FEDERAL COURT OF AUSTRALIA

SZVEU v Minister for Immigration and Border Protection [2016] FCA 1389

ORDERS

THE COURT ORDERS THAT:

The application for leave to appeal dated 27 June 2016 be dismissed with costs, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for leave to appeal from a decision of the Federal Circuit Court, in which the applicant unsuccessfully sought reinstatement of his originating application pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Rules). Rule 16.05(2)(a) permits the Federal Circuit Court to vary or set aside a judgment or order after it has been entered if the order was made in the absence of a party. The originating application had previously been dismissed pursuant to r 13.03C(1)(c) of the Rules, which permits the Federal Circuit Court to dismiss an application if the applicant is absent at the hearing.

2    By way of background – the applicant had sought review by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) of a decision made by a delegate of the Minister to refuse to grant him a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act). The Tribunal affirmed the decision of the delegate.

3    It is useful to examine in more detail the procedural history of these proceedings before turning to the application currently before the Court.

Background

4    In summary, the applicant claimed to have worked on a village committee in the Peoples Republic of China for 18 years, becoming deputy dean of the committee. He alleged that a new dean of the committee monopolised all resources in the village, conducted illegal transactions of land, and cheated and bullied villages. The applicant claimed that he was dismissed from his position when he refused to co-operate, and then kept detailed records of illegal behaviour in the village. He stated that he was arrested and detained for a week, and threatened by the police that he would be further imprisoned if he petitioned again. The applicant claimed that he subsequently sent a petition letter to a petition bureau in the PRC.

5    The applicant claimed further that he is afraid of being harmed by Chinese authorities, and that his wife had been contacted several times by village leaders in search of his address and mobile telephone number. He feared returning to China, because corrupt officers in China are likely to kill anyone who reports on them as well as that person’s family.

Tribunal decision

6    The Tribunal found that the applicant was not a witness of truth and did not accept his claims. This was because, in summary:

    the applicant failed to provide any documents in support of his claims, including any documents or copies of documents about the alleged complaints he had made. The Tribunal observed:

16.    While the tribunal accepts there are circumstances where an applicant is not able to provide any documents in support of their claims, the tribunal does not accept that the circumstances claimed by the applicant adequately explain why he has not provided any documents in support of his claims. The applicant claims he had a career in administration and experience in record keeping. The tribunal would expect someone with that background would appreciate the importance of documentary evidence. The tribunal notes that according to the applicant’s oral evidence he must have made one copy of the complaint letter in order to deliver it to the Letters and Visits Office.… The tribunal is concerned about the plausibility of the claim that someone with that background would not keep any further copies of documents in relation to such an important matter.

    The Tribunal was concerned that the applicant changed his oral evidence during the hearing and about the plausibility of the sequence of events in the applicant’s oral evidence. In particular, the Tribunal noted the change in the applicant’s evidence concerning why he took his complaint to the Letters and Visits Office despite the alleged risks in making a complaint.

    the Tribunal was concerned about the applicant’s delay of more than two months in making a protection visa claim. The applicant told the Tribunal that he cannot understand English, that he needed his friend’s help, and that he had to wait until his friend had spare time. Further, the applicant said that he was working, was tired, and did not have the time or energy to think about his application. The Tribunal observed that it would have expected the applicant to prioritise the matter if he genuinely feared returning to China, and in any event the department offers interpreter services and information about migration agents.

7    Accordingly the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugee Convention. Further the Tribunal was not satisfied that the applicant satisfied the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act.

Proceedings in the Federal Circuit Court

8    The applicant sought judicial review of the decision of the Tribunal in the Federal Circuit Court. In his amended application he alleged as follows:

1.    Now I am very scared to return back to China because I did not comply with what police told me, sending the petition letter to the Letters and Visits Office in Suzhou instead. So if I go back now, I definitely will encounter the persecution of imprisonment for at least half year. However, RRT members could not consider my situation and suspect the credibility of my personal statement, which makes me feel very unfair.

One of the reasons why RRT refuse my application is that I could not provide sufficient evidence. Although I had a career in administration and experience in record keeping, I flee from China to Australia, which means that preparation for going abroad was in rush and hasty and I did not have enough to collect evidence. Besides, I was in panic at that time, so all I knew was to stay away from China. Before I went abroad, I sent the original copy of petition letter to Letters and Visits Office in Suzhou and I was afraid those evidence would become the barrier to prevent me from going through the Chinese custom safely, so I did not bring them with me. Now I seldom contact with my family because I am afraid they will get involved if Chinese government know we have contact, not even mention asking them to send me written evidence. I think the RRT members should consider my situation thoroughly.

2.    Another reason why RRT refuse my application is that I delayed to apply for refugee protection visa. The language barrier is the most important reason to stop me from doing so. What’s more, when I just came to Australia, I did not know anyone here and no one told me how to apply such visa in Australia; the money I brought from China was limited, so I had to work to support myself financially; at that time, I was homesick and I had no one to talk to, I had been in a very low mood for a period of time, so I barely talked to anyone and did not even want to see people as well. These are the reasons why stops my gaining the information of applying refugee protection visa. Later on, when I was stable physically and emotionally, and I started to know more people here, I processed my application immediately.

3.    I wish the Federal Circuit Court of Australia could consider my situation.

(Errors in original.)

