SZQLD v Minister for Immigration & Anor
[2011] FMCA 784
•10 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 784 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – applicant’s fear found to be not well-founded – applicant delaying appeal to the Court while seeking Ministerial intervention – refusal of an extension of time. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 477 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 |
| Applicant: | SZQLD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1512 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 10 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
INERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application filed on 18 July 2011 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1512 of 2011
| SZQLD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 February 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had sought protection on the basis of claims of caste based persecution. The following background facts are derived from written submissions filed on behalf of the Minister on 4 October 2011.
Factual background
On 26 June 2004, the applicant arrived in Australia from India [court book “CB” 22].
On 6 August 2010, the applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa [CB 1-33]. The applicant attached a statement to his application [CB 18-19], in which he claimed that:
a)his father “has warn (sic) me that if I come back to Indi (sic) he will kill me to clean his sin which he carries due to my refusal to accept his religion” as the applicant has refused to follow his father's strict Sikh practices [CB 19, para 25]; and
b)his father, his wife's family and Sikh fanatics will hurt him if he returns to India as his wife is from an inferior caste to his own [CB 19, para 26].
On 22 September 2010, a delegate of the Minister wrote to the applicant, inviting him to attend an interview with an officer of the Department on 11 October 2010 [CB 34]. The applicant attended this interview [CB 41].
On 18 October 2010, a delegate of the Minister refused the applicant's application for a protection visa [CB 40-48]. The applicant was notified of this decision by letter dated 18 October 2010 [CB 36-39].
On 10 November 2010, the applicant sought review of the delegate's decision by the Tribunal [CB 54-57].
On 13 December 2010, the Tribunal invited the applicant to appear before it on 11 January 2011 to give evidence and present arguments relating to the issues arising in his case [CB 67].
On 21 December 2010, the Tribunal invited the applicant to appear before it at a rescheduled hearing on 1 February 2011 [CB 74]. The applicant attended that hearing [CB 81].
On 15 February 2011, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa [CB 91-103]. The Tribunal notified the applicant of that decision by letter dated 15 February 2011 [CB 90].
The Tribunal summarised the applicant's claims at [76] of its reasons for decision, stating [CB 94, para 21]:
The applicant's father has threatened to kill him if he returns to India. The applicant's in laws believe that the applicant has trapped his wife into marriage and the applicant fears that they will hurt him if he returns to India...He believes that his life would be in danger if he returned to India due to his father's fanatical beliefs and because his wife's parents believe that the applicant married their daughter against their will, and due to Sikh fanatics and gurdawaras.
The Tribunal made the following findings in rejecting the applicant's refugee claims:
a)the applicant and the applicant's wife are both Sikhs, however the applicant's wife practices her religion more strictly than the applicant [CB 100, para 54];
b)the applicant and his wife are from different castes [CB 100, para 54];
c)while the applicant's wife's family have never spoken to the applicant, there is no evidence that they will harm the applicant if he returns to India [CB 100-101, para 54, 56];
d)inter caste marriages are not viewed favourably in India, however country information indicates that generally no further action is taken by members of the community [CB 101, para 55];
e)while there has been conflict between the applicant and his father over the practice of their religion since 2002, and the applicant's father does not approve of the applicant's marriage [CB 101, para 57], the applicant has not experienced serious harm (as defined by the Migration Act 1958 (Cth) (“the Migration Act”)) [CB 101, para 57] and the applicant's father has not threatened the applicant with serious harm [CB 102, para 60];
f)that “rejection and ostracism by one's own family would not usually constitution persecution. However, ... inter-caste marriage is viewed with disapproval in India and has led to violence” [CB 101, para 57];
g)the applicant's relationship with his father is “characterised by estrangement and ostracism rather than active antagonism or hostility” [CB 102, para 61]; and
h)the fear that the applicant's father may use his Sikh networks to harm the applicant is far-fetched [CB 103, para 64].
The Tribunal accordingly concluded that [CB 103, para 65]:
The Tribunal has considered the applicant's claims individually and cumulatively. The Tribunal finds that the applicant has not suffered any past Convention-related persecution or similar harm in India. The Tribunal concludes that there is no real chance of the applicant facing harm for a Convention reason if he returns to India. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable further, if he returns to India.
The Tribunal could not be satisfied that the applicant is a person to whom “Australia has protection obligations under the Refugees Convention” and therefore concluded that he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection visa [CB 103, para 66].
The present application
The application before the Court was not filed until 18 July 2011. The Minister calculates, and I accept, that in order for the application to have been filed in accordance with the time limit prescribed in s.477(1) of the Migration Act, the application would need to have been filed by 22 March 2011. It was filed 119 days late.
The need for an extension of time was identified in the application. The application was supported by an affidavit by the applicant in which he sought to explain the delay in coming to court. I received that affidavit for the purposes of today’s interlocutory hearing. I also received as evidence the court book filed on 24 August 2011.
