FEDERAL COURT OF AUSTRALIA

SZKOX v Minister for Immigration and Border Protection [2015] FCA 990

THE COURT ORDERS THAT:

1.    The name of the second respondent, “Refugee Review Tribunal”, be amended to “Administrative Appeals Tribunal”.

2.    The first applicant’s application on behalf of the first and second applicants for an extension of time to seek leave to appeal is dismissed.

3.    The applicants are to pay the respondents’ 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

Introduction

1    The first applicant (on behalf of both applicants) has applied for an extension of time to seek leave to appeal a decision of a Judge of the Federal Circuit Court: see SZKOX v Minister for Immigration & Anor [2015] FCCA 789 (SZKOX).

2    Since the Federal Circuit Court judge ultimately made final orders dismissing the applicant’s application for judicial review (see at [22] below), under r 36.03 of the Federal Court Rules 2011 (Cth), the time for filing and serving a notice of appeal from that judgment is within 21 days after the date on which it was pronounced. That period expired on 16 April 2015. As the applicant’s current application was filed on 7 May 2015, it was 21 days late.

The Grounds of this application

3    The applicant provided one ground for his application for an extension of time. It was expressed as follows:

Notice of Appeal from the Federal Circuit Court of Australia and Application for exemption from paying court fees – General was deemed to be submitted within 21 days.

4    Some further illumination of what was meant by this statement was provided in the applicant’s supporting affidavit, where he stated:

1.    I am the applicant.

2.    I received the judgment by honourable … on 26 March 2015 …

3.    On 15 April 2015, I have the Notice of Appeal from the Federal Circuit Court of Australia and Application for Exemption from Paying Court Fees – General completed and faxed to the Federal Court New South Wales on 09 9230 8295. The TX Result Report provided by the security guard at Wickham Point IDC has verified the time and date the said documents by fax successfully transmitted …

4.    I believed that we have applied for appeal within 21 days.

(Errors in original)

5    The applicant’s draft notice of appeal set out two proposed grounds of appeal, as follows:

1.    His Honour … erred in finding that the Refugee Review Tribunal (the Tribunal) was “reasonably open” to the Tribunal to accept the First Tribunal’s decision to be correct in circumstances where the person with the most interest in disputing its correctness.

2.    His Honour … erred in finding that there was no “over reliance” by the Tribunal.

6    In his submissions, the Minister for Immigration and Border Protection accepted that the applicant had provided a reasonable explanation for his delay in filing his notice of appeal and, accordingly, did not oppose the application on that ground. However, he did oppose the application on the ground that the proposed appeal had no merit and to grant the application in those circumstances would be futile.

The factual background

7    Before considering whether the Minister is correct in his opposition to the application, it is convenient to set out a brief outline of the factual background to the applicant’s claims for a protection visa.

8    The applicant is a citizen of the Peoples Republic of China. He arrived in Australia in November 2002, travelling on a Business (Short Stay) (subclass 456) visa. That visa expired in December 2002.

9    In November 2006, the applicant applied for a protection (class XA) visa. His application was based on claims that he feared harm in China because of certain political and Falun Gong-related activities he had undertaken in Australia. A delegate of the Minister refused to grant the visa in question. The Tribunal affirmed that decision in April 2007. The applicant unsuccessfully applied to the Federal Magistrates Court in May 2007 for judicial review of that decision, and then unsuccessfully appealed that decision to this Court.

10    The applicant remained in Australia after that time. In February 2014, officers of the Minister’s Department apprehended him and placed him in detention.

