SZOEW v Minister for Immigration
[2010] FMCA 523
•14 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEW & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 523 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – application for an extension of time. |
| Migration Act 1958 (Cth), ss.46, 425, 477 |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 |
| First Applicant: | SZOEW |
| Second Applicant: | SZOEX |
| Third Applicant: | SZOEY |
| Fourth Applicant: | SZOEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 474 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 14 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2010 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application of 8 March 2010 is dismissed as incompetent under s.477(1) of the Migration Act.
The first and second applicants pay the costs of the first respondent fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 474 of 2010
| SZOEW & SZOEX & SZOEY & SZOEZ |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 8 March 2010 the applicants filed an application seeking review of a decision of the Refugee Review Tribunal dated 7 September 2009 that affirmed the decision of a delegate of the first respondent not to grant the applicants – husband and wife and their two children – protection visas. The applicants did not apply to the court for review within 35 days of the date of the Tribunal decision and applied for an extension of time under s.477 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of India who arrived in Australia in June 2007 and applied for protection visas. The application was refused and the applicants sought review by the Tribunal. The Tribunal affirmed the delegate’s decision on 27 February 2008. The applicants sought review in this court and on 10 July 2008 the court set aside the Tribunal decision and remitted the matter to the Tribunal, noting that the initial protection visa application failed to comply with s.46 of the Act. The Tribunal set aside the delegate’s decision and determined that the protection visa applications were not valid and could not be considered.
The applicants made a fresh application for protection visas on 31 March 2009. That application was refused by a delegate on 22 May 2009. The applicants sought review by the Tribunal. The Tribunal decision of 7 September 2009 is the subject of these proceedings.
In a statement attached to the protection visa application of 2009, the first applicant (referred to for convenience as the applicant) claimed to fear persecution in India from Muslim extremists, in particular by reason of his involvement in certain groups “being a Hindu” and the violent events of 1992.
He claimed that he was scared and moved to Bahrain in 1993. He returned to India after five years but found that the situation had not changed. He claimed that the Muslim extremists had become “more organised” and had a “list of targets” and that he “could not stay in [the] same place for [a] long time”. He claimed he was “asked to leave my family as soon as possible”. He claimed that he returned to Bahrain and started a jewellery business there in 2003, but that it was targeted by smugglers to whom he had given money twice on demand. He claimed he was threatened by the smugglers and had “no other option” but to leave the country to save his family.
The applicant claimed to fear that he was “perceived as [a] possible sympathiser or a person with [a] link with Hindu radical’s movements” because he took part in the riots and that he would be “at risk of being killed by the Muslim extremist if [he had] to go back to India”. The applicant’s wife and two children claimed to be entitled to protection as members of his family.
The applicant elaborated on his claims in a departmental interview. A delegate of the first respondent found that key aspects of the applicant’s claims were not credible; that he would have access to effective state protection if he returned to his home area of India and that he could relocate to another part of India to escape any claimed fear of harm.
After the applicants sought review by the Tribunal they were invited to and attended a Tribunal hearing. The only evidence before the court of what occurred at the Tribunal hearing is the Tribunal reasons for decision. The Tribunal set out at length the claims made by the applicant in writing and orally and what occurred at the Tribunal hearing.
The Tribunal accepted that in 1992 there were Muslim-Hindu riots in India, in Gujarat in particular, that scores of Hindus and Muslims were harmed and that since that time there had been ongoing issues and riots between those groups and that at times the authorities had struggled to quell such riots.
It also accepted that the applicant had held a business visa to Bahrain, but that he did not have a right to return to Bahrain and reside there temporarily or permanently.
However the Tribunal did not accept that the applicant was a witness of truth. It was satisfied he had “created his claims in order to obtain the visa sought”. The Tribunal outlined a number of areas of concern and its findings in that respect. It found first that the applicant’s claim that he feared harm from an internationally-wanted criminal, Dawood Ibrahim and/or his gang, was raised for the first time at the hearing and was “a late invention…to enhance his claims”. It rejected the applicant’s explanation for why he did not make such a claim in his protection visa application or to the Department. It was of the view that if he had such a claim, he would have made it to the Department.
