SZOCH v Minister for Immigration and Citizenship

[2010] FMCA 300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 300

MIGRATION – Review of decision of Refugee Review Tribunal – application pursuant to s.477 – consideration of delay – consideration of merits of substantive application – not in the interests of the administration of justice to extend time for making of application – application dismissed as not competent.

Migration Act 1958 (Cth), ss.417, 477

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex Parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1331
VUAD of 2003  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 457
Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 195
SZLIH v Minister for Immigration & Citizenship [2009] FCA 108
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; 90 FCR 287
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZATV v Minister for Immigration & Citizenship [2007] HCA 40
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC)
NAGG of 2002 v Minister for Immigration & Anor [2007] FMCA 84
SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661
Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316
SZHEH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1301

Applicant: SZOCH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 48 of 2010

Judgment of: Nicholls FM

Hearing date: 27 April 2010

Date of Last Submission: 27 April 2010

Delivered at: Sydney

Delivered on: 5 May 2010

REPRESENTATION

For the Applicant: In person

Appearing for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 13 January 2010, pursuant to s.477(2) of the Migration Act 1958 (Cth), is dismissed.

2. The substantive application made on 13 January 2010 is dismissed as not competent.

3. The applicant pay the first respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 48 of 2010

SZOCH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There are two applications before the Court. The first is an application made on 13 January 2010 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 May 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The second is an application made under s.477(2) of the Act to extend the time provided in s.477(1) by which such an application can be competently made to the Court.

Background

1. The applicant is a national of India who arrived in Australia on 26 September 2008. He applied for a protection visa on 10 November 2008 (Court Book – “CB”, CB 1 to CB 47 with annexures, and see also further documents in support at CB 48 to CB 49, CB 55 to CB 62.)

Claims to Protection

1. The applicant’s claims were initially set out in a statement submitted with his application (CB27 to CB 28). The applicant claimed to have come from a family that converted from Sikhism to Christianity, although his parents never disclosed their conversion to anyone in their area. The applicant claimed to have been “secretly” baptised in 2002. For some time his family continued to attend the Sikh temple.

2. In 2008 local Sikhs and a group of “fighters” for the Sikh religion (Sikh Jaths) came to know of his family’s attendance at a Christian Church in a nearby town. His family was threatened, and shunned by the entire village, including relatives, who put “social pressure” on them to revert to Sikhism. The threats, over time, escalated to stones being thrown at them at night by “unseen people”.

3. The applicant obtained a visa to travel to Australia for the Catholic World Youth Day and he travelled to Australia. When he returned home in July 2008 he told his “Sikh friends” in the village about the experience. This was seen by some Sikhs as an attempt to “evangelise” (proselytise) to the youth of the village.

4. He was threatened and told he would be killed unless he reverted to Sikhism. The situation worsened. Fanatics attacked his family in their home in August 2008. They were helped and saved by neighbours, who in contradiction to the applicant’s claim in the earlier part of the statement, were said to be: “… also Sikh but they have good relations with our family for many years” (CB 28.2).

5. He moved with the help of his “parish priest” to another town. The “fanatic” groups chased him there. He therefore came to Australia using the “multiple entry” facility available to him in the visitor visa he had previously been granted.

The Delegate

1. The delegate interviewed the applicant on 16 January 2009. He refused the application on 22 January 2009 (CB 63 to CB 73). The delegate had doubts about the credibility of the applicant’s account but, in any event, found that protection by the State of India would be afforded to him.

The Tribunal

1. The applicant sought review of the delegate’s decision by the Tribunal on 25 February 2009 (CB 91 to CB 94). While he had previously told the Minister’s department that he was no longer using the services of his agent (CB 88 – 5 January 2009) the applicant appears to have engaged the same agent before the Tribunal (CB 92).

2. By letter dated 6 March 2009 the applicant was invited to attend a hearing before the Tribunal scheduled for 28 April 2009 (CB 111). The applicant responded that he and his agent would attend, and nominated a witness that he wished to give evidence to the Tribunal.

3. On the evening prior to the hearing the applicant’s agent sent a submission with annexures to the Tribunal, some of which were not written in English (CB 115 to CB 121).

4. The applicant and his witness gave evidence at the hearing (CB 122). The Tribunal’s account of what occurred is set out in its decision record ([33] at CB 178 to [56] at CB 183). The applicant submitted further documents at the hearing (CB 125 to CB 166 – most of these were newspaper “cuttings”, some not in the English language).

