AZAEZ v Minister for Immigration

[2014] FCCA 2320

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEZ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2320

Catchwords:
MIGRATION – Judicial review of decision of the Refugee Review Tribunal – extension of time sought for filing of application – primary application is without merit – application for extension of time is refused.

Legislation:

Migration Act 1958 (Cth), ss.417, 429, 474 & 477

Re Commonwealth & Anor; Ex parte Marks (2000) 177 ALR 491
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: AZAEZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 162 of 2014

Judgment of: Judge Simpson

Hearing date: 10 September 2014

Date of Last Submission: 10 September 2014

Delivered at: Adelaide

Delivered on: 10 September 2014 (ex tempore)

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The applicant’s application for an extension of time pursuant to r.477(2) is refused.

2. The application filed on 9 May 2014 is otherwise dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 162 of 2014

AZAEZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

1. The applicant seeks to challenge a decision made by the Refugee Review Tribunal (“the Tribunal”). The Minister submits that the Tribunal’s decision is not infected by jurisdictional error and is, therefore, a privative clause decision within the meaning of s.474 of the Migration Act 1958 (Cth) (“the Act”). They say it cannot be impugned or otherwise called into question.

2. The applicant filed her application with the Tribunal substantially out of time and therefore seeks an extension of time pursuant to s.477 of the Act to make her application.

3. The background to the matter is that the applicant is a national of India.  She entered Australia with her then husband in April 2009 as the holder of a Student (Temporary)(Class TU) visa which was valid until 25 May 2011.  She lodged an application for a Protection (Class XA) visa on 2 July 2012.

4. She said in her application to the Minister that she left India to study in Australia. 

5. She says that whilst in India she was physically abused, molested and raped by the local Indian police.  She said that she feared that, if returned to India, she would be abused, raped and murdered by her husband’s family, local police, and members from a political party. 

6. She said that on most days in 2008 she was harassed by a number of political youth workers and that she reported this to the local police.  She said that a few days later the same persons kidnapped her and took her to an unknown isolated location and abused and raped her. 

7. She says that later she got married and came to Australia with her husband.  They were happy, she says, until she told him about the incidents referred to above, after which he left her.  She says that since the parties’ separation, news about the incidents circulated in her local community in India.

8. The applicant was invited by the first respondent to attend an interview with a Delegate but declined to do so. 

9. On 17 October 2012 the Delegate refused the applicant’s application.  The applicant then applied for merits review by the Tribunal. 

10. The Tribunal invited the applicant to appear at a hearing.  The applicant advised the Tribunal that neither she nor her representative would be attending the hearing.  The applicant explained that she had nothing further to add to her original statement.  Accordingly, the Tribunal did not convene a hearing, and proceeded to determine the review.  On 20 June 2013 the Tribunal affirmed the Delegate’s decision.

11. It is apparent from the Tribunal’s decision that the Tribunal accepted that the applicant was an Indian national.  It therefore addressed the applicant’s claims as against that country of reference. 

12. The Tribunal outlined the applicant’s claims.  The Tribunal was not satisfied that the claims actually occurred.  Further, it was not satisfied that the claims raised had a Convention nexus, or that the applicant would be unable to access protection. 

13. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.  It also found, without the benefit of a hearing, that it was unable to satisfy itself that the applicant would suffer significant harm as a necessary and foreseeable consequence of her removal from Australia to India.  Accordingly, it concluded by affirming the Delegate’s decision.

14. In the substantive application, the applicant advances a single ground of review.  Unfortunately, it is a somewhat jumbled ground and therefore not easily decipherable.  The ground stated verbatim is as follows:

    “Member of RRT in decision paragraph 15-20 claimed that I do not meet the refugee criteria section 36(2)(a).  Tribunal member failed to put weight on the I am victim of rape and kidnapping.  I clearly stated that it was from authorities and they did not register any complaint.  I thereafter hid this shameful act conducted on me, fearing risk to life and feeling ashamed and pity on myself.  Even my husband who took vow to share his life with me left me after I confessed to him. 

