SZODM v Minister for Immigration
[2010] FMCA 297
•23 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 297 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – whether extension of time to file should be granted – whether the applicant’s explanation for delay is satisfactory and reasonable in all the circumstances – whether the grounds of the application for judicial review have reasonable prospects of success. |
| Migration Act 1958 (Cth), ss.417; 424A; 424A(1); 477 |
| SZOBF v Minister for Immigration [2010] FCMA 138 M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | SZODM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 221 of 2010 |
| Judgment of: | Emmett FM |
| Hearing dates: | 19 April 2010 & 23 April 2010 |
| Date of Last Submission: | 23 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Punjabi interpreter |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms J. Gallagher, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 221 of 2010
| SZODM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 5 February 2010, the applicant filed an application seeking judicial review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 June 2009.
The application identified the grounds upon which he relied and also made an application to this Court for an extension of time to make his application for judicial review of the Tribunal’s decision.
In circumstances where the application was not made within 35 days of the migration decision, s.477 of the Migration Act 1958 (Cth) (“the Act”) provides that the Court may extend the 35 day period if, inter alia, the Court is satisfied that it is necessary and in the interests of the administration of justice to make such an order.
The first respondent opposes time being extended to the applicant.
I accept the written submission of counsel for the first respondent that the statutory period expired on 17 July 2009. The application was filed on 5 February 2010, and it was therefore in the order of 203 days out of time. Certainly, it was well in excess of the 35 day period provided for by s.477 of the Act. The first respondent submits that the delay is significant, the explanation not sufficient and, in any event, there would be no utility in the Court making such an order.
In support of the application for an extension of time the applicant read an affidavit sworn and filed by him on 22 April 2010. Parts of the affidavit were objected to and rulings made at the time. The relevant contents of the affidavit are as follows:
“1. I am the applicant in the above matter and I am aware of the facts of the case.
2. I state that I was suffering from mental illness for a period of more than 18 months since I was brutally attacked by radical Hindus in India.
3. I state that after fleeing India and arriving at Sydney, I sought the help of Asylum Seeker Centre situated in Surry Hills Sydney for my mental trauma and illness. I approached the Asylum Seeker Centre as early as from April 2009 in order to get some assistance for my mental illness. I further state that initially the Asylum Seeker Centre expressed their inability to assist me due to lack of resources and ultimately referred me to the Transcultural Mental Health Centre. The letters issued by Transcultural Mental Health Centre is attached herewith as annexure and marked with letter “A”.
4. I state that the Doctors in Transcultural Mental Health Centre gave their first appointment in November 2009 and since then I have been treated by them. I state that after the commencement of the treatment, I am able to think more coherently. The letter issued by the Doctor who treated me is attached herewith as annexure and marked with letter “B”. I further state that once my medical condition started improving I consulted a few people as to my problems and the condition of my life.
5. I also state my professional representative did not advise me of the option to appeal to this Honourable Court in respect of jurisdictional errors and I came to know that I can approach this Honourable Court for jurisdictional errors only in the middle of January 2009.”
In evidence in chief, the applicant made an amendment to his evidence in relation to the time he approached the Asylum Seeker Centre. The applicant corrected that evidence to state that he approached the Asylum Seeker Centre “as early as 17 December 2008”. A letter dated 17 December 2008 from the Asylum Seeker Centre was annexed to his affidavit.
In cross-examination the applicant said that, following receipt by him of the Tribunal’s decision, he had two meetings with his migration agent. At one of those meetings he said that the migration agent told him there was no point in approaching the Court because he needed a lot of money to do so and he could write to the Minister.
The applicant sought to resile from that evidence, although eventually conceded that such a conversation had taken place. Ultimately, the applicant conceded that his migration agent did talk about the prospect of appealing to the Court and said that he could go to Court. However, the applicant said that, because he had problems with English and money, he did not know what to do.
The applicant’s evidence was that the migration agent told him that he also had the option of applying to the Minister, pursuant to s.417 of the Act, and told the applicant to come back a few days later and he would have a draft letter for the applicant to that effect.
In cross-examination, the applicant stated that he returned to the office of the migration agent a few days later with a Punjabi interpreter. He stated he was shown a copy of the letter and that he agreed that the letter be sent.
A copy of that letter was shown to the applicant in cross-examination by counsel for the first respondent. In particular, paragraph 2 of the letter written by the applicant’s migration agent to the Department of Immigration and Citizenship (“the Department”), dated 29 June 2009, was read to the applicant. That paragraph is as follows:
“We attach the letter that we wrote to the Tribunal after the hearing which we address several shortcomings on the way the hearing was conducted. Unfortunately the applicant simply doesn’t have the resources to take the matter to the Federal Magistrates Court despite advice that he should have done so. His only option is therefore to ministerial intervention under Section 417 of Act.” (Emphasis added).
