SZTGK v Minister for Immigration and Anor (No.2)

[2014] FCCA 2402

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGK v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2402

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether in the interests of the administration of justice to extend the time for making the application – application for an extension of time dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.411, 414, 425, 477

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591
Minister for Immigration and Citizenship v SZIAI(2009) 111 ALD 15; [2009] HCA 39
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123

Applicant: SZTGK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2131 of 2013

Judgment of: Judge Barnes

Hearing date: 8 October 2014

Delivered at: Sydney

Delivered on: 8 October 2014

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: Sparke Helmore

ORDERS

1. The application for an extension of time is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2131 of 2013

SZTGK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 18 July 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant sought review by application filed in this Court on 11 September 2013, some 55 days after the date of the Tribunal decision and hence 20 days outside the 35 day limit in s.477 (1) of the Migration Act 1958 (Cth) (the Act).

3. In his application the Applicant applied for an extension of time under s.477(2) of the Act. His grounds for seeking the extension of time address the merits of the Tribunal decision, to which I will return. In addition, in an affidavit accompanying his application he stated that he required an extension of time because he was not aware of the time limit for judicial review. From the bar table today the Applicant conceded that it was his fault that the application was late. He claimed he did not check his post letterbox, that he was “not too much aware” and he apologised for the delay.

4. Under s.477(2) of the Act the Court may extend the 35 day period for making a judicial review application as it considers appropriate, if an application has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to grant the extension and the Court is satisfied that it is necessary of the interests in the administration of justice to extend the time.

5. As indicated, the Applicant did specify in writing why he considered it necessary.  I have considered whether, in all the circumstances, I am so satisfied (see SZNZI v Minister for Immigration & Anor [2010] FMCA 57). Factors of particular relevance include whether there is an adequate explanation for the delay in commencing the proceedings and the merits of the application for review. It is also relevant to consider (as part of all the circumstances) whether there is any prejudice to the First Respondent in granting an extension of time. There is no suggestion of any such prejudice. Indeed the solicitor for the First Respondent conceded that the delay was not lengthy, but submitted that having regard to what was said to be an absence of merit in the grounds of review the Court should not be satisfied that it was necessary in the interests in the administration of justice to extend the time.

6. Before considering the issues of delay and merits I note that I have also considered, insofar as possible to do so on the material before the Court, the impact on the Applicant of the possibility of being returned to Mauritius.  The interests of the public at large are also relevant but no submissions were made in this respect. 

7. In this case the delay was not lengthy.  However the Applicant’s explanation is not entirely satisfactory.  It is apparent from the Court Book that the letter enclosing the Tribunal decision dated 18 July 2013 was sent to the Applicant the following day (on 19 July 2013).  It is marked as being sent by registered post to the residential address notified by the Applicant to the Tribunal (which was also his postal address).  The Applicant’s claimed failure to check his post office letterbox (presumably intended to be a reference to his home letterbox) or to collect mail from the post office is not an adequate explanation.  He does not take issue with the method of notification.  Nor is any issue apparent on the Court Book.  The Applicant’s lack of awareness or of concern about the possibility of time limits (in circumstances where there was a time limit on his application for review of the delegate’s decision) is not a satisfactory explanation.

8. Despite this, I have borne in mind that the delay was not lengthy in considering all the circumstances.  It is particularly important in a case such as the present to have regard to the merits of the substantive application and whether the application would have any prospect of success were the extension of time to be granted (see Fisher v Minister for Immigration and Citizenship [2007] FCA 591).

9. In order to consider the merits of the application it is necessary to refer to the Applicant’s protection visa application and the proceedings before the Tribunal.  The Applicant, a citizen of Mauritius, arrived in Australia in July 2008 as the holder of a student visa.  He lodged his protection visa application in October 2012. 

10. The Applicant claimed to fear harm on the basis of his Christian religion.  He claimed he had been attacked by a Hindu gang and that his Hindu neighbours had threatened to kill him and his family and force them to convert.  He is also recorded as claiming to the Tribunal that he feared harm from his extended family who are Hindu and are said to be angry that he and his family converted to Christianity.  He claimed that his uncle was responsible for him being sacked from his job.

11. The application was refused by a delegate in a decision dated 2 January 2013.  On 31 January 2013 the Applicant sought review by the Tribunal.  By letter dated 4 June 2013 the Tribunal invited the Applicant to attend a hearing.  The hearing invitation was returned to the Tribunal as unclaimed mail.  However a case note records that a Tribunal officer telephoned the Applicant and confirmed his address and that the Applicant said that he could not pick up the letter from the post office in time and asked that the invitation be sent to him by email.  The Tribunal did so.  The Applicant responded to the hearing invitation and attended the hearing on 11 July 2013. 

