SZVTL v Minister for Immigration

[2016] FCCA 1163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTL & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1163

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal failed to consider the applicants’ claims cumulatively – whether the Tribunal failed to make adequate inquiries – no jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476, 477

First Applicant: SZVTL

Second Applicant: SZVTM

Third Applicant: SZVTN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3374 of 2014

Judgment of: Judge Street

Hearing date: 13 May 2016

Date of Last Submission: 13 May 2016

Delivered at: Sydney

Delivered on: 13 May 2016

REPRESENTATION

Solicitors for the Applicants: Mr R Chaudhry
Chaudhry Legal

Solicitors for the First Respondent: Ms H Musgrove
Sparke Helmore

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is dismissed.

3. The first and second applicants pay the costs of the first respondent fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3374 of 2014

SZVTL

First Applicant

SZVTM

Second Applicant

SZVTN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 22 May 2014, affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas. The applicants were all found to be citizens of Fiji. The first applicant arrived in Australia on a tourist subclass 676 visa on 15 July 2011. On 17 October 2011 the first applicant applied for protection, together with his wife as a family member. The third applicant, being the daughter of the first two applicants, was subsequently added to the application for protection.

2. The first applicant claims to fear harm from the Fiji government.  The first applicant claims he and his family members were practitioners at a Baptist church and that on 3 August 2011 a crusade was held at his home at which speakers gave speeches about freedoms and human rights.  The applicants contend that since the second applicant left Fiji authorities have come to their home asking questions about the meeting.  The applicants contend that they might be harmed or mistreated by the Fijian government, military, judiciary, police force and military council.

3. The applicants fear being interrogated, prosecuted, jailed, or assaulted, or otherwise victimised because of their involvement with a meeting at the applicants’ home.  The first applicant believes his life would be threatened if he returned to Fiji, and he and the second applicant have spoken out against and taken part in activities condemning the Fijian government, and that he and the other applicants would be harmed as a result.

4. On 6 August 2012, a delegate of the first respondent refused to grant a protection visa, and on 21 August 2012 the applicants applied for a review before the Tribunal.  The applicants were sent an invitation to appear at a hearing which was held by video link with the applicants on 31 May 2013, and the applicants gave evidence on that occasion, and presented arguments.  The applicants were also represented by their registered migration agent.

5. The Tribunal made adverse credibility findings in relation to aspects of the applicants’ claims.  The Tribunal expressly took into account a submission advanced that the first applicant’s evidence was affected by stress, and that that explained the inconsistencies in the applicant’s evidence.  That submission was expressly rejected by the Tribunal.  The Tribunal did not accept the applicants’ claims about the first and second applicants intending to attend interdenominational Christian gatherings, but were unable to do so because it was postponed to a time after their flights to Australia were booked, or for any other reason.

6. The Tribunal did not accept the claims that Christian leaders, or other attendees at the gathering at the applicants’ home made comments, or otherwise expressed opinions, critical of the current Fijian government that led to any of them being targeted, or otherwise coming to the attention of, Fijian authorities.  The Tribunal did not accept that the Fijian authorities, including the military police or immigration officials, visited the applicants’ home after the gathering held on 3 August 2011, or at any other time.

7. The Tribunal found that Fijian authorities, including the military and police, had not questioned the applicants’ son or any other member of the applicants’ family about the whereabouts of the applicants or any other matter.  The Tribunal did not accept that the Fijian authorities, including the military and police, had attempted to monitor or target the applicants at any time in the past.

8. The Tribunal did not accept that the applicants had expressed a political opinion critical of the current Fijian government, and in support of the SDL, other than by voting at the SDL, and speaking to family and friends, as well as by the applicants sending a letter to the Fijian Attorney-General in April 2013, and posting comments anonymously online.  The Tribunal did not accept that the first applicant had an uncle who was killed, or otherwise mistreated, in 2007 or at any other time by the Fijian military because of political dissent or any other reasons.  The Tribunal found that it did not accept there was a real chance the third applicant would be a member of a group of young women who will be arrested and detained in Fiji and did not accept that there was a real chance that the second applicant would be arrested or detained or otherwise seriously harmed in the reasonably foreseeable future if the applicants returned to Fiji. 

9. The Tribunal expressly referred to taking all the information together in considering whether there was a real chance that the applicants would encounter serious harm capable of amounting to persecution and, relevantly, the Tribunal found that it was not satisfied the applicants had a well-founded fear of being persecuted for a convention reason or any other reason if returned to Fiji. The Tribunal also found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that the applicants will suffer significant harm. It was in those circumstances that the Tribunal found that the criteria under ss.36(2)(a) and 36(2)(aa) was not made out.

10. The current proceedings are ones in which the applicants require an extension of time under s.477 of the Migration Act 1958 in order to bring the application for relief. In relation to the exercise of power under s.477, generally what is required is a satisfactory explanation for the delay and a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. In the present case, the only explanation for the four-month delay by the applicants was their pursuit of an application for ministerial intervention. The pursuit of an application for ministerial intervention is not a ground which satisfactorily explains the delay and on that ground alone the application in the present case should be refused.

