SZWBF v Minister for Immigration

[2016] FCCA 1406

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1406

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.36(2)(a), 36(2)(aa), 476, 477(1), 477(2)

Cases cited:

BRGAO v Minister for Immigration and Citizenship [2009] FCA 126
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9

Applicant: SZWBF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 254 of 2015

Judgment of: Judge Manousaridis

Hearing date: 8 June 2016

Delivered at: Sydney

Delivered on: 9 June 2016

REPRESENTATION

The applicant appeared in person by telephone assisted by an interpreter

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

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 applicant pay the first respondent’s costs set in the amount of $3,416.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 254 of 2015

SZWBF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period 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).  By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 22 October 2014 but the applicant did not file his application with this Court until 2 February 2015, that is 68 days outside of the requisite period.

Principles

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period if two things are satisfied. First, the application for such 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 must be 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]

   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.

   The factors to which I have referred at paragraph 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 (section 477, subsection (2), paragraph (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.

   [1] [2013] FCA 1284 at [47]-[48]

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, 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] What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.

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

Explanation for delay

1. The applicant, in his application, provides the following explanation for the delay:

   The applicant states that he could not lodge his application on time because he was waiting for money to come from his home country to pay the application fee. He did not have sufficient savings on his own.

2. Even if I were to assume this explanation is true, it is inadequate. [3] The absence of an adequate explanation for the delay, coupled with the length of the delay – 68 days – are matters that weigh against the Court concluding it is in the interests of the administration of justice than an order should be made.

   [3] See 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 Spender J; SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [25] per Barker J.

3. I next turn to consider whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time. That requires me to set out the applicant’s claims for protection.

Claims for protection

1. The applicant is a citizen of India and a Sikh. He arrived in Australia on 6 June 2009 as the holder of a Subclass TU 572 (Vocational Education and Training Sector) Student visa.[4] On 23 August 2013 the applicant lodged an application for a Protection visa.[5]

   [4] CB86

   [5] CB5-30

2. In a statement that formed part of that application, the applicant claimed to fear harm because he expressed opposition to a local Sikh preacher.[6] According to that statement, before he arrived in Australia the applicant was a devoted Sikh and regularly participated in the religious activities that took place at a place of Sikh worship. The applicant believed the local Sikh preacher manipulated and exploited ignorant worshipers, because the preacher was asking them to “respect him to that extent where it looked like that he was a God”. The applicant was outspoken in his opposition to the preacher and he and other worshipers spoke to him “on various occasions” demanding that the preacher “refrain from this sort of malpractice”. The preacher did not stop and was later shot and killed by one of the worshipers.

   [6] CB49-50

3. The preacher’s followers became agitated and accused the applicant and those who spoke out against him of killing the preacher. A large protest was held, with buildings and cars being burnt. After the protest a curfew was imposed on the area in 2009. Around this time the applicant managed to obtain a visa and fled the area, travelling first to New Delhi in disguise before leaving for Australia.

4. After he arrived in Australia the applicant’s parents told him that all of the preacher’s followers are against him and have promised to kill him if he returns to India. The applicant fears that his life will be at risk and he will be killed if he returns to India as authorities do not have sufficient resources to protect him.

5. Before the Tribunal, the applicant claimed as follows. In 2009 the applicant acted as head of his village Sikh temple. During the riots that followed the death of the Sikh preacher, the applicant and his friends tried to stop people rioting. The rioters did not listen to the applicant and he was pushed. The riots became worse; vehicles were set on fire and roads closed. The police were unable to control the rioters and the army was called in. They imposed a curfew and the trains were closed. The applicant tried to help people in the village, offering security to women and children. The applicant said he feared that the Sikh preacher’s followers will kill him because he was the head of his village Sikh temple during the riots and because he stopped rioters breaking things.

6. The applicant also advanced an additional claim before the Tribunal which was not included in his application for protection or articulated before the delegate. The applicant claimed that he feared returning to India because a man with whom he had had a fight over religious differences in January or February 2009 and who was later jailed, had since been released from jail “and now has strong connections”.

