SZVLS v Minister for Immigration
[2017] FCCA 225
•14 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVLS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 225 |
| Catchwords: MIGRATION – Substantive application seeking review of the decision of the former Refugee Review Tribunal – whether Tribunal took into account an irrelevant consideration – whether Tribunal should have made further enquiries. PRACTICE AND PROCEDURE – Application for an extension of time in which to make a competent application – whether it is in the interests of the administration of justice to extend time – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 420, 424AA, 424A, 425, 430, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 |
| First Applicant: | SZVLS |
| Second Applicant: | SZVLT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3094 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 November 2016 and 13 December 2016 |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Cohen |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application to extend time pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.
The applicants pay the first respondent’s costs set in the amount of $8000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3094 of 2014
| SZVLS |
First Applicant
| SZVLT |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 7 November 2014 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act for review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 30 September 2014, which affirmed the decision of the delegate of the Minister to refuse protection visas to the applicants.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application was accepted for filing by the Court’s Registry outside that time limit by three days. The application is therefore not competent.
Section 477(2) of the Act provides for an extension of time within which to make a competent application if the applicant makes an application for an extension of time, in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The applicants have made such an application in writing. They set out the grounds in support of the application to extend time which, in essence, assert that the delay was only 10 minutes. The “grounds” of the proposed substantive application, were in essence a lengthy narrative of 18 paragraphs with another two “grounds” set out under orders sought by the applicants.
Before the Court
The applicants, who are wife (“the applicant”) and husband (“the second applicant”), who were not legally represented at that time, appeared before a Registrar of the Court on 4 December 2014 and 24 June 2015. Orders were made for the conduct of their case on 24 June 2015. The application to extend time was set down for hearing on 4 November 2016.
On that day, counsel appeared for the applicants. He advised he had been approached by the applicants the “night before” and had only received instructions “that morning”. Counsel then sought an adjournment.
There was no satisfactory explanation given as to why the applicants, who had two years from the making of their application to the Court seeking the extension of time, and over 16 months from the setting of the hearing date, waited until literally the eve of the hearing to engage legal assistance. Nevertheless, I granted the adjournment and gave the applicants the opportunity by orders made on that date, to file any amended proposed substantive application and evidence by way of affidavit. The applicants filed an amended proposed substantive application on 5 December 2016 and an affidavit on 8 December 2016, both out of the time set out in the Court’s orders.
The hearing of the extension of time resumed on 13 December 2016. The applicants were represented by counsel. The Minister was represented by a solicitor.
The evidence before the Court is as follows:
(1)A bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB”, “RE1”).
(2)The affidavit of the applicant, made on 6 November 2014, and filed with the application to extend time on 7 November 2014. The applicant was cross-examined on her affidavit.
(3)The affidavit of Bassam Aslam, Master Private Enquiry Agent, made on 7 December 2016, and filed on 8 December 2016, attaching a “CD” (audio recording) of eight minutes of the Tribunal hearing that it conducted with the applicants. The audio recording was admitted provisionally subject to relevance (see further below at [37]).
Issue Before the Court
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. As the Minister submits, in deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The Delay
Whether the delay is of two or three days duration is of little note. The period is not long. Nonetheless, the applicants have not provided a satisfactory explanation for the delay. The applicants’ affidavit evidence does not provide a clear explanation as to what relevantly occurred when the applicants attempted to file their application with the Court.
However, before the Court, the applicant’s evidence was clear in that she said she knew, at the relevant time, of the 35 day time limit in which to make the application to the Court.
The explanation proffered was that the applicants lacked funds to make the application and were expecting financial assistance from a friend. However, the applicants have not explained why they did not seek a waiver of the filing fee, as was available to them. The applicant’s evidence was that she did not know of the availability of this facility. This says nothing about why she did not make enquiries as to how to go about making her application to the Court in a timely fashion, given that she knew of the time limitation.
