SZSLZ v Minister for Immigration

[2013] FCCA 94

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 94

Catchwords: MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether an extension of time should be granted pursuant to s.477 of the Migration Act 1958 (Cth) – whether it is necessary in the interests of justice to extend time – whether applicant’s explanation is satisfactory – whether the grounds of draft amended application have sufficient prospect of success – unsatisfactory explanation – insufficient prospects of success – application refused.

Legislation: Migration Act 1958 (Cth), s.425, 477

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63,
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

Applicant: SZSLZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 10 of 2013

Judgment of: Judge Emmett

Hearing date: 8 April 2013

Date of Last Submission: 8 April 2013

Delivered at: Sydney

Delivered on: 8 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Julian Gormly

Solicitors for the first Respondent: Sparke Helmore

Solicitors for the second Respondent: Sparke Helmore

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 10 of 2013

SZSLZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application brought by the applicant for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 November 2012. It is common ground that the applicant’s application for judicial review filed on 4 January 2013 was filed two days after the expiration of the mandatory time limit of thirty-five days from the date of the Tribunal’s decision.

2. The applicant’s application was opposed by the first respondent, who was represented this morning by Ms Rayment, solicitor.

3. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Magistrates Court

   (1)  An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (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.

   …

   (4)  For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)  To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. “

4. The applicant was represented before the Court this morning by Mr Julian Gormley, of counsel. Mr Gormley read an affidavit of the applicant affirmed, 3 April 2013, which provides the applicant’s explanation for his failure to file his application for judicial review within the mandatory time limit stipulated by the Act.

5. The applicant’s explanation is as follows:

   “1. I am the applicant in these proceedings. I make this affidavit in support of my application for an extension of time pursuant to s.477 Migration Act to allow me to make an application for judicial review of the decision of the Refugee Review Tribunal dated 28 November 2012.

   2. I had planned and was ready to file the application for judicial review on Wednesday 2 January 2013 which was the 35th day after the date of the Tribunal decision. I filed the application late on Friday 4 January 2013.

   3. I did not file the application on the Wednesday or Thursday as I was not well with a cold and the flu. Tuesday was a public holiday.

   4. I had gone out with some friends to watch the fireworks on the harbour that New Years Eve, Monday 31 December 2012. I spent the whole night out, drank too much beer and was hungover the next day and sick with a cold and flu that Tuesday, Wednesday and Thursday.

   5. When I was sick I was hoping that I could still file the application within time on the Friday because of the three public holidays which fell after the date of the Tribunal decision but I was not sure of this. I was not represented at the time I filed the application.”

6. The primary consideration for the Court in considering whether to extend time is whether it is necessary in the interests of justice to do so. In considering that matter, the applicant’s explanation for his failure to file his application within the specified thirty-five day period is a relevant consideration, together with whether or not the applicant’s application for judicial review has sufficient prospects of success such that it is necessary in the interests of justice that time be extended to the applicant.

7. Dealing first with the applicant’s explanation for his delay, I find that explanation wholly and entirely unsatisfactory. The applicant states in his affidavit that he was plainly not intending to file his application until the thirty-fifth day after the Tribunal’s decision. He said that he drank too much beer the night before he was intending to file his application on the thirty-fifth day, and was sick the next day and had a cold and flu the following day. There is no medical evidence to support the applicant’s affidavit and the applicant’s decision to wait until the thirty-fifth day to file his application is otherwise without explanation.

8. It cannot be any surprise to the applicant that a failure to comply with that timeframe for the reasons given by the applicant is not accepted as satisfactory or reasonable in all of the circumstances.

9. In addressing the interests of justice, Mr Gormley tendered a proposed application for review that contained the following grounds:

   “1. That the decision of the second respondent (The Tribunal) was affected by jurisdictional error in that the Tribunal did not comply with s.425 Migration Act in that it did not afford the appellant an opportunity to give evidence or present arguments on:

   a. Whether any members of the applicants Gurung tribe, including those from the applicant’s native area, who converted from the Hindu religion to Christianity had suffered serious harm or harm of any kind for doing so.

