SZQYP v Minister for Immigration - [2012] FMCA 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 569

MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time – whether application to Minister pursuant to s.417 of Migration Act 1958 (Cth) reasonable explanation for delay – where absence of documentary evidence not noted in s.424A letter to applicant – whether issue of documents a new issue – whether documents information in s.424A sense – whether Tribunal denied applicant opportunity to provide evidence – whether Tribunal made finding not open to it on evidence – whether finding illogical or irrational – whether Tribunal applied a wrong test – whether Tribunal imposed condition not mandatory – whether merits to application for review – whether to extend time.

Migration Act 1958 (Cth), ss.417, 474A, 475, 477

SZOGT v Minister for Immigration & Anor [2010] FMCA 613
SZOUJ & Anor v Minister for Immigration & Anor [2011] FMCA 83
Applicants M160/2003 [2005] FCA 195
SZFGO v the Minister [2008] FCA 1478
M211 of 2003 v Refugee Review Tribunal [2004] FCA-FC 293
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
Minister for Immigration v SZMDS [2010] HCA 16

First Applicant:

SZQYP

Second Applicant:

SZQYQ

Third Applicant:

SZQYR

Fourth Applicant:

SZQYS

Fifth Applicant:

SZQYT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2882 of 2011

Judgment of:

Raphael FM

Hearing date:

20 June 2012

Date of Last Submission:

20 June 2012

Delivered at:

Sydney

Delivered on:

20 June 2012

REPRESENTATION

Solicitors for the Applicants:

Silva Solicitors

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application for an extension of time refused.
Substantive application dismissed.
First, Second and Third applicants to pay the First respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2882 of 2011

