CJF15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-05-11|Before: Moshinsky J

The application for an extension of time to appeal from the orders of the Federal Circuit Court of Australia be dismissed.
The applicant pay the first respondent's costs of 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.

Introduction 1 The applicant, who is a citizen of China, arrived in Australia in 2007 on a student visa. In April 2013, he lodged an application for a Protection (Class XA) visa (protection visa). 2 On 31 January 2014, a delegate of the first respondent (the Minister) refused the application for the visa. 3 The applicant applied for review of the delegate's decision. On 19 June 2014, the applicant appeared at a hearing before the Refugee Review Tribunal. Subsequently, the review jurisdiction of the Refugee Review Tribunal became part of the jurisdiction of the Administrative Appeals Tribunal (the Tribunal). 4 On 24 August 2015, the Tribunal wrote to the applicant indicating that the member who had heard his application was no longer available to review the applicant's case and that the review would be finished by a different member. On 11 September 2015, the applicant appeared at a hearing before the Tribunal, now constituted by a different member as indicated in the 24 August 2015 letter. At the hearing, the applicant sought to rely on (among other things) a letter from the applicant to the Tribunal dated 10 September 2015. As the letter was in Mandarin, it was arranged that the applicant would have it translated into English and provide this subsequently to the Tribunal. On 15 September 2015, the applicant sent an email to the Tribunal attaching a translation of the 10 September 2015 letter (the September 2015 Letter). 5 On 22 October 2015, the Tribunal decided to affirm the delegate's decision not to grant the applicant a protection visa. The Tribunal dealt in detail with the applicant's claim to fear harm if returned to China on the basis of his religion, namely Christianity. The Tribunal did not accept this claim. 6 The applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. 7 On 3 April 2017, the Federal Circuit Court dismissed the application and ordered the applicant to pay the Minister's costs. 8 On 30 August 2017, the applicant filed in this Court an application for an extension of time to appeal from the orders of the Federal Circuit Court. The application was filed approximately four months after the time for filing a notice of appeal. At the hearing of the application, the applicant's counsel handed up an amended draft notice of appeal. This contained a single ground of appeal to the effect that the Federal Circuit Court erred in failing to find that the Tribunal had failed to consider the applicant's claim that he was "beaten by some bad guys on the way back home" from school, such claim satisfying s 36(2)(a) and/or s 36(2)(aa) of the Migration Act 1958 (Cth). The alleged claim was contained in the September 2015 Letter. It is conceded by the applicant that this ground was not raised before the primary judge. 9 For the reasons that follow, I have concluded that the proposed appeal lacks merit and, accordingly, that the application for an extension of time should be dismissed.

The September 2015 Letter 10 Before referring to the Tribunal decision, it is convenient to refer to the relevant part of the September 2015 Letter. The letter (in translation) was two-and-a-half pages in length. The third paragraph, commencing on the first page, was as follows: I was always alone to and from school since I went to junior high school. I was once beaten by some bad guys on the way back home. I was too scared to say nothing to my parents because I knew it would only make them more horrified. When I was during period of growth, I found that my chest bone was sort of in. I was so scared, and told my father. My father took me to see the doctor. The doctor told us it was abnormal because the bone was pressed by hard object and it was not treated on time. It won't affect my life but left me malfunction and intensive exercise is not recommended. In 2005, I passed the entrance examination and was admitted to a good senior high school with outstanding academic results. I was rejected by the school, and they said they cannot accept anti-government students as my father had been in prison. Later my parents pay extra RMB 9000 and used the connection, I was finally admitted to that school. (Emphasis added.)

