SZVCW v Minister for Immigration

[2015] FCCA 2830

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2830

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2)

SZBEL v Minister for Immigration and MulticulturalAffairs [2006] HCA 63; (2006) 228 CLR 152
SZQGO v Minister for Immigration and Citizenship & Anor [2012] FCA 177; (2012) 125 ALD 449
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252

Applicant: SZVCW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2615 of 2014

Judgment of: Judge Manousaridis

Hearing date: 20 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitors

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2615 of 2014

SZVCW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 13 August 2014, and the applicant filed his application for judicial review on 22 September 2014. The applicant, therefore, is some 5 days out of time.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act, the Court may order the extension of the 35-day period if it is satisfied of two things. First, the application for such an order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   [1] [2013] FCA 1284; (2013) 139 ALD 252 at [47])

   [47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b) Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

3. In most cases, the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship & Anor in the context of extending time for making an appeal, the “Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2]

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

Explanation for delay

1. The applicant asserts in his application that his application “...was sent to wrong address”. The applicant provided a further explanation in his affidavit made on 14 September 2014. In that affidavit the applicant asserts the following:

   Sorry for delaying my application there is reason behind delaying the application. I send my application under 35 days to federal circuit court. But there is in the building two courts federal circuit court and federal family court. AND accidently my application went to federal family court instead of federal circuit court. When they sent me back the application back [sic] it was too late to send you and days were over. It’s all australian Post Office fault. But I have a proof they stamp all the pages.

2. The applicant was cross-examined. He said he posted the application to an address which he believed was the address of this Court’s registry which he obtained from the Internet. The applicant said that the application was returned to him near the end of the 35-day period and he then attended the registry and filed the application at the earliest opportunity.

3. The applicant’s explanation is supported by two pieces of evidence. The first is the presence of a “Received” stamp apparently imprinted by an officer of the Family Court Registry with the date “16 Sep 2014”. The second is a “With compliments slip” from the Family Court of Australia and this Court with the handwriting “Sent to the wrong Registry”.

4. I accept the applicant’s explanation; and I am satisfied there is a reasonable explanation for the applicant’s failure to make his application within the 35-day period prescribed by s.477(1) of the Act.

5. The next matter to consider is whether the application would have merit if I were to order an extension of time. To determine that issue it is necessary to set out the applicant’s claims for a Protection visa, and the grounds on which the Tribunal did not accept those claims.

Applicant’s claims for protection

1. The applicant is a citizen of India and a Hindu. In his application for a Protection visa, the applicant claimed he had an affair with a girl of a different caste (the girlfriend). For that reason, he received threats while he was in India, and local goons threatened him and his family. He claimed he feared he will be killed if he returns to India.

2. Before the Tribunal the applicant gave evidence that he met the girlfriend in June 2007 while attending college. He described the girlfriend as a Sikh. After a few weeks the applicant and the girlfriend began a relationship and, in around September 2007, the applicant ceased his studies because he did not wish to draw any unwanted attention to their relationship.[3] They continued dating, meeting regularly until June 2008 when the girlfriend’s father, brother, uncle, and family friend came to the applicant’s home, where they “pushed him, held his collar and threated him not to see [the girlfriend] again”.[4] The applicant’s parents did not report this to the police because the girlfriend’s family was connected to politicians, and the police would not assist. A few days later the applicant saw the girlfriend at the market and spoke with her. Hours later, the girlfriend’s brother and friends found the applicant and slapped and punched him for speaking to her. They told the applicant he must leave India otherwise they would kill him.

   [3] CB98, [8]

   [4] CB98, [8]

3. The next day the applicant received a telephone call from the girlfriend’s brother, who told him to meet him at a shop. When he arrived the applicant saw the girlfriend’s brother was accompanied by his friends who told the applicant he must leave India or they would kill him. The applicant explained to the group he needed time to make the necessary arrangements. The applicant left India. He did not see any member of the girlfriend’s family before he left India. The applicant, however, believed he was being watched up until his departure.

