SZOJS v Minister for Immigration

[2010] FMCA 864

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJS v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 864

MIGRATION – Application to review decision of Refugee Review Tribunal – application for an extension of time under s.477 of the Migration Act refused.

Migration Act 1958 (Cth), ss.424AA, 424A, 425, 430, 477

Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236; [2008] FCAFC 119
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197

Applicant: SZOJS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 967 of 2010

Judgment of: Barnes FM

Hearing date: 21 October 2010

Delivered at: Sydney

Delivered on: 21 October 2010

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application for an extension of time under section 477 of the Migration Act 1958 (Cth) is refused.

2. The application of 4 May 2010 is dismissed as incompetent under section 477 of the Migration Act 1958 (Cth).

3. The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 967 of 2010

SZOJS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. By application filed in this court on 4 May 2010, the applicant sought review of a decision of the Refugee Review Tribunal dated 8 September 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the court within 35 days of the date of the decision. However the court may under s.477(2) extend that 35 day period as it considers appropriate if an application has been made in writing to the court specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order and the court is satisfied that it is necessary in the interests of the administration of justice.

2. In his application of 4 May 2010 the applicant sought an extension of time under s.477 of the Act. The grounds of the application for an extension of time were as follows:

   1.  I do not have any knowledge about Australian law.

   2.  I do not have any money to hire a lawyer.

   3.  I did not know any thing about the time to apply to the Court.

   4.  I request the Court to accept my application.

3. The applicant did not elaborate on these grounds in the accompanying affidavit.  In submissions today he repeated his lack of knowledge about legal requirements, his lack of education, his lack of guidance and suggested that he “shifted his place”, although the notice of address for service filed on 20 May 2010 advises of a change of telephone number, not a change of address. 

4. I have borne in mind that it is necessary to have regard to all of the circumstances of the case in considering an application for an extension of time (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197). In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 Nicholls FM summarised factors which may be relevant to be taken into account as part of all the circumstances when considering such an application, including the extent of the delay and the reason for 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. Critical considerations are whether an explanation reasonable to the circumstances is provided and whether the applicant has a material argument which if heard and decided on its merits might reasonably affect the determination of the rights and duties of the parties (see SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]).

5. In this case the delay is in the order of eight months, which is of significance in the context of a 35-day time limit.  The extent of the delay must be balanced against the reasons for delay.  Taking the applicant’s grounds at face value, his lack of knowledge of the law, lack of money, and also (although he did not raise this) his lack of English, are very common in proceedings of this nature involving a self-represented litigant.  There is no indication from the applicant as to whether he took any steps after receipt of the Tribunal’s decision to ascertain whether he had any review rights.  Nor is there any explanation for any failure to take such steps, except for lack of money. 

6. The applicant does not take any issue in relation to receipt of the Tribunal’s decision. Having regard to the nature of proceedings to which s.477 applies, even accepting his explanation at face value it does not provide a satisfactory explanation for the extent of the delay.

7. In any event, what is critical in this case is whether there is any merit in the application.  If the substantive application is without merit, this is a strong consideration relevant to the refusal of an application for an extension of time. 

8. The material before the Court in this instance includes all the material that would be before the Court on final hearing were there no issue of an extension of time.  The applicant has had the opportunity to file further affidavit evidence and to file written submissions, neither of which he did.  Those orders were made at a directions hearing when he had the assistance of an interpreter.  He also had the opportunity to make oral submissions today to address the grounds on which he seeks to rely.  Other than stating that he had a fear of persecution and wanted to stay in Australia for some time, he had nothing of substance to say in relation to the grounds in his application.

9. The first respondent filed written submissions and made oral submissions and I have considered the merits of the grounds in the application.  In order to consider these grounds, it is necessary to set out the background to the case and the Tribunal decision in some detail.

