MZAHF v Minister for Immigration

[2015] FCCA 2175

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHF v MINISTER FOR IMMIGRATION  & ANOR [2015] FCCA 2175

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application to review Tribunal’s decision out of time – no adequate explanation for delay – no merit to the proposed substantive application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(aa), 477

Applicant: MZAHF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1296 of 2014

Judgment of: Judge Hartnett

Hearing date: 29 June 2015

Delivered at: Melbourne

Delivered on: 29 June 2015

REPRESENTATION

The Applicant: In Person

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the First Respondent: Mr Hutton

ORDERS

1. The Application filed on 30 June 2014 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant to pay the costs of the First Respondent fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1296 of 2014

MZAHF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an application for an extension of time in which to bring an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). The application is made pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’). The Application was filed on 30 June 2014. It is in respect of a decision of the Tribunal made on 21 May 2014. Under s.477 of the Act, the application to this Court should have been brought within 35 days of the Tribunal’s decision, subject to any extension of time this Court may grant.

2. The reason proffered for the delay by the Applicant was:-

   “Actually i haven’t received the application on 26 of may i received it later a week and half because I was out on a vacation.”[1]

   [1] Application filed by the Applicant on 30 June 2015.

3. The above is not a reasonable explanation and no further explanation was given by the Applicant in further affidavit, nor in written submissions.  I note in that regard that on 1 October 2014, Registrar Caporale made Orders by consent in this matter. These orders included order number 3, wherein the Applicant was to file and serve the following by 9 April 2015:-

   a)an amended affidavit as to the reasons for delay in filing the Application for review;

   b)an amended application with proper particulars of the grounds of the Application;

   c)a supplementary court book, if any; and

   d)written submissions. 

4. The Applicant filed none of the above documents.  The Response filed by the First Respondent on 10 July 2014 sought dismissal of the Applicant’s application and that costs follow the event.  The First Respondent opposed the extension of time.

5. The First Respondent conceded that there was no prejudice to him in the granting of any application for an extension of time within which to file the Application.  The Court thus turns to a consideration of whether the substantive application has any reasonable prospects of success.

6. The grounds set out in the Applicant’s substantive Application are unparticularised, and it is not for this Court to particularise them for the Applicant.  The grounds are as stated:-

   “(1) The tribunal member has failed to take all factors into account.  The decision made by the member does not help me to present my case appropriately.  I have not been heard properly by the member.  The member fails to take all factors into account before making a decision.”[2]

   [2] Ibid.

7. For the reasons which follow, the Court determines that the Application for an extension of time should be refused with costs awarded in favour of the First Respondent.  The substantive claim is unmeritorious. 

History

1. The application is one for judicial review of a decision of the Second Respondent dated 21 May 2014.  The Tribunal affirmed a decision of the Delegate to refuse to grant the Applicant a Protection (Class XA) visa.

2. The Applicant was born on 9 September 1987 and is now aged 27 years.  He is a national of India.  He first arrived in Australia on a student visa on 4 April 2007.  He has remained in this country since that time, which is a period of some eight years.  On 17 December 2009, the Applicant applied for a (Subclass 485) Skilled Provisional visa.  He withdrew that application in August 2010.  In September 2011, the Applicant applied for another (Subclass 485) Skilled Provisional visa.  His student visa was cancelled on 29 September 2011.  On 12 August 2012, the (Subclass 485) Skilled Provisional visa application was refused.  The Migration Review Tribunal affirmed the decision of the Delegate on 21 December 2012.

3. On 4 January 2013, the Applicant sought ministerial intervention.  The Minister for Immigration & Border Protection (‘the Minister’) determined not to intervene in his case in April 2013. 

4. On 3 May 2013, the Applicant attempted to lodge a (Subclass 866) Protection visa.  However, this was deemed invalid on 15 August 2013.  On 19 September 2013, the Applicant applied for the Protection (Class XA) visa which is currently the subject of these proceedings.

5. On 19 September 2013, the Department of Immigration and Citizenship (‘the Department’) acknowledged in writing the Applicant’s valid application for a Protection (Class XA) visa (‘the visa’) lodged at the Melbourne regional office on 19 September 2013.  Information relating to that application was set out for the Applicant by the Department.  On 5 December 2013, a Delegate of the Minister made a decision refusing the visa.  The Applicant was notified in writing on that date.  The Applicant applied to the Tribunal for review of the Delegate’s decision on 23 December 2013. 

6. On 7 April 2014, the Tribunal forwarded to the Applicant an invitation to appear before it.  The Applicant was advised that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.  The Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.  Notification of the hearing date, time and place was given to the Applicant, the hearing date being 13 May 2014. 