The Tribunal also found that the applicant’s return to India some five years after he had left indicated that he did not have a subjective fear of persecution at that time. It had regard to the fact that while he claimed that he was on a hit list, “nothing had happened to him” when he did return. It rejected his claim that he would be perceived as a possible sympathiser or person with links to radical Hindu movements because he took part in the riots in 1992.
The Tribunal found no basis for any claim to fear harm by reason of the applicant’s membership of any particular social group based on his claims about being a businessman in Bahrain or a businessman in India who had worked in Bahrain or paid extortion money in Bahrain or a gold merchant from Bahrain or in India.
It addressed the applicant’s claim that he feared harm from smugglers and/or the Dawood Ibrahim group who were said to have extorted money and threatened him and who he claimed would be able to find him in India. The Tribunal found there was no independent evidence before it to suggest that any particular social groups were harmed for their membership of such groups in Gujarat or in India generally or in Bahrain and was of the view that if that were the situation, it would be known to independent sources. The Tribunal also had regard to the absence of any independent evidence to support the applicant’s claims that there were “everyday newspaper report[s]” of kidnapping and killing of businessmen.
As the Tribunal was satisfied that the applicant was not a witness of truth, it was satisfied that he was not involved with the RSS, the VHP or the BJP when he resided in India. It was satisfied that, contrary to his claims, he was not harmed by the Muslims, attacked in Ahmadabad in 1993, on a “Muslim hit list” or that Muslims sought to harm him. It did not accept that the Indian police refused to assist the applicant. Nor did it accept that any gang or person or group had tried to extort money from him, that he paid bribes, that they sought to involve him in smuggling or that he was continually threatened. The Tribunal was satisfied the applicant did not flee India fearing Convention-related harm.
The Tribunal considered the situation were the applicant, as a former Hindu businessman from Gujarat who had been residing in Bahrain since about 1997 – 1998, to return to India. It had regard to the political situation in India and set out its reasons for concluding that it was satisfied that the Indian State had “put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law” and a “reasonably effective and impartial police force and judicial system”. It found that if threats or attacks were to be perpetrated against the applicant or his family for any Convention-related reason, there was a “functioning police force” and “independent judicial system”.
The Tribunal was satisfied on the information before it that the Gujarati police took action in relation to attacks on their citizens and was not satisfied that their action was ineffective. The Tribunal found no independent evidence before it to support the applicant’s claims he would not obtain state protection or that protection would be denied or withheld to an ethnic Hindu from Gujarat.
It was satisfied that the chance of harm if the applicant returned to India was remote and on the evidence before it was not satisfied that all the harms complained of by the applicant gave rise to a real chance of persecution now or in the reasonably foreseeable future. As the fate of the other applicants depended on the outcome of the first applicant’s application, those applications also failed.
As indicated, the Tribunal decision was made on 7 September 2009. On 8 March 2010, the applicants filed an application in this court seeking review of the Tribunal decision. However, under s.477(1) of the Migration Act, such an application must be made to the court within 35 days of the date of the migration decision. Under s.477(2), the court may extend the 35-day period as it considers appropriate if an application for such order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make such order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In the application the applicants sought an order extending the time for making the application. However the only explanation given as to the delay and the reasons why an extension of time should be granted are those in the accompanying affidavit the applicant referred to the fact of his application and refusal and claimed that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction or denied him procedural fairness in that it failed to consider his genuine claim with the requirements of the Migration Act. He stated that he believed it “important for the shake (sic) of natural justice that [his] application be allowed for filling (sic) with extension of time”.
The respondent’s written submissions, which opposed the grant of any extension of time, pointed out that the applicants had made no attempt to explain why their application had been brought almost five months beyond the time allowed by s.477(1). When the applicant made oral submissions, I asked him if he wished to say anything further in support of his application for an extension of time. He did not do so. In oral submissions the solicitor for the Minister elaborated on his opposition to the grant of an extension of time and referred again to the absence of any explanation for delay. The applicant said he had nothing to say in reply. I specifically asked him whether he wanted to say anything about the reasons for delay in making the application for an extension of time. The applicant had nothing further to say in that respect.
The respondent contended that having regard to all of the factors that the court could take into account in relation to whether or not an extension of time was in the interests of the administration of justice, there should be no such extension of time.