The applicant agreed that he understood what was written in the letter, including the passage cited above. The applicant had also agreed that the letter from the Department informed him of his appeal rights and that that letter was read to him by his flatmate at around that time.
In the circumstances, I am satisfied that the applicant was aware that he had the option either, to seek judicial review of the Tribunal’s decision in the Federal Magistrates Court, or to seek ministerial intervention pursuant to s.417. I am also satisfied he had this knowledge shortly after he received the notification from the Tribunal of its decision record, as a result of the meeting with his migration agent.
In the circumstances, I do not accept the applicant’s written statement that he was not advised of the option to appeal to this Court. I find that, when informed, the applicant elected to pursue a ministerial intervention and that it was not until he was notified that his application was unsuccessful, on 21 December 2009, that he decided to seek judicial review of the Tribunal’s decision by filing his application in this Court on 5 February 2010.
Attached to the applicant’s affidavit is a report, dated 14 January 2010, from a trans-cultural mental health clinician in respect of the applicant. The report notes that the applicant told the clinician that he was very shocked when his visa application was rejected by the Tribunal in June 2009, and that he had been noticing a deterioration in his symptoms since that time. The symptoms recorded by the clinician, as told to him by the applicant, were that the applicant was:
“…experiencing nightmares and wakes up in cold sweat and with increased anxious state. [The applicant] also reported of ruminating excessively about his situation when alone at home that increases his anxiety. He reported an increased deterioration in his anxious and depressed mood and ability to concentrate.”
The report also notes that the applicant told the clinician that he had submitted a visa application to the Minister. It stated he had “…submitted his visa application to the minister’s office after it was rejected by RRT.” I understand that reference to be to the application made to the Minister pursuant to s.417 by the applicant’s migration agent, dated 29 June 2009.
The report goes on to note that the applicant told the clinician “…that his protection visa application was recently rejected from the Minister’s office”. Again, I understand that statement to refer to the letter from the Minister, dated 21 December 2009, refusing the applicant’s request that the Minister intervene pursuant to s.417 of the Act.
The clinician notes that the applicant also told him that he was hopeful that “…his visa application in the Federal Court would be approved as he has sought professional legal help and advice this time.” I understand that reference to be the applicant’s application for judicial review to this Court, filed on 5 February 2010. However, I do note that the application filed in this Court postdates the date of this report. I also note that the clinician did not ultimately recommend any pharmacological treatment for the applicant and
“…assisted him with an overall wellbeing plan for the recovery from the range of symptoms he has presented during this episode of care. The care plan included controlled breathing and progressive muscle relaxation exercise. I also provided him with an audio c.d. to practice the progressive muscle relaxation exercise.”
The clinician also noted that the applicant had responded well to counselling during the “episode of care” however, noted that recovery process and clinical outcome were limited due to “ongoing psychosocial stresses.” The clinician noted that he planned to continue “supportive counselling” with the applicant.
I accept the submission of counsel for the first respondent that there is nothing in that report to suggest that the applicant was incapable of attending to matters in his daily life. Neither does the report suggest that the applicant was unable to make rational decisions about the options that he had following receipt of the Tribunal’s decision record, particularly in relation to the applicant’s decision to seek ministerial intervention pursuant to s.417 of the Act.
I accept that the length of delay of some six and a half months is significant. I find that the applicant’s explanation for that delay to be unreasonable and insufficient in all the circumstances to satisfactorily explain the delay.
The applicant was aware of the options that he had and chose a particular course, which he was perfectly entitled to do. That course was to seek ministerial intervention pursuant to s.417 of the Act. However, as I have said before, in SZOBF v Minister for Immigration [2010] FCMA 138 at [47]:
“…it has been accepted that an applicant’s conduct in making a s.417 application is indicative of a decision to abandon a course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law (M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 (“M211”) at [24]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198, per Goldberg J at 202). I also accept that the delay and the making of a s.417 application reinforces the propriety of a proceeding having been brought to an end (M211at [36]).”
I have also had regard to whether or not the grounds of the applicant’s application disclose in any arguable case on the part of the applicant. They are as follows:
“1. The Tribunal erred in law by relying on inaccurate facts in its notice issued to the applicant under Sec 424A of the Migration Act and denied the applicant of procedural fairness in rebutting such facts.
