SZTVQ v Minister for Immigration

[2014] FCCA 2631

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2631

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 414, 424A , 441, 476, 477

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZU v Minister for Immigration [2010] FMCA 197
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZIED v Minister for Immigration and Citizenship [2007] FCA 1347
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration & Citizenship [2010] FMCA 300
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525
Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51
Randhawa v Minister for Immigration, Local Government [1994] FCA 1253; (1994) 52 FCR 437
Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422
Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZTVQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 256 of 2014

Judgment of: Judge Nicholls

Hearing date: 12 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms C Hillary of DLA Piper Australia

ORDERS

1. The application made on 5 February 2014 as amended on 18 June 2014 and further amended on 25 June 2014 for an extension of time pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s cost set in the amount of $8000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 256 of 2014

SZTVQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings has purported to make an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

The Issue

1. The Tribunal’s decision was made on 23 December 2013. Section 477(1) of the Act provides that an application such as the one the applicant seeks to make must be made within 35 days of that date. That is, the application needed to have been made on or before 27 January 2014. It was not. It was lodged on 5 February 2014. Therefore, it is nine days out of time.

2. Section 477(2) of the Act does provide for the time set out at s.477(1) of the Act to be extended where it is in the interests of the administration of justice to do so. The Court may enter into such consideration if a written application for the extension of time, pursuant to s.477(2)(a) of the Act, has been made.

3. The applicant has made such an application:

   “1. The Applicant was not informed by his lawyer that he had 35 days from the date of the decision to lodge the appeal.

   2. The Applicant has a strong claim for complementary protection.

   3. It is in the interests of justice to hear that claim, as the Applicant will be subject to cruel, inhuman or degrading treatment if he returns to Iran.”

4. The issue before the Court, therefore, is whether it is in the interests of the administration of justice to extend the time. The relevant elements involved in such consideration have been the subject of various consideration by this Court. No exhaustive list can be formulated given that regard must be had to all the relevant circumstances of each case (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, SZNZU v Minister for Immigration [2010] FMCA 197, SZNZI v Minister for Immigration & Anor [2010] FMCA 57). However, in the current case the question of any satisfactory explanation for the delay and whether there is any merit in the grounds of the proposed application are of importance.

Before the Court

1. At the first Court date in this matter on 5 March 2014, various orders were made for the conduct of this case before the Court. Amongst these Orders was that the hearing of the application for the extension of time was set down for 13 May 2014.

2. On that date the applicant appeared in person. He sought an adjournment of the hearing. The applicant was, and continues to be, held in “Immigration Detention”. He stated that a friend was “actively” assisting him by “looking” for a lawyer to represent him. He was also waiting for funds to be sent from his mother in India for that purpose.

3. The Minister opposed the adjournment on the basis that the applicant had had ample opportunity to obtain legal advice or representation. Further, that given that there was no error in the Tribunal’s decision any adjournment of the hearing of the application would be “futile”.

4. I accepted the applicant’s argument that his ability to obtain representation was hampered by his detention. I set down the application for an extension of time for hearing on 27 June 2014. I gave the applicant the opportunity to file and serve any further material.

5. On that date the applicant did not appear. It appears that the applicant had fallen ill. The transportation to the Court from the immigration detention facility had been “cancelled”.

6. The matter was adjourned for hearing to 12 August 2014. On that date the applicant appeared in person and was assisted by an interpreter in the Punjabi language. Ms C Hillary appeared for the Minister.

7. The applicant had filed an amended application for extension of time and proposed substantive application on 18 June 2014 and further amended on 25 June 2014. He had also filed affidavits made on 17 June 2014 and 24 June 2014. In evidence before the Court was the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

8. The applicant pressed his application for an extension of time. He sought to rely on his affidavits of 17 June 2014 and 24 June 2014. He also pressed the amended proposed substantive application (see further below).

Background

1. Some background as to the applicant’s circumstances after he arrived in Australia is useful in understanding what follows. The Minister’s written submissions provide a useful summary, probative of the evidence before the Court and I adopt the following for the purposes of this judgment ([4] – [6] of the Minister’s initial written submissions of 5 May 2014):

   “[4] The applicant is a male citizen of India born on 5 September 1985. He arrived in Australia in October 2005 on a Student visa, which ceased on 15 March 2007. The applicant was granted his first bridging visa on 2008, after which time he was granted a Bridging Visa E until 15 January 2009. The applicant became unlawfully present in Australia on 16 January 2009.

   [4.1] In relation to events culminating in his conviction on 12 November 2010 for kidnapping, ransom and inflicting actual bodily harm (resulting from a disagreement with members of the Sikh community in September 2008), the applicant was granted a ZB-951 (Criminal Justice) visa on 7 August 2009. This is presumably the time he was taken into custody on remand.

   [4.2] The applicant served three years in the Long Bay Correctional centre for these offences and his ZB-951 visa was cancelled on 24 July 2013, after which he was transferred to the Villawood Immigration Detention Centre.

   [5] The applicant applied for a Protection (Class XA) visa on 9 August 2013. His claims were set out in a statement accompanying his application. The application was refused on 23 September 2013.

