WZAUQ v Minister for Immigration
[2016] FCCA 152
•5 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 152 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to file application – factors in relation to extension of time – extent and reasons for delay – merits of substantive application. |
| Legislation: 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), Part 7, Division 4, ss.36(2)(aa), 91R(3), 422B, 425(1), 474, 476, 477 National Commission for Minorities Act 1992 (India) |
| BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 SZELX v Minister for Immigration & Anor [2007] FMCA 209 SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 WZAPM v Minister for Immigration & Citizenship & Anor [2013] FCCA 266 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 WZATH v Minister for Immigration & Anor [2014] FCCA 612 |
| Applicant: | WZAUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 243 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 5 February 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 243 of 2014
| WZAUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Judicial Review Application
The applicant applies for judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, at Court Book (“CB”) 151-172, made on 27 May 2014, affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) made on 28 March 2014 to refuse to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Judicial Review Application was lodged outside the time period set by s.477(1) of the Migration Act, and accordingly an extension of time was sought by the applicant (“Extension of Time Application”).
An affidavit filed by the applicant at the same time as the Judicial Review Application (transcribed without amendment) says that:
1.I am the Appellant on this procedures and I am a self represented litigant
2.I have included with this affidavit a copy of the Tribunal Reasons and an application for Migration Review under the Migration Act 1958 (the Act).
Extension of Time Application
Statutory framework
Section 477(1) of the Migration Act provides that an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the Tribunal Decision. The Judicial Review Application was lodged on 13 August 2014. The Tribunal Decision was made on 27 May 2014. The Judicial Review Application was therefore required to be lodged by 1 July 2014, but was lodged 43 days outside of the allowable time. Accordingly the Judicial Review Application is incompetent by virtue of s.477(1) unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
General principles on extension of time
The factors the Court takes into consideration in deciding whether it is in the interests of the administration of justice to extend the time limit under s.477(2) of the Migration Act are well established and include the following non-exhaustive list of considerations:
a)the extent of the delay;
b)the reason for the delay;
c)any prejudice to the respondents;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merit of the proposed substantive application.
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls and cases there cited (“SZRUG”); WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [9] per Judge Lucev (“WZASQ”); BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Explanation for delay
In this matter the delay is 43 days. The delay, therefore, is quite substantial. Rule 44.05(2) of the FCC Rules prescribes that there must be an explanation provided on affidavit:
a)as to the delay; and
b)as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time:
WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [6] per Judge Lucev; WZASQ at [15]-[16] per Judge Lucev.
The applicant has filed an affidavit which arguably seeks to explain the reasons for the delay (as is mandatorily required by r.44.05(2)(c) of the FCC Rules). However, the explanation provided by the applicant that he is “a self represented litigant” is not – without more – a satisfactory explanation for the delay.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
There is no evidence that the applicant is in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. Furthermore, there has been no explanation as to why it would be in the interests of the administration of justice to grant an extension of time.
While the applicant says in the Judicial Review Application that he submitted an application which was returned because it contained errors, no explanation is provided by way of further affidavit or other evidence to establish whether that earlier application was sought to be lodged within time, or the basis for his explanation for the failure to lodge the application within time. This failure to provide an adequate explanation for the delay is further, and sufficient, reason to refuse the extension of time sought: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J.
In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation for the delay, or any reason as to why it would be in the interests of the administration of justice to grant an extension of time.
Prejudice to the Minister
The Minister asserts that he would be prejudiced by the granting of an extension of time as he would be put to the cost of defending the Judicial Review Application which fails to demonstrate sufficient prospects of success. The Court accepts that that submission is correct, but where, as here, it is necessary to give consideration to the merit of the Judicial Review Application as one of the factors in determining whether to extend time, the degree of prejudice must be minimal. In any event, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett.
Merits of the Judicial Review Application
It is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J (“SZQGO”) and the authorities there cited. This principle applies to the Extension of Time Application: SZSDA at [39] per Foster J; SZRUG and the discussion of the merits of the grounds at [32]-[87] and the conclusion at [88] per Judge Nicholls.
