SZOLA v Minister for Immigration
[2010] FMCA 674
•10 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 674 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – no reasonable prospect of success – extension of time refused – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.36, 65, 91S, 422B, 424A, 425, 425A, 426A, 476, 477 |
| Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| First Applicant: | SZOLA |
| Second Applicant: | SZOLB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1133 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 August 2010 |
| Date of Last Submission: | 10 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2010 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 21 May 2010 is dismissed as not competent.
The applicants pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1133 of 2010
| SZOLA |
First Applicant
| SZOLB |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore — Amended from Transcript)
I have before me an application made on 21 May 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 April 2010 which affirmed the decision of a delegate of the first respondent Minister to refuse protection visas to the applicants.
The applicants have also applied for an extension of time pursuant to s.477 of the Act, by which an application can be competently made to this Court.
Background
The applicants are husband and wife. Both are citizens of India. They applied for protection visas on 15 September 2009.
The Minister has put a bundle of relevant documents (“Court Book” – “CB”) before the Court.
Claims to Protection
What is revealed is that only the applicant husband (who I will refer to as “the applicant”) made claims to be a refugee in that original application. His wife applied as a member of his family unit. Although, as matters ultimately developed before the Tribunal, some claims were advanced on her behalf and by her.
In any event, in a statement submitted with his application (CB 41 to CB 43), the applicant, who said he was a Hindu, claimed that he and his wife feared harm because a Muslim youth had wanted to marry their daughter.
The applicant said he was subjected to some instances of harm. He said that when he sent his daughter to study in Russia he was assaulted and his family was threatened.
The applicant also claimed in his statement that this young man’s relatives were politically well connected, and that there arose tensions between Muslims and Hindus, and that the police would not take any action.
The Delegate
Before the Minister’s delegate the applicant also added a claim that his sister-in-law had been murdered by burglars, and that a number of people had been arrested in connection with this who had then threatened to kill the applicant’s wife (CB 59).
The delegate refused the application on 8 December 2009 (CB 49 to CB 63).
It appears that the delegate based this decision on a finding of a lack of a Convention nexus, that is a connection to the Refugees Convention, on the facts as advanced by the applicant, both in his statement and by what he told the delegate.
Given this finding, it is not exactly clear why the delegate then went on to consider the availability of State protection. But nonetheless the delegate did so, and found that such protection would be available in the circumstances as presented.
The Tribunal
The applicants applied for review to the Tribunal on 8 January 2010 (CB 64 to CB 67). Both applicants attended a hearing before the Tribunal on 10 March 2010 (CB 73). The only account of what occurred at that hearing that is before the Court is that set out in the Tribunal’s decision record ([23] at CB 141 to [107] at CB 152). Subsequent to the hearing, the applicants submitted a number of documents which they said were relevant to the claimed murder of the applicant’s sister-in-law (CB 77 to CB 128).
The Tribunal made a number of findings. These are perhaps not set out in as sequential a way as would be helpful, but nonetheless the following is at least clear.
The Tribunal found first that the applicant’s claims in relation to the threats by the Muslim youth to be implausible ([117]). This was based on findings by the Tribunal that the applicant’s claims that this youth had political connections were based on nothing more than assumptions, and that the applicant was evasive when asked to provide more information.
The Tribunal also found that the Muslim youth had no political connections, and that both applicants did not have a well-founded fear of Convention related persecution for this reason. The Tribunal found that, in any event, they would not be denied protection by the Indian State ([119]).
I cannot see that such an alternative finding reveals error on the part of the Tribunal. A more careful reading of the Tribunal’s relevant finding at [119], and on a fair reading of the reference to State protection, there was no denial by the applicants that State protection was available to them.
The Tribunal did not accept that the applicant had been attacked by this young man based on the lack of corroborative evidence and that the applicant’s explanation as to his failure to report this claimed incident was implausible ([120]).
The Tribunal also found as implausible the applicant’s account and lack of explanation as to why he sold his successful business without any sound basis for doing so. Further, that it noted that the evidence as to why his daughter left India was variously contradictory ([121]).
What was also put before the Tribunal was that the applicant and his wife relocated to a particular area of the state of Gujarat in India. They still claimed to fear persecutory harm. In this regard the Tribunal found the evidence given by the applicants as to how and why the young Muslim man and his associates would be able to find him and travel great distances after he had relocated to Gujarat to be implausible. In particular, the Tribunal found implausibility in the circumstances claimed that two young Muslim men were said to be able to travel some distance to a predominantly Hindu state, where there had already been violence against Muslims ([123] to [126]).
