SZSSZ v Minister for Immigration
[2017] FCCA 1845
•7 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1845 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – the Tribunal made adverse findings that were open to the Tribunal – the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476, 477 |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 |
| First Applicant: | SZSSZ |
| Second Applicant: | SZSTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3285 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 7 August 2017 |
| Date of Last Submission: | 7 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2017 |
REPRESENTATION
| The applicants appeared in person. |
| Solicitors for the Respondents: | Ms S Burnett Clayton Utz |
ORDERS
The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3285 of 2016
| SZSSZ |
First Applicant
SZSTA
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction of s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Tribunal made on 25 March 2015 affirming a decision of the delegate not to grant the applicants a protection visa.
The applicants, husband and wife, were found to be citizens of Indonesia, and their claims were assessed against that country. The second applicant has been included as a member of the family unit. The first applicant arrived in Australia on a Tourist subclass 670 visa, on 11 December 1994. The first applicant applied for a protection visa on 23 October 1995 with his wife included as a member of the family unit. That application was refused by the delegate on 16 January 1996 and affirmed by a differently constituted Tribunal on 23 October 1997.
The current Protection visa application
On 27 March 2013, the applicants lodged the current application for a protection visa on the grounds of complementary protection, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71.
The delegate refused to grant the protection visa on 28 April 2014. On 25 March 2015, the Tribunal affirmed the delegate’s decision and the matter was referred for Ministerial Intervention.
The Tribunal’s decision
The first applicant claimed to fear harm on the basis of his Chinese ethnicity. The first applicant also claimed to fear that he may be the subject of violence by Muslims and that he and his wife will have no opportunity to work and earn a living.
The Tribunal in its decision identified the applicants’ background and set out the relevant law. In relation to credit findings, the Tribunal took into account the substantial delay by the applicants before lodging the application for protection.
Consideration of the first applicant’s credibility
The Tribunal found the first applicant’s evidence to be inconsistent with a number of the claims in the current protection application. The Tribunal found the first applicant’s evidence to be vague about key details in his past and generally out of touch with the situation in Indonesia both now and in the recent past.
The Tribunal identified concerns in relation to the first applicant’s evidence, firstly to his claim of persecution by “Muslim fanatics” because of his Chinese ethnicity and also referred to the first applicant’s evidence in relation to his religion being inconsistent.
The Tribunal identified that the first applicant recanted from the assertion that he was a Christian and said he had always been a Buddhist. The Tribunal rejected the first applicant’s claim that the second applicant will attend Christian church services if she is returned to Indonesia.
The Tribunal identified credibility concerns in respect of the first applicant’s alleged attack in Jakarta in 1992. The Tribunal was unable to be satisfied of the truth of significant and central aspects of the first applicant’s claims.
The Tribunal was not satisfied that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Indonesia, there is a real risk he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act on the basis of the claim relating to their Chinese ethnicity.
The Tribunal was not satisfied that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Indonesia, there is a real risk that the first applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act on the basis of the claims relating to the first applicant practicing as a Buddhist.
The Tribunal found that the risk to the first applicant and his wife of suffering significant harm due to their claimed inability to work and earn a living to support themselves to be remote. The Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia, there was a real risk the applicant or his wife will suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act on the basis of their claims relating to living standards.
The Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia there is a real risk the applicants will suffer significant harm for the purpose of s.36(2)(aa) of the Act and affirmed the decision under review.
The Tribunal identified that the applicants may wish to seek Ministerial Intervention. It is apparent on the material before the Court that the applicants made a deliberate decision to seek Ministerial Intervention rather than to pursue any application to this Court. The pursuit of Ministerial Intervention is not a satisfactory explanation for the delay.
Proceedings in this Court
No application for review was filed in this Court until 24 November 2016, being after the applicants had been informed on 19 September 2016 that the Minister refused to intervene. The current application filed in this Court was 575 days outside the prescribed 35 day period under s.477 of the Migration Act.
On 6 April 2017, a Registrar of the Court made orders fixing the matter for hearing and provided the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
At the commencement of the hearing, the Court explained to the applicants that this was a final hearing and that this was a hearing to determine whether time should be extended under s.477 of the Migration Act.