In any event, as the Minister submits, the inability to pay the application fee is not of itself an adequate justification for the extension of time to be granted (QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7], BRGAO v Minister for Immigration and Citizenship [2009] FCA 126 at
[16] – [17] per Sander J and SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [25] per Barker J).
Prejudice to the Minister
The Minister concedes that he would not suffer prejudice if time were to be extended in this case. However, I agree that such an absence of prejudice is not conclusive in the current circumstances. There is, after all, the element of finality in administrative decision-making that needs to be taken into account.
The Amended Proposed Substantive Application
However, the primary and weightier reason for refusing the extension of time is that the grounds of the amended proposed substantive application lack such merit as to argue in favour of the extension of time. Even where the extension of time sought is for a short period, as in the current case, it is not in the interests of the administration of justice to extend time simply to dismiss the substantive application to the Court. Such a course would be an exercise in futility in the current circumstances (MZABP v Minister for Immigration and Border Protection [2015] FCA 1391).
The grounds of the amended proposed substantive application are in the following terms:
“1. The Second Respondent erred by taking into account irrelevant information and therefore being in jurisdictional error, specifically, taking into account the fact the applicant’s sister had converted to Islam and taking into account the circumstances of the sister’s conversion.
2. The Second Respondent further made errors by finding the applicants would not practice as Muslims if they were returned to Nepal, in circumstances where there was no evidentiary basis for such a finding.
3. In the alternative to ground 2, the second respondent failed to have proper regard to the underlying principles in the “Refugees Convention” and therefore was in breach of s36 Migration Act (1958).
4. The Second Respondent did not take into account relevant evidence when determining the application, namely paragraph 15 of the statement of Prabina Shah dated 10 June 2015 (Cout Book p 2), and therefore has made a jurisdictional error.”
Before the Court, the applicants’ counsel advised that he would not press grounds two and three.
Before dealing with the remaining grounds of the proposed substantive application, it is convenient to set out the following background.
As set out above, the applicants before the Court are wife and husband. They are citizens of Nepal. The applicant arrived in Australia on 15 January 2009 as a student (CB 14). She applied for the protection visa over four years later on 11 June 2013 (CB 1 to CB 221). Attached to the application were a number of documents including a “psychological assessment” of the applicant (CB 38 to CB 43) and country information (CB 107 to CB 221).
The second applicant applied as a member of the same family unit and at first made no separate claims for protection (CB 31 to CB 37). Subsequently, when the matter was before the Tribunal, the second applicant did raise a claim to fear harm because of his membership of the United Nepal Communist Party.
The applicant’s claims to protection were provided in the visa application form and an attached “statement”, and can be summarised as follows. The applicant claimed that she and her husband had converted to Islam in May 2013, while in Australia, to find “inner peace” (CB 18 and see also the “Faith Certificates” at CB 105 to CB 106).
The applicant claimed that her family in Nepal had received a number of threats because of her and her husband’s conversion to Islam, and that her mother’s house and property had been damaged (CB 19). She claimed that she feared that she and her husband would be tortured, mistreated and abused, and that the Nepalese authorities “prohibit conversion to Muslim (sic)” (CB 19 to CB 20 and CB 27 to CB 30). Further, she claimed that Muslims were discriminated against by the Nepalese authorities and community.
The delegate refused the application on 14 November 2013 (CB 246 to CB 259). The delegate found that the applicant had not “taken all possible steps to avail herself of a right to enter and reside in… any country apart from Australia”. In the circumstances, that country being India. Therefore, the delegate found that Australia did not owe the applicants’ protection pursuant to s. 36(3) of the Act.
The applicants applied for review of the delegate’s decision to the Tribunal on 30 November 2013. They were “represented” by a Bassam Aslam, who was not a registered migration agent. The applicants provided further documents to the Tribunal on 19 August 2014, asserting that the second applicant had worked in the United Nepal Communist Party (Maoist) (CB 278 to CB 279) and further documents on 21 August 2014 (CB 283 to CB 284).