Particulars
The Tribunal at the opening of paragraph 48 of its decision states that “The applicant has claimed at hearing that on his return to India on 22 July 2008 he did not resume his duties as a driver” The Tribunal at the middle of the same paragraph (48) observes that “The Department states that it spoke to Father John Grewal on 29th July 2008 who stated that the applicant was back in India and resumed his duties of as a driver… This means that the Tribunal concludes that the applicant has not been telling the Tribunal the truth…”
The applicant respectfully submits that he was not provided with the whole conversation of what transpired between the Department and Father John Grewal, the way in which the identity of the speaker (Father John Grewal) was established, thus denying him of the procedural fairness to obtain all the relevant information in relation to a matter where an adverse inference was drawn by the Tribunal regarding the creditability (sic) of the applicant’s testimony.
2. The Tribunal made jurisdictional error by not considering the religious social group to which the applicant belongs and thus erred in law.
Particulars
The Tribunal near the end of paragraph 47 of its decision states that “The Tribunal accepts that the applicant is from a Catholic family and is Catholic, albeit a Catholic that attends a Christian Church in Australia, is also a Christian and that he has attended Church in Australia other than for the purposes of strengthening his refugee claim. The Tribunal also accepts that the applicant worked for the Catholic Church in India as a driver”.
The applicant respectfully submits that his case before the Tribunal was that he was not only a Catholic Christian but also a Catholic Christian belonging to and an active member of All India Christian Front, an organisation which protects and defends people with Christian faith. It is respectfully submitted that the Tribunal totally failed to consider and give a finding as to whether the applicant was belonging to the religious social group of Catholic Christians who were members of the All India Christian Front and whether the well found (sic) fear of persecution by the applicant as a member of this religious social group is valid.
3. 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
The applicant respectfully submits that the Tribunal failed to consider all material on record and misapplied the proper test in connection with the relocation of the applicant. Further the Tribunal failed to consider how the well founded fear of persecution will abate in the case of the applicant who is not only a Catholic Christian but also an active member of The All India Christian front involved defending (sic) and protecting the right of Christians. In SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated (at [24]) that in considering relocation:
“What is “reasonable, in the sense of “practicable, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.””
The applicant confirmed to the Court that, if leave was granted to him to extend time to make his judicial review application to this Court, there was no further submission that he wished to make in support of the grounds of his application that he had not already made to this Court.
Ground 1
Ground 1 makes the assertion that the Tribunal in some way breached its obligations under s.424A of the Act. It is unclear from the particulars the precise nature of the complaint and the applicant declined to make any submissions in support of ground 1 of the application.
In the findings and reasons section of its decision record, the Tribunal referred to the applicant’s claims about whether or not he resumed his duties as a driver on his return to India on 22 July 2008, as follows:
“The applicant has stated he is a national of India and he arrived in Australia on an Indian passport. Accordingly, the Tribunal accepts the applicant is a national of India and has assessed the applicant’s claims against India. The Tribunal has considered the applicant’s claims as set out in the written statement lodged with the application for a protection visa and the oral evidence given at hearing. The Tribunal accepts that the applicant is from a Catholic family and is Catholic, albeit a Catholic that attends a Christian Church in Australia, is also Christian and that he has attended Church in Australia other than for the purposes of strengthening this refugee claim. The Tribunal also accepts that the applicant worked for the Catholic Church in India as a driver.”
What appears from the passage cited above and from the letter from the Tribunal, sent pursuant to s.424A of the Act, and the applicant’s response to that letter, is that the applicant claimed at the hearing that he had not resumed duties as a driver in India. However, his migration agent subsequently submitted, in response to the s.424A letter, that the applicant did, in fact, work as a driver in India.
It is clear from the Tribunal’s decision record that the Tribunal then listened to a recording of the hearing and satisfied itself that, in fact, the applicant had claimed that he did not resume his duties as a driver at the hearing. In the circumstances, the Tribunal found that the evidence from the applicant at the Tribunal hearing had been that he did not resume his duties as a driver. The Tribunal then had regard to information it received from Father John Grewal on 29 July 2008 who stated that the applicant was currently back in India and had resumed his duties as a driver.
The Tribunal preferred the information from Father John Grewal as to whether or not the applicant had resumed his duties as a driver in India. The Tribunal concluded that the applicant was not telling the Tribunal the truth in stating that he had not resumed his duties as a driver when he returned to India in July 2008. That is a finding of fact that was open to the Tribunal on the evidence and material before it and for the reasons it gave. It was open to the Tribunal to prefer the information before it from Father John Grewal, in circumstances where that information had been given to the applicant pursuant to s.424A(1) of the Act and the applicant had responded.