4. The applicant said he applied for a Student visa to come to Australia to escape from the family of the girlfriend. While in Australia, the applicant learned from his brother than the girlfriend’s brother approached the applicant’s brother to find out where the applicant was. In 2012 the applicant was told the girlfriend’s brother’s friends were at a place where the applicant’s sister had married. The applicant understood these people went there to see if the applicant had returned to India.

5. The applicant made an application for a Protection visa in June 2013. He made that application after he met a woman who told him about protection applications. The applicant said that before that time he did not seek advice from a lawyer, agent, or qualified professional.

Tribunal’s reasons

1. The Tribunal did not accept the applicant to be a witness of truth. First, the Tribunal found that the applicant’s inaction in seeking advice about his position in Australia after 2009 and the inordinate delay in seeking protection had not been explained, and reflected poorly on his credibility.

2. Second, the applicant gave evidence to the Tribunal which he did not give before the delegate, or which was inconsistent with evidence he gave before the delegate.

   a)Before the delegate the applicant claimed he met the girlfriend in 2007 and commenced his relationship with her in 2008, while before the Tribunal the applicant claimed their relationship started in 2007 before he left college in September 2007.

   b)Before the delegate the applicant said he was threatened by the girlfriend’s father, brother and his friends. Before the Tribunal the applicant claimed it was only the girlfriend’s brother and his friends who threatened him. When the Tribunal put this inconsistency to the applicant, the applicant asserted he “was not sure if the father was present” and that “he was scared at his interview with the delegate and that was why he said the father was there”.[5]

   c)Before the Tribunal the applicant said that the girlfriend’s brother called the applicant and told him to go to a shop in the market, whereas the applicant did not mention this before the delegate. The Tribunal put this omission to the applicant, who claimed that he had mentioned this to the Tribunal “because he was questioned about what happened; he suddenly remembered it and it had been a long time since the incident happened”.[6] In response to this claim the Tribunal member listened to the audio recording of the interview with the delegate, finding that the applicant was provided with an opportunity to advance such claims before the delegate.[7]

   d)In his application for a Protection visa, the applicant referred to the girlfriend being of a different “caste” to him and living in a society where a “caste” system continues to operate. Before the Tribunal, the applicant referred to his girlfriend being a Sikh.[8]

   [5] CB99, [15]

   [6] CB100, [16]

   [7] CB100, [17]

   [8] CB100, [18]-[19]

3. Based on these matters, the Tribunal did not believe the applicant’s claims that he met and was in a relationship with a Sikh woman; that members of the girlfriend’s family threatened, followed or assaulted him; and that after arriving in Australia members of his family continued to be threatened. The Tribunal also did not accept that after the applicant arrived in Australia members of the girlfriend’s family sought to monitor his whereabouts.

The hearing before the Court

1. The application contains eight proposed grounds of review. At the hearing before me I inquired of the applicant, who is not legally represented, whether, in addition to making whatever submission he wished to make in support of his application to extend time, he wished to make submissions in relation to each of the eight grounds. He informed me that he did not wish to make submissions in relation to each of those grounds. Instead, the applicant made submissions without reference to those grounds. He addressed three subjects.

2. The first related to the Tribunal’s not accepting the applicant’s evidence and, in particular, the Tribunal’s not accepting the applicant because of the applicant’s having mentioned matters at the hearing before the Tribunal which he had not mentioned before the delegate. The applicant submitted he was nervous before the delegate and for that reason did not mention the matters which he mentioned before the Tribunal.