In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, Nicholls FM identified a number of circumstances relevant to the court’s determination under s.477(2) of the Act: the extent and the reason for the delay; whether there is any merit in the application; whether there is any prejudice to the respondents; the impact on the applicant; the interests of the public at large; and the court’s discretion itself (and see my discussion of those factors and other decisions in SZNZU v Minister for Immigration & Anor [2010] FMCA 197).
As indicated in SZNZU, I am of the view that in determining whether it is necessary in the interests of the administration of justice to extend the time for an application, regard should be had to all of the relevant circumstances. The factors referred to in SZMFJ provide a convenient starting point. In this case, as submitted for the respondents, I accept that the issues of delay and the merits of the application are of particular significance.
As indicated, the applicants have made no attempt to explain why their application has been brought almost five months beyond the time allowed by s.477(1) of the Act. This makes it impossible to engage in any balancing exercise in relation to the extent of the delay having regard to the reasons for delay. The applicants have not provided any, let alone any reasonable, explanation for the delay in seeking judicial review. I note in that respect that this is not the first occasion on which the applicants have sought judicial review.
In addition, when one turns to the merits of the application, the applicant relies on three generally-expressed claims in the application for review as well as a broadly-expressed contention in his supporting affidavit. The manner in which the question of merit in grounds for review is to be approached is discussed in SZNZU at [72] – [75].
Having considered the grounds relied on by the applicant, I am not satisfied that there is sufficient merit in the grounds to warrant in all the circumstances any extension of time. Even if I am wrong and an extension of time should be granted, I would in any event dismiss the application having regard to the grounds relied upon.
The first ground in the application is that the Tribunal “denied the applicant procedural fairness by reaching the adverse conclusions that [the] applicant was not [a] witness of truth”. This is said to be a conclusion that was “not obviously open on the known material” and that was reached without affording the applicant an “opportunity to be heard in respect of those matters”.
No basis for such a ground is made out. First, insofar as it is contended that the adverse credibility conclusion was not obviously open on the known material, credibility findings are matters for the Tribunal par excellence. The Tribunal’s findings in that respect were open to it for the reasons that it gave on the material before it. The Tribunal set out in some detail what occurred at the Tribunal hearing, including the fact that it raised with the applicant issues of concern such as to make it clear that aspects of the applicant’s claims and his credibility were in contention.
It is apparent that the Tribunal afforded the applicant a fair opportunity to give evidence that he wished to give in relation to all dispositive issues (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63). The delegate’s adverse credibility finding and the issues raised by the Tribunal made it clear that the applicant should have been on notice that he would need to persuade the Tribunal that he was a witness of truth. The Tribunal challenged the veracity of key aspects of the applicant’s claims, for example in relation to what he said occurred and what he feared in India and the basis on which he held such fears. Thus, the Tribunal asked the applicant how Muslims who attacked him in 1993 would remember who he was some 17 years later. The Tribunal also raised with the applicant its concerns about his failure to inform the Department of his claim that the Dawood Ibrahim gang had attacked him. The Tribunal put to the applicant specific plausibility concerns in that respect, the reasons for such concerns and its view that even if Dawood Ibrahim was interested in him state protection would be available. The Tribunal also put to the applicant other issues of concern, including the absence of country information to support aspects of his claims and what the country information did show in relation to the situation in India relevant to his claims. It raised with the applicant issues relevant to state protection and also relocation for his comment.
There is no basis in the evidence before the court for the applicant’s general claim that he was not afforded a fair opportunity to address the Tribunal on matters on which it based its adverse credibility finding, or, more generally, to establish the arguability of any complaint that the applicant makes in relation to the Tribunal’s credibility. Insofar as he seeks merits review, merits review is not available in this court.
Ground two of the application is that “The applicants satisfy the four key elements of the Convention definition” and that the “Tribunal has not considered this aspect and therefore committed factual and legal error”. As indicated merits review is not available in this court. Moreover, it is clear from the Tribunal reasons for decision that it understood and applied the Refugee Convention definition insofar as necessary to do so on the material before it. There is no merit in this ground.
