DRA16 v Minister for Immigration

[2018] FCCA 3824

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRA16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3824

Catchwords:
MIGRATION – Application for extension of time pursuant to s.477 of the Migration Act 1958 (Cth) – delay of 20 months – whether Applicants provided acceptable explanation for delay – where grounds of review are unparticularised – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 379A, 379C, 417, 424A, 438, 477

Cases cited:

CZBF & CZBG v Minister for Immigration and Citizenship & Anor [2013] FCCA 679
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263

Vu v Minister for Immigration and Citizenship (2008) 101 ALR 211

First Applicant: DRA16

Second Applicant: DRD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2601 of 2016

Judgment of: Judge Hartnett

Hearing date: 17 December 2018

Delivered at: Melbourne

Delivered on: 21 December 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Campbell

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Applicants’ application for an extension of time pursuant to s. 477(2) of the Migration Act 1958 (Cth) is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2601 of 2016

DRA16

First Applicant

DRD16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary

1. These proceedings commenced with the Applicant filing (on 1 December 2006) an application for extension of time to make an application for judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) made on 26 February 2015. The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicants protection (Class XA) visas (‘the visas’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of application for an extension of time were not set out in the application although the application noted “Please see the attached paper”.  There was no attached paper going to the grounds of application for an extension of time.  There was however an affidavit filed by the Applicants on which they rely. It was affirmed by the First Applicant on 1 December 2016.

3. The grounds of application in respect of the substantive application were as follows:-

   “1. The decision of the Tribunal

   (a) is affected by an error of law; and

   (b) denied the me procedural fairness

   2. I am applying for assistance through Victoria Legal Aid and will wait for a decision”

4. No grounds were stated as to why the Court should make an order under s.477 of the Act. The grounds of application as set out in respect of the substantive application were not particularised and are meaningless. The second ground is not a ground of judicial review. The Applicants had a period of some two years to obtain legal representation and the First Applicant admitted to the Court at the hearing that he had not been able to obtain that representation. He wished for the matter to be adjourned to enable him to obtain some assistance. The Applicant indicated that Victoria Legal Aid had not been able to provide him with assistance and nor had Justice Connect. He indicated that the obtaining of assistance was expensive, and not something that the Applicants have been able to afford to date. There was no proper basis on which to adjourn the proceedings that had been listed before the Court for a period of two years, and nor was there any evidence before the Court that a legal practitioner was looking at the matter on behalf of the Applicants and would be immediately able to file some amended grounds of application and/or submissions and/or appear on their behalf.

5. The First Respondent seeks dismissal of the application for an order under s.477 of the Act on the basis that no adequate explanation for the delay in filing of some 20 months is provided by the Applicants; that it is not in the interest of the administration of justice to extend time; and there is no merit to the substantive application of the Applicants.

6. By order of Registrar Allaway on 24 May 2017, the Applicants were ordered to file any amended application and written submissions 28 days prior to the hearing of the application.  The Applicants filed no amended application with particulars of the grounds of application and filed no written submissions. 

7. The First Respondent filed an outline of submissions on 3 December 2018 and otherwise relied upon an affidavit of Ms Grace Louise Ness affirmed on 9 October 2018 and the evidence as contained in the Court Book which was filed in the proceedings. 

8. In his affidavit affirmed 1 December 2016, the Applicant said about his delay the following:-

   “6. My RRT Decision is dated 26 February 2015, but I was only aware of the decision at the end of March when the Department of Immigration and Border Protection (DIBP) called me to advise me that I needed to organise to depart the country. The letter was sent to my former legal representative, Des Leyden Law and Migration in the ACT but they never sent me a copy.

   7. On the same day that I spoke to DIBP about my decision, I contacted my former representatives to talk about my decision. They explained to me that I could lodge an application to the court for judicial review but it’s better for us if we apply for the Ministerial Intervention which is refused on 19 October 2016. 

   8. I did not apply to the court in this whole time because my wife was pregnant and myself and my wife was suffering from stress and depression because of the time taken with our Protection visa, and we were in financial hardship.  We were not able to access legal assistance in Wodonga given the costs involved. 

   9. On 18 June 2015, my wife gave birth to twin boys, I have been looking after my family before they were born and in the following year because my wife is in stress and in depression. 

   10. This has been a very stressful time for my family and we have sought assistance from my caseworker at Gateway Health in Wodonga about our options.  She advised me to contact the Asylum Seeker Resource Centre in Footscray to seek legal assistance.”