The applicants attended a hearing before the Tribunal on 26 August 2014, where both the applicant and the second applicant gave evidence and presented their arguments (CB 285 and [8] at CB 330). The applicants provided further documents to the Tribunal following the hearing on 2 September 2014, partly in response to what the applicant termed “adverse information” provided during the hearing (CB 303 to CB 324).
The Tribunal affirmed the delegate’s decision on 30 September 2014 (CB 328 to CB 333). The applicants were notified by “facsimile” sent to their “authorised recipient” on 1 October 2014 (CB 325).
The Tribunal found that the applicants were “not credible witnesses” ([15] at CB 331). It found that they provided “vague, implausible and contradictory evidence” to the Tribunal. Further, the Tribunal found that the applicants had sought protection in Australia “only after other avenues to remain in Australia ha[d] failed” ([15] at CB 331).
The Tribunal stated that when it referred to the applicants’ immigration history and the “later conversion to Islam” during the Tribunal hearing, the applicants’ explanation and evidence provided during the hearing, and in written claims following the hearing, was “vague and too generalised to be of any benefit” ([16] at CB 331).
Further, the Tribunal found as “implausible”, the applicants’ explanation that although they had been “interested in and exploring the Muslim religion while they lived in Brisbane”, there was not a Muslim community in Brisbane for them to join ([17] at CB 331). The second applicant’s claim, made during the hearing before it, that he had been “forced to join the Maoists when he was younger and that he continued to [receive] threatening telephone calls” was also “implausible and fanciful” ([18] at CB 332).
The Tribunal found at [22] (at CB 332):
“The Tribunal finds these circumstances overall indicate that the applicants in the current matter have fabricated their claims, including their claims to fear consequences in returning to Nepal, and the alleged consequences being suffered by their family and friends in Nepal. The Tribunal does accept as genuine the documents related to the applicants formally converting to Islam (from the Islamic Council of Australia, dated 24 May 2013), but finds that the applicants have not genuinely converted and would not practice as Muslims if they returned to Nepal. In addition the Tribunal finds that the applicants have fabricated all related claims and documents regarding the alleged treatment of their family members in Nepal, including post-hearing submissions with scenes of damage to property. That is, the Tribunal does not accept that these relate to the applicants or their claims. In addition, the Tribunal finds that the second applicant may have worked for the United Nepal Communist Party in Nepal, but it does not accept that this would lead to the second applicant and/or the applicant having a well-founded fear or serious harm in the foreseeable future upon return to Nepal.”
The Tribunal found that the applicants’ actions in Australia in converting to Islam had been entered into for “the sole purpose of pursuing refugee claims”, and therefore disregarded them pursuant to s.91R(3) of the Act in assessing refugee protection ([23] at CB 332 to CB 333). It noted that s.91R(3) of the Act did not apply to the complementary protection criterion at s.36(2)(aa) of the Act. However, it found that the applicants had not “genuinely” converted to Islam, and had “fabricated their claims to have done so”. Therefore it found that they would not practice as Muslims on return to Nepal ([24] at CB 333).
While the Tribunal accepted that the second applicant may have worked for the United Nepal Communist Party, it did not accept that this would “cause difficulties for either or both of the applicants” on return to Nepal. Therefore, the Tribunal found that there was not a real risk that the applicants would suffer significant harm on return to Nepal ([24] at CB 333).
Ground one of the amended proposed substantive application asserts that the Tribunal fell into error by taking into account irrelevant “information”. The ground states that the Tribunal took into account the fact that the applicant’s sister had converted to Islam, and also took into account the circumstances of her sister’s conversion.
The written submissions direct attention to [20] of the Tribunal’s decision record (at CB 332):
“The Tribunal also refers to the applicant’s sister’s protection visa application, on which she claimed both on the basis of caste and religious conversion to Islam. As raised by the Tribunal during the hearing, this is relevant to the applicants’ claims because they were so similar to the sister’s claims, that is, the applicant’s sister made a late conversion to Islam and then claimed protection on this basis.”
