SZOWW v Minister for Immigration - [2011] FMCA 274

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWW v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 274

MIGRATION – RRT decision made in 1998 – application for review filed in 2010 – delay inadequately explained – no arguable merit – failure to disclose prior litigation – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.417, 476, 477, 477(2), 486D, 486D(1)
Migration Legislation Amendment Act (No.1) 1998 (Cth)
Migration Legislation Amendment Act (No.1) 2009 (Cth), Sch.2 cl.7

Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
MZXLD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 282
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
SZKUT v Minister for Immigration & Anor [2008] FMCA 241

Applicant:

SZOWW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2792 of 2010

Judgment of:

Smith FM

Hearing date:

15 April 2011

Delivered at:

Sydney

Delivered on:

15 April 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is dismissed as incompetent.
The applicant must pay the costs of the first respondent in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2792 of 2010

SZOWW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in January 1997 on a three month temporary visa, which was granted to enable him to follow missionary studies with the Church of Scientology. On 13 March 1997, he applied for a protection visa with the assistance of a Melbourne solicitor.
The application claimed that the applicant feared persecution if he returned to his country of nationality, Nepal. The solicitor described his claims, which indeed were not shown in any more detail in other documents given to the Department, as follows:
GROUNDS OF CLAIM
[The applicant] is a Christian from Nepal. He fears persecution for reasons of religion if he returns to Nepal because he had the misfortune to kill a cow which is protected as a sacred animal under the law of Nepal. Christians are a minority in Nepal and are much despised or hated by the Hindu majority. Although there is nominally freedom of religion in Nepal, law of the kingdom in shrines [sic: enshrines] certain Hindu principles, including veneration for the cow. We are instructed that the penalty for bovicide in Nepal is twenty years in prison.
We therefore submit that [the applicant] is a refugee as penalty of twenty years in prison for breach of a Hindu precept is so grave as to amount to persecution and is inflicted for reasons of religion.
A delegate of the Minister decided on 30 June 1997 that the visa application should be refused. The delegate said that she had some reservations as to the credibility of the claims. She also thought, relying on country information, that the applicant would not face a risk of more than a fine for having accidentally killed a cow. The delegate also referred to country information that there was “no restriction in practising Christianity in Nepal if it is being followed by one’s self will”.
The applicant appealed to the Refugee Review Tribunal assisted by his solicitor. Two letters were submitted in purported corroboration of the claims, and the applicant and his solicitor attended a hearing of the Tribunal on 24 August 1998. His solicitor also made a written submission addressing the applicant’s claims and the delegate’s reasoning.
The Tribunal did not set out a description of the hearing in its statement of reasons, and it is impossible on the evidence available to me today to know exactly what was or was not discussed. It does appear to me, however, that it is more likely than not that the Tribunal discussed with the applicant and his solicitor the matters of concern upon which it later decided the case. Certainly, issues as to the general situation in Nepal relevant to the applicant’s claims appear to have been canvassed by the applicant’s solicitor in his written submissions, if not his oral submissions.
The Tribunal made a decision on 18 September 1998, affirming the delegate’s decision. The Tribunal properly identified the claims before it, and referred to the same country information which the delegate had identified. The Tribunal’s reasoning was framed in the alternative.
First, the Tribunal did not accept the credibility of the claims made by the applicant. It referred to the brevity with which they had been presented, and concerns about the self‑serving nature of the corroborative evidence.
Secondly, the Tribunal referred to the country information suggesting that cow killing by anyone in Nepal was a crime, and that there was no information suggesting that it was used “as a pretext to persecute people for any Convention‑related reason”. The Tribunal also considered whether the government of Nepal would be complicit in a discriminatory persecution of the applicant by reason of the incident he referred to or his religion, and said:
… the Tribunal has seen nothing in the material submitted by the applicant, nor in its own research, which suggests that the Government of Nepal persecutes or condones persecution of people for their religious beliefs.
The Tribunal did not accept that there was a real chance that the applicant would face persecution for a Convention reason if he were to return to Nepal at that time or in the foreseeable future.
The records of the Department which are before me show that subsequently the applicant’s solicitor applied for a discretionary decision by the Minister under s.417 of the Migration Act 1958 (Cth), but that this was unsuccessful, as notified by a letter dated 1 July 1999.
The applicant then joined representative proceedings in the High Court, which led to a series of individual applications for orders nisi being filed in the High Court, which were remitted to the Federal Court. A large number of these were addressed by Emmett J in a judgment on 30 April 2004 published as S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872. The applicant’s matter, in which he was referred to as S1850 of 2003, was one of these matters.
As his Honour’s judgment noted, they had all been commenced by a firm of solicitors in Sydney, Ward Maxwell & Co, using identical documentation. His Honour said that “there is nothing in the material that discloses any arguable case for the grant of any relief” to any of the applicants. His Honour therefore refused the applications for orders nisi, including the applicant’s. His Honour’s judgment noted that the outcome would not preclude the bringing of fresh proceedings based on proper grounds, and that any delays in doing that would be addressed if and when such proceedings were brought.
The applicant today acknowledged that he was aware of the Tribunal’s decision, and of his unsuccessful s.417 application, and of his unsuccessful application to the High Court brought by Ward Maxwell & Co.
However, he did not bring any new proceeding to challenge the Tribunal’s decision, until his present application was filed in this Court on 23 December 2010.
The jurisdiction which he now invokes is conferred by s.476 of the Migration Act and is subject to a time limit in s.477. As amended in 2009, this requires applications to be brought within 35 days after the making of a decision, but gives the Court a discretion to extend that time if it is satisfied that this is “necessary in the interests of the administration of justice”. A transitional provision applied the time limit to applications for review of decisions made before the amendment, so as, in effect, to cause the 35‑day time limit to run from 15 March 2009 [see Sch.2 cl.7 of the Migration Legislation Amendment Act (No.1) 2009 (Cth)].
