FEDERAL COURT OF AUSTRALIA

SZVGG v Minister for Immigration and Border Protection [2015] FCA 859

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, 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 applies for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal refusing to grant a protection (Class XA) visa under the Migration Act 1958 (Cth).

2    The applicant claims to be a citizen of the People’s Republic of China. He claims to fear harm in China due to his father’s role as a Kuomintang army general during the Chinese civil war before the establishment of the People’s Republic, and his participation in anti-Chinese government and anti-Chinese Communist Party (CCP) activities in Sydney, including Falun Gong activities and Tibetan independence protests.

3    The applicant first applied for a protection visa in April 2000. His application was refused by a delegate of the Minister for Immigration and Border Protection. In May 2001, the Tribunal affirmed the decision to refuse the applicant’s application. The applicant remained in Australia without a visa from June 2001 until he was located by the Department of Immigration and Border Protection and placed in immigration detention in February 2014.

4    On 13 February 2014, the applicant lodged a second protection visa application having regard to the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 which was again refused by a delegate. On 4 August 2014, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa.

5    On 25 February 2015, following an application for judicial review, the Federal Circuit Court of Australia found the Tribunal’s decision was not affected by jurisdictional error. See SZVGG v Minister for Immigration and Border Protection & Anor [2015] FCCA 405.

6    The applicant was transferred from Villawood Immigration Detention Centre in New South Wales to Yongah Hill Immigration Detention Centre in Western Australia in February 2015.

7    On 2 April 2015, the applicant filed this application for an extension of time to file a notice of appeal from the Federal Circuit Court’s decision.

8    This proceeding was transferred to the Western Australian Registry of this Court by orders made 18 May 2015.

9    The question now before the Court involves consideration of both the explanation for the delay in seeking to appeal and the merits of any appeal.

Tribunal’s decision

10    The Tribunal noted that the effect of the Full Court’s decision in SZGIZ was that a person who had previously applied for and been refused a protection visa, only on the basis of one of the criterion in s 36(2) of the Act, appeared eligible to lodge a further valid application on the basis of one of the other criterion.

11    Thus, as the applicant had previously had his claims for protection assessed under s 36(2)(a) of the Act prior to the commencement of the complementary protection provisions and had not left Australia since, the Tribunal considered it must confine its consideration to whether he satisfied the requirements of s 36(2)(aa) and (c).

12    Section 36(2)(aa) provides that where a person does not meet the refugee criterion, he or she may nonetheless be a person in respect of whom the Minister is satisfied Australia has protection obligations where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk he or she will suffer significant harm. Section 36(2)(c) was not relevant to the applicant’s case, as it provides alternative protection for family members of persons owed protection obligations and holding protection visas.

13    Before the Tribunal, the applicant’s evidence (as summarised in the Tribunal’s reasons) was that he would be targeted and harmed by the authorities if returned to China because of his family’s connection with the Kuomintang and his own involvement in anti-CCP protests in Australia. He provided an account of the suffering he and his family had experienced in China because of his father’s Kuomintang connection, and said he was pretty sure his name was already on the Chinese authorities’ “black list”.

14    The Tribunal challenged his evidence, putting to the applicant that country information indicated people do not now suffer harm or discrimination simply because of family involvement with the Kuomintang.

15    The Tribunal also questioned the credibility of the applicant’s evidence as to his attendance at Falun Gong and Tibetan independence meetings and protests, and put to the applicant that his involvement was not such that the Chinese government would take any notice. The applicant disagreed.

16    The Tribunal accepted that the applicant is a citizen of China and that his identity was as claimed. However, the Tribunal was unable to be satisfied as to key elements of the applicant’s claims concerning his experiences in China and his involvement in opposition activities in Australia.

17    The Tribunal noted that the applicant’s claims of mistreatment due to his father’s association with the Kuomintang were difficult to reconcile with his evidence that his parents were permitted to retain a house, which they passed on to him after their death, his years of formal education and uninterrupted employment, and his ability to obtain a passport and exit visa in a routine manner in 1999. Therefore, the Tribunal was not satisfied as to the credibility of the applicant’s claims in this respect.

18    The Tribunal also doubted the credibility of the applicant’s evidence as to his anti-Chinese government political activities in Australia, observing that his responses at the hearing when questioned about these events were notably vague, and at times uninformative.

19    The Tribunal further noted that although the applicant claimed to be Christian, he did not claim to fear any harm in China on that account.

20    The Tribunal was not satisfied the applicant was at risk of harm of any kind on return to China, therefore was not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk the applicant would suffer significant harm for the purposes of s 36(2)(aa) of the Act. The delegate’s decision not to grant the applicant a protection visa was affirmed.