11    In early March 2014, the applicant again applied for a protection (class XA) visa. This second application was confined to a claim based on the complementary protection criterion contained in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The applicant claimed to fear harm in China because of “difficulties arising from a fruit storage business he operated in China”. The Federal Circuit Court judge summarised the background to this claim in the following terms (see SZKOX at [4]):

The alleged facts on which the applicant claimed a protection visa before the Tribunal are as follows. In 2002, before he left China, the applicant conducted a business for the storage of fruit. Local authorities imposed exorbitant taxes on the applicant which the applicant could not pay. The local authorities ceased supplying electricity to the applicant’s business. Without electricity, the applicant did not have power to keep refrigerated the fruit he stored on behalf of the farmers. The fruit therefore was ruined, and the farmers for whom the applicant stored the fruit claimed compensation from the applicant. The applicant could not afford to pay compensation. The farmers and other creditors threatened, harassed, and beat the applicant. The applicant left China to avoid harm from the farmers and his other creditors.

12    In June 2014, a delegate of the Minister refused the applicant’s second application. The applicant immediately applied to the Tribunal for merits review of that decision. When the Tribunal affirmed the delegate’s decision, the applicant then unsuccessfully applied to the Federal Circuit Court for judicial review of that decision (SZKOX) which has, in turn, led to this application.

The Tribunal’s decision

13    The Tribunal’s findings revolved around its conclusion that the applicant’s claims lacked credibility. The particular matters it relied on were aptly summarised by the Federal Circuit Court judge in the following terms (see SZKOX):

[5]    The Tribunal found the applicant was not a witness of truth. The Tribunal disbelieved the applicant’s claims about being harmed by Chinese authorities, farmers, and creditors in relation to the fruit storage business he was operating in China. The Tribunal found false the applicant’s claims about being in debt or liable to pay money to any of these people, and being harassed, threatened, and assaulted by them.

[6]    The Tribunal’s adverse credit findings were based on a number of matters …

(a)    First, when asked at the First Tribunal hearing why he had left China, the applicant did not include as a reason for his leaving China his fear of harm by local government authorities, farmers, and creditors.

(b)    Second, in submissions he made for ministerial intervention after his first application for a protection visa failed, the applicant did not mention any fear of harm from various people demanding money from the applicant.

(c)    Third, the applicant did nothing between 2008, when the applicant exhausted his rights of judicial review of the First Tribunal decision, and February 2014, when he was apprehended by officers from the Department of Immigration and Border Protection, to seek advice about his status, given his claimed fear of harm from groups in China demanding money from him.

(d)    Fourth, although he arrived in Australia in 2002 it took the applicant some 12 years to apply for protection on the ground of fear from harm from persons claiming money from him.

(e)    Fifth, in a compliance client interview held on 27 February 2014 the applicant responded “no” to a question about whether the applicant had any debts in Australia or overseas. Further, when asked at the interview whether there were any reasons he could not return to China, the applicant did not mention any fear arising from business activities in China, but instead said that he was worried he would be persecuted because he had applied for a protection visa.

[7]    The Tribunal also considered whether the applicant had a valid claim under the complementary protection criteria in relation to his having claimed to be a Falun Gong practitioner. The Tribunal considered that question, even though the applicant made no claim in his second application based on his being a Falun Gong practitioner. The Tribunal found to be correct the First Tribunal’s findings as to the applicant’s Falun Gong practice and political activities in Australia.

[8]    The Tribunal also accepted as correct, however, the First Tribunal’s findings that the applicant’s name or photograph was on the internet as a result of his activities and that there was no risk of harm to the applicant in China for that reason. The Tribunal found there was no credible evidence as to what activities the applicant undertook about his practice of Falun Gong, and no credible evidence as to what activities he undertook on behalf of that movement or against the Chinese Government after the First Tribunal made its decision in March 2007.

[9]    The applicant also claimed he feared harm because he was a Christian. The Tribunal did not accept that claim. The Tribunal found his evidence to be vague and unconvincing, and the applicant did not raise this ground until the hearing before the Tribunal.