10. The applicant, a citizen of India, arrived in Australia in December 2008 and applied for a protection visa in February 2009.  His claims were set out in a statement provided in connection with his protection visa application.  The application was refused by a delegate of the first respondent and he sought review by the Tribunal.  He attended a Tribunal hearing conducted on 24 July 2009.  After the hearing the Tribunal wrote to the applicant inviting him to comment on and to respond to information which it considered, subject to any comments or response he made, to be a reason or a part of the reason for affirming the decision under review.  That letter (dated 24 July 2009) sought a written response by 19 August 2009 and advised that if the applicant could not provide a written response by that date, he may ask the Tribunal in writing for an extension of time.  Any such request was to be received by the Tribunal before 19 August 2009 and must state reasons why an extension of time was required.  The letter also advised that if the Tribunal did not receive comments or a response within the period allowed, it may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

11. The Court Book contains a case note dated 19 August 2009 recording a telephone conversation between a Tribunal officer and the applicant, which is apparently in relation to that letter.  The applicant enquired whether he could have additional time to respond.  He was advised to put a request in writing to be received by the Tribunal that day by fax or in person.  He is recorded as stating that “he would write a request for additional time and bring it in to the Tribunal or fax” it that day.

12. In its reasons for decision the Tribunal referred to the s.424A letter, the applicant’s conversation with a Tribunal officer on 19 August 2009 and the advice that he had to put his request for further time in writing and send it to the Tribunal and that he said he would do so. However it also recorded that “no further communication was received” by the Tribunal. Nonetheless, the Tribunal considered the applicant’s oral request for an extension of time, but stated that it had decided not to accede to that request as the applicant had not provided any reason or reasons for seeking an extension of time to comment on or respond to the Tribunal’s s.424A letter.

13. In its reasons for decision the Tribunal set out in detail the material before it, including in the Departmental file and the material referred to in the delegate’s decision and the applicant’s claims at the Tribunal hearing.

14. The applicant claimed, in essence, to fear persecution on the basis of his political opinion and religion, claiming to be a Muslim belonging to Tablighi Jamaat and a supporter of the affiliated political party, the MIM.  He claimed that “[a]s a consequence of his involvement with the MIM…[h]e was assaulted, threatened and harassed” by the supporters of the Congress Party. 

15. The Tribunal also recorded the applicant’s claims when interviewed by a delegate of the first respondent, including his claims about his activities for the party and incidents that he claimed had occurred in India. The Tribunal summarised the evidence given by the applicant at the Tribunal hearing and his claim that he did not want to return to India because his political opponents would torture him because he was working as a religious person, communicated with people and people liked him. He claimed that the local leader of the Congress Party in his area had a problem with him because he was working with the MIM. The Tribunal recorded that at the hearing it had asked the applicant about his associated with the Jamaat and also about differences between Jamaat and other Muslim groups.  It set out his responses and also that it had asked him about his association and activities with the MIM, which he had claimed to have joined about a year before he left India for Australia.

16. At the hearing the Tribunal raised with the applicant concerns about his lack of knowledge in relation to the MIM.  When he indicated that the had “no interest in politics anymore”, it “asked him if he was saying that he did not wish to participate in politics if he were to go back to India”, with which he agreed.  The Tribunal also asked him about the relationship between Jamaat and the MIM and then raised its concerns about his claims about past incidents of harm in India.  The Tribunal also put to the applicant that it had concerns about his case arising out of inconsistencies in his evidence to the delegate and his evidence to the Tribunal (which it outlined) and also based on the fact that he had made no mention of being a member of the MIM in his protection visa application form or in the accompanying statement. 

17. As indicated, after the hearing the Tribunal wrote to the applicant pursuant to s.424A of Act, putting to him particular concerns about a number of issues, including inconsistencies in his evidence about where he had lived while in India at various times, inconsistencies in his evidence about whether and when he had closed his business, his failure to mention being a member of the MIM until he provided a letter said to be from the MIM in April 2009, inconsistencies in his claims about the time from which he had held the position of Khadim in the Jamaat in India and inconsistencies in his claims about his involvement with Jamaat, its interaction with the MIM and his activities with the MIM.