Federal circuit court decision

21    In the Federal Circuit Court, where he sought judicial review of the Tribunal’s decision, the applicant first asserted that the Tribunal did not understand the Chinese government and what happened to Chinese people. With regard to this assertion, the primary judge noted the Tribunal referred to various reports dealing with the Kuomintang, and said it is well settled that the weight given to country information is a matter for the Tribunal. Her Honour said that, in any event, the Tribunal had ultimately rejected the applicant’s claims that he and his family had any such connection with the Kuomintang.

22    Secondly, the primary judge noted the applicant appeared to make a complaint about the Tribunal’s adverse credibility findings in relation to the applicant’s claims to have been involved in anti-CCP and anti-Chinese government gatherings in Australia. Her Honour found the Tribunal’s conclusions were open to it on the material before it and that credibility findings are a matter par excellence for the Tribunal.

23    Thirdly, the applicant asserted the Tribunal member was confused by the interpreter, however was only able to provide one example – that the interpreter made a mistake because the Tribunal said he was a construction worker when he did not say that. Her Honour noted the applicant had not filed a recording or transcript of the hearing as directed. In any event, her Honour found the Tribunal, in its reasons, noted that the applicant denied he had been employed in the construction industry and made no further finding on the matter. Her Honour said this was not an operable fact upon which the Tribunal relied in affirming the delegate’s decision.

24    Finally, the primary judge found the other complaints of the applicant appeared to be no more than a disagreement with the Tribunal’s findings and conclusions, inviting impermissible merits review. Her Honour said the applicant had had an opportunity to put before the Tribunal whatever information he wished in the nature of country information or other evidence, and to the extent the applicant suggested the Tribunal could have undertaken its own research, there is no general obligation on it to investigate an applicant’s claims.

25    Her Honour found the Tribunal’s reasons demonstrated it understood the applicant’s claims, had regard to all material provided in support and put to the applicant matters of concern it had about his evidence, noting the applicant’s responses. In the circumstances, her Honour found the Tribunal affirmed the decision under review based on the lack of credibility of the applicant’s claims, a finding open to it on the material before it. The Tribunal’s decision was held not to be affected by jurisdictional error.

Application to this court

26    Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that the time for the applicant to file his notice of appeal was within 21 days after the date on which the judgment appealed from was pronounced or the order was made.

27    The judgment and orders of the Court below were made 25 February 2015. The applicant should have filed his notice of appeal on or before 18 March 2015, but filed this application 15 days later, on 2 April 2015.

28    The applicant now applies for an extension of time to file his notice of appeal pursuant to R 36.05 of the Rules.

29    The applicant also provided a draft notice of appeal stating two proposed grounds of appeal, which allege the primary judge erred by:

(1)    failing to properly consider whether the Tribunal fell into jurisdictional error by finding that s 36(3) of the Act applied to the applicant without considering the risk to the applicant of refoulement to China at the end of the duration of the period of the right to enter and reside; and, or in the alternative

(2)    failing to consider whether the Tribunal fell into jurisdictional error in its failure to take into account the applicant’s inability to lawfully support himself in China in determining whether s 36(3) applied to him.

Applicant’s submissions

30    The applicant’s originating application for an extension of time and supporting affidavit contain the same statements about this matter.

31    The applicant first states he received a copy of the “Federal Circuit Court order by hand” on 12 March 2015.

32    He says that his immigration case officer, Mary, told him he had 28 days to appeal the decision and that on 27 March 2015, he faxed his notice of appeal from the Federal Circuit Court and “all other documents” to the Court’s Perth registry.

33    He further states:

I made a call through TIS, and the officer at Perth registry told me I need to fax all my documents to Federal Circuit [Court] of Australia at Sydney registry, also she informed me I only have 21 days to appeal.

34    The applicant notes he is self-represented and all the “appeal information” came from his immigration case officer, Mary.

35    He also says that in Yongah Hill Immigration Detention Centre “the telecommunication methods are extremely hard” and “if I did not call the Federal Court at Perth registry by myself, it might take weeks to notice me my application is not valid”.

36    At the hearing, the applicant repeated the substance of his affidavit evidence to explain his delay in seeking to appeal. As to the merits of any appeal, he says there was mistake made as to his personal circumstances. He appeared to also submit his first visa application should have been reconsidered when he made the second visa application. He mentioned unfairness and a lack of procedural fairness. Many of his submissions appeared to contest the merits of the Tribunal’s decision.

Minister’s submissions

37    The Minister submits the Court is to determine whether an extension of time should be granted taking into account the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: Mohammed v Minister for Immigration and Border Protection (2015) 145 ALD 684 at [15]; [2015] FCA 184; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 186.