12. The Tribunal decision was made on 18 July 2013.  In its reasons for decision the Tribunal set out in some detail the claims made by the Applicant and what occurred at the Tribunal hearing.  It referred to issues it raised with the Applicant about aspects of his claims.

13. In its findings and reasons the Tribunal found that the Applicant’s account contained a number of inconsistencies, apparently illogical and unexplained discrepancies and aspects which were vague and lacking in detail in relation to which the Applicant had repeated irrelevant information in response to Tribunal efforts to elicit details.  The Tribunal concluded that the Applicant had exaggerated aspects of his claims. 

14. While it accepted that the Applicant and his immediate family had converted to Christianity when he was 16 or 17 years old, that this caused problems between his family and the Applicant’s father’s extended family and that the Applicant experienced harassment prior to his departure from Mauritius in 2008, the Tribunal did not accept that he had experienced serious harm amounting to persecution in the past.  Nor did it accept that there was a real chance that the Applicant would suffer serious harm now or in the reasonably foreseeable future.

15. The Tribunal did not accept that the Applicant had been attacked and assaulted on three occasions as he had claimed.  For reasons which the Tribunal detailed, it concluded that the Applicant had not been completely truthful about these claims having regard to the vagueness of his evidence and discrepancies in his account about the order of key events and how they related to one another.   The Tribunal recorded that in the face of vague evidence on questioning from the Tribunal seeking further details of the assaults the Applicant’s responses were merely repetitions of the same information.  It set out details of inconsistencies in his evidence about the response of the police to the claimed attacks.  The Tribunal found his explanation for this inconsistency was not persuasive. 

16. While it rejected the Applicant’s claim that he was seriously assaulted on three occasions, the Tribunal accepted that, consistent with his clearest evidence, he may have been assaulted once in 2004 or earlier when prayer meetings were held at his home.  The Tribunal did not accept that the Applicant had been subject to serious assault on any occasion.  The Tribunal was of the view that if a serious assault had occurred the Applicant would have mentioned this at the Tribunal hearing when asked generally about his problems in Mauritius, whereas he had only mentioned such a claim when specifically asked by the Tribunal.

17. The Tribunal did not accept that the Applicant was under an immediate threat of serious harm when he left Mauritius or that he considered himself to be under such a threat now.  In support of this finding the Tribunal noted the Applicant’s repeated evidence that he felt he had no future in Mauritius and that his future in Australia was better.  This indicated to the Tribunal that the Applicant’s main reason for wishing to remain in Australia was not because of a fear of serious harm amounting to persecution for reason of religion but that rather it was because he had better employment and economic prospects in Australia.

18. The Tribunal did not accept the claim that the Applicant was facing discrimination in employment in Mauritius because of his religion or because of the interference of his relatives based on his conversation to Christianity.  It had regard to his initial evidence that he lost his first job at a hotel because he was sick and the lack of clear evidence to support his later claim that his uncle interfered and caused him to lose that job.  The Tribunal had regard to the Applicant’s inability to explain the basis for his belief that this was what had happened and to the fact that the date he initially provided for his dismissal was before his family had converted to Christianity. 

19. The Tribunal did not accept that the Applicant was dismissed from employment because of his uncle’s interference or because of his conversion or religion, or that his inability to find another job was because of his religion or conversion.  It had regard to his evidence that his parents and sisters had employment.  The Tribunal was of the view that if there was systematic and routine discrimination against Christians or converts in relation to employment the Applicant’s family members would also have experienced difficulty in finding work.

20. The Tribunal also had regard to the fact that the Applicant’s evidence was that no members of his immediate family who were converts had experienced serious harm amounting to persecution either before or since his departure.  This evidence and the Tribunal’s finding that it did not accept that the Applicant had been the subject of serious harm after conversion indicated to the Tribunal that the Applicant’s claimed fear of future persecution was not well-founded. 

21. Finally, the Tribunal had regard to the Applicant’s delay in applying for protection.  It found that the delay of four years after his arrival in Australia indicated that at the time of his arrival the Applicant did not have a fear of serious harm based on events in Mauritius.  It did not accept his explanation that he was scared and did not know how to apply for protection or what to do.  It did not accept that a person in the Applicant’s situation, who spoke reasonable English and apparently had a number of friends who assisted, would not have been able to obtain information about applying for protection at an earlier stage, especially given his evidence that he knew he could be deported if he stopped paying his college fees.