5. In submissions to the Tribunal, and as discussed at the hearing, the applicant expanded his claim to also fear harm from Hindus in his village ([37] at CB 179).

6. Also at the hearing the Tribunal referred extensively to independent country information relevant to the issue of relocation ([40] at CB 179 to [53] at CB 182). The Tribunal reports that the applicant did not respond directly to this. But the opportunity was offered to the applicant and his adviser to respond in writing ([55] at CB 183). The applicant subsequently did so ([56]-[57] at CB 183 and CB 167 to CB 169).

7. The Tribunal accepted that the applicant was a Catholic Christian who had been targeted by Sikhs and Hindus in his village for religious reasons, and that the local authorities did not provide adequate protection for him and his family ([60] at CB 183).

8. However, the Tribunal found that the applicant could safely and reasonably relocate to another part of India where there were large Christian communities: “… where Christians can freely and safely practice their religion and express their views” ([61] at CB 184).

9. The Tribunal found that there was not a real chance that the applicant would suffer persecution for a Convention reason in relation to India as a whole. The Tribunal therefore affirmed the delegate’s decision.

Section 417 of the Act

1. Through his agent, the applicant sought on 29 June 2009 (received by the Minister’s department on 4 July 2009) the personal intervention of the Minister pursuant to s.417 of the Act (CB 74 to CB 77). The Minister decided not to intervene. The applicant was advised by letter dated 21 December 2009 (CB 87).

Applications to the Court

1. The applicant’s substantive application to the Court was made on 13 January 2010. The Tribunal’s decision was made on 21 May 2009. Section 477(1) provides for a time limit of 35 days from the date of the decision to be imposed on applications to this Court concerning such decisions. This time limit does not depend on any notice being given to the applicant. The time limit commences to run from the date of decision.

2. On what is before the Court I am satisfied that, having regard to the relevant decision (21 May 2009), and 35 days thereafter, the application to the Court was made over six and a half months out of time.

3. The applicant has applied for an order granting an extension of time pursuant to s.477(2). I am satisfied that the applicant has made an application for this order in writing to this Court, and has specified why he considers it necessary that the order be made. In short, the application satisfies the requirements of s.477(2)(a). The issue now, therefore, is whether the Court is satisfied that it is necessary in the interests of the administration of justice that an order should be made extending the time limit (s.477(2)(b)).

4. There are a number of elements relevant to this consideration:

   1)The extent of the delay and the reason for the delay.

   2)Whether there is any merit in the application.

   3)Whether there is any prejudice to the respondents.

   4)The impact on the applicant.

   5)The interests of the public at large.

   6)The exercise of the Court’s discretion.

5. The applicant’s grounds in support of the application for an extension of time are:

   “1. The Tribunal made jurisdictional error by not considering the religious social group to which the applicant belongs and thus erred in law.

   [Particulars]

   2. The Tribunal erred in law in that it misconstrued and misapplied the proper test relating to relocation by failing to consider what might reasonably be expected of the applicant with respect to his relocation within India.

   [Particulars]”

6. The grounds in the substantive application are:

   “1. The Tribunal made jurisdictional error by not considering the religious social group to which the applicant belongs and thus erred in law.

   [Particulars]

   2. The Tribunal erred in law in that it misconstrued and misapplied the proper test relating to relocation by failing to consider what might reasonably be expected of the applicant with respect to his relocation within India.

   [Particulars]”

7. The applicant also caused to be sent to the Court a letter from a clinician at “Transcultural Mental Health Centre” dated 26 January 2010 (Dr Suman Tyagi).

8. The applicant has also filed his affidavit of 1 April 2010 with annexures. The affidavit asserts the truth of the documents annexed. The documents all fall into the category of independent country information, generally about Christians in India.

Before the Court

1. Before the Court the applicant appeared in person. He was assisted by an interpreter in the Punjabi language.

2. Mr G Johnson appeared for the Minister. Written submissions were also filed on behalf of the Minister.

3. In relation to the clinician’s report, which the applicant confirmed that he caused to be sent to the Court, I explained to the applicant that this was not in the proper evidentiary form. I agree with Mr Johnson that it is inadmissible as evidence. There is no relevant evidentiary context such as to allow the proper testing of its contents, nor its provenance. For example, because it is not supported by an affidavit, and the individual who wrote it is not before the Court to give evidence. But ultimately, I accept the contents of the letter as being in the nature of submissions on behalf of the applicant, rather than evidence.  

