(2) The application is dismissed as incompetent under s.477(1).
(3) The applicant must pay the costs of the first respondent in the amount of $4,500.
[2]
The applicant entered Australia in November 2008, using a photo-substituted Chinese passport containing a temporary business visa. On 7 January 2009 she applied for a protection visa in a different name, assisted by Harry Huang of Pricilla International Co. Pty Ltd ("Pricilla International"), migration agents.
In the application she claimed to be the person shown in a copy of a Chinese identity card, and explained why she claimed protection in Australia so that she did not have to return to the People's Republic of China. She claimed that she had two children born in 2006 and 2007, but had been unable to register either of them, because their birth did not comply with family planning policies and she was unable to pay the fines so as to obtain the registration of the children. She referred to the amounts of these fines, and claimed that the unfairness of the situation had caused her to . She claimed to have done this with another similarly situated woman in her village, and to have drafted a petition with her and distributed it.
"started discussing to organise and encourage these people, who were in similar situation to us, to strive for basic human rights of our innocent children"
She claimed that in June 2008 her distribution of the petition led to a protest at a school, at which "many police arrived to suppress our protest". She claimed she and the other woman were detained at the police station for one week, and "we were interrogated by the police every day; and we were subjected to miserable persecution in the interrogation". They were taken to a forced labour camp, where they were held for three months before being released after their relations bribed police. She said: "after that, I was continually harassed by the police or the local officials", without giving details. She said: "without any choices, I had to leave China and come to Australia in the end".
No corroboration for these claims, other than the false passport and the identity card, was ever given to the Department of Immigration or the Refugee Review Tribunal.
The applicant was interviewed by a delegate of the Minister on 11 March 2009, and on 7 April 2009 the delegate made a decision refusing the visa. The delegate said that the applicant's responses at interview were "vague and unconvincing which raise doubts as to the veracity of her claims". The delegate said the applicant had not been able to substantiate her claim of being aggrieved by the PRC one child family planning policies, nor to substantiate how she organised people for the petition and protest. The delegate said: "her responses were characteristic of a rehearsed story having been learnt specifically for the interview".
The delegate explained these adverse conclusions, particularly concerning the claimed persecution by police. The delegate also noted inconsistencies concerning how the applicant had obtained the passport and visa, and inferred that the applicant had used a false passport because she would not have otherwise been able to obtain an Australian visa. The delegate thought that the applicant's delay in applying for protection after coming to Australia raised doubts about her claimed fears.
The applicant continued to be represented by Pricilla International on the appeal, and she attended a hearing held by the Tribunal on 25 June 2009. She presented photographs which she said showed her younger daughter and her husband. The file note of the hearing indicates that it lasted from 11.30 am until 12.51 pm. However, a transcript has not been tendered in evidence, and the Tribunal gives only a brief summary of the hearing in its statement of reasons.
According to the Tribunal, it questioned the applicant about her claims to have been unfairly treated under Chinese family planning procedures. In the course of this, it put to the applicant that her evidence of the amounts and requirements to pay fines was inconsistent with country information, particularly concerning rural families in Fujian. The Tribunal also raised with the applicant a concern that the fines she claimed to have been unable to pay did not amount "to much more than the cost of her travel to Australia and that had separated her from her two little children". The applicant's response was: "she said her family would pay for her to go to Australia but not the fines".
The Tribunal made a decision on 26 June 2009, which affirmed the delegate's decision. In its statement of reasons, the Tribunal referred to the applicant's complaints about the administration of the government's family planning policies. The Tribunal said: "she was completely ignorant of the regulations in her province on the subject". It found her claims to have feared forced contraceptive operations to be implausible, and it said:
36. Her response to me informing her that half the families in rural Fujian have more than one child was quite inadequate. The fact makes her whole account of suffering for having 2 children (even if she was young when the first was conceived - she was 19) quite implausible.
37. Finally, the amount she claimed was paid for her travel to Australia would have been more than enough to settle her fines and secure registration for her children. I do not accept that her family would have been willing to find that money but unwilling to assist her pay her fines and register her children. That her parents would, in effect, prefer for her to live alone in Australia than to pay a lesser amount and have her remain in China with her husband and two very young children defies common sense and I do not accept it.