   [6] The applicant applied to the RRT for review of the delegate's decision on 1 October 2013.”

The Applicant’s Affidavits

1. The applicant sought leave for his affidavit of 17 June 2014 to be read into evidence. The Minister objected to [5] to [16] of the affidavit. The basis of the objection was relevance. These parts of the affidavit referred to events said to have occurred after the Tribunal’s decision.

2. The applicant explained that the matters in his affidavit related to his claims for protection that he had not put (“told”) to the Tribunal.

3. Although the matter before the Court was the applicant’s application for an extension of time, as stated above, an element in the relevant consideration is whether the grounds of the proposed substantive application to the Court have merit such as to argue for the extension of time.

4. In that consideration the question as to whether the grounds of that application raise some arguable case which compel or favour the extension of time in the interests of the administration of justice is a live issue before the Court.

5. The difficulty for the applicant is that the asserted events said to have occurred in Bangladesh after the date of the Tribunal’s decision cannot assist in any attempt to reveal jurisdictional error in the Tribunal’s decision. The Minister’s objection was therefore upheld.

6. Paragraphs [1] to [4] of the affidavit assert factual matters not in issue in these proceedings. Paragraphs [17] to [23] were not the subject of an objection by the Minister. These were read into evidence. However, the applicant was unable to show, nor was it otherwise apparent, as to how they could assist in the consideration of the application to extend time.

7. A number of documents were annexed and/or attached to the affidavit.

   1)The Tribunal’s decision record – Annexure “A” (see [4] of the affidavit). This was already before the Court. It is plainly relevant to an issue before the Court.

   2)A copy of an email message from a friend of the applicant dated 4 June 2014. The email recounts claimed events that the friend says occurred to him when he returned to India. This was not admitted. It postdates the Tribunal’s decision and refers to claimed events and circumstances relevant to that person and not the applicant.

   3)A document headed “Post Hearing Submissions” (this was also attached to his affidavit of 24 June 2014 albeit see further below).

   a)The applicant’s representatives before the Tribunal made written submissions dated 19 December 2013 (CB 150). Those submissions are reproduced at CB 151 to CB 160. Therefore, the greater part of the document attached to the applicant’s affidavit is already in evidence before the Court.

   b)However, the applicant’s attached document has additional text. This begins with the words “…[i]t has been established in the High Court of Australia…” (page 6) and ends with “…attached to these submissions” (page 7).

   c)It is clear from the text that this was not before the Tribunal. The text is concerned with the question of the relocation of the applicant within India such as to avoid harm, and as considered by the Tribunal. It makes references to what the Tribunal member considered, as revealed in the Tribunal decision record, and provides argument directed to the Tribunal’s analysis.

   d)That part of this document was not read into evidence. I accepted the applicant’s explanation that that part of the document was to be understood as his argument as to how the Tribunal should have approached the issue of relocation and dealt with that part of the document as being in the nature of submissions.

   4)A copy of SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 (“SZIED”) was also attached. I understood this was to be read as supporting the written “submissions” (see the reference at page 7 of the written “submissions”).

8. The applicant also sought leave in relation to his affidavit of 24 June 2014. The Minister had no objection. Paragraphs 1 to 18 address the question of delay (see further below). Paragraphs 19 to 20 address the “Post Hearing Submissions”. The applicant’s evidence confirms that he amended these submissions while preparing his “appeal” to this Court. That is, at some time after the making of the Tribunal’s decision.

9. The applicant’s oral submissions, as with his written submissions, focussed on the issue of relocation before the Tribunal. Before the Court the applicant emphasised that the Tribunal did not “consider” certain claims he made to it as to why he could not safely relocate within India. I will deal with these below.

The Delay in Making the Application to the Court

1. The extent of the delay in making the application to the Court in this case is not great. In his initial application for an extension of time, made on 5 February 2014, the applicant seeks to explain this delay with the following ground:

   “My RRT decision was made on 24th of December 2013 but I have got the decision paper on 31 of December by Legal Aid representative. So I counted the 35days from 31 December.

   Since I don’t have the Legal Aid representative anymore, I was expacting some money from oversees, so that I could hire a private lawyer. But it’s going to take some time and I have no choice but lodge the Application myself.”

   [Errors in the original.]

2. In his amended application for the extension of time of 18 June 2014 the applicant pleads the following grounds:

   “1. The Applicant has a strong claim for complementary protection.

   2. It is in the interests of justice to hear that claim, as the Applicant will be subject to cruel, inhuman or degrading treatment if he returns to India.”

3. In his further amended application for the extension of time of 25 June 2014 the applicant puts forward the following grounds:

   “1. The Applicant was not informed by his lawyer that he had 35 days from the date of the decision to lodge the appeal.

   2. The Applicant has a strong claim for complementary protection.

   3. It is in the interests of justice to hear that claim, as the Applicant will be subject to cruel, inhuman or degrading treatment if he returns to India.”

4. What is immediately apparent is that, while there are some common elements, the applicant’s grounds refer to a number of matters. Before the Court, the applicant did not explain which, if any, or all, of these grounds he pressed. Nor whether in light of his affidavit (see below), he abandoned these grounds.