11. Further, turning to the alleged merits of the application, the applicants relied upon an amended application.  That amended application did not properly in accordance with the Court rules set out grounds, but referred to grounds that were identified in an affidavit.  The Court confirmed with the solicitor for the applicants that the grounds upon which the applicants relied were those identified in annexure A attached to the affidavit as follows: 

    1. The tribunal made a jurisdictional error in not considering the applicants claim cumulatively:

    Particulars

    A thought at (98) (page 20) The tribunal says it took all information together the tribunal did not consider the combine effect of;

    Letter to the Attorney General critical of the government; and

    Having made their land and home available for an interdenominational church gathering critical of the Government.

    (2) The Tribunal failed to ask a question it was bound to ask;

    Particulars

    The interdenominational church gathering was held in applicants land. That showed that the applicant had a very high profile as the person in whose land that a critical event took place raising his profile in the eyes of the Authority. The Tribunal should have asked whether that event raised the applicant's political, religious profile

    (3) The tribunal failed to recognize and take into account the reason for inaccurate information provided by the applicants. Finding and evidence of stress and trauma of the above has been documented by;

    Particulars

    Mental Health of Refugees UNHCRJWHO

    The Australian Psychological Society Ltd

    Amnesty International

    (4) The T1ibunal had denied the applicant Procedural Fairness on section 420(1) Act 1958

    Particulars

    The Tribunal failed to consider on the merit or the genuine of those evidence alone rather than contemplating that the son and friends would benefit from the outcome of the application mentioned on Tribunal decision record (62) and I quote; I advise them that I may consider that their son and friend who send the email may have an interest in them obtaining a particular migration outcome because of their close connection that means that their son and friends are willing to provide information to the tribunal that is supportive of their claim but not true or accurate.

12. At the commencement of the hearing, the Court sought to confirm with the solicitor for the applicants that there were no other grounds than the four identified grounds upon which the applicants relied.  The Court drew attention to the fact that the applicants’ submissions appeared to stray beyond the grounds identified and expressly referred to the paragraphs that sought to stray beyond the grounds identified. 

13. The solicitor for the applicants confirmed that it was only the identified grounds upon which the applicants relied in seeking to advance the application for an extension of time.  In relation to ground 1, it is clear that the Tribunal effectively made reference to considering the claims cumulatively.  On a fair reading of the Tribunal’s decision, it is clear that the Tribunal did consider the whole of the applicants’ claims.  Ground 1 fails to make out any arguable jurisdictional error. 

14. In relation to ground 2, there was no identified question that the Tribunal failed to ask itself and it is apparent that the Tribunal addressed the claims advanced by the applicant in respect of political and religious activity.  The adverse findings made by the Tribunal in that regard were open on the material before the Tribunal.  Ground 2 fails to make out any arguable jurisdictional error. 

15. In relation to ground 3, it is apparent that the Tribunal in a number of paragraphs referred to the alleged stress said to have been suffered by the first applicant in giving evidence both to the delegate and before the Tribunal.  The Tribunal’s reasons expressly referred to the alleged stress in making adverse credit findings and rejecting the contention that the first applicant’s alleged stress explains the inconsistencies in relation to the applicant’s evidence.  In these circumstances, ground 3 fails to make out any arguable jurisdictional error. 

16. In relation to ground 4, it is apparent that the Tribunal complied with a statutory duty to invite the applicants to attend a hearing and that the applicants did so and provided both submissions prior to hearing and after hearing which were referred to in the Tribunal’s reasons.  The reference made in ground 4 to para.62 of the Tribunal’s reasons was entirely consistent with a Tribunal making it clear to the applicants the live issue of credibility in relation to part of the applicants’ claims.  Ground 4 fails to identify any arguable ground of jurisdictional error. 

17. From the bar table, the solicitor for the first respondent sought to advance that there was a fifth ground that he should be permitted to raise in respect for an alleged failure by the Tribunal to make an obvious inquiry in relation to the alleged death of the first applicant’s uncle.

18. When asked by the Court of whom the inquiry should be made, the solicitor for the respondent identified the applicants or the applicants’ legal representative.  It is clear that the first applicant well appreciated that his credit was a live issue and it is not the case that there was any obvious inquiry that the Tribunal should have made in relation to the first applicant’s claims concerning his uncle’s death.  Nothing said by the solicitor for the applicants from the bar table identified any arguable jurisdictional error. 

19. The Court notes that the written submissions on behalf of the applicants do seek to traverse findings beyond the grounds identified as being the grounds in support of the application. Whilst the solicitor for the applicants confirmed that the grounds were confined, I note that the extended grounds in the written submissions were, in substance, impermissible challenges to the adverse findings of fact that were open to the Tribunal. Nothing said in the applicants’ written submissions outside the identified grounds or in respect of the identified grounds supports any arguable jurisdictional error by the Tribunal. In the circumstances, the Court is not satisfied that an extension of time is warranted in the interests of the administration of justice on the merits of the application. The application for an extension of time under s.477 is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 May 2016