Background

1. The background of the Applicants is accurately set out in the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal of 26 February 2015.  This Decision Record is lengthy and considered.  The claims made by the Applicants are set out in the Decision Record and carefully considered, as are the integers of such claims. 

2. In respect of the Applicants’ backgrounds, the Tribunal noted in paragraphs 2 and 3 of the Decision Record that history as follows:-

   “2. The two applicants are Indian nationals who form a family unit, consisting of the first named applicant (the male applicant hereafter referred to as “the applicant”), who is married to the second named applicant (the female Applicant hereafter referred to as the “the second applicant” or “the wife”).  According to the forms, the applicant claimed as a primary applicant, with his wife claiming as a member of his family unit. The Tribunal was informed that their child was born in Australia on 7 June 2013.[1]

   3. The applicants applied to the Department of Immigration for the visas on 29 October 2010 and the delegate refused to grant the visas on 4 May 2011.  They applied to the Tribunal (differently constituted, hereafter referred to as “the first Tribunal”) for a review of the decisions, and the first Tribunal affirmed the decisions not to grant the applicants protection visas on 21 March 2012.  The applicants appealed this decision, and on 28 June 2013 the Federal Circuit Court ordered that this matter be reconsidered.  The first Tribunal’s decision was set aside and the matter was remitted to the Tribunal (hereafter referred to as “the Tribunal” or “the current Tribunal”).  The applicants were represented by their registered migration agent in relation to the first review.  They were represented by a different agent before the current Tribunal.”

   [1] The Tribunal noted it had not been provided with a birth certificate for the child; the agent said it had been submitted to the Department, and he did not have a copy with him.  This child was not born at the time the Department refused their protection visa applications:  thus, as discussed at hearing, the child could not be, and is not, an applicant in the application for review of the delegate’s decision.  It was not suggested that the child was included in the application for review.

3. The Tribunal thereafter set out in paragraphs 8 to 22 of the Decision Record the Applicants history prior to their applying for the visas. That history was as sourced from the Applicants’ forms, passport pages and/or departmental records (put to the Applicants pursuant to s.424A of the Act).

4. The First Applicant is a Muslim who was born in Mumbai, India.  He speaks, reads and writes in Urdu and English.  The First Applicant studied in India before studying medicine in the Ukraine between September 2001 and June/July 2007. 

5. The Second Applicant was born in Chandigargh, into a Sikh family. She travelled to Australia as a student on 13 April 2008.  The First Applicant came to Australia on a student visa on 12 January 2009.  He was happy to come to Australia as he and the Second Applicant had known each other for about three years; their relationship was a secret from his family. 

6. The Applicants married in Sydney on 19 April 2009. 

7. On 29 April 2009, the First Applicant applied to be a dependent on his wife’s student visa.  This application was granted on 9 May 2009. 

8. On 19 May 2010, the Applicants told the Department of Immigration and Border Protection (‘the Department’) that it might be quite hard to meet the financial requirements for the student visa.

9. On 14 July 2010, an application for a further student visa lodged by the Second Applicant (with the First Applicant as a dependent) was refused by the Department because the Applicants did not show sufficient available funds for the student visa to be granted. 

10. On 29 July 2010, the Applicants lodged an application for merits review with the then Migration Review Tribunal.

11. On 9 September 2010, the Applicants’ bridging visas were cancelled due to the Second Applicant’s breach of condition (no work), because she was found working.

12. The Applicants made a number of applications for unlimited work rights (including on 29 September 2010 and 15 November 2010). 

13. The Applicants next applied for the protection visas and on 16 November 2010.  The Applicants claimed in their protection visa applications that:-

    a)they had to disclose their relationship to their parents who found out through a common friend;

    b)the First Applicant admitted the truth to his parents;

    c)since the First Applicant’s parents have found that he has married a non-Muslim girl they have disowned him and threatened to kill him;

    d)the First Applicant also received death threats from his wife’s family because she married a Muslim boy;

    e)the First Applicant fears his family most because his father is a member of Noor-E-Islam (hereafter referred to as ‘the organisation’) in Mumbai which was founded by the First Applicant’s great grandfather. The organisation is proactive in promoting and teaching Muslim beliefs and lifestyle;

    f)the First Applicant is also concerned because his brother has a close relationship with a Mumbai underworld “don”;

    g)the First Applicant’s “cousin/brother” is the manager at Mumbai Airport so he will know when the First Applicant lands back in India.  He fears that this information would be conveyed to his family who intend to kill him;

    h)the First  Applicant’s parents are furious with him because he is the youngest and most educated child and they feel deeply ashamed of him because he did not listen to their wishes and he made his own decision to marry;

    i)the First  Applicant fears his brother and father upon return;

    j)the First  Applicant is receiving threatening emails and threatening calls from his family.  Additionally, a fatwa has been issued against him;

    k)the First Applicant cannot get State protection unless he has a police officer assigned to him daily for the rest of his life, but even then the police officer will not be able to stop them.

