SZUCA v Minister for Immigration and Border Protection

Tribunal Decision 7 The applicant applied to the Tribunal for review of the delegate's decision on 2 September 2013. He attended a hearing before the Tribunal on 11 February 2013 to give evidence and present arguments. 8 On 24 February 2014, the Tribunal affirmed the delegate's decision. The Tribunal set out its reasons in a Statement of Decision and Reasons ("Decision Record"). 9 The Decision Record at [17] reveals that the Tribunal was not satisfied that the applicant was a truthful witness and considered that he had "manufactured the totality of his claims". The Tribunal noted that the applicant had considerable difficulty deviating from his written statement when he was required to do so at the Tribunal hearing and that several aspects of his claims were lacking in credibility. 10 The Tribunal considered it significant that during the hearing the applicant had attempted to alter his claims regarding the extent of his involvement in organising protests against the demolitions. The Tribunal expressed its doubts in respect of his claim to have led the negotiations with the government on behalf of the village at the age of 20. In response, the applicant attempted to retreat from his initial claim and downplay the level of responsibility entrusted to him. The Tribunal also found that, at the Tribunal hearing, the applicant gave evidence in relation to this claim which was inconsistent with the information detailed in his written statement: Decision Record at [18]-[19]. 11 The Tribunal found that inconsistencies were also apparent in the applicant's evidence regarding the timing, nature and length of his father's imprisonment. He could also not recall when his father's sentence had been extended. As a result, the Tribunal found this claim to be lacking in credibility: Decision Record at [20]. The applicant's evidence about when he finished school and the periods during which he was employed was similarly said to be "inconsistent and vague": Decision Record at [25]-[27]. 12 In respect of the applicant's claim to have been the victim of a number of serious beatings by local authorities, the Tribunal questioned why he had continued to return to his village voluntarily following a series of claimed stints in hiding. The Tribunal found that his decision to do so indicated that he did not fear any harm. The Tribunal did not accept that the applicant had been able to avoid detection while living at his mother's home or that he had managed to escape being arrested at the protest in May 2012: Decision Record at [21]-[23]. The Tribunal also questioned the plausibility of the claim that the authorities had continued to attempt to coerce the applicant's father into signing the compensation agreement after the authorities had demolished their home: Decision Record at [24]. 13 In light of the Tribunal's credibility findings, the Tribunal did not accept that the applicant was involved in protesting the demolition of properties in his village or that his home was forcibly demolished. The Tribunal also did not accept that the applicant or his father had been arrested, detained, beaten or imprisoned at any time or that the applicant had ever had to flee his village and live in hiding: Decision Record at [28]. 14 Having found that the applicant's father had not been imprisoned, the Tribunal did not accept that the applicant had become a member of an underground Christian church in 2010 as a result of his father's imprisonment or that he had ever been a Christian in China: Decision Record at [29]. 15 The applicant was unable to provide any details about the type or denomination of the church he attended in Australia. While the Tribunal accepted that he had been attending church in Australia and had been baptised, the Tribunal found his explanation for why he did not have a baptism certificate or any photographs of the baptism to be "unpersuasive": Decision Record at [30]. 16 As the Tribunal found that the applicant had become involved in the church solely for the purpose of strengthening his claim to be a refugee, in accordance with the former s 91R(3) of the Migration Act, the Tribunal was required to disregard this conduct in assessing his claim for refugee protection under s 36(2)(a): Decision Record at [29]-[30]. 17 The Tribunal was not satisfied that there was any evidence that the authorities were aware of either the applicant or his wife's involvement in Christian churches in Australia such that they would be at risk of harm were they to return to China: Decision Record at [31]. 18 In the result, the Tribunal was not satisfied that the husband was a person in respect of whom Australia owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [34].

Federal Circuit Court decision 19 The applicant applied for judicial review of the Tribunal's decision by an application filed in the Federal Circuit Court on 21 March 2014. The matter was listed for a show cause hearing on 23 October 2015. 20 The application contained two grounds (as written): 1. The member did not believe that the villagers could select me as the representative to negotiate with the governmental organisations because I was too young and my academic qualification was too low. I was therefore discriminated against by the member given that a young do can be involved in a negotiating process. 2. The member mentioned that she did not understand why I could not remember the year I left school while I could remember the date of each event in my claim. The member did not believe that I had achieved the academic qualification as I presented to RRT. This constitutes another discrimination against me. 21 The primary judge understood the grounds of the application to assert implicitly an allegation of bias on the part of the Tribunal and found that neither ground was arguable: SZUCA at [15]. 22 In relation to the first ground, the primary judge noted that the implausibility of the applicant having represented his village in the negotiations with the government at such a young age was subsidiary to the Tribunal's more general findings regarding the applicant's credibility. At [19] of the Decision Record, the Tribunal focussed on the fact that the applicant had altered his claims and attempted to downplay his responsibility in the negotiations after the Tribunal had questioned him about the plausibility of this claim: SZUCA at [12]. 23 In relation to the second ground, which was not particularised and did not identify what the discrimination was said to have been, the primary judge referred to the Decision Record at [27] where the Tribunal had clearly identified the specific concerns it had with the applicant's evidence concerning when he completed his schooling and his employment record: SZUCA at [13]. 24 The primary judge was not persuaded that there was any basis to find that the Tribunal's conclusions were affected by any particular view of the applicant as a person, but rather as a result of its analysis of his evidence and the manner in which it was given. Further, any claim of bias inherent in the allegations was inadequately particularised and evidenced and, as pleaded, his claim of bias was not arguable: SZUCA at [14]-[15]. 25 In oral submissions the applicant stated that the presiding member of the Tribunal had had an urgent expression and had been in a hurry. However he did not suggest that as a result of this he had been denied an opportunity to place before the Tribunal all the material which he wanted it to consider or that the Tribunal had been unwilling to give the material the time it deserved: SZUCA at [16]. 26 In the result, the primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal: SZUCA at [17]-[18].

