SZVUT v Minister for Immigration

[2015] FCCA 476

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 476

Catchwords:
MIGRATION – Migration Review Tribunal – protection (Class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  

Federal Court Act 1999
Federal Circuit Court Rules 2001
Migration Act 1958

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZVUT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3429 of 2014

Judgment of: Judge Street

Hearing date: 20 February 2015

Date of Last Submission: 20 February 2015

Delivered at: Sydney

Delivered on: 20 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondents: Mr Pinder

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The Application in a Case, filed 20 February 2015, is dismissed.

2. The Application for an extension of time, filed 10 December 2014, is summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court Act 1999 (Cth), and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the First Respondent’s costs fixed in the sum of $1,367. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3429 of 2014

SZVUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter, an application for urgent relief was filed on 19 February 2015 for injunctive relief to prevent the removal of the applicant pending the hearing of an application filed on 10 December 2014.  The application filed on 14 December 2014 is one in which the applicant is seeking a Constitutional writ under s.476 in respect of a decision that the Tribunal made on 5 June 2013 and in respect of which the applicant requires an extension of time under s.477.

2. The application for Constitutional relief was filed 554 days after the second respondent’s decision and 519 days after the statutory timeframe had expired.  In determining whether any interim relief should be granted, the Court has had regard to whether there appears to be an arguable issue relating to the application for Constitutional writ relief.

3. The explanation for the delay in respect of s.477 was to the effect that when the case was decided, the lawyer went on holidays and did not get a chance, and that the applicant was having financial problems and was not aware that he could lodge the application and that he was mentally disturbed at the time and could not take any decision.

4. Given the length of the delay in the filing of the application from the time of the decision of the Tribunal on 5 June 2013, the explanation for the delay is patently deficient.  The applicant was asked at the commencement of this urgent hearing whether there was anything further he could add in relation to explaining the delay.  The applicant did not articulate any further ground or matter that could be taken into account to explain the application for delay.

5. The Court took the applicant to what purports to be the grounds for seeking Constitutional relief which were to the following effect:

   I think my claims were very genuine and my family support is still weak and I have no money to travel and the Tribunal told why my family didn’t inform me before course he always knew that I was never comming back. [sic]

6. The last part of the application appears to refer to the applicant’s explanation for why he was only told in 2012 by a friend that he may face some danger if returned to Nepal, which the Tribunal had found was his country of reference.  The Court identified to the applicant that the grounds identified did not identify any jurisdictional error and the applicant was asked whether there was any further submission he could put in relation to identifying a ground upon which there was an arguable case of jurisdictional error.

7. The applicant identified that he was not properly prepared because he thought there would be a hearing on 12 June 2015 and that he wanted to put on more evidence.  On the face of the application it is patently doomed to failure.  This is not a Court of general review and the adducing of further evidence is not a matter that is open to the applicant in relation to challenging the findings of fact made by the Tribunal.  There was clearly no utility in an adjournment to adduce evidence of fact that was for the Tribunal to decide.

8. The notice of intention to remove the applicant identifies the proposal to move the applicant on 25 February 2015.  In relation to the summary dismissal powers under s.17A Federal Circuit Court Act 1999 and r.13.10 Federal Circuit Court Rules 2001, I have taken into account the principles of caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 [24]-[25] and [59]-[60]. In this case, it is clear that the Tribunal did not believe the applicant in relation to the applicant’s claims. The Tribunal’s reasons set out carefully the alleged claims of the applicant which can be summarised as follows:

   a)The applicant joined the Youth Community League but became dissatisfied and disapproving of their activities.  He eventually ceased assisting them and fled Nepal in fear they would harm him for no longer supporting them.

   b)The applicant fears harm from the YCL on the ground and fears harm from his family because of his use of drugs in Australia which they claim has brought shame on them.

9. The applicant made his protection application for a Protection (Class XA) visa under s.65 of the Migration Act 1958 on 5 June 2012.  This occurred in circumstances where the applicant had arrived in Australian in August 2007 as the holder of a student visa valid until November 2009.  The Tribunal notes in para.36:

   36. When asked why he applied for a protection visa, the applicant said he was apprehended by immigration in 2012 who said he was in the country without a visa.  A friend told the applicant the details of a lawyer from whom he found out about applying for protection.

   37. The Tribunal asked the applicant what steps he took after arriving in Australia to find out how he could remain here permanently without having to go back to Nepal where he was afraid he would be harmed.  In response, the applicant said he thought he would undertake study to gain permanent residence.  The Tribunal asked the applicant what inquiries he made about being able to remain here once his studies finished in August 2008.

   38. In response, the applicant said he made no inquiries as at that time he was taking drugs.  When put to him that in March 2009 he had found employment, the applicant said he still had made no inquiries as he was only working part-time and did not have money.  He approached one migration agent but did not tell that person of his fear of returning to Nepal because of the YCL and his family’s attitude towards him.  He simply told the agent he wanted to obtain another visa to stay in Australia and he was given advice about applying for a student visa.

10. The Tribunal took into account the interview that took place before the delegate on 6 September 2012 and the applicant appeared before the Tribunal on 24 May 2013 to give evidence and present arguments.  In the decision, the Tribunal notes:

    31. The first time this friend told the applicant that he had been approached by the YCL and that they had threatened to harm the applicant was not until 2012 when he had a problem with his visa (that is when the Department apprehended him prompting him to make his protection visa application).

