SZRFU v Minister for Immigration
[2012] FMCA 894
•23 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 894 |
| MIGRATION – Application for an extension of time – no satisfactory explanation for the delay in bringing the substantive application – substantive application lacks merits – extension of time refused. |
| Migration Act 1958 (Cth), ss.36, 476, 477 |
| SZRDO v Minister for Immigration & Anor [2012] FMCA 893 SZQQI v Minister for Immigration & Anor [2012] FMCA 221 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 Fisher v Minister for Immigration & Citizenship [2007] FCA 591 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 SZQPN v Minister for Immigration & Citizenship [2012] FCA 424 BZABK v Minister for Immigration & Citizenship [2012] FCA 774 Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 |
| Applicant: | SZRFU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 509 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 August 2012 |
| Date of Last Submission: | 23 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the First Respondent: | Mr M Alderton |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for an extension of time made on 7 March 2012 is refused.
The applicant pay the first respondent’s costs fixed in the amount of $4400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 509 of 2012
| SZRFU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from transcript)
I have before me an application, made on 7 March 2012 pursuant to s.476 of the Migration Act (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 6 January 2012, which affirmed the decision of the delegate of the respondent Minister not to grant the applicant a protection visa.
I also have before me today an application made pursuant to s.477 of the Act to extend the time for the making of that application to the Court. It is that application which is the subject of consideration today.
Background
The applicant is a citizen of Nepal who arrived in Australia on 12 November 2010, using what was described as a “bogus passport” (Court Book – “CB” – CB 11, CB 13). He applied for a protection visa on 18 January 2011 (CB 1 to CB 35, with annexures). He was assisted in this application by a Mr Dilip Jan Pun, who is not a registered migration agent (CB 8).
The applicant’s claims to protection were initially set out in his application for a protection visa. In essence, his claims were that he feared harm from Maoists in Nepal because of his criticism of them. He had been threatened by them as he had been a member of a Nepalese student’s union. Further, he stated that he had been “mentally disturbed” by the Maoists, and that he would not be protected by the Nepalese authorities because of the strength of the Maoists (CB 17, CB 20).
In a statement that he subsequently provided to the Minister’s delegate, the applicant set out a number of incidents which he said were instances of harm suffered at the hands of the Maoists (CB 45 to CB 47).
The Delegate
In his decision of 20 April 2011, the Minister’s delegate had regard to the “1950 Treaty of Peace and Friendship between the Government of India and the Government of Nepal” (“the Treaty”). He concluded that the applicant might be permitted to enter and remain in India but, as that right was not legally enforceable, that did not amount to effective state protection in a third country (CB 68).
However, the delegate found that the applicant’s claims to be a refugee were general in nature and lacked substance (CB 69). While he accepted some aspects of the applicant’s claims, the delegate did not consider that the applicant had a high profile, and therefore found that he would not be targeted by the Maoists (CB 70). While noting that the applicant had made claims of certain instances of harm, the delegate was not satisfied that the applicant had been specifically targeted because of his political opinion, or that he suffered harm amounting to persecution in Nepal. Further, the delegate was not satisfied that the applicant would face systematic discriminatory conduct in the reasonably foreseeable future, or otherwise be subject to persecution for a Refugee Convention reason, if he were to return to Nepal (CB 71).
The Tribunal
The applicant applied to the Tribunal for review on 13 May 2011 (CB 73 to CB 76). He was invited to, and attended, a hearing before the Tribunal (CB 82, CB 89). From the only account before the Court of what occurred at that hearing, that is, the Tribunal’s own account as set out in its decision record, it is clear that the Tribunal discussed with the applicant the issue of the Treaty.
Also discussed was whether the applicant would face a real chance of persecution in India and the possible effect on his application of the operation of s.36 of the Act. From the Tribunal’s account, it can also be seen that references to relevant country information were discussed with the applicant.
In its decision, the Tribunal stated that ([63] at CB 118):
“For the reasons that follow, it is not necessary to consider the applicant’s claims for protection in any greater detail, other than to identify who he states will harm him.”
This was because the Tribunal considered the Treaty and found, based on that Treaty, that the applicant had a legally enforceable right to enter and reside in India ([66] to [69] at CB 119 and [73] at CB 120). Further, the Tribunal found that the applicant was not at risk of being located by the Maoists in India ([68] to [69] at CB 119 and [72] at CB 119), or suffering harm from Nepalese Maoists in India ([70] to [71] at CB 119).
The Tribunal also found that the applicant was not at risk of serious harm amounting to persecution in India and, as a result of the application and operation of s.36(3) of the Act, the Tribunal found that Australia did not owe protection obligations to the applicant ([73] at CB 120).