SZQYP

First Applicant

SZQYQ

Second Applicant

SZQYR

Third Applicant

SZQYS

Fourth Applicant

SZQYT

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of India. They are a family unit consisting of a husband and wife, a daughter and two grandchildren of the husband and wife. The substantive claim for a protection (Class XA) visa is made by the wife, although the evidence reveals some alleged persecution of the daughter. However, she has specifically resiled from making her own application in her evidence to the Tribunal.
The substantive visa applicant and her husband have travelled to Australia on several occasions because they have family living here either as Australian citizens or as students. The last time the substantive applicant arrived was on 4 November 2010. On 23 December 2010 she and her family applied for protection (Class XA) visas. Those visas were refused by a delegate of the Minister on 23 March 2011. On 1 April 2011 the applicants applied for review of that decision from the Refugee Review Tribunal.
They attended a hearing before the Tribunal at which the substantive applicant, her husband and the daughter gave evidence. On 6 June 2011 the Tribunal determined to affirm the decision under review. The applicants did not seek review of the Tribunal’s decision from this court until December 2011, which is outside the period provided by s.477 of the Migration Act 1958 (Cth)[1]. Under s.477(2), the court has discretion, if it is satisfied that it is necessary in the interests of the administration of justice, to make an order extending the time. The applicants made an application for such discretionary relief.
[1] “Act”.
It is now well established that the considerations which have to be balanced when exercising the power to extend time under s.477(2) are, critically: whether or not there is a reasonable explanation for the delay and the merits of the grounds for judicial review; SZOGT v Minister for Immigration & Anor [2010] FMCA 613 per Smith FM.
I have personally always taken the view that the latter of these factors will generally bear the most weight, unless the failure or the delay is in some way exceptional; SZOUJ & Anor v Minister for Immigration & Anor [2011] FMCA 83. In the instant case, the applicant says that the reason for the delay was that after receiving the decision of the Tribunal, she and her family, in consultation with their advisor, determined that they had a reasonable case for asking the Minister to exercise his discretionary powers under s.417 of the Act to substitute for a decision of the Tribunal another more favourable decision.
There has been considerable debate, not only within this Court but in the Federal Court, as to the effect of taking such a step. To some, asking the Minister to substitute a more favourable decision carries with it the notion that the decision already given was a valid one, and that is in itself inconsistent with a later challenge. Others say that it is a reasonable thing to do to ask the Minister to make a more favourable decision and a delay whilst waiting for that determination by the Minister is reasonable. As Smith FM said in SZOGT at [25]:
“I do not need, in the present case, to decide whether choosing to pursue a s.417 option before commencing judicial review would provide a reasonable explanation for not commencing the litigation promptly. There are recent suggestions that it would not (see for example Vu v Minister for Immigration & Citizenship[2008] FCAFC 59 at [32] and also Crennan J in Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364).”
Other cases that bear upon the matter are Applicants M160/2003 [2005] FCA 195 and SZFGO v the Minister [2008] FCA 1478 and M211 of 2003 v Refugee Review Tribunal [2004] FCA-FC 293.
The conclusion that I have come to in this case is that it is not in the interests of the administration of justice for me to exercise my discretion to make an order extending the time because, for the reasons which appear below, I am not satisfied that there is a sufficiently arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I should point out that the matter was argued before me as if it was a final hearing, and that I have had the benefit of an amended application and written submissions prepared by a solicitor appearing for the applicants and written submissions prepared by a solicitor appearing on behalf of the Minister.
The ground upon which the substantive applicant (hereinafter called the applicant) claimed that she was a person to whom Australia owed protection obligations was the Convention one of religion. She claimed that she was a devout Christian who had engaged in evangelical activity in her home over a period of many years and had suffered persecutory conduct as a result. She gave to the Tribunal, and before it to the delegate, instances of that conduct. She told that she had originally become a Christian in her childhood, after experiencing what she described as a miracle; that she joined first one church and then another; and after the birth of her children, set out to try and convert others to the religion to which she adhered.
Although there had been some incidents in the early 1980s, which caused her and her family to move, nothing else occurred until 2004. At that time, she claimed that a leader of the BJP, who had links with the RSS, came and told her that she should not hold meetings or speak about the covenant of God. He threatened her with rowdies if she continued to do so. Another incident occurred in 2009, although she did not move house at this time. Around then, the applicant claimed that she started to make arrangements to move to Australia, where she believes it is safer.
From 2010, there were several incidents. The first being in May when her daughter was on the way home from church. Whilst standing at a bus stop she was smeared by muddy water, and was verbally abused, beaten and pushed on the ground. She was threatened and told that she would be put to shame.
In the main 2010 incident, the applicant claimed that she had been physically harmed. And she said after that there were a series of threatening phone calls made to her. In response to a question from the Tribunal as to what the incident was after which she decided she would have to leave, she said that in 2010 four Muslim men came to her house and said that they had taken their wives, who appear to have been possible converts.
“One husband did not come and one woman ran away. They beat her with a stick and she fell on a chair. They grabbed her daughter and kicked her and they told them that if they did that again, they would not leave them alive. They took their wives and left. She [the applicant] did not know what to do. Esther became unconscious. There was a clinic nearby and they took her there in a car and she received treatment and later on she called her husband.” [55 CB 271]
