SZQMO v Minister for Immigration
[2012] FMCA 78
•14 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 78 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – no reasonably explanation for delay – no merit to the substantive application – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.417, 476, 477 |
| SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SZMIA v Minister for Immigration & Anor [2010] FMCA 316 SZQSS v Minister for Immigration & Anor [2012] FMCA 31 |
| Applicant: | SZQMO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1652 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 February 2012 |
| Date of Last Submission: | 6 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made on 2 August 2011 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $4,755.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1652 of 2011
| SZQMO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 2 August 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 March 2011, which affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa.
Background
The applicant is a citizen of Nepal who arrived in Australia on 5 April 2009 on a spouse migrant visa (Court Book – “CB” – CB 21, CB 30). He returned to Nepal briefly in February 2010 (CB 22). The applicant withdrew his application for a subsequent spouse visa on 6 April 2010 after the relevant sponsorship was withdrawn following the breakdown of the relationship (CB 33). He applied for a protection visa on 30 July 2010 (CB 1 to CB 32).
Claims to Protection
The applicant’s claims to protection are contained within his application for a protection visa (CB 18 to CB 20). He claimed that his ex-wife’s family are “furious and mad” because of the divorce and are threatening his life. His own family (his uncles and their children) had disowned him because of his conversion from Hinduism to Christianity. He claimed that he had been threatened, and will be killed if he returns to Nepal, as political instability has resulted in a “minimal” security level in which the authorities cannot offer him protection.
The Delegate
Following the interview, the delegate was not satisfied that any harm suffered by the applicant in Nepal would be for a Convention-related reason (CB 53). The delegate was not satisfied that any “actual” threats had been made in relation to his conversion to Christianity. But that if any threats had been made, this would not constitute “serious harm” (CB 54). The delegate also noted that the applicant had returned to Nepal between 28 February and 29 March 2010 to visit his mother and was not harmed during this time, suggesting that his fear of harm was not well-founded (CB 54). While the delegate accepted that the applicant may be ostracised by his extended family, she did not consider this to amount to “persecution” as defined in the Act (CB 54). The delegate concluded that the applicant’s fear of harm was not
well-founded, and refused the grant of a protection visa (CB 55).
The Tribunal
The applicant applied for review by the Tribunal on 30 November 2010 (CB 56). He was invited to attend, and attended, a hearing before the Tribunal on 11 February 2011. By decision dated 14 March 2011, the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa ([161] at CB 93).
The Tribunal found the applicant to be “generally truthful” and a generally credible witness ([110] at CB 86), accepted that he became a “genuine Christian” in Australia ([111] at CB 87), and accepted the genuineness and circumstances of the applicant’s marriage and subsequent divorce ([112] to [113] at CB 87).
However it did not accept that his conversion to Christianity gave rise to a real chance of serious harm or persecution ([115] to [122] at CB 87 to CB 88). Similarly, the Tribunal did not consider that the applicant would face a real chance of similar harm from Hindus as a result of proselytising and that relevant State laws were laws of general application ([123] to [127] at CB 88). Nor did it accept that the applicant faced serious harm from his family as a result of his conversion ([130] to [137] at CB 89 to CB 90). Likewise, the Tribunal did not find that the applicant would face serious harm in Nepal as a result of his divorce, either from his ex-wife’s family or more generally ([143] to [155] at CB 91 and CB 92).
Application to the Court
The substantive application to the Court is in the following, unparticularised terms:
“1. The Refugee Review Tribunal failed to accept my fear of persecution as a Christian.
2. The Tribunal failed to apply the law.”
Also before the Court is an application for an extension of time in the following terms:
“1. Please see my letter to Hon. Minister dated 7 April 2011 and his reply dated 7 July 2011.”
Before the Court
Before the Court the applicant appeared in person. He was assisted by an interpreter in the Nepalese language. Mr R Baird appeared for the first respondent. In addition to the Court Book, the Court was assisted by written submissions filed by the first respondent.
Application for Extension of Time
Section 477(1) of the Act provides that applications to this Court of the type made by the applicant must be made within 35 days of the date of the Tribunal decision.
In the current case the Tribunal’s decision was made on 14 March 2011. The application to the Court was made on 2 August 2011, some three months out of time.
Section 477(2) provides that upon application the Court may extend the time for the making of the application if it is in the interests of the administration of justice to do so. The relevant elements, as I have previously found, include:
1)The extent of the delay and the reason for the delay.
2)Whether there is any merit in the application.