4. The documents annexed to the applicant’s affidavit plainly go to the merits of the applicant’s claim to be a refugee. They do not go to any of the issues before the Court. I refused leave for the affidavit and the annexures to be read into evidence.

5. The applicant also submitted in relation to the period of the delay that he obtained some legal advice and was told to lodge an “appeal”, but he did not have sufficient funds to do so. He was unsure of how to go about making an application for review to the Court, he had “no knowledge of legal matters”, and his legal adviser told him to seek Ministerial intervention under s.417. I confirmed with the applicant that by the time that Ministerial intervention was sought (29 June 2009) he knew about the right to apply for judicial review. He agreed, but explained that at that time, he did not have the financial capacity to do so.

6. Before the Court, the applicant took issue with the Tribunal’s finding that he could relocate within India. He stated that it did not matter how far Kerala was from his local village in Punjab, that there would still be danger to him, that there are Sikhs and Hindus everywhere in India, that they would find him even if he relocated, and that it was difficult for him to relocate.

7. He also complained that the Tribunal had found that he had “changed” his evidence. He could not point to where this occurred, nor could I see any reference in the material before the Court to the Tribunal having made such a finding. But it may be that the applicant has confused the Tribunal’s decision with the delegate’s doubts about his credibility.

Consideration - Application for an Extension of Time

1. Turning first to the application pursuant to s.477(2).

Delay

1. The actual period of the delay is over six and a half months. The Tribunal sent notification of its decision to the applicant’s authorised recipient by letter dated 22 May 2009 (CB 170). However, s.477(1) does not depend on any notification to the applicant, whether actual or constructive, to operate.

2. However, the applicant can be taken to have known of the decision at least as at June 2009 when he wrote through his agent to the Minister seeking his intervention pursuant to s.417 (CB 74 to CB 79). The applicant was subsequently advised by letter dated 21 December 2009 that this request had been refused (CB 87). The applicant acknowledged this on 4 January 2010 (CB 88).

3. While the applicant can be said to have acted in a timely fashion after that time, the delay in coming to the Court is not satisfactorily explained by his seeking the Minister’s intervention. (See Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9], Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at [9], Re Ruddock; Ex Parte LX [2003] FCA 561 at [42], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [12], Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 at [18]-[20] (and VUAD of 2003  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186), Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [14], M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293 at [22]-[24], S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [6].)

4. (See contra: NAGG of 2002 v Minister for Immigration & Anor [2007] FMCA 84, SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661 (relying on Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316) and SZHEH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1301 at [36]-[41].)

5. But the applicant does not rely on this request to the Minister to explain the delay. The applicant puts forward three reasons to explain the delay.

6. First, the applicant claimed in his application to the Court that his legal adviser did not tell him of the option to apply to the Court and that he only came to know of this on 8 January 2010. The application is silent as to how this came about.  

7. Before the Court, however, the applicant clarified this. He said that his legal adviser advised told him in June 2009 that he could apply for judicial review. But that he did not have the required funds to do so. His adviser also told him of the avenue available under s.417. At that point, he took the option of applying for Ministerial intervention. When the Minister decided not to exercise his power under s.417 (21 December 2009 – CB 87), the applicant then sought additional legal advice.

8. The difficulty for the applicant now is that he has put no evidence before the Court to support his allegation as to what the migration agent did, or did not, tell him, or the timeliness of any such advice. Ultimately, the applicant appointed an agent to assist him before the Tribunal. Even if there were any omission by the agent in relation to judicial review, the onus still remains on the applicant to make proper enquiries or take reasonable action to ascertain whether he could have taken action beyond the Tribunal and as to any applicable time limits. (See SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 per Cowdroy J at [33].)

9. In my view, it is not a reasonable explanation for the delay that the applicant claimed to have insufficient funds to cause an application to be put before the Court. The applicant was not alone or friendless in Australia. He clearly had other people to whom he could turn for assistance, or at least point him in the right direction to make proper and relevant enquiries. One such person at his church in Australia was prepared to write a letter of support to the Tribunal. (See letter dated 18 May 2009 at CB 169.) Before the Court the applicant stated that the application to the Court had ultimately been drafted by a person called “Babu”, who he said was not a lawyer, but was a person in the “community”.

10. The second reason for the delay put forward by the applicant, and this may go some way to explain his inaction in relation to the first reason, was that he was “severely depressed and stressed” at the relevant time, and his capacity to “function normally was greatly affected”.

11. In support the applicant has caused a copy of a mental health clinician report to be sent to the Court. As noted above, I decided to treat this report by way of submission, rather than evidence.