14. There was no claim made on behalf of, or in relation to any fears of, the Second Applicant being harmed in the protection visa application forms. Copies of some emails, country information and a letter were provided with the protection visa applications. 

15. The Applicants both attended an interview with the delegate on 5 April 2011 in relation to their protection visa applications and they both answered questions as put to them by the delegate. Further claims were made by the Applicants that:-

    a)they would be harmed by Indian society because of their decision to marry; 

    b)the First Applicant had been barred from Islam, anyone can kill him; 

    c)the First Applicant’s father published a notice in English in the local newspaper disassociating himself from the First Applicant. The First Applicant believes that his father posted discrediting posters in various cities near mosques and Muslim shops relating to his situation.  He believes his father is also responsible for posting a poster with his photo in various towns such as Mumbai, Bangalore and Hyderabad. These notices were placed near the mosques and in Muslim shops; and

    d)the Second Applicant’s family hate Muslims because her family are Sikhs.

16. The delegate refused the protection visa applications on 4 May 2011.

17. The Applicants applied to the Tribunal which affirmed the delegate’s decision to refuse the application.

18. The Applicants applied to the Court for judicial review of the Tribunal decision. On 28 June 2013, the Court ordered that the decision be set aside.  That proceeding was the subject of Judge Neville’s judgment in CZBF & CZBG v Minister for Immigration and Citizenship & Anor [2013] FCCA 679. The matter was remitted to the Tribunal differently constituted.

19. The Migration Review Tribunal refused the student visa application of the Second Applicant on 27 September 2011 as it was not satisfied that the Applicants had evidence of funds from an acceptable source in order to meet the Second Applicant’s course fees and the First Applicant’s prescribed living costs. 

The Tribunal

1. A certified copy of the fatwa claimed to have been issued against the First Applicant (dated 15 November 2010) was produced to the Tribunal by way of letter from the Applicants then agent dated 27 September 2011.  Additionally, at the first Tribunal hearing, further claims had been made by the Applicants.  Those claims made by the Applicants were as set out in paragraph 27 of the Decision Record of the Tribunal. 

2. The Applicants informed the Tribunal on 8 January 2014, that they had appointed a new representative.

3. The Applicants appeared before the Tribunal by way of video link on 28 May 2014 and 23 June 2014, to give evidence and present arguments at the hearing.  They both gave evidence in English and the Tribunal was satisfied that they were fluent in English and understood the proceedings. 

4. The Tribunal confirmed at the hearing, as set out in paragraph 32 of the Decision Record, that it was not bound to make any particular findings; that all matters were in issue; and that it would consider everything afresh and make its own findings.

5. The Tribunal noted that it had before it amongst other things, submissions dated 21 May 2014 and affidavits from the Applicants, as referred to set out in paragraphs 34 and 35 of the Decision Record:-

   “34. It was confirmed at the Tribunal hearing that the applicants sought to rely upon, as if provided directly to the Tribunal, those documents which included the affidavits the applicants prepared for the court. Accordingly, the Tribunal considered these documents on behalf of the applicants.  The Tribunal notes that in the applicant’s affidavit, he claimed that:-

   - Interfaith marriages are not forbidden by Indian law but they are forbidden by Islamic and Sikh law and it is not uncommon for punishment by death to occur.

   - The radical Islamic community are involved, not just his parents, and they are contactable throughout the whole of India.  His Islamic parents are financially privileged, well-connected and capable of extremism and have significant influence throughout the whole radical Islamic community of India; they have already used the resources, motivation and the means to mobilise the Islamic community to persecute himself and his wife.

   35. In the wife’s affidavit, she claimed that:

   - The first Tribunal failed to take into account her right to practice her Sikh religion openly.

   - She is in fear because she is a female under the threat of persecution by Islamic radical followers.”

6. Between the first and second hearings of the Tribunal, and on 6 June 2014, the Tribunal wrote a letter to the Applicants which invited the Applicants to comment on certain matters relating to the Applicants’ immigration history and evidence that they had previously given to the Department, to the delegate and/or at the first Tribunal hearing. This first was a s.424A of the Act letter, addressed to both Applicants and sent by both post and email to the Applicants’ authorised recipient.