5. The elements arising from all of the grounds are as follows.

   1)The applicant calculated the relevant period as commencing from the date of notification of the Tribunal’s decision (5 February 2014 application).

   2)His legal aid representative gave him the Tribunal’s decision. The representative ceased to act for the applicant at this time (5 February 2014 application).

   3)The applicant had strong claims for the grant of the visa on complementary protection grounds. It is in the interests of the administration of justice to extend time because of this (18 June 2014 application).

   4)His lawyer did not tell him that the 35 day period ran from the date of the Tribunal’s decision (25 June 2014 application).

6. Item (3) above is dealt with below in the consideration of the merits of the proposed amended substantive application.

7. The explanation from the grounds for the delay in making the application to the Court is essentially that he calculated the period from the date of when he received the Tribunal’s decision from his lawyer and that his lawyer did not tell him that the period commenced from the date of the Tribunal’s decision.

8. In his affidavit of 24 June 2014, the applicant advances somewhat different reasons for the delay. The explanation put forward is that the applicant’s former lawyers did not at any time tell him of the 35 day period. Further, that on, or about, 27 January 2014, noting this was the last day for the making of a competent application to the Court, the applicant telephoned the Court’s Registry and was told the 35 day period commenced with the date of the Tribunal’s decision. However, he was also told that the days on which the Court’s Registry was closed did not count towards the 35 day period.

9. The Minister chose not to cross-examine the applicant on his affidavit evidence. This left a number of inconsistent and unexplained aspects to the applicant’s case for the extension of time. Nonetheless, I have sought below to deal with each element.

10. Dealing first with the ground of the application for the extension of time as it initially appears in the application of 5 February 2014 and as at ground one of the amended application of 25 June 2014.

11. The Minister raises two points to argue that this explanation is not satisfactory in the relevant sense. First, the applicant says he received notice of the Tribunal’s decision on 31 December 2013. He says he “counted” the 35 days from that date.

12. Even accepting the applicant’s explanation here, the application was still made late, albeit by one day. However, see further below.

13. Second, that having regard to the period within which the applicant was required to make his application, whether he was nine days or one day late, must be seen in the light of the situation, that it is reasonable for the Minister to contend that it was the responsibility of the applicant to establish the applicable time limit on his application (SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 per Cowdroy J at [33] (“SZLIH”)).

14. The Minister’s position also gains strength when regard is had to the applicant’s statement that he received the Tribunal decision record from his “Legal Aid representative”.

15. In context, this appears to be a reference to “Mr John Vrachnas” of “Vrachnas Lawyers” who assisted and represented the applicant with his application for review to the Tribunal (CB 89), who was authorised to receive correspondence on the applicant’s behalf (CB 90) and to whom notification of the Tribunal’s decision was properly sent by letter dated 24 December 2013 (CB 162).

16. To the extent that it may be implicit in the applicant’s grounds that the delay was caused by, or contributed to, by the sending of the notice to his lawyers, the applicant had appointed the solicitor as his authorised recipient for the purposes of receiving correspondence from the Tribunal (CB 29 at item 18). The Tribunal was required by s.441G of the Act to give notice of its decision to the authorised recipient instead of the applicant. The Tribunal did this (CB 162). Its letter to the solicitors required the solicitors to ensure that the applicant is informed of this notification “as soon as possible” (CB 162.5).

17. It is implicit in this explanation for the delay that the applicant knew of the 35 day period as at that time. The applicant here, therefore, does not assert ignorance of the relevant period at that time. He claims, simply, that he calculated the time from receipt of the notification, rather than the date of the decision.

18. The applicant adds in his initial grounds that he was expecting some money to be sent from overseas so that he could have hired a lawyer. That again does not say that he did not know of when the time limit commenced, but that he waited for money. Given that he ultimately did file an application without legal assistance, he did not explain why he could not have done that within time.

1. The remainder of the grounds of the amended application for the extension of time assert that the applicant has a strong claim for the grant of the protection visa on complementary protection grounds because he would be subjected to significant harm if he returned to India.

2. This does not expressly assert any error on the part of the Tribunal and clearly does not address the delay in making the application to this Court. As such, it does not assist the applicant in relation to the element of whether there is any satisfactory explanation for the delay such as to argue for the extension of time.

3. In all these circumstances I would agree with the Minister that the applicant has not satisfactorily explained the delay. However, the applicant’s explanation as provided in his subsequent evidence to the Court, by way of his affidavit of 24 June 2014, does, in my view,  require close examination as to whether it provides such a satisfactory explanation.

4. As stated above, the applicant’s affidavit was read into evidence without objection from the Minister. Importantly, the Minister elected not to cross-examine the applicant on his evidence. As also stated above, there were plainly some inconsistencies and matters requiring further explanation between the applicant’s grounds and his evidence. They remained unexplained. The affidavit, in an important particular, provided a different, or perhaps more accurately, an additional explanation for the delay.

