SZTZD v Minister for Immigration

[2014] FCCA 2244

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2244

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – explanation for delay satisfactory – lack of merit of the substantive application – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A, 424AA, 476, 477

SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330; [2008] 171 FCR 134
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; (2009) 176 FCR 53
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006); (2006) 228 CLR 152; 231 ALR 592
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000); (2000) 168 ALR 407; 74 ALJR 405

Applicant: SZTZD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 561 of 2014

Judgment of: Judge Nicholls

Hearing date: 6 August 2014

Date of Last Submission: 6 August 2014

Delivered at: Sydney

Delivered on: 29 September 2014

REPRESENTATION

Applicant: In person

Appearing for the Respondents: Mr L d’Avigdor

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 7 March 2014 to extend time pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 561 of 2014

SZTZD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed with the Court on 7 March 2014, the applicant seeks to invoke the jurisdiction of the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) and subsequently seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 January 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

The Extension of Time

1. Section 477(1) of the Act provides that such applications must be made within 35 days of the date of the Tribunal’s decision. The application was not filed within this period. Although the application was made only one day late, it is not competent.

2. Section 477(2) of the Act provides that the time set out in s.477(1) may be extended where an application seeking an extension of time has been made in writing, and the Court considers that it is in the interests of the administration of justice to do so.

3. The applicant has made such an application. He explains:

   “1. I counted 35 days from the date of the migration decision notification dated 31/01/2014 and signed by Tribunal officer, Kim Oehme.

   2. I did not count 35 days from the date of the Migration decision Record dated 30/01/2014 signed by the Tribunal member, Mr Simon Jeans.”

   [Errors in the original.]

4. The issue now, therefore, is whether the extension of time should be granted. The elements relevant to this are not exhaustive (SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55]). However, as I identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], some of the elements include the length of the delay, any satisfactory explanation for it and the merits of the grounds in the proposed substantive application.

5. In the current case, the delay is only one day. The applicant’s explanation for this is that he “counted” the period as commencing from the date noted on the letter of notification of the Tribunal’s decision (see “Court Book” – “CB” – CB 116). I accept that this is a satisfactory explanation for what is, after all, such a short period of delay.

6. However, for the reasons that follow, the applicant’s grounds in the proposed substantive application lack merit such that it is not in the interests of the administration of justice to extend time. In my view, the interests of the administration of justice are not served by extending time, even where the delay was only one day, to simply then dismiss the substantive application because it lacks merit.

Background

1. The applicant is a citizen of Nepal. He arrived in Australia on 2 July 2009 (CB 3). He used a Nepalese passport originally issued to another person, in which his photo had been substituted. It appears that passport had a visa for Australia in it (see CB 35.7, CB 50.8 and [5] at CB 118).

2. On 24 January 2012, that is, approximately two and a half years later, he applied for a protection visa (CB 1 to CB 43). His claims to protection centred around his alleged homosexual orientation.

3. In his protection visa application, and attached statement, he claimed to have come from a traditional Hindu family in a rural area of Nepal (CB 34). He became aware of his homosexuality at school where he entered into a homosexual relationship with a classmate from May 2002 to July 2004 (CB 34). The applicant claimed he and his classmate were seen hugging and kissing by his headmaster, who verbally abused and threatened them (CB 34).

4. Although he was harassed by people in his local area, he did not tell his parents of his sexual orientation. He claimed to be unable to engage in homosexual behaviour because he feared discovery (CB 34 to CB 35). He said he fled his local area for Kathmandu and then left Nepal to avoid being forced into marriage with a woman (CB 35).

5. Since his arrival in Australia, the applicant claimed to have engaged in casual sex and to have frequented gay bars (CB 35). Further, that he also had been involved in a casual homosexual relationship for about two months. He feared harassment, abuse and discrimination from police, civilians and Maoists if he were to return to Nepal (CB 35).

6. The applicant was interviewed by the Minister’s delegate on 27 June 2012 (CB 121). On 2 July 2012 the delegate refused the application for a protection visa (CB 44 to CB 63).

The Tribunal

1. The applicant applied for review to the Tribunal on 1 August 2012 (CB 65 to CB 70). He attended a hearing before the Tribunal on two occasions (CB 79 and CB 109). He submitted a number of documents and photographs in support of his claims (CB 81 to CB 104).

2. On 30 January 2014 the Tribunal affirmed the delegate’s decision (CB 115 to CB 149). The basis of the Tribunal’s decision was that it found that the applicant was not a credible witness in relation to his sexual orientation. The Tribunal found his claims to be “…inconsistent, implausible, vague and developed over the protection visa application process” ([118] at CB 138). It also found that the applicant would “say anything if he believes it will give him an advantage” ([118] at CB 138).

3. The Tribunal set out matters in support of these findings in its decision record. These included consideration of a number of photographs submitted by the applicant in support of his claims ([132] – [133] at CB 142).

4. Further, and pursuant to s.91R(3) of the Act, the Tribunal disregarded the applicant’s conduct in Australia that he attended “Mardi Gras” in 2013 because it found this was done for the sole purpose of strengthening his claim to be a refugee ([133] at CB 142).