Ground three is first that the Tribunal “failed to investigate [the] applicants (sic) claim, specially (sic) the grounds of persecution, in India”. It is the case that the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 has left open the possibility that a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances supply a sufficient link to the outcome to constitute a failure to review and that if so, such a failure could give rise to jurisdictional error (see generally [25] – [26]). However, there is nothing before the court to suggest that this is such a case.
There are no particulars to this ground and none were provided in oral submissions. There has been no identification of any inquiry which the applicants say that the Tribunal ought to have made and there is nothing in the material before the court to indicate that the applicants in any way asked that the Tribunal make any particular inquiry. On the material before the court such a ground cannot succeed.
The other aspect of ground three is a contention that “[t]herefore” the Tribunal decision was “effected by actual bias” constituting jurisdictional error. (Although the ground says “judicial error”, I think this is a reference to jurisdictional error). Insofar as that contention is based on the Tribunal’s alleged failure to investigate the applicant’s claim, it cannot be made out on the material before the court.
There is no relevant evidence before the court beyond the Tribunal’s reasons for decision. It is only in a rare and extreme case that bias on the part of the Tribunal would be established simply by reference to the Tribunal reasons for decision (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361). There is nothing in the material before the court such as to suggest either actual or apprehended bias.
I have also considered, insofar as it is possible to do so, the general allegation in the affidavit accompanying the application that the Tribunal denied the applicant procedural fairness and “failed to consider [his] genuine claim” and the requirements of the Migration Act.
This broad and generally expressed claim does not provide any basis on which jurisdictional error can be established on the material before the court. There is no reference to any specific provision of the Migration Act and nor is it apparent that the Tribunal failed to comply with its obligations, in particular under s.425 of the Migration Act in relation to the conduct of the Tribunal hearing. It is not apparent that there is any basis on which it could be said that the Tribunal failed to consider any integers of the applicant’s claim. Insofar as the applicant claims that his claim was genuine, as set out above, this seeks impermissible merits review. As expressed, this contention does not establish or give rise to any arguable jurisdictional error.
In oral submissions the applicant took issue with an aspect of the first respondent’s written submissions which misstated the time that he had lived in India. This was clarified by the first respondent in oral submissions. There is nothing in the material before the court to suggest that the Tribunal similarly misunderstood or misstated the applicant’s claims in that respect or that, even if it had, this amounted to any more than a factual error.
When given the opportunity to elaborate on his claims, the applicant simply said that the Tribunal decision was not fair and that he had said what he had to say. This does not establish any basis on which jurisdictional error could be established.
The applicant also seemed to take issue with the fact that previously he had had some success in judicial review proceedings, but the consequence of that was that the matter was remitted for reconsideration. It emerged that there had been a failure to comply with s.46 of the Migration Act. He and his family were able to make fresh applications for protection visas. The fact of these prior proceedings is not such as to establish any basis on which there should be an extension of time or more generally to demonstrate any issue in relation to jurisdictional error. I am not satisfied that there is any merit in the grounds for review in the application presently before the court.
I have had regard to the other factors relevant to an application for an extension of time, including the fact that rejection of an application for an extension of time would obviously have a significant impact upon the applicants. In that respect, the applicant told the court, although there was no evidence in this respect, that his son had to have an operation and could not leave Australia and then that his son went to school there. This is not a case in which it is clear that the first respondent would be put to the burden of any additional litigation were an extension of time to be granted. I have also had regard to the interests of the public and, generally, to the consequences of making a decision to refuse an application for an extension of time.
However on balance I am not persuaded that in circumstances where there is no merit in the substantive grounds of judicial review and no explanation for the delay in seeking judicial review, it is necessary in the interests of the administration of justice to make an order extending the period within which an application must be made to this court under s.477 of the Migration Act. Accordingly, the application for review of the decision of the Refugee Review Tribunal made on 7 September 2009 is out of time and should be dismissed as incompetent.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and the Minister seeks that the first and second applicants, the adults, pay costs in the sum of $3,500. The applicant told the court that he had no money, was not working and queried how he would pay such costs.
RECORDED : NOT TRANSCRIBED
The amount sought is appropriate in light of the nature of this and other matters. The applicant’s lack of funds is not such as to warrant departure from the normal principle that an unsuccessful applicant should meet the costs of the respondent. It may, however, be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 July 2010
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