5. Before the Court the Minister submitted that it was the applicant’s responsibility to inform himself of the relevant “timeframe” for the making of the application to the Court. This appeared to be directed to the applicant’s “explanation” involving his former lawyers and included his evidence that he was given certain advice by the Court’s Registry. The Minister relied on SZLIH at [33] and SZOCH v Minister for Immigration & Citizenship [2010] FMCA 300 at [43] to support this proposition.

6. As stated above, the applicant’s evidence is that he rang the Court’s Registry on or about 27 January 2014. That is within the time in which he could have competently made his application to the Court, albeit the last day. He did not file his application on or before 5 February 2014 because of the advice he says he was given by the Registry officer. That advice was to the effect, and in effect, that the applicant had a further week to file his application because the Court’s Registry had been “closed for a week”.

7. The Minister’s submission was that it was the applicant’s responsibility to properly establish the applicable time limit. But in this case, the applicant sought to discharge that responsibility.

8. However, it still leaves a number of matters unexplained. First, at [10] of the affidavit of 24 June 2014, the applicant says that he filed his application on “3 February 2014”. This is consistent with what he then says at [11] that “on or about 4 February 2014” he received a letter from the “Department lawyers”. At [12] he states that the letter advised him that his application was incomplete because he “had applied late and [he] had to provide grounds for an extension of time”.

9. The difficulty is that from the Court’s records the application was lodged on 5 February 2014, not on 3 February 2014. He could not therefore have received any letter from the “Departmental Lawyers” to which he refers as being on 4 February 2014. That letter is not put in evidence before the Court. It should be noted that the reference to “3 February 2014” (at [10]) is handwritten. Even if this was meant to be “5 February” (the correct date of lodging) the applicant could not have received the letter dated “4 February 2014” from the “Departmental Lawyers” referring to an application not yet lodged.

10. It may be that what the applicant referred to was some correspondence from the Court’s Registry dated 4 February 2014. No such correspondence was in evidence before the Court. However, the “Correspondence Folder” in the Court’s file contains a letter from a Registry officer to the applicant in terms similar to those claimed by the applicant. It may be that this was the letter to which the applicant, mistakenly, referred.

11. In any event, and second, as stated variously above, the applicant’s evidence in the same affidavit is that the Tribunal decision was made on 23 December 2013. His lawyers did not tell him of the 35 day period at any time. There is nothing in the applicant’s affidavit to contradict the assertion in the grounds of the application of 5 February 2014, that he received the Tribunal’s decision record from his lawyers on 31 December 2014. What remains unexplained by the applicant is why he delayed until 27 January 2014 to make the inquiry of the Court’s Registry.

12. Third, and flowing from this context, the applicant did not say in his evidence that he did not know, or was not told, of the option of seeking judicial review of the Tribunal’s decision by his lawyers. What he states is that they did not tell him of the 35 day period.

13. It is open to draw the inference that the applicant knew of the option of seeking judicial review, but simply did not know of the time limitation. The availability of that inference is strengthened by the fact that the applicant says he rang the Court’s Registry on 27 January 2014 to make his inquiry.

14. It is important here to note the applicant’s own evidence ([8] of the affidavit of 24 June 2014):

    “I explained my case and that I wasn’t sure if the 35 days started on the date of the decision or when I received a copy of the decision”

15. It is the applicant’s own evidence that at least as at 27 January 2014 he knew of the 35 day period. His uncertainty was whether that period commenced on the date of the Tribunal’s decision or his receipt of a copy of it. This contradicts his evidence in the same affidavit that his lawyers never told him of the 35 day period. Even if that were the case, his evidence is that he knew of “a” 35 day period as at 27 January 2014. Further, that he generally knew (“wasn’t sure”) of the date of the commencement of that period.

16. In all, therefore, even accepting the applicant’s evidence on its face it does not provide a satisfactory explanation for the delay such as to argue for the extension of time.

17. However, an even stronger argument against the granting of the extension of time is that I cannot see merit in the grounds of the applicant’s proposed substantive application or the amendments to it. Nor does the material before the Court suggest any other possible meritorious ground, such as to justify the extension of time in the interests of justice. In my view, the interests of the administration of justice are not served in these circumstances by extending time simply to then dismiss the substantive application because it lacks relevant merit.

Background to the Grounds of the Proposed Substantive Application as Amended

1. As referred to above, the applicant is a citizen of India (CB 13). He arrived in Australia in October 2005 as the holder of a student visa (CB 15). This ceased on 15 March 2007. The applicant was granted a bridging visa in effect until 15 June 2009.

2. The applicant applied for a protection visa on 9 August 2013 (CB 2 to CB 29). His claims to protection were set out in a Statutory Declaration accompanying the application (CB 37 to CB 41). The delegate refused the application on 23 September 2013 (CB 64 to CB84). The applicant applied to the Tribunal for review on 10 October 2013 (CB 87 to CB 106). The applicant appeared at a hearing before the Tribunal and gave evidence on 16 December 2013 ([4] at CB 165).

3. The applicant’s claims to protection were as follows. First, he and his family were Hindus who lived in the Punjab. They suffered assaults and discrimination from the Sikh community. This was part of a “long running conflict between Sikhs and Hindus in the Punjab”. He left India for this reason.