22. The Tribunal accepted that the Applicant may experience some harassment in Mauritius in his old neighbourhood but found, for reasons which it gave, that it would not be of such severity as to be considered persecution and that in any event it would be reasonable for him to relocate, as his mother and sister had done.  It did not accept his claim that his extended family or anyone else would seek him out to inflict serious harm on him because of his religion, noting that if they did have such an intention they had had ample opportunity to seriously harm him before he left Mauritius or to harm his family, either then or since. 

23. The Tribunal noted that the Applicant had not claimed he had suffered any restriction on his ability to practise his religion in Mauritius, that he had not claimed that not being able to have prayer sessions at home meant that he was prevented from practising his religion in a manner amounting to persecution and that he had indicated that when neighbours complained about prayer sessions at home the family had attended church. 

24. The Tribunal reiterated that the Applicant may have experienced some harassment by neighbours and extended family members including, perhaps, a minor assault some years before his departure as a result of the family’s conversion, but did not accept that this mistreatment was sufficiently serious to constitute persecution.  It did not accept he left Mauritius because he was in danger of serious harm or because he feared serious harm or that he would be at risk of serious harm if he were to return to Mauritius now or in the reasonably foreseeable future.  Nor did it accept that the Applicant would be subjected to systematic and discriminatory mistreatment because of his religion or for any other reason under the Refugees Convention. 

25. The Tribunal also considered the complementary protection criterion, noting that the Applicant had not raised specific claims in that respect and that there was no material to suggest that he feared additional harm beyond that identified and addressed.  It found that the Applicant had been subjected to minor harassment and possibly one assault, but that it was not serious and the harassment was minor.  It was not satisfied that there was a real risk that mistreatment of the Applicant would escalate if he returned such that there were substantial grounds for believing he would experience more serious forms of mistreatment constituting “significant harm” as defined in the Act.  Further, as discussed, it found that the Applicant could, in any event, avoid any harm by relocating.  For these reasons the Tribunal affirmed the delegate’s decision.

26. In his application for review (under the heading Grounds of Application for an Extension of Time), the Applicant contended that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal “misunderstood, or failed to correctly apply…”.  The ground stops there but I take it that it is intended to say correctly apply “the law”.  The Applicant was unable to elaborate on this ground. 

27. There is no evidence to support the claim that the Tribunal misunderstood or failed to apply the law correctly in a manner constituting jurisdictional error.  The Tribunal rejected the Applicant’s claims to fear persecution on the basis that he did not have a well-founded fear of persecution.  That finding was reached notwithstanding the Tribunal’s acceptance of some aspects of the Applicant’s claims about past harm, on the basis of its rejection of his claim to have experienced serious harm amounting to persecution in the past and all the other concerns as outlined above.  While the Tribunal went on to refer to the possibility of relocation, that was after it had already found that the Applicant did not have a well-founded fear of persecution for a Convention reason so that the question of relocation to avoid persecution did not, strictly speaking, arise.  Specific concerns raised in the grounds of the application are considered below.

28. The same may be said in relation to the Tribunal’s discussion of complementary protection.  No failure to apply the law has been established.  It was open to the Tribunal not to be satisfied, for reasons that it gave, that there was a real risk that there were substantial grounds for believing that the Applicant would experience mistreatment constituting significant harm. 

29. Nor, on the material before the Court, is there any basis for a contention that the Tribunal misunderstood the Applicant’s claims such that it failed to consider an integer or aspect of his claims in a manner amounting to jurisdictional error (if this was what was intended to be claimed).  Rather, it appears from the Tribunal’s reasons that it considered not only the claims made by the Applicant in connection with his protection visa application but also his elaboration of such claims at the Tribunal hearing.  There is no substance in the first ground in relation to the application for an extension of time.

30. The second ground in relation to the extension of time is that the Tribunal failed to investigate the Applicant’s claims, especially the grounds of persecution. 

31. It is for an applicant to make out his case and to put material before the Tribunal (Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 15 at [187]). As a general principle, if the Tribunal cannot be satisfied on the basis of the material presented that the Applicant’s claims are genuine, it does not have a duty to make further inquiries. There is nothing in the material before the Court to suggest that this is a case in which the Tribunal was under an obligation to inquire in the sense considered in Minister for Immigration and Citizenship v SZIAI(2009) 111 ALD 15; [2009] HCA 39. There is no merit in this general and unparticularised claim.

32. There are also three “grounds” in the application.  As pointed out by the solicitor for the First Respondent, these grounds are general and formulaic and lack any meaningful particulars.  Indeed grounds in the same or extremely similar terms have been considered in a number of cases before the Court.  Despite this it is necessary to consider each of these grounds in the present case on the evidence before the Court. 

33. The first ground is that the Tribunal denied the Applicant procedural fairness by “reaching adverse conclusions that certain aspects of his claims were implausible, 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”. 