12. But in any event, whatever way it is treated, I agree with the Minister’s submissions that this report does not provide support for the proposition that the applicant was so affected at the material time that he could not function to inform himself as to his review rights, and take appropriate action.

1. The report shows that the applicant was referred for a mental health assessment on 3 December 2009. This was well after the Tribunal’s decision. Second, the referral was made by a case manager at the Asylum Seeker Centre who reported that the applicant was feeling depressed and isolated. There is no evidence before the Court that the case manager has any relevant medical expertise. Nor whether the referral was based on what the applicant said, was a lay assessment, or indeed based on any other factor.

2. Far more importantly, however, there is nothing in the clinician’s assessment to support the claim that the applicant was so mentally incapacitated that he could not take any action to press any application to the Court at the material time. His depression is described as “moderate”, his anxiety as “mild”. The clinician provided counselling. No pharmacological treatment was recommended. Nor does the report make any finding to relate what was presented at the time of the drafting of the report to any significant time prior to 13 January 2010. Noting that the applicant was assessed by the clinician on the day after he made his application to the Court.

3. The third set of reasons advanced is that the applicant claims to have “a good case on both law and merits”. This does not explain the delay. Rather, they are reasons as to why the Court should otherwise grant the extension of time.

4. In any event, the latter seeks impermissible merits review and provides no basis for any extension of time. The former is discussed below.

5. The applicant’s submissions before the Court were inconsistent with what was written in his application as to the time when he became aware of his right to seek judicial review. The application (drafted by someone in the “community”) states that he only became aware of this avenue on 8 January 2010. Before the Court the applicant submitted that he was told by his agent at an earlier time that he could make such an application, but had insufficient funds to do so. This submission is consistent with the applicant seeking Ministerial intervention in June 2009.

6. None of this was put before the Court in any evidentiary context. But I accept the applicant’s explanation given by way of submission that he knew of the right to pursue judicial review, but essentially for financial reasons, chose the s.417 avenue.

7. In all, therefore, the delay is not satisfactorily explained. Even if, as the Minister submits, some of the factors had some relevance at some material time, they do not account for the whole of the period of delay.

Merits of the Application

Ground one

1. Turning to the merits of the application, ground one asserts that the Tribunal failed to consider the religious social group to which the applicant belonged.

2. With reference to the particulars it appears that the applicant’s complaint is that the Tribunal failed to consider whether the applicant was a member of a particular social group. Namely, a Catholic Christian involved in propagating the Christian religion. Further, that the Tribunal did not consider this aspect of the applicant’s claim in relation to India as a whole. This was with clear reference to the Tribunal’s relocation findings. This was emphasised by the applicant before the Court where he strongly asserted that the Tribunal did not accept that he was not safe anywhere in India.

3. In his initial statement submitted with his application for a protection visa the applicant claimed to fear persecutory harm because of his Christian religion (CB 27 to CB 28). The only possible reference to any proselytising or preaching is that on return from the Catholic World Youth Day in Australia in July 2008 the applicant said:

   “I started telling stories of my experience at world youth day to my Sikh friends at village. Some Sikhs took it as I am trying to evangelise the youth.”

4. There is no evidence that the applicant expanded on, or added to, this at the interview with the delegate. (See [29] at CB 177.) The report of the interview prepared by the Tribunal after listening to the recording of the interview ([27] at CB 177) is that the applicant stated that his life was put in danger only after he returned from Australia and spoke about his experiences to young people in his village ([29] at CB 177). There is nothing in any of the documentation before the delegate to support a claim of proselytising beyond this.

5. The only account before the Court of what occurred at the Tribunal hearing is that contained in the Tribunal’s decision record ([33] at CB 178 to [56] at CB 183). Here, again, there is nothing further to the claim that when he returned from Australia and he: “spoke enthusiastically about his positive experience in … Australia,” he was “accused of influencing Hindu and Sikh children.” The reference to “Hindu” was new, but nothing further about proselytising. He claimed that they assumed he was trying to convert the children to Catholicism ([33] at CB 178).

6. The applicant repeated this as reported at [37]-[38]:

   “37. The Tribunal noted that in the applicant’s statement to the Department he stated that he feared Sikhs in his village while in his submission to the Tribunal he stated that he feared Hindus in his village. The applicant stated that there were Sikhs and Hindus in his village and he feared both groups. He stated that Sikhs and Hindus in his village wanted to harm him because he was promoting Christianity to their children.