On that basis, the applicant needs an extension of at least a year and a half. It is well established that when considering what is necessary in the interests of the administration of justice, the Court can and should take into account any preceding additional delays, which would also be relevant to the discretionary nature of the relief were the application to be rendered competent by way of an extension of time (see, for example, the reasoning of Crennan J in MZXLD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 282).
Although the issues of delay were brought to the applicant’s attention at the first court date, he has not filed any evidence elucidating his explanations for his long delay before commencing the present matter, if only measured from the dismissal of his High Court matter by Emmett J.
In his application to the Court, he makes the following three general assertions:
Grounds of application for an extension of time
1.No work permit resulted me being destitute and was financially hardpressed.
2.Fear of persecution and psychological effect feared me to return to Nepal.
3.Now recd assistance from: refugee centre and social worker met in church.
The applicant today referred in similarly general language to problems in his personal life and situation. He also frankly conceded that, in effect, he had decided to stay in Australia unlawfully without attracting attention to himself. He suggested that the turmoil in Nepal which has occurred while he has been in Australia was a substantial reason for his reluctance to return.
One can have sympathy with his situation. However, in my opinion he has not presented acceptable explanations for a very long delay. If I did extend time, then authorities in relation to the discretion would inevitably require the refusal of relief (compare Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20, and SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at [52]).
Moreover, in my opinion, the applicant has not pointed to arguable grounds of review, if time were extended to allow his application to proceed.
A discursive document attached to his application contains grounds of appeal, which have been further addressed by an attachment to an affidavit. These appear to raise a number of grounds which I would distil as follows.
The first ground alleges that the Tribunal “would have had perceived bias against the applicant”, thereby invoking principles of apprehended bias. The argument in support is that “the Tribunals conducting the Hearing did not raise any specific issues in relation to the applicants’ claim and more or less ran the hearing in a manner that it allowed the applicant to say what he wanted”. There are also suggestions that its reasoning was so unreasonable as to allow an inference of a closed mind prior to decision, with a reference to the judgment of Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328.
However, the applicant has not presented any evidence in support of anything happening at the hearing which might provide evidence in support of a ground of apprehended bias. Even if the Tribunal limited the numbers of its questions, this would not show a closed mind, but would show the Tribunal affording the applicant the opportunity required to present his evidence and submissions to it at a hearing. The applicant had ample opportunity, with the assistance of a solicitor, to have presented his detailed case. There was nothing probative of bias in the reasoning of the Tribunal.
The second ground is that the Tribunal did not “[take] into account the ARTICLES enumerated on page 9 of the Decision”. At that part of its decision, the Tribunal set out the information received from the Department of Foreign Affairs and Trade about prosecutions for cow death. Plainly, in my opinion, the Tribunal did take that information into account.
The third ground suggests that the Tribunal did not address the applicant’s claims, and in particular the arguments presented by his solicitor. However, in my opinion, the Tribunal clearly did address the refugee claims before it, and there is no evidence that would allow an inference that it failed to consider the arguments presented by the applicant’s solicitor.
The fourth ground, which is suggested at several places in the applicant’s documents, is that the Tribunal’s reasoning was affected by irrationality or unreasonableness, so as to infer a failure to exercise jurisdiction according to law. However, in my opinion the reasoning of the Tribunal plainly shows otherwise.
The fifth ground is that “the Tribunal has breached S.424A of the Act”. However, that provision had not come into effect at the time of the Tribunal’s decision, since it was introduced by the Migration Legislation Amendment Act (No.1) 1998 (Cth) and commenced on 1 June 1999.
The sixth ground is that the Tribunal “misconceived the concept of persecution under the Convention”. Such a contention has not been developed in the applicant’s documents, and I am unable to identify any substance to it. It appears to me that the Tribunal’s decision was consistent with authorities which prevailed at the time of its decision, and remains consistent with later decisions of the High Court, in particular Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal considered whether a prosecution of the applicant for cow killing would be persecution under the Convention, and whether any harm encountered by the applicant would be attended by elements of discrimination or third party persecution for a Convention reason which was condoned by the government of Nepal. As I have indicated, the Tribunal was satisfied otherwise.
Taking into account all the points raised by the applicant’s documents, I am unable to identify in them any arguable ground of review, and certainly not one of sufficient strength itself to provide justification for a lengthy extension of time “in the interests of the administration of justice”. In my opinion, a proper exercise of that discretion must lead to the refusal of the application for extension of time.
In the absence of an extension, the application is incompetent and should be dismissed on that ground.
In my opinion, the application is also incompetent because the applicant failed when completing his application form, or in any other document filed when commencing the matter, to comply with an obligation under s.486D(1) of the Migration Act:
486DDisclosing other judicial review proceedings
(1)A person must not commence a proceeding in the Federal Magistrates Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
I considered the effect of this provision in SZKUT v Minister for Immigration & Anor [2008] FMCA 241, and concluded that a failure to comply with s.486D(1) went to the competency of the application and was not able to be remedied by way of amendment. That section has not been amended, in particular at the time of the amendments to the time limit in s.477, and in my opinion my reasoning should be followed. I would therefore have dismissed the application as incompetent under s.486D, if I had not decided that it was incompetent under s.477.
I shall make orders in accordance with the above reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 21 April 2011