to my Country.

[sic]

10    This notice of appeal exhibits the vice of not engaging with the alleged error on the part of the Federal Circuit Court. Instead, the grounds focus upon the Tribunal. This Court does not exercise an original jurisdiction in respect of decisions of the Tribunal. The original judicial review jurisdiction is consigned to the Federal Circuit Court and, of course, as it necessarily must constitutionally also be, to the High Court of Australia exercising jurisdiction under s 75(5) of the Constitution. In respect of judgments of the Federal Circuit Court on judicial review of Tribunal decisions, this court exercises an appellate jurisdiction.

11    It became apparent in the course of the applicant’s brief but concise oral submissions that what lay behind those draft grounds of appeal was a complaint on his part that the Tribunal’s failure to be satisfied that he was a person to whom Australia had protection obligations flowed from an unreasonable conclusion by the Tribunal in respect of his claim, unreasonable in the sense that a reasonable Tribunal could not have so concluded. In turn, his grievance with the Federal Circuit Court judgment was that that court had not found such an error in the Tribunal’s decision.

12    There is a very benign interpretation indeed required of the draft grounds of appeal to read them in this way. Even so, in matters of this kind, particularly with a person who is neither legally trained nor literate and who does not wish to return to the country likely to be the recipient country, it is often the most just course to follow to afford a benign construction, if only out of an abundance of caution, to the way in which draft grounds of appeal are expressed. The learned Federal Circuit Court judge, in my view, sought to adopt that approach with respect to the grounds of review. They were similarly expressed to the draft grounds of appeal in that they did not expressly reveal the underlying complaint of unreasonableness. The grounds of review were in these terms:

1.    RRT did not believe that I am an Christian in a house church.

2.    RRT did not believe that I will have big problems if I return to my country.

3.    The decision made by RRT is not fair.

[sic]

13    In giving judgment, the learned Federal Circuit Court judge observed, at para 7:

… the court cannot rehear the applicant’s application for a visa and that its role is to determine whether the Tribunal’s decision was affected by jurisdictional error. That means that even if the Court disagrees with the Tribunal’s findings and decision, any such disagreement does not provide a basis to set the Tribunal’s decision aside. Something more is required, namely, jurisdictional error on the part of the Tribunal.

14    The Federal Circuit Court judge concluded that those first and second grounds of review did not disclose anything other than an invitation to set aside the Tribunal’s findings on the merits. When one looks at the Tribunal’s reasons, and in particular at paras 19 through to and including 25, one finds seven reasons there advanced by the Tribunal member as to why she was not satisfied with the basis of the applicant’s claim for a protection visa. It is apparent that the Tribunal member asked the applicant some questions concerning his understanding of the Christian faith at the hearing. It is not apparent though that those questions went to the extent of revealing by detailed interrogation on sophisticated theological concepts a disposition on the part of the Tribunal member that nothing the applicant could say or do would convince her that he was indeed a Christian. Instead, the questions do seem to have been at a very general level of abstraction.

15    Further, the Tribunal member was evidently much persuaded by comparing answers given in respect of his Christian beliefs at the departmental interview in January 2013 by the applicant with those that he gave at the hearing conducted by the Tribunal. The Tribunal member noted that at the hearing he was able to answer “simple questions about Christmas and Easter” and “described his favourite part of the Book of Revelations”. The Tribunal member also noted that the applicant “had not been able to answer some basic questions about Jesus Christ and the Bible” during the departmental interview. The Tribunal member at para 23 drew the inference that the applicant “must have learnt about these things in Australia”. This she was entitled to do.

16    The Tribunal member’s reasons disclose a reasonable and rational basis upon which her failure to be satisfied as to the basis of the claim occurred. It is to be remembered that findings as to credibility are “par excellence” for administrative decision makers such as the Minister, the Minister’s delegates and the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 per McHugh J at [67]). Further, neither the Minister, his delegates, nor the Tribunal are obliged to accept at face value or uncritically the basis of a claim as set out in the application for a protection visa.

17    All in all, the conclusion reached by the Federal Circuit Court as to an absence of jurisdictional error, even if one regards the proposed grounds of appeal as focusing upon unreasonableness, are unremarkable. Equally the Federal Circuit Court’s further dealing with ground 3 of the judicial review application on the basis that it was not an invocation of alleged procedural unfairness but rather an indication of disagreement on the facts was also unremarkable in the dismissal of that ground of review.

18    It should also be observed that there is nothing on the face of the procedures adopted by the Tribunal as disclosed in the reasons which would suggest any want of compliance by the Tribunal with the procedural requirements of the Act in respect of the hearing and determination of a review application.

19    Even benignly interpreting the proposed grounds of appeal, there is no reasonably arguable case disclosed in respect of a challenge to the Federal Circuit Court’s judgment on the basis that that court ought to have concluded that the Tribunal’s decision was infected by a jurisdictional error constituted by an unreasonableness in the failure to be satisfied that the applicant was a person to whom Australia had protection obligations. The Tribunal’s conclusions in that regard were reasonably open.

20    The same applies in respect of the Tribunal’s discounting of the claim for a complementary visa. Equally, the Tribunal’s conclusion that any following of the Christian faith in Australia fell within s 91R(3) of the Act was one reasonably open.

21    For these reasons, even though the applicant has provided a satisfactory explanation for his delay in the filing of a notice of appeal, the granting of an extension of time would be pointless. No reasonably arguable case is disclosed by the draft notice, and there is no evident injustice in the outcome before the Federal Circuit Court. I therefore dismiss the application.

22    The Minister has sought an order for costs. There is no reason why, insofar as the Minister is concerned, costs should not follow the event. The applicant did not submit otherwise.

Associate:    

Dated:    19 March 2015