5. The Tribunal also found that its view as to the applicant’s credibility, and the fabrication of all his claims for protection, was strengthened  because the applicant had been in Australia for over two and half years before he made his application for a protection visa. The Tribunal rejected the applicant’s explanation for the length of time taken to lodge his application. Implicit in this finding was that the Tribunal saw this delay as being inconsistent with a genuine fear of harm if he were to return to Nepal ([136]  at CB 143 to [137] at CB 144).

6. Given the circumstances presented, although the applicant made no express claim in this regard, the Tribunal also considered whether the applicant’s conduct in paying money for a fraudulently altered passport would result in a well-founded fear of persecution. The Tribunal found that this, and related acts, would constitute a criminal offence under the law in Nepal. However, it found there was no credible evidence that such a law would be selectively enforced against the applicant ([143] at CB 145).

7. In all, the Tribunal was not satisfied that the applicant would suffer serious harm if he were to return to Nepal ([142] at CB 145). The Tribunal then turned to consider the applicant’s claims as against the criterion in s.36(2)(aa) of the Act. It concluded that it was not satisfied there were substantial grounds for believing he would suffer significant harm if he returned to Nepal ([143] at CB 145 to [145] at CB 146).

The Grounds of the Proposed Substantive Application

1. The grounds of the proposed substantive application are as follows:

   “1. The Refugee Review Tribunal Member’s decision in my case has involved an error of law in respect of the failure to give me procedural fairness and natural justice.

   
   
   

   2. The Refugee Review Tribunal Member failed to afford me the opportunity to comment on some information it had relied.

   
   
   

   3. The Member did not assess my sexual orientation correctly and the Member applied the wrong test to assess credibility.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter, orders were made which, amongst others, gave the applicant the opportunity to file an amended application, any evidence by way of affidavit and written submissions in support of his application.

2. At the hearing of the application for an extension of time, the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Mr L d’Avigdor appeared for the first respondent. Nothing further was filed by the applicant.

3. The applicant’s submissions before the Court did not seek to address the unparticularised grounds of the proposed substantive application. In essence, the submissions were as follows:

   1)He was not able to live in Nepal.

   2)That the Tribunal thought he had attended an “ELICOS” course of study in Australia. This influenced the Tribunal to find adversely to him (he said that this meant “other evidence [was] sidelined”).

4. The Court drew attention to each of the grounds of the application and asked the applicant if there was anything he wanted to say about them. The applicant stated, in effect, as follows:

   1)In relation to ground one, the complaint was that the Tribunal did not believe him.

   2)In relation to ground two, the complaint here appeared to relate to the “ELICOS” matter.

   3)In relation to ground three, it was very difficult to “prove” that he was of homosexual orientation.

Consideration of the Submissions and Grounds of the Proposed Substantive Application

1. Dealing first with the applicant’s complaint to the Court that he was not able to live in Nepal. At its highest, this asks the Court to intervene and substitute its own findings and conclusions for that of the Tribunal. This seeks impermissible merits review and cannot assist the applicant before the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

2. The “ELICOS” matter requires some background explanation (with reference to ground two of the application and the applicant’s second complaint). As set out above, the applicant used a passport issued in another person’s name to travel to and enter Australia. The applicant’s photograph had been substituted for that of the other person in the passport.

3. The Tribunal relevantly raised the following with the applicant at the hearing on 10 December 2013 ([82] at CB 129 to CB 130):

   “The second issue related to evidence he had undertaken study in Australia. The Tribunal stated that according to electronic records of the Department of Education, Employment and Workplace Relations, the student visa holder whose passport he used to enter Australia successfully undertook an English for Academic Purposes (Intermediate to Advanced) course between 6 July 2009 and 25 September 2009. The information also related to evidence he had given in the delegate’s interview in which he was asked what he had done since he came to Australia and he claimed there was a language barrier, he had no friends, relatives or anyone to support him, he had nowhere to stay, staying in the living room with student friends, doing nothing and after some time looked for employment and found a job but did not indicate he studied English. The Tribunal stated that the information was relevant to the review because it may lead the Tribunal to find he had given false or misleading information about his history of study in Australia. The Tribunal stated this may lead it to find he was not a witness of truth in these proceedings and this may cast doubt on whether he had a well founded fear of persecution if he returned to Nepal. He stated that he was educated between 2050 and 2060 in the Nepalese calendar but did not understand English fully. The Tribunal stated the evidence indicated he had studied English at a relatively high level in Australia and this may indicate he was not uneducated as he had claimed. He stated this was totally wrong.”