   38. The Tribunal asked the applicant to describe what he told the children which led to the parent’s outrage. He stated that he told them that he had seen the Pope and he described in favourable terms his experiences in Australia. The Tribunal commended that from the description he provided he did not appear to have stated anything controversial. He stated that people in his village are not well educated or worldly. He stated that they have limited contact with the outside world.”

7. It is clear that at the hearing the Tribunal indicated that it may accept the applicant’s account and claim of harm in his local area but that he may reasonably and safely relocate to another part of India. This is clearly what the migration adviser understood. (See CB 67.3.)

8. In responding to the Tribunal’s opportunity to comment, there was nothing further from the applicant, or his adviser, as to anything further in relation to proselytising, nor additionally, and particularly, in the context of relocation

9. The Tribunal accepted the applicant’s claim of local harm. See [60] (at CB 183) on which the applicant relies in his application:

   “60. The Tribunal accepts the applicant’s claim that he is a Catholic and that he was targeted by Sikhs and Hindus in his village for religious reasons. The Tribunal accepts the applicant’s claim that the local authorities did not provide adequate protection for him and his family.”

10. To the extent that the applicant’s complaint is that the Tribunal failed to consider an integer of his claims in relation to his local situation, this must be rejected. The Tribunal accepted the applicant’s factual account as it applied locally without reservation.

11. The issue is, in considering what the determinative issue in the review was, that is, whether the applicant could reasonably and safely relocate to another part of India, whether the Tribunal failed to have regard to this aspect of the applicant’s claim.

12. I agree with the Minister’s submission that the applicant’s complaint now involves an embellishment on what he put before the Tribunal. In my view, it misrepresented the nature of his claim. There is nothing in the material before the Court to show that the applicant made any claim of proselytising or preaching to youth in his State. Simply, what he said was that he spoke of his positive experiences in Australia to young people in his village. There is nothing in the circumstances that he presented to show that he claimed to have done, or in fact did, anything more.

13. The Tribunal is only required to deal with claims expressly made or clearly arising from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).

14. The Tribunal understood and accepted the claim that he had spoken positively about his Australian experiences to the youth of his village, and this caused an adverse reaction. It accepted that he was targeted for religious reasons in his village by Sikhs and Hindus ([60]).

15. The Minister relies on WAEE at [47]:

    “47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

16. I agree that, at least on a fair, but even on a plain, reading the Tribunal dealt with the claim as made in considering the issue of relocation. Having accepted the applicant’s factual local account, in my view, the Tribunal’s unequivocal acceptance of it means that the aspect of his claim involving talking to young people was subsumed in its general finding about relocation. There is nothing in the Tribunal’s finding, for example, to suggest that the applicant would need to live discreetly in this regard. The Tribunal’s finding encompasses the applicant being able to continue to tell the local youth, wherever he might otherwise safely and reasonably relocate, about his positive religious and related experiences in Australia.

17. In all, the Tribunal clearly accepted that the applicant would be targeted for religious reasons. This included, on at least any fair reading, that he had spoken to the youth of his village on return from Australia and was targeted for this reason. I agree with Mr Johnson’s submissions that this view of the Tribunal’s relevant finding is strongly supported by the Tribunal’s apparent acceptance at the hearing that he had spoken to the youth ([38] at CB 179).

18. The Tribunal is required to deal with the claims as put. Not as they may otherwise occur to an applicant or to those who advise him, after the Tribunal’s decision was made.

19. Ground one does not show jurisdictional error on the part of the Tribunal.

Ground Two

1. In ground two the applicant complains that the Tribunal misapplied the proper test for relocation as to what might reasonably be expected of the applicant. The particulars appear to have two limbs. The first is that the Tribunal failed to consider relevant material. No details are provided. If this is nothing more than the matter raised in ground one, then it would not succeed for the reasons set out above. The Tribunal understood the extent of the applicant’s claims, accepted them as they applied locally, but found that even with those claims, the applicant would be able to reasonably and safely relocate to another part of India.

2. The applicant’s complaint that he could not do so, on its own, challenges factual findings as made by the Tribunal, which were open to it on what was before it. The applicant’s reliance in his application to the Court on what was said in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 in this regard does not assist him in the circumstances of his case. As was said in that part quoted by the applicant: “What is reasonable” in terms of relocation: “… must depend on the particular circumstances of the applicant” (at [24]). On any plain reading of the material before the Court, the applicant could not be said to have made any claim to have been a preacher or proselytiser such as to cause the Tribunal to consider the existence of any such particular social group or the applicant’s membership of it. Nor was it obliged to consider the relocation of the applicant as a member of any such group. This was not part of the circumstances of the application as presented.

