Ezr21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 684

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EZR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 684

File number(s):

SYG 2420 of 2021

Judgment of:

JUDGE LAING

Date of judgment:

23 August 2022

Catchwords:

MIGRATION – application to extend time for applying for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a Protection (Class XA) (subclass 866) visa – whether the extension of time ought to be granted – whether grounds available to the applicant are reasonably arguable – Court unable to remake the factual findings of the Tribunal – application dismissed.

Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36, 476A, 477

Cases cited:

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of hearing:

20 July 2022

Counsel for the Applicant:

The applicant appeared via video link

Solicitor for the First Applicant Respondent:

Ms A Wong, of Mills Oakley, appeared via video link

Solicitor for the Second Applicant Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 2420 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EZR21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	23 AUGUST 2022

THE COURT ORDERS THAT:

1.The application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) be dismissed.

2.The applicant pay the first respondent’s costs, fixed in the amount of $3,930.

THE COURT NOTES THAT:

(a)These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

1. Before the Court is an application filed on 31 December 2021 (Application), seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 October 2021. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of India who arrived in Australia on a visitor visa on 11 June 2019. He returned to India on 7 September 2019 before returning to Australia on 29 September 2019.

3. On 19 November 2019, an application for a protection visa was lodged by the applicant’s wife including the applicant as a dependant (First Application). The applicant did not make any claims for protection in that application.

4. In June 2020, the applicant was arrested and charged in connection with domestic violence.  An apprehended domestic violence order (AVO) was issued in relation to his wife and child. The applicant was released on bail in July 2020. On 12 November 2020, Newcastle Local Court imposed a Community Corrections Order for 16 months.

5. On 7 December 2020, a letter was sent to the applicant informing him there was information before the Department indicating that he may not meet the family unit criteria for a protection visa. This letter was returned undelivered.

6. The applicant was arrested again on 27 January 2021, following an AVO breach.

7. On 15 February 2021, the applicant attended an interview with the Department during which he claimed to still be a member of his wife’s family unit. The applicant was invited to comment further on this issue and provide additional evidence of his relationship or raise his own claims for protection in a separate application if he wished to do so.

8. On 22 March 2021, the applicant was sentenced to seven months’ imprisonment.

9. On 30 April 2021, the applicant submitted a protection visa application making his own claims for protection. This was acknowledged as valid by the Department. The Delegate refused the application on 7 July 2021. The applicant applied to the Tribunal for review of the decision on 22 July 2021.

10. The applicant was released from prison on 24 August 2021, following which he was taken into immigration detention. The applicant had not lived with his wife since June 2020.

11. The First Application was refused in respect of the applicant on 21 September 2021 on the basis that the applicant was no longer a member of his wife’s family unit and had made no independent claims for protection for the purposes of that application. The applicant applied for review of that decision on 22 September 2021.

12. On 28 October 2021, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.

    THE TRIBUNAL’S DECISION

13. The Tribunal summarised the claims made by the applicant as follows (at [15]):

    15.The applicant claims that he would be at risk of serious harm from members of the Sikh community if he returns to India because he is of Hindu faith and has a past association with Hindu groups and because he married a Sikh woman. He also claims that he is at risk of harm because his wife was targeted by a number of people as a result of her work for the State Bank of India in Jalandhar. In his initial application he also referred to problems associated with the coronavirus pandemic.

14. In considering the applicant’s claims that he would be at risk of harm on the basis of his Hindu religion and involvement with Hindu groups, the Tribunal identified the following credibility concerns with the applicant’s claims:

    (b)There were inconsistencies and vagueness in the applicant’s evidence about the nature and extent of his involvement with Hindu political groups and the problems he claimed to face as a consequence. The Tribunal found the inability of the applicant to provide a reasonably consistent and coherent account of those matters to be “a strong indication that these claims are untrue” (at [34]);

    (c)There was no evidence to suggest that Hindus were at risk of harm from Sikh separatists or Sikhs because of their religion or involvement with Hindu groups or election campaigns, noting that violent pro-Khalistan groups were largely eliminated in Punjab by the mid-1990s (at [35]);

    (d)In the First Application, neither the applicant nor his wife made any claims about problems experienced due to the applicant’s involvement in pro-Hindu political groups (at [36]).

15. In result, the Tribunal did not accept that the applicant belonged to any Hindu political groups prior to 2012 or that he was threatened or harmed by Sikh separatists or other Sikhs as a result of his involvement with such groups or because of his Hindu religion. The Tribunal formed the view that the applicant “manufactured these claims to support his application for protection” (at [37]). The Tribunal therefore did not accept that there was a real chance the applicant would face serious or significant harm in India due to his real or perceived involvement in Hindu groups (at [38]).