4. Second, prior to coming to Australia he entered into a relationship with a Sikh girl whom he met at college. Her family did not approve because of his different religion. He ceased the relationship and decided to leave India.

5. Third, on 5 September 2008, in Australia, he was charged with a number of serious criminal offences. These were kidnapping, demanding a ransom and actual bodily harm. He was convicted of these offences and sentenced to 3 years imprisonment. On release he was taken into immigration detention. He feared harm if he were to return to India from the family and friends in the Punjab area of the victim in Australia, who was a Sikh, against whom he had committed these offences.

6. The Tribunal affirmed the delegate’s decision. First, the Tribunal found that although the applicant raised the matter of fear of harm generally from members of the Sikh community because of his Hindu religion, he did not “specifically” pursue this, either before the delegate or the Tribunal. The Tribunal reasoned that he made no claim that his family suffered any harm for reason of their religion after he left India and there was no evidence before it that members of his family, or Hindus in general in his home area, have been subjected to harm or mistreatment by the Sikh community for reasons of religion ([14] at CB 166).

7. Second, the Tribunal accepted that he had been involved with a Sikh girl before coming to Australia. It also accepted his evidence that her family “seriously” assaulted him. However, the Tribunal also accepted his evidence that the relationship had ended prior to his coming to Australia. Further, that he made no claim that he continued to fear harm as a result of that relationship. The Tribunal therefore, was not satisfied that he faced serious or significant harm for this reason if he were to return to India ([15] at CB 167).

8. Third, the Tribunal considered a number of aspects of the applicant’s claim to fear harm because of matters arising from his criminal conviction in Australia.

9. The Tribunal considered a claim raised by the applicant’s representative that the applicant would be at risk of harm if his criminal record were to be disclosed in India. However, the Tribunal found that there was no information, despite its consulting sources provided by the applicant and his representative, to indicate that persons with a criminal record, whether in India or overseas, are subjected to serious or significant harm for that reason ([17] at CB 167).

10. The Tribunal also considered submissions made by the applicant’s representative after the hearing that if the applicant were to be “involuntarily” returned to India he would attract the attention of the authorities, including for reason of his criminal conviction and his removal from Australia. The Tribunal however, again, found no information in a number of sources it consulted, including country information submitted by the applicant’s representative, to suggest he would be detained without charge, or subjected to harm, for these reasons ([19] at CB 168).

11. The Tribunal accepted the applicant’s oral and documentary evidence that threats had been made in India against him by the family and the friends of his victim in Australia. It found that as a result there was a real chance that he would be subjected to serious harm if he were to return to his home area ([20] at CB 168). However, the Tribunal found that the applicant’s religion was not the essential and significant reason for the harm that he feared in this regard. The motivation of the victim’s family and friends was one of revenge. The Tribunal found the harm feared was not for a Refugees Convention reason ([21] at CB 168).

12. The Tribunal separately considered the question of significant harm for the purposes of s.36(2)(aa) of the Act. It found that the applicant would be subjected to cruel or inhuman treatment or punishment by his victim’s family if he was returned to his home area ([22] at CB 168 to CB 169).

13. However, the Tribunal rejected the applicant’s claim that his victim’s family would be able to find him anywhere in India and found that it would be reasonable, in a practical sense, for him to relocate to another area. The Tribunal had regard to the applicant’s linguistic skills and employment prospects. It specifically considered whether persons with criminal records are able to find accommodation and employment. It found no real risk of significant harm in the context of relocation ([30] at CB 170).

The Applicant’s Submissions Before the Court

1. The applicant’s submissions in relation to his proposed substantive application and, as amended, can be seen as emanating from, and expressed in, a number of sources. First, his affidavit of 17 June 2014 (at [17] – [23]). Here the applicant appears to address the Tribunal’s finding as to relocation and presses reasons as to why he could not relocate within India.

2. Second, in his affidavit of 24 June 2014, the applicant makes reference to his “post hearing submissions” and the attached “amendment” he made to these submissions, in “preparing” for the “appeal” to the Court ([19] – [20] of his 24 June 2014 affidavit). This again addressed the question of relocation.

3. Before the Court, the applicant began his oral submissions by reading from a prepared statement. It became apparent that the applicant did not understand these submissions and consequently they lacked relevant or useful meaning. He subsequently explained that “someone” had written the submissions for him. In his affidavit of 24 June 2014, the applicant’s evidence was that a “volunteer”, who had visited him at the “Immigration Detention Centre”, assisted him. I asked the applicant to tell me in his “own words” what his complaints were about the Tribunal’s decision. In essence, the applicant complained that the Tribunal “ignored” his reasons as to why he could not relocate within India. He referred to his lack of work experience, lack of funds and that he would be without the support of family and friends. In all, his oral submissions raised matters dealt within in his written material before the Court and are dealt with below.

4. It also, subsequently, became clear that the applicant’s prepared statement which he sought to read to the Court was another similar, if not identical, version of his written “submissions” before the Court.