18. It also put to him inconsistencies in his claims at the hearing about past incidents of harm in India, in particular in relation to his claim that four or five Congress people had attacked him in his workshop on 15 August 2008 and had thrown a petrol bomb at his workshop and also his claim that some two or three days later two people on bikes crashed into him as he rode his bike and that he had suffered a dislocated knee and had been taken to hospital.  It put to him the different accounts that he had given at the Departmental interview in relation to the events that he claimed had occurred and other inconsistencies between the written statement and later claims in relation to the precise nature of the events that had occurred.  The Tribunal also raised with the applicant contradictory information in relation to the reason for and timing of his travel to Australia. 

19. The Tribunal put to the applicant that the “shifts and changes” in his evidence, including inconsistencies may lead the Tribunal to disbelieve his claims and find him not to be truthful or credible and that the delay in his travel to Australia was relevant because the Tribunal may find that he did not have a genuine fear of persecution in India. 

20. In its findings and reasons the Tribunal summarised the applicant’s claims as “based on the Convention grounds of political opinion and religion”.  He had claimed to have been a member of Jamaat and the MIM and that “as a consequence of his involvement with the MIM and support for the party” and for the local candidate he was attacked by the Congress Party, assaulted, threatened, harassed and that his property was “attacked and damaged”.  He claimed to fear further harm if he were to return to India. 

21. However the Tribunal found that the applicant did not impress it as a truthful or reliable witness and that “his overall evidence cast serious doubt on the veracity of his claims and his credibility as a witness” having “regard to the significant inconsistencies between the evidence he presented to the Department and his evidence to the Tribunal, as well as [for] other reasons” which it detailed. 

22. The Tribunal set out in some detail inconsistencies in the applicant’s claims in relation to a number of matters, including “his address and movements in India”, “the circumstances of and plans for his business in India”, “his membership of the MIM, the links between the Jamaat and the MIM and the Jamaat’s role during elections”, and “his activities as a member of the MIM”.  It also had regard to the fact that “the applicant made no mention of being a member of the MIM in his application form [or] statement submitted in support of his application for a protection visa”.  It found that the fact that he “first raised this claim when he submitted a letter to the Department from the MIM in April 2009… [cast] doubt on the veracity of his claim to have been a member of or associated with the Party”. 

23. The Tribunal also found that the applicant had provided inconsistent information in respects (which it detailed) “in relation to the incidents of harm he claim[ed] to have suffered in India”, as well as “in relation to what he [had] anticipated would happen to him if he were to return to India”. It had regard to the applicant’s delay in leaving India, being of the view that “if [he] was genuinely fearful of being harmed he would not have delayed his departure for more than three weeks”. Finally, the Tribunal had regard to the fact that “the applicant was unable to satisfactorily explain why he was targeted by leaders or members of the Congress in his locality”, given that (as had been put to him at the hearing) he did not claim to be a prominent member of the MIM party and had been a member for less than a year whose activities were confined to helping the poor. The Tribunal had regard to the applicant’s explanation, in particular that people listened to him rather than to people who were illiterate, notwithstanding that the applicant’s level of education was not much higher than the education level of the person he named as illiterate. The Tribunal found this explanation to be unpersuasive.

24. The Tribunal did not find the applicant to be credible, truthful and reliable.  It found “[t]he totality of his evidence show[ed] a propensity to shift and tailor evidence in a manner which achieve[d] his own purpose” and was of the view that he had “fabricated his claims and concocted evidence to achieve an immigration outcome”. 

25. The Tribunal addressed the applicant’s explanation at the hearing that “he was not probed at the interview” and that “at the hearing he was being asked many questions and had to provide a lot more detail”.  However the Tribunal did not find this response satisfactorily explained the numerous inconsistencies in his evidence. 