The Tribunal decision 11 The Tribunal set out the relevant law at [4]-[18] of its decision record. 12 The Tribunal outlined the applicant's claims and evidence at [19]-[20]. The Tribunal noted that the applicant described his ethnicity as Han and his religion as Christian. It was noted that the applicant arrived in Australia in July 2007 and had returned to China twice since arriving in Australia. It was also noted that his mother and father resided in China. The Tribunal referred to the applicant's protection visa application, which was presented on 19 April 2013. The Tribunal quoted from the applicant's statutory declaration attached to his protection visa application. The declaration stated (among other things) that: the applicant was an overseas student from the Fujian countryside; his family were Christians who had joined the Local Church; the applicant was baptised under his parents' direction when he was 10 years old; his father was put into labour reformation for six months (apparently in connection with his religious beliefs); in the summer holiday of the applicant's second year of junior high school, the applicant was detained by the local police for one day because of his involvement in out-of-town missionary activities with the church prayer group; since coming to Australia, he had joined church gatherings in China through a web camera and so had kept his spiritual communication with the Local Church; his mother has been arrested twice when she was preaching out of town; on each occasion she was fined and detained; in 2011, his parents were detained for three months because of missionary acts; and the applicant had recently found the Local Church in Australia and had joined their gatherings. 13 The Tribunal, at [22], stated that the primary issue in the review was whether there was a real chance that, if the applicant returned to China, he would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s 36(2)(a) of the Migration Act and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there was a real risk that he would suffer significant harm for the purpose of s 36(2)(aa). 14 At [23] of its decision record, the Tribunal indicated its conclusion that the decision under review should be affirmed. The Tribunal then dealt, in considerable detail, with the applicant's claim that he would suffer persecution on his return to China as a Local Church adherent (decision record, [24]-[47]). In broad terms, the Tribunal did not accept a large part of the applicant's evidence. The applicant referred to matters raised by the applicant at the hearing with the previous member (eg, at [34], [36]) and to matters raised in the statement attached to his protection visa application (eg, at [32], [35]). The Tribunal found a number of the matters raised by the applicant to be implausible (eg, at [34], [36], [38]). The Tribunal, at [41], placed weight on the applicant's delay in applying for protection and found that this raised further doubt about the genuineness of his claims. 15 The Tribunal, at [42]-[44], found that the deficiencies and inconsistencies in the applicant's evidence, together with his delay in applying for a protection visa, led it to conclude that the applicant was not an adherent of the Local Church. Further, the Tribunal did not accept that either the applicant or his parents had participated in any activities associated with the Local Church in China. The Tribunal did not accept that the applicant had joined Local Church gatherings in China via a web camera. The Tribunal did not accept that either the applicant or his parents were detained by the Chinese authorities. The Tribunal also rejected other aspects of the applicant's evidence. The Tribunal found that neither the applicant nor his parents had experienced any form of harm in relation to their alleged religious practices or beliefs in China. 16 The Tribunal, at [45], accepted that the applicant had been baptised in the Local Church in Australia and, through his participation here in Australia, had gained some knowledge about the Local Church's beliefs and practices. However, the Tribunal was not satisfied that the applicant's conduct was engaged in otherwise than for the purpose of strengthening his protection claims. 17 The Tribunal concluded, at [45], that, based on its findings, it did not accept that the applicant faced a real chance of serious harm, then or in the reasonably foreseeable future, if he returned to China, because of his alleged membership of the Local Church. The Tribunal also made findings in relation to the complementary protection criterion at [46]. 18 At [47] of the decision record, the Tribunal stated: The Tribunal has carefully considered all of the applicant's evidence, particularly the applicant's oral statement made at the beginning of the hearing and the translation of his written statement received following the hearing, in which the applicant provided an account of his life in China from the time he was a child. (Emphasis added.) 19 The Tribunal set out its conclusions in relation to ss 36(2)(a) and 36(2)(aa) at [48]-[49] of the decision record.