The applicant was cross-examined on his affidavit. He impressed me as a frank and honest witness. It was also apparent that he is conversant in the English language as he gave his evidence in a combination of English and Punjabi. He was assisted by an interpreter in the Punjabi and English languages.
The applicant frankly acknowledged receipt of the notification of the Tribunal’s decision dated 15 February 2011. That notification is reproduced at CB 90. There was no issue regarding the applicant’s address at which he continues to reside. The applicant also frankly acknowledged receipt of and regard to the document reproduced at CB 104 and 105 which sets out information to applicants about their rights following an unfavourable decision of the Tribunal.
Consideration of an extension of time
On the issue of whether the Court should extend time for the filing of the application, I am not persuaded that an extension of time should be granted. First, the delay of 119 days is a significant one. Parliament has prescribed a time limit of 35 days for policy reasons and an extension of time of approximately three times that time limit should not be lightly granted. I accept as truthful the applicant’s explanation for his delay in coming to court. The applicant, in light of the notification received from the Tribunal and the information about his rights, sought guidance from a friend who had also been through the process of review before the Tribunal. That advice was that the applicant’s best course was to seek ministerial intervention. The applicant accepted that advice and sought that intervention. That approach was unsuccessful. The applicant now believes that he has made a mistake. I do not think that necessarily follows. In my view, on the applicant’s evidence, he made a rational choice, based on his circumstances and his available options.
The Minister relies upon the Full Federal Court decision of Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [29]:
I do not think that the applicant’s approach to the Minister under s.351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s.351 proved unsuccessful.
It does not appear on the authorities that an applicant who seeks ministerial intervention is disqualified from later seeking an extension of time to file an application for judicial review of a Tribunal decision. However, the exercise of a rational choice to pursue ministerial intervention in preference to the pursuit of a legal right of review on a question of law is not a persuasive reason for the grant of an extension of time, simply because the approach to the Minister was not successful. To put it bluntly, applicants who make a rational and informed choice are not entitled to have their cake and eat it, too.
In my view this applicant made a rational and informed choice. I am not persuaded that the applicant has advanced a sufficient explanation for his delay in bringing these proceedings.
Even if I had been persuaded that the applicant had adequately explained his delay, I would not have been satisfied that the interests of the administration of justice required the granting of an extension of time. In my view, the application does not raise a serious legal question to be tried. The grounds in the application filed on 18 July 2011 are:
(1) The Tribunal made jurisdictional error since it held that rejection or ostracism by family would not usually constitute persecution.
(2) The Tribunal made jurisdictional error since it held without any basis that … my claim that my wife’s family will harm me was speculation and without any foundation.
(3) The Tribunal made jurisdictional error since it held that there was no serious harm for me from my father.
(4) The Tribunal made jurisdictional error because although it said that the Tribunal considered the cumulative harm it said that without seriously listing them and considering them together.
(5) The Tribunal made jurisdictional error as it deliberately ignored overwhelming country information it set out in its decision that says there is violence as a result of inter-caste marriage and chose to rely on one piece of information without any justification.
(6) The Tribunal made jurisdictional error since it ignored evidence given in the statement with the Protection Visa Application of harm from my father an my in-laws.
The Minister’s submissions address those grounds in paragraphs 23 to 36:
Grounds 1 and 3
The Minister submits that the grounds of the substantive application and, in particular grounds 1 to 3 of the application, seek to engage the Court in merits review of the Tribunal’s decision. Grounds 1 to 3 merely repeat conclusions reached by the Tribunal which were adverse to the success of the applicant's protection visa application and the Minister submits that the generality of these grounds appear to invite merits review of the Tribunal’s decision, which is not a permissible ground of judicial review: Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 292.
The Minister further submits that the Tribunal considered the applicant's claim that he might suffer harm at the hands of his father if he returns to India, but found that his relationship with his father is “characterised by estrangement and ostracism rather than active antagonism or hostility” [CB 102, para 61] rather than a history of serious harm [CB 101, para 57] and found that the applicant's father had not threatened the applicant with serious harm [CB 102, para 60].
The Minister submits that the Tribunal’s findings were reasonably open to it and, in this context, there is no error, either in the Tribunal's conclusion that “rejection and ostracism by one's own family would not usually constitution persecution” [CB 101, para 57] or in the Tribunal’s finding that there was not a real chance that the applicant will be harmed by his father if he returns to India [CB 101-103, paras 57, 60, 62].
Ground 2
As to Ground 2 of the application, the Minister submits that the Tribunal's finding, that there is no evidence that the applicant's wife's family will harm the applicant if he returns to India [CB 100-101, paras 54, 56] was reasonably open to it on the basis of the material before it. The Tribunal’s reasons for decision show that the Tribunal had regard to a range of material, including information given by the applicant, which led the Tribunal to find that the applicant's wife's family has not threatened the applicant, but have simply “avoided contact with him” [CB 101, para 56].