Tribunal’s reasons for decision

1. The Tribunal did not accept the applicant’s claims are true, or that the applicant had given truthful evidence about critical aspects of his claims, or that the applicant has any fear of harm if he returns to India, or that the applicant experienced harm in India before he came to Australia. The Tribunal relied on a number of matters:

2. First, there were significant inconsistencies between the applicant’s oral evidence and the written statement which the Tribunal found undermined the applicant’s credibility as a witness and the reliability of his evidence and claims.[7] They are as follows:

   a)Before the Tribunal the applicant asserted he was at risk of harm because he was “the head of his village Sikh temple”, due to his role in the riots and because the preacher’s followers were “ordered to kill the heads of the Sikh temples”.[8] On the other hand, in his application for protection, the applicant claimed that he and other followers spoke to the preacher about his malpractice, that he was shot after he refused to comply with their request, and that the preacher’s followers accused the applicant of killing him. The Tribunal did not accept the applicant’s explanation for the inconsistencies within his claims, noting that the applicant had been asked at the start of the hearing whether he had anything to add to his claims to which he responded no.

   b)The applicant failed to raise with the Tribunal an incident he had referred to before the Delegate.[9] The applicant claimed before the delegate in 2007 that he had an altercation with two members of the religious group lead by the Sikh preacher during which he was bashed from behind. The Tribunal put to the applicant his failure to articulate this claim at the hearing, in response to which the applicant claimed “he had not told the Tribunal”, and subsequently sought to change his oral evidence stating that it was the same fight he had mentioned with the man who went to jail in January or February 2009. The Tribunal did not accept the applicant’s explanation that his oral evidence about the 2009 fight was the same fight that occurred in 2007 as mentioned before the delegate and found this omission and inconsistency, together with the changing nature of the applicant’s evidence, raises significant concerns about the applicant’s credibility.

   c)The applicant claimed in his application for protection that he was informed by his parents that the preacher’s followers were against him and had promised to kill him, while before the Tribunal the applicant gave evidence that an order was given to the preacher’s followers to kill to the heads of the temple.[10]

   d)In his application for protection the applicant claimed he went into hiding in New Delhi before he departed  for Australia, while at the hearing the applicant claimed he hid at “friends’ homes and farms” before he left the village as he was wanted by the preacher’s followers.[11]

   e)Before the Tribunal the applicant claimed to have travelled by train to New Deli after the curfew was lifted.  The Tribunal put to the applicant that this evidence was inconsistent with his written statement, which recorded that he fled the area first, then travelled to New Delhi in disguise, and finally left the country. The applicant however declined the Tribunal’s invitation to comment on the difference.

   [7] CB140, [14]

   [8] CB140, [15]

   [9] CB140, [16]

   [10] CB141, [17]

   [11] CB141, [18]

3. Second, the Tribunal considered the applicant’s delay in leaving India to undermine his claimed fear of harm.[12] The Tribunal found the applicant left India in an orderly manner, taking two weeks to shop for clothes, visit relatives and confirm his travel arrangements. The Tribunal did not accept that a person who held a genuine fear for his safety and life as claimed by the applicant would have spent two weeks completing these tasks.

   [12] CB141, [20]

4. Third, the Tribunal considered the applicant’s 4 year delay in making his application for a Protection visa. The Tribunal noted that the applicant confirmed before the delegate that he had been granted a Student visa in 2009, in 2011 he applied for a further visa which was refused, in 2012 he unsuccessfully applied to the Migration Review Tribunal for review of that decision, in 2013 he unsuccessfully sought judicial review of that decision, and in July 2013 requested Ministerial intervention, which was refused. All this occurred before the applicant lodged his application for a Protection visa in August 2013.

5. The Tribunal referred to independent information to the effect that riots had taken place in the applicant’s village in May 2009 after the death of Guru Sant Rama Nand in May 2009, and that the army was used to restore peace and enforce a curfew.[13] While the Tribunal accepted that riots occurred and that the applicant may have been in the area at that time, the Tribunal did not accept that the applicant was the head of the Sikh temple, that he was threatened with death due to his involvement in the riots, that he fled his village and India to avoid those threats. The Tribunal does not accept that the applicant will be harmed or killed if he returns to India because of any role or position he held in a Sikh temple or because of any of his actions in the 2009 riots.

   [13] CB142, [23]

6. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act. Because the Tribunal was not satisfied that the applicant was ever persecuted as claimed, it found the applicant did not satisfy s.36(2)(aa) of the Act and was not a person to whom Australia has protection obligations.

Grounds of application

1. The application for review includes four grounds of review. Although invited to do so, the applicant, who is not legally represented, made no submissions in relation to any of these grounds.

2. The first ground is as follows:

   The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances.

3. In the particulars to this ground, the applicant sets out in detail the claims for protection he advanced before the Tribunal, and the Tribunal’s not accepting those claims. The particulars do not identify the information the applicant claims the Tribunal failed to take into account.

4. This ground raises no arguable claim of jurisdictional error. It invites the Court to inquire into the merits of the applicant’s claims for protection which the applicant advanced before the Tribunal, and which the Tribunal did not accept. The Court does not have jurisdiction to enter into an investigation of the merits of the applicant’s claims for protection.