The proceeding in the Federal Circuit Court 20 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The applicant did not have legal representation at the hearing before the Federal Circuit Court. 21 On 3 April 2007, the primary judge delivered ex tempore reasons for judgment, which were later revised from the transcript: CJF15 v Minister for Immigration & Anor [2017] FCCA 1002 (the Reasons). 22 The primary judge set out the applicant's grounds for seeking review at [3] of the Reasons. These grounds set out in the application did not articulate a proper basis upon which to contend that the Tribunal's decision was affected by jurisdictional error. The applicant was given the opportunity to amend the application, but did not do so. As recorded at [7] of the Reasons, at the hearing, the applicant could not really articulate the basis upon which he said the Tribunal's decision was wrong beyond the matters raised in his application. 23 The primary judge set out, at [9]-[15], the background to the Tribunal's decision. The primary judge summarised, at [16]-[21], the Tribunal's decision record. The primary judge expressed the view that the Tribunal's findings were "rational and proportionate" (Reasons, [19]). 24 The primary judge considered, at [22]-[24], the Tribunal's findings in connection with s 91R of the Migration Act. The primary judge accepted the submissions of counsel for the Minister that the Tribunal correctly applied the law as set out in s 91R(3). 25 The primary judge noted, at [26], that the applicant's application contained a generalised statement that the Tribunal's conclusions regarding his credibility were unacceptable. The primary judge concluded, at [27], that: the Tribunal's findings regarding the applicant's credibility were open to it on the evidence before it; and the reasons of the Tribunal provided a rational basis for those credibility findings. The primary judge also stated, at [28], that: each of the claims made by the applicant was considered by the Tribunal; and the findings made by the Tribunal were open to it on the evidence before it. 26 Accordingly, the primary judge concluded that no jurisdictional error attended the decision of the Tribunal. The application was dismissed with costs.

The application for an extension of time 27 The applicant has applied to this Court for an extension of time to file a notice of appeal. In support of the application, the applicant filed an affidavit of the applicant dated 30 August 2017 providing reasons for the delay. The materials before the Court at the hearing of the application included the Court Book from the Federal Circuit Court proceeding. 28 Both parties were represented by counsel at the hearing of the application. With the agreement of both parties, the hearing proceeded on the basis that the parties would present submissions on both the application for an extension of time and the appeal (in the event that an extension of time were granted). As indicated above, at the hearing, the applicant's counsel handed up an amended draft notice of appeal. The submissions proceeded on the basis of this document. 29 The amended draft notice of appeal contained a single ground. As noted above, this was to the effect that to the effect that the Federal Circuit Court erred in failing to find that the Tribunal had failed to consider the applicant's claim that he was "beaten by some bad guys on the way back home" from school, such claim satisfying s 36(2)(a) and/or s 36(2)(aa) of the Migration Act. This ground was not raised before the primary judge.

Applicable principles 30 The principles applicable to an application for an extension of time are well established. The factors that the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. See also AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 at [18]-[19].