    I informed tribunal that I cannot attend hearing as I am afraid and feel down to talk about my rape to unknown people.  Tribunal should have some provision for women who are victim of sexual abuse.  RRT did not understand the sensitivity of my case.  Also tribunal quoted Nagalingam v Milgea (1992) 38 FCR 191 to state fact that tribunal is not required to accept uncritically any and all allegations made by the applicant.  In any case is not required, or even should accept uncritically allegations made by applicant but it is in scope of RRT to make provisions for clients as per their situation. 

    Tribunal member treated me as same case as other client, failing to put weight fact that I am a woman who is victim of sexual abuse.  Tribunal made an error in decision and the way it conducted hearing which led to decision-making.”

15. A fair summary of what is in that ground is that the applicant challenges the Tribunal’s decision on the following grounds: firstly, the weight that the Tribunal gave to the applicant’s claims; secondly, that a specialist female member should have heard the case; and, thirdly, that there was a general error.  This interpretation of the ground is confirmed by the applicant’s affidavit filed on 9 May 2014.

16. Dealing firstly with the weight issue, the applicant alleges:

    “Tribunal member failed to put weight on the [the fact that] I am a victim of rape and kidnapping.  I clearly stated that it was from authorities and they did not register any complaint.”

    This ground, in my view, must fail.  It is well-established that the weight to be given to material considered by the Tribunal is for the decision-maker to resolve.  An authority for that proposition is the case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42.

17. I turn to the second of the issues that is raised by the applicant’s grounds namely, that the member who dealt with the matter should have been a specialist decision-maker.  The applicant says in her grounds:

    “In formed tribunal that I cannot attend hearing as I am afraid and feel down to talk about my rape to unknown people.  Tribunal should have some provision for women who are victim of sexual abuse.  RRT did not understand the sensitivity of my case.”

    The difficulty in this challenge is that, pursuant to s.429, the hearing is always held in private. It is not a hearing that is open to the public to attend. Further, the Tribunal member that decided the matter was female. The applicant could have raised her concerns with the Tribunal member had she wanted to have conditions that were more comfortable. She failed to do so. She took no steps to ensure that the Tribunal hearing was a hearing at which she would feel as comfortable as possible.

18. Finally, I turn to the issue of general error.  Although the applicant alleges that the Tribunal erred, she has not particularised the error.  Without more this ground should be rejected. 

19. Bearing in mind that the applicant does not have legal representation, I have read the green book that has been provided and I have read the Tribunal’s reasons.  I have satisfied myself that there is no jurisdictional error that is apparent.  I consider the only appropriate course is to dismiss the application.

20. I propose to now deal with the question of the matter being out of time. The applicant commenced this proceeding on 9 May 2014, some 10 months after the Tribunal decision. That is, of course, substantially longer than the 35 days after the migration decision that is required by s.477(1) of the Act. The applicant seeks an extension of time, primarily on the ground that she was unaware that she could seek judicial review by the Federal Circuit Court. She also refers to her decision to pursue Ministerial intervention under s.417 of the Act.

21. Counsel for the first respondent indicates that he opposes an order being made extending the time for the lodging of the application under s.417 of the Act. The Minister opposes the orders being made under s.477(2) as, it is submitted, it is not in the interests of the administration of justice for an order extending time to be made.

22. In Re Commonwealth & Anor; Ex parte Marks[1] there was a delay of 17 months between the making of the impugned decision and application for the Constitutional writs.  McHugh J said, at 496 of the Ex parte Marks decision, this:

    “In all but very exceptional cases, (the time provisions) should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”

    [1] (2000) 177 ALR 491 at 495.

23. It has been said that an applicant’s conduct in seeking Ministerial intervention under s.417 of the Act is an indication on his or her part to abandon a course that would seek to challenge the tribunal decision in the Federal Circuit Court.[2] 

    [2]     See footnote 9 in first respondent’s outline.

24. In my view, the application for an extension of time is without merit.  The applicant does not have a reasonable excuse for her delay in filing and the length of the delay is excessive.  I also take into account the fact that the primary application is without merit.

25. The extension of time is refused.

1. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  13 October 2014