7. In the response to hearing invitation it had been requested that the Tribunal take evidence from two witnesses.  Later it was said by the Applicants that these people were too scared and did not wish to give evidence. 

8. On the morning of the hearing resumption, on the second day, being 23 June 2014, the Tribunal received about 100 pages of submission.  That document was as described in paragraph 38 of the Decision Record. 

9. As set out in paragraph 39 of the Decision Record the Applicant’s submissions:-

   “…suggested that the applicants would face harm from the families as well as the wider community (Sikh and Muslim).  It was suggested that international protection would not be available to the applicant given the level of the threat; and the applicant could not relocate because his work as a doctor would require him to maintain a national and public presence in India for his livelihood. Muslims will perpetrate violence and there is an ability of non-state actors to do so with impunity.  It was also submitted that the ongoing levels of violence and hardship faced while ensuring basic economic survival in a situation of displacement (relocation) must be considered; and that the applicants would not hide their religious beliefs, or intentions of practicing their religion and that the applicant’s profession necessitating public registration must be considered or if he is required to hide in the form of ceasing to be in that profession.  It was submitted that in order to practice as a doctor the applicant was required to register with the Indian Medical Council pursuant to regulations; that the register is publicly accessible; and includes the applicant’s present address (including change of address), full name, date of birth, university of study and date of graduation: he will thus be publicly identifiable and locatable.  The registerable profession makes the applicant locatable within India provided he continued to work as a doctor; a family which is authorised an honour killing must carry it out and will travel to do so, which may include using bounty hunters and the law.”

10. The Tribunal, as set out in paragraph 40 of the Decision Record, considered “research” before it in relation to fatwas and asked questions of the Applicant about the fatwas, the posters and the declaration advertisement. The Tribunal however, did not consider that the “research” relating to the fatwas to be relevant given its findings, thereafter set out in the Decision Record, that none of the documents provided by the Applicants were genuine.

1. The Second Applicant has converted to Islam. The Applicants agent, however, submitted to the Tribunal that conversion was not necessarily accepted by the Muslim community and that it would not improve the situation with her family.

2. In paragraph 41 of the Decision Record, the Tribunal stated as to this matter:-

   “At one stage at the hearing the applicants appeared to suggest that they also had an inter-caste marriage (this had also been suggested in the submissions), however the Tribunal said that as far as it was aware, they were claiming to have an interfaith/interreligious marriage.  The applicants agreed with this, and confirmed that they do not have an inter-caste marriage; although they said that an inter-religious marriage causes similar problems to inter-caste marriages.”

3. The Applicants thereafter claimed:-

   a)the First Applicant had called his father in November 2013 when his wife converted, to tell him his wife had converted.  His father said that the marriage is not legal because she was not Muslim when they married. 

   The Tribunal noted that according to country information, the marriage is legal in India.  The First Applicant said he did not tell this to his father.

   b)the Second Applicant said she converted to Islam in October 2013.  Her husband’s family know about this, but they still reject her as a Muslim;

   c)the First Applicant said that he had taken his wife to a mosque in Canberra in Australia and they had not accepted that she was a Muslim.  She agreed. 

   The Tribunal put to the First Applicant that even if one mosque in Australia had said she could not convert to be a Muslim, which seemed unlikely, it did not mean that she could not attend other mosques (in Australia or in India). 

Tribunal findings

1. Under the heading ‘Findings and Reasons’ in the Decision Record, the Tribunal stated in paragraph 50 of the Decision Record that the Applicants were “not credible, reliable or truthful witnesses...”

2. The Tribunal then proceeded to set out in great detail the reasons for its finding that the First Applicant was not a credible, reliable or truthful witness describing his evidence as “changing, evasive, not credible and inconsistent”.[2]  The Tribunal set out those aspects of the Applicant’s evidence under various headings, being firstly, as set out in paragraph 52 of the Decision Record, the Tribunal’s concern with the First Applicant’s changing (and implausible) evidence concerning his intentions in coming to Australia, and his knowledge of what he would be studying in Australia. 

   [2] Decision Record at [51].

3. The Tribunal noted that in his protection visa application form, the First Applicant said he left India to study in Australia and that he intended to study a diploma in aged care because it would complement his degree in medicine and give him good employment opportunities in Australia.  His parents gave him the financial support for this diploma as they had done previously when he studied medicine in the Ukraine.  The submissions before the Tribunal added further information being that the First Applicant came to Australia (following the recommendation of his migration agent) to study disability care, which is a pathway to permanent residency.  However, the First Applicant changed his mind and decided to study in Australia to have his professional (medical) qualifications accepted.

