SZVAW v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant has applied for an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court delivered on 6 July 2015. The notice of appeal was not filed within 21 days of the Federal Circuit Court's judgment, as is required under r 36.03(a) of the Federal Court Rules 2011 (Cth). Accordingly the applicant requires an extension of time under r 36.05 of the Federal Court Rules. 2 The factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice to the respondent as a result of the delay and the merits of the proposed appeal: see Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22]; Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-9; Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[17] and SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16]. 3 The applicant is a citizen of China. On 19 August 2013 the applicant applied for a Protection (XA Class) visa. On 10 February 2014 a delegate of the Minister for Immigration and Border Protection refused to grant the protection visa. 4 On 5 March 2014, the applicant applied to the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal ("the Tribunal") for review of the delegate's decision. On 19 August 2014, the Tribunal made a decision affirming the delegate's decision to refuse to grant the applicant a protection visa. 5 The applicant claims that he fears persecution in China because he is suspected of leaking trade secrets. The applicant worked for a company which produced machinery for the military. His friend, Mr Song, had arranged the job for him. Mr Song had a company that produced similar products. The applicant then helped Mr Song develop machinery, because he felt obliged to do so. Later, experts noticed similarities between the machines produced by each company and suspected that information was being leaked from the company where the applicant worked. The applicant feared he would be caught and made arrangements to travel to Australia. 6 The applicant alleges that after he came to Australia, Mr Song was taken into custody and confessed and revealed the applicant's whereabouts. The applicant claims that a summons was issued to his family. He claims that a local security guard has spoken to his wife on many occasions seeking information about his whereabouts. 7 The Tribunal accepted that the applicant had been involved in the production or manufacturing of equipment. However, the Tribunal found that the applicant's evidence about other aspects of his claims was "confused, vague and inconsistent." The Tribunal found that the applicant was not "truthful in his claims." The Tribunal found that the applicant's references to leaving his family, family planning laws and lack of human rights in China did not give rise to a well-founded fear of persecution. The Tribunal concluded that it was not satisfied that the applicant met the requirements of s 36(2)(a) of the Migration Act 1958 (Cth). It also found that the applicant failed to satisfy the complementary protection criteria under s 36(2)(aa) of the Migration Act. 8 On 10 September 2014, the applicant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision. The application raised four lengthy grounds of review which were largely in narrative form, repeating the claims that he had made before the Tribunal. The grounds did, however, also contain some allegations of errors on the part of the Tribunal. 9 The Federal Circuit Court judge noted that the applicant largely complained that the Tribunal did not believe him and made adverse findings as to his credibility. His Honour said that the applicant's grounds of application did no more than to repeat his claims and take issue with the Tribunal's findings of fact. The grounds therefore could only be seen as an attempt to invite the Court to substitute its own findings of fact for those of the Tribunal. This was impermissible. The primary judge held that on a fair reading of the Tribunal's reasons, its findings, including those as to the applicant's credibility, were reasonably open to it. 10 His Honour held that, to the extent that one of the applicant's grounds could be construed as an allegation that the Tribunal failed to give the applicant procedural fairness, the only evidence before the Court of what occurred at the Tribunal hearing was the Tribunal's account in its reasons. Those reasons did not reveal any breach of procedural fairness obligations. 11 His Honour addressed a ground that the applicant was unable to provide a confidential agreement relating to his employment. His Honour held that this was not a case where the Tribunal found adversely to the applicant because he was unable to provide some corroborative evidence to support his claim. 12 His Honour noted the applicant's complaint that at one point in its reasons, the Tribunal referred to "Mr Wang" instead of "Mr Song". His Honour considered that this was merely a typographical error and not jurisdictional error. 13 His Honour found that the applicant had not demonstrated any jurisdictional error and dismissed the application with costs. 14 The applicant's draft notice of appeal to this Court raises three grounds of appeal as follows. 1. The appellant found that the decision was unfair due to the appellant being unable to return to China. This is by the fear of persecution returning to my home country. 2. RRT did not consider my situation in China and the risk if I return to China. 3. The process at present is out of my expectation, which had ran out of my financial ability. I hope the Federal Court can judge fairy. (Errors in original.) 15 The first ground appears to assert merely that the Tribunal should have made a different decision. The second ground asserts that the Tribunal did not consider an aspect of the applicant's claim. The third ground does not assert any error. 16 In oral submissions, the applicant reiterated that what he told the Tribunal was the truth. He said that while the Tribunal made findings concerning discrepancies between the dates when the applicant said he commenced making arrangements to leave China, he had told the truth as he knew it. The applicant said that he was unable to produce supporting evidence from the police. He said that he had shown some photographs on his phone to the Tribunal. He had tried to present hard copies of the photographs to the Federal Circuit Court, but this was refused. 17 The applicant submitted that the Federal Circuit Court should have found that the Tribunal was in error in finding that he was not telling the truth. He submitted that the Federal Circuit Court had ignored typographical errors in the Tribunal's reasons. He argued that the judge did not approach the case from a legal perspective. He also asserted that the Federal Circuit Court had treated him harshly and discriminated against him because he is Chinese. 18 The basis of the applicant's appeal is that the Tribunal should have found that he was telling the truth about his claims and should not have found that his evidence was not credible. However, the question of the applicant's credibility is a matter for the Tribunal and not this Court: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. The Tribunal's findings concerning credibility were reasonably open to it. The applicant has been unable to demonstrate any jurisdictional error on the part of the Tribunal in making its findings as to credibility, or any error on the part of the Federal Circuit Court in holding that there was no jurisdictional error on the part of the Tribunal. To the extent that the applicant asserts that the Tribunal did not consider his situation in China and the risk to him if he were to return to China, that submission is plainly wrong. The Tribunal's reasons indicate that it did consider those matters. 19 The Federal Circuit Court acknowledged that the Tribunal had made a typographical error by referring to "Mr Wang" rather than "Mr Song". The Federal Circuit Court was right to consider that it was merely a typographical error and not a jurisdictional error. 20 The applicant's allegation that the Federal Circuit Court had treated him harshly and discriminated against him because he is Chinese is not supported by any evidence, nor is such an allegation supported by anything in the Court's reasons. 21 The applicant has not demonstrated any arguable error on the part of the Federal Circuit Court. Accordingly his application should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.