SZUTO v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to file an application for leave to appeal and an application for leave to appeal should that extension of time be granted. I will come to the underlying facts of the applicant's circumstances in a moment. The procedural history is that the applicant, who is a citizen of the People's Republic of China, arrived in Australia in May 2009 on a student visa which was cancelled in May 2010. The applicant remained in Australia but applied for a protection visa some three years later on 1 July 2013. 2 I will come to the claims in due course. After rejection by a delegate of the Minister, the applicant sought review in the then Refugee Review Tribunal. On 23 June 2014, the Tribunal decided to affirm the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The decision was supported by comprehensive reasons of 15 pages to which I will later come. 3 The applicant sought judicial review of that decision in the Federal Circuit Court of Australia. The matter came on for hearing on 2 November 2015. In extempore reasons given on that day, the learned judge dismissed the application for review. It was dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court of Australia Rules 2001 (Cth). That was some two years and nine months ago. Making a generous and approximate allowance for a period of time to appeal, the appellant is over two-and-a-half years out of time. Hence the application for an extension of time. 4 The evidence filed in this application in support of the application is by the applicant. He indicates in his affidavit affirmed on 21 March 2018 that he does not agree with the decision of the Federal Circuit Court. He wishes a further review, and he wishes to obtain a "more fair decision". He says that he delayed his further appeal because of financial difficulty for the application fee, and he could not get help in filling out all the forms required with his limited English. 5 The length of time involved in the delay is such as to require a strong body of evidence to explain and expunge that delay. A degree of finality to the Court's process is essential, and with the utmost respect to the applicant and fully taking into account his circumstances, I do not see any appropriate explanation for an over two-and-a-half year delay in bringing this application. In the ordinary course, that would be an adequate basis to reject the application. 6 Given, however, the nature of the protection visa and the importance of the Convention Relating to the Status of Refugees (1951) 189 UNTS 137 as integrated within Australian domestic law, in a matter of this kind, unless it was an extraordinary case, I would always look at the underlying apparent position arising from the executive review of the original decision and the review of that in the Federal Circuit Court. 7 The applicant's claims to protection arise out of his claim to fear harm from the Chinese authorities because of his practice of Falun Gong and his family's, in particular his parents', practice of Falun Gong. His claims include his father having been arrested, his mother having been summoned by the government and his detention in 2008. I will not set out the full detail of his claims. Suffice it to say that if they had been accepted, they would have provided a basis for thinking that Australia had protection obligations from the Refugee Convention. 8 The difficulty for the applicant is that the Tribunal affirmed the delegate's decision not to grant a protection visa. The Tribunal found that the applicant was not a credible witness. I have written elsewhere recently, making the well-known point that matters of credit are not outside the purview of the Court's scrutiny if they have not been reached in a way that reflects the fulfilment of the Tribunal's duty to hear a review properly: see CWR16 v Minister for Immigration and Border Protection [2018] FCA 859. 9 It is in that light, perhaps, that it is important to record in these reasons some of the outline why the Tribunal rejected the applicant's claims. The Tribunal refused to accept that the applicant was a Falun Gong practitioner. This was for a number of reasons which were as follows. 10 First, that there was no third-party evidence, documentary or photographic, of his practice. 11 Secondly, when asked a question as to the relationship between Falun Gong and Falun Dafa, the applicant was said to have given an inaccurate answer. 12 Thirdly, when asked about the main components of Falun Gong, the applicant gave an answer that it was a combination of Buddhism and Daoism. I note here that although the Tribunal said that this was inaccurate, stating that the correct answer was self-improvement through studying Master Li Hongzhi's teachings and performing the five exercises, the four masters that Hongzhi claimed to have studied under were Buddhist or Daoist. 13 Fourthly, the Tribunal said that the applicant was not able to answer how Buddhism and Falun Gong were related. 14 Fifthly, he was not able to tell the verses of the exercises nor accurately recall the number of movements of each of the five, although he did accurately perform the exercise asked of him by the Tribunal. 15 Sixthly, the Tribunal said that the applicant did not know that Zhuan Falun was one of the two fundamental books of Falun Gong practice. 