16. The Tribunal accepted that the applicant was a follower of the Hindu faith from Jalandhar in Punjab. It accepted that Sikhs were in the majority in Punjab, although Hindus appeared to be in the majority in Jalandhar. Whilst country information indicated some tensions between Sikhs and Hindus in the province, it did not support the applicant facing a real chance of serious or significant harm there due to his Hindu faith (at [39]).

17. The Tribunal considered the applicant’s submissions regarding protests in India by farmers, during which some Sikhs may have sought to raise separatist issues. However, in the absence of evidence to suggest that Hindus had been threatened or attacked during those protests, the Tribunal was also not satisfied that that the applicant would face a real chance of serious or significant harm because of the re-emergence of Sikh separatist or extremist groups or for any reason linked to the protests (at [40]).

18. The Tribunal accepted that the applicant was Hindu and his wife Sikh. However, it did not accept that they were threatened or harmed by his wife’s family, members of the Sikh community or anyone else because of the marriage or because it was wrongly believed that the applicant’s wife had converted to Hinduism. The Tribunal did not accept that the applicant faced a real chance of serious or significant harm in India for any reason associated with his marriage to a Sikh woman. In reaching this conclusion, the Tribunal identified a number of credibility concerns (at [62] – [70]):

    (a)The claims were not mentioned in the First Application;

    (b)The applicant’s claim that information in relation to his marriage was not included in the First Application because he and his wife were facing difficulties and the representative advised them to omit this information was considered to be implausible;

    (c)Inconsistencies between the applicant’s account of his movements following the claimed 1 January 2019 attack given to the Delegate and at the Tribunal hearing;

    (d)It appeared his wife had continued to work at her job (which was stated in the First Application) and could have easily been located by her family or others in the Sikh community. This did not seem consistent with the claim that these people were actively looking for them with a view to harm them;

    (e)The country information regarding marriages between Sikhs and Hindus in Punjab did not indicate that a marriage between a Sikh and a Hindu was likely to be viewed as so unacceptable that members of the community would seek to harm the couple;

    (f)That fraudulent documents such as the medical certificate provided to corroborate the claims could be easily obtained or produced, and that, even if it was genuine, it only referred to the fact and not the cause of the applicant’s claimed injuries; and

    (g)That the evidence given by the applicant’s wife did not offer any plausible explanation for the failure to mention the claims in her own application, and while she corroborated the applicant’s claims, her evidence could not be regarded as that of “a disinterested observer” (at [68]).

19. The Tribunal also did not accept that the applicant’s wife’s employment at the bank where she worked had resulted in the family being threatened or harmed due to her refusal to issue fraudulent loans. Whilst the claim was raised in the First Application, it was not raised by the applicant in his subsequent application before his interview with the Delegate. The Tribunal found the applicant’s evidence in this regard to be vague and unconvincing. Even if the Tribunal had accepted the claim at face value, it would not have accepted that the applicant’s wife was of continuing interest to the people who had sought to pressure her years after she had left the bank. The Tribunal was not satisfied that the applicant would face a real chance of serious or significant harm due to issues associated with his wife’s employment at the bank (at [71]-[80]).

20. The Tribunal was not satisfied that the applicant would face a real chance of serious or significant harm in India for any reason associated with the COVID-19 pandemic. Whilst the pandemic had undoubtedly had a significant impact on India, this was noted to be a medical emergency affecting the general population. The Tribunal observed that the applicant would be returning as a fully vaccinated person which should provide him with significant protection. The Tribunal considered that no evidence or submissions had been provided suggesting that the applicant would face a real chance of the relevant harm for any reason associated with the spread of the virus if he returned to India (at [81]-[83]).

21. On the basis of the above findings, the Tribunal was not satisfied that there was a real chance that the applicant would face serious or significant harm on return to India. As a consequence, the Tribunal found the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The Tribunal considered that there was “no suggestion” that the applicant met s 36(2) of the Act on the basis of being a member of the same family unit of a person who met the primary criteria. The Tribunal accordingly affirmed the Delegate’s decision (at [84]-[89]).

    EXTENSION OF TIME APPLICATION

    Relevant principles

22. The principles regarding an application under s 477(2) of the Act were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15).