26. The Tribunal also found that, given the fundamental lack of credibility within the applicant’s evidence, it did “not give any weight to any of the documents [he had] provided in support of his claims”.  It referred in that respect to the approach taken in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30.

27. The Tribunal concluded that it “did not accept that the applicant was a member of, or involved in or associated with the Jamaat or the MIM”, that “he was involved in political activities” or that “he worked or campaigned for the local MIM candidate in preparation for state elections”.  Nor did it accept that “he was threatened, harassed, attacked, assaulted or [that] his property [was] damaged by leaders, members, or supporters of the Congress or by any other group or party for the reasons of his expressed or imputed political opinion and/or religion”.  It did not accept that he had been in hiding at any point in time.  It did not accept that he had been harmed in the past or that if he were to return to India now or in the reasonably foreseeable future there was a real chance the applicant would be harmed for reason of his religion, actual or imputed political opinion or for any other Convention reason.  Hence it was not satisfied that the applicant had a well-founded fear of persecution within the Refugees Convention. 

28. The application filed on 4 May 2010 raised three grounds.  The first ground is as follows:

    The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of that the applicant did not impress the Tribunal as a truthful or reliable witness (paragraph-80, of the RRT decision).  The Tribunal should assess the claim on the basis of the evidence and materials before it but the Tribunal took a (sic) unofficial approach here which is a wrong observation, so the Tribunal made a mistake in this regard.

29. Insofar as this ground takes issue with the Tribunal’s credibility findings, credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). In the present case, on the material before it, the Tribunal’s findings were open to it for the reasons which it gave.

30. The Tribunal set out in some detail the concerns that it had with the applicant’s evidence.  It considered the explanations he gave for inconsistencies and other matters of concern, insofar as there were such explanations, and it reached a conclusion in relation to credibility that, as indicated, was open to it on the material before it for the reasons which it gave.  In so doing, it assessed the applicant’s claims on the basis of the evidence and materials before it.  The Tribunal was not obliged to accept such evidence and materials and its conclusion that it gave no weight to the documentary evidence was open to it in light of its comprehensive adverse credibility finding consistent with the approach taken in Applicant S20/2002. 

1. Insofar as this ground may be taken to be suggesting that the Tribunal did not have regard to the evidence and materials before it, no particular evidence or materials have been identified and, contrary to any such suggestion, it is apparent from the Tribunal reasons for decision that the Tribunal had regard to the applicant’s claims as put before the Department and before it.  This ground does not establish any arguable case that the Tribunal made a jurisdictional error in the manner contended for by the applicant. 

2. Ground two is that:

   The Tribunal made a jurisdictional error that the Tribunal did not give an opportunity to the applicant to make comment on adverse opinion which is the reason or part of the reason to reject his claim.  The latter [which I take to be a typographical error for “letter”] was sent by the Tribunal was not sent according to the Part 7 of the Migration Act 1958 (the Act) and the applicant did not understand the letter.

3. Insofar as it is intended to allege a breach of s.424A on the basis that the Tribunal was obliged to put its adverse opinion to the applicant, it is well-established that the thought processes of the Tribunal, including its appraisal of evidence and inconsistencies within the applicant’s evidence and disbelief of the applicant’s evidence arising from inconsistencies therein is not information within s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]).

4. To the extent that the Tribunal relied on the applicant’s evidence, written claims and country information, such matters would be within the exceptions within s.424A(3) of the Act.

5. As this ground appears to acknowledge, the Tribunal did in fact write to the applicant pursuant to s.424A of the Act by letter of 24 July 2009 and raised with him a number of matters, in particular inconsistencies in his evidence at various times in the process. I note in that respect that even if the Tribunal raised with the applicant matters that were not strictly speaking information within s.424A of the Act, it does not fall into jurisdictional error by putting such information to an applicant for comment.

