SZQOY v Minister for Immigration

[2013] FCCA 2355

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQOY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2355

Catchwords:

MIGRATION – Application for extension of time to submit a competent application for review of decision of the Refugee Review Tribunal – explanation for delay not satisfactory – lack of merit of the substantive application – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 441G, 425, 476, 477.

SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] FCA 22; (1991) 191 CLR 559
Abebe v the Commonwealth [1994] HCA 14
 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220

Applicant: SZQOY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1688 of 2013

Judgment of: Judge Nicholls

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Sydney

Delivered on: 29 November 2013

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application to extend time pursuant to s.477 of the Migration Act 1958 (Cth) made on 23 July 2013 is refused.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1688 of 2013

SZQOY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), by which the applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 31 May 2013, in which the Tribunal affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant. The substantive application was lodged outside the time provided for in s.477(1) of the Act.

2. The question for the Court is whether the relevant time limit for the making of such applications to the Court, as set out in s.477(1) of the Act, should be extended so that the applicant can bring forward her substantive application.

The Application for the Extension of Time

1. Section 477(1) of the Act requires applications seeking review of a Tribunal decision to be made within 35 days of the date of the decision. I note that the Tribunal’s decision was made on 31 May 2013. The 35 day period, therefore, ended on 5 July 2013, yet the applicant did not file her application with the Court until 23 July 2013. Therefore, the substantive application to the Court is not competent.

2. The time for the making of such applications can be extended by the Court, pursuant to s.477(2) of the Act. I note, in this regard, that the applicant has made such an application in writing, pursuant to s.477(2)(a).

3. The issue before the Court today is whether time should be extended so that the applicant can bring her substantive application concerning the Tribunal’s decision before the Court.

4. At the hearing of the application for the extension of time, the applicant appeared in person. She was assisted by an interpreter in the Nepali language. Ms K Hooper appeared for the Minister.

5. The application for an extension of time contains four grounds:

   “1. I was unaware of the decision and failed to obtain a decision record from the RRT in time because I thought that the Refugee Review Tribunal Member and my migration agent would send me the decision by post to my residential address after the decision was made by the Tribunal Member.

   2. I found that it was faxed to my migration agent and the agent had sent the decision record to me by an email and I didn’t check my email because I do not often use my email.

   3. I am in need of justice as I believe the Tribunal Member has made an error of law.

   4. I am unable to agree with the Tribunal Member’s purported decision because the decision has been affected by a legal error and it is my life and I need justice.”

6. This Court has previously considered and identified a number of elements relevant to the consideration of such an extension of time application pursuant to s.477(2) of the Act. (SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FMCA 771 at [44] and see also SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM (as he then was) and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] per Judge Barnes.)

7. Nonetheless, two elements emerge for specific consideration today. The first is the extent of the delay, and whether there has been any satisfactory explanation by the applicant for the delay. The second is whether there is any merit in the grounds of the substantive application. That is, whether some legal issue emerges from that application of such character, that it is in the interests of the administration of justice to extend time so that it may be heard by the Court.

Issue of Delay

1. The period of delay in this case is by no means excessive. In his written submissions, the Minister describes the delay, 18 days after the 35 day period elapsed, as being “moderate”. Nonetheless, the Minister’s position is that the delay is not, given what was before the Court, the subject of a satisfactory explanation.

2. In the applicant’s affidavit evidence to the Court, the applicant’s explanation for the delay was that she was unaware of the Tribunal’s decision because she thought the Tribunal and her agent would send the decision record by post to her residential address after the decision was made. Instead, the decision was sent by fax to her migration agent, who then sent it to her by email. She said that she did not check her email because she did not often use it.

3. Before the Court, the applicant said that, in the past, she had received communications, and I understood that to be communications regarding her matter from her migration agent, by telephone.

4. The applicant has not explained to the Court why she had an expectation that the Tribunal would send its decision record to her, or that it would post it to her home, or even that it would telephone her to give her the outcome of its consideration.