3. The Tribunal ultimately found at [61]:

   “61 However, the Tribunal does not accept the applicant’s claim that Christians are commonly targeted throughout India or that they are denied protection by the State. It has formed the view that there are large Christian communities in India where Christians can freely and safely practice their religion and express their view. The Tribunal is satisfied by information from external sources that in those communities the authorities actively seek to protect Christians during periods of civil unrest. The Tribunal is satisfied that the applicant can safely and freely practice his religion in one of those Christian communities and it finds that it is reasonable for the applicant to relocate within India to avoid the harm he anticipates in his village in Punjab.”

4. The words: “… express their view …” deal accurately with the applicant’s claim of what he had done in the past and presumably wished to continue to do if he were to return to India. The Tribunal dealt with what was put to it.

5. The second limb was whether the Tribunal dealt with all of the relevant material before it. This is properly understood as a complaint that the Tribunal did not deal with all the objections or difficulties associated with relocation.

6. Such a complaint does not succeed. The Tribunal questioned the applicant at length about relocation. It put relevant country information to him and his adviser. It asked questions about his personal circumstances ([54]). The reasonableness of relocation was specifically addressed in its analysis. It specifically looked at the notion of reasonableness ([65]) and was satisfied that it was reasonable for the applicant to relocate ([66]). The Tribunal considered the applicant’s objections to relocation ([67]-[68]).

7. I cannot see error on the Tribunal’s approach or its decision in this regard. The Tribunal acted consistently with relevant authorities (SZATV v Minister for Immigration & Citizenship [2007] HCA 40, Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265, and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46). Just because it found that the applicant’s fear was genuine locally does not mean that it could ignore the requirement that the fear must relate to the whole of the country.

8. The applicant’s affidavit of 1 April 2010 annexes various documents either downloaded from the Internet or newspaper “cuttings”. None are about the applicant personally. All appear to be generally about the situation of Christians in India. The applicant made no contrary submission about those documents not in the English language.

9. I did not admit the affidavit into evidence as the annexures could only properly be seen to challenge the Tribunal’s factual findings. They did not go to the issue of showing jurisdictional error on the part of the Tribunal. In any event, most appear to post date the Tribunal’s decision. 

10. This attempt by the applicant to put these documents before the Court, however, illustrates the applicant’s central complaint before the Court. That is, that the Tribunal should have had proper regard to independent country information which would have shown that it was not safe for him as a Christian who expressed his Christian views and experiences to safely relocate to another part of India.

11. Such a complaint cannot succeed in light of the Tribunal’s decision record. The Tribunal’s unchallenged account of the hearing (no transcript has been put before the Court) shows that the Tribunal extensively discussed relevant country information in the context of relocation with the applicant ([39] at CB 179 to [52] at CB 182).

12. The Tribunal told the applicant that this extensive information did not support his claim that Christians are targeted or denied state protection throughout India ([53] at CB 182). The applicant submitted documents in response ([56] at CB 183). The adviser made subsequent written submissions ([57] at CB 183).

13. Ultimately, the Tribunal relied on country information which showed that Christians would be safe in other parts of India and that adequate state protection would be available to the applicant ([67] at CB 184 to [68] at CB 185). These findings were open to the Tribunal. Noting, of course, that the weight to be accorded to independent country information is for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81]-[84]).

14. Ground two does not succeed.

Other Elements

1. As conceded by Mr Johnson at hearing, the Minister would not be unduly prejudiced in allowing the application for an extension of time. The impact on the applicant may be significant if he were to return to India. However, this must be balanced against the interests of the Australian public at large. While it plainly would not be in Australia’s interests to refoule a refugee, the applicant has been determined not to be a refugee.

2. Having regard to the delay, and the unsatisfactory explanation for it, but most importantly, the lack of merit in the substantive application, I consider that it would not be in the interests of the administration of justice to exercise the Court’s discretion by allowing the extension of time sought by the applicant. To do so would only remove this matter to another hearing, in circumstances where the applicant has already had a reasonable opportunity to show jurisdictional error on the part of the Tribunal, and has been unable to do so.

Conclusion

1. In all, therefore, having regard to the matters above, I will not exercise the Court’s discretion in the applicant’s favour to extend the time for the making of the application. The application pursuant to s.477(2) of the Act is dismissed. The substantive application is dismissed as not competent pursuant to s.477(1) of the Act.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  5 May 2010