SZOYD & ANOR v MINISTER FOR IMMIGRATION & ANOR - [2011] FMCA 410

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYD & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 410

MIGRATION – RRT decision – Indian applicant claiming fear of religious persecution – disbelieved by Tribunal – eight month delay in seeking judicial review – no grounds of merit – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 424A(3)(a), 477, 477(2)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 75 ALD 630
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22
Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, (2010) 117 ALD 44
SZNZU v Minister for Immigration & Anor [2010] FMCA 197

First Applicant:

SZOYD

Second Applicant:

SZOYE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 51 of 2011

Judgment of:

Smith FM

Hearing date:

26 May 2011

Delivered at:

Sydney

Delivered on:

26 May 2011

REPRESENTATION

Counsel for the Applicants:

First Applicant in person

Counsel for the First Respondent:

Mr D Hughes

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 is dismissed as incompetent.
The applicants must pay the costs of the first respondent in the amount of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 51 of 2011

SZOYD

First Applicant

SZOYE

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who arrived in Australia on visitors’ visas in June 2009. On 25 August 2009 they lodged applications for protection visas. They denied receiving assistance in completing the form. In response to questions inviting them to explain why they feared to return to their country of nationality, India, the applicant husband made claims to fear persecution. The applicant wife made no refugee claims of her own. I shall therefore refer to the husband as the applicant.
The applicant claimed that he was the follower of a religious group known as DSS which he joined in 2000. In 2005 he became “in charge of my area as a representative (contact person) of the group …
I managed to attract 2000-3000 followers to join DSS …”. He claimed that in clashes between followers of the DSS and a Sikh group in May 2007, “I got seriously injured when protestors attacked to headquarters of DSS”. He also claimed that he had been “badly bashed by 8-10 unidentified persons” after visiting the headquarters in December 2008. He claimed that as a follower of DSS, the local government authorities, police, and the local Sikh associations are hostile, and that he would not get protection “due to my religious belief and being a member of DSS”.
The applicant was interviewed by a delegate on the telephone, before the delegate made a decision on 16 November 2009. The delegate noted that there was evidence of “violent clashes between the Sikh community and DSS members” in June 2008 and March 2009, and that “violence can occur between Sikhs and the DSS”. However, the delegate thought that information showed that “police have made elaborate security arrangements to ensure protection and the government deploys measures to ensure that members of DSS can practise their religion freely”. The delegate therefore thought that protection would be available in India. The delegate also thought that the applicant could relocate to places where the Congress Party, which supported the DSS, was in power.
The applicant appealed to the Tribunal. He attended a hearing held by video from Griffith on 8 February 2010. The Tribunal set out a description of the hearing in its statement of reasons, and I have no reason not to accept it. According to the Tribunal, it confirmed that the applicants requested that no evidence be taken from the applicant wife.
The Tribunal questioned the applicant about his involvement in DSS, and he made no claims to have had any leadership role. It also asked him to identify “whether he had suffered any harm because of his involvement in DSS”. The applicant then claimed to have been attacked in July 2007 by a Sikh action committee at the headquarters of DSS. The applicant disagreed with a news report which the Tribunal referred to, which suggested that there had been no violence at a protest march against DSS on 9 July 2007.
The Tribunal also questioned the applicant about a number of matters, which ultimately led it to conclude that he did not have “genuine” claims to be a refugee. They included a possibility that there had been “collusion” between the applicant and another protection visa claimant, due to similarities in the two applications. They also included the giving of false banking information in support of the visitor visa application, and the applicant’s delay in applying for protection in Australia until he encountered difficulties with his visitor visa.
These points, and the information upon which they were based, were also put to the applicant for written comment in a letter sent by the Tribunal to the applicant after the hearing on 22 February 2010. The applicant did not respond in a substantive way within the time indicated, although he applied for more time “to submit further documents”, which the Tribunal declined to allow.
The Tribunal made a decision on 29 March 2010, in which it affirmed the delegate’s decision. The Tribunal narrated the claims made by the applicant in his protection visa application in a manner which, in my opinion, indicated awareness of all its elements. It referred to the media information concerning a July 2007 Sikh protest march which was stopped by police. It also recounted what had happened at the hearing, and its subsequent correspondence.
In its “Findings and Reasons”, the Tribunal said:
79.There are a number of omissions, contradictions and evidence of collusion in relation to the primary applicant’s claims and evidence.
The Tribunal explained these matters, which had been discussed with the applicant and put to him in writing. It concluded that the Tribunal could not be satisfied that he “is a witness of truth”. It noted that there was no evidence other than from the applicant, that he was a member of DSS, and it noted that his evidence about his involvement “was vague” and did not indicate “the knowledge or involvement which a member of nine years would be expected to have”. It said: “given this and the Tribunal’s finding that he is not a credible or truthful witness, the Tribunal does not accept his evidence”.
The Tribunal found that he had not been present at the claimed events in July 2007. It also made a series of general findings, including that “the applicant is not a member of DSS”, and that he “was not threatened, beaten up or hurt during attacks by the Khalsa Action Committee”, and that he “does not fear harm from militants or anti-DSS organisations”. It found that he would not be framed in a false police claim, and that he had not been previously denied police protection, nor would be so denied in the future.