Application to this Court 27 Pursuant to rule 35.14 of the Federal Court Rules 2011 (Cth), the applicant filed an application for an extension of time to seek leave to appeal on 19 November 2015. 28 The applicant lists three grounds in his application (as written): 1. I was unable to provide enough evidence. 2. There has been discrimination against me due to my educational background and age. 3. I was not provided with information about how long I had to appeal when my application was dismissed. 29 The applicant filed an affidavit affirmed on 19 November 2015 in support of his application which attached a statement. He did not provide any other written submissions in support of his application. The applicant appeared at the hearing with the assistance of an interpreter. 30 The Minister filed written submissions and appeared by his representative at the hearing. 31 In determining the application for an extension of time, the Court has regard to the length of the applicant's delay in lodging the application and reasons for the delay; any prejudice to the respondent if the extension were granted; and the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176. 32 Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below, and further, that if the judgment below is assumed to be wrong that substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655.

Consideration 33 The Minister opposed the grant of both an extension of time and leave to appeal on the basis that the substantive appeal lacks merit and has no prospects of success. The Minister's representative indicated that the Minister did not seek to take any point in relation to the applicant's delay in seeking to file an application for leave to appeal. 34 The applicant was unable to explain what he meant by his first ground. Without explanation or particulars it discloses no arguable ground of appeal. 35 The focus of the applicant's submissions addressed the second ground of his application. The applicant's submissions were directed at two issues: (1) why the Tribunal was wrong not to accept that he had been a leader of his village's resistance to the government's decision to demolish the houses and offer inadequate compensation, and (2) the Tribunal's focus on his educational attainment. 36 The applicant submitted that he had never asserted that he was the sole leader and while it is true that he was not highly educated, he did not need to be to "fight for right". He submitted that his father was initially involved but after his arrest the applicant became involved because of what was happening to his family. Further, although the Tribunal hearing went for one hour and forty-five minutes, only half an hour was spent asking about his case, the balance was spent asking about when he had graduated from technical college. He had difficulty answering that question because of a period of practical work and so he could not recall precisely when he graduated. 37 The Minister submitted that: (1) Insofar as the second ground has a claim of bias inherent in it, it could not be made out for the reasons given by the primary judge in SZUCA at [11]-[15]. (2) The Decision Record at [18] discloses that: (1) when the Tribunal put to the applicant that it was unlikely that, as claimed in his written statement, at age 20 he was given the role of a leader and representative of the village in negotiations with the government, the applicant stated that he was not the leader; and (2) it was in a submission following the hearing that the applicant's representative indicated that although the applicant was not highly educated he was entrusted with a leadership position due to his father's reputation in the village and that the applicant thought it unfair that he should be judged on his educational level. At [19] of the Decision Record the Tribunal states that: "The Tribunal considers it evident that the applicant attempted to retreat from his initial claims … in response to the Tribunal's concerns that it is unlikely he would be given such a high level of responsibility at such an age." The Tribunal's findings at [19] of the Decision Record relate to the plausibility of the applicant's claims due to his age, not his educational attainment. (3) There is no transcript of the Tribunal hearing so the Court is not in a position to assess the accuracy of the applicant's claims as to statements made by the Tribunal member or the proportion of the hearing spent addressing the applicant's educational attainment and employment history. Of the 35 paragraphs of the Decision Record, three ([25]-[27]) deal with those issues. The Decision Record would not support the applicant's claim. In any event, it was entirely open to the Tribunal to ask about these issues. Further, in seeking to assess the applicant's credibility, robust and even vigorous questioning is permitted as part of the inquisitorial process of the Tribunal: see SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4] per Allsop CJ. 38 I accept the Minister's submissions and find that the second ground does not disclose an arguable ground of appeal. 39 The third ground is relevant to the issue of the applicant's reason for the delay; it has no bearing on a consideration of whether the substantive application has merit. In light of the Minister's concession that it would not pursue any point in relation to the applicant's delay in filing his application, it is no longer relevant

Conclusion 40 I have carefully read the Decision Record of the Tribunal and the primary judge's reasons. I am satisfied that the applicant has not identified an arguable case of jurisdictional error on the part of the Tribunal or appellable error by the primary judge. As I have not found merit in the applicant's proposed grounds of appeal I will dismiss the application. I will order that the applicant pay the first respondent's costs as agreed or taxed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.