The Tribunal rejected the applicant’s factual account that he had been attacked in the circumstances he claimed ([127]).
In relation to what was described as the “second” claim, the fear of harm by the applicant’s wife because of the murder of his sister-in-law, the Tribunal accepted that the murder had occurred. But it also found that this matter had been properly dealt with by the relevant authorities ([128], [133]).
Ultimately, and in any event, the Tribunal found that even if it were to accept that the claims dealing with the young Muslim man and the daughter, the claimed harassment by this Muslim youth, and the fear of harm to the applicant’s wife by the claimed murderers were to be factually accurate, both sets of claims had no connection with any reason set out in the Refugees Convention such as to found a claim to be a refugee. The Tribunal found that, even if it accepted both sets of claims, on the evidence before it and as discussed at length at the hearing, the claims relate to criminal activity and not to a Convention related reason.
I note further, and probably quite cautiously, that the Tribunal specifically considered whether the threats from the alleged murderers to the wife’s family could constitute a particular social group. But the Tribunal disregarded this because of the effect of s.91S of the Act. Again, in an abundance of caution, and certainly not revealing any error, the Tribunal found that effective State protection would be available to both the applicant and his wife ([129]; [134] to [135]).
In all, therefore, the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It found, noting that even though the wife originally had not applied on the basis of having refugee claims in her own right, that both did not satisfy the requirements of s.36(2)(a) of the Act. Quite properly, given the way that she had initially applied for the protection visa, the Tribunal found, given its earlier findings, that the applicant wife did not satisfy the requirement of s.36(2)(b) of the Act. This obviously addressing the basis on which she had originally sought the protection visa.
Application to the Court
The grounds of the substantive application before the Court are as follows:
“1. Mu appeal is that the Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take into consideration of my well founded fear of persecution for opposed of my daughter marriage with Muslim boy. At the hearing I raised the issue of being targeted by the Rafiq Khan and the Tribunal has failed to verify my fear of persecution. It was an error for the Tribunal to place no weight on my claims.
2. The tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act”
[Errors in original.]
Before the Court
The applicant appeared in person before the Court today. He was assisted by an interpreter in the Gujarati language. Ms L Buchanan appeared for the respondent Minister. I note that written submissions have been filed on behalf of the Minister, as has a formal response to the application.
At the first Court date in this matter, the applicant, who appeared in person, again assisted relevantly by an appropriate interpreter, was given the opportunity by orders made at that time to provide further material in support of the application made to the Court. Nothing further has been received.
The applicant wife did not appear. The applicant confirmed that he was here also to speak on his wife’s behalf as she was at home and had chosen not come to Court.
Even after I explained to the applicant the role of the Tribunal and the powers and role of the Court in matters of this type, his response was that he could not say anything about the law, but that he had problems back home in India.
Unfortunately for them, that was the extent of the applicants’ submissions in support of their application. I understood that the applicant really was unable to assist further because, as he said, the application to the Court had been drafted by a friend, who had been a student in Australia but who had returned to India. Although I do note that the applicant had applied for, and had received, legal advice from a solicitor on the panel of solicitors provided by the “RRT Legal Advice Scheme”.
Extension of Time
The applicants face a further difficulty before the Court, which is that given the date on which the application was made to the Court means that the application does not satisfy s.477(1) of the Act, which sets time limits by which such applications must be made. That section provides that an application to this Court must be made within 35 days of the date on which the Tribunal makes its decision. The Tribunal’s decision is dated 13 April 2010. The application to the Court was made on 21 May 2010.
Although the date of filing was not that much over that time limit (I note that it was three days out of time), nonetheless it does not meet the requirement of s.477(1). That sub-section itself provides no discretion to this Court to extend the time by which such an application can be made.
Section 477(2) however, does make provision for this time to be extended in circumstances where this Court can be satisfied that it is in the interests of the administration of justice to do so. Section 477(2) has two limbs. The first is that an application to extend time must be made in writing, specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order (s.477(2)(a)).