Background prior to Tribunal proceedings
The applicant:
a)is an Indian citizen born on 10 October 1983 in India: CB 19 and 33;
b)first arrived in Australia in March 2008 on a Student Visa: CB 58;
c)lodged an application for the Protection Visa on 6 March 2014: CB 5-32; and
d)made claims for protection which were annexed to his Protection Visa application: CB 56-59, submitting that he had a well-founded fear of suffering persecution for Convention (being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) reasons if he returned to India because of:
Religious opinion: holding different religious opinion and or change of religious faith
CB 56 and 58;
e)although it is a little difficult to understand it is also seemingly submitted that the applicant would not be able to re-locate within India and would not be able to obtain effective protection from the Indian authorities: CB 56;
f)in what appears to be a document prepared by the applicant’s then lawyers, the applicant’s claims for protection are set out as follows:
Submission of the Client
1. The Applicant came to Australia in March 2008 on a student visa.
2. On completion of his first year of studies, he met his partner, Marrisa Evans. Marrisa is of Christian faith.
3. The applicant and Marrisa started living together in April 2009 and eventually got married on 27 March 2010.
4. It was during my engagement to Marrisa, that I became interested in Christianity. As I was born a Sikh, I never had experience of knowing another religion. I felt Christianity was an interactive religion where church preachers delivered sermons on kindness and helping each other and advocated peace and loving kindness among members of society.
5. I was very impressed by the church environment, its gentle welcoming of the people like us.
6. I started to go to church with Marrisa situated close to Robima Town Shopping Centre, Gold Coast whenever possible and started to read the bible.
7. As time went, however, there were differences between Marrisa and me eventually leading to our separation in October 2011 although we did not separate legally.
8. I continued with my interest in Christianity.
9.
10. In April 2013, I was studying at Kings International College and used to attend the church situated in the same premises. My teacher at this college, Peter Spink, used to accompany me to Kings International Church. I felt belonged to the church more than ever. For some reason I did not grow a beard or wear a turban which are elements that a devoted Sikh would do. I realised I felt no longer devoted to Sikhism. I felt restricted by Sikhism, its demands on hair, headwear, beard, food consumed etc. I felt these things are not related to our genuine religious feelings.
11. I got baptised in April 2013.
12. I felt a free person with the liberal ideas of Christianity.
13. However, word spread about my conversion to members of my community. Community leaders and elders were angry with me for abandoning my religion and insulting it. My parents decided to cut me off from my entitlements. Religious fanatics of my religion back home are threatening to execute me if I ever come back to India.
14. There are rumours among the student federation, that I have converted to Christianity to espouse western values and benefit from such associations. This has angered many in my religion, who are fiercely proud and take revenge for any insult to their faith.
15. Due to these reasons, I fear to go back to India. Even if I seek the protection from authorities, these type of situations are not taken seriously as the authorities have many other serious matters to deal with.
CB 58-59 (transcribed without amendment); and
g)made claims in relation to protection to the Delegate which were more detailed than the claims annexed to his Protection Visa application, and which were as follows:
Submissions of the Client
1.I came to Australia in March 2008 on a student visa.
2.On completion of my first year of studies, I met my partner, Marrisa Evans. Marrisa is of Christian faith.
3.I and Marrisa started living together in April 2009 in Gold Coast, and we used to go together to Anglican Church in Robina on Sundays.
4.In 2009 we moved to Western Australia and got married on 27 March 2010.
5.While we were living in Western Australia Marrisa could not find a job, therefore we decided to move back to Gold Coast. She tried to get a job in Gold Coast but unfortunately she was unsuccessful.
6.I was working full time to support both of us, and also during that time Marrisa was suffering from anxiety and depression for which she was taking medication. I was paying for her medication as well.
7She was always asking me for money and sometimes taking money out of our joint account without my knowledge. Due to that reason occasionally we had arguments and at one stage she obtained ADVO against me.
8.After she obtained ADVO against me we both separated, and soon after I lost my job. I was unable to pay my expenses and became homeless.
9.I went for help to few different charitable organisations, and eventually I decided to go to church for help and peace of mind. I met Senior pastor Grieg and pastor Bill whom I told my story, and they were kind enough to provide me with food and shelter at Peter Spinks place.
10.As I was born as a Sikh, I never had an experience of knowing about another religion. I felt Christianity was an interactive religion where church preachers delivered sermons on kindness and helping each other. They also advocated peace and loving kindness among members of society.
11.I started going to church on Tuesdays and Sundays for morning and evening prayers. It started changing my belief towards Christianity. After five months I decided to devote my heart to Jesus and converted myself, by being water baptised in church on 2nd of June 2013. I also took part in Evangelism and went out in groups to pray for people who were in pain and sickness. I told my family about my conversation to Christianity, which was not welcomed very warmly by the whole family, especially by my father.
12.Later on I got a job as a cleaner to support myself and tried my best to convince my partner to get together.
13.We also attended marriage counselling, but my partner decided not to live with me anymore.
14.I kept my spiritual journey with Christ and regularly attended church.
