FEDERAL COURT OF AUSTRALIA

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

ORDERS

THE COURT ORDERS THAT:

1.    The application to extend time to file a notice of appeal 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

GILMOUR J:

1    The applicant seeks an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court delivered on 14 September 2015. The notice of appeal was not filed within 21 days of the Federal Circuit Court's judgment as required under r 36.03(a) of the Federal Court Rules 2011 (Rules). Accordingly, the applicant requires an extension of time under r 36.05 of the Rules.

2    The principles generally applicable upon such an application are well established. They include that consideration be given to 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: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22]; Satera v Nelson [2011] FCA 1470 at [7].

3    The length of the delay in this case is 128 days, which is not insignificant.

4    The application is supported by the applicant’s affidavit earlier sworn or affirmed (it is not clear which) on 27 November 2015, but not filed until 11 February 2016. In that affidavit, the applicant states that the delay was by reason of him being in detention, that he does not understand English and was not aware of the applicable time limits.

5    The first respondent (Minister) does not assert any prejudice by reason of the delay. Rather, he submits that the proposed notice of appeal has no reasonable prospect of success and for that reason the application for an extension of time ought to be refused.

Background and applicant's claims

6    The following background and the applicant’s claims are drawn from the Minister’s written outline of submissions. They are not controversial.

7    The applicant, who was born on 17 August 1970 in the People's Republic of China (China), lodged an application for the visa on 20 March 2014. In a personal statement submitted in support of the visa application he claimed that he was fearful of returning to China as he had been “betrayed” by the Department of Immigration and Border Protection due to his personal information being "leaked to out to the public".

8    The applicant claimed that he had joined the Chinese People's Liberation Army (PLA) in 1985 and that, although deployed to the area, his troop refused to shoot at students in the Tiananmen Square protests in 1989. Due to his sympathising with the students during this incident he was "forced to retire" in 1990 and he joined the Chinese People's police force.

9    He claimed that in his role in the police force he saw "too many injustice and inhuman interrogations" and quit in 1995. The applicant was unable to obtain stable employment and due to financial pressures (after his subsequent marriage and birth of his child) he came to Australia in 2006 on a tourist visa.

10    The applicant was detained in February 2014 and claims that his details were revealed on the Department's website (Data Breach). He claims that his son was subsequently hurt due to "unknown reasons" and was being kept under observation at a hospital.

11    The applicant expanded his claims for protection in an interview with a delegate of the Minister on 25 June 2014 and specifically claimed that:

(1)    He lost his employment with the police due to being involved in a corruption investigation against the Beijing mayor in 1995;

(2)    Whilst on the police force he was involved in a motor vehicle accident where his brakes failed. He considered this was an attempt on his life by the supporters of the former mayor;

(3)    Due to his involvement in the PLA and police force he was labelled an employment risk and this resulted in him being unable to obtain steady employment;

(4)    If he returned to China he would be targeted by the government due to his unit’s non-involvement in the 1989 protests;

(5)    When he was discharged from the police force he was required to sign a document stating he would not depart China for 20 years except as a tourist;

(6)    His wife was injured in a traffic accident which he claimed could have been carried out as an act of revenge by criminal or government elements; and

(7)    He would be detained and questioned upon his return to China by the Public Security Bureau (PSB).

12    On 27 October 2014 a delegate of the Minister refused the grant the visa. On 4 November 2014 the applicant lodged an application for review with the then Refugee Review Tribunal.

13    On 19 December 2014 the applicant was invited to a rescheduled hearing before the Tribunal to give evidence and present arguments. A hearing took place on 15 January 2015 at which the applicant gave evidence and presented arguments with the assistance of a Mandarin interpreter.

Tribunal decision

14    In its decision dated 20 January 2015, the Tribunal accepted, in whole or part, a number of the applicant’s claims including that:

(1)    He took no part in the events at Tiananmen Square and that he may have been discharged from the PLA as a result.

(2)    He was employed as a police officer from 1990 to 1995 and that he may have been involved in the investigation of the former mayor. However it did not accept that he was targeted as a result of such investigation.

(3)    He came to Australia for employment purposes. It did not accept that this was due to him being regarded as an employment risk or to targeting by the mayor's family. The Tribunal found his claims in that regard vague and unconvincing and that they had been fabricated for the purpose of his protection application.

15    However the Tribunal rejected entirely the applicant’s claims:

(1)    That after discharge from the army the authorities were secretly preventing him from obtaining permanent employment and considered that such a claim was “speculative and without any foundation” and was further contrary to his evidence that he was able to obtain employment as a police officer.

(2)    That he signed a document undertaking not to leave China (except as a tourist) since there would be no way of the authorities enforcing it in the event he decided to remain outside China for a long period.

(3)    Concerning his sister losing her job in 2002 and found that he had fabricated the claim in an attempt to bolster his claims for protection

(4)    To fear harm from recently released criminals that he may have arrested prior to 1995 or that his wife’s motor vehicle accident was carried out as an act of revenge by criminal or government elements. It was noted that the applicant’s evidence was that such claim was based on supposition.

(5)    In relation to the motor vehicle accident and found that this claim was "fabricated in an attempt to bolster his protection claim".

16    The Tribunal further found:

(1)    That the delay in the applicant applying for a protection visa, his claims that he departed China for employment reasons and that he planned to return to China undermined the veracity of his claims for protection.

(2)    That, as the applicant was not detained until 6 February 2014, he was not part of the Data Breach which resulted in the release of the names and details of persons in immigration detention on 31 January 2014.

