SZUPH v Minister for Immigration

[2014] FCCA 2353

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2353

Catchwords:
MIGRATION – Application to review a decision of the Refugee Review Tribunal filed out of time – refusal of an extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 477

Minister for Immigration v Jia Legeng (2001) 205 CLR 507
PrasadvMinister for Immigration (1985) 6 FCR 155

Applicant: SZUPH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1773 of 2014

Judgment of: Judge Driver

Hearing date: 15 October 2014

Delivered at: Sydney

Delivered on: 15 October 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms H Dejean

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1773 of 2014

SZUPH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 27 June 2014 seeking a judicial review of a decision of the Refugee Review Tribunal (Tribunal). The Tribunal decision was made on 20 January 2014. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The application before the Court was filed more than four months outside the period prescribed for such an application under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Knowing that, the applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. The Minister opposes that extension.

2. The matter came before me for a first court date directions on 24 July 2014.  The applicant initially failed to appear but did appear at 10.15am on that day before the matter had been resolved.  I ultimately made orders by consent giving the applicant the opportunity to file and serve additional material and an amended application.  I listed the matter for an extension of time hearing today.  The applicant has not taken up the opportunity to file and serve an amended application.  The application as filed contains grounds for seeking the extension of time:

   1. The Tribunal member did not accept me as a credible witness and rejected my claims without making any inquiry. The Tribunal had no jurisdiction to make the said decision because reasonable satisfaction was not arrived in accordance with the requirements of the Migration Act.

   2. RRT made judicial mistake because he didn’t consider my evidence.

3. The grounds of challenge to the Tribunal decision are:

   1. The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a Christian woman in Pakistan was at risk of harm from radical Muslims, and not able to access effective protection.

   2. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of her claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

   3. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from her ex-husband.

   4. The Tribunal failed to investigate applicant claim, specially the grounds of persecution in Pakistan.  Therefore, the Tribunal decision dated 20 January 2014 was effected by actual bias constituting judicial error.

4. That application is supported by an affidavit filed with it which I received.  That affidavit does not assist me in dealing with the extension of time request.  The applicant filed a second affidavit on 23 September 2014.  She relies upon that affidavit.  Most of the documents annexed to that affidavit relate to the applicant’s protection claims and her general circumstances which the applicant believes justify humanitarian consideration of her case.  The applicant was not required for cross-examination on her affidavits.

5. I also have before me as evidence the book of relevant documents filed on 21 July 2014 and a letter to the Minister for Immigration by a Mr Garry Ferris dated 29 September 2014 written in support of the applicant’s wish for ministerial intervention pursuant to s.417 of the Migration Act.

6. In order to grant the extension of time the applicant seeks, the Court would need to be satisfied that the extension of time was required in the interests of the administration of justice. The applicant’s delay in coming to court is a significant one. The applicant’s only explanation for that delay is that she was seeking ministerial intervention pursuant to s.417. The documents annexed to the applicant’s second affidavit include a letter to the court in which the applicant explains that she received legal advice to seek ministerial intervention. She also refers to what she describes as “mental sickness” due to the Tribunal decision. From the bar table the applicant told me that she was taking anti-depressants and has difficulty sleeping. I accept that the applicant is stressed by her circumstances. That stress, however, is stress that would be felt by anyone in her circumstances.

7. Also attached to the applicant’s second affidavit is a letter from Clare Docker, job adviser at the Employment Assistance Service.  That letter is dated 12 February 2014 and supports the applicant’s request for ministerial intervention.  The Minister’s solicitor pointed out that the response to that request is contained in pages 134 and 135 of the Relevant Documents.  That is a letter from the Minister’s Department to the applicant dated 3 June 2014.  The letter advises that the Assistant Minister for Immigration and Border Protection had personally considered the case and had decided that it would not be in the public interest to intervene. 

8. The letter dated 29 September 2014 from Mr Ferris to the Minister must be seen as a fresh request.  There was no indication of any outcome to that request.  The applicant told me from the bar table in the course of delivery of my reasons that Mr Ferris’ letter was written but never sent.  That is not something that I can comment on because I do not know.  What I do know is that the applicant asserts that her original request for ministerial intervention was undertaken on legal advice.  In the circumstances, I am not persuaded that the applicant’s choice to pursue ministerial intervention rather than to come to court is a satisfactory explanation for the delay. 

9. Even if I had been so persuaded, the judicial review application does not raise a serious question to be tried.

10. The Minister’s submissions set out the background to the applicant’s protection claims and the Tribunal decision on them. 

11. The applicant is a citizen of Pakistan who arrived in Australia on 18 March 2011 on a student visa. On 31 August 2012, the applicant lodged an application for the visa,[1] which was refused by the delegate on 5 April 2013.[2]

    [1] Relevant Documents (RD) filed 21 July 2014, pp 1-111.