Relevant Legislation
I note the following provisions of the Act:
“Section 36
…
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.”
The Substantive Application to the Court
The grounds of the substantive application to the Court are as follows:
“1. It is contended that the Tribunal Member’s decision in my case has been vitiated by an error of the law as the Tribunal Member has postulated that I can relocate to India by heavily relying upon the 1950 Treaty of Peace and Friendship between India and Nepal based on Tribunal Member’s arbitrary view. As I am a genuine refugee of persecution, the fact is that I cannot avoid the persecution by relocating to India where I cannot obtain effective protection in practicality.
2. My argument is that I am not safe even in India because I will have to face continued problems with the Maoists. I argue that the analysis of the Tribunal Member on the issue of relocation to India in the circumstances to be inadequate and arbitrary.
3. I argue based on the truth that there is no evidence that Indian domestic law giving enforceable rights of entry to all Nepali nationals or evidence that the Treaty has legal effect under Indian domestic law.
4. It is contended that jurisdictional error is evidence in the way in which the Tribunal Member ignored or failed to produce evidence that I have legal right or access under the Indian domestic law. I left Nepal for safety reason as I felt that it was inevitable that I would be harmed or killed by the Maoists. The Tribunal Member has deprived me of natural justice and good faith in my case. This is injustice.”
The Proceeding before this Court
Before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Mr M Alderton appeared for the respondent Minister.
The applicant told the Court, although not in any evidentiary context, that the grounds of his application to the Court had been drafted with the assistance of a “Mr Dilip Pun”. This is not the first time that this Court has been told of Mr Pun’s involvement in presenting purportedly legal grounds, for consideration by this Court in an application of this type involving Nepalese citizens.
I have already noted, in at least one other judgment, the Court’s concern at Mr Pun’s continued and repeated involvement in assisting people to come to this Court in circumstances where he has no legal qualifications to provide legal assistance. Further, where the grounds as stated appear to have either little legal merit or are otherwise deficient in presentation or substance (SZRDO v Minister for Immigration & Anor [2012] FMCA 893 and SZQQI v Minister for Immigration & Anor [2012] FMCA 221).
I should also note, with reference to CB 8, that Mr Pun is not a registered migration agent, and yet has purported to provide assistance beyond interpretation assistance, with the preparation of the applicant’s application for a protection visa before the Ministers department and the application for review to the Tribunal. I ask the Minister’s solicitor to pass this on to those relevant persons in the Minister’s department for appropriate action or referral.
The Application for the Extension of Time
The applicant has sought an extension of time within which to bring his application to this Court, pursuant to s.477(2) of the Act, given that the application was made outside the 35 day period for the making of such applications, as specified in s.477(1) of the Act. I note in respect of that application that the applicant has set out certain grounds in the application for an extension of time that accompanied his substantive application.
At the first Court date in this matter, on 21 March 2012, I raised with the applicant that his application faced some difficulties, and ensured that the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. That was done in the hope, and expectation, that that lawyer would be able to explain to the applicant the nature of the proceedings before this Court and with reference, in particular, to the application for an extension of time that the applicant was required to make before any consideration could be given to his substantive application.
I note a Certificate that has been placed on the Court’s file to the effect that the applicant did attend and was given advice by Mr David Godwin of counsel. Mr Godwin is known to the Court as an experienced counsel in matters of this type, having appeared on many occasions before the Court in migration matters. In spite of the benefit of legal advice, when called upon today the applicant, in effect, pressed only one matter. That is, that he was unhappy with the Tribunal’s decision because the Tribunal focused only on the Treaty.
I should also note that the applicant did file in these proceedings an affidavit made on 7 March 2012, which made reference to the reasons for his delay in making his application to the Court. However, when given the opportunity, the applicant said he did not seek to rely on that affidavit and therefore, in that sense, did not ask for the affidavit to be formally read before the Court. Instead, from the bar table, he chose to seek to repeat the matters set out as the grounds for the application for an extension of time.
In essence, that explanation is that while the Tribunal’s letter notifying of its decision was received at his address for service, the postal notification of the letter had been taken by a friend. That friend took delivery of the letter, but did not inform the applicant, because he forgot to do so.
Section 477(1) of the Act provides, relevantly, that applications for judicial review of a Tribunal decision must be made to this Court within 35 days of that decision. The Tribunal’s decision in the current case was made on 6 January 2012. The application to the Court was made on 7 March 2012. That is, some little time after the expiry of the 35 day period.
The consequence of that is that the application to the Court is not competent. However, s.477(2) of the Act does provide for the Court to extend that time if it is in the interests of the administration of justice to do so. I note that s.477(2)(a) requires that such an application to extend time be made in writing and specify why the applicant considers that it is necessary, in the interests of the administration of justice, to make the order extending time. The applicant has done that.
The elements generally relevant to this consideration under s.477(2), have been canvassed in a number of cases now before this Court. (see my consideration in SZMFJ v Minister for Immigration & Anor[2009] FMCA 771 at [44] and SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23]. See also SZNZI v Minister for Immigration & Anor[2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor[2010] FMCA 197 at [52] per Barnes FM).
In the circumstances of this case, two elements appear immediately relevant. First, whether a reasonable explanation or a satisfactory explanation for the delay has been provided to the Court. Second, whether there is any merit in the substantive application such that it would be in the interests of the administration of justice to extend time.
In this regard, I note also the reference in [5] of the Minister’s written submissions to the authority of Fisher v Minister for Immigration and Citizenship [2007] FCA 591 per Stone J and in particular, what her Honour said at [35] of that judgment. That is, the interests of the administration of justice involve consideration not only of the reasons for not meeting the original time limit, but also whether the application, were the extension of time to be granted, would have any prospect of success.
I should note that for the purposes of this consideration, I also take into account, and have regard to, what was said by the Full Federal Court in SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26. Further, what was said by Jagot J in SZQPN v Minister for Immigration & Citizenship [2012] FCA 424 and by Foster J in BZABK v Minister for Immigration & Citizenship [2012] FCA 774.
While the extent of the delay in the present case is not great, the reasons given by the applicant in his application for the delay in applying for judicial review, and whether they constitute a satisfactory explanation for the delay, are nonetheless a matter relevant for consideration in the current circumstances.
It is important to note that, despite the opportunity of obtaining legal advice, the applicant has sought not to rely on what was put in his affidavit. I draw no adverse inference from that. But what remains is that the applicant’s explanation for the delay remains untested before the Court, and does not rise above mere assertions.
In essence, those assertions are that while the Tribunal’s decision was posted to his home address, which (with reference to what is set out at CB 75) is the address that was relevantly given for the purposes of the application for review, he was not at home at the relevant time and did not receive the Tribunal’s letter of notification of its decision.
Some time after the hearing before the Tribunal, the applicant inquired from his “roommates” as to whether any letters, or any receipt to collect letters, had been received. One of his roommates told him that a postal notification (“receipt”) had arrived, that he had taken it to the post office and collected the letter, but forgot to tell the applicant. In his own explanation, the applicant concedes that the letter from the Tribunal was sent in time.
Mr Alderton submitted, and I agree with his submissions, that these assertions remain untested before the Court. I am not satisfied that the applicant has provided a satisfactory explanation for the delay in making his application to the Court. Beyond the assertions made remaining untested, it is also the case that it cannot be said that the failure to make the application in time was because of any fault, or omission, or lack, on the part of the Tribunal. In fact the letter, on the applicant’s own assertion, was “received in time”.
An application for protection in this country is a serious matter. It is at least incumbent on applicants to take all reasonable steps to ensure that letters that are posted to them, and received at the correct address for service, are received into their hands as soon as possible. The untested assertion that one of his friends took a postal notification addressed to the applicant to the post office, without telling the applicant, collected the applicant’s letter and then forget to tell him about that letter does not provide any satisfactory explanation for the delay.
In these circumstances, that alone in my view, provides sufficient reason to refuse the extension of time (Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 576 per von Doussa J at [5], Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai[2004] HCATrans 364 per Hayne J and Plaintiff M90/2009 v Minister for Immigration and Citizenship[2009] HCATrans 279 per Crennan J). The extension of time in this case is refused on the basis that the applicant has not provided a satisfactory explanation for the delay in seeking judicial review.
The Merits of the Substantive Application
The Minister also seeks that the Court consider whether the merits of the substantive application, in and of themselves, would cause the Court to extend the time for the making of the application. However the grounds in the substantive application, in essence, all seek to take issue with the Tribunal’s findings, and its subsequent conclusion, that the applicant has a legally enforceable right to enter and reside in India, and that that right flows from the Treaty to which I have already referred.
In addition to those findings, the Tribunal found that the applicant had, on his own evidence, not taken steps to enforce that right. Even further, the Tribunal found that he would not face persecution in India and that the likelihood of his return to Nepal by the Indian authorities was remote. In light of these findings, the Tribunal found that ss.36(4) and 36(5) of the Act applied to the applicant. The Tribunal’s reasoning subsequently was that in these circumstances, where Australia did not owe the applicant protection, s.36(3) applied.