It concluded that the applicants had applied for protection visas only “when problems arose about the visitor visa”, and that their claims for protection “are not genuine”. It concluded that the applicant husband was not a person to whom Australia owed protection obligations under the Refugees Convention, and that consequently the applicant wife could not satisfy the secondary criteria in s.36.
The applicant has now asked the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants are refugees, nor whether they should be given any permission to stay in Australia.
The applicants’ original application to the Court was filed on 13 January 2011. This was about eight months outside the time required under s.477 of the Migration Act 1958 (Cth). The Court has power to extend that time under s.477(2), but only if it is “satisfied that it is necessary in the interests of the administration of justice to make the order”.
The applicant did not set out any grounds for invoking that power in an affidavit. In his application he suggested, in effect, that the grounds for extending time were the merits of his grounds for judicial review. Today he asserted in his oral submissions that he had not been aware of “the legal consequences” in relation to applications to the Court, but he has not presented satisfactory evidence to the Court showing an adequate explanation for the delay.
More important in the present circumstances, in my opinion, is that he has not shown any ground of merit which would allow me to characterise an extension of time as being necessary within s.477(2).
His original application has four grounds:
1.The Tribunal did not give to the applicant before the hearing the Independent Country information that it had about the Khalsa March on July 2007 in Punjab and Haryana, India. The Tribunal used this information (RRT decision pages 5 to 6). This was against section 424A of the Migration Act 1958.
2.The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusion that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
4.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 29 March 2010 was effected by actual bias constituting judicial error.
There is no substance in Ground 1, since the Tribunal was under no obligation under s.424A to invite the applicant to comment on general information (see s.424A(3)(a)). Moreover, there is substance in the submission of counsel for the Minister that the Tribunal appears to have followed procedures in relation to the general information it relied upon, which would have been consistent with s.424AA.
In relation to Ground 2, this ground appears to have no application to the reasoning of the present Tribunal. It did not characterise the applicant’s claims as “implausible”, but disbelieved them for other reasons. The applicant was certainly given the opportunity to be heard in respect of the matters with which the Tribunal explained its adverse findings on credibility. No denial of procedural fairness occurred, whether addressed by provisions of the Migration Act or not.
Ground 3 appears to invite the Court itself to form an assessment of the merits of the matter, but this is not its function. In my opinion, the Tribunal’s conclusions were clearly open to it on the evidence before it.
Its reasoning is not shown to have been affected by any jurisdictional error.
The assertion of a failure to investigate the applicant’s claims in Ground 4 appears to be given content in an amended application, which has as its ground:
1.The Tribunal constructively failed to exercise its jurisdiction as it did not address all the integers of the applicant’s claims.
Particulars
The Tribunal did not address the applicant’s claim that he was seriously injured in May 2007 when protesters attacked the headquarters of the DSS; and
The Tribunal did not address the applicant’s claim that in December 2008 he was badly bashed by 8‑10 unidentified persons after visiting headquarters of DSS at Sirsa Haryana.
However, in my opinion the contentions in the amended application cannot succeed. The Tribunal was clearly aware of the two particularised elements in the applicant’s original written visa application (see paragraphs 25 and 28 of its reasons). The Tribunal also made findings which, in their generality, addressed all of those elements, in particular its findings which I have referred to above and are found in paragraphs 96, 102, and 108 of its reasons. It is understandable that the Tribunal should give particular attention in its “Findings and Reasons” to the only claim which might appear to have been maintained by the applicant at the hearing, being the claim of being injured in events in July 2007.
I am not persuaded that the omission of further discussion about the two particularised elements in the applicant’s visa claim is probative of a failure to consider them, accepting that in other cases such inferences might be available (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75], Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108 at [43] and [97], and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22 at [33] and [73]).
In my opinion, the Tribunal’s reasons should be understood as containing a complete general rejection of the applicant’s credibility and all his claims, with findings which “subsumed” all the elements of his refugee claims found in the applicant’s visa statement and his evidence to the Tribunal (compare Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, (2003) 75 ALD 630 at [47], Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91], and MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, (2010) 117 ALD 44 at [110]).
I have therefore not found any ground of jurisdictional error of merit raised by the applicant’s application and amended application, nor have I otherwise found any ground of merit.
I have taken into account the various other considerations which may inform the discretion under s.477(2) (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52]‑[54]), but on balance I do not consider that they support an extension of time in the present case by establishing that it is necessary in the interests of the administration of justice.
In my opinion, the appropriate exercise of discretion would be to refuse the extension of time, and therefore dismiss the application as incompetent.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 3 June 2011