SZURU v Minister for Immigration

[2015] FCCA 1064

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1064

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

ADMINISTRATIVE LAW – Application for an extension of time to bring proceedings – allegation that the Tribunal’s decision affected by jurisdictional error by that the Tribunal was biased and failed to give the application further time to provide relevant evidence.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476, 477

SZNZI v Minister for Immigration [2010] FMCA 57
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal: ex parteH (2001) 179 ALR 425

Applicant: SZURU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1921 of 2014

Judgment of: Judge Smith

Hearing date: 13 March 2015

Date of Last Submission: 13 March 2015

Delivered at: Sydney

Delivered on: 29 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Senanayake of DLA Piper Australia

ORDERS

1. The time for making an application under s.476 of the Migration Act 1958 (Cth) be extended to 10 July 2014.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1921 of 2014

SZURU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order extending the period within which to bring proceedings in the Court’s jurisdiction under s.476 of the Migration Act 1958 (“Act”) in relation to a decision of the Refugee Review Tribunal (“Tribunal”) dated 30 May 2014.  The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

Extension of time

1. Section 477(1) of the Act provides:

   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. As the Tribunal’s decision was a migration decision and dated 30 May 2015, an application under s.476 of the Act had to be made by 4 July 2014. This application was filed on 10 July 2014, some six days out of time.

3. The Court has, under s.477(2), the power to extend the 35 day period in certain circumstances. That sub-section provides:

   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.

4. It is not in dispute that the first of those conditions is satisfied.  The issue then in the proceedings is whether the Court is satisfied that it is necessary in the interests in the administration of justice to make the order extending the 35 day period.

5. In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):

   [11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.

6. The applicant claims that he ought to be granted an extension of time because he had been very sick and attached to the application, a medical certificate from a Dr Jasvinder Kheray of the Auburn Family Medical Centre dated 9 July 2014.  That certificate appears to support the applicant’s claim that he was sick at the relevant time and I find that he was.  The Minister does not dispute the applicant’s assertion that he was sick but opposes the grant of an order extending time on the basis that there is insufficient merits in the application to warrant the extension of time.

7. In my view given that the delay is very minor indeed and there is a reasonable explanation for that delay, there ought to be an order extending the period of time within which an application may be made under s.476 of the Act so that the period is extended to 10 July 2014. In arriving in that conclusion I have taken into account the merits of the application as well as the fact that there is no asserted prejudice to the first respondent in the making of the order. Another matter that I have taken into account is the fact that if the order were refused the applicant would not have any avenue of appeal available to him and would be required to seek judicial review of my decision.

8. I now turn to determine the substantive application.

Background

1. The applicant is a citizen of India who arrived in Australia on 2 July 2009 and lodged an application for a protection visa some four years later on 14 June 2013.  He claimed that he feared death or maybe a life sentence from the “criminal Indian authorities”.  He claimed that he belonged to the Sikh Foundation (Daljit Singh Group) while he was studying at college, and while celebrating the memory of the sacrifice of the Sikhs on 2 June 1984 he was picked by the Indian police, interrogated and tortured for four days without food or drink.   He also claimed that he feared mistreatment at the hands of the police, BSF, terrorist groups like the Shiv Sena, the Bajrang Bergade and the BJP.  He claimed that all authorities are against Sikhism. 

2. The applicant later provided further documents to the Department of Immigration in support of his claims.  One of these was a letter dated 9 July 2013 from Yudhvir Bajaj who claimed to be the applicant’s lawyer in India and corroborated the applicant’s claims. Mr Bajaj further claimed that the police had harassed family members of the applicant and other persons.  Part of this harassment appears to have been the bringing of false cases with the intention of taking property belonging to the applicant.  Another document was addressed “To whom it makes concern” and stated that the applicant belonged to a “very religious and freedom fighter family” and that the troubles experienced by the applicant had also occurred to his father.  The applicant also submitted a handwritten letter to the Department that made certain allegations against his former migration agents (S&S Immigration).  The letter does not appear to bear any relevance to the claims for persecution within the meaning of the Refugee Convention. 

3. On 2 January 2014 a delegate of the Minister decided to refuse to grant the applicant a protection visa.  The delegate found that the applicant had not been engaged in any separatist activity associated with Sikh freedom fighting parties or groups, was not an active member of any Sikh student freedom group or that there was any evidence that he was from a Sikh freedom fighting background.

4. The applicant applied to the Tribunal for review of the delegate’s decision on 30 January 2014.  The applicant sent a handwritten letter to the Tribunal once again dealing with his former migration agents explaining that they had taken money from him in relation to another visa and run away to Canada.  In those circumstances he stated that he had no option left but to protect himself from the Punjab and Indian government due to political involvement in the freedom of the Punjab state.