The Court explained that there were three issues in that regard. Firstly, whether the applicants had an adequate explanation for the delay, secondly, whether there was any prejudice to the first respondent. The Court noticed that no prejudice was identified. Thirdly, the Court identified that it had to be satisfied there was a sufficiently arguable case to warrant an extension of time as being necessary and in the interests of the administration of justice.
The Court explained that the third issue involved considering whether the Tribunal’s decision was subject to a reasonable argument that it was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants.
The Court explained that in summary, this meant the Court was considering whether the applicants had a reasonable argument that the Tribunal’s decision was unlawful or unfair. The Court explained that if not satisfied that the applicants had an adequate explanation for the delay and a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.
The Court explained that it would have identified the evidence, then hear submissions from the applicants, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicants in reply. The applicants confirmed that they understood the nature of the hearing as explained by the Court.
The Applicants’ submissions from the bar table
From the bar table, the second applicant maintained that someone had helped them prepare the application to be filed in this Court and had told them that everything was fine. The second applicant asserted that the Tribunal had not looked at their matter properly and that they had no place to go to and that Australia was their home. The applicants explained that the application was submitted because they were told to do so by the agent.
No adequate explanation for the delay was proffered and no adequate explanation appears in the affidavit evidence. The delay in the present case is substantial. On the grounds of delay alone, the Court would refuse to extend time under s.477 of the Migration Act. Nothing said by the applicants from the bar table identified any arguable jurisdictional error.
The grounds in the application are as follows:-
1. On 22 January 2014 His Honour Judge Lloyd Jones ordered that the application be remitted back to the Tribunal to be considered according to law.
2. The Tribunal failed to consider our fear of harm if compelled to return to the country of origin.
3. The Tribunal had sufficient evidence about what happened in our country yet failed to consider the serious harm we will face if we return to Indonesia. The Tribunal misapplied the law and misunderstood our fear of persecution which is real and genuine.
4. On 25 March 2015 the Tribunal referred our case to the Honourable Minister based on compelling and compassionate circumstances/unique or exceptional as per ministerial guidelines. The Minister's Office misled us and failed to consider our application as directed by the Tribunal Member.
5. The refusal to intervene in our case is a denial of natural justice and fairness and the Minister failed to use his discretion as per his duty because the recommendation came from a Member of the Tribunal who made us believe that we meet the criteria for ministerial intervention.
6. The Minister failed in his duty to comply with the recommendation of the Tribunal which appears in point 65 of the decision of 25 March 2015.
Consideration
Ground 1
Ground 1 does not identify any error by the current Tribunal, and is merely a recitation of what has occurred in relation to a differently constituted Tribunal’s decision. No arguable jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, it is apparent that the Tribunal considered the applicants’ claims and made adverse findings that were open to the Tribunal on the material before the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification. There was no failure by the Tribunal to consider the applicants’ claims. No arguable jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, it was a matter for the Tribunal to make findings in relation to the applicants’ claims. It is apparent that the Tribunal addressed the applicants’ claims in relation to complementary protection and made findings that were open to the Tribunal.
The Tribunal correctly identified the relevant law. There is no basis to suggest the Tribunal misunderstood the applicants’ claims or misapplied the law. The applicants’ claim in respect of ground 3 is in substance a disagreement with the adverse findings made by the Tribunal. No arguable jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, the reference to Ministerial Intervention does not identify any jurisdictional error. Ground 4 fails to identify any arguable case of jurisdictional error.
Ground 5
In relation to ground 5, it is apparent that the first respondent did make a reference to the Ministerial Intervention application, but that does not in any way identify any arguable case of jurisdictional error. No arguable case of jurisdictional error is made out by ground 5.
Ground 6
In relation to ground 6, on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review, and the Tribunal complied with its obligations of procedural fairness.
On the face of the material before the Court, the applicants had a real and meaningful hearing on 3 February 2015, and the Tribunal complied with its statutory obligations in respect of an invitation to attend that hearing. The assertion of a failure by the first respondent in his duty does not give rise to any arguable error by the Tribunal. No arguable jurisdictional error is identified by ground 6.
Conclusion
I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118. The application fails to disclose a sufficiently arguable case to warrant an extension of time under s.477 of the Migration Act as being necessary in the interests of the administration of justice. I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending time in the present case.
The application for an extension of time under s.477 of the Migration Act is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 5 September 2017
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