However, the written submissions also seek to extend the attack to what the Tribunal said at the hearing. The submissions refer to the “audio” of the Tribunal hearing (see above at [9](3) and further below at [57] – [59]).
The applicants’ oral submissions require careful attention in light of what is pleaded and put in the written submissions, both as to the actual factual complaints relied on by the applicants, and the legal error said to have been identified.
Ground one of the amended proposed substantive application makes reference to irrelevant “information”. That word, usually in cases of this type, seeks to invoke a reference to s.424A(1) of the Act. However, before the Court, the applicants explained that what was really meant was that the Tribunal took into account an irrelevant consideration.
Such a complaint, if made out, can lead to jurisdictional error (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (“Peko-Wallsend”) and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).
The “irrelevant consideration” was said to be the Tribunal’s “conclusion” that the first applicant’s sister had “fabricated” her conversion to Islam and that the applicants had “copied” this approach.
Before the Court, the applicants’ counsel, when asked to explain the asserted legal error with reference to any relevant authorities submitted that it was his “understanding” that the Tribunal was “not permitted by law to take that particular consideration into account”.
When pressed, the applicants’ counsel sought to rely on s.420(b) and s.36 of the Act as containing “general principles” relevant to the applicants’ case (see further below).
The argument as to why the Tribunal’s “conclusion” was based on an irrelevant consideration was then further explained as follows.
First, that the use of the words “late conversion”, if meant to impugn the applicant’s sister, and subsequently the applicant, is irrelevant because the sister’s protection visa application was granted. It was therefore not open to the Tribunal to rely on the sister’s “late” conversion.
Second, even if the applicant’s sister made a “late” claim, this has no bearing on, and is irrelevant to, the applicants’ circumstances.
The applicants’ ground as pleaded, and explained in submissions, lacks sufficient merit to weigh in favour of the extension of time on a number of bases.
First, it is not for the applicants to determine what constitutes an irrelevant consideration. An irrelevant consideration is one that the decision-maker is bound not to, or forbidden from, taking into account (SZTBJ v Minister for Immigration [2015] FCCA 580). That is, an irrelevant consideration is one which is extraneous to the proper exercise of the power that the Tribunal is exercising (see also
Peko-Wallsend).
Second, it is for the Tribunal as the relevant decision-maker exercising jurisdiction, to identify what it finds relevant to its decision-making task. Subject to what the Act may mandate, it is for the decision-maker to decide what factors to pursue (see Re Sean Investments Pty Limited v the Honourable Michael John Randal Mackellar, the Minister of Health of the Commonwealth of Australia [1981] FCA 174 per Deane J and Foster v Minister for Customs & Justice, Senator Amanda Vanstone [1999] FCA 687 and Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 and Peko-Wallsend at [41]).
Third, before the Court, and as set out above, the applicants sought to rely on s.420(b) of the Act as setting out the general principle that the Tribunal must act fairly. Further, that s.36 of the Act compels the Tribunal to consider whether an applicant is likely to face serious or significant harm.
That may be accepted, generally, as the purposes of these sections. What was not explained by the applicants however, was how what was impugned in the Tribunal’s reasoning, and its “conclusion”, was an irrelevant consideration for the purposes of the Act. At its highest, the references to those parts of the Act could only reasonably be understood as attempts to challenge the factual findings made by the Tribunal, and therefore seek impermissible merits review from the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”), Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 citing Mason J in Peko-Wallsend and see also Attorney – General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).
Fourth, contrary to the assertion now that the sister’s situation was “irrelevant”, it was the applicant herself who first raised the matter of her sister’s conversion to Islam (see question 43 at CB 18 and question 47 at CB 20). Therefore the question is raised as to why if it was “irrelevant” she made reference to it.
Fifth, the applicants’ argument before the Court sought, in part, to focus on what was said to have occurred at the Tribunal hearing. Some care is necessary here. The ground as pleaded seeks to impugn the findings of the Tribunal. That is, in making its decision, the Tribunal made findings that took into account the sister’s circumstances, which are said by the applicants now, to have been irrelevant.