3)Whether there is any prejudice to the respondents.
4)The impact on the applicant.
5)The interests of the public at large.
6)The Court’s discretion itself.
[SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 (“SZQDG”) at 23.]
The delay of over three months is not at the greater end of the scale for matters of this type. However, the applicant has put only one reason before the Court as explanation for the delay. Although he provided no evidence, I accept, in light of the Minister’s evidence (see CB 94 to CB 104), that the applicant sought Ministerial intervention in his case pursuant to s.417 of the Act. It can be inferred from advice provided to him that the applicant was on notice, at least before the end of April 2011, of the option of pursuing judicial review (see CB 96.7).
He did not do so. In these circumstances, and on its own, this does not provide a satisfactory explanation for the delay (see authorities referred to and consideration in SZQDG at [45] – [46]). This may be sufficient, on its own, to justify the refusal of any extension of time (see Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 at page 16 of 19 of the transcript per Hayne J, Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 at page 24 of 28 per Crennan J, Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [5] per von Doussa J).
Before the Court the applicant said that, given that his case had been referred to the Minister for consideration for intervention, he had every expectation that the Minister would intervene and provide a positive outcome to him. The implication was that he did not come to Court because he thought it would be unnecessary in the circumstances, and would in any event save him money.
This is not a case, as is sometimes seen in matters of this type, where the Minister’s department initiates a referral to the Minister for consideration of his intervention powers. Here, this process was initiated by the applicant with his letter of 7 April 2011 (CB 94 to CB 95).
Whatever else happened subsequently, it is clear that, following notification of the Tribunal’s decision sometime immediately after 15 March 2011, the applicant elected not to pursue judicial review, but rather Ministerial intervention (CB 68).
Further, there is nothing in the letter from the Departmental officer, acknowledging receipt of his request and requesting further information to be put to the Minister, to say that any reasonable expectation arose that the Minister may intervene. In fact, the letter cautioned the opposite:
“You should also be aware that the Minister is under no obligation to intervene in your case. This means that you should not discontinue any application for judicial review on the expectation that the Minister will intervene.”
In these circumstances, the applicant’s explanation for the delay remains unsatisfactory. That he elected to pursue Ministerial intervention because it would save money does not alter this state of affairs.
In any event, the refusal to extend time can be separately seen to be appropriate when regard is had to the grounds of the substantive application (see at [8] above). Even when read as widely as possible the grounds lack merit. It would be inappropriate in these circumstances to extend time.
Before the Court the applicant did not provide any particularity or detail to explain these grounds. I did confirm that the applicant had consulted the lawyer on the panel of the Court’s “RRT Legal Advice Scheme”, thus providing the opportunity to understand the need for some substance to be added to his grounds.
The applicant’s complaint before the Court was to say that the Tribunal accepted that he had become a Christian (as noted in the Minister’s written submissions at [7]), and that conditions in Nepal “are not good at present” ([109] at CB 86), yet the Tribunal still found adversely to him.
The applicant’s complaint misunderstands the nature of the Tribunal’s analysis underpinning its conclusion.
It is the case that the Tribunal did accept that the applicant was “generally truthful” and “generally came across as a credible witness” ([110] at CB 86). It accepted that “… he became a genuine Christian in Australia” ([111] at CB 87).
The Tribunal did consider whether the applicant’s conversion to Christianity gave rise to a real chance of serious harm if he were to return to Nepal in the foreseeable future ([115] at CB 87).
The Tribunal had earlier made reference to the general situation in Nepal, including that there was country information available that supported the view of a breakdown in law and order (at [109]). It then went on to consider other country information, specific to the various aspects of the applicant’s claims. These were Christians who sought to proselytise ([117] to [118] at CB 87), harm by Nepalese Hindus ([119], [121]), and both ([123] to [127] at CB 88), and from his family who are strict Hindus aligned with the World Hindu Organisation ([128] to [129] at CB 89).
The choice of, and weight to be assigned, to country information is for the Tribunal in the proper exercise of its jurisdiction (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). Such analysis sits at the heart of the review which the Tribunal is empowered to conduct.
In these circumstances, the applicant’s ground as explained by his complaint to the Court does not rise above a challenge to the facts as found by the Tribunal. Findings of fact that were reasonably open to the Tribunal on what was before it. No legal error is revealed in these circumstances (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
The applicant did not only misunderstand the nature of the Tribunal’s analysis. Despite opportunity afforded to him through consultation with a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”, it was clear before the Court that the applicant also misunderstood the nature of these proceedings. No amount of explanation by the Court seemed to alter the applicant’s position that the Court could intervene to substitute its own findings of fact for those of the Tribunal.