38. I find that the entire story is a concoction and that there is no truth in it.
39. Accordingly, I do not accept that the applicant was fined, arrested, mistreated, harassed or threatened in any way for any reason prior to her leaving China for Australia. I find that there is not a real chance that any such things would happen to her if she were to return to China in the foreseeable future for reason of her membership of a particular social group, her real or imputed political opinions or for any other Convention reason.
40. I find that the applicant does not have a well founded fear of persecution in China for a Convention reason.
The applicant did not apply to the Court for review of the Tribunal's decision within the 35 days required by s.477(1) of the Migration Act 1958 (Cth), that period expiring on 31 July 2009. Her application was not filed until 21 October 2009. It is therefore incompetent unless the Court extends time pursuant to s.477(2). The Court has power to do this only if it "is satisfied that it is necessary in the interests of the administration of justice to make the order".
The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two 'critical' considerations are: "(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order" (see Kirby J in Allesch v Maunz[2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor[2009] FMCA 1161 at [40]- [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two 'critical' considerations (see Adams v Kennick Trading (International) Ltd(1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
In the present case, the applicant has been unrepresented, and I thought it appropriate at the first court date to set the matter down for a final hearing on merits with the extension of time application, to allow the applicant the fullest opportunity to prepare her case. She has had the opportunity to file evidence and submissions in support of her claim for extension of time, and in relation to the substantive grounds of her application, after receiving a bundle of relevant documents and a referral for free legal advice. However, she has not filed any documents additional to her original application and a formal affidavit attaching the Tribunal's decision.
In the section of her principal application containing her application for extension of time, it is stated::
Frankly speaking, I almost lost my confidences with the justice and fairness of the Australian government owing to the performance of the Tribunal; and I hardly believe that my application for a protection visa could be assessed and considered, fairly and properly; by any authorities in Australia. I, therefore, did not seek the judicial review in time.
I, however, have been encouraged by a friend in Australia; and he was previously in the similar situation to mine but got successful in the Federal Court. So, I had to decide to seek a review.
The applicant made oral submissions today repeating these statements, but she has not filed an affidavit verifying their factual content. Assuming that what is now stated was true, I am unpersuaded that it adequately excuses her failure to apply to the Court within the requisite period. The applicant was represented in the Tribunal by a highly experienced migration agent, many of whose clients make applications to this Court within the statutory period unaided by a legal representative. She has not presented any evidence that she did not have available reasonable avenues for advice about the bringing of a judicial review application within time.
In effect, the applicant concedes that she was aware that she could ask the Court to review the Tribunal's decision judicially, and decided not to do so within the statutory period, but later changed her mind when she heard that at least one such application had succeeded. I do not consider that this provides an adequate explanation for failure to comply with a strict time limit provided by Australian legislation, when that explanation is assessed in terms of "the interests of the administration of justice".
However, inadequacies in her explanation might not have led me to refuse to exercise the discretion in s.477(2), if I had been persuaded that she had shown arguable substance in her substantive grounds of review presented to the Court. In my opinion, she has not done this.
Her application contains four grounds. The first ground contends that the Tribunal failed to comply with obligations under s.424A(1), in its reliance on general country information concerning the position of rural families in Fujian in relation to having more than one child, and by relying upon other general information concerning the usual administration of family planning policy in the applicant's province. It is contended that the Tribunal failed to give the applicant "clear particulars" of this information, and to ensure that she understood why it was relevant, and to give her a chance to comment or respond.
Considering the terms of s.424A(1), this contention is misconceived. The obligation under that section to provide written notice of information which would be part of the reason for affirming the delegate's decision, is expressly excluded in relation to information not specifically about the applicant (see s.424A(3)(a)), and it is well established that this extends to general country information used to test an applicant's credibility (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW[2004] FCAFC 264; (2004) 140 FCR 572).
Considering fairness generally, the applicant has not raised an arguable case that she was not given a full and fair opportunity in the course of the hearing to respond to the Tribunal's concern that her claimed history of unfair treatment under the family planning policy, including the amount and timing of her fines, appeared to be inconsistent with country information. It is clear that the Tribunal also wished to assess the applicant's claims to have become involved in a general campaign of protest against family planning policies and administration, against the extent of her knowledge about that administration. It appears to me, albeit on the Tribunal's summary description of the hearing, that this process of reasoning was clearly foreshadowed to the applicant in the course of the hearing. I therefore do not consider that Ground 1 is supported by evidence which might raise a concern by reference to principles identified by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[2006] HCA 63; (2006) 228 CLR 152, if it were read that way.