5. The applicant had engaged a migration agent on two occasions. Relevantly, she had a migration agent to represent her before the Tribunal (CB 197). The applicant had taken steps to appoint the agent as her authorised recipient for the purpose of receiving correspondence on her behalf from the Tribunal (CB 160).

6. It may be generally allowed that the applicant did not understand, at the time of the making of the Tribunal’s “first” decision (made by the earlier constituted member), the provisions of s.441G(1)(b) of the Act. However, by the time of the making and sending of the notification of this Tribunal’s decision, the applicant had already been through this process before in regard to the decision made by the Tribunal, as previously constituted.

7. I note, in relation to that decision, that the notification of the Tribunal’s decision had been sent to the applicant’s then authorised recipient by the Tribunal, not to her (CB 126 and CB 128).

8. I also note, in particular, that the enclosed letter addressed to the applicant, that is, the letter enclosed with the notification sent to the authorised recipient, contained no address of the applicant, nor is there evidence to suggest it was otherwise sent to her by the Tribunal to her residential address (CB 128). To the extent, therefore, that ground one of the application for extension of time implies that the Tribunal should, as she had some expectation that the Tribunal would, have sent the letter of notification to her residential address, that explanation cannot be accepted.

9. I note further, that the bulk of correspondence, both by the previously constituted Tribunal and the subsequent Tribunal, was sent to the applicant’s authorised recipient, albeit that the authorised recipient changed over time. (See, for example, CB 74 and CB 75, CB 126 to CB 128, CB 151, CB 184 to CB 186, CB 190 to CB 193 and CB 203 to CB 208).

10. In relation to the migration agent, the applicant has not satisfactorily explained why she expected communication from him by post to her residential address.

11. In the circumstances, I accept the Minister’s submission that, on the evidence before the Court, the applicant gave her email address to her migration agent. There is no suggestion by the applicant that he obtained it in any other way. Therefore, it would have been reasonable for the applicant to have checked her email on a regular basis. Why she had not done so remains unsatisfactorily explained. I also note the Minister’s submission today that the migration agent appears to have sent the decision to the applicant’s email address in a “prompt” fashion.

12. In summary, on the question of delay, I am of the view that the period of delay, 18 days, in itself, is not such as would cause the Court not to extend time. What counts against the applicant is that the explanation for that, albeit short, delay cannot be said to be satisfactory.

13. The second element in the consideration of the extension of time is whether the grounds of the substantive application contain such merit as to cause the Court to extend time in the interests of the administration of justice.

The Substantive Application to the Court

1. The grounds of the substantive application are:

   “1. I do not agree with the Tribunal member’s decision because the member has unfairly considered and treated my claims and evidence despite the fact that my claims are true.

   2. I argue that the Tribunal member has failed to provide me natural justice by ignoring my claims and accusing me of not credible witness.

   3. I argue there is a legal error on the part of the Tribunal Member’s purported decision in my case because the Tribunal Member failed to give me the benefit of the doubt.”

2. I have before me today a bundle of relevant documents filed by the Minister, (“the Court book” - “CB”). I have the applicant’s affidavit of 23 July 2013. I also have the Minister’s written submissions.

3. Some background is necessary to understand the disposition of this matter.

Background

1. The applicant is a citizen of Nepal (CB 4). She arrived in Australia in September 2008 (CB 13). Some years later, on 17 January 2011, she applied for a protection visa (CB 1). Her claims to protection were set out in a written statement by her (CB 36 to CB 40). I note an English translation of that statement is reproduced in the Court Book (at CB 41 to CB 43).

2. The applicant’s claim to protection were as follows:

   (1)She claimed to be a supporter of the monarchy in Nepal (CB 41.2)

   (2)She claimed to have been abused by other students in Nepal, because of her support for the monarchy (CB 41.3).