15.One day I was caught by immigration and brought into detention centre in Sydney. In detention centre it is very hard for me to get in touch with my church family.
16.In detention centre I called my father and told him about me being in the detention centre. He said that I deserved that because I changed my religion. He went off his head and said that you have brought shame to me and the whole Sikh religion which is unacceptable. He said that if I ever come back to India he will kill me, and even if I will spare you the Sikh community called as Shromni Gurdwara Parbandhak Committee will not spare me.
17.I told my father that this is my life and I have a choice of freedom to choice my religion, but he did not accept my argument and continually abused me.
18.In my childhood I was forced to wear a turban and grow a beard. I was told to keep a ‘kirpan’ which is a small knife. However I want my kids to follow the same path as I am following now and become Baptist Christians.
19.In India Christians are in minority and do not have any self-respect, liberty and freedom of speech. Christians do not have the freedom to practice Christianity and are in constant threat to be assaulted in and outside the church.
20.I want to continue my journey with Lord Jesus Christ learnings and practice as a Baptist Christian in Australia.
21.I will be killed if I go back to India, as I have changed my religion.
CB 100-101 (transcribed without amendment).
Annexed to the submissions to the Delegate were a copy of a letter from the Pastor of the King’s Christian Centre which indicated that the applicant had:
a)attended services regularly on a Sunday for six months from November 2012, and subsequently came occasionally as he was able to;
b)was water baptised at the church on 2 June 2013; and
c)attended a small Christian group meeting every Wednesday night from January to May 2013, and had kept in contact with the leader of the group subsequently and into 2014.
CB 102.
A copy of a water baptism certification for the applicant from the King’s Christian Centre dated 2 June 2013 was also annexed to the submissions to the Delegate: CB 103.
On 28 March 2014 the Delegate refused the applicant’s application for the Protection Visa: CB 104-125.
Tribunal proceedings
On 2 April 2014 the applicant lodged an Application for Review with the Tribunal: CB 126-128.
By letters dated 17 April and 1 May 2014 sent to the applicant’s lawyers the applicant was invited to attend a hearing before the Tribunal scheduled for 9 May 2014: CB 133-137.
The Tribunal hearing was conducted by video-link between the Tribunal in Sydney and the applicant in the Yongah Hill Immigration Detention Centre, and the applicant appeared with the assistance of an interpreter in the Punjabi and English languages: CB 143 and CB 156 at [14]. For reasons which are not apparent the applicant’s representative was seemingly not present, the Tribunal Hearing record indicating that he was “NP”: CB 143.
Following the Tribunal hearing, on 21 May 2014, the applicant’s solicitor and migration agent provided further material to the Tribunal: CB 147-148.
Tribunal Decision
The Tribunal Decision sets out the protection claims and evidence in support of those claims from the applicant, summarising accurately both the initial claims for protection made in the Protection Visa application and the claims for protection made in the submissions to the Delegate: CB 152-154 at [8]-[12]. The Tribunal noted that the submissions to the Delegate “present[ed] a somewhat different account of the Applicant’s substantive claims” to those in the initial protection claims: CB 153 at [11].
The Tribunal Decision also refers to additional claims made at the applicant’s Protection Visa interview conducted by telephone on 17 March 2014, which included:
a)his work history as a cleaner in Australia prior to being placed in immigration detention;
b)his completion of a commercial cookery course in Australia at the end of 2008, which was his last period of study (having entered Australia on a Student Visa);
c)that he was still in contact with his family until he was placed in immigration detention, but his father was not pleased about his conversion to Christianity and told him he deserved to be in detention and he had now been rejected by his family;
d)that he would be in danger wherever he went in India, and therefore could not re-locate anywhere in India;
e)that he did not make a claim for protection in June 2012 when he received a death threat from his father because he was suffering from depression for a long time and had been concentrating on trying to reconcile with his wife, and did not know that his Student Visa had expired;
f)that he came to Christianity through his wife who he used to drive to church, and he began attending the King’s Christian Centre Church in 2012 “when he went there early one morning to obtain his certificate from the adjacent college” and met the Pastor who invited him to join the church’s worship;
g)that he did not know of the magazine of the King’s Christian Centre Church, and was unable, he said because of strong medication he was taking for depression, to remember the nine beliefs or statements of faith of the Kings Christian Centre Church;
h)that he practised his religion by praying for people who were in pain, and demonstrated this by reciting part of the Lord’s Prayer;
i)that he would take a verse from the Bible and meditate upon it, and that his baptism was performed with water; and
j)that when asked about the Bible said that the Old Testament was more difficult that the New Testament, and gave some indication of a knowledge of the writings of the apostles and the story of Jesus, was able to offer a version of the parable of the prodigal son and references to other passages in the Bible, and when asked why he did not know more about the Bible, given that he regularly attended Bible study, said “he was not a preacher but a humble servant of the Lord.”