16 If I may use the expression without any intended disrespect, the practice of catechising the religious practice or belief in this fashion has its obvious merits, but I would add that an overly fine refinement of it may, in some circumstances, be dangerous. I am not able to conclude that the criticisms made here were so unreasonable as to lead to potential error. 17 As I said earlier, the Tribunal also found the applicant was not a credible witness. At the hearing, he confirmed his written statement. The Tribunal then identified at least six areas of inconsistency or difficulty between the statement and the interview he gave in supporting his claim. 18 The first inconsistency was about the start of his parents' practice of Falun Gong. The inconsistency arose between his statement and the interview he had given during the investigation of his claims. 19 Secondly, there was an alleged inconsistency about the subject of his father being dismissed from work. He told the interviewer his father last worked in 1993, but the written statement said he was dismissed in 1999. 20 The third area of perceived inconsistency was whether he was involved in organising with his parents the travel to Australia of Falun Gong practitioners to watch performances by the Shen Yun troupe. 21 The fourth inconsistency perceived was as to whether both his parents were arrested when he was in high school. 22 The fifth inconsistency perceived was as to the evidence he gave about an undercover Chinese agent who the applicant suspects may have been informing to the Chinese authorities while in Australia. The inconsistency arose as to whether the person worked with Amnesty International or whether he was an international student. At least in relation to this inconsistency, it seems to me that there is or may be a false dichotomy. There is no reason why the person could not have worked for Amnesty International and been an international student. 23 Finally, there was a perceived inconsistency as to the employment dates of his mother. 24 None of the aspects that led to the refusal to accept that the applicant was a Falun Gong practitioner or that he was not a witness of credit was obviously critical or obviously such as to lead to the conclusion that the applicant should be rejected. Nevertheless, in their accumulation, and giving weight to the sense and perception of the Tribunal, I cannot conclude that the decision and the views taken by the Tribunal were legally unreasonable. 25 The matter came to the Federal Circuit Court. The matter was set down for a show cause hearing because no evidence or submissions had been filed by the applicant. Thus, he was not able to persuade the learned judge that there was sufficient merit to his claim for a final hearing. The application before the Federal Circuit Court had three grounds. 26 The first ground asserted disagreement with the delegate and the Tribunal's findings, and the primary judge noted that the Tribunal's reasons were probative of the material before it. By this, I take his Honour to mean that the reasons were apparently coherent and, in their terms, adequate to be an apparent basis for the conclusions brought. 27 The second ground was that the Tribunal did not consider that he was actively practising Falun Gong in Australia and to do so in China would bring him significant trouble. This was said by the primary judge to be without merit because the Tribunal did consider the applicant's claims and evidence in respect of his practice in Australia, and I respectfully agree with the learned primary judge. 28 The third ground was that the Tribunal unreasonably suspected the truthfulness of his claims because of the absence of evidence. The primary judge said that this was without merit because it was open to the Tribunal to make an adverse credibility finding considering the applicant's long delay in applying for a protection visa and his other inconsistencies. The applicant also claimed that the Tribunal did not consider the risk of future harm as part of the first ground. The learned primary judge rejected that claim, noting that the Tribunal gave comprehensive reasons for its conclusion as to the applicant not being a Falun Gong practitioner and not being credible. 29 It was not the function of the Federal Circuit Court nor is it the function of this Court to decide upon the accuracy of factual matters put forward by the applicant. That said, and as I have already said, legal unreasonableness is a ground of legal review which can arise out of a review of the treatment of the factual basis of an applicant's claims: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; and AWZ17 v Minister for Immigration and Border Protection [2018] FCA 651. As has been said previously by Full Courts of this Court and single judges, the conclusion that the factual reasoning process is so flawed as to be legally unreasonable is not to be reached lightly. 30 I do not see any apparent contrivance in the reasons of the Tribunal, nor can I conclude that the inconsistencies and difficulties revealed by the Tribunal's reasons are not such as could legitimately found the conclusions reached by the Tribunal. In those circumstances, I am not able to perceive any coherent basis upon which the appeal will be likely to succeed. In those circumstances, it should be unjust and contrary to principles of finality to permit the applicant to agitate a complaint about the primary judge's reasons handed down in November 2015. For those reasons, the application for an extension of time is refused and I order that the applicant pay the respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.