What the Tribunal may have said at the hearing cannot be taken as concluded views, or findings, by the Tribunal in the disposition of the applicants’ case. Here the different purposes of s.425 and s.430 of the Act are of note.
Section 425 of the Act obliges the Tribunal to invite an applicant to a hearing so that the applicant can give evidence and make arguments in relation to the issues in the review. The invitation must be a “meaningful opportunity” for the applicant to do this (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592, Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41).
In this process, the Tribunal is entitled to question the applicant, even vigorously, about her claims and evidence (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 and SZLUD v Minister for Immigration and Citizenship [2009] FCA 549). Having raised the matter of her sister’s conversion in her application, the Tribunal was entitled to test the applicant on this. In that process, unless the Tribunal states otherwise, what it may say to an applicant at a hearing, may not after hearing the applicant’s explanation, form part of its concluded view. The Tribunal’s concluded views, its findings, are required to be set out in the reasons for the decision pursuant to s.430 of the Act after having considered all of the claims, evidence and submissions.
The applicants’ submissions, in part, seek to impugn what the Tribunal said at the hearing. What must immediately be said is that the audio recording played during the hearing before the Court, at the applicants’ direction, was of very poor quality (see also the affidavit of Bassam Aslan made on 7 December 2016 at [2] and [4]). The applicants’ counsel also confirmed that what followed on the audio recording to what was played during the hearing was of poor quality (“essentially you can’t hear anything”).
Having listened to part of the audio recording of the Tribunal hearing, it appears that what the Tribunal was seeking to do, was to discharge, through the use of the facility available at s.424AA of the Act, the obligation in s.424A(1) of the Act. What the sister claimed in her application was caught by the obligation under s.424A(1) of the Act.
In this light, what could be discerned from the audio was not relevant to a fact in issue arising from the ground as pleaded. The part of the audio in respect of which the applicants sought leave is not relevant and is therefore not admitted into evidence.
Sixth, the applicants’ ground misconceives, and misrepresents by its selective focus, the Tribunal’s actual reasoning and findings.
The Tribunal did not affirm the delegate’s decision simply because of a finding that the applicant “copied” her sister’s claims, or that the sister’s claims to protection on the basis of her religion were also made “late”. Rather, the reason for the Tribunal’s decision was that the applicants were not credible witnesses. The Tribunal found that their evidence was “vague, implausible and contradictory” and that their claims were false, and were made only when other avenues to remain in Australia had failed ([15] at CB 331).
The Tribunal then explained the reasons for these findings ([16] - [19] at CB 331 to CB 332). It is in this context that the Tribunal made reference to the applicant’s sister’s claims (at [20] at CB 332). That is, that the Tribunal’s review of the applicant’s evidence was reinforced by the similarity of her claims and circumstances to those of her sister, and the use of the same “representative” (Bassam Aslan) in making the application for the protection visas.
The Tribunal acknowledged that it was reasonable for the members of the same family to convert to the same religion. But in the totality of the circumstances presented in this case, it found that there were indications that the applicants had “copied” the sister’s successful claims to protection.
The Tribunal’s conclusion as to the applicants’ credibility, and the various findings that informed it, including the finding as to having copied the applicant’s sister’s claims, were all reasonably open to the Tribunal on what was before it. The Tribunal’s analysis and its findings on credibility were all within jurisdiction.
The applicants also submitted before the Court that there is a suggestion in the Tribunal’s analysis that the sister’s conversion was not genuine. However, that also misrepresents the Tribunal’s analysis. The Tribunal made no adverse finding in relation to the sister. On any fair reading of the Tribunal’s analysis, it cannot be said that such a suggestion reasonably arises (Wu Shan Liang).
Whatever the circumstances of the sister’s case, it was the similarity in the circumstances before the Tribunal and the applicants’ “late conversion” (after all other avenues had failed to obtain a permanent visa for the applicants) that was of relevance to its analysis.