14    These matters led the Tribunal to the following conclusions about the credibility of the applicant’s claims (at [43] of the Tribunal’s decision, cited at [10] of SZKOX):

Accordingly, the Tribunal finds there is no credible evidence as to why the applicant left China and why he does not want to return there. There is no credible evidence that anybody in China harmed the applicant and there is no credible evidence that Chinese authorities or any person or group in China wish to harm him. The applicant will not practice Falun Gong in China because he has no commitment to it. He will not undertake any political activities because he has no commitment to opposing the Chinese government. The Tribunal does not accept that the applicant holds any genuine commitment to Christianity. The risk of him suffering significant harm on the basis of minimal political and Falun Gong activities undertaken before the previous Tribunal’s decision was released in March 2007 and because he has applied for protection, for the reasons given above, is remote. Accordingly, there are not substantial grounds for believing that as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, the applicants will suffer significant harm.

The decision of the Federal Circuit Court

15    Before the Federal Circuit Court, the applicant relied on two grounds of review, as follows:

(1)    The Tribunal fell in jurisdictional error by relying upon the previous decision made by the Department and affirmed by the Tribunal to refuse my claim under the Refugee Convention in the previous application, in that this approach constituted a failure to take into account a relevant consideration.

(2)    The Tribunal fell in jurisdictional error by negating my claims of persecution by the money lenders as I did not mentioned (sic) it in the first application of protection in 2006, in that this approach constituted the breach of the procedural fairness.

Particulars

The Tribunal disregarded the then advice to me that the money lenders’ persecution did not meet the criteria of the Refugee Convention. In this approach, the Tribunal therefore found unsatisfactory and not credible my claims in respect of the persecution.

Ground 1

16    The Federal Circuit Court judge interpreted the first ground of review to be a claim that “the Tribunal made an error by relying on the previous findings of the First Tribunal and, to the extent it did so, the Tribunal took into account irrelevant considerations”: see SZKOX at [13]. In rejecting this ground, his Honour observed that, just because the Tribunal had regard to, and accepted as correct, a finding made by a previous and differently constituted Tribunal, that did not, by itself, manifest any jurisdictional error, because s 416(d) of the Act permitted the Tribunal to proceed in that way: see SZKOX at [14]–[15].

17    However, his Honour then turned to consider the matter on the footing that the applicant may be raising the same ground as was raised in SZHSE v Minister for Immigration and Multicultural Affairs [2006] FCA 1459 (SZHSE): see SZKOX at [16]. In SZHSE (at [11]), the appellants submitted that the Tribunal made a jurisdictional error by:

… its overt reliance on the factual findings of the previous Tribunal and failure to assess the appellants’ real claims. Secondly, the Federal Magistrate failed to consider whether the Tribunal made a jurisdictional error by its failure to assess the first appellant’s claims in a “constructive manner” regarding his membership of the Akali Dal (Mann) Party.

18    After considering that decision, and a number of other decisions that were, in turn, considered by it (see SZKOX at [16]–[18]), his Honour concluded (at [19]) that:

Although [s 416 of the Act] is a permissive section, it is also subject to the Tribunal’s obligation to review an application before it. That means it is not open to the Tribunal to utilise s 416 in a manner that prevents or constrains it from considering all evidence and submissions that are before it.

19    His Honour then turned to consider whether the Tribunal had used s 416 in that manner. After considering each instance where the Tribunal had regard to the findings of the first Tribunal (see SZKOX at [20]–[25]), his Honour decided that it had not. He therefore concluded (at [26]) that:

There was no “over reliance” by the Tribunal on the First Tribunal’s findings. The Tribunal exercised its independent judgment when considering the application for review that was before it.

20    Accordingly, his Honour rejected the first ground of review.

Ground 2

21    As to the second ground of review (see at [15] above), the only submission the applicant made to the Federal Circuit Court was that “all he told the Tribunal was true”: see SZKOX at [28]. His Honour rejected this ground in the following terms (at [31]):

The Tribunal considered and dealt with the applicant’s explanation for why he did not include in his first application for a protection visa a claim based on his fear of harm arising out of his business activities in China. It was reasonably open to the Tribunal not to accept the applicant’s explanation for the reasons the Tribunal gave for not accepting the applicant’s explanation. Ground 2 therefore also fails.