   Particulars

   i. The applicant as a member of the Gurung Tribe originally claimed fear of harm from the society of the village where he lived for reason of his conversion from Hinduism to Christianity.

   ii. The delegate made no finding against this claim and provided that if the applicant genuinely feared the local community would subject him to physical violence or arbitrary deprivation of life, the he had the option to reside, i.e. relocate, outside his village to avoid such harm and mistreatment: CB 83.6

   iii. The Tribunal rejected the claim on the basis that there were no incidents of violence or ostracism specifically against Gurung converts from Hinduism to Christianity by members of the applicant’s Gurung tribe, including those from his native area, and also that reports of violence and ostracism against Christian converts in Nepal were only of isolated occurrences: CB 187, [96]-[97].

   iv. The premises on which the Tribunal reasoned that there were no incidents or violence to Gurung converts were that firstly here was an absence of reports of Gurung converts suffering serious harm or harm of any kind for converting and secondly that if it were the case that there were incidents of harm the Tribunal would expect these to be reported in country information: CB 187, [96].

   v. Procedural fairness required the Tribunal to identify to the applicant that it would reject the claim of harm from the villagers on the basis that no Gurung convert had suffered harm for conversion. The Tribunal’s rejection of the claim of harm from the Gurung villagers was not itself an issue “arising in relation to the decision under review” pursuant to s.425 Migration Act.

   vi. The Tribunal did not sufficiently identify to the applicant either that it would reject the claim at all or the basis of the rejection but indicated at [82] that while there had been some occasions when converts to Christianity had been subject to ostracism or violence with some having to leave their villages, given the number of Christians in Nepal, the risk he would suffer serious harm from anyone else in Nepal because of his conversion was well below the level of real chance, and on that this basis there appeared not to be a real risk he would suffer significant harm because of his conversion: CB 185-186, [82].

   vii. The disclosure at [82] was insufficient to identify either the rejection of the claim of harm from the villagers or the basis for the rejection. The disclosure resembled the same treatment of the claim by the delegate. This reading is supported by the Tribunal’s use of words, “while” and “anyone else”. Further, the terms of the disclosure were consistent with the Tribunal accepting the evidence of the applicant’s witness that in the Gurung tribal group there was disdain for Christians who would be looked down upon and treated as outcasts and possibly beaten: CB 183, [73].

   b. Whether the people from the Gurung tribe or the applicant’s native area were an exception to the proposition that occurrences of violence or ostracism against converts from the Hindu religion were isolated such that the risk the applicant would suffer harm from these people because of his conversion was well below the level of real chance.

   Particulars

   i. A negative answer to the above was a similar basis for the Tribunal’s rejection of the villagers claim and the Tribunal did not sufficiently identify that the matter was an issue in the review as procedural fairness required, the issue not being one “arising in relation to the decision under review” pursuant to s.425 Migration Act.

   ii. The applicant otherwise repeats the particulars for 1.a.”

10. At the heart of the complaints in the grounds of the application is a contention that the Tribunal failed to comply with s.425 of the Act, in that it did not afford the applicant an opportunity to give evidence or present arguments arising from the decision under review.

11. Mr Gormley addressed the grounds on the following bases bolded below.

12. Mr Gormley submitted that there was insufficient opportunity afforded to the applicant to address whether or not there were incidents of harm perpetrated by members of the Gurung tribe against Christian converts.

13. Mr Gormley conceded that the Tribunal raised with the applicant at the hearing that there was no country information before it to suggest that there were any incidents of harm occurring in the applicant’s local area.

14. The Tribunal noted that it discussed this with the applicant at the hearing and put to the applicant that this information indicated that he would be able to practise Christianity in Nepal. The Tribunal put to the applicant country information that indicated that while there had been isolated occasions when Christians and converts to Christianity had been subjected to ostracism or violence, the applicant’s risk of harm in Nepal because of his conversion was well below the level of real chance.

15. The Tribunal noted that it put to the applicant that on the same basis there appeared not to be a real risk he would suffer significant harm because of his conversion. The Tribunal also noted that it put to the applicant that while the applicant feared being cut off from his family and the stress that may cause, this did not amount to serious harm for the purposes of the Refugee’s Convention.

16. The Tribunal noted the applicant’s response that since the monarchy was overthrown different religions could be practised. The Tribunal also noted that the applicant said that, in reality, different religions could not practise their religions freely, and that there was no constitution or law in Nepal to protect a Christian who has been assaulted.