The applicants’ submissions also assert that even if the applicants copied the sister’s claims, that does not necessarily mean their conversion was not genuine. Again, and as the Minister submitted, that misunderstands the Tribunal’s consideration and the findings that informed it as to their credibility.
It is trite to say that findings of fact, including findings on credibility are for the Tribunal to make within the exercise of its jurisdiction “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicants’ disagreement with the Tribunal’s findings does not make the Tribunal’s findings unreasonable (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16). The invitation to the Court to find otherwise in circumstances where the findings were reasonably open to the Tribunal is to invite impermissible merits review.
In all, there is no arguable legal error in the Tribunal’s consideration of the similarity between the applicant’s claims and that of her sister, and the applicant’s “late” conversion to Islam some years after arrival in Australia. It was reasonably open to the Tribunal to take this matter into account and to weigh it in the exercise of the discretion as to whether the protection visa should be granted.
Proposed ground one lacks merit such as to weigh in favour of the extension of time.
Proposed ground four, in essence, asserts that the Tribunal fell into jurisdictional error because it failed to have regard to certain aspects of the applicants’ relevant evidence. The written submissions describe this error as a failure to take into account relevant considerations.
The ground as pleaded, and the written submissions, make specific reference to the applicant’s written “statement” of 10 June 2013 submitted with her application for the protection visa. Specifically [15] (at CB 28) of that “statement” as follows:
“We both submitted our will to Allah – the almighty God. We are bounded by tough rules and regulations.”
In submissions before the Court, the applicants’ counsel also referred to [3] of that written statement (at CB 27):
“Practicing Islam in Nepal is very difficult and the state forbids conversion. My husband and I being from a Nepali Hindu background and a Hindu previously now converted to Islam is seen as an opposite religion in the eyes of others and it does complete opposite of what Hindus do such as washing their feet during ablutions and moving towards the face rather than the other way around. Hindus face east while performing puja, while Muslims face west towards Mecca during Namaz.”
The applicants’ counsel further referred to [13] – [14] (at CB 28) of the applicant’s written statement:
“[13] My husband also holds a strong belief in Muslim tradition and we both converted to Muslim in May 2013. I annexed hereto and marked” C” certified copy of testification of faith for my husband and myself.
[14] My husband and I are devoted Muslim and finally we found the inner peace and in May 2013 we decided that it is best for us to enshrine our faith to a religion which ultimately provide us inner strength and moral values and self respect.”
[Errors in original.]
The assertion of error was that the Tribunal ignored the applicant’s evidence going to the “issue” of her faith. It found adverse to her (and to her husband) by considering only what were described in oral submissions before the Court as the “surrounding circumstances”.
The applicants identified these “surrounding circumstances” as being the Tribunal’s consideration that the applicant had been in Brisbane for some years without looking for a mosque, without “reaching out” to the Muslim community, making a “late” conversion in circumstances where she had previously unsuccessfully sought other visas, and the similarity with her sister’s application for a protection visa.
In short, the Tribunal found that the applicants had “fabricated” their claims to have converted to Islam for the purpose of applying for a protection visa without “testing” the applicant’s own evidence as to her faith.
It is the case that a failure to consider a claim to fear harm as presented in evidence or submissions which is expressly made or clearly arising, or a failure to address a substantial, clearly articulated argument relying upon established facts, may lead to revelation of jurisdictional error (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)).
The applicants’ argument before the Court in essence was that the applicant had made certain statements as to her faith. The Tribunal did not consider the matter of the applicant’s faith (see [72] – [74] above).
Again, the proposed ground lacks merit as to weigh in favour of the extension of time.
First, [15] (at CB 28) cannot be said, even on a fair reading, to be anything more than a repetition of the applicants’ claims to have converted to Islam and to be practising Muslims. That is, the claim the Tribunal understood the applicants to be making. It rejected the genuineness of the conversion. It gave cogent reasons for this.