5. The applicant was invited to attend a hearing by the Tribunal on 22 May 2014 but, at his request, that hearing was postponed due to his illness.  He eventually attended a hearing that was held on 27 May 2014.  The Tribunal made its decision on 30 May 2014 affirming the decision of the delegate.

6. The Tribunal found that the applicant was not a credible witness, that his evidence with regard to the key aspects of his claims was vague and, when asked for detail, his responses were hesitant, evasive and unclear.  The Tribunal continued to say that the applicant was confused and uncertain in the answers he gave to questions which, if the events claimed had taken place the Tribunal would have expected clearer answers and, in a number of matters, he provided inconsistent and contradictory evidence.  In addition the Tribunal found that the applicant’s claims were not supported by the available independent information which did not indicate that the authorities in the Punjab have in recent years had mistreated students involved in pro-Sikh student groups that peacefully advocated Sikh-related issues in the Punjab or mistreated the family members and children of separatist freedom fighters from the 1980s as claimed.  The Tribunal found that all of those instances undermined the applicant’s overall credibility and led the Tribunal to form a view that his evidence about those claims was not based upon his personal experience but were fabricated to strengthen his claims for protection.

7. The Tribunal placed no weight on the letter from the applicant’s lawyer principally because it was inconsistent with the applicant’s own evidence but also because of the Tribunal’s overall concerns about the applicant’s credibility. 

8. For those reasons the Tribunal did not accept that there was a real chance that the applicant would suffer serious harm for any reason if he returned to India now or in the reasonably foreseeable future and so found that he had no well-founded fear of persecution in India.

9. It also considered the further criterion in s.36(2)(aa) of the Act and found that there was not a real chance that he would suffer any harm of the nature claimed by him and thus did not satisfy the criterion for that provision. For those reasons the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and affirmed the decision of the delegate.

Consideration

1. Annexure 1 to the application before the Court appears to contain the grounds upon which the applicant relies in this application.  I agree with the first respondent’s submission that Annexure 1 appears to contain two grounds:

   a)the Tribunal was biased; and

   b)the Tribunal erred by failing to give the applicant more time to provide relevant evidence.

Ground 1

1. The applicant relies on actual bias in this case.  In Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said, at 532 [72]:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

   An allegation of actual bias must be distinctly made and clearly proved: Jia per Glesson CJ and Gummow J at [69] and Kirby J at [127].

2. There is nothing in the evidence before the Court to suggest any form of prejudgment by the Tribunal. It is clear from the Tribunal’s statement of reasons that during the hearing it put to the applicant a number of matters that were inconsistent with his claims. That, however, does not suggest that the Tribunal had made up its mind at that point. Rather, it merely indicates that the Tribunal was, in accordance with its obligations under s.425 of the Act, giving the applicant the opportunity to address issues that arose in review of the delegate’s decision. I reject the first ground.

3. Further, even if it were that the applicant was alleging a reasonable apprehension of bias the ground should be rejected.  There is nothing in the material before me that would cause a fair minded lay observer to reasonably apprehend that the Tribunal member did not bring an impartial mind to the proceeding: Re Refugee Review Tribunal: ex parteH (2001) 179 ALR 425 at [27]-[32].

Ground 2

1. The second allegation appears to be made on the basis that the Tribunal made its decision on 30 May 2014, only three days after the hearing conducted by the Tribunal.  There are three difficulties with this ground.  First, it was clear from the delegate’s decision that an issue on the review was whether or not any of the applicant’s claims would be accepted as credible.  Further, in a letter dated 31 January 2014 addressed to the applicant at the address given by him for correspondence, the Tribunal firstly acknowledged the application made by the applicant and in addition, noted:

   If you wish to provide material or written arguments for the tribunal to consider, you should do so as soon as possible.

2. In its letter dated 25 February 2014 inviting the applicant to appear before it, the Tribunal not only indicated it was unable to make a favourable decision on the information that it had before it at that stage but also indicated that additional documents, including new information, could be sent to the Tribunal.  The same point was made in the Tribunal’s letter dated 22 May 2014 in response to the applicant’s request for a postponement of the hearing.

3. Thus, it was not only clear to the applicant that the information he had provided to the Department might be insufficient to satisfy the Tribunal of his claim but he was aware that he had the opportunity to produce further information to the Tribunal.

4. The second difficulty is that there is no evidence before the Court that the applicant ever requested any further time in which to lodge further information.

5. The third difficulty is that there is no indication by the applicant of the nature of the material that he may have produced if given further time.

6. For each of those reasons, it was not unreasonable for the Tribunal to proceed to making a decision on 30 May 2014 even though it was only three days after the hearing conducted by the Tribunal.

Conclusion

1. For those reasons, both of the grounds of the application are rejected.

2. There is no jurisdictional error in the Tribunal’s decision and the application will be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  29 April 2015