17. Mr Gormley referred to the Tribunal’s finding that it had considered the claim made by the applicant and the witnesses about him being from the Gurung Tribe and coming from a conservative part of Nepal. The Tribunal found that if members of this tribe who had converted suffered harm for this reason, the Tribunal would have expected to have country information concerning the treatment of Christians in Nepal.

18. Mr Gormley submitted that it was not sufficient disclosure for the Tribunal to simply put to the applicant that there was no information before it of incidents occurring in the applicant’s district of harm to a Christian convert. In support, Mr Gormley referred the Court to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”), and to SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138.

19. Broadly, the first respondent submitted that the disclosure made by the Tribunal to the applicant was sufficient and that it was not required to give the applicant its ultimate conclusion of its assessment of the evidence before it.

20. Ms Rayment submitted that the applicant was given every opportunity to meet the concerns raised by the Tribunal in relation to the applicant’s claims to fear harm in Nepal from members of his family, the Hindu population at large, and members of his village, including members of the Gurung tribe, because of his religion.

21. A fair reading of the Tribunal’s decision suggests that the Tribunal sufficiently raised those matters with the applicant and explored them at the hearing, noting the applicant’s responses. Ultimately, the Tribunal found that country information indicated that Christians are able to practice their religion in Nepal, and that there have been only isolated occurrences of violence or ostracism against converts from the Hindu religion. The Tribunal found that country information made no mention of any exceptions to this for people from the Gurung Tribe, or from the applicant’s native area. Those findings appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave.

22. There does not appear to be any failure to disclose sufficiently to the applicant those matters that were part of the Tribunal’s reasons for affirming the decision under review in the SZBEL sense.

23. Mr Gormly also submitted that an issue arising from the delegate’s decision was the issue of relocation and that it was not a matter that was explored by the Tribunal with the applicant.

24. The delegate appeared to be satisfied that the applicant could relocate within Nepal. The applicant’s evidence to the Tribunal was that he was at risk of harm throughout Nepal as a convert Christian from the Gurung tribe.

25. Mr Gormly submitted that relocation was an issue required to be put by the Tribunal to the applicant if the Tribunal was to make an adverse finding about that matter. However, it is difficult to see how such a submission could succeed in circumstances where the applicant himself made a submission inconsistent with relocation ever being an option for him.

26. In the circumstances, there can have been no further reason for the Tribunal to have explored that issue further with the applicant at the hearing.

27. Mr Gormly also submitted that the delegate accepted that the applicant was at risk in Nepal from his family and local community and that it was for this reason that the applicant could relocate. In those circumstances, Mr Gormley submitted that the Tribunal failed to identify to the applicant that it would reject the claim of harm from the villagers on the basis that no Gurung convert had suffered harm for conversion.

28. In support, Mr Gormly referred to the following passage in the delegate’s decision:

    “At interview, the applicant indicated that he would be forced to convert back to Hinduism if he returned to his village. He claimed that he would be ostracised by his family and local community, if he did not revert to Hinduism and continued to practise his Christian faith. The applicant indicated that he could also face physical violence and possibly death. Based on available information, I am satisfied that opposition to Christians is not prevalent amongst the general population. If the applicant genuinely fears that his family and local community will prevent him from practising as a Christian, or subject him to physical violence or arbitrary deprivation of life, I am satisfied that he has the option of residing outside his village to avoid such harm and mistreatment. I am satisfied that the relocation away from his family home is a reasonable option if the applicant thinks it is genuinely necessary to enable him to practise his religion.”

29. The delegate’s clear finding is that on the country information before it, opposition to Christians in Nepal was not prevalent amongst the general community. That is a rejection of the applicant’s claims. It is not an acceptance that the applicant was at risk of harm from villagers, or anyone else. A fair reading does not suggest that the delegate accepted that the applicant was at risk of harm for the reasons claimed. A fair reading does not appear to suggest that that finding was attenuated by any doubt or that the delegate was of the view that it was obliged to consider the issue of relocation (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265).

30. In the circumstances, I am not satisfied that the grounds of the proposed amended application have sufficient prospects of success such that it is necessary in the interests of justice that time be extended to the applicant.

31. Accordingly the extension of time sought by the applicant is refused with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Date:  19 April 2013