3. This submission raised no arguable case of jurisdictional error. It repeats the substance of a submission the applicant made to the Tribunal which I have set out above, namely, he was scared at the interview with the delegate. As I have already noted, the Tribunal considered that submission. It found that the claim the applicant “was scared at his interview with the delegate and his vagueness about whether or not the woman’s father was present were unconvincing”.[9] The Tribunal also found, after listening to the audio recording of the applicant’s interview with the delegate, that the applicant had the opportunity to advance the matters which he mentioned before the Tribunal.[10]

   [9] CB100, [17]

   [10] CB100, [17]

4. The applicant also submitted that a long period had elapsed between his arriving in Australia in 2009 and his interview with the delegate in 2013. There is nothing in the Tribunal’s reasons for decision that indicates the applicant made any such submission to the Tribunal. The Tribunal’s reasons for decision refer to the applicant’s having said he had forgotten to tell the delegate about the girlfriend’s brother inviting him to a shop in the market area. In any event, that a large period of time elapsed between the time the applicant arrived and his being interviewed by the delegate and by the Tribunal does not raise any arguable ground of jurisdictional error by the Tribunal.

5. The applicant also submitted that he had a genuine fear of returning to India because, if he did not have such fear, he would have returned to India to attend his sister’s wedding. The applicant submitted that he made that submission before the Tribunal. The Tribunal’s reasons for decision do not refer to the applicant having made any such submission. In the absence of a transcript, I am not prepared to accept the applicant made such submission to the Tribunal.

6. The second area about which the applicant made submissions related to the Tribunal’s reliance on the applicant’s having initially claimed that the girlfriend was of a different caste from him but before the delegate and the Tribunal the applicant claimed the girlfriend was a Sikh. The applicant submitted that for him there was no difference between the meanings of caste and religion. Even if I were to accept that statement, that would not raise any arguable case of jurisdictional error. In any event, the Tribunal put to the applicant that his evidence was inconsistent with his application because he claimed the girlfriend was not from a different “caste” but from a different “religion”. In response the applicant asserted that caste and religion meant the same thing and claimed that this error in description was his agent’s fault. The Tribunal did not accept that explanation.[11] It is beyond argument it was reasonably open to the Tribunal not to accept the applicant’s explanation.

   [11] CB100, [18]-[19]

7. The third area about which the applicant made submissions relates to the applicant claiming that the Tribunal asked the applicant why he could not relocate elsewhere in India. The applicant submitted to me that he faced danger wherever he went in India. This, too, does not raise any arguable case. Whether or not the Tribunal asked the question the applicant says it asked, the Tribunal did not make any finding about the possibility of the applicant’s relocating in India. There was no need for the Tribunal to make such finding because the Tribunal did not accept the applicant was a witness of truth.

8. None of the submissions the applicant made at the hearing before me, therefore, satisfy me the applicant has any prospect of obtaining the relief which he seeks in relation to the Tribunal’s decision. This, then, leads me to the proposed grounds stated in the application.

Proposed grounds of application

1. The application contains eight proposed grounds of application. The first is:

   The Refugee Review Tribunal erred in its judgment that applicant’s evidence regarding his problems in India are exaggerated and applied protection visa to stay in Australia.

2. This ground implies the Tribunal found that the applicant’s evidence regarding his problems in India were exaggerated and that the applicant applied for a Protection visa to stay in Australia. The Tribunal made no finding that the applicant exaggerated any evidence about problems he had in India. The Tribunal’s finding was that it did not believe the applicant had any of the problems he claimed he had in India. Nor did the Tribunal make any finding to the effect that the applicant applied for a Protection visa for the purpose of staying in Australia. The Tribunal’s simply did not accept the applicant’s evidence. The first proposed ground of application, therefore, does not raise any arguable case of jurisdictional error.

3. The second proposed ground is:

   The Refugee Review Tribunal erred in its judgment that applicant is not a witness of the truth.

4. This ground has no merit. It only manifests disagreement with the Tribunal’s finding that the applicant was not a witness of credit and thus invites this Court to undertake merits review. It was reasonably open to the Tribunal not to accept the applicant was a witness of credit for the reasons on which it relied.

5. The third proposed ground is:

   The Refugee Review Tribunal erred in its judgment by giving more consideration to the applicant inconsistency with his evidence to the department and delayed in lodging his protection visa application.

6. This ground also has no merit. It does not identify the matter or matters in relation to which the applicant claims the Tribunal gave more consideration to the applicant’s inconsistent evidence and delay in lodging his application for a Protection visa. In any event, to the extent there were other matters, it was within the Tribunal’s jurisdiction to determine the weight it should give to what it found to be the applicant’s inconsistent evidence and delay.