Towards the conclusion of the hearing the applicant sought to hand up a bundle of documents which he said were relevant to his case. It was clear that he meant his case for protection and not judicial review.
Nonetheless, the balance of convenience and efficiency necessitated that I accept the tender of these documents. They are various printouts of internet material:
1)“Nepal Defends Law Against Evangelism” [“Worthy Christian News – Daily News Service”] (15 June 2011).
2)“Kathmandu, high risk of attacks against Christians” [“email this to a friend”] (16 March 2011).
3)“”New Threats, Old Enmity Pummel Nepal’s Christians” (16 September 2011).
The documents are of no assistance to the applicant’s case for, at least, two reasons.
First, as they go to the question of whether, as a Christian, he faces persecution in Nepal, without anything else, they plainly were submitted as part of the applicant’s challenge to the facts as found by the Tribunal.
Second, they all clearly post-date the date of the Tribunal’s decision (14 March 2011). As such they are not relevant to the Tribunal’s decision and cannot reveal jurisdictional error on the part of the Tribunal.
In written submissions the Minister makes reference to the Tribunal’s state of satisfaction as to whether Australia has protection obligations for the purposes of a protection visa and that the Tribunal’s decision is only reviewable if the decision as a whole can be described as illogical or irrational.
The Minister’s answer to the question posed is that no criticism can be levelled at the Tribunal in this case when the reasoning of Crennan and Bell JJ, and the related understanding of Heydon J, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) is applied (see also the reference to the application of this in earlier cases considered by this Court: SZMIA v Minister for Immigration & Anor [2010] FMCA 316 per Lloyd-Jones FM and SZQSS v Minister for Immigration & Anor [2012] FMCA 31).
I accept the Minister’s submission that the Tribunal’s decision, when read as a whole, does not reveal any illogical or irrational reasoning as explained by the majority of the High Court in SZMDS.
What was not clear, however, was why the Minister included this reference in submissions. The Minister’s representative could not explain the reason for this submission.
In any event, this caused me to further consider the Tribunal’s decision to see if any such error could at least be asserted such as to necessitate the submission made.
At [132] to [134] (at CB 89), the Tribunal was concerned with its analysis of the threats said to be directed to the applicant by his uncles and their families:
“[132]… He did not claim to have received any threats directly from his family members and said that the nature of the threat was that they were very angry and furious with him and said that ‘he is doing the wrong there’ and that ‘there will be consequences later and it will be really bad’.
[133] The Tribunal notes that no direct threats have been made against him by his uncles or their families. From his evidence, all his information about what may happen to him has been relayed to him by his mother. It is not clear whether this information comes to his mother directly from the uncles or their families, or through other means. The Tribunal considers that any relaying of information raises doubts as to the actual intentions of those supposed to be making threats. It may be that the person hearing these threats interprets them in a way not intended by the maker.
[134] Assuming the quoted words were indeed one of the uncle’s words, the Tribunal does not consider that they necessarily imply any risk of serious harm to the applicant. These words could have a more esoteric meaning, perhaps suggesting some form of religious or spiritual consequences rather than consequences involving physical harm.”
[Emphasis added.]
I did consider whether the last two sentences, in particular, at [133] were such as to warrant further consideration. The Tribunal appears to have wandered into the realm of speculation such as to question the probative basis of the assumption expressed there, and in such a way as to have offended against the expression, and example, of the relevant test explained in SZMDS.
On balance, however, and on a fair reading, I take the view that the Tribunal’s reasoning was that, in circumstances where the threats were not directly made to the applicant but were relayed to him by his mother as to what had been purportedly said, and were possibly interpreted by her in a particular way, that this was not sufficient to lead it to conclude that there was a real risk of serious harm on return.
The Tribunal was further strengthened in its conclusion on the basis that the words themselves as reported (see words emphasised from the Tribunal’s [132] at [41] above) did not convey any risk of serious harm to the applicant. That finding was further reinforced by other relevant circumstances to which the Tribunal had regard (see at [135] to [137] at CB 90).
In the absence of anything else, ground two also does not reveal any legal error on the part of the Tribunal.
Conclusion
For the reasons above, it is not in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act. The application made on 2 August 2011 is therefore not competent. I will make orders accordingly.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 14 February 2012
0
13
1