It is quite clear that the student that the applicant said that he relied on to assist him in drafting the application had little idea of what he was doing. For a start, it is not clear whether in the application the applicants have said that they wished to apply for the extension of time or not. Both the words “yes” and “no” appear after the relevant question on the form that has been used by the applicant.
If the answer is “no”, then this matter can stop at that point. The application is out of time and no extension has been sought.
But on balance I am prepared to give the applicants the benefit of the doubt. I will proceed on the basis that an application in writing has been made for an extension of the relevant time.
I also note that this student friend of the applicants has used an “old” version of the relevant application form which, by its terms, appears to make reference to a previous version of the relevant section dealing with time limits on applications to be made to this Court. The application refers to an extension of time being required if the application is not made within 28 days of the actual, as opposed to the deemed, notification of the decision. Of course the current version of s.477 has no such requirement.
But notwithstanding that error, I am still prepared to accept than an application for the purposes of s.477(2)(a) has been made to the Court.
A third problem for the applicants is that what is said to be the ground in support of the application for an extension of time is as follows:
“1. I believe that I had been denied the natural justice therefore, I required extension of time to apply this application.”
[Errors in original.]
This is a somewhat circular argument which fails to address the critical elements necessary in the Court’s consideration of whether it is in the interests of the administration of justice that the time for the making of the application be extended. Those elements, in my view, include the following:
1)The fact of the delay and the extent of the delay.
2)Whether any satisfactory explanation has been provided for the delay.
3)The merits of the grounds in the substantive application.
4)Any prejudice to the respondents that might accrue from the Court extending the time.
5)Any impact on the applicants if the Court were not to extend the time.
6)The exercise itself of the Court’s discretion.
Delay
First, in relation to delay, there has been delay. As I have said, it is a short period: three days. Normally, with some reasonable explanation, such a delay would be at the end of the scale where, in my view and in general a Court would be inclined to find that an extension of time should not be denied to an applicant. But despite the opportunity provided to them, and despite the access to legal advice, the applicants have put absolutely no explanation before the Court even for this albeit short period of delay.
The claimed denial of natural justice, properly, should be seen as a third ground attaching to the substantive application, rather than as an attempt to satisfactorily explain the delay in making the application to the Court.
I am not satisfied that the applicants have provided a satisfactory explanation for the delay. But in my view there is a far greater reason for refusing the application for the extension of time. I agree with Ms Buchanan, there is no reasonable prospect of success of any of the grounds stated in the application, including what I have described as probably the “third ground”.
The Substantive Application
Nor can I discern jurisdictional error on any other possible ground on the material that is before the Court. Nor, indeed, can I discern on the material before the Court any such matter that would require further time to be provided to the applicants, in the interests of the administration of justice, to more properly address what are clearly deficiencies in the pleadings as already put before the Court.
In short, I cannot see that the applicants have any prospect of success in challenging the Tribunal’s decision on the basis of some finding of jurisdictional error.
I can only agree with Ms Buchanan that the first ground of the application seeks impermissible merits review in regard to the Tribunal’s findings in relation to the daughter’s pursuit by the young Muslim man and the applicant’s claims to have been targeted as a result.
On a reading of the Tribunal’s decision record it made findings in this regard which were reasonably open to it to make and for which it gave reasons. It found critical parts of those claims to be implausible as presented, and in any event and critically, that they lacked any Convention nexus.
I seek to put as best a gloss as possible on what has been put in ground one. If the reference to “fail to verify my fear” may be seen as some implication that the Tribunal should have conducted some further inquiry, then such a claim cannot and would not succeed. While I note that it can be said that there is no general duty for the Tribunal to make inquiries, recent High Court authority has confirmed that there are certain circumstances where such inquiries should be made. For example, an obvious inquiry about a critical matter (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39).
But there is nothing in this case on the material before the Court to indicate, let alone to require, any further consideration that the Tribunal had any such obligation. Further, I should emphasise, for the applicant’s benefit in particular, that the Tribunal does not have to make out the applicant’s case (VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300). Nor does it have to uncritically accept what an applicant says (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).
The applicant’s approach today, at best, can be said to be that: “I have problems back in my country. I told the Tribunal. The Tribunal did not accept that and therefore please help me”. I can understand that the applicant is not a person learned in or who has any understanding of the legal system in Australia. But it is in fact the very function of the Tribunal to listen to an applicant’s claims, to consider the claims, and every aspect of the claims, and to make findings of fact, including findings on whether it will accept or not accept what an applicant has said. If all that the applicant can say today is that the Tribunal, for example, should not have found parts of their claims to have been implausible, then on its own and in the circumstances of this case this does not reveal error on the part of the Tribunal.