The orders made

22    As appears in SZKOX (at [33]–[34]), at the conclusion of the hearing, the Federal Circuit Court judge first became aware that the matter had been brought before him as a show cause application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) and not as a final hearing of the applicant’s application for judicial review. After expressing some concern about whether, and how, he should remedy this error, his Honour decided that there would be no procedural unfairness to the applicant if he were to dismiss his application under r 44.12(c) of the FCC Rules. That rule provides that at the hearing of a show cause application, the Court may make final orders. Accordingly, his Honour ordered that the applicant’s application be dismissed under that rule.

The contentions

23    Because of the concession made by the Minister (see at [6] above), the central question in this application is reduced to whether the applicant’s proposed grounds of appeal have any merit. If they do not, as the Minister correctly submitted, it would be futile to grant an extension of time to the applicant to allow him to pursue them on appeal. This obviously directs attention to the applicant’s two proposed grounds of appeal set out above (at [5]).

24    As to those two grounds, the Minister submitted that they raised the same issue as was raised in the first ground of review before the Federal Circuit Court. The Minister submitted that those grounds of appeal had no merit because the Federal Circuit Court judge was correct in rejecting the first ground of review before him for the reasons stated at [16]–[19] above.

25    In his oral submissions, the applicant repeated his claim that the Tribunal was wrong to conclude that he did not “owe people in China money”. In addition to repeating his claim that he was threatened in China because of the debt he owed, he also claimed he did not mention that debt before the previously constituted Tribunal because he did not speak English and he did not know the law. He added that the Tribunal did not consider his “situation” and did not properly investigate it. However, despite being asked a number of times to identify any error in the Federal Circuit Court judge’s decision, he failed to do so.

26    At the hearing of this matter, I gave the applicant leave to file written submissions. I have reviewed those submissions and, in my view, they do not raise any additional contentions to those set out above. I also gave the Minister leave to file further written submissions in response to the applicant’s submissions. In those submissions, the Minister contended that the applicant only reiterates his grounds of review, as well as his contentions about why he did not mention the debt previously and why he considers the Tribunal did not properly investigate his claims. As to these matters, the Minister relied on its previous submissions. As to the balance of the applicant’s submissions, the Minister contended that they impermissibly go to the merits of the claim before the Tribunal.

Consideration

27    The issue raised by the applicant in his oral and written submissions is different from that raised in his two proposed grounds of appeal. It raises a challenge to the Tribunal’s rejection of his explanation for not mentioning the debt he owed in China before the earlier, differently constituted, Tribunal. It is therefore similar to the issue raised in the second ground of review before the Federal Circuit Court. That being so, it can be disposed of briefly. I do not consider the Federal Circuit Court judge made any error in rejecting that ground of review: see at [21] above.

28    Turning then to the applicant’s two proposed grounds of appeal, they are, as the Minister correctly submitted, both directed to the same issue: whether the Tribunal placed undue reliance on the decision of the previous Tribunal, and thereby failed to conduct a proper review of the evidence and submissions presented to it. This is essentially the same issue as was raised in the applicant’s first ground of review before the Federal Circuit Court.

29    On this issue, the Federal Circuit Court judge considered the authorities on the question and correctly identified the relevant principle, namely that, while s 416(d) of the Act permitted a Tribunal to have regard to the findings of a previously constituted Tribunal, it was still required to properly consider all the evidence and submissions duly placed before it (see at [16]–[18] above).

30    Having correctly identified that principle, his Honour then carefully considered the use the Tribunal made of the findings of the previously constituted Tribunal and concluded that it “exercised its independent judgment when considering the application for review that was before it” (see at [19] above).

31    In my view, the Federal Circuit Court judge made no error in either of these steps. It follows that the single issue raised by the applicant in his two proposed grounds of appeal has no merit.

Conclusion

32    For these reasons, while the applicant has offered a satisfactory explanation for the delay in filing his notice of appeal, I am not satisfied that the merits of his proposed appeal are sufficient to warrant the grant of an extension of time to allow them to be considered on appeal. The applicant’s application must therefore be dismissed with costs.

Associate:

Dated:    9 September 2015