6. It appears that this ground may also be intended to take issue with the manner in which the Tribunal put such information to the applicant, in particular whether the Tribunal ensured as far as is reasonably practicable that the applicant understood why it was relevant to the review and the consequences of it being relied on in affirming the decision under review. However there is nothing in the s.424A letter or more generally in the material before the court to suggest that the Tribunal failed to comply with its obligations in s.424A(1)(b) of the Act (see SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236).

7. No issue is taken with the applicant’s receipt of the s.424A letter and indeed it is apparent from the file note that he was aware of the letter and that it gave him an opportunity to respond by 19 August 2009. There was no suggestion that there was such a response. This ground does not establish any arguable case of jurisdictional error by way of a failure to comply with s.424A of the Act or otherwise.

8. I also note that at the hearing the Tribunal raised with the applicant its concerns and issues in a number of respects, including in relation to inconsistencies in his evidence, his lack of knowledge about activities of the MIM party after his arrival in Australia, the fact that his rank and activities would not appear to make him a target for political opponents and the possibility of relocation. There is nothing in the material before the court to suggest any failure to comply with s.425 of the Migration Act insofar as that may be intended to be contended.

9. The third ground is that:

   The Tribunal made a jurisdiction error that the Tribunal did not make the decision according to the Act. The Tribunal rejected the applicant’s claim without giving any reason according to s 430 of the Act. The Tribunal just repeated the discussion what the applicant replied to the Tribunal at the hearing and this is not the requirement to reject a genuine claim according the (sic) Part 7 of the Act. 

10. Again, there is no merit in this ground.  Contrary to the applicant’s contentions, it is apparent from the Tribunal’s reasons for decision that it did not simply repeat the discussion at the hearing, but rather referred to that discussion in its findings and reasons in the context of considering inconsistencies in the applicant’s evidence given to the Department and to the Tribunal and his explanations for such inconsistencies, as well as other matters of concern which it had raised with the applicant at the hearing.

11. The Tribunal gave reasons for its decision, in essence based on its adverse credibility finding. These reasons are not such as to demonstrate that no review in truth occurred, that there was a constructive failure to exercise jurisdiction or, indeed, any failure to comply with s.430 of the Migration Act (see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108). I note in that respect that the Tribunal referred to the material to which it had regard in its findings and reasons. No arguable case of a jurisdictional error on the basis contended for in the third ground in the application is established.

12. More generally, insofar as the applicant may be seen to be seeking merits review, as I endeavoured to explain to him, merits review is not available in this court. 

13. Thus, when considering the factors relevant to an application for an extension of time under s.477 of the Act, it is of considerable significance that there is no merit in the grounds for review.

14. Were this a matter in which there was no need for an extension of time, the application would be dismissed on that basis. It is the case that rejection of an application for an extension of time would have an impact on the applicant as it would likely follow that he would be required to leave Australia at some point in time. It is also the case that given the manner in which the hearing has been conducted and the material before the court, there would be no additional cost of litigation constituting prejudice to the first respondent were an extension of time to be granted, although there would in any event be a dismissal of the application as the grounds have no merit. In these circumstances there is nothing in the material before the court to suggest that the interests of the public at large would be served by the extension of time in this case, having regard to the need to avoid delay, expense and protraction of legal proceedings. I have borne in mind in that respect the unavailability of appeal in circumstances where an extension of time is not granted.

15. In conclusion, having regard to all of the circumstances in this case, including the very limited explanation for the substantial delay in seeking judicial review and the absence of any merit in the substantive grounds of judicial review, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day period within which an application must be made to this court under s.477 of the Migration Act. The application of 4 May 2010 for review of the decision of the Tribunal made on 8 September 2009 is out of time and hence should be dismissed as incompetent.

    RECORDED : NOT TRANSCRIBED

16. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  His lack of work and inability to pay any costs ordered is not a reason for departing from the normal principle, although it may be a matter to be taken into account by the Minister in determining whether, when and how to seek to recover such costs.  In light of the nature of this and other similar matters and bearing in mind that these proceedings involved an application for an extension of time, I am of the view that an amount of $4,000 is appropriate.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  5 November 2010