7. The Applicant appeared before the Tribunal on the due date to give evidence and present arguments.  At the Tribunal hearing, the Applicant presented his current and previous Indian passports, as well as his Victorian driver’s licence.  The Tribunal had before it the Certificate of Marriage of the Applicant dated 15 March 2014.  The Applicant married a Ms Luhuo, a Chinese national.  The Tribunal found that while it may be possible for the Applicant to apply for a visa on the basis that he is a foreign national spouse of a Chinese citizen, he had not applied for such a visa.  There was no evidence before the Tribunal that the Applicant had a right to enter or reside in China on the basis of his marriage alone.  On the basis of the evidence before it, the Tribunal found the Applicant does not have a right to enter and reside in a third country.

8. On 21 May 2014, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the visa.

9. The Applicant’s claims before the Tribunal are accurately summarised in the Written Submissions filed by the First Respondent on 30 April 2015.  Those claims, as set out therein, included the following:-

   “13.1. His parents are true followers of the Sikh religion and are baptised (Amritdhari) Sikhs.  He and his family are baptised and this makes them different from other Sikhs…

   13.2. His father is very influential in Punjab and Sikhs circles of the country.  He is a government employee at a thermal plant and is a member of the Shiromani Akali Dal (SAD)… 

   13.3. The applicant was “good” with his religion until January 2013, when he fell in love with a Buddhist girl.  He started going to a Buddhist temple and cut his hair… 

   13.4 One of his friends who lived with him called the applicant’s parents and told them that he had cut his hair, “put off his sword” and started smoking and consuming alcohol in Australia... 

   13.5 His parents were shocked and this was conveyed to everyone in the family and social circles…

   13.6. His father called him on 4 February 2013 and threatened him, saying that the applicant had hurt their religious sentiments, finished his political career, and that the applicant will face dire consequences if he returns... 

   13.7. His father will eliminate him through his political ties with the ruling party in Punjab.  He fears his father, brother, paternal uncle and religious leaders.  He fears he will be persecuted, physically harmed and falsely implicated in a criminal case due to religious defamation.  He also fears harm from the Satikar committee, Akal Purakh Ki Fauj, All India Sikh Students federation and local police at the behest of his father…

   13.8. His family has broken all ties with him.  He has broken his ties with the Sikh religion... 

   13.9. His love for a Buddhist Chinese girl is unacceptable to his family…

   13.10. His parents have threatened to take legal action against him…”[3]

   [3] Outline of Submissions filed by the First Respondent on 30 April 2015 at [13.1] - [13.10].

10. At the hearing of this matter, the Applicant orally submitted that the Tribunal decision was wrong because it did not find that his father was a member of Shiromani Akali Dal (‘SAD’) and/or did not take that into account.

11. The Applicant’s claims, I find, in that regard, were considered by the Tribunal.  In paragraph 21 of the Decision Record dated 21 May 2014 (‘the Decision Record’), the Tribunal said:-

    “The applicant said that his father has a political background.  I asked him to be more precise, and he said that his father works in the control centre of a thermal plant in a government job in Nuhon Colony which is made up of workers for the plant.  The colony is located near Rupnagar, Punjab.  I asked why this was a political profile and he said his father had a good image in their society, and when his father retires in 2015 or 2016 his father has said he will seek a ticket for election with SAD.  He said that his father is a member of SAD.  He said his father had not been a member for a long time, maybe 5 years.” 

    And further, at paragraph 24 of the Decision Record, the Tribunal said:-

    “I asked the applicant what community he was referring to.  He said he could not remember the name but they were a community associated with SAD.  He said because his father is a member of that community. He said the police will not protect him as they are corrupt.”

12. The Tribunal found the claims and evidence generally of the Applicant to be vague and undetailed. In respect of the particular claim concerning his father, the Tribunal said further, as set out in paragraph 35 of the Decision Record:-

    “I have given the applicant the benefit of the doubt and accept that the applicant’s father may be a community leader in their colony, and that the applicant’s father may be a member of SAD.  I do not accept that this means the applicant’s father has any more than very localised influence or political power.  I do not accept that the applicant’s father, as a member of SAD, has any sway or influence over SAD or any ‘community’ associated with SAD.  Whilst the applicant’s father may have spoken of his desire to get a ‘ticket’ to run as an SAD candidate, I find that this is just a wish of the applicant’s father, nothing more.  I do not accept that his father is very influential in Punjab and Sikh circles of the country.  He holds no political position other than as a member of a political party.  I do not accept that him being a controller at a thermal plant gives him any political influence.  I do not accept that the applicant’s father is influential outside Nuhon colony.  I do not accept that his father has ‘political tie ups’.”