7. The fourth proposed ground is:

   The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims were false and were not obviously open on the know [sic] material.

8. There is no merit in this proposed ground. The delegate did not accept the applicant was a witness of truth. The applicant, therefore, was on notice that the credibility of his claims was an issue before the Tribunal. In those circumstances, the Tribunal was not obliged to inform the applicant that it may not accept the applicant to be a witness of truth. Further, as was said by the High Court in SZBEL v Minister for Immigration and MulticulturalAffairs:[12]

   If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?” rejection of some or all aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision, but if the issues are to be identified more particularly, other questions arise.

   [12] [2006] HCA 63; (2006) 228 CLR 152 (at [39])

1. Before the Tribunal, the issue that arose on the applicant’s application for review of the delegate’s decision was defined no more particularly than whether the applicant was entitled to a Protection visa. In those circumstances, rejection of some or all aspects of the applicant’s account of past events said to ground his fears of persecution were self-evidently a conclusion that was open to the Tribunal.

2. The fifth proposed ground is:

   The Refugee Review Tribunal erred in its judgment that applicant’s involvement with the Sikh girl or applicant immediate family members were not harmed. The Tribunal has not considered this aspect and made factual and legal error.

3. This ground is difficult to understand. It appears to claim that the Tribunal did not consider whether, because of the applicant’s involvement with the Sikh girl, the applicant or his family were not harmed. If that is the ground, the Tribunal was not obliged to consider any such question; that is so because the Tribunal did not accept the applicant’s evidence of his having any girlfriend that gave rise to the applicant’s suffering any of the harms he alleged he suffered or feared he would suffer.

4. The sixth proposed ground is

   The Refugee Review Tribunal erred in its judgment by not properly applying complementary protection provision and merely considers claims are based on false information.

5. The claim is the Tribunal failed properly to apply the complimentary protection criteria because the Tribunal only considered the applicant’s claims on the basis he gave false information. There is no merit in this claim. The Tribunal did not find the applicant provided false information; the Tribunal simply did not accept the applicant was a witness of truth and, for that reason, did not accept the factual assertions on the basis of which the applicant claimed fear of persecution and harm. Having not accepted the applicant as a witness of truth, there were no facts which the Tribunal accepted by reference to which it could assess whether the applicant was entitled to complimentary protection.

6. The seventh proposed ground is:

   The Refugee Review Tribunal failed to investigate applicant’s claim, specially [sic] the grounds of persecution in India. Therefore the RRT decision dated 14/08/2014 was affected by bias constituting judicial error.

7. The Tribunal has no general duty to investigate matters that are raised by an applicant for review. At most, the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained.[13] There is nothing in the material before me that arguably indicates there was an alleged fact before the Tribunal whose existence could have been easily ascertained, but about which the Tribunal failed to make any inquiry. Nor is there anything before me that arguably indicates the Tribunal’s decision was affected by bias or apparent bias. The proposed seventh ground of review, therefore, also has no merit.

   [13] See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

8. The eighth proposed eighth ground is:

   The Refugee Review Tribunal erred in its judgment that the applicant does not meet the refugee criterion according to UN Convention and the alternative criterion under Australian Migration Act and Migration Regulation accordingly RRT made legal error.

9. By itself, this ground has no merit. It amounts to a bald allegation of legal error which does not engage with any part of the Tribunal’s reasoning.

Conclusions and disposition

1. Although the applicant has given an adequate explanation for his not having made his application for judicial review within the time prescribed by s.477(1) of the Act, I am not satisfied it is in the interests of the administration of justice that I should make an order under s.477(2) of the Act to extend the time. The reason is that the proposed grounds of the application have no merit and, hence, would have no prospects of success if I were to make an order under s.477(2) of the Act.

2. I propose, therefore, to dismiss the application for an extension of time. I also propose to make an order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent. I will hear the parties on costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 October 2015