SZRAN v Minister for Home Affairs
[2019] FCCA 1240
•13 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1240 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – refusal of an extension of time for a show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 417, 424AA, 477 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZSDE v Minister for Immigration [2013] FCA 1339 |
| First Applicant: | SZRAN |
| Second Applicant: | SZRAO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2291 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2019 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms E Warner Knight of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the MigrationAct 1958 (Cth), the application for an extension of time is refused.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2291 of 2018
| SZRAN |
First Applicant
| SZRAO |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants who are a husband and wife. They seek an extension of time for their application, which was filed nine days outside the time period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act).
The background to this matter is set out in the Minister’s outline of submissions filed on 6 May 2019.
The applicants are citizens of India, and husband and wife. They arrived in Australia on 2 June 2010 and on 31 March 2011 made an application to be granted protection visas (first visa application). In the first visa application, the applicants claimed to be entitled to protection visas for reason that the first applicant had a well-founded fear of persecution for a Refugees Convention reason for the purposes of s.36(2)(a) of the Migration Act, as it then was. In particular, he claimed that he feared harm in India due to his status as a member of a lower caste, because of his work in the Congress Party, and due to a dispute with a business employee.[1] The second applicant claimed to be a member of the applicant’s family unit and did not expressly make her own claims to fear harm.[2]
[1] Book of Relevant Documents (RD) 11-12
[2] Section 36(2)(b)
On 17 June 2011 a delegate of the Minister refused the first visa application, which decision was affirmed by the Tribunal (differently constituted) on 8 December 2011.[3] An application for judicial review to this Court, and then an appeal to the Federal Court, were unsuccessful. The applicants subsequently attempted, without success, to persuade the Minister to intervene in their matters pursuant to s.417 of the Migration Act.
[3] RD 67-76
On 19 July 2013 the applicants made a further application for a protection visa (second visa application).[4] Again, the second applicant claimed to be a member of the applicant’s family unit and did not expressly make her own claims to fear harm.[5]
[4] RD 80-113
[5] Section 36(2)(b); RD 107
Relevantly, in the covering letter of the applicants’ migration agent annexing the second visa application, it was stated that the first applicant, and his family, were applying for a “Complementary protection visa under s.36(2)(aa)”.[6] No such claimed entitlement had been made in the first visa application, and no such entitlement was considered by either the delegate or the Tribunal in respect of the first visa application. The factual context in which the first applicant’s claims for protection were advanced on the second visa application were substantially the same as that advanced in the first visa application. The first applicant reiterated his claim to be at risk of harm due to his lower caste, to be at risk of harm from the BJP[7] for reason of his support of the Congress party and for having “sacked one of [his] employees” who was from a higher caste.[8]
[6] RD 77
[7] Bharatiya Janata Party
[8] RD 97
The delegate refused the second visa application on 10 July 2014. The applicants applied for review by the Tribunal. On 16 July 2015 the Tribunal (differently constituted) affirmed the decision under review.[9]
[9] RD 203-213
The applicants applied to this Court on 11 August 2015 for judicial review of the Tribunal decision and on 17 March 2017, by consent, the Court quashed the Tribunal decision and remitted the matter to the Tribunal for determination according to law. The basis of the Minister’s concession was that the second applicant had made her own claims for protection for the first time before the Tribunal (ie, on review of the second visa application refusal), and that the Tribunal had made a jurisdictional error by failing to consider the second applicant’s claims under the refugee criterion in s.36(2)(a) of the Migration Act.
Upon remittal, the applicants were invited to attend a hearing on 16 May 2018. The first applicant attended and provided a medical certificate explaining that the second applicant had back problems causing difficulty sitting, and could not attend in person. The hearing was adjourned to 23 May 2018. On that date the first applicant appeared in person and the second applicant appeared by way of telephone.
On 4 July 2018, the Tribunal affirmed the decision under review.