34. First, the Tribunal findings in relation to credibility were open to it on the material before it for the reasons which it gave.  It did not simply base its adverse credibility findings on some general and unexplained implausibility.  It had regard to specific inconsistencies (which it detailed) as well as illogical and unexplained discrepancies and aspects of evidence that were vague and lacking in detail as well as the Applicant’s repetition of irrelevant information in response to its efforts to elicit details.  In addition, in reaching its findings about what aspects of his claims about the past and the future the Tribunal had regard to the Applicant’s own evidence about why he came to Australia or wished to remain here, his delay in applying for protection as well as his evidence about the lack of harm to members in his family. 

1. Insofar as the Applicant contended that he was not given the opportunity to be heard, he was invited to and attended a Tribunal hearing.  The only evidence before the Court of what occurred at that hearing is the Tribunal reasons for decision.

2. Insofar as the Applicant appears to be contending that the Tribunal should have put its thought processes to him for comment in the course of the hearing, the Tribunal is under no such obligation (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17] – [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123). There is nothing in the material before the Court to suggest that the Tribunal failed to raise dispositive issues with the Applicant (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [33] – [35] and [47]).

3. The general contention that the Applicant was not given the opportunity to be heard in respect of matters is not supported by the evidence before the Court. Rather, it appears from the Tribunal’s account of the hearing that dispositive issues were raised with the Applicant and that he was given the requisite meaningful opportunity to give evidence and present arguments in relation to the issues on review as required under s.425 of the Act. There is no arguable basis for ground one.

4. Ground two is that the “Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims” and that the “Tribunal did not consider the applicant who had been under immense and intimidating pressure”. 

5. Insofar as the Applicant takes issue with the Tribunal’s factual conclusions, he seeks impermissible merits review.  The issue of whether the Applicant had experienced serious harm was a question of fact and degree for the Tribunal.  The fact that the Tribunal did not accept the Applicant’s ultimate claims about what he said had occurred in the past and the severity of what he claimed had occurred is not indicative of jurisdictional error. 

6. If ground two is intended to assert that the Applicant was not given a real and meaningful invitation to appear at the hearing, it is not made out.  There is simply no evidence before the Court to indicate that the Applicant was, or even may have been unfit in the sense of being unable to give evidence, present arguments and answer questions.  There are no particulars and there is no evidence to support any claim that the Applicant was in such a condition that he was not able to take advantage of the invitation to appear before the Tribunal at the hearing.  There is no arguable basis for ground two.

7. Ground three is that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. 

8. I note first that the delegate’s decision was a Refugee Review Tribunal reviewable decision in accordance with s.411 of the Act. If, as seems more likely, it is intended to be contended that the Tribunal exceeded its jurisdiction, there is no basis in the material before the Court for such a claim.

9. Without further particularisation this ground does not establish even an arguable jurisdictional error on the part of the Tribunal. It is the case that the Tribunal was required to consider the claims of the Applicant (see s.414 of the Act). There is no evidence to indicate that it failed to do so or that it otherwise failed to complete the exercise of its jurisdiction.

10. More generally, as the First Respondent submitted, there is nothing in the material before the Court to indicate, let alone establish any jurisdictional error in the Tribunal’s decision.  Insofar as the Tribunal considered relocation, as indicated it had already found that necessary elements of both the Refugees Convention criterion and the complementary protection criterion were not satisfied.  In any event, the Tribunal correctly considered whether it was reasonable, in the sense of practicable, for the Applicant to relocate to a region where objectively there was no appreciable risk of the occurrence of feared persecution or significant harm.  The Tribunal had raised with the Applicant the issue of relocation at the hearing and given him an opportunity to raise any obstacles to relocation, which the Tribunal addressed.  There is no arguable basis for ground three in the application.

11. The Applicant does not dispute that he received notification of the Tribunal’s decision, but his evidence is not a satisfactory explanation for the delay.  However even if it had been, and/or having regard to the fact that the delay was not extensive, the substantive application is lacking in merit.  It has no prospects of success.

12. Having regard to all of the circumstances, insofar as is possible on the material before the Court, I am not satisfied that it is in the interests of the administration of justice to grant the extension of time sought by the Applicant.  The appropriate order is that the application for an extension of time be dismissed.  Before I make the order I will hear submissions in relation to costs.

13. The Applicant has been unsuccessful.  The Minister seeks his costs of these proceedings.  The Applicant told the Court that he was not working and had no one who could lend him the money to pay costs.  However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the legal costs of the Minister, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  In my view the amount sought is appropriate in this case having regard to the nature of this and other similar matters.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  21 October 2014