4. The Tribunal dealt with this matter as follows ([131] at CB 141):

   “The Tribunal has considered the applicant’s evidence that he is an uneducated person and this also accounted, in part, for his delay in lodging the protection visa application because of the language barrier. In the application forms, delegate’s interview and Tribunal’s hearing, the applicant claimed that, after arriving in Australia, he did not undertake any study and stayed at home for some time before eventually looking for work. Information available to the Tribunal through the Department of Education, Employment and Workplace Relations, indicated that the passport holder who had entered Australia on the fraudulently altered passport used by the applicant had undertaken an English language course at intermediate to advanced level between July and September 2009. This information was put to the applicant in the hearing and the applicant claimed that he did not undertake any course. The Tribunal does not accept this explanation because it prefers the electronic evidence from the Department of Education, Employment and Workplace Relations which indicates that the person who entered Australia in the name of the applicant undertook English language studies after his arrival in Australia. The Tribunal considers that the applicant’s failure to identify this information in his application forms and preparedness to mislead the Department and Tribunal as to what he was doing after he arrived in Australia, undermines his credibility as a witness of truth and indicates he is prepared to say anything if he believes it will give him an advantage. The Tribunal also considers that this undermines his reasons for delaying his protection visa application after arrival in July 2009, as set out below.”

5. The applicant complained that the Tribunal did not accept his explanation here and that this issue, in effect, was prominent in the Tribunal’s adverse credibility finding.

6. First, the Tribunal is not obliged to uncritically accept the applicant’s explanation (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The Tribunal put to the applicant the information it had obtained, and the relevance of the information to the review. It gave the applicant the opportunity to address the information and give his explanation.

7. Second, although not pleaded, I note that it was open to the Tribunal to discharge any obligation arising from s.424A(1) of the Act in relation to this information by the use of the facility provided by s.424AA of the Act (see SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330; [2008] 171 FCR 134 at [19]; and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [2] per Moore J). On what is before the Court, the Tribunal complied with its obligations in relation to the information from the “Department of Education, Employment and Workplace Relations”.

8. Third, the applicant asserted that the Tribunal’s finding in relation to the “ELICOS” matter was prominent in the Tribunal’s reasoning such that all its other findings were “sidelined”, or as I understood it, unduly influenced by this finding. This complaint is not sustained when regard is had to the entirety of the Tribunal’s reasons. There are a number of elements here.

9. One, the Tribunal’s adverse finding as to the applicant’s credibility was not solely based on the matter of whether the applicant did or did not study when he first arrived in Australia.

10. Two, the Tribunal’s adverse conclusion as to the applicant’s credibility arose from a large number of matters emanating from the entirety of the applicant’s evidence.

11. Three, on any plain reading, let alone a fair reading of the Tribunal’s analysis, there is nothing to indicate that this issue (the “ELICOS” matter) was prominent, or that all the other matters informing the adverse credibility finding were subordinate to it.

12. Four, and in any event, the Tribunal’s finding here was open to the Tribunal to make. The Tribunal gave reasons probative of the evidence before it, including taking into account the applicant’s explanation. In these circumstances, even if this matter had been given some prominence over the other relevant matters (which is not the case), no legal error is revealed.

13. Ground one of the application asserts in its terms that the Tribunal failed to give the applicant procedural fairness and natural justice. The ground is unparticularised. It is, as the Minister submits, generic in nature.

14. I agree with the Minister that the complaint in the circumstances of this case, directs attention to Division 4 of Part 7 of the Act. Section 422B of the Act provides that the matters dealt with in that Division are the embodiment of the exhaustive statement of the natural justice hearing rule (Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; (2009) 176 FCR 53).

15. In this regard, the applicant was invited to a hearing pursuant to s.425 of the Act. The hearing was held over two occasions. On the evidence before the Court, the issues dispositive of the review were raised. The Tribunal put its concerns to the applicant and he was given the opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).

16. As set out above, in relation to the “ELICOS” matter, the Tribunal utilised the facility available through s.424AA of the Act to give to the applicant information caught by s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). The applicant was provided with the opportunity to comment on or respond to it (see [80] at CB 129).

17. The remainder of the information, which could be said to be information which the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision, was information that fell within the exceptions set out at ss.424A(3)(b) and (c) of the Act. Further, I note that the Tribunal’s adverse views as expressed in its reasoning are not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).

1. Before the Court, the applicant explained that his complaint in ground one was that it was unfair of the Tribunal not to believe him.

   
   

   In the circumstances, this seeks impermissible merits review

   
   

   (Wu Shan Liang). In all, ground one lacks merit such as to argue for the extension of time.

2. Ground two is unparticularised. Before the Court, the applicant explained that his complaint is that the Tribunal did not believe him in the matter of his English language study (the “ELICOS” matter). For the reasons set out above, this also lacks relevant merit.

3. Ground three is also unparticularised. Before the Court, the applicant explained that it was very difficult for him to “prove” that he was of homosexual orientation.

4. This can only be seen as a challenge to the Tribunal’s finding that he was not, in fact, of homosexual orientation. I note again that the Tribunal’s findings were reasonably open to it on the evidence before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). Ground three, therefore, also lacks relevant merit.

Conclusion: the Extension of Time

1. Ultimately, the grounds of the proposed substantive application and the applicant’s “complaints” before the Court lack merit such as to say that it is in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act. To do so in these circumstances would be an act in futility. The application to extend time should be refused. I will make an order accordingly.

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

Associate: 

Date:  29 September 2014