Consideration 31 In his affidavit, the applicant deposed that: he represented himself in the proceeding in the Federal Circuit Court; after the Federal Circuit Court refused his application, the Minister's lawyer gave him the contact details for the Department of Immigration and Border Protection, but he was too afraid to contact them; at that stage, he felt hopeless and confused; a migration agent reviewed his case, but was not prepared to take it on; he tried to obtain assistance from the Chinese community, but was unable to obtain assistance; he was suffering from intense back pain during this period; and subsequently, he contacted another migration agent, who put him in touch with his current solicitors, who were prepared to take the case on. The applicant stated that his current solicitors advised him that he was out of time to appeal the decision and that, before this, he "did not know that there was a limited timeframe to apply to the Federal Court". The applicant was not cross-examined. While the affidavit provides an explanation for the delay, the period of delay in this case, namely four months, is substantial. Nevertheless, I accept the submission on behalf of the applicant that the period of delay is just one of the factors to be considered. 32 It is convenient to consider next whether the proposed appeal has merit. 33 The principles relevant to the proposed ground of appeal may be briefly stated as follows. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) at [1], [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [44]-[47]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [62]. A failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it that, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [63]; SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 at [50]. 34 The applicant's submissions can be summarised as follows: (a) The September 2015 Letter squarely raised, at least, a complementary protection claim. The applicant relies on the passage from the letter extracted at [10] above. (b) The extracted passage refers to an incident of actual harm, which, if accepted, would amount to at least either "cruel or inhuman treatment" or "degrading treatment" for the purposes of the definition of "significant harm" (Migration Act, s 36(2A)(d)-(e)). Whether that would translate into a "real risk" that the applicant would suffer significant harm in the future, so as to satisfy the complementary protection provision in s 36(2)(aa), was a merits question that was not dealt with by the Tribunal. (c) The extracted passage is to be read in the context of the applicant's overall claim for fear of persecution on the basis of his religion. In the passage, the applicant referred to his father having previously been imprisoned for religious activity, which the Tribunal addressed at [32]-[34] of the decision record. Thus, as well as capable of being characterised as a complementary protection claim, the passage is also able to be seen as a further integer of his religious persecution claim. (d) It is well established that a failure to consider a claim or a component integer thereof is a jurisdictional error: Htun. (e) Whatever characterisation is put on the extracted passage (ie, a separate distinct claim attracting complementary protection, or a component integer of the religious persecution claim), this aspect of what the applicant advanced - that he "was once beaten by some bad guys" - does not feature anywhere in the Tribunal's reasons. Further, it does not matter that an applicant may not put the correct label on the matters he or she raises; if there is evidence that "[raises] a case not articulated", the Tribunal is nonetheless bound to consider that evidence and case: NABE at [58]. (f) The Tribunal did not discharge its obligations to deal with this key aspect of what the applicant raised. See also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]. 35 In my view, for the reasons that follow, the proposed ground of appeal is without merit. 36 The applicant's proposed ground of appeal is based on the September 2015 Letter. The relevant extract from this letter has been set out at [10] above. 37 The applicant's complaint is that the Tribunal failed to consider an aspect of the letter and so failed to complete its jurisdiction. In the letter, the applicant wrote that he was always "alone to and from school since [he] went to junior high school" and that he "was once beaten by some bad guys on the way back home". 38 Insofar as the applicant seeks to rely on the extracted passage from the letter as supporting a separate and distinct complementary protection claim, it is difficult to see how the passage, read in context, could amount to such a claim. The applicant did not provide any detail about who the "bad guys" were and did not claim that he feared this would happen again. The first sentence of the extracted paragraph of the letter related simply to an instance of past harm. There was no claim raised by the applicant that he feared being again beaten by the same people or in a similar attack. It is therefore difficult to see how the passage, read in context, raised a separate and distinct complementary protection claim. 39 Insofar as the applicant seeks to rely on the extracted passage as constituting an integer or component integer of his religious persecution claim, it is difficult to see how the passage, read in context, could amount to this. The applicant did not claim that the incident had anything to do with his religion. The applicant did not link the incident to his religion. I do not accept the submission made on behalf of the appellant that the reference, later in the extracted paragraph, to the applicant's father being in prison (a matter dealt with by the Tribunal at [32]-[34] of the decision record) was sufficient to link the first sentence to his religion-based claim. 40 I note that it is clear that the Tribunal read the September 2015 Letter, as it is referred to in the decision record at [47]. The Tribunal was not under an obligation to refer to every contention made by the applicant. For the reasons given above, I consider the contention that the extracted passage of the letter constituted a separate and distinct complementary protection claim or an integer or component integer of the applicant's religious persecution claim to be very weak. 41 For these reasons, the proposed appeal ground lacks merit. It is unnecessary to consider the question of leave to raise a new ground. 42 Taking the above matters into consideration, and although there is no apparent prejudice, it would not be appropriate, in my view, to grant the extension of time that is sought. 43 For the reasons set out above, the application for an extension of time to appeal is to be refused. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the applicant pay the Minister's costs of the application for an extension of time. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.

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