38    It is submitted that in circumstances where the applicant has not provided a plausible explanation for delay, the extension of time should not be granted.

39    The Minister says that while the applicant states in his affidavit that he faxed the draft notice of appeal to the Court on 27 March 2015, it would still have been filed outside the 21 day period.

40    The Minister notes the applicant was present at the time of the primary judge’s ex tempore decision and order, and says there can be no question that he was aware of the outcome of the proceedings and the reasons for judgment with the assistance of a Mandarin interpreter.

41    The Minister submits the Court is unlikely to be satisfied as to the merits of the proposed appeal, in any event.

42    The Minister suggests the applicant relies on obviously proforma or template grounds of appeal, drawn from some other appeal. In this regard, the Minister refers to SZLHM v Minister for Immigration and Citizenship [2008] FCA 754 in which Flick J noted at [35]-[36]:

First, there is a self-evident difficulty if a ground which may have prevailed in one set of circumstances is sought to be transposed to different proceedings in which the ground is simply not apposite. The success of a particular argument in the circumstances of a particular case obviously does not mean that the same argument will always prevail and does not mean that the argument is even appropriate to be advanced in other proceedings.

It may well be understandable that an unrepresented litigant may wish to call upon all possible arguments and that an unrepresented litigant may well lack the ability to discern whether an otherwise successful argument is even relevant to his own circumstances. Indiscriminate reliance, however, upon arguments transposed from other proceedings may simply provide false hope to the unrepresented. And indiscriminate reliance upon grounds divorced from the circumstances of the particular proceedings under consideration may well only serve to detract from such prospects of success as an application may otherwise present.

43    The Minister submits the lack of basis to the proposed grounds of appeal is a sufficient basis for withholding leave to file the notice of appeal.

44    The Minister says it has considered the proposed grounds as they could apply in this case and submits there is no error in the primary judge’s decision. With regard to proposed ground 1, the Minister submits there was no issue before the Tribunal regarding the potential application of s 36(3) of the Act and no suggestion or findings made by the Tribunal that protection obligations were not owed to the applicant because of an opportunity on his part to avail himself of the right to enter and reside in another country.

45    The Minister says that to the extent proposed ground 2 might be construed as a claim by the applicant that the complementary protection obligations were owed to him as a result of his “inability to lawfully support himself in China”, no claim for protection was made on this basis, nor did the evidence before the Tribunal raise an apparent claim on this basis. The Minister refers to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [49].

46    The Minister submits the grounds of appeal do not establish error in the reasons of the primary judge.

Consideration

47    The factors relevant to determining whether an extension should be granted are well-established and summarised in the Minister’s submissions. The Court will consider the length of delay in lodging the application and reasons for the delay, any prejudice to the respondent if the extension is granted, and the merits of the substantive appeal. See Hunter at 348-349.

48    The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. See Gallo v Dawson (1990) 93 ALR 479 at 480; [1990] HCA 30 (McHugh J).

49    Given the applicant’s explanation that he was, in effect, misled about the time in which he was entitled to appeal from the decision of the primary judge as of right, it is useful first to consider the merits of the proposed appeal.

50    I take the Minister’s point that the proposed grounds are in the nature of proforma or template grounds. They do not appear particularly designed to respond to the circumstances of the applicant as found in the Tribunal or considered by the primary judge.

51    In any event, it is not apparent that the primary judge made any error in dealing with the judicial review application.

52    I accept the Minister’s submission there was no issue before the Tribunal regarding the potential application of s 36(3) of the Act and no suggestions or findings made by the Tribunal that protection obligations were not owed to the applicant because of an opportunity on his part to avail himself of the right to enter and reside in another country. That proposed ground of appeal has no merit.

53    I also accept the submission made by the Minister that to the extent that proposed ground 2 might be construed as a claim that the complementary protection obligations were owed to him as a result of his inability to lawfully support himself in China, no such claim for protection was made and the evidence before the Tribunal did not raise any such apparent claim. It also has no merit.

54    In these circumstances, notwithstanding the reasons advanced to explain the delay in seeking leave to appeal, because the proposed grounds of appeal lack any merit, it follows that the application for leave to appeal should be dismissed.

55    As to the applicant’s oral submissions concerning the merits of the Tribunal’s decision, the merits of the decision are not able to be reconsidered on the hearing of this application or on any appeal if leave was granted. They were not the subject of the judicial review application in the Court below. There simply is no indication that the Federal Circuit Court committed any jurisdictional error when judicially reviewing the relevant Tribunal decision.

Conclusion and order

56    The following orders should be made:

(1)    The application be dismissed.

(2)    The applicant pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    17 August 2015