SZUHM v Minister for Immigration

[2016] FCCA 1578

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1578

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

MIGRATION – Application for extension of time to bring proceedings – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZTMX v Minister for Immigration & Anor [2016] FCCA 1280
SZTOX v Minister for Immigration & Border Protection [2015] FCAFC 77 Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35

Applicant: SZUHM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1211 of 2014

Judgment of: Judge Cameron

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Sydney

Delivered on: 4 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B. Griffin of Australian Government Solicitor

ORDERS

1. The applicant’s application for an extension of time within which to bring these proceedings be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1211 of 2014

SZUHM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia on 22 May 2010.  On 1 March 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Nepal because of his political opinion.  On 20 May 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  On 16 January 2012 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.  The applicant’s application for judicial review of the Tribunal’s decision was dismissed by order of this Court on 31 July 2012.  The applicant then appealed to the Federal Court and on 3 December 2013 the Federal Court made orders by consent remitting the matter to the Tribunal to be determined according to law.  On 26 March 2014 the Tribunal, reconstituted, again affirmed the delegate’s decision to refuse the applicant a visa.

2. On 6 May 2014 the applicant applied to this Court for judicial review of the second Tribunal decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and so the applicant has applied for an extension of that limitation period.

3. For the reasons which follow, the application for an extension of the time within which to bring these proceedings will be dismissed.

APPLICATION FOR EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced these proceedings it relevantly provided:

   477Time limits on applications to the Federal Circuit Court

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

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)In this section:

   date of the migration decision means:

   (a)…

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The Tribunal’s decision was dated 26 March 2014 which means that the applicant had until 30 April 2014 to commence these proceedings. As the application was not filed until 6 May 2014, it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. In the circumstances of this case, that question will be determined by whether the allegations made in the substantive application for judicial review have reasonable prospects of success and whether the applicant has provided a satisfactory explanation for the delay in commencing the proceedings.

Satisfactory explanation for delay

1. At the hearing of this application the applicant relied on what he had set out in his application filed on 6 May 2014 in support of his application for an extension of time, namely:

   1.Family problems: As I have got little one who is having problem time to time.

   2.Unemployment:     As I have no job this time for a long period so I am really disturbed and would not concentrate with anything else.

   3.I would like to request for extension because I am going through bad time at the moment so could not manage everything on the same time.

2. The applicant also submitted that he had problems with “the right place to go” because at the time he filed the application he had been unemployed for a period and had been unable to afford to pay a solicitor. He also submitted that at the time he lodged his application he had been told by acquaintances that the thirty-five day time limit prescribed by s.477 of the Act did not include weekends.

3. As the Minister did not seek to cross examine the applicant on what he said from the bar table, and he was therefore not required to give evidence in a formal sense, I accept the truthfulness of what he did say from the bar table.

4. Notwithstanding the Minister’s implicit concession in that regard, he submitted that the Court would not accept that the applicant had provided a satisfactory explanation for the delay in commencing the proceedings.  However, I am satisfied that the personal difficulties suffered by the applicant at the relevant time satisfactorily explain the delay in commencing this case. 

Reasonable prospects of success

1. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring these proceedings, it was necessary that the applicant demonstrate that he had reasonable prospects of proving that the Tribunal’s decision on his visa application was affected by jurisdictional error.

2. I have concluded that he has not done so.

The Tribunal’s decision and reasons

1. The applicant’s claims as set out in his protection visa and before the delegate and the first Tribunal were summarised by the Minister in his written submissions as follows:

   The applicant claims to fear harm from Maoists in Nepal.  He claims that his father, a senior member of the Communist Party of Nepal (Unified Marxist Leninist) (CPN­UML), was injured in a scuffle with Maoists.  As a result of this injury his father was disabled.  The applicant stated that his elder brother was murder [sic] by Maoist extremists.  He claimed that in 2007, Maoists captured his father’s land, and in April 2008, Maoists threatened to kill the applicant because he was encouraging his village members to report them to police.  Further, the applicant claimed that he formally became a member of CPN-UML in April 2009 and that on 20 March 2010, he was abducted by the Maoists and released 5 days later.  Finally, the applicant claimed that in April 2010 Maoist extremists raided the applicant’s family house in [the applicant’s home village].  The applicant then went to [named city].  He was followed by Maoists to [a named city] and from there he went to [a second city] and then to Kathmandu where he went into hiding until he departed for Australia.