11. The Tribunal found that the applicant is a national of Nepal. The Tribunal concluded that the decision under review should be affirmed after making findings as to the credit of the applicant. The Tribunal expressly addressed the delay that had taken place in seeking protection.

12. In para.49, the Tribunal said:

    49. The Tribunal disbelieves those claims and finds the applicant’s inaction to find out how he could remain in Australia permanently after he arrived here and after he was told by his parents they would no longer support him with the overall delay in his part in making a protection visa application indicates that the applicant is not genuinely in fear of harm in Nepal.

13. The Tribunal went on to find that the Tribunal disbelieves the explanation that the applicant advanced in respect of the delay in making an application for the visa application:

    50. …because the applicant did nothing to get advice about applying for a protection visa and clarify what would happen if not successful until 2012.

14. The Tribunal identified certain inconsistencies of the evidence given in the interview by the applicant with the delegate, and found:

    55. The Tribunal does not accept that response because the Tribunal has listened to an audio recording of the interview with the delegate and the applicant did not express any difficult in giving evidence nor did the delegate indicate any difficulty understanding the applicant. This discrepancy reflected poorly on the applicant’s credibility.

    …

    63. Considered cumulatively, the concerns held by the Tribunal about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.

    64. Accordingly the Tribunal disbelieves the applicant’s claims that he was approached by the YCL to join them and that he ever undertook activities for them; that he ever had contact with the YCL over the telephone or in person and that they ever went to his former workplace or his home; that they have approached other people in Nepal and enquired or made threats about him and that the applicant left Nepal in fear of harm from the YCL.

    65. The Tribunal also disbelieves claims made in the applicant’s statutory declaration he had a friend who supported the YCL, came to Australia and was returned to Nepal and killed by that group.  The Tribunal acknowledges the applicant has submitted a media report about a person killed in such circumstances but not accept the person is a friend of the applicant.

    66. Because the Tribunal finds he is not a witness of truth, the Tribunal also disbelieves the applicant’s claims that his parents (or extended family or relatives as he mentioned to the delegate) have disowned him and wish to harm him; that his family said he had brought shame on them; that they refused to support him and that they will not accept and help him in Nepal. The Tribunal finds that the applicant is not genuinely in fear of any harm from his family (or anyone else) in Nepal.

    …

    71. While the applicant made a claim about struggling to find good work in Nepal, he does have previous employment experience there and in Australia and there is no credible evidence that his family would also not support and assist him. There is not a real chance the applicant will suffer persecution on that ground.

    72. Accordingly, there is no credible evidence that the applicant has a well founded fear of persecution based on any convention ground.

15. The Tribunal also found that there was no credible evidence that the applicant has ever been involved with YCL or Maoists, or either of those groups, and that there’s no credible evidence that either of those groups wish to harm the applicant.   The Tribunal found the claims for protection by the applicant were false. 

16. The Tribunal considered the complementary protection criteria and said:

    74. … the Tribunal finds that the applicant is not a witness of truth and his claims about being at risk of harm from his family and the YCL are false.  There is no credible evidence as to why the applicant does not wish to return to Nepal and there is no credible evidence that anyone in Nepal wants to harm him. 

17. The Tribunal set out its further findings:

    75. While the applicant complained that he would not find good work in Nepal and that he does not have money, he does have previous employment experience and he will have the support of his family. For the reasons given above, the Tribunal finds there is no credible evidence about the applicant’s financial means. The Tribunal finds that the applicant is not at risk of harm on that ground.

    76. As the applicant has been found not to be a witness of truth; as his protection claims have been found to be false and as there is no credible evidence as to why he does not want to return to Nepal, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Nepal, there is a real risk that he will suffer significant harm.

    77. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    78. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    79. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion un s.36(2).

18. It was in the above circumstances that the Tribunal affirmed the decision not to grant a Protection (class XA) visa. 

19. It was entirely a matter for the Tribunal to make findings on credit and upon the material before the Tribunal. Those findings as to credit were clearly open. Further it cannot be said that those findings lack an evident and intelligible justification. There is no substance in the assertion that the claims were genuine as a ground for jurisdictional error, as it was a matter for the Tribunal to determine whether it accepted the credit of the applicant, and the Tribunal gave detailed reasons, which were open to the Tribunal, as to why it rejected to the credit of the applicant.

20. To the extent that the applicant made reference to his family support being weak and having no money to travel, and repeating the explanation as to when he found out that he was at risk, these were matters to which the Tribunal clearly had regard, and made adverse findings, which were open. 

21. There is no ground upon which there would be any utility in adjourning the application or providing further time to the applicant, given that the grounds are doomed to failure and I am clearly satisfied that the application for an extension of time has no prospect of success, and I find as the explanation for the delay is wholly inadequate. Further, the application for an extension of time is doomed to failure because there is no arguable jurisdictional error in the conduct of the review of the decision or the Tribunal.

22. In these circumstances, there is no prima facie case of a kind that would support the grant of any interim relief as sought in the application in a case.  Accordingly, the application in a case, filed 20 February 2015, is dismissed.  The application for an extension of time filed 10 December 2014 is summarily dismissed, pursuant to s.17A(2) of the Federal Circuit Court Act 1999 (Cth), and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015