5. I note that the applicant’s reference to the Tribunal “ignoring” his objections to relocation was, as is set out below, really a complaint that the Tribunal did not accept that these matters meant that he could not safely and in a practical sense, relocate.

6. In all, the “amended post hearing” submissions, the “written” (as they appear in the affidavits of 17 and 25 June 2014) and oral submissions sought to take issue with the Tribunal’s finding on relocation. This is dealt with below.

Consideration of the Grounds of the Initial Proposed Substantive Application

1. The grounds of the applicant’s initial proposed substantive application before the Court are in the following terms:

   “1. The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.

   2. The Tribunal had constructively failed to exercise jurisdiction.

   3. The Tribunal had failed to take into account relevant materials and considreations.

   4. The Tribunal had ignored relevant materials.

   5. The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.

   6. The Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if returned to his country of nationality.”

   [Errors in the original.]

2. The applicant did not specifically say that he abandoned these grounds by filing his proposed amended applications. It was not clear whether the grounds in that application were to be treated as additional grounds. Given this, I have also considered the grounds in the original proposed substantive application.

3. What is immediately apparent is that the grounds are broad and not particularised. The applicant was unable to assist in providing any explanation or particularity to these grounds. In these circumstances I agree with the Minister that the grounds lack any meaningful content and are not capable of establishing jurisdictional error on the part of the Tribunal. In this sense, that application lacks merit such that it would support an extension of time.

4. However, given that the applicant is unrepresented before the Court I separately considered whether the grounds could be given some particularity in light of the material before the Court which may provide a basis for, at least, an arguable case in law which may then be the basis for an extension of time in the interests of the administration of justice. However, no such basis is apparent in any of the grounds.

5. In ground one the complaint is an assertion of a breach of procedural fairness. This, in the circumstances, immediately directs attention to Div 4 of Pt 7 of the Act. This Division is the statutory equivalent of the natural justice hearing rule in relation to the matters it deals with (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252). No breach of any obligation of the Tribunal is apparent. The applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. On the evidence available, it was a meaningful opportunity for him to give his evidence and present his case. The issues dispositive of the review were discussed. Further, these issues were live issues as a result of the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592). The applicant would have known, given the delegate’s central finding, that the issue dispositive of the review was whether he could relocate within India to avoid the significant harm (with reference to s.36(2)(aa) of the Act) the delegate, and then the Tribunal, said he would face in his local area (Punjab).

6. There is also no apparent breach of any other provision in Div 4 of Pt 7 of the Act. I note that the information which may be said that the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision all fell within one of the exceptions in s.424A(3) to the obligation in s.424A(1) of the Act.

7. In ground two the applicant asserts a constructive failure on the part of the Tribunal to exercise its jurisdiction. Here it is clear that the Tribunal proceeded to conduct the review pursuant to s.414 of the Act. Its findings of fact, which to a large part, accepted much of the applicant’s evidence, were all within jurisdiction. It gave reasons for these findings which were reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

8. Ground three and four assert that the Tribunal failed to take into account or ignored relevant materials. When regard is had to the entirety of what is in the Court Book, such complaints are not available to the applicant. The Tribunal had regard to all of the applicant’s claims, his written submissions and the documentary evidence he provided in support. In fact, one such document was found by the Tribunal to be “generally corroborative” of one aspect of the applicant’s claims, such that the Tribunal accepted that claim (see  [20] at CB 168) (see further below in relation to the claim of the Tribunal “ignoring” materials).

9. Ground five remains impenetrable without at least some, even superficial, particularity. No particularity was forthcoming from the applicant. There is nothing in the material before the Court to suggest that the Tribunal failed to address the questions required of it in the task given to it.

10. There is nothing in the material before the Court to suggest that the Tribunal misunderstood or misapplied “the test” of a “real risk of significant harm”. The Tribunal set out the relevant test in unexceptional terms ([11] at CB 166). Its application of it was consistent with relevant authority (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525). I note in particular that the Tribunal plainly understood the difference between the two relevant criteria for the grant of the protection visa as set out at ss.36(2)(a) and (aa) of the Act.

Consideration of the Grounds of the Amended Proposed Substantive Application

1. The grounds of the proposed amended substantive application are identical in both the amended proposed substantive application made on 18 June 2014 and the further amended proposed substantive application made on 25 June 2014. They are in the following terms:

   “1. The tribunal member did consider the whether it would be practical for the applicant to be relocated in India in accordance with law.

   a. The tribunal member did not consider the decisions of the High Court of Australia on the reasonableness of relocation; and

   b. The tribunal member did not consider the decisions of the Federal Circuit Court of Australia on the reasonableness of relocation;

   c. The tribunal did not consider UNHCR guidelines on relocation or international decisions that bear on the interpretation of those guidelines.

   2. The tribunal member did not consider the individual circumstances of the applicant in determining whether he could be relocated within India.

   3. In the circumstances of the applicant, relocating him within India will lead to him living in destitution.

   4. In those circumstances, relocation is not an option as it is not practicable.

   5. As a consequence, the applicant has satisfied both conditions under section 36(1A) of the Migration Act 1958 (Cth) and is eligible for a protection visa.