2. The applicant’s further claims at a Tribunal hearing on 21 March 2014 were also summarised by the Minister as follows:

   8.1.he confirmed that the details in his statement to the delegate were an accurate summary of his claim for protection.

   8.2.he claimed that he could not return to Nepal in 2014 as he would still be a target for Maoists and would face more difficulties now that he had a wife and child.

   8.3.in response to the Tribunal’s concerns that he and his father both remained at the family home in [the applicant’s home village] at a time when serious threats were allegedly being made against them, the applicant claimed that after his father was released from hospital his family took him to [named city] for a couple of months.  The applicant also claimed that it was difficult to leave because of their family connection in [their home village] and that his father was a prominent business man.

   8.4.in response to the Tribunal’s concerns that part of the applicant’s claims about theft were identical to another [protection visa] applicant from Nepal, he explained that it was not surprising that someone else made claims about Maoist theft of agricultural land.  The applicant stated that it was coincidental that the language and description of events were used by another applicant.

   8.5.he accepted that he would be able to enter and reside in India.  However, he would not be able to own property and live safely.

   8.6.he claimed that he would be risk in India because of his political views.  The applicant said that because of the open border, Maoists from Nepal would follow him and persecute him in India.

   (references omitted)

3. I adopt that summary.

4. After discussing the claims made by the applicant and the evidence before it, the Tribunal expressed doubts over the credibility of the applicant’s account.  However, for reasons concerning the availability of safe third country protection in India, the Tribunal did not find it necessary to reach conclusions on whether Australia had protection obligations towards the applicant under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s findings on the availability of protection to the applicant in India were summarised by the Minister in the following terms which I adopt:

   Third country protection in India

   10.With reference to Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, the Treaty of Peace and Friendship between India and Nepal 1950 (the Treaty) and various country information, the Tribunal was satisfied that as a matter of practical reality the applicant has a right to enter and reside in India.

   Risk of serious or significant harm in India

   11.The Tribunal proceeded to consider the risk of the applicant suffering Convention­related persecution or significant harm in India.  It had no information before it to indicate that Nepalese Maoists target Nepalese migrants in India. The Tribunal raised this with the applicant.  The applicant explained that the Maoists were still threatening him and that they would get him wherever he goes.  The Tribunal gave the applicant the opportunity to provide additional material and/or information, however, the applicant said that he did not have any information to support this claim.

   12.The Tribunal considered whether the applicant would be harmed in India by Indian Maoists.  The Tribunal had no information to suggest that Indian Maoists pursue Nepalese citizens in India at the behest of Nepalese Maoists.

   13.The Tribunal concluded that there was not a real chance the applicant would face harm from either Nepalese or Indian Maoists on account of his support for and/or involvement with the CPN-UML.  The applicant raised no other concerns about being able to live in India, apart from saying it would be difficult for him to live in India.  The Tribunal was not satisfied that the applicant has a well­ founded fear for a Convention relation related persecution in India or that there were grounds for believing that, as a necessary or foreseeable consequence of him availing himself of his right to enter and reside in India, there would be a real risk that he will suffer significant harm.

   14.The Tribunal was satisfied that the applicant has a right to enter and reside in India and that he is not subject to the qualifications in ss 36(4), (5) or (5A) of the Act and has not taken any steps to avail himself of his right to enter and reside in India.

   (references omitted)

Ground of application

1. In his application commencing this proceeding the applicant alleged:

   1.The Second Respondent made jurisdictional error by filing [sic] to consider an integer of the Applicant’s claim namely he can go and stay in India with all the freedom.

   2.The Second Respondent made jurisdictional error by filing [sic] to consider an integer of the Applicant’s claim namely, though Applicant have access to go and reside in India but Applicant can’t have all the rights as citizen of India and not allow for Rasan Card which we consider as a photo id here in Australia.

   3.The Second Respondent made jurisdictional error by filling [sic] to consider an integer of the Applicant claim as Applicant can’t take a risk of his little baby girl and his partner staying in India as far he know it’s a real risk over there.

   4.The Second Respondent made jurisdictional error by filling [sic] to consider an integer of the Applicant claims as India have their own Maoist problem in most of the part of India which will put Applicant in real risk of life.

   5.The Second Respondent made jurisdictional error by filling [sic] to consider as Applicant claims there are several incident regarding Nepalese people staying in India having lots of problems with discrimination on base of castes, religions, colour etc.