Tribunal decision
The Tribunal noted that the current visa application (ie, the second protection visa application) was pursuant to SZGIZ v Minister for Immigration,[10] meaning that the applicants are entitled to apply for the visa on complementary protection grounds. It further noted that it would also consider the second applicant’s claims under the refugee criterion.[11]
[10] (2013) 212 FCR 235
[11] RD 258 [24]-[26]
The Tribunal then set out eight credibility concerns which led it to doubt the applicants’ claims and evidence. It found that, when these were considered cumulatively, it could not be satisfied as to any of the applicants’ substantive claims.[12]
[12] RD 265 [72]
In particular, the Tribunal found:
a)first, the first applicant indicated in his first protection visa application that he was staying in Australia for economic reasons. The Tribunal considered that this also undermined the second applicant’s protection claims to the extent that her claims were similar to or derivative of the first applicant’s claims;[13]
b)secondly, the first applicant indicated in his first protection visa application that he had never experienced harm because of caste, and made no such claims until reminded in his interview with the delegate in the second visa application;[14]
c)thirdly, the Tribunal found inconsistencies with respect to the applicants’ claims of being of a low caste;[15]
d)fourthly, the Tribunal considered independent evidence and the applicants’ responses, arising during the first Tribunal hearing, which suggested that “Jetly”, being the applicants’ purported caste, is not a low caste;[16]
e)fifthly, the Tribunal found inconsistences in the applicants’ evidence as to their education and employment history;[17]
f)sixthly, the Tribunal found inconsistencies as to the first applicant’s claims about his business dispute;[18]
g)seventhly, having been asked open-ended questions at the second Tribunal hearing about the source of their fears, the applicants did not mention at the second Tribunal hearing any claims of fear of harm based on political activity;[19] and
h)eighthly, the Tribunal considered that the first applicant’s travel history (including Malaysia and Singapore in 2007, Germany in 2008, and the USA in 2009), and return to India, without having made any protection visa applications in those countries, was inconsistent with his claim that he faces a real risk of significant harm in India.[20]
[13] [32]-[34], [36]
[14] [38]-[39]
[15] [42]-[43]
[16] [47]-[48]
[17] [50]-[54]
[18] [55]-[57]
[19] [60]-[63]
[20] [66]-[67]
In relation to each of the above concerns, to the extent necessary, the applicants were invited pursuant to s.424AA of the Migration Act to comment on inconsistent evidence given in connection with the first visa application or during an interview with a delegate. The Tribunal records that the applicants indicated that they wished to respond in writing, but that no response was received by the Tribunal. The Tribunal considered that the concerns which it had identified undermined claims that the applicants face a real chance of either serious or significant harm and, in the absence of any response, the Tribunal made adverse credibility findings.[21]
[21] [35], [37], [39]-[41], [43]-[45], [48]-[49], [53]-[54], [57]-[59], [63]-[65], [67]-[69]
The Tribunal also noted that it had no independent evidence with respect to the applicants’ additional claim that they will be targeted upon return due to perceived wealth. The applicants were invited to provide independent information subsequent to the hearing, but no such information was provided.[22]
[22] RD 265 [70]
The Tribunal found that the identified concerns “are very significantly undermining of the applicants’ credibility” and that they “permeate all aspects of the applicants’ claims”. The Tribunal was not satisfied that the applicants were truthful witnesses before the Tribunal or in any Departmental proceeding.[23]
[23] RD 265 [72]
Having rejected the applicants’ substantive claims, the Tribunal concluded that they did not face a real chance or serious or significant harm[24] and that the second applicant did not have a well-founded fear of persecution for a Refugees Convention reason.[25]
[24] RD 265-266 [73]-[76], [78]
[25] RD 266 [77]
The Tribunal therefore concluded that the second applicant did not meet the refugee criterion in s.36(2)(a) of the Migration Act nor did the applicants face a real risk that they would suffer harm as defined under s.36(2)(aa) of the Migration Act.[26]
[26] RD 266 [79]
The present proceedings
These proceedings began with a show cause application filed on 17 August 2018. As noted above, the application was filed nine days outside the period prescribed under s.477(1) of the Migration Act. In that application, the applicants seek an extension of time pursuant to s.477(2).
The application is supported by an affidavit by the first applicant made on 1 August 2018 and filed with his application. In his affidavit, the first applicant notes that he requires an extension of time for the judicial review.
As the Minister notes at [23] and [24] of his submissions, the Court has a discretion to extend time and the Migration Act does not specify particular factors which must be considered.
Section 477(2) of the Migration Act confers a discretionary power on this Court to extend the 35-day period identified in s.477(1) if an application for an extension of time has been made in writing and this Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”. That this Court be satisfied that it is necessary in the interests of the administration of justice to grant an extension of time is a precondition to the exercise of the power and its importance cannot be overstated.[27]
[27] EXU17 v Minister for Immigration [2018] FCA 1675 at [29], [32]-[33], [44], [48] per Griffiths J
Section 477(2) does not identify any factors which must, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[28] be taken into account; the power reposed in this Court is a broad one. Ordinarily, factors to which this Court will take into account are the length of, and explanation for, the applicant’s delay, whether the grant of an extension of time will result in any prejudice to the opposing party, and the merits of the proposed ground(s) of review. That is not to say, however, that other factors might not also be taken into account.[29]
[28] (1986) 162 CLR 24 at 39-41
[29] MZABP v Minister for Immigration (2015) 242 FCR 585 at 597 [58] per Mortimer J
As I explained to the first applicant, I commonly consider the extent of the delay, the explanation for the delay and the legal merit in the application.
The delay in this matter is short. Further, the Minister would not suffer any prejudice by the granting of an extension of time. However, the explanation for the delay is wholly unsatisfactory. In the application, the first applicant asserts that he sent the show cause application by post and it arrived one day late in the registry. There are two problems with that statement. The first is that the application itself is dated after the expiry of the appeal period. Secondly, the assertion is in the application itself which must have been made before it was posted.