Moreover, the Tribunal’s s.424A letter to the applicant enclosed the Department’s full note of the discussion it had with Father Grewal in which he provided that information. The note appears to be the totality of the information before the Tribunal on that matter.
In the circumstances, there would not appear to be any breach by the Tribunal of its obligations under s.424A of the Act.
Ground 2
In ground 2, the applicant asserts that the Tribunal did not consider that the applicant belonged to a religious social group, being Catholic Christians who belong to and are active members of the All India Christian Front.
However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted that there was more than a remote possibility that the applicant may be targeted in the Punjab on the basis of his religious beliefs and/or imputed religious or political beliefs because he is a from a Catholic family and/or because of his work with the Catholic Church and/or because of his involvement in the All India Christian Front.
However, ultimately the Tribunal found that any risk of persecution was confined to the Punjab. The Tribunal found that, in all the circumstances, it was reasonable for the applicant to relocate within India and thereby avoid the possibility of that persecution.
In the circumstances, it would appear that the Tribunal considered whether the applicant was a member of a particular social group of Catholic Christians who are also active members of the All India Christian Front.
Ground 3
Ground 3 appears to assert that the Tribunal failed properly to consider the issue of relocation in that the Tribunal misconstrued and misapplied the proper test relating to relocation in failing to consider what might be reasonably expected of the applicant with respect to his relocation. Ground 3 referred to SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] where their Honours Gummow, Hayne and Crennan JJ stated that:
“What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
Ground 3 asserts that the Tribunal failed to consider how the applicant’s fear of persecution would abate elsewhere in India where that fear is by reason of being a Catholic Christian and an active member of the All India Christian Front. However, as referred to in ground 2 above, the Tribunal found that any risk of persecution by reason of those factors was confined to the Punjab.
In relation to considering the issue of relocation, the Tribunal had regard to the applicant’s marriage status, whether or not the applicant had children and the reasonableness, having regard to the applicant’s age, of him being able to live away from his family. In considering that matter, the Tribunal noted that, if the applicant were to remain in Australia, he would also be living away from his family. The Tribunal also had regard to the fact that the applicant is educated, has worked as a driver for several years, speaks Hindi and reads and writes English. The Tribunal was satisfied that the applicant has the skills to be able to be economically viable in another area of India and that the applicant could relocate to one of the several regions in India which have large Christian populations with no Bharatiya Janata Party state government, such as Goa, Nagaland, Mizoram and Meghalaya.
The Tribunal also noted that the migration agent stated that social aspects may be different elsewhere in India. However, the Tribunal noted that if the applicant were to remain in Australia, he would also be facing those difficulties.
The Tribunal noted the migration agent’s assertion that the applicant would face discrimination and suspicion if he lived elsewhere. However, it noted that the migration agent had not provided any evidence in support of that assertion and, for that reason, the Tribunal is not satisfied that the applicant would face levels of discrimination or suspicion that could be defined as serious harm.
The Tribunal found that, on the information provided by the applicant regarding his background and circumstances, relocation for the applicant was reasonable and that he could avoid harm in the Punjab by relocating within India. The Tribunal found that it would therefore be reasonable for the applicant to relocate to a region in India outside the Punjab. The Tribunal found the applicant could safely relocate to one of the areas with a large Christian population and no Bharatiya Janata Party state government upon his return to India and it would be reasonable for him to do so in all the circumstances.
The Tribunal concluded that it was not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in relation to India as a whole. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, the applicant’s complaint that the Tribunal did not properly consider the issue of relocation of the applicant within India does not appear to be made out.
The applicant made no further submission either in respect of ground 2 or ground 3 of his application despite the fact that the grounds were interpreted for him and he was invited to say whatever he wished in support of those grounds.
None of the grounds raised by the applicant would appear to have any, or any reasonable, prospects of success. As stated above in these Reasons, the applicant confirmed to the Court that there was nothing further he wished to say if leave to extend time was granted to him in support of his application to this Court for judicial review.
In the circumstances, I am satisfied that the orders sought by the applicant for an extension of time should not be made having regard to: the applicant’s explanation; the length of time of the delay; and, the lack of utility in making such an order, having regard to the unlikely prospects of success of the grounds of the applicant’s application.
Accordingly, the applicant’s application that time be extended beyond 35 days to allow the applicant to seek judicial review of the Tribunal’s decision, dated 12 June 2009, should be refused with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 29 April 2010
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