The Tribunal questioned the applicant upon her story. It had, prior to the hearing, written to her a letter pursuant to s.424A of the Act [CB 188-190]. In that letter, the Tribunal raised matters which it considered relevant because they might indicate that she had delayed her application for protection visa, and did not apply for protection during previous visits to Australia. It was suggested that the information might allow the Tribunal to conclude that she had delayed her departure from India, and thus she had no genuine fear of persecution. The Tribunal also referred to other information that might cause it to find that she had not been truthful in her claims. In particular, that she did not change her behaviour after the threats, and the reason that she decided to seek protection was because the threats were made against her daughter, rather than herself. The applicant replied to this letter, and the responses were considered by the Tribunal.
At [60] CB 273, the Tribunal makes reference to a matter upon which much of the applicant’s arguments in this court turn.
“The Tribunal noted that the applicant claims to have been involved in evangelising work through a church of India for many years, yet she has not given any documents or statements from the church or from people she converted to confirm her activities. The applicant said they did not request statements from people she converted and she presented a number of certificates confirming her membership of the church. The Tribunal pointed out that these showed that she was a member of the church but not her evangelising activities. The Tribunal asked her why she did not provide, for example, a statement from the Minister [sic] to confirm her evidence. The applicant said that she could get one. The Tribunal asked her why she did not get one in the six months since her application was made, particularly as this issue was discussed with her in her interview with the delegate. The applicant asked if she could provide one. The Tribunal pointed out that she came to Australia in November 2010, her application for protection was made almost six months ago and this issue was discussed in her interview with the delegates some weeks ago. The Tribunal informed the applicant that, in these circumstances, it considered that she had been given enough time to produce any evidence and that it would not grant her more time. The Tribunal informed the applicant that it would consider all information received at the time of decision.”
In its findings and reasons, commencing at [[73] CB 276, the Tribunal at [74] makes its principal finding.
“The Tribunal found the applicant not to be a witness of credibility. The Tribunal found her evidence to be confused and in some respects inconsistent. On a number of occasions the applicant recited her written statement rather than respond to the questions posed to her. The Tribunal also found the applicant’s explanations with respect to some aspects of her claim to be vague and deficient. For example,”
The Tribunal then sets out, in paragraphs identified with the letters “a” to “i”, a series of occasions where the Tribunal found her evidence to be less than convincing, and then stated at [75] CB 281.
“While some of these concerns may not be significant or fatal to the application, the combination of these concerns causes the Tribunal to conclude that the applicant has not been truthful in her evidence.”
The Tribunal accepted that the applicant was a member of a church and may have engaged in ministry work and other religious activities, but did not accept that she or members of her family had been engaged in preaching and conversion and that, as a result of that activity, they had been threatened, harassed, harmed or assaulted. In neither this paragraph nor [74] is any mention made of a failure to provide corroborative evidence of documents.
The applicant filed an amended application in this court on 11 April 2012. At the hearing, she also sought to tender three affidavits. One affidavit annexed a transcript of the hearing. One affidavit annexed the decision of the Tribunal. Her final affidavit attempted to bring into court documents that the applicant claimed she had obtained in corroboration of her evangelising activity. The purpose of that affidavit was not to prove her evangelising activity, but merely to indicate that this was the type of thing she could have obtained, had she been given time. Only paragraph 4 of that affidavit has been admitted. The attachments are excluded.
The first ground of application was:
“The Tribunal made jurisdictional error in that it denied the applicants opportunity under s.425 to provide written evidence from witnesses, about evangelical work of two of the applicants, which the Tribunal considered necessary.”
In the particulars, the applicant states:
“The Tribunal did not put the issue of the absence of documentary evidence to support conversation in the s424A notice that was sent. Had it been put to the applicants they would have felt the necessity to provide that. Although the Tribunal brought this up verbally during the hearing, when the main applicant stated that she can obtain the documents, the Tribunal refused to give time to provide that, thus preventing evidence being given.”
Ground 1 is described by the applicant as an “SZBEL claim”. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152, the High Court, approved of the decision of the Full Court of the Federal Court in Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and cited that case at [32]:
“…a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” [original emphasis]
It also said at [35] that:
“The Tribunal is not confined to whatever may been the issues that the delegate considered. The issues that arise in relation to a decision are to be identified by the Tribunal. But if the Tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”
The applicant argues that this Tribunal created a new issue, which was “the non-availability of documents in spite of the delegate asking for it”. She claimed that this was different to the issue before the delegate and therefore it was a matter that the Tribunal had to bring to the attention of the applicant. She goes on to say that it had to be brought to the attention of the applicant pursuant to s.424A, and presumably, that the failure to do that made the hearing under s.425 invalid.
I am unable to follow this reasoning. Firstly, I do not think that the issue of the documents was a new one at all, and that the gloss put on it by the applicant that the novelty was the fact that the delegate had asked for the documents and she had still not produced them does not make it one. The matter was clearly raised by the delegate as a matter of concern. It was something that the applicant knew that she should have dealt with and could have dealt with in the period between the receipt of the delegate’s decision and the hearing before the Tribunal. All that the Tribunal was saying was that the failure to do this was a matter of concern.
To the extent that it is suggested that this is a matter that comes within s.424A, I am also unable to accept. The definition of information under s.424A was considered by the Full Bench in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 by Young J with whom Gyles and Stone JJ agreed at [29 – 30]:
“The meaning of ‘information’ was considered in the context of s 424A(1) by Allsop J in SZEEU at 259-260 [204]-[205]:
‘The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.

Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2^nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].’
In contrast with the above, the Tribunal’s subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 (‘Paul’) at 428[95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 (‘VAF’) at 476-477 [24] per Finn and Stone JJ. The concept of information does not extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at 282 [26]- [27]. The distinction between ‘information’ that is part of the Tribunal’s reason on one hand, and ‘subjective appraisals’, ‘thought processes’ and ‘determinations’ of the Tribunal on the other hand, may be plain in some cases, but in other cases it may prove to be very fine, if not elusive: Paul at 428 [95]; VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 [36] (‘VWFP’).”
What is being claimed as information in this case is something that is clearly excluded from the category of information, namely, an “identified gap” in evidence. In those circumstances, I cannot say that there was any obligation on the Tribunal to make mention of this matter in the s.424A letter. I would also point out that in any event, as I have already indicated, the absence of this evidence was not a determinative factor in the decision. It is not mentioned in the findings and reasons.

There is another problem with this ground, and that is that what the applicant is really seeking to do is to challenge the Tribunal’s exercise of its discretion under s.427, which is the section that permits a Tribunal to adjourn a matter. The holding up of a decision pending the receipt of documentation would amount to an adjournment. This was not pleaded. To my mind, ground 1 is entirely misconceived.
Ground 2 of the application is:
“The Tribunal made jurisdictional error in that it denied the applicants procedural fairness under s424A.”
This seems to be a repeat of the claim that no notice under s.424A was sent with regard to the failure to provide the documents. I have already dealt with this above. My views will not benefit from repetition. I find the ground to be misconceived.
Ground 3 is:
“The Tribunal made jurisdictional error in that it was not reasonably open to the Tribunal, on the material, to find that the main applicant or the family members were not engaged in preaching or conversion.”
In this ground, the applicant attacks the reasoning in paragraph [74 (a), (b) and (c)] of the Tribunal’s decision. In regard to [74(a)], the Tribunal expresses some views concerning the attitude of the applicant’s parents to her conversion to Christianity at the age of 14.
“If the conversion was likely to cause embarrassment or ostracism for the family, it would seem that the parents could have influenced their child not to convert, but if the parents were so affected by the miracle as to allow their child to convert, it is unclear why they themselves did not take that step. The applicant has not explained this to the satisfaction of the Tribunal.”
This is a criticism of the applicant’s evidence. I have to agree with the applicant that it does seem to be merely speculation about the attitude of parents to a child of 14, and it would be difficult for the applicant for any applicant to explain this in any rational way so many years later. But the question of whether or not it constitutes a jurisdictional error on the part of the Tribunal is entirely separate.
The second ground relates to subparagraph 74(b) and (c), which deal with the Tribunal’s concern about the applicant’s evidence on why she did not move when she received threats. In [74(c)], the Tribunal notes that she provides some reason for this, namely the existence of a three-year lease, and the Tribunal notes that there was no suggestion of the lease being signed in 2008 in her protected visa application. The applicant claims that this is an illogical finding and an unreasonable one.
The view I take about the first complaint is that the Tribunal’s expression is only directed towards its own satisfaction. It is not a finding of the type that those authorities that deal with illogicality, such as the Minister for Immigration v SZMDS [2010] HCA 16[2], are concerned. I might also say that it is only one in a series of grounds that, cumulatively, have brought the Tribunal to a decision that it cannot accept the applicant’s evidence. That there may not be rationality in one ground does not, in my opinion, impugn the others.
[2] “SZMDS”
The complaint made about [74(b) and (c)], whilst suggested as being illogical, does not reach that high. It looks to me like a complaint made by a mind attuned to the perception of error. It is also a matter upon which minds might differ. Some may say, like the Tribunal, that not mentioning the lease was indicative of untruthfulness, while others might take the view that it was a perfectly natural omission because it did not appear to be something that related directly to the applicant’s claims. But once it is such a matter, and people can differ on their views of it, it ceases to fall within the band of illogical conclusions: SZMDS at [131].
The fourth ground is:
“The Tribunal made jurisdictional error in that it applied a wrong test to assess the applicant’s case. Its speculative findings against the applicants and its insistence on documentary proof demonstrate that it was not applying the well founded fear test, in the sense whether there is a real chance, but the much higher standard of proof.”
The support for this is another reference to the paragraph 74(a), (b) and (c), and one to the mistaken view that the Tribunal required documentary proof of the applicant’s conversion activity and that her failure to provide was a reason for her not being believed. I have already dealt with all of these matters. They do not support the ground.
The final ground is:
“The Tribunal made jurisdictional error in that it imposed a condition that was not mandatory for granting of the visa.
Particulars
The Tribunal required, on a mandatory basis, documentary evidence to support the fact that the applicant was involved in evangelical work where as such a requirement is legally not necessary.”
The Tribunal made no such requirement.
In my view, there is nothing in the applicant’s submissions that make this case one in respect of which I should exercise my discretion to extend time. To do so would not be in the interests of the administration of justice because all that would result would be the hearing that I have just had and, as such hearing would have been before me, the result that I have determined. The application is dismissed. The applicant is to pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 26 June 2012