SZRAQ By His Litigation Guardian v Minister for Immigration
[2012] FMCA 371
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRAQ BY HIS LITIGATION GUARDIAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 371 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time – where application 5 months out of time – where applicant represented by father – where applicant claimed father of little education, confused and misled by unlicensed migration agent – whether court must consider personal circumstances of applicant – whether applicant’s case meritorious – whether Tribunal correctly applied test for “member of a particular social group” – whether Tribunal failed to make inquiry – whether to grant extension of time. |
| Migration Act 1958 (Cth), ss. 351, 418, 477 |
| SZONC v Minister for Immigration [2010] FMCA 723 Plaintiff 168/10 v The Commonwealth of Australia (2011) 122 ALD 1 Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667 M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279 Abebe v The Commonwealth (1999) 197 CLR 510 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Minister for Immigration v Zamora (1998) 85 FCR 458 STXB v Minister for Immigration (2004) 139 FCR 1 Minister for Immigration v SZIAI (2009) 259 ALR 429 |
| Applicant: | SZRAQ BY HIS LITIGATION GUARDIAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 10 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 April 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application for extension of time pursuant to s.477(2) dismissed.
Applicant by his litigation guardian to pay the first respondent’s costs assessed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 10 of 2012
| SZRAQ BY HIS LITIGATION GUARDIAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a child of almost ten years of age, born in Australia on 5 July 2002 to Indo-Fijian parents who left that country in 2000 seeking to remain in Australia. They made a number of unsuccessful applications to the Department, Tribunals, the courts and the Minister, which are detailed in the affidavit of the father dated 30 March 2012 and filed in these proceedings. On 21 February 2005 a protection visa application was lodged by the father on behalf of the child; the application was refused on 1 March 2005. The applicant did not apply to the Tribunal for review of that decision until 5 April 2011, but the Tribunal determined that the applicant had not been validly notified of the delegate’s decision and therefore he was able to make a valid application for review under s.412 of the Migration Act 1958 (Cth)[1] [5 CB 53].
[1] The “Act”.
The father attended an interview with the Tribunal on 27 May 2011, together with his daughter. The father gave evidence on behalf of the applicant. On 30 May 2011 the Tribunal determined to affirm the decision not to grant a protection visa.
On 3 January 2012 the applicant, through her father, filed an application for judicial review of the Tribunal’s decision with this court. The time limit for making such an application is set by s.477(1) of the Act as 35 days. The application was thus approximately five months out of time. There is provision in s.477(2) of the Act for the court to extend the 35 day period:
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
At the hearing of the application for extension of time and, if so extended, for review of the Tribunal’s decision the applicant was represented by counsel. She provided an affidavit from her father which indicates that he is a man of little education, was confused by the processes and possibly became the victim of an unlicensed migration agent who persuaded him not to seek review of the Tribunal’s decision whilst an application under s.351 of the Act was being made: a decision on that request was made on 12 December 2011 and thereafter the application to this court was made. As the respondent says in its helpful written submissions:
“In SYED v Minister for Immigration [2011] FMCA 397 at [7], the Court held, in light of higher authority, that “it is now settled that the fact of an application to the Minister is not of itself a ground for extending time.””
This court also held in SZONC v Minister for Immigration [2010] FMCA 723 at [8] that falling victim to a person who falsely claims to offer expertise, such as that of a migration agent, was not an adequate explanation for delay.
The applicant argues that the words in s.477 “that it is necessary in the interests of the administration of justice to make the order”, require the court to look at the personal situation of an applicant: Plaintiff 168/10 v The Commonwealth of Australia (2011) 122 ALD 1 at [8 -12]; Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667[2] and M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279 [T29-30]. In the latter case, Crennan J noted that:
“Factors relevant to an application to extend time, including an extension under section 486A(2), include not only the length of the delay and the reasons for the delay, but also the strength or weakness of the case now sought to be advanced and the utility of advancing that case.”
In M13/2011 Hayne J said at [10]:
“If allowing 12 weeks to elapse was, as the minister submitted, to be treated as an unwarranted delay in the plaintiff’s instituting proceedings, that characterisation would not of itself determine whether it is in the interests of the administration of justice that she should now be permitted to prosecute the claim she seeks to make in this court. Consideration must be given to the merits of the case which she would seek to mount here.”