23. The provision requires the Court “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (Jagot and Halley JJ). Whilst the matters to which regard may be had are not expressly confined by the Act, matters that are usually relevant include the following:

    (a)the extent of the delay and the explanation for it;

    (b)any prejudice to the respondent;

    (c)the impact on the applicant if the time is not extended;

    (d)the interests of the public at large; and

    (e)the merits of the substantive application (see BTI15 at [25]-[26] per Logan J).

    Delay and explanation

24. Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. As the Tribunal’s decision was dated 28 October 2021, the application needed to be filed no later than 2 December 2021 in order to be filed within time. The application to this Court was filed on 31 December 2021, 29 days later.

25. The explanation given by the applicant for this is provided in his application form under “Grounds of application for extension of time” (reproduced verbatim):

    Legal representative (migration agent) filled in Incomplete application few times and it caused delay to fill in complete application in time.

26. In an affidavit submitted with his application, the applicant further stated (reproduced verbatim):

    Legal representative (migration agent) was acting for me and filled in Incomplete application numerous time that lead to a significant time loss in order to file incomplete application in time.

27. At the hearing, I raised with the applicant that his evidence in this regard was limited in detail. It did not, for example, identify the person said to have prepared the defective drafts. I also noted that the application form indicated that it had been prepared by him and that a migration agent would not have been qualified to assist him unless they were also legally qualified.

28. In response, the applicant stated that a lawyer had assisted him. He did not identify the lawyer. Limited detail was provided by way of additional submission, with the applicant stating that his “lawyer” had tried to prepare the application “3 or 4 times” before the applicant prepared the version that was filed as best he could. The applicant explained this was difficult for him because his English was poor, he was stressed and he had problems in his life at the time.

29. I again raised with the applicant that he hadn’t said who the lawyer was or provided detailed evidence to allow the Court to assess his explanation. In response, the applicant submitted that there were legal errors in the Tribunal’s decision and that his life was in danger in India.

30. Given the limited information before me, I would not be satisfied that the applicant had demonstrated a reasonable explanation for the delay even if the matters that he submitted during the hearing were in evidence before the Court.

31. The delay is not insubstantial, although it is certainly not as long as that attending some applications that have been filed within this Court.

    Prejudice, the public interest and impact upon the applicant

32. I do not place significant weight upon the issue of prejudice in this case in the absence of any specific prejudice (other than costs) being identified by the Minister.

33. There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below.  It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].

34. As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.

    Merits of proposed grounds

35. All that is stated under the heading “Grounds of application” is the following:

    1.The Tribunal engaged in Jurisdictional error by denying the applicant procedural fairness.

    2.The Tribunal engaged in Jurisdictional error by making a significant or substantial finding in the absence of evidence and/or filling to take into account relevant consideration.

36. The pleaded grounds do not specify how the Tribunal is contended to have denied the applicant procedural fairness. Nor do they explain what finding the Tribunal is said to have made in the absence of evidence and/or failing to take into account what relevant consideration.

37. The matters raised by the applicant at the hearing in support of the grounds were directed to the merits rather than the lawfulness of the Tribunal’s decision.

38. The applicant stated that his life was in danger from his wife’s family, not from Hindus generally in India. However, the Tribunal considered the applicant’s claims to face danger from his wife’s family at [41]-[70] of its decision. The Tribunal rejected the factual basis of the claim. In this regard, the Tribunal was concerned that matters relied upon by the applicant had not been referred to in the First Application (at [54]). This was logically probative of the credibility of the claim.

39. The applicant also suggested that his wife had subsequently been granted a visa and that he was not separated from his family. However, the decision regarding his wife’s protection visa application is not before this Court. Whilst the applicant may disagree with his non-inclusion within the family unit for the purposes of that decision, that is not the decision under review.  The Tribunal’s decision record (at [14]) indicates that the decision regarding the First Application, insofar as it concerned the applicant, was the subject of separate review proceedings before the Tribunal.

40. Whilst the applicant suggested that the Tribunal did not look at his case properly, he did not explain how this was said to have occurred beyond disagreement with the Tribunal’s reasoning.

41. As I explained at the hearing, this Court does not have the power simply to remake the Tribunal’s factual findings nor its conclusion as to whether the applicant is entitled to protection. What this Court can do is examine the procedure and decision of the Tribunal with a view towards determining whether it was affected by any material legal error.

1. No reasonably arguable error in this regard was identified by the applicant at hearing. Nor is any such error apparent on my own review of the materials.

   CONCLUSION

2. Taking into account the above considerations, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended in this matter. I am therefore obliged to dismiss the application before the Court.

3. If successful, the Minister sought costs fixed in the scale amount of $3,930. I accept that this is an appropriate amount.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       23 August 2022