In looking at the wording of ground one, I cannot see that the Tribunal exceeded its jurisdiction in making factual findings that were clearly within the exercise of its jurisdiction and for which it gave reasons. Nor can I see that there was any constructive failure to take into consideration any of the applicants’ claims. It is the case that the relevant statutory regime that applies to cases of this type is that the Tribunal, having regard to all of the applicant’s claims, must reach a level of satisfaction that the applicant meets the definition of refugee before the protection visa must be granted (s.65 and s.36(2) – SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
For the reasons that it gave and, as I have already said which were open to it, what I am left with is that it cannot be said that there is any prospect of success by the applicants, let alone that jurisdictional error is revealed in what the Tribunal has done.
Ground two provides no particulars whatsoever. It therefore makes it difficult for this ground to succeed. But even again trying to give the best benefit that may be given to the applicants’ case, and even if this is read with what was otherwise described as the denial of natural justice, that is that there was some breach of the provisions of the Act both in terms of the reaching of its reasonable satisfaction and in terms of some denial of natural justice, then on either basis this application has no reasonable prospects of success.
I have already made reference to the relevant statutory regime (s.65 and s.36(2) of the Act) that applies to matters of this type. I cannot find any error in the Tribunal’s decision in that regard. In terms of denial of natural justice, I note that this is a case to which s.422B of the Act applies. This makes the matters that are set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to matters dealt with in that division.
This is of course absent the matter of bias. But no bias is asserted in this matter.
I note that the applicants were invited to a hearing pursuant to s.425 of the Act. That the notice of invitation to appear complied with the requirements as set out in s.425A. That there is a reference to s.426A. The letter of invitation was sent to the applicants at the address for service provided by the applicants in their application. All relevant notice periods were complied with.
The applicants have put no evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. Bearing in mind what the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 about the Tribunal’s procedural fairness obligations in the context of s.425, the Tribunal’s account of the hearing reveals that the issues that ultimately determined the review were exposed to the applicants, and were discussed with the applicants at the hearing.
Nor can I see that any other provision of Division 4 of Part 7 was breached, or not complied with. I note in particular that the Tribunal’s views, its assessment of what the applicants have said, is itself not information for the purposes of s.424A(1). In any event, what the applicants put in writing in the protection visa application and told the Tribunal falls within the various exceptions in s.424A(3) from any obligation in s.424A(1).
I should just note that, while the matter of the claimed threat to the applicant wife because of the murder of the sister-in-law was first raised before the delegate at the interview, if this were said to be “information” it would not come within any of the exceptions contained in s.424A(3). Nonetheless, on the only evidence before the Court, it is clear that the Tribunal’s findings in relation to this matter arose squarely from the extensive examination and evidence given by the applicants at the hearing before the Tribunal. As such, this “information” comes within the exception contained in s.424A(3)(b) from the obligation in s.424A(1).
In all, I cannot see that any error is revealed, or indeed that any of the grounds or complaints put forward by the applicants reveal any merit in the substantive application.
Conclusion
What I am left with in this case, as against the elements that I referred to earlier, is that while the delay was short it remains unexplained. That, while it cannot be said that any real prejudice would accrue to the Minister if an extension of time were to be granted in the circumstances and, while noting that the impact on the applicants is that in all probability they would have to return to India, ultimately I cannot see that there is any merit, or any prospect of success, in the substantive application on the grounds as stated in the substantive application. Nor can I otherwise discern any jurisdictional error on the part of the Tribunal on what has been put before the Court in the Court Book.
On balance therefore, that is the critical factor, in my view in refusing the application for an extension of time pursuant to s.477(2) of the Act. On that basis, I am going to dismiss the substantive application as being not competent. Therefore, I will make an order in those terms.
Costs
It is appropriate that an order for costs be made in the usual way in this matter. There is nothing before me, nor has anything been put before me, to argue against the making of such an order. As to the amount, the amount sought is, in my view, having regard to the work that has been done by the Minister’s legal representatives, a reasonable amount.
I will make the order in that amount.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 3 September 2010
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