SZTZU v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicants seek an extension of time for leave to appeal from a judgment of Judge Nicholls of the Federal Circuit Court of Australia. By that judgment, his Honour summarily dismissed the applicants' application, brought pursuant to s 476 of the Migration Act 1958 (Cth), for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 6 February 2014. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant protection visas to the applicants. 2 As the judgment of the Federal Circuit Court was interlocutory, leave to appeal is required and the application for leave was required to be filed within 14 days after the date of the judgment: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth); r 35.13 of the Federal Court Rules 2011 (Cth); and r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth). The application was filed five days out of time. 3 The Court has a discretion to extend the time for leave to appeal: r 35.14(1) of the Federal Court Rules. The factors relevant to such an application include the explanation for the delay and whether there is some prospect of success in the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]-[26]. The first applicant explained that she had mistakenly believed that the time limit for filing the application was 21 days. Bearing in mind that she has not been legally represented, I consider the first applicant's excuse to be a satisfactory one. 4 The Court has a discretion as to whether to grant leave to appeal, but leave will not usually be granted unless the judgment is attended by sufficient doubt to warrant the grant of leave and substantial injustice would result from the refusal of leave to appeal: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minogue v Williams [2000] FCA 125 at [19]. However, there is no hard and fast rule and each case must be considered on its merits: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [29]. If the order, while interlocutory in its legal effect, has the practical operation of finally determining the rights of the parties (as in this case) a prima facie case exists for granting leave to appeal: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43]. 5 Accordingly, in considering the application for the extension of time for leave to appeal, the issue is whether the proposed appeal has any prospects of success. 6 The first and second applicants are in a de facto marriage. The third applicant is their child. Each of the applicants is a citizen of the People's Republic of China. The applicants have each sought a Protection (Class XA) visa. 7 The first and second named applicants claimed to fear harm if they return to China as a result of their involvement in the underground Christian Assembly Church (also known as the Little Flock Church). The first applicant also claimed that she fears discrimination, including from members of her family, because of the birth of her child out of wedlock. She also claimed that the third applicant would have difficulties obtaining registration in China. 8 The Tribunal affirmed the decision under review to refuse the grant of protection visas. The Tribunal found that aspects of the first applicant's evidence lacked credibility. In particular, the Tribunal did not accept that she had been detained, interrogated and warned as she claimed. Despite its doubts, the Tribunal was willing to accept that the first applicant may have attended gatherings of the Christian Assembly in China and that she is a practicing Christian. The Tribunal decided that it should not disregard the first applicant's conduct under s 91R(3) of the Migration Act. 9 The Tribunal also had doubts about the credibility of the second applicant. The Tribunal indicated concern that the second applicant gave evidence that he was familiar with the Ten Commandments, but could not remember most of them. Despite this concern, the Tribunal was willing to accept his evidence that he had been brought into the church by the first applicant in 2012 and had attended church regularly since then. The Tribunal did not disregard his conduct under s 91R(3) of the Migration Act. 10 The Tribunal accepted that the first and second applicants are Christians and that if they attend church in China they will do so in the company of their child. However, it considered that their church, the Christian Assembly, is not one which receives adverse attention from the authorities. While there was evidence that the Local Church had been historically branded as an "evil cult" by the authorities, country information indicated that the applicants' church was separate from the Local Church. The Tribunal noted that the Chinese authorities have shown increased tolerance in recent years towards unofficial religious activity that does not challenge the authority of the State. The Tribunal also considered that the first applicant is not, and has not been, of adverse interest to the Chinese authorities. The Tribunal also found that there was no evidence to suggest that the applicants would face a real chance of serious harm on the basis of having attended the Christian Assembly in Australia. The Tribunal was not satisfied that there was a real chance that any of the applicants would face serious harm if they returned to China and attended their church in Fujian province. 11 The Tribunal accepted that sanctions apply in China for family planning breaches and that in Fujian province it is forbidden to have a child out of wedlock. However, the Tribunal noted that "out of plan children" can obtain registration once their parents pay the appropriate social compensation fee. It accepted the first and second applicants would be able to pay that fee and the third applicant would be able to obtain registration. 12 The Tribunal was not satisfied that by reason of having a child outside of wedlock the first applicant would be separated from her child or that the applicants would otherwise be persecuted. Any social opprobrium or discrimination they may encounter would not amount to serious harm or significant harm. 13 The Tribunal was not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations and affirmed the decision not to grant the applicants protection visas. 14 The grounds of the applicants' application to the Federal Circuit Court were as follows: 1. The tribunal has bias against my husband simply because he can't tell ten commandments. 2. The tribunal has bias against me for my background in Fujian. 