The Minister submits that this was a factual finding which the applicant is not permitted to challenge in this Court: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
Ground 4: alleged failure to consider the applicant's claims
Ground 4 of the substantive application alleges that the Tribunal did not properly consider the applicant's claims of potential harm. The Minister submits that the generality of this claim also appears to impermissibly invite merits review of the Tribunal 's decision: Abebe v Commonwealth of Australia at 53-54; Minister for Immigration v Wu Shan Liang at 272 and 292.
The Minister submits that, in any case, the Tribunal's reasons for decision show that the Tribunal understood and considered the applicant's claims of potential harm and made findings in relation to them which were reasonably open to it on the material before it.
In particular:
a)the Tribunal 's reasons for decision set out in detail the claims and evidence the applicant had presented in his visa application [CB 94, para 19-21], in his Departmental interview [CB 94-96, para 22-28] and to the Tribunal during the hearing [CB 96-99, para 29-45];
b)the Tribunal detailed the applicant's claims in relation to both the alleged harm faced from his wife's family [CB 102-103, paras 54-56] and his own family [CB 103-105, paras 57-63]; and
c)the Tribunal made findings in relation to the applicant's claims, which were reasonably open to it on the basis of the material before it, which were adverse to the applicant's position [CB 101-103, paras 55-57], having regard both to the applicant's individual claims and to the cumulative effect of the possible sources of harm [CB 105, para 65].
Grounds 5 and 6: alleged failure to consider evidence
The Minister submits that grounds 5 and 6 of the substantive application also seek to impermissibly invite merits review of the Tribunal's decision by challenging the way in which the Tribunal addressed the evidence before it. It is settled law that findings of fact, and the weight the Tribunal accords to before it, are matters within the proper exercise of the Tribunal's function: Re Minister for Immigration; Ex parte Durairajasingham at 423; Minister for Immigration v Wu Shan Liang & Ors at 291; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[12].
In addition in relation to ground 5, the Minister submits that, in any case, the Tribunal did not “ignore” country information which indicated that violence may arise from inter-caste marriage.
The Tribunal accepted that “inter-caste marriage is viewed with disapproval in India and has led to violence” [CB 101, para 57], but found that country information indicates that generally no further action is taken by members of the community [CB 101, para 55] and the applicant had not experienced harm, and was not a real chance of suffering any harm from the sources from which he claimed to fear harm, namely his father and his wife's family [CB 100-102, paras 54-57, 60]
The Minister submits that these were findings which were reasonably open to the Tribunal on the material before it.
As to ground 6 of the application, the Minister submits that, as described above, the Tribunal's reasons for decision show that the Tribunal had regard to the applicant's claims of alleged persecution, both from his father and his wife's family.
The Minister submits that while a mere failure to have regard to particular facts will not constitute jurisdictional error on the part of the Tribunal: Re Minister for Immigration; Ex parte Durairajasingham at [36], there is no evidence that the Tribunal “ignored” the evidence set out in the applicant's protection visa application in any case.
The Minister submits that the contrary is true. As described in paragraphs 24 and 29 above, the Tribunal’s reasons for decision set out in detail the claims and evidence the applicant had presented in his protection visa application [CB 94, paras 20-21], including his alleged fear of harm at the hands of his father, but made findings which were adverse to the applicant's position [CB 101-103, paras 55-61]. The Minister submits that findings of fact are within the proper exercise of the Tribunal’s function: Re Minister for Immigration; Ex parte Durairajasingham at 423.
The applicant did not make any written submissions but did make oral submissions. He submits in relation to ground 3 that the Tribunal should have made additional inquiries about his past experience of harm. However, it is clear from the decision of the High Court in Minister for Immigration v SZIAI (2009) 259 ALR 429 that the Tribunal is under no general duty to inquire. I see in this case no obvious and important issue that might have been determinative of the application that the Tribunal needed to pursue. The applicant also submitted that he also had problems with his wife’s family in addition to his own because of his inter-caste marriage. That may well be so. The applicant impressed me as a genuine and honest person. The Tribunal itself accepted that the applicant had experienced problems with his family because of his marriage.
In my view, the applicant is unable to point to any arguable case of jurisdictional error by the Tribunal. Put simply, the Tribunal was unable to be satisfied that the applicant’s circumstances placed him in the position of a person requiring protection because of a well-founded fear of persecution for a Convention reason. I think it inevitable that this case would have resulted in a finding that the Tribunal’s decision and process was free from jurisdictional error.
I conclude that the application for an extension of time under s.477(2) of the Migration Act should be refused. I so order. The outcome is that the application filed on 18 July 2011 should be dismissed and I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in accordance with the Court scale in the sum of $3,123. The applicant indicated that he might require time to pay. That is a matter that can be taken up with the Minister’s Department or its solicitors. I am satisfied that costs in accordance with the Court’s scale have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 October 2011
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