[2] “M13/2011”
Whilst I am not impressed by the actions of the father, as revealed in his affidavit, I recognise that it might be unfair to visit upon his daughter these concerns. Thus, if she appeared to have a meritorious case for review, I would give greater weight to that factor when considering the exercise of my discretion.
The court book reveals that the applicant’s father, who signed the visa application, only claimed on behalf of his daughter that:
“I Born Australia. my parents in Australia. I can’t back to Fiji.”
When the applicant appeared with her father at the Tribunal hearing her situation was expanded upon [22-25 CB 56]. It appeared that the parents left Fiji after the Speight coup in 2000 when indigenous Fijian gangs came to their village and told them to get out or they would be killed. They came to their house and threw rocks at it. They hid in a neighbouring sugarcane field until the Fijians left. They gave a statement to the police but nothing came of it:
“The Tribunal asked Mr P in what way he was asserting that the applicant would be persecuted if she returned to Fiji. He said that he and his wife left everything to come to Australia and he did not have a house any more in Fiji, so there was nothing for the applicant if she returned there. He also said that:
· He and his wife could not guarantee that the applicant would be safe in Fiji;
· She would be harassed by indigenous Fijians because she had been born in Australia;
· Mr and Mrs P had had a bad experience in the past and had now been in Australia for 11 years. If they went back to Fiji,k [sic] anything could happen to them and their children;
· The applicant had been in Australia all her life, she was doing well in school and her future was in Australia.”
The Tribunal’s decision record then turns immediately to country information from which, I must infer, that the applicant said no more than that set out at [25], extracted above. It is, of course, for an applicant to make his or her own case: Abebe v The Commonwealth (1999) 197 CLR 510. If this was all that was put on the applicant’s behalf, one can readily see how difficult it might be for a Tribunal to come to a conclusion that she had a well-founded fear of persecution for one of the five convention reasons. In the decision record, after making reference to independent country information, the Tribunal moved on to its findings and reasons:
“[41] The applicant’s claims are put on the basis that she has a well-founded fear of being persecuted in Fiji for reasons of her ethnicity as an Indo-Fijian. It also seems to be asserted on her behalf that she has a well-founded fear of being persecuted because of the fact of her having been born in Australia.
[42] As to the first limb of the applicant’s claims, the Tribunal accepts that her parents were affected by the generalised violence that was directed to Indo-Fijians in the aftermath of the Speight coup in 2000. However, there is no evidence to suggest that, in Fiji at the present time, Indo-Fijians face serious harm within the meaning of s.91R(1) of the Act. While Indo-Fijians remain disproportionately represented politically and do not have the same degree of land ownership as indigenous Fijians, these impediments or limitations do not amount to persecution. Furthermore, although the Bainimarama administration could at best be described as erratic, one of its key policy objectives has been to promote inter-racial harmony in Fiji. As mentioned above, no racial violence occurred after the 2006 coup and race relations are generally harmonious.” [41-42 CB 59]
At [44] the Tribunal turns to the applicant’s claims relating to her membership of a particular social group, and it is in this regard that the applicant claims that a jurisdictional error has been made. The Tribunal’s reasoning on the matter is found between [44 and 47 CB 60]:
“As to the second limb of the applicant’s claims, the Tribunal has considered whether it could be said that her membership of a particular social group constitutes the basis of her fears. In this regard, the Tribunal has considered the evidence the applicant’s father gave on her behalf that she could face harassment because she has been born in Australia. The issue is whether persons born in Australia r [sic] outside Fiji constitute a particular social group in Fiji.
The meaning of expression “for reasons of…membership of a particular social group” was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ have the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
…First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group form [sic] society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”…
Whether a supposed group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons or[sic] the person’s membership of the particular social group.
In the present case there is no evidence before the Tribunal to suggest that persons who have been born in Australia or outside Fiji are perceived in Fijian society as a particular social group or are cognizable in Fiji as such a group. The Tribunal therefore finds that such persons are not a particular social group for the purposes of the Convention.”
The applicant argues, in essence, that whilst paying lip-service to the decision in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387[3], the Tribunal in fact applied the test in Minister for Immigration v Zamora (1998) 85 FCR 458[4], that was discarded in Applicant S:
“18. That with respect is the wrong test. The test is whether the group is distinguished from society at large (Applicant S at 217 CLR at 298 [27], 400 [36]), not whether it is perceived in Fijian society or “cognisable” in Fiji as such a group. The Tribunal looked at the issue from the perspective of Fijian society, whereas the High Court favoured an objective test, looking at the posited group from the outside. The Tribunal in effect applied the test advanced by the Full Court of the Federal Court in Minister for Immigration v Zamora (1998) 85 FCR 458, 464 which was overruled in Applicant S.”[5]
[3] “Applicant S”.