Grounds 2 and 3 allege that the Tribunal failed to comply with obligations under s.425 and that its decision "has included a reasonable apprehension of bias". In effect, the particulars under these grounds are presented as particulars of actual or apprehended bias.
Four matters are pointed to:
The Tribunal "arranged a hearing for me as a mere formality or did it perfunctorily". In her oral submissions, the applicant referred to the fact that the Tribunal made its decision on the day after the hearing, suggesting that this implied a closed mind.
The Tribunal "completely misstated" the history she had presented in her protection visa application to establish her claim to protection.
On her claims, "it is no doubt that my sufferings in China must constitute persecution on the Convention ground if my claims have been considered by the Tribunal fairly and properly".
"At the Tribunal's hearing, the Tribunal has never ever created any genuine opportunity for me to give oral evidences in support of my above-mentioned claims in details".
In my opinion, no arguable substance for these contentions has been shown in the evidence before me. In the absence of any transcript of the hearing, in my opinion, the applicant's criticisms of the Tribunal's hearing are not shown to have any substance. In particular, the evidence does not suggest that the hearing was treated as a mere formality by the Tribunal, nor that the Tribunal proceeded perfunctorily at the hearing or when making its decision. It is correct that the Tribunal was able in its statement of reasons briefly to summarise the pertinent parts of the hearing which had led it to reject the applicant's credibility. However, the fact that it could write a concise statement of reasons, and publish it speedily, does not, in my opinion, indicate that it prematurely closed its mind to considering the applicant's claims and evidence.
I do not accept that the Tribunal's short summary of the applicant's claims in her protection visa application was either inaccurate, or did not sufficiently identify the matters upon which the applicant claimed to be a refugee. In my opinion, it did not "completely misstate" the applicant's claims.
The third particular, in effect, invites the Court itself to assess the credibility of the applicant's evidence. However, this is not its function. This is not a case where the Tribunal's assessment of the merits in its statement of reasons might give rise to an apprehension by an informed lay observer which could satisfy the principles of apprehended bias identified by the High Court in Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425.
A fortiori, the applicant has not raised evidence satisfying the principles of actual bias identified in Minister for Immigration & Multicultural Affairs v Jia(2001) 205 CLR 507.
I therefore do not consider that arguable substance has been shown for Grounds 2 and 3 in the application.
Ground 4 is:
Even if ... half the families in rural Fujian have more than one child_, it still cannot become evidence that my child will not have troubles for obtaining "household register". Even if the amount I claimed was paid for my travel to Australia would have been more than enough to settle my lines and secure registration for my children, it never means that I have not actively been involved in the political activities against the corrupt Communist dictatorship. It is no doubt that the Tribunal's decision has included a reasonable apprehension of bias._
This appears to contend that the Tribunal's decision was based on an illogical or unreasonable conclusion. However, in my opinion, the ground misstates the Tribunal's reasoning. It was, in my opinion, relevant for the Tribunal to compare the applicant's evidence with what it regarded as authoritative evidence about the administration of family planning policies in Fujian at the relevant time.
The significant point made by the Tribunal concerning the applicant's response when it put country information about families in rural Fujian being allowed two children in many cases, was not that this was necessarily directly inconsistent with the applicant's claimed history, but that she did not show an appreciation of what might be thought to be notorious information, and the Tribunal thought that her responses were inconsistent with her having become generally engaged in political activity in relation to the matter.
Similarly, the Tribunal's reflections on the amount of money the applicant had admitted paying to travel to Australia using a false passport, when compared to the amount which would have secured the registration of her children and the elimination of discrimination against them in China, was not, in my opinion, an irrational or unreasonable consideration when assessing the applicant's credibility.
I am not persuaded that there is a foundation supporting Ground 4 in the Tribunal's reasoning about these matters, applying principles identified by Moore J in SZMDS v Minister for Immigration & Citizenship[2009] FCA 210, (2009) 107 ALD 361 (in relation to which judgment on appeal is reserved in the High Court).
For the above reasons, I have not been persuaded, when assessing the interests of the administration of justice in relation to her application, that the substantive grounds of judicial review presented to the Court have sufficient substance to overcome my lack of satisfaction about the explanations for her delay.
Taking into account all the circumstances shown in the evidence before me I am not persuaded to exercise the discretion conferred by s.477(2). The consequence is that I must refuse the application for extension of time, and dismiss the application as incompetent.
[3]
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM