SZRRJ v Minister for Immigration - [2012] FMCA 1074

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRJ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1074

PRACTICE AND PROCEDURE – Extension of time – whether acceptable explanation for delay in making of application – whether extension would prejudice respondent – whether Tribunal came to adverse credibility finding without giving opportunity to be heard – where applicant contests Tribunal’s conclusions of fact – whether Tribunal failed to make obvious inquiries – whether any merit in substantive application – whether to grant extension of time.

Migration Act 1958 (Cth), ss.425, 477(1), (2)

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Anor v SZIAI (2009) 259 ALR 429
SZHVL v Minister for Immigration & Anor [2008] FCA 356
Seyfarth v Minister for Immigration & Anor [2004] FCA 1713
VCAK of 2002 v Minister for Immigration & Anor [2004] FCA 459
Minister for Immigration & Anor v SGLB (2004) 207 ALR 12

Applicant:

SZRRJ

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1640 of 2012

Judgment of:

Raphael FM

Hearing date:

9 November 2012

Date of Last Submission:

9 November 2012

Delivered at:

Sydney

Delivered on:

9 November 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

Application for extension of time dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,239.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1640 of 2012

SZRRJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 12 April 2008. On 28 April 2011 he applied for a protection (Class XA) visa. On 27 July 2011 a delegate of the Minister refused to grant him a protection visa and on 25 August 2011 he applied for review of that decision from the Refugee Review Tribunal. The Tribunal held three hearings with the applicant, the first on 31 January 2012, the second on 20 February 2012 and a final one on 18 April 2012. On 8 June 2012 the Tribunal determined to affirm the decision not to grant the protection visa.
The grounds upon which the applicant claimed to be a person whom Australia owed protection obligations and/or was entitled to complimentary protection was the convention one of religion/political opinion/membership of a particular social group. The applicant claimed that although he was born into a Hindu family he converted to Sikhism in 2003. He became actively involved in the AKJ and he converted his own wife to the Sikh religion. This caused considerable problems within his family and his wife eventually left him. He believes that if he returns to India, Hindu extremist groups the RSS and the VHP, would persecute him and possibly kill him because he is a member of the AKJ. He does not believe he would obtain protection from the Indian police authorities and he believes he is in danger from his wife’s family.
The applicant told the Tribunal a long and complex story about his life in India from about 2003 when he converted to Sikhism and how he ended up in Australia on a student visa. He appeared to have been taken under the wing, together with a friend, of some people who saw him living in the gurdwara and they provided him with the money and all necessary assistance to obtain the student visa and to maintain him in Australia:
“[38]I put to the Applicant that I found this arrangement difficult to understand, given that he had been over twenty five years of age at the [sic] in 2003 and was over thirty five now. He said the family had lost their son in an accident in 2003 and they had begun seeing him as their own son. I asked him why, if these people had treated him like their own son, he had still be living penniless in various temples and having to work as a farmhand to obtain his food and shelter. … He added that it is very hard in India to transfer money from one person to another. Asked what he meant by this he said that when he was living in New Delhi, there was no internet banking. Although internet banking now exists he did not understand it. … It was not possible to transfer money from place to another within India using Western Union. I put to him the world, including India, had a banking system, which made it possible to transfer funds. He said that to his knowledge there had been only one bank in India at the time in which it was possible to deposit and collect funds, and this had to be within the same branch. I suggested that if this were the case India could not have existed as a nation. …
[39]I asked the applicant if he meant the same family who had treated him as their own son and who had paid the very large amount of money necessary to allow him to come to Australia had nevertheless allowed him to live for some five years in penury, relying on charity in temples.”
The Tribunal took up with the applicant the fact that some incidents which he used to illustrate the persecution he claimed to have suffered had not been found in his original applications or in his departmental interview. The Tribunal was also concerned that the applicant had voluntarily returned to India after one of these alleged incidents and before he left in 2008. The Tribunal expressed its concern to the applicant of the delay in applying for a protection visa.
In its findings and reasons, the Tribunal accepted that the applicant was a Hindu convert to Sikhism in 2003. It accepted that he had married a Hindu girl who later converted to Sikhism, left him and reconverted. It accepted that his wife’s brothers may have blamed him for that occurrence:
“[68]However, I do not accept key aspects of his claim to have suffered harm in India, or to fear harm there because of these circumstances.”
The Tribunal then provides reasons why it does not accept the applicant’s claims, in particular, the late appearance of claims regarding an incident in Delhi in 2004, the rather disingenuous story about the support he had received from these persons in India, his voluntary return to India from Malaysia and Thailand prior to his application and the three year delay in making the application to the Tribunal.
“[79]In the light of all the information before the Tribunal I am not satisfied that the Applicant ever suffered serious harm in India as he claims or that he did, in fact, genuinely fear that he would suffer harm in India. I am not satisfied that anything has changed in this regard so that he could now be said to face a real chance of serious harm in India and, given my concerns about the credibility of his account in general, I do not accept his claim that his brother had been attacked and injured or that the extremist Hindus are looking for him. Nor am I satisfied that he presently holds a genuine fear of serious harm in India.
[80]I am not satisfied that the Applicant has a well-founded fear of harm in India because of his religion or for any other Convention reason and I am not satisfied he is a refugee.
[81] I have also considered whether the applicant might meet the alternative criterion for complementary protection. Having done so however I am not satisfied that the information before the Tribunal is sufficient to establish that as a necessary and foreseeable consequence of his being removed from Australia to India, there would be a real risk and he would suffer significant harm in terms of: s.36(2)(aa) of the Act.”
The decision of the Tribunal was dated 12 June 2012 and the letter sending it to the applicant who lives in Griffith is also dated that day, although on the decision record the date 8 June appears. The applicant had, pursuant to s.477(1) of the Migration Act 1958, (Cth)[1] thirty-five days in which to file an application in this court to seek review of the RRT decision. The respondent is of the view that the last day for filing was 13 July 2012. I am of the view that it was possibly 17 July. But in either case the application was made out of time being filed in this court on 26 July 2012. The applicant is therefore required to satisfy this court that it is in the interest of justice that an extension of time be granted. It is generally considered that there are two matters to be taken into account when coming to a decision as to whether or not to exercise discretion under s.477(2) of the Act. First is the length of the delay and the reason for the delay and whether there is an acceptable explanation for it. Second is the merits of the substantive application. Other matters to be considered are any prejudice to the respondents, the impact on the applicant and the interest of the public at large.
[1] “Act”
Prior to today, the applicant had made no effort to explain the delay. He told me today that he had made an earlier application by post but this was returned to him. He has offered no corroborating evidence of that and the file clearly indicates that the application was filed on 26 July 2012. I accept that there is little prejudice to the respondent in allowing the extension save the prejudice that will occur if the extension is allowed in the face of a completely hopeless case because it is notorious that persons in the position of this applicant do not accept the views of this court but seek to appeal them as far up the legal chain as they are able to go. In this way the respondent is put to extra expense which is almost always irrecoverable and Australia is burdened with responsibility for another illegal immigrant who should be returned to his own country as soon as possible. In my view, the interests of the public at large are complementary to the views I have just expressed. In other words it is in the interest of the public at large that persons who have no right to remain in this country be removed as soon as possible and should not be permitted to spend the state’s money in hopeless appeals.
The question is therefore whether or not the applicant has satisfied me that there is any merit in his case. The application itself identifies three grounds. The first is:
“The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”
The decision record, to which I have previously referred, makes it clear that during the course of the interviews that the Tribunal had with this applicant, it pointed out to him concerns that it had about his credibility and the story he was telling. He was given an opportunity to alleviate those concerns but for the reasons given was unable to do so. The conclusion which the Tribunal came to concerning the applicant’s credibility was one for the Tribunal par excellence and was certainly open to it on the material provided by the applicant in his dealings with the Department and the Tribunal itself. The Tribunal is not expected to provide applicants with draft grounds of decision and offer him an opportunity to rebut them. The responsibility is upon the applicant to satisfy the Tribunal that he is a person to whom Australia owes protection obligations see Abebe v Commonwealth of Australia 1999 197 CLR 510. There is no merit in this ground.
The second ground is:
“The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
The gravamen of the Tribunal’s decision was that the applicant did not satisfy the four key elements of the convention definition and this cannot be changed by an assertion of the type found in the application. In the Tribunal’s view, this applicant is not a refugee nor does he have any right to complimentary protection. That is a conclusion of fact with which this court cannot interfere.
The third ground is:
“The RRT has failed to investigate applicant’s claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 12 June 2012 was affected by actual bias constituting jurisdictional error.”
The obligations of a Tribunal to make its own inquiries was considered by the High Court in Minister for Immigration & Anor v SZIAI (2009) 259 ALR 429 which held that the failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can in some circumstances constitute a sufficient link to the outcome to constitute a failure to review. But this is a very limited exception to the general rule set out by the Federal Court in cases such SZHVL v Minister for Immigration & Anor [2008] FCA 356, Seyfarth v Minister for Immigration & Anor [2004] FCA 1713, VCAK of 2002 v Minister for Immigration & Anor [2004] FCA 459 and Minister for Immigration & Anor v SGLB (2004) 207 ALR 12, that there is no general duty to inquire. The applicant has not even identified any matter upon which he feels that the Tribunal should have inquired. It investigated the applicant’s claim by testing the statements which he made. That is sufficient in my mind to comply with the provisions of s.425 of the Act. As there was no wrongful failure to investigate the claim there cannot have been bias.
In my view, the applicant’s claim has no merit whatsoever. Before me today he said that the Tribunal told him that he was lying and that it did not investigate. The Tribunal was perhaps more subtle in its condemnation of the applicant’s statements but it certainly did not accept the truth of them. However, that is the responsibility of the Tribunal and not of this court. In my view there is no basis upon which it would be proper for me to exercise my discretion to extend time for this application to be made. That application is dismissed and it follows that there is no substantive application in existence. The applicant shall pay the first respondent’s costs assessed in the sum of $3,239.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 21 November 2012