   6. There was a substantial miscarriage of justice determining the applicant was ineligible for a protection visa; it already being determined that he would be subject to cruel, inhuman or degrading treatment if he returns to his home in India.”

   [Errors in the original.]

   [In context, [1] above should properly be read as inserting the word “not” between “did” and “consider” in the first line.]

2. The grounds, in essence, seek to challenge the Tribunal’s finding as to relocation within India. It should be noted that the Tribunal made no finding as to relocation in the context of the Refugees Convention. It did not need to do so because, although it found that the applicant would likely face harm on return to his local area, such harm was not for a Refugees Convention reason. Therefore, absent such a nexus, the Tribunal was not required to consider relocation in that context (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13]).

3. The Tribunal did consider relocation in the context of complementary protection (s.36(2)(aa) of the Act). As stated above, it found that if the applicant were to return to his home area there was a real chance that he would be subjected to cruel or inhuman treatment or punishment as defined in the Act. That harm was said to emanate from the family members and friends in India of his victim in Australia (see [22] at CB 168 to CB 169).

4. To the extent, therefore, that the applicant’s grounds are expressed without reference to s.36(2)(a) or s.36(2)(aa) of the Act, any such assertion of error in relation to s.36(2)(a) of the Act cannot be made out as the Tribunal made no such finding.

5. The relocation complaint, therefore, must be seen in context of the complementary protection criterion at s.36(2)(aa) of the Act. Here the Tribunal had regard to s.36(2B)(a) of the Act and found that, ultimately, there was not a real risk of significant harm for the purposes of the Act.

6. The applicant makes a number of assertions in his amended proposed substantive application, which either cannot be sustained on what is before the Court or, otherwise, lack merit. Similarly, the applicant’s oral and written submissions to the Court seek to challenge the factual findings made by the Tribunal.

7. In his affidavit of 17 June 2014, the applicant makes reference to his lack of employment experience (“I have never been employed either in India or Australia…”), lack of assets and family reasons, to argue that it is not practical for him to relocate in India ([17] – [23] of his 17 June 2014 affidavit).

8. His affidavit of 24 June 2014 directs attention to the part of the “post hearing submissions” that was added by him and the “volunteer” after the Tribunal decision, for the purposes of his appeal to the Court.

9. As a preliminary point, it is important to note that the amended post hearing submissions follow what the applicant’s representative put to the Tribunal on the question of relocation. The “supplementary” submissions, in effect, purport to address what the applicant says the Tribunal “should have considered”. That is, what it should have reasoned and found in its analysis.

10. The argument is that the Tribunal should have “considered” SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”), the “UNHCR guidelines” and SZIED and applied the principle that a person should not be denied protection as a refugee (here also relevant to complementary protection) if relocation is unreasonable or not practical, depending on an applicant’s individual circumstances.

11. In the amended post hearing submissions, the applicant then points to a number of factors which he says the Tribunal did not consider and should have considered, and which would have resulted in a different outcome.

12. These submissions then state, in contradiction, that while the Tribunal did consider the factors of language, employment and housing, it “did not consider the practical effect of these factors”. This complaint was, in essence, repeated by the applicant before the Court.

13. This complaint does not assist the applicant’s case. The Tribunal did consider those elements of the applicant’s circumstances

    
    

    (see [26] – [27] at CB 169 to CB 170). The Tribunal made specific reference to the “post hearing submissions” as they were put by the applicant’s representative in relation to these matters ([27] at CB 170). That is, without the applicant’s current “amendment”.

14. The Tribunal also considered other factors raised by the applicant and his representative before it. These were that the relatives and friends of his victim in Australia would be able to find him anywhere in India, the limitations of his work experience in prison, and the impact of his criminal conviction on his circumstances if he were to return to India

    
    

    ([28] – [29] at CB 170).

15. In short, the Tribunal considered all of the applicant’s “objections” to relocation as put to it. The complaint now is no more than an expression of dissatisfaction with the Tribunal’s conclusion. The evidence does not support the assertion that the Tribunal did “not consider” these matters.

16. The post hearing submissions, as now supplemented, also seek to argue that the applicant has no financial resources, no friends or family outside of his local area, would not be able to afford accommodation and would therefore be “compelled” to return and live with his family.

17. On the evidence, this “submission”, or particular articulation of his objections to relocation, was not put to the Tribunal. The applicant raises it in this fashion for the first time before the Court. However, in any event, the Tribunal either expressly dealt with these matters, or these matters were subsumed within the Tribunal’s analysis. For example, the lack of financial resources, and his lack of employment experience such as to generate these resources was expressly addressed by the Tribunal.

18. The Tribunal expressly found that the applicant would not, reasonably, be prevented from finding employment and accommodation, given his personal circumstances to which it referred, outside of his home area. The applicant’s assertions raised for the first time before the Court, that he would be forced to return to his family because he could not find employment and accommodation, is really a challenge to the Tribunal’s findings of fact that he reasonably would be able to do so, and is therefore subsumed within that finding.