The first applicant also asserts that he was not aware of the time limit for judicial review in this Court. This, however, is contradicted by his statement in his affidavit made on 1 August 2018 that he required an extension of time for judicial review. Even more troubling is the fact that that statement was made on 1 August 2018, well before the appeal period expired. The circumstances give rise to an inference that the late filing of the show cause application was intentional. I put that proposition to the first applicant, and he denied it. I remain of the view, however, that the late filing of the application was an intentional act. That of itself should result in the refusal of the extension of time.
Even if I were wrong, however, and the late filing was not intentional, I would still refuse an extension of time given the lack of merit in the application.
The grounds are addressed in the Minister’s submissions. On an “impressionistic reading”,[30] the applicants’ proposed grounds of review disclose a lack of sufficient merit to warrant the grant of an extension of time. In the circumstances, weight should be given to this factor because, in the absence of any identified or apparent jurisdictional error in the decision, the Court could not be satisfied that it is necessary in the interests of the administration of justice to grant an extension of time, as required by s.477(2)(b) of the Migration Act.[31]
[30] MZABP at 599 [66]
[31] In the context of an extension of time to appeal to the Federal Court, it is well established that the Federal Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if it has no prospects of success: SZQGO v Minister for Immigration [2012] FCA 177 at [29] per Murphy J
The application contains two grounds of review:
1.The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application. (Ground 1)
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act. (Ground 2)
(errors in original)
Ground 1, taken at its highest, appears to contend that the Tribunal did not properly assess the evidence before it. If this is the intended complaint, the applicants have not identified what evidence was not considered or about which the Tribunal “misinformed itself”. On the contrary, the Tribunal’s review of the applicants’ claims and evidence was thorough. It rejected the applicants’ claims on the basis of “numerous and significant credibility concerns”. There is no substance to Ground 1.
Ground 2 is a formulaic ground, frequently raised.[32]
[32] For example, see NAOJ v Minister for Immigration [2003] FCAFC 263
In SZSDE v Minister for Immigration,[33] Rangiah J at [17] approved of the primary judge’s characterisation of this ground as “an impermissible attempt at merits review of the Tribunal’s decision”.
[33] [2013] FCA 1339
The applicants requested and were given the opportunity to respond in writing after the hearing to various issues of concern raised by Tribunal at the hearing, but ultimately did not do so. In the circumstances, the Tribunal’s reasons for not being satisfied of the applicants’ claims were open it.
Paragraph 2 of the affidavit of the first applicant made on 1 August 2018 makes two further complaints, that the Tribunal should have “investigated my claim … of persecution in India” and that the Tribunal decision is affected by actual bias. There is no substance to either of those contentions.
As to the contention that the Tribunal should have investigated the applicants’ claims, while an obvious inquiry about a critical fact, the existence of which is easily ascertained, may possibly give rise to a duty to inquire,[34] it has been repeatedly stressed that the circumstances in which such a duty can arise are rare and exceptional.[35] No such circumstance is apparent here.
[34] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
[35] Eg Minister for Immigration v MZYCE (2010) 116 ALD 156 (Gray J) at [35]-[38]; SZNWF v Minister for Immigration [2010] FCA 1041 (Nicholas J) at [33]-[36]; SZOER v Minister for Immigration [2010] FCA 1100 (Cowdroy J) at [68]
As to the contention that the Tribunal was biased against the applicants, the applicants have not identified any basis for a claim of either actual bias in the sense considered in the Minister for Immigration v Jia Legeng[36] or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H.[37]
[36] (2001) 205 CLR 507; [2001] HCA 17
[37] (2001) 75 ALJR 982; [2001] HCA 28
To the extent that the applicants seek to contend that there was actual bias, in the sense of prejudgment, or that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented, the heavy onus that an applicant who asserts actual bias must meet could not be met in this case.[38] The only evidence before me as to the Tribunal’s conduct of the review is in the book of relevant documents.
[38] See Jia Legeng and also SCAA v Minister for Immigration [2002] FCA 668
Nor is there is anything to suggest apprehended bias, that is, there is nothing that suggests that the Tribunal behaved in a way which might lead the hypothetical fair-minded lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to making the decision.[39]
[39] SZRUI v Minister for Immigration [2013] FCAFC 80 at [2]
Conclusion
I conclude that the interests of the administration of justice do not require an extension of time in this case. I will order that the extension of time request be refused pursuant to s.477(2) of the Migration Act. The result is that the proposed judicial review application is incompetent.
In consequence of the refusal of extension of time, the Minister seeks an order for costs in accordance with the Court scale. The first applicant did not wish to be heard on costs. The second applicant did not attend Court, but there is no reason why she should not be liable with her husband.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 May 2019
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