The other parts of the applicant’s statement relied on by the applicants now, at [13] – [14] (at CB 28) are of a similar nature. They assert that the applicants have faith as Muslims. The Tribunal’s decision record reveals, on a fair reading, that the Tribunal understood this is what the applicants claimed.
Paragraph 3 of the applicant’s statement asserts, in essence, that it would be difficult for the applicants to return to Nepal as Muslims, given that it is a Hindu country with different religious practices to Islam. The Tribunal also understood this (see specifically, the first part of the first sentence of [3] at CB 27).
Second, the Tribunal made specific reference in its decision record to the applicant’s written statement (see at [3] at CB 329). The Tribunal is not obliged, in its reasons, to refer to every piece of evidence before it, or indeed the details of every piece of evidence before it. The “clearly articulated and substantial claim” (with reference to Dranichnikov), made by the first applicant in her statement, and the applicants’ claimed conversion to Islam, and the fear of harm because of their religion, were directly considered by the Tribunal.
Third, the applicants’ written submissions to the Court appear to contend that the Tribunal was obliged to test the applicant on her knowledge of Islamic beliefs and her faith. Before the Court, the submission was that actual “evidence” of the applicant’s faith was critical to the assessment of the genuineness of the conversion.
The difficulty is that the applicants do not point to where this obligation on the Tribunal is said to arise. The obligation on the Tribunal, in the current case, was to consider whether it could be satisfied that the applicants met either of the criteria at s.36 of the Act for the grant of the protection visa, in light of their claims to fear harm if they were to return to Nepal because of their claimed religious conversion (and in the case of the second applicant his claimed political connection).
In this context, it was for the Tribunal to be satisfied as to the genuineness of their claims to have converted to Islam. The Tribunal found that they were not genuine. It gave reasons for this probative of the material before it. In the circumstances, there was no obligation on the Tribunal to conduct an examination of the applicants’ religious knowledge. It could not reach the requisite level of satisfaction required by the statute and gave cogent reasons for this. It explained why it found she was not genuine in her conversion.
The applicants’ submissions appeared to seek to elevate the applicant’s assertions in her written statement to the status of a presumption that the applicant was genuine in her conversion, and that the Tribunal was therefore obliged to rebut this presumption. This misrepresents the jurisdictional task set for the Tribunal. That task, relevantly, is to consider an applicant’s claims to fear harm, including the evidence of such claims, and to reach or not reach the requisite level of satisfaction as required by s.65 of the Act. The Tribunal did not err in the exercise of its jurisdiction in this regard.
Fourth, the applicants’ submissions also complained that the Tribunal drew adverse inferences about the applicant from “surrounding circumstances” instead of addressing her actual beliefs.
This appears to be another way of insisting that the Tribunal should have conducted a religious examination of the applicants. As set out above, the issue for the Tribunal was whether the applicants would likely suffer harm for reason of their claimed religious conversion if they were to return to Nepal.
The Tribunal addressed that issue. It found they would not suffer harm on return to Nepal because their conversion was not genuine and was part of a fabricated scheme to remain in Australia. This arose from findings of fact reasonably open to the Tribunal to make on what was before it.
In any event, it is difficult to see how any pursuit with the applicant of her religious knowledge would have assisted her. As the Minister correctly submits, a person’s knowledge of a particular religion is not of itself demonstrative of a genuine conversion.
In circumstances where the Tribunal has addressed the claims as made, and has made findings reasonably open to it arising from, and probative of the material before it, no jurisdictional error is revealed. The applicants’ proposed ground four does not raise any arguable case in the circumstances presented.
Conclusion
In all, the period of the delay is short, but the applicants have not provided a satisfactory explanation for the delay in making their application to the Court. What weighs heavily against the exercise of the discretion in the applicants favour is the lack of merit in the proposed grounds. It is not in the interests of the administration of justice to extend time. The application to extend time is refused. I will make the appropriate order.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 February 2017
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