13. The Tribunal’s findings were otherwise as follows:-

    “14. The Tribunal noted that at the hearing, the applicant was only able to vaguely articulate why he feared harm from his family. The Tribunal stated that the applicant’s description of what harm he feared from his father, and the basis for fearing harm from his father; or anyone else in his family, was vague and general…

    …

    16. The Tribunal accepted that applicant comes from a strict Amritdhari Sikh family.  It accepted that the applicant cut his hair and put off the paraphernalia of a baptised Sikh in January 2013, and that this is a significant step, which could lead to his family and the Amritdhari community being disappointed and upset with the applicant, and socially isolating him.  It accepted that the applicant’s family and community may be “shocked” by this however, it did not accept, on the applicant’s vague evidence that it would lead to anything further than this.  It did not accept that the applicant will face dire consequences or be ex-communicated from society and religion although he may be socially isolated and stigmatised…

    17. The Tribunal gave the applicant the benefit of the doubt and accepted that his father found out that the applicant had cut his hair and has threatened the applicant twice in January-February 2013.  The Tribunal found that this was because his father was upset, after first finding that the applicant cut his hair and had renounced his Sikh faith.  It did not accept that these threats were any more than a temporary expression of the applicant’s father’s upset and grief expressed a considerable time in the past.  The Tribunal did not accept that the applicant’s father would still intend to kill or seriously harm or injure the applicant in any way. Given the applicant’s vague and undetailed evidence, the Tribunal did not accept that the applicant’s father would harm the applicant now or in the future. It did not accept that the applicant’s father, brother, paternal uncle or religious leaders will seriously or significantly harm the applicant…

    …

    19. The Tribunal did not accept that the applicant fears harm or will be harmed by the Satikar committee, Akal Purakh Ki Fauj, the All India Sikh Students federation or local police at the behest of his father. It did not accept that the applicant’s father has a profile with any of these groups that means that they would harm applicant either on his father’s wishes, or on their own initiative…

    20. The Tribunal considered whether the applicant would be harmed because of his marriage to a Chinese Buddhist girl.  The applicant claimed that his community would not recognise his wife.  Without more, the Tribunal did not accept that this constitutes serious or significant harm.  Given the Tribunal’s findings on the country information that indicates honour killings do occur, but also evidence that in the majority of mixed caste marriages the families eventually accept the marriage, the Tribunal found that the applicant’s family would be upset, disappointed, and may even be angry that he has married a Chinese Buddhist, and may, socially isolate the applicant and his wife, however it did not accept that there is a real chance that the applicant’s family or his local community would seek to seriously harm him or his wife on return…”[4]

    [4] Outline of Submissions filed by the First Respondent on 30 April 2015 at [14] - [16]; [18] - [20].

14. The Tribunal found there was no real chance that the Applicant would suffer serious persecution for a convention reason on return to India now or in the reasonably foreseeable future.

Relocation

1. The Tribunal also considered and explored relocation with the Applicant at the hearing.  As an alternative and independent basis the Tribunal found that the Applicant and his wife could relocate to New Deli or another urban centre in India.  The Tribunal noted that country information indicated there was freedom of movement in India.  The Tribunal noted the Applicant spoke Hindi, English and Punjabi, and has lived and worked in Australia, as has his wife, and thus they had work experience and the experience of living and adapting to a different place.

2. The Tribunal then turned to consider complementary protection obligations, and found that the Applicant and his wife would not be significantly harmed on return for the reasons claimed by the Applicant, or for any other reason. Based on the earlier findings, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

Consideration

1. It is not necessary in the interest of the administration of justice to make the order extending time as sought by the Applicant because his substantive application is without merit.

2. The grounds for review are unparticularised and do not make a proper claim that the Tribunal committed jurisdictional error in its decision.

3. In the decision itself, the Tribunal cited and applied the correct law in determining whether the Applicant met the criteria for the visa in s.36(2) of the Act. The Tribunal carefully considered the Applicant’s claims and made findings open to it on the evidence before it. It is a matter for the Tribunal to determine the facts, and not for this Court.

4. There is nothing in the evidence before the Court, as contained in the Court Book filed on 17 October 2014, which goes anywhere near to establishing that the Tribunal did not afford the Applicant procedural fairness. That ground, like the broad statement that the Tribunal did not consider all the facts, is without merit. The Tribunal did those things required to be done by it pursuant to the Act, and conducted the hearing in a fair and considered manner. It invited the Applicant to a hearing, put to the Applicant those matters of concern, referred to country information and asked the Applicant about that which it was considering, and reached a conclusion open to it.

5. The Court will dismiss the application and costs will follow the event.  The quantum claimed by the First Respondent is appropriate, and the Applicant had nothing to say in respect thereto.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 14 August 2015