   (3)She claimed that she had met and had a relationship with a Bangladeshi student in Nepal, which subsequently cause difficulty for her (CB 43.4).

3. Without going into details of her claims to have fallen pregnant and related matters (CB 41 to CB 42), it is clear that that latter event caused some strong reaction from her parents.  She claimed that they verbally abused her boyfriend.  He then became abusive towards her. Her parents used physical force on her. Her boyfriend left her and she became distressed (CB 42).

4. The applicant claimed that she suffered discrimination because of her relationship with a person who was regarded as a foreigner in her country and who was also a Muslim. She claimed to have been socially ostracised in Nepal.  She said that an aunt encouraged her to go overseas (CB 42 to CB 43).

5. The delegate refused her application for a protection visa on 10 March 2011.  The applicant then applied to Tribunal on 7 April 2011 for a review of the delegate’s decision. I note that in June 2011, a firm of solicitors and migration agents advised that they had received instructions from the applicant to assist her in her matter (CB 66).

6. The Tribunal, which, at that time was constituted differently to the Tribunal which made the decision which is relevant in the matter that is before the Court today, affirmed the delegate’s decision (CB 126 to CB 147). That decision was remitted to the Tribunal for reconsideration as legal error had been found in that decision by the Federal Magistrate’s Court (as it then was) (CB 153 to CB 156).

7. Following that event, the Tribunal, constituted for current purposes, conducted a hearing on two occasions with the applicant, on 27 March 2013 and 24 April 2013 (CB 169 to CB 170 and CB 197 to CB 199). I should note that, at that time, the applicant had appointed a different migration agent to represent her (CB 159 to CB 161).

8. Nonetheless, the Tribunal again affirmed the delegate’s decision on 31 May 2013 (CB 209 to CB 221). The Tribunal noted in its decision record that the applicant had first come to Australia as a “dependent spouse” ([3] at CB 210). The Tribunal also noted that the applicant had said in her protection visa application that this relationship had been contrived so that she could obtain a visa to come to Australia ([3] at CB 210).

9. In its decision record, the Tribunal set out its account of the hearing that it conducted with the applicant ([13] at CB 212 to [34] at CB 216). In addition to the matters that she had previously put forward, the Tribunal records that the applicant claimed that, if she were to return to Nepal, she would speak out on women’s issues, which would attract further harm from conservative elements in that society ([32] at CB 216).

10. The Tribunal found that the applicant had not provided a credible account of her circumstances ([38] at CB 217). It gave reasons for its finding that she had contrived all her claims to enhance her protection visa application ([41] at CB 218 to [49] at CB 220).

11. These findings by the Tribunal were that she had not provided a consistent account of her circumstances in Nepal and rather, that she had provided different accounts. The Tribunal found that she had fabricated her account of events and could not recall or repeat claims each time she was required to do so ([41] at CB 218).

12. Further, the Tribunal found that the applicant was only able to provide vague and limited information regarding her circumstances in Nepal. The Tribunal found that this was done in circumstances where it would be expected that she should have been able to provide at least some detail ([42] at CB 218).

13. The applicant had proposed two witnesses whom she said could have provided evidence to the Tribunal.  In relation to these two witnesses, the Tribunal found one did not exist, and the other did not know the applicant, or relevantly have performed a medical procedure for her as claimed ([43] at CB 218).

14. The Tribunal noted the long delay in applying for a protection visa after arrival in Australia, and found that this further undermined her subsequent claims to protection in Australia ([44] at CB 218). The Tribunal rejected all of the applicant’s factual claims, as they related to her personal circumstances ([45] at CB 218).

15. The Tribunal found that the documentary evidence provided by the applicant in support of her application were not genuine, or did not represent the applicant’s actual claims, or circumstances ([46] at CB 219).

16. The Tribunal also considered other broader claims made by the applicant ([47] at CB 219 to [49] at CB 220). First, her political views regarding the monarchy and the Maoists in Nepal.  The Tribunal found that, contrary to her first representative’s submissions, but consistent with her own evidence, that she had not been an activist or had expressed her relevant views in any way.  It noted her claim that she would express these views if she were to return to Nepal, but found that her claims and her stated intentions were contrived ([47] at CB 219).

17. Second, the Tribunal considered the claim that she would be an outspoken critic of the male dominated society, and relevant views in support of women’s rights, in Nepal.  The Tribunal found that she was not an activist, or that she had strong views regarding Nepalese society, and the treatment of women in Nepal ([48] at CB 219).

18. Third, the Tribunal considered the matter as to whether the applicant was a member of a particular social group, as that term is understood in the context of the Refugees Convention.  The Tribunal found that given its finding that the applicant’s relevant factual claims were contrived, that she was not a member of any such social group ([49] at CB 220).

19. The Tribunal also considered the complementary protection criterion set out in the Act relevant to the grant of a protection visa. The Tribunal reasoned that, as she had not given a truthful account of the circumstances in Nepal, it could not be satisfied that she would suffer significant harm if she were to return to Nepal ([52] at CB 220 to [54] at CB 221).

20. I note, generally, that when given the opportunity, the applicant stated that she had not been given “justice” before the Tribunal, and that the Tribunal had not decided her case fairly.  The applicant subsequently explained that the Tribunal did not accept her statement, that is her claims to it, and that she found that this was not fair.

Ground One

1. The first ground has a number of elements.  First, the applicant’s disagreement with the Tribunal’s conclusion and its findings is not, in itself, an assertion of jurisdictional error on the part of the Tribunal. There is no jurisdictional error in the Tribunal’s decision simply because an applicant does not agree with it.

2. Second, the applicant’s assertion that her claims before the Tribunal were true, and the Tribunal should have so found, does not, in the circumstances presented, rise above a request for impermissible merits review. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).)

3. The Tribunal’s findings as to the applicant’s credibility were findings of fact made within jurisdiction and were reasonably open to the Tribunal to make, based on what was before it. I note that the Tribunal gave cogent reasons for these findings, probative of that material before it. The Tribunal is not obliged to uncritically accept anything or everything that the applicant claimed, or any of her evidence. (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J.)

4. Third, the applicant’s explanation, or description, of the Tribunal’s actions as being unfair for this reason cannot, therefore, be sustained. In any event, there is nothing before the Court to indicate that the Tribunal acted unfairly, or in bad faith, such as to warrant an extension of time to allow any such assertion to be more fully explored by the Court.

Ground Two

1. The second ground asserts a denial of natural justice. This is a case where the matters dealt with in Div 4 of Pt 7 of the Act, are the exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with in that Division.

2. The applicant was invited to a hearing pursuant to s.425 of the Act. On what is before the Court, that invitation complied with all of the relevant statutory and regulatory requirements (CB 157 to CB 158). The issues in the review conducted by the Tribunal, on what is before the Court, were exposed at the hearing with the applicant.

1. Separately, I note that there was no breach of s.424A of the Act. During the course of the conduct of the review, the applicant asked for a second occasion of a hearing before the Tribunal and the Tribunal cannot be said to have exercised its discretion other than in a reasonable fashion when it agreed to the applicant’s request (CB 170).

2. Even if it was the case that the common law principles of natural justice were to be applied here, there is nothing before the Court to suggest that the applicant was treated unfairly. The applicant was given the opportunity to put her claims before the Tribunal, she was invited to a hearing before the Tribunal, and there is nothing before the Court to suggest that that Tribunal hearing was not a meaningful opportunity for her to express her claims and give her evidence.

3. A reference, made by the applicant before the Court, to “other evidence” remained unexplained. If this reference was intended as some suggestion that the applicant was denied an opportunity to put further evidence before the Tribunal, such a charge cannot be sustained with what is before the Court, noting again that the applicant was represented during the conduct of the review.

4. Further, the applicant’s complaint that the Tribunal ignored her claims is not supported by the material before the Court. It is clear from what the applicant told the Court today that what is really meant by that ground, or complaint, is that the Tribunal did not accept her claims, not that it did not consider her claims. 

5. On the material before the Court, the Tribunal dealt with all of the applicant’s claims as made and as they ultimately survived in the presentation to it.  This ground therefore also lacks such merit as to support the extension of time. Ultimately, ground two can only be seen as another request for impermissible merits review (Wu Shan Liang).

Ground Three

1. The third ground essentially asserts error on the part of the Tribunal because the Tribunal failed to give the applicant the “benefit of the doubt”. It is not clear what inspired this particular complaint by the applicant because the absence of particulars in the ground, as presented to the Court and in the absence of explanation by the applicant, leaves the basis for this complaint unexplained. 

2. It may be, however, that the complaint was inspired by the Tribunal’s reference, at [39] (at CB 217) to the “Handbook on Procedures and Criteria for Determining the Refugee Status” (“the Handbook”). The Tribunal notes there, and specifically makes reference to what is contained in the Handbook regarding the relevance of the concept of the “benefit of the doubt” in refugee status determination. I note, at [39] (at CB 217), the Tribunal’s specific reference to [203] and [204] of the Handbook. It is the case that the Handbook does not have binding force in Australian law. However, there is no error, and certainly no legal error, in the Tribunal using the Handbook as a reference in the determination of whether the applicant satisfied the definition of “refugee.” (Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Dawson J, Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 per Kirby J, Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 per Finn J).

3. If the Tribunal holds any doubt about an applicant’s claims, or an integer of an applicant’s claim, then it is required to consider if the applicant meets the definition of “refugee” in the alternative circumstance as if its finding that arises from that doubt were incorrect. That is, if there is doubt, then the Tribunal is required to consider the alternative, to proceed on the basis as if the claim was true and to assess the application for the visa in that light. (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] FCA 22; (1991) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (endorsed in Abebe v the Commonwealth [1994] FCA 14, and further explained by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 per Sackville J, with whom North J agreed)).

4. The relevant statutory scheme here, s.65 and s.36(2) of the Act, requires that the Tribunal must be satisfied that a person meets, the definition of “refugee.” Where the applicant does not meet that criterion, that is, where there is an absence of satisfaction, then it follows that, under s.65, the application for the protection visa must be refused.

5. As set out above, it is not clear what the applicant meant by the reference to “benefit of the doubt.”  If she meant by that that the Tribunal should have accepted her claims uncritically, then, as I said earlier, the Tribunal’s failure to do that does not, in any way, reveal jurisdictional error.  There is no error in the Tribunal’s assertion or understanding of the law at [39] (at CB 219) when it says it does not consider it appropriate to accept all claims uncritically. As the Tribunal also quotes from the Handbook:

   “The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.”

6. In all, therefore, the Tribunal’s understanding of the law at [39] (at CB 219) of its decision record was orthodox. The Tribunal’s reference to the Handbook, and what it drew from the Handbook, was open to it and not contrary to any established legal principle in Australian law. Ultimately, the concept of the “benefit of the doubt” as so presented and described in the Handbook, in my view, does not stand for the proposition that a Tribunal is required to apply the benefit of the doubt in circumstances where the applicant’s claims and evidence would otherwise be disbelieved, and disbelieved for cogent reasons that the Tribunal gives.

7. In all, therefore, ground three also does not raise any assertion of legal error on the part of the Tribunal, such as to support the application for an extension of time.

Conclusion

1. In all, therefore, none of the grounds of the substantive application to the Court are such as to cause the Court to move, in the interests of the administration of justice, to extend the time limit set out in s.477(1) of the Act. Notwithstanding the relatively short period of the delay, the lack of a satisfactory explanation for the delay and the lack of any legal argument arising from the applicant’s grounds of the substantive application, make this a case where the application to extend time should be refused. I will make an order refusing the extension of time.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2013