[4] “Zamora”.
[5] Applicant’s written submissions.
Mr Karp’s case on behalf of his client is that by using the words “perceived in Fijian society as a particular social group” and “or are cognizable in Fiji as such a group” the Tribunal applied a subjective test and not the objective test required by Applicant S. At [27] the majority Gleeson CJ, Gummow and Kirby JJ said:
“His Honour was expanding on the requirement that the existence of a particular social group requires that the group be distinguished or set apart from society at large. One way in which this may be determined is by examining whether the society in question perceives there to be such a group. Thus, perceptions held by the community may amount to evidence that a social group is a cognisable group within the community. The general principle is not that the group must be recognised or perceived within the society, but rather that the group must be distinguished from the rest of the society.”
And at [34]-[35] said:
“There is no reason in principle why cultural, social, religious and legal norms cannot be ascertained objectively from a third-party perspective. Communities may deny the existence of particular social groups because the common attribute shared by members of the group offends religious or cultural beliefs held by a majority of the community. Those communities do not recognise or perceive the existence of the particular social group, but it cannot be said that the particular social group does not exist.
The third-party perspective is a common feature in the decision-making by the tribunal and by the delegates of the minister. Decisions made by these decision-makers may rely on “country information” gathered by international bodies and nations other than the applicant’s nation of origin. Such information often contains opinions held by those bodies or governments of those nations. From this information it is permissible for the decision-maker to draw conclusions as to whether the group is cognisable within the community. Such conclusions are clearly objective. However, as accepted by McHugh J in Applicant A, subjective perceptions held by the community are also relevant.”
I take these views expressed by the High Court to mean that the Tribunal cannot make it a requirement that the group is cognisable in the community, but it can utilise such evidence in its formation of its objective finding. Selway J explained Applicant S in STXB v Minister for Immigration (2004) 139 FCR 1 at [26]:
“It can be seen that this test is similar to that identified by the Full Court of this Court in Zamora which was relied upon by the Tribunal in this case. There is one clear difference and another possible difference. The clear difference relates to the third proposition in both tests. The High Court rejected that aspect of the third proposition stated by the Full Court, that society must recognise that the group is ‘set apart’. The High Court held that the group must be ‘distinguished or set apart from society at large’ — it must be ‘a cognisable group within the community’ (see at [27]). Whether or not it is so cognisable is a question of fact, to be ‘ascertained objectively from a third party perspective’ (at [34]). Obviously, if a group is set apart from the rest of society then the society itself and the members of the group are both likely to identify the group as a separate group. However, even if they do not the group can still be a ‘particular social group’ if, as a matter of fact, the relevant group fulfils the tests set out in the joint judgment.”
The problem that the Tribunal faced in the instant case was not just that there was no evidence as to how persons born in Australia or outside Fiji were perceived in Fijian society, there was no evidence at all about how such persons were perceived. There was a bald assertion by the father that the applicant would be harassed by indigenous Fijians because she had been born in Australia. Mr Karp argues that if the Tribunal had applied what he considers to be the right test, then that would have alerted the Tribunal to the requirement to make some inquiries as to the position of persons within this particular social group. But that leads down the slippery slope of the Tribunal’s obligation to make inquiries considered by the High Court in Minister for Immigration v SZIAI (2009) 259 ALR 429 where the such an obligation was strictly limited to the scenario where a Tribunal failed to make obvious inquiries about critical facts, the existence of which are easily ascertained. This does not seem to be such a case.
I am of the view that when the Tribunal utilised the phrases impugned by the applicant, it was not wrongly applying the Zamora test but was looking for evidence from an acceptable source that would allow it to make an objective decision. I do not believe that the Tribunal fell into jurisdictional error.
In these circumstances I would not propose to grant the applicant the extension of time she requests. I do not believe that her case could have been put much higher than it was put by Mr Karp on her behalf. I believe that the prospects of success of that case are minimal and, thus, it would not be in the interests of justice to grant the extension of time. The application is dismissed, the applicant by his litigation guardian must pay the first respondent’s costs which I assess in the sum of $4,250.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 8 May 2012
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