3. The tribunal says we can go to the government organized church which is not my practice of my belief. This is unfair. 15 Part 44 of the Federal Circuit Court Rules deals with proceedings under the Migration Act. Rule 44.12 provides: 44.12 Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; … (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 16 Upon the application of the first respondent for an order to show cause, the Circuit Court judge decided that the grounds of the application and the oral submissions made did not raise an arguable case for the relief claimed. Accordingly, his Honour dismissed the application pursuant r 44.12(1)(a) of the Federal Circuit Court Rules. 17 In their proposed notice of appeal, the applicants rely on exactly the same grounds as those before the Federal Circuit Court. I take the applicants to contend that the primary judge erred in failing to find that the Tribunal had made the errors that had been asserted by them. 18 The first proposed ground of appeal alleges that the Tribunal was biased against the second applicant "simply because he can't tell ten commandments". The Tribunal expressed some doubt about the credibility of the second applicant because, despite telling the Tribunal that he was familiar with the Ten Commandments, he could not remember most of them. However, the Tribunal was ultimately prepared to accept his evidence that he was brought into the Christian Assembly by the first applicant in 2012 and had attended church regularly since then. It was not satisfied that the sole purpose of his church attendance in Australia was to strengthen his claims for protection. In other words, the Tribunal ultimately accepted that the second applicant was a credible witness. 19 The notice of appeal does not make it clear whether the first proposed ground alleges actual bias or apprehended bias or both. I will assume that it is both. 20 The applicant did not adduce evidence of actual bias on the part of the Tribunal. Nor does the material reveal any arguable case of actual bias on the part of the Tribunal. 21 The test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the Tribunal might not have brought a fair mind to making the decision: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [29]-[31]. In circumstances where the Tribunal ultimately found that the second applicant was a credible witness, its earlier expression of doubt about his credibility based upon his inability to recall the Ten Commandments could not possibly be regarded as exhibiting a closed mind against the applicants. The applicants have not demonstrated that the first proposed ground of appeal has any prospect of success. 22 The applicants' second proposed ground of appeal is that the Tribunal was biased against the first applicant "for my background in Fujian". The Circuit Court judge interpreted this ground as being a either a complaint in relation to the Tribunal's finding that the Christian Assembly had not received adverse attention in Fujian province, or a complaint that the Tribunal had exhibited bias in making adverse findings in relation to the first applicant's claims that she had been detained in China. To the extent that it is the former, it represents an impermissible attempt to review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291-292. If the second proposed ground alleges bias, Tribunal was prepared to accept that: the first applicant did attend some church meetings in China; that she is a Christian who attends church in Australia; and that she would attend church if she returned to China. Those findings tell against the Tribunal bringing a closed mind to the decision. The Tribunal did disbelieve the first applicant's claims that she had been detained in China, but the fact that it made such a finding cannot, without more, demonstrate apprehended bias. I consider that the applicants have not raised any arguable case of error in relation to the primary judge's findings concerning the second ground. 23 The applicants' third proposed ground of appeal is that "the tribunal says we can go to the government organized church which is not my practice of my belief". The Tribunal did not make the finding alleged by the applicants. The Tribunal found that the applicants would face no real chance of persecution if they attend underground meetings of the Christian Assembly. There was no suggestion by the Tribunal that the applicants should attend a different church or that they might be safe from persecution if they attended a different church. Again, I consider that this ground has no prospects of success. 24 In oral argument, the first applicant, representing herself and the second and third applicants, submitted that the Tribunal erred in concluding that the second applicant was not a Christian. The first applicant also argued that the Tribunal failed to give the second applicant the opportunity to demonstrate that he was a Christian by testing his knowledge of Christianity. However, the Tribunal was satisfied that the second applicant is a practicing Christian, so the asserted errors are irrelevant. 25 The first applicant also submitted that the Tribunal ought not have relied upon country information which suggested that official religious policy had been applied relatively liberally in Fujian province. It was open to the Tribunal under s 424(1) of the Migration Act to rely upon that information. No arguable case of error has been demonstrated in the Tribunal's reliance on that information. 26 The first applicant argued that the Tribunal was wrong to fail to find that she was at risk of harm in China. That is also an impermissible challenge to the merits of the Tribunal's decision. 27 Finally, the first applicant asserted that the Tribunal had erred in failing to take into account the fact that even though her child can be registered if a compensation fee is paid, he would not be growing up in a good environment. The Tribunal considered each of the claims made by the applicants, including those concerning the persecution which they alleged the third applicant would suffer, and rejected each of those claims. It was open to the Tribunal to do so. 28 In these circumstances, I consider that the applicants have not demonstrated that they have any prospects of success in the proposed appeal. Accordingly, I dismiss their application for an extension of time for leave to appeal with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.