5. The second ground is as follows:

   The failure to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities of life in India

   Particulars

   The Tribunal failed to understand and put the applicant in the context that existed in his home country of India. The Tribunal failed to understand the religious realities in the applicant’s village, by disowning him of facts that the applicant was entitled to. The applicant did not accepted that the applicant was the head of his village Sikh Temple, or that he might have religious rivalries. The Tribunal did not accept that in 2009, the applicant could have been killed, amidst the riot and people getting angry at the applicant. The applicant states that these are religious realities in India, where people become emotional and violence where their faiths are challenged.

6. This ground, too, has no merit. It assumes as true the claims the applicant made. The Tribunal, however, did not accept the applicant’s claims, and it did not do so because it was not satisfied the applicant was a witness of truth. Further, as I have already noted, the Tribunal did consider and identify country information that showed that riots had taken place in the applicant’s village in May 2009 after the death of Guru Sant Rama Nand, and that the army was used to restore peace and enforce a curfew.[14] While the Tribunal accepted that riots occurred and that the applicant may have been in the area at that time, the Tribunal did not accept the applicant was the head of a Sikh temple, or that he was threatened with death due to his involvement in the riots, or that he fled his village and India to avoid those threats.

   [14] CB142, [23]

7. The third ground is as follows:

   The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in India was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

   Particulars

   The Tribunal found that there is not a real chance that the applicant will suffer serious harm in India by simply rejecting evidence brought by the applicant as untrue, unreliable, and inconsistent. The Tribunal rejected that applicant was the head of his village Sikh Temple that he was threatened with during and after the riots in 2009, or that he was physically assaulted, verbally threatened by followers of the Guru Sant Rama Nand.

8. There is no merit in this ground. It is not correct the Tribunal simply rejected the applicant’s evidence. The Tribunal did not accept the applicant’s evidence for reasons. I have already identified the matters on which the Tribunal relied for not accepting the applicant to be a witness of truth. It was reasonably open to the Tribunal to rely on each of those matters for not accepting the applicant was a witness of truth. There is also nothing that could arguably indicate the Tribunal misunderstood or misapplied the law it was required to apply.

9. The fourth ground is as follows:

   The applicant was not afforded natural justice.

   Particulars

   The applicant believes that she [sic] was not afforded a fair hearing. The Honourable Member’s judgment was clouded by her own pre-conceived beliefs whether the applicant was a credible witness or not or whether the applicant’s evidence was genuine or mere fabrication, notion as to what constituted ‘fear’. In doing so, the Honourable Member allowed her view to prevail over the applicant, taking the power vested in her to come to conclusions which are detrimental to the rights of the applicant. The applicant feels unheard, and justice unavailable and procedural fairness denied.

10. This ground appears to allege bias by the Tribunal member. It alleges the Tribunal approached its task having predetermined the matter against the applicant. There is no substance to this claim. There is nothing in the Tribunal’s reasons for decision that could arguably suggest the Tribunal did not approach its task with an open mind. The Tribunal’s reasons indicate the applicant was given an opportunity to provide evidence and present arguments. And the Tribunal did not accept the applicant’s evidence on the basis of detailed reasoning in which the Tribunal relied on matters on which it was reasonably open to it to conclude that the applicant was not a witness of truth.

Ground raised in affidavit

1. The applicant raised an additional ground in the affidavit he filed with the application for review:

   During the determination of my evidence before the Department and at the Tribunal, I was not given a fair hearing. My evidence with regards to events and circumstances leading to my persecution was not accepted by the Tribunal, either believing them to be non-existent or claiming inconsistencies, omissions on my part. I state that I have a genuine fear to go back to India, which was not comprehensively and correctly assessed either by the Department or the Tribunal. I am requesting this Court to comprehensively analyse my evidence and take a decision accordingly.

2. This paragraph, about which the applicant also made no submissions, does not identify any arguable jurisdictional error. It complains the Tribunal did not accept the applicant’s claims. The Tribunal, however, was not bound to accept the applicant’s claims. Its duty was to consider the applicant’s claims and to determine whether it was satisfied those claims were true. There can be no doubt that the Tribunal considered the applicant’s claims. Unfortunately for the applicant, the Tribunal was not satisfied the applicant was a witness of truth; and its not being so satisfied was based on a process of reasoning which it was reasonably open to the Tribunal to adopt, relying on matters on which it was reasonably open to the Tribunal to rely.

Conclusion and disposition

1. For all these reasons – the absence of a reasonable explanation for the delay in commencing the application for judicial review, the 68 day delay in applying for judicial review, and the absence of any merit in any of the grounds stated in the application – I am not satisfied it is in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act.

2. I propose, therefore to dismiss the application for extension of time. I also propose to order that the applicant pay the Minister’s costs set in the amount of $3,416, and that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 June 2016