19. In all, I agree with the Minister that the Tribunal properly understood and applied the test as to relocation as enunciated and explained by the High Court in SZATV (see also SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51).

20. Ground one of the amended application asserts that the Tribunal fell into error because it did not consider High Court and Federal Court authorities. The application of the authorities, referred to above, reveals no legal error on the part of the Tribunal. Nor is there any revelation of legal error because the Tribunal made no specific reference to the authorities in circumstances where it demonstrably applied the correct test, and approach, to the reasonableness of relocation, in the sense of it being practicable.

21. As stated above, the applicant has attached a copy of the Federal Court’s decision SZIED to his affidavit. This does not assist the applicant now. This case was handed down on the same day as SZATV. The reliance on SZIED appears to be that this Court should find for the applicant given that the Court in SZIED found for the applicants in that case. There is no attempt in the applicant’s submissions, nor was any made before the Court, to address the different circumstances in that case and to compare them with the current circumstances of this case. If what the applicant was seeking to do was to argue that this Court should have applied the relevant principle set out in Randhawa v Minister for Immigration, Local Government [1994] FCA 1253; (1994) 52 FCR 437 (per Black CJ at 442 – 443) (see SZIED at [41]), then this would not now assist the applicant. This is because, to the extent that that principle was approved in SZATV, the Tribunal’s approach and analysis in this case was consistent with it.

22. The applicant’s complaint at particular (c) of ground one, that the Tribunal did not have regard to the United Nations High Commissioner For Refugees (“UNHCR”) guidelines, also does not assist him. The Tribunal is not required to have such regard. The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR 1979, Reissued December 2011) may be a useful guide, but if does not have the force of domestic law (Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 and Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489).

23. Grounds two, three and four have no merit. As the Minister submits, and as set out above, the Tribunal had regard to all of the applicant’s relevant claims and objections to relocation (see at [9] – [10] of the Minister’s further written submissions of 19 June 2014) (see also SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124]).

24. As the Minister also correctly submits, whether relocation is reasonable in the circumstances is a question of fact for the Tribunal not the Court (SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168 at [26]). As stated above, the applicant’s affidavit of 17 June 2014 at [17] – [23] sets out the reasons why the applicant claims it is not reasonable or practicable to relocate. This cannot assist the applicant now to show jurisdictional error on the part of the Tribunal. In essence, here the applicant seeks to challenge the relevant factual findings made by the Tribunal. He therefore seeks merits review, which cannot assist him before the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

25. Ground five asserts that as a consequence of relocation not being an “option” for the applicant, because it is not practicable (with reference to ground four), the applicant, therefore, meets the criteria at s.36(1A) of the Act and is “eligible for a protection visa”. Presumably, the argument is that the Tribunal fell into jurisdictional error in not making that finding.

26. As set out above, the Tribunal’s conclusion as to relocation and the relevant antecedent findings, in the context of s.36(2)(aa) and s.36(2B) of the Act, were made without any apparent legal error. The premise on which ground five is based, therefore, is not made out.

27. In relation to complementary protection, as stated above, while the Tribunal found he would face significant harm in his local area, relocation was reasonable and practicable in the applicant’s circumstances to avoid it. The applicant therefore, contrary to the assertion in ground five, did not satisfy one necessary criterion at s.36(1A)(b) of the Act because the Tribunal found he did not satisfy s.36(2)(aa) because of its findings relevant to s.36(2B)(a) of the Act.

28. In essence, ground five seeks to challenge the Tribunal’s findings as to relocation. As those findings were reasonably open to the Tribunal in the circumstances and the Tribunal complied with the relevant authorities, the applicant seeks impermissible merits review.

29. Ground six may, at best for the applicant, be understood as a complaint that it was not open to the Tribunal to find that he should not be granted a protection visa in circumstances where the Tribunal found that he would be subject to cruel, inhuman or degrading treatment if he returned to his home area.

30. This complaint misunderstands the operation of s.36(2A)(a) of the Act. Given that the Tribunal properly applied the correct test to relocation, dealt with all of the applicant’s objections to relocation, and addressed relevant circumstances, no error is revealed.

31. In relation to the remainder of the affidavit of 17 June 2014,  paragraphs [1] – [4] of the applicant’s affidavit merely set out some personal data. They do not indicate, let alone reveal, legal error on the part of the Tribunal. Paragraphs [5] – [16] were not in evidence. Nonetheless, they do not assist the applicant. They recount the applicant’s attempts, after the making of the Tribunal’s decision, to contact a friend who was also accused of the crimes of which the applicant was convicted, and who subsequently returned to India. It is not clear how this assists in revealing legal error on the part of the Tribunal.

32. There is no legal merit in the proposed substantive application as it was initially put to the Court, or in its amended form, nor the complaints set out in the applicant’s affidavits or what the applicant orally put to the Court today. Nor can I otherwise see any other meritorious ground such as to justify an extension of time in the interests of the administration of justice.

Conclusion

1. In these circumstances, it is not in the interests of the administration of justice to extend time, simply to do no more than dismiss the substantive application. The application for the extension of time pursuant to s.477(2) of the Act should be refused. I will make an order accordingly.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  14 November 2014