(3)    While it accepted that the applicant's son may have been attacked by unknown persons in February 2014, it considered that this was an unrelated criminal matter.

17    Accordingly, the Tribunal found that the applicant did not satisfy either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act) and the decision under review was affirmed.

Proceedings in the Federal Circuit Court

18    The history of these proceedings, which is not controversial, are drawn from the Minister’s written submissions.

19    On 6 February 2015 the applicant filed an application for judicial review in the Federal Circuit Court of Australia. The applicant relied on the following grounds of review:

(1)    Both Minister for Immigration and Border Protection and Refugee Review Tribunal have bias against me as I was deprived of the benefits of doubts.

(2)    Both Minister for Immigration and Border Protection and Refugee Review Tribunal have denied me procedural fairness by failing to provide adequate reasons for finding of facts.

(3)    Both Minister for Immigration and Border Protection and Refugee Review Tribunal have made an offensive finding based on no evidence.

(4)    Both minister for Immigration and Border Protection and Refugee Review Tribunal have ignored the evidence and facts.

20    The applicant also relied upon an additional ground raised in a second application, pleaded as follows:

(1)    The Second Respondent owns me nature justices in reaching the decision.

Particulars

(i)    On paragraph 13 of the decision record, the Second Respondent state: "Whilst the Tribunal accepts that the applicant was employed as a police officer during the period claimed, and that he may have been involved in the investigation of the former mayor, it does not accept his claims, to have been targeted as a result."

(ii)    The Second Respondent clearly demonstrated it does not believe I have been targeted by the former mayor's family and supporters.

(iii)    I have provided the details of my dangerous situation in that particular, however, the Second Respondent without if finding of fact concluded my claims as to my involvement in my police careers.

(verbatim and without correction)

21    In relation to ground 1, alleging bias, his Honour accepted the first respondent's submission that bias must be clearly alleged and properly proven. His Honour further stated that there was no conduct identified in respect of which it is alleged there was a basis for finding bias, other than the adverse decision by the Tribunal, which his Honour observed was not a basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an independent and impartial mind to determining the matter.

22    As to the second ground, alleging procedural unfairness, his Honour concluded that the Tribunal invited the applicant to a hearing in accordance with the statutory requirements and that the Tribunal properly considered the applicant's claims. His Honour further considered that it was open to the Tribunal to make adverse findings on the material before it.

23    Concerning ground 3, his Honour found that no specific finding was identified by the applicant that was said to be the subject of the absence of evidence or logical basis to support that finding. Nevertheless, his Honour concluded that the Tribunal's reasons demonstrated a rational foundation on the material before it for the adverse findings it reached and in respect of its conclusion that the applicant was not a person to whom Australia owed protection obligations to under section 36(2)(a) or (aa) of the Act.

24    As to ground 4, his Honour held that the applicant had not identified any evidence or fact which it is alleged the Tribunal failed to have regard to and in substance was an impermissible challenge of the merits of the decision.

25    As to the additional ground raised in the second application, his Honour accepted that this ground was, in substance, a repetition of the earlier grounds insofar as they related to a challenge to the Tribunal's adverse findings.

26    His Honour then considered three further grounds raised by the applicant at the hearing.

27    The first concerned the proposition that the applicant arrived in Australia on a business visa rather than a tourist visa. His Honour found that there was no error apparent on the material before the Tribunal.

28    Second, where the applicant raised a claim concerning his wife being involved in a traffic accident that he suggested had not been made to the Tribunal, his Honour concluded that it was apparent that his wife's traffic accident was one of the claims raised before the delegate and accordingly it was open to the Tribunal, and proper, to deal with that claim.

29    Third, the applicant raised a concern that his details may have been released whilst in detention, and that his son had been injured, which caused him to doubt whether his details were released. His Honour referred to the Tribunal's findings at [21]-[22] and found that the Tribunal had dealt with this issue.

30    His Honour was ultimately not satisfied that the Tribunal's decision was infected by jurisdictional error.

The draft notice of appeal

31    The applicant has neither filed a draft notice of appeal containing the proposed grounds of appeal, nor has he complied with directions made on 18 February 2016 that he file and serve a written outline of submissions no later than 10 business days before the hearing date.

32    Insofar as the proposed appeal grounds are discernible from the applicant's affidavit sworn/affirmed on 27 November 2015, they are as follows:

I am seeking review for the following reasons:

10. Federal Circuit Court judge was only taking the statement from the Respondent's lawyer.

11. Federal Circuit Court judge erred, by failing to properly consider Refugee Review Tribunal (now named Administrative Appeals Tribunal) fell into jurisdictional error. The applicant has real risks when back to China.

(verbatim)

33    The Minister submits, correctly in my opinion, that neither ground of appeal identifies any jurisdictional error on the part of the Tribunal and no appealable error in the judgment of the Federal Circuit Court.

34    The evidence does not justify the applicant's assertion that the Court below received submissions only from the Minister’s lawyer. A review of the judgment discloses that the Court considered several additional grounds of review raised by the applicant at the hearing. The applicant was not denied the opportunity to be heard.

35    Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

36    The primary Judge considered each ground of review relied upon by the applicant in the original application filed, a subsequent application filed and in oral submissions by him at the hearing.

37    The primary Judge held correctly, in my opinion, that there was no jurisdictional error disclosed in the Tribunal's reasons for decision. The applicant has not otherwise established any appealable error. The proposed grounds lack any merit.

Orders

38    The application for an extension of time will be dismissed with costs.

Associate:

Dated:    29 June 2016