4. In his evidence to the Tribunal, the First Applicant gave inconsistent evidence.  He initially said he made an application, and had obtained a visa for Australia, to study cardiology. He subsequently claimed he did not know what he was applying for, but was under the impression that he was coming to Australia to study cardiology.  He claimed to the Tribunal that he had no idea when he came to Australia that he had applied for a visa to study a diploma in aged care. Instead, he expected to arrive in Australia and start studying cardiology. It was for this reason that he did not even commence the studies for which he was enrolled in Australia.[3]

   [3] Decision Record at [55].

5. The Tribunal set out in paragraph 57 of the Decision Record that it had put to both Applicants in the s.424A letter its concerns about the First Applicant’s changing evidence. In paragraph 58 of the Decision Record, the Tribunal said as to the First Applicant’s evidence:-

   “This led to further concerns for the Tribunal. It put to the applicant that if he had studied as a doctor in the past, it did not understand how he could study aged care for one month and not understand that he was not studying cardiology. The applicant said he was trying to figure out what to do.  He then said he understood on the first day that this was not cardiology and he was “a bit surprised”.  The wife said the circumstances were different and he took a different path.”

6. The Tribunal considered that the First Applicant’s:-

   “…inconsistent and implausible evidence undermines his credibility, and indicates that his intention of coming to Australia was to work, not to study, and, as put to the applicants pursuant to s.424A of the Act, when the applicants thought that they may be prevented from staying in Australia on the basis of the wife’s student visa, they made an application for a protection visa, which was not based upon genuine fear or circumstances.”[4]

   [4] Decision Record at [59].

7. Secondly, The Tribunal was concerned about the inconsistencies in the Applicants evidence about whether the Applicants kept their relationship a secret. The husband and wife gave evidence, inconsistent with the other. This matter was also a subject of puttage to the Applicants pursuant to s.424A of the Act. The Tribunal noted to the Applicants that they had given inconsistent evidence about whether people of Indian origin of different faiths had accepted their relationship and whether they felt they ought to tell Indian people about their relationship.

8. The Tribunal considered the Applicants’ inconsistent evidence undermined their credibility and indicated that they were “prepared to make any claims to obtain a protection visa, and that they have both exaggerated the claimed feared reactions from people in India, including their families.”[5]

   [5] Decision Record at [69].

9. Thirdly, the Tribunal was concerned about the First Applicant’s changing evidence concerning the nature of his father.  The Tribunal noted that the First Applicant claimed his father to be a strict person, prepared to kill him and support a fatwa being issued against him; put up posters in different States; advertise in newspapers; and have him murdered by anyone because he married a Sikh woman against his father’s wishes.  However, as the Tribunal noted at paragraph 73 of the Decision Record “at the hearing the Applicant gave numerous examples of how he was able to do what he wanted, defying his father’s wishes with no consequences”.  The Tribunal thereafter in the Decision Record set out various examples that supported that conclusion. 

10. Fourthly, the Tribunal was concerned about the First Applicant’s inability to give evidence as to the month or even the year that he received the disturbing and threatening phone calls from both families once they knew about the marriage. 

11. Fifthly, the Tribunal was concerned about the Applicant’s evidence concerning the reasons why the Applicants lodged their protection visa applications in October 2010. The First Applicant told the Tribunal that he and his wife lodged their protection visa applications about two weeks after their families told them that they found out about the marriage, and during the same telephone call threatened him. However, according to departmental records put to the Applicant pursuant to s.424A of the Act, the Applicant told the Department that the families were aware of the marriage some time before 19 May 2010, and that they had disowned them. The Tribunal, when considering all of the matters going to this particular claim, found that the Applicant’s evidence to the Tribunal was “not truthful, which undermines the applicant’s credibility about the threats made and the fears which arose shortly before the lodgement of their protection visa application.”[6]

    [6] Decision Record at [82].

12. Sixthly, the Tribunal was concerned that the immigration and application history of the Applicants indicated that the Applicants came to Australia in order to work, not to study, and when the Applicants considered that they may be unable to stay in Australia on the basis of the wife’s student visa, the Applicants made the protection visas applications, even though they did not have a fear of returning to India.

13. The Tribunal’s concern about the First Applicant’s credibility was further heightened because he told the Tribunal he had no idea when his wife last received financial support. The Tribunal noted that the Applicants had been making continuous applications for permission to work to the Department and the Tribunal presumed the Applicants were claiming that they could not survive financially without working. In those circumstances, the Tribunal did not understand, how the First Applicant could make such an assertion to the Department if, as claimed, he did not know his wife’s financial position. The Tribunal found the First Applicant would have been aware if, and when, his wife last received funds from her parents. The Tribunal considered the First Applicant’s claim that he had no idea about funds received from his wife’s parents to be implausible and to undermine his credibility. 