9    After recounting these grounds the primary Judge said:

17.    In large part, the grounds of the amended application do no more than invite the Court to undertake a review of the merits of the visa application. As indicated to the applicant at the hearing of this application and as noted earlier in these reasons, the Court has no power to undertake such a review. Its jurisdiction is relevantly limited to considering whether the Tribunal’s decision is affected by jurisdictional error. Consequently, to the extent that the grounds of the amended application sought merits review, they did not disclose any basis upon which the Tribunal’s decision should be set aside.

18.    However, there were other matters raised in the grounds pleaded in the amended application and in the applicant’s address to the Court which require separate consideration.

10    The primary Judge said the first ground of review suggested that the Tribunal’s finding as to the applicant’s credibility was unreasonable. His Honour disagreed however, observing that matters of credibility are factual matters for determination by the Tribunal and there was sufficient material before the Tribunal for it to reasonably draw a conclusion that the applicant’s credibility was wanting (at [20]). Further, to the extent that the first ground of review concerned the Tribunal’s conclusions relating to the paucity of evidence, the applicant sought impermissible merits review.

11    His Honour formed a similar opinion as to the request for merits review in the second ground of review.

12    Finally, his Honour found that the third ground of review made no allegation.

13    In conclusion his Honour considered the oral addresses made to the Court by the applicant alleging that the Tribunal had asked the wrong questions and that the applicant had submitted documents to the Tribunal. His Honour rejected these contentions.

14    In his Honour’s view none of the matters raised by the applicant in connection with his substantive application led him to the conclusion that the substantive application would have reasonable prospects of success were the orders previously made by the Federal Circuit Court set aside.

Application to this Court

15    It is common ground that the decision of the Federal Circuit Court was interlocutory. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal shall not be brought against an interlocutory decision unless leave to appeal is granted.

16    The draft grounds of appeal on which the applicant proposes to rely are set out in his affidavit sworn 27 June 2016. They are identical to the grounds of the application for leave to appeal, also dated 27 June 2016.

17    These grounds are as follows:

1.    AAT members did not consider my situation and even suspect the credibility of my personal statement which makes me feel unfair. Now I am very scared to return back to China as I will definitely encounter the persecution of imprisonment.

One of the reasons why AAT refuse my application is that I could not provide sufficient evidence. Although I had a career in administration and experience in record keeping, I flee from China to Australia in rush and hasty thus I did not have enough to collect evidence. Besides, I was in panic that time and all I knew was to escape and run away from China. Before I left China, I have sent the original copy of petition letter to Letter and Visits Office in Suzhou. I was worried that those evidence might be the barrier to me to go through the Chinese Custom successfully, so I did not bring the evidence with me. Now I seldom contact with my family because I am afraid they will get involved, not to mention asking them to send me written evidence. I think the AAT members should consider my situation thoroughly.

2.    Another reason AAT refuse me is that I delayed to apply refugee visa. The language barrier is the most important reason to stop me from doing so. In addition, I did not know anyone at the time I arrived Australia. At the beginning, I had been in a very low mood for a period of time, so I barely talked to anyone and did not even want to see people either. Later on, I started to know more people when I was stable physically and emotionally then I processed my application immediately. AAT members did not understand this then refused me on this ground.

3.    The Federal Circuit Court of Australia did not understand or consider my situation and the risk of me going back to China. I consider the orders made were not fair and reasonable.

4.    The process at present is out of my expectation, which had run out of my financial ability. I hope the Federal Court of Australia could consider my situation.

(errors in original.)

18    As the Minister correctly submited, as a general proposition an applicant seeking leave to appeal from an interlocutory judgment must establish that:

1.    there is sufficient doubt attending the judgment to warrant review; and

2.    if the judgment below is held to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

(cf Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.)

19    In this case I accept that substantial injustice would be suffered by the applicant if the primary judgment were wrong and leave to appeal were refused. However the applicant has not demonstrated any basis on which the primary judgment is attended by sufficient doubt to warrant its review. I take this view because:

1.    Despite some minor re-wording, the first and second draft grounds of appeal on which the applicant seeks to rely are substantially the same as the grounds of review before the primary Judge. Those grounds were considered comprehensively by his Honour, who found, in my view correctly, that the essence of the applicant’s complaints was an impermissible plea for merits review. The applicant has not articulated any error in that view adopted by his Honour.

2.    Contrary to the plea in the third draft ground of appeal, as a general proposition it was not the task of the primary Judge to understand or consider the applicant’s situation and the risk of him going back to China. Again, this claim simply contemplates impermissible merits review of the Tribunal’s decision by his Honour.

3.    To the extent that the applicant contends in the third draft ground of appeal that the orders of the primary Judge were not fair and reasonable he offers no substantiation for this claim.

4.    The fourth draft ground of appeal makes no allegation, and asserts no basis on which this Court would be empowered to overturn the decision below.

20    At the hearing before me the applicant submitted, in summary:

1.    he cannot speak English, and had no assistance to prepare a case;

2.    the reason he did not appear at the hearing before the Federal Circuit Court was because he did not receive a letter notifying him of the hearing date;

3.    he has plenty of time and confidence, and will do his best to collect documentation for the hearing; and

4.    he seeks a last opportunity to present his case in Court.

21    Unfortunately none of these submissions assisted me in considering the question whether leave to appeal against the decision of the primary Judge ought be granted.

22    The appropriate order is to dismiss the application, with costs to be taxed if not otherwise agreed.

Associate:

Dated:    21 November 2016