Relevant legislation

1. Section 36 of the Act relevantly provides:

   36  Protection visas—criteria provided for by this Act

   …

   (3)  Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

   (4)  However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

   (a) the country will return the non‑citizen to another country; and

   (b)  the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

2. The meaning and operation of those provisions were summarised by Judge Manousaridis in SZTMX v Minister for Immigration & Anor [2016] FCCA 1280 at [21] to [24], which summary I respectfully adopt.

Allegations generally

1. Generally the applicant’s allegations invite the Court to review the merits of the applicant’s visa application, something which the Court is not empowered to do. To that extent, the grounds of the application to this Court do not disclose a basis upon which the Tribunal’s decision might be set aside.

2. Nevertheless, some matters requiring specific consideration do arise out of the allegations in the application and the applicant’s address to the Court at the hearing of this matter.

Situation in India

1. The applicant referred to country information and questioned the Tribunal’s finding that there was a lack of objective information to indicate that a Nepalese citizen living in India would not be at risk of harm because of his or her association with a Nepalese political party.  He also questioned the Tribunal’s conclusion that he therefore did not face a real chance of harm from Nepalese or Indian Maoists on account of his support for or involvement with the CPN-UML.

2. The country information relied on by the Tribunal was identified by it in its decision record and relevantly included material such as a UK Home Office report and an annual report of the Indian Ministry of Home Affairs.  The evidence which the Tribunal chooses to rely on and the weight it accords to that evidence is a matter for it and not one which the Court can review unless those choices and the weight accorded would not have been made or given by any reasonable decision-maker.  No cogent reason was advanced as to why the Tribunal should not have given weight to that information and none is discernible.

3. The applicant did imply in his address to the Court that in place of the information it cited the Tribunal should have preferred material which he had supplied to the Department and which was reproduced at pp.32-48 of the Court Book. However, when taken to that material the applicant conceded that those documents related to his claims concerning Nepal, not with circumstances in India.  They were, for that reason, not relevant to the issue which determined the Tribunal’s review.

4. Additionally, both in the application and in his address to the Court the applicant contended that it was not safe for him to go and live in India.  He submitted in this connection that neither he nor his family would enjoy there the quality of life, including the access to medical care, which they enjoy in Australia; in particular they would not have the same rights as Indian citizens.  Those submissions invited impermissible merits review and so did not disclose a basis to set the Tribunal’s decision aside.

Concerns for wife and daughter

1. It is not apparent that the applicant made any claims concerning the significance for his wife of a move to India although he did tell the Tribunal that it would be more difficult for him with a wife and child, presumably in comparison to living there alone.  As a result the allegation that the Tribunal did not consider a claim related to the applicant’s wife cannot be made out.

2. The applicant did express to the Tribunal concerns for his daughter and her need for continuing medical treatment but did not do so in the context of an associated fear of Convention-related persecution.  To the extent that these concerns might have reflected a claim by the applicant to fear significant harm, the Tribunal considered the issue at para.36 of its reasons.

Fear of Indian Maoists

1. Contrary to the applicant’s contention that the Tribunal did not consider his claim that if he were to live in India he would face harm at the hands of Indian Maoists, para.33-35 of the Tribunal’s reasons show that it did.

Other matters – practical reality

1. The Minister referred to the Tribunal’s statement in para.29 of its reasons that the applicant had, “as a matter of practical reality”, the right to enter and reside in India.  That statement might be indicative of error if the Tribunal was thereby referring to concepts of effective protection.  However, my reading of the passage in question is that the Tribunal was not saying anything about protection as such but was simply saying that the applicant would be able to enter and reside in India if he sought to do so, even if perhaps no enforceable right to that effect existed.  It should be noted in this regard that, unlike the situation in SZTOX v Minister for Immigration & Border Protection [2015] FCAFC 77, in this case the Tribunal specifically referred to the decision of the Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 and its reasons reveal an understanding of the relevant statement of the law made in that case.

Other matters – post hearing submission

1. Without leave, by email dated 25 June 2016 the applicant wrote to the Court on the subject of his daughter’s health.  As the submission was made without leave it will not be considered.  In any event, it raised questions going to the merits of the visa application, not to whether the Tribunal’s decision was affected by jurisdictional error.

CONCLUSION

1. Although the applicant has provided a satisfactory explanation for his delay in commencing these proceedings, for the reasons set out above I am not persuaded that he has reasonable prospects of demonstrating that the Tribunal’s decision was affected by jurisdictional error.

2. Consequently, the application for an extension of time to bring these proceedings will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 4 July 2016