14. The Tribunal had many concerns as detailed in the lengthy Decision Record, as to the numerous occasions when the First Applicant and/or the Applicants were prepared to change his and/or their evidence and provide non-credible evidence. Commencing at paragraph 99 of the Decision Record, in particular, the Tribunal set out its concerns about the Second Applicant’s credibility in respect in each and every of her claims and found her evidence “suggests that she is prepared to tell untruths to obtain a migration outcome, which undermines her credibility... the Tribunal does not accept that the wife is a witness of truth.”[7]

    [7] Decision Record at [110].

15. The Tribunal carefully considered the corroborative evidence put before it by the Applicants commencing from paragraph 112 of the Decision Record.  Those documents included a translated fatwa which is set out in paragraph 116 of the Decision Record.

16. The Tribunal noted in paragraph 117 of the Decision Record that:-

    “… country information is available indicating that documents can be fabricated.  Having regard to the credibility concerns as well is [sic] the country information, the Tribunal is not satisfied that the documents are genuine.”

17. The Tribunal set out its credibility summary in paragraph 120 of the Decision Record as follows:-

    “Considered cumulatively, the concerns the Tribunal holds about the applicants’ credibility as discussed above lead the Tribunal to conclude that the applicants are not witnesses of truth and the applicants have fabricated accounts of events and fears, as well as documents and emails, upon which they have based their protection claims, in order to obtain a migration outcome of remaining in Australia.”

18. The Tribunal did not accept that:-

    a)the Applicants’ families have sought to harm them or each other or their child; 

    b)the fatwa posters, notices, advertisements, correspondence or the threats were genuine and considered that these had been created for the purposes of the protection visa applications;

    c)the Applicants had any genuine conversations or correspondence with anyone in India in relation to such decrees;

    d)the First Applicant or his family had been involved in any Muslim organisations, nor that the Applicants face harm from that organisation or because of any family involvement in such an organisation. The Tribunal did not accept the First Applicant’s father had been involved in an honour killing;

    e)the Applicants had a subjective fear of persecution at the hands of their families;

    f)the Applicants believed that their families would harm them or cause them extreme humiliation or worse;

    g)there was a real chance or a real risk that either or both of the Applicants’ families seek to harm any of the Applicants or their child;

    h)the Applicant’s brother had a close relationship with an underworld man who had influence with the authorities; Muslim organisations; and the Sikh community nor that the First Applicant’s relative works at the airport and would know when he arrived in India;

    i)the Applicants had been rejected by Indian or Pakistani friends of different faiths in Australia either because they are married or because the wife converted;

    j)the claims that the wife’s conversion had been rejected by people at a mosque in Australia, and by friends of different faiths in Australia, on the grounds of being “non-genuine, or at all”;

    k)the Applicants had received threats or adverse comments from the Sikh community or the Muslim community whether from people in India or Australia;

    l)there was a real chance or a real risk that the wife’s conversion would be seen as non-genuine;  that she would be harmed in India for her conversion; or that the Applicants face any harm, including rejection, because the Applicants married before the wife converted to Islam;

19. The Tribunal considered extensively country information, including that from the Department of Foreign Affairs and Trade (‘DFAT’) in 2011, which specifically addressed inter-religious marriage.  The Tribunal put many aspects of that country information to the Applicants, noting that it was prepared to accept that societal attitudes toward inter-religious marriage varied throughout India.  The Tribunal noted that it was required to consider whether there was a real chance of serious harm or a real risk of significant harm and if so, whether it was reasonable for the Applicants to live somewhere else in India.  The Tribunal noted that there could be adverse attitudes and discrimination towards inter-religious marriages but that the evidence before it contained in country information indicated that it depended on where the Applicants lived, and their professional and educational background.

20. The Tribunal canvassed at great length the available country information in respect of honour killings and put to the Applicants various matters which arose on the evidence before it.  Although the Tribunal accepted that, as set out in the DFAT report, there appeared to be a lower incident of Muslim-Sikh marriages, the Tribunal did not accept the Applicants’ assertions concerning why there was a lack of credible evidence in relation to Muslim-Sikh honour killings. The Tribunal said in paragraphs 153 and 154 the following:-

    “153. The Tribunal is prepared to accept that community structures (such as khap panchatyats) may act independently of the family to enforce morals in some circumstances, with more serious consequences (murder or other harm).  However, the Tribunal notes the applicants’ claims that the applicants’ family is wealthy, powerful, and connected: the Tribunal is not satisfied that in such circumstances, members of society would intervene to harm his son, his son’s wife or his grandchild, noting that they are supported by the applicant’s family.