Therefore, while the Tribunal reasoned contrary to the reasoning adopted by the delegate, nonetheless the delegate’s decision was affirmed on that basis. The applicant asserts that the Tribunal erred by relying “heavily” on the Treaty in circumstances where he says he is a genuine refugee and cannot avoid persecution by relocation to India. While the applicant has liberally sprinkled his complaints with such terms as “arbitrary”, “inadequate”, “not in good faith” and “denial of natural justice”, and has submitted that the Tribunal’s findings were made without evidence, none of what presumably sits behind each and all of these assertions is made out on the material presented to the Court in a factual sense, let alone reveals jurisdictional error.
The Tribunal’s findings, and its ultimate conclusion in this regard, were all reasonably open to it on what was before it. Specifically in relation to its finding that the applicant had a legally enforceable right to enter and reside in India, the Tribunal plainly had regard to relevant country information. The Tribunal considered both the relevant Treaty between the two nations and other relevant independent information, including information from the Australian Department of Foreign Affairs. No legal error is revealed in the circumstances. I respectfully note here what Graham J relevantly said in SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 particularly at [33]:
“Plainly, it is not open to this Court to afford the appellant a merits review of the Tribunal’s decision. In my opinion, the Tribunal did not commit any jurisdictional error by relying upon irrelevant material in a way that affected the exercise of its power. In my opinion, it was appropriate for the Tribunal to have regard both to the treaty and also to the relevant Country Information which distinguished the western parts of Nepal from other parts, such as the capital city of Kathmandu.”
The Minister, in my view correctly, submits that the question of whether the applicant had a right to enter and reside in India was a question of fact for the Tribunal. To the extent that the applicant’s complaints may imply that the protection offered by the Treaty is temporary or impermanent, and has not been enacted into domestic Indian law, then I also agree with the Minister’s submissions in answer to that complaint.
Those submissions are particularly set out at [26] of the Minister’s submissions, and I adopt what was said there by the Minister for the purposes of my judgment, and rely also on the authorities cited by the Minister:
“The right to enter and reside in the third country is not a right equivalent to recognition of the non-citizen as entitled to all the attributes of citizenship or even refugee status in the third country (SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [34 per Rares J]). Further, the right can be temporary in nature and last for no particular period greater than the time taken to meet the exigency that gave rise to the non-citizen’s well-founded fear of persecution in the country from which he or she had fled (SZMWQ v (2010) 187 FCR 109 at [35] per Rares J). The fact that the residence of which s.36(3) speaks may be temporary is clear from the face of the provision (WAGH v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 269 at [62] per Hill J). Further, the existence of this right is not dependent on a finding that the right has been enacted into domestic law (SZQWP v Minister for Immigration & Anor [2012] FMCA 532 at [21] per Nicholls FM).”
It is clear that the applicant is aggrieved by the Tribunal’s analysis and finding, but I cannot see any legal error in the Tribunal’s analysis and application of the relevant sections of the Act (s.36(3), (4) and (5) of the Act) to the circumstances presented to it.
The Tribunal further found that, once the right to enter and reside in India was exercised by the applicant, he would not be harmed by the Indian authorities, and he did not have a well-founded fear of persecution while he remained in India.
These were all findings of fact that were reasonably open to the Tribunal to make on what was before it, and for which it gave cogent reasons. Given that this is the extent of the applicant’s “legal complaints” before the Court, then it is the case that, for the reasons given, I cannot see any merit in the grounds of the substantive application. Therefore, rather than providing a reason to extend time, the substantive application in fact supports the conclusion that time should not be extended.
The Interests of the Administration of Justice
In all the circumstances, therefore, the applicant has not provided a satisfactory explanation for the delay in making his application for judicial review. His complaints, as expressed in the grounds of the application and as pressed before the Court, do not provide any basis such as to say that his substantive application has any prospect of success.
The conclusion therefore that I have reached is that the application to the Court has been made out of time and, in light of the unsatisfactory explanation for the delay in making the application on its own, it is not in the interests of the administration of justice that an extension of time be granted. The lack of merit in the grounds of the substantive application provides no basis to question that outcome. I will make an order accordingly.
As a consequence of the refusal to extend time, the substantive application is not competent. The Minister seeks no further order in this regard.
Costs
It is appropriate that an order for costs be made. No argument has been put, nor can I see any reason, not to make the order in the usual way. The applicant has put only one matter in relation to costs before the Court. That it is that it is a large amount and he seeks some reduction. Implicit in that is that is that he does not seek to oppose the making of the order, but seeks to challenge the amount that the Minister seeks. I will make the order as to costs.
As to the amount, the test that I am required to apply is whether the amount sought is reasonable in all the circumstances. It may be that the applicant is tempted to say, or is pressed to say, that this is a large amount, both because in itself it is a large amount, but also because he lacks sufficient funds. Any such lack of funds is not a reason to not make the order in the amount sought by the Minister. Large, or otherwise, the amount sought is reasonable in the circumstances.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 27 September 2012
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