    [2] RD, pp 118-133.

12. On 1 May 2013, the applicant applied to the Tribunal for review of the delegate’s decision.[3] She appeared before the Tribunal on 15 January 2014.[4] On 20 January 2014, the Tribunal affirmed the decision not to grant the applicant the visa.[5]

    [3] RD, pp 136-141.

    [4] RD, pp 163-165.

    [5] RD, pp 173-184.

Applicant’s claims

1. The applicant claimed to fear harm if returned to Pakistan because of her religion and the increased presence of the Taliban in Pakistan. She also claimed to fear harm by reason of a forced marriage to a Muslim and subsequent divorce instigated by her, but organised by her sister. She fears harm from her ex-husband and his family; the Taliban for being a Christian, and from Christians for having married a Muslim.

Tribunal decision

1. The Tribunal affirmed the decision of the delegate, finding that the applicant’s evidence was not credible in several key aspects.[6]

   [6] RD, p 181 at [41].

2. The Tribunal considered that the applicant’s claim to have been forced into marriage was not credible as it did not make sense that her ex-husband would have been able to force her to marry him when she gave evidence that her parents and those of her ex-husband were against the marriage for religious reasons.

3. In addition, the Tribunal found that the applicant was evasive about the details of her divorce and rejected her claim that the divorce was instigated by the applicant against her ex-husband’s will.[7]

   [7] RD, p 183 at [51].

4. The Tribunal did not accept the marriage was forced upon the applicant. In this regard, the Tribunal noted that the marriage coincided with the granting of a student visa and a dependant student visa to her ex-husband suggesting that the marriage was one of convenience for the purposes of a migration outcome. The Tribunal found that the applicant would not face any harm now or in the future as a result of the marriage or divorce.

5. The Tribunal accepted the applicant was a Christian although concluded, on the basis of country information, that she would be able to practise her religion on return to Pakistan without fear of harm.

6. For the reasons above, the Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.

7. The Tribunal then considered whether the applicant met the alternative criteria at s.36(2)(aa) of the Migration Act, however was not satisfied that she would suffer any significant harm by reason of the practice of her religion as there was a fair degree of religious tolerance where she had lived, and consequently found that the applicant did not satisfy this criteria.[8]  Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.

   [8] RD, pp 183-184 at [56]-[59].

8. The Minister’s submissions deal with the grounds of review raised in the application before the Court.  I agree with those submissions and adopt them.

9. Ground 1 of the application asserts that the Tribunal did not consider whether a Christian woman in Pakistan was at risk of harm from radical Muslims, and not able to access effective protection.  This ground is without merit.  The Tribunal clearly dealt with this claim and concluded that there was not a real chance that she would face any harm on this basis.

10. Ground 2 asserts that the Tribunal reached conclusions on the applicant’s evidence that were not open on the known material and the Tribunal failed to provide the applicant with an opportunity to be heard on the issues.  The applicant has not particularised what conclusions of the Tribunal were not obviously open on the known material and, in any event, the Tribunal raised with the applicant at the hearing its concerns over her marriage and the circumstances of her divorce, which were central to her claims.[9]

    [9] RD, pp 178-179 at [31], [34]-[35].

11. Ground 3 asserts that the Tribunal did not take into account “the full gravity of the applicant’s circumstances and consequences of claims”. The applicant specifically claims that the Tribunal did not consider that the applicant “had been under immense and intimidating pressure from her ex-husband.”  This ground is without merit. The Tribunal provided reasons for rejecting her claim that she had been forced into marriage.  The Tribunal found that it was implausible that the applicant was forced into marriage given their families did not agree to the marriage. The Tribunal also considered the marriage was of convenience to achieve a particular outcome on their visa applications.[10]

    [10] RD, p 182 at [45]-[49].

12. Ground 4 of the application contains two arguments: that the Tribunal failed “to investigate” the applicant’s claims, and that the Tribunal was affected by actual bias.

13. The Tribunal is under no general duty to make out the applicant’s case.[11]  Further, the Tribunal considered all of the applicant’s claims and provided reasons as to why it did not accept her claims. The Tribunal’s findings were open to it for the reasons it gave, on the material before it.

    [11] PrasadvMinister for Immigration (1985) 6 FCR 155 per Wilcox at 169-170.

14. In relation to the allegation of actual bias, the applicant has not provided any particulars or evidence of this allegation and, without such, the allegation of actual bias cannot be made out.[12]  Further, there is no bias apparent on the face of the available material.

    [12] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [71]-[72].

15. I conclude that the interests of the administration of justice do not require the granting of an extension of time.  I will, therefore, order that that the extension of time application be refused.  It follows that the substantive application filed is incompetent.

16. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the court scale.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  16 October 2014