    154. A significant amount of country information has been provided throughout the proceedings, and has been considered by the Tribunal.  Some of the information was useful; other parts were not so helpful.  This is referred to further in Annexure B. The Tribunal accepts that there are honour killings in India; that some Indians are punished for having had relationships, and/or married, in different castes or religions. However, upon a careful consideration of the country information, together with the Tribunal’s finding that the applicants come from forward-thinking families who sought to educate their children overseas, and supported them while overseas, and who accept the marriage, as well as the adverse credibility finding, the Tribunal is not satisfied that the applicants face a real chance of serious harm, or a real risk of significant harm, in the form of physical harm or being killed or being subjected to discrimination, ostracism, or humiliation from their families.  As the Tribunal has also found that the applicants’ parents and the wife’s parents did not object to, and have supported the marriage, the Tribunal considers it unlikely that they would face discrimination, ostracisation or humiliation from members of the community on the basis of a marriage supported by these parents.  The Tribunal considers that they continue to support the marriage and their grandchild.  The Tribunal is not satisfied that the applicants faces a real chance of serious harm, or a real risk of significant harm in the form of discrimination or ostracisation or worse harm, from the families, or members of the Sikh, Muslim, or radical Islamic communities (nor that interfaith marriage is prohibited by Islamic and Sikh law in involving the death penalty)  on the basis of their marriage, nor that there is a real chance or a real risk that their child would suffer such serious or significant harm.”

21. The Tribunal went on to consider the various other claims as made by the Applicants both individually and cumulatively. On the evidence before it, it was not satisfied that the Applicants or their child faced a real chance of serious harm or a real risk of significant harm in India for any or all of the reasons claimed.

22. On 27 February 2015, the Tribunal notified the Applicants of its decision of 26 February 2015 to affirm the delegate’s decision not to grant the visas.

23. On 29 February 2016, the Applicants made a request for intervention to the Minister of Immigration and Border Protection (‘the Minister’). That request for the Minister to exercise his discretionary power pursuant to s.417 of the Act to grant them a visa on humanitarian grounds was contained in correspondence from the First Applicant of 24 February 2016 attached to correspondence to the Minister from Ms Cathy McGowan, Independent Federal Member for Indi. The First Applicant relied on compelling circumstances being:-

    a)that he and his wife had three children under the age of three.  If they return to India, the Applicants are seriously concerned for their children’s welfare.  It would be in their best interests to remain in the only home they have ever known, Australia;

    b)the Applicants are well-integrated and have many supports and connections in the community, particularly in Wodonga;  and

    c)the Applicants are able to contribute significantly to the Australian community.  The Applicants have provided volunteer services, the Applicant is an exceptional cricket player and both have professional qualifications that they hope to have recognised in Australia.  The Applicant had a medical degree and his wife a degree in accounting.

Consideration

1. The Applicants were required by s.477(1) of the Act to make their application within 35 days of the date of the Tribunal decision. The Court may make an order to extend time where an application for an extension of time has been made in writing and where the Court is satisfied that it is in the interests of the administration of justice to make the order.[8]  The Minister submits that it is not in the interests of the administration of justice to extend time.

   [8] Migration Act 1958 (Cth), s 477(2).

2. The Tribunal’s decision was made on 26 February 2015.  The Applicants’ application for judicial review should have been filed by 1 April 2015.  The application is some 20 months out of time.

3. In considering whether to exercise its discretion to extend time, the Court is concerned, in particular, with whether the Applicants have provided an acceptable explanation for the delay in filing the application, given that there is a legislative time limit and it should not be ignored, and otherwise concerned as to the merits of the substantive application.

1. The Minister submits that the Applicants’ failure to explain the delay and the lack of merit to the substantive application are factors significant to the Court’s consideration of the exercise of its discretion and factors which should see a dismissal of the application.

2. The Court finds that the Applicants have not provided an acceptable explanation for their delay in filing this application.

3. The Applicants nominated representative was notified of the decision by letter dated 27 February 2015. The notification of the decision was sent by letter to the nominated representative on 27 February 2015. Pursuant to ss.379C(4) and 379A(4) of the Act, the Applicants are deemed to have received the document seven working days after it was sent. The Tribunal did all that it was required to do legislatively in this regard. The Applicant does not dispute that his nominated representative received notification of the decision. The Applicant claims, however, that he was unaware of the decision until he was contacted by the Department, who were seeking to organise his departure from Australia. No corroborative evidence is before the Court from the Applicant’s former legal representative, Mr Des Leyden of Law and Migration.

4. The Applicant did not then in March 2016 make application to the Court for judicial review of the decision of the Tribunal.  Rather, the Applicant proceeded to seek Ministerial Intervention, that process not being completed until 19 October 2016. An application for Ministerial Intervention has been deemed as not in and of itself a sufficient explanation for delay in commencing judicial review proceedings.[9] 

   [9] Vu v Minister for Immigration and Citizenship (2008) 101 ALR 211, 29.

5. Following notification of the refusal of Ministerial Intervention on 19 October 2016, the Applicants still made no application to the Court until 1 December 2016.  In respect of the First Applicant referring to the Second Applicant being pregnant and suffering from stress and depression, and the parties themselves suffering from financial hardship, no medical evidence or other expert evidence was put before the Court to support those claims.

6. The Applicants have failed to provide an adequate explanation for the whole of the 20 month delay in making their application to the Court.

7. Turning to the merits of the case, in the absence of proper particularisation of the two grounds, it is difficult for the Court to consider these grounds.

8. The First Applicant was given an opportunity to make oral submissions to the Court.  He referred to the Applicants not having had a “fair trial” before the Tribunal; to the Tribunal having not enough knowledge about the country of India; and to the Tribunal not verifying documents, essentially making his case for him.  The First Applicant referred to a lack of consideration of the evidence by the Tribunal.  He added that he needed some legal assistance in order to obtain a fair trial.

9. The Court finds that neither of these broadly stated grounds can succeed.

10. Part 5, Division 5 of the Act is an exhaustive statement of the requirements of natural justice in relation to the matters contained therein.

11. The Tribunal was required to put to the Applicants in a way that the Tribunal considered appropriate clear particulars of any “information” that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.[10] The Tribunal complied with this provision in its correspondence to the Applicants of 6 June 2014 inviting the Applicants to comment on such “information”.

    [10]  Migration Act 1958 (Cth) s.424A(1).

12. The Applicants were properly invited to and attended a hearing before the Tribunal and did so with their representative. The hearing was adjourned.  The parties and their representative were invited to attend the resumption of the hearing on 23 June 2013 and did so.

13. The selection of country information, and weight given to it, is, as is often said, a matter for the Tribunal. The Tribunal extensively canvassed relevant country information and put matters arising therein of concern to the Tribunal or in respect of which the Tribunal required a response from the Applicants, to the Applicants.

14. The Decision Record is evidence of a very thorough and careful process being adopted by the Tribunal and ongoing and significant engagement with the Applicants during the course of two hearing days.  Considerable material was before the Tribunal. It had clearly been canvassed by the Tribunal.  There is no basis to any claim that the Applicants were not afforded procedural fairness.  There was no obligation on the Tribunal to obtain material on behalf of the Applicants or to make out their case for them.

15. In respect of the ground that the Tribunal decision contains an error of law, there is no basis to that stated ground either. The Tribunal correctly set out and applied ss.36(2)(a) and 36(2)(aa) of the Act; noted the requirement to consider the Department’s guidelines; and properly considered country information before it. The Tribunal also correctly applied the appropriate risk threshold for complementary protection.[11]  The Tribunal could not have considered each of the Applicant’s claims in more detail.  As submitted by the First Respondent, the Tribunal was not required to otherwise consider unarticulated claims or claims which did not clearly arise from the material before it. [12]

    [11] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.

    [12] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263.

16. Additionally, the First Respondent notes for the Court’s benefit that on 9 May 2011, a delegate of the Minister sought to issue a certificate to the Tribunal under s.438 of the Act. The Minister accepts that the certificate was invalid in accordance with the principles in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. The Minister accordingly relied upon an affidavit of Grace Ness affirmed on 9 October 2018 which was admitted into evidence in the hearing together with its annexures.

17. The Court is satisfied that the Applicants were aware of the existence of the certificate and the material that was purported to be subject to the certificate.  The Applicants made a request for access to written materials under a freedom of information request to the Tribunal on 19 September 2011, and sought documents held by the Tribunal and the Department.  On 22 September 2011, that request was transferred to the Department.  The Department released the documents that were purportedly subject to the certificate and the certificate itself (prior to the decision of the Tribunal) on 27 September 2011.  There is no basis on which it may be said in this regard that the Applicants were denied procedural fairness.

18. No jurisdictional error attends the decision of the Tribunal. The application, therefore, must be dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 21 December 2018