CB 154-155 at [13].
The Tribunal Decision indicates that at the Tribunal hearing the applicant:
a)confirmed the truth of the information in his Protection Visa application and two prior written statements, and said that he had experienced some confusion at the Protection Visa interview as a result of the depression he was experiencing;
b)confirmed that he could effectively participate in the Tribunal hearing as long as questions were put to him slowly one at a time (in this respect the Tribunal hearing lasted for one hour and 44 minutes before being adjourned for 17 minutes and then resumed for a further 52 minutes: CB 144);
c)reiterated the intolerance of the closely connected Sikh communities in India to any religion conversion;
d)confirmed that he had no fear of harm for any other reason in India, other than from Sikhs or those personally connected to them;
e)said that when he arrived in Australia on a Student Visa in 2008 he enrolled in courses in English and commercial cookery and his tuition and other costs were borne by his father who sold the applicant’s share of the family’s land for that purpose;
f)his Student Visa was cancelled when he encountered financial difficulties following his marriage in March 2010, which marriage broke down at the end of 2012, following which he was homeless and living on the street for some time and was unaware that his Student Visa had expired;
g)his family had been Sikhs for ten generations, and his father, who was head of a local Sikh committee, was devoutly religious, but the applicant only assisted his father in making arrangements for specific festivals and other events, and had not involved himself with the Sikh religion after arriving in Australia;
h)gave evidence that he had ceased wearing a turban or a beard, allowed his hair to grow, and had not observed Sikh dietary requirements or the carrying of the Sikh ceremonial knife, and said that he ceased wearing a turban and wearing a beard a few days before he arrived in Australia (which was in March 2008: CB 58), and had never carried the knife;
i)said that he had been involved in a motor cycle accident ten years previously which meant he could not wear a turban, and the changes were not a result of his conversion to Christianity;
j)in response to the Tribunal’s question concerning him appearing in a passport photo, from March 2006, dressed in western clothing, not wearing a turban, without a beard or moustache and with his hair cut short, the applicant said that he had stopped growing his hair after the accident, ceased wearing a turban and wore western clothes. When the Tribunal observed that this was at a time when he was still living with his family within a Sikh community and that his father had subsequently paid a large amount of money to support him in Australia, and that his suggested that he appeared to have been accepted and tolerated notwithstanding his non-observance of vital aspects of his Sikh religion, the applicant said that the community had opposed him when he had cut his hair but they tolerated him because he had medical reasons for doing so and for not wearing a turban. When the Tribunal questioned the applicant about not wearing a moustache or beard he said “a person can dress as a Sikh or in western dress”: CB 157 at [15];
k)said that the claim to kill him because of his change of religion arose because of his conversion, not because he had not been following his religion previously;
l)said that he became involved in Christianity through attending church with his disabled wife whom he had to accompany, and that after the marriage broke up he was homeless and the church helped and accepted him;
m)said that his work as a cleaning contractor prevented him from attending church as often as he would like following his baptism in June 2013;
n)said that his last visit to church was Christmas Eve 2013, but that he would attend Bible readings and prayers in Villawood Immigration Detention Centre when people came to read them, but he did not know which church those people belonged to;
o)in response to questions about his knowledge of the Christian religion said that his knowledge of the Bible was affected by his depression which prevented him from remembering things, and that it was not easy to understand in English, and was a large body of work which could not be mastered in the short term;
p)when invited to tell the Tribunal stories from the Bible, told the Tribunal a story about Jesus helping a man in a forest suffering from leprosy, but prompted about the parable of the good Samaritan said that he could not recall any stories like that;
q)said that Jesus was crucified aged about 31 or 36 years at a place named Golgotha, and that he thought that it was about 800 years ago;
r)complained that the interpreter was not correctly interpreting what he said, and said that if the interpreter was not giving the impression he wished to convey what was the purpose of employing her;
s)invited the Tribunal to ask him the questions about the Bible again directly in English, and when asked about stories Jesus told the applicant said he was not really concerned about them and that if he knew each and every word in the Bible he would have been a priest, and that the Bible was not the work of a day, but the journey of a lifetime, and that he was a devoted Christian engaged in evangelism who was a humble servant of the church whose mission was not to gain a complete knowledge of the Bible;
t)gave an account of the Old Testament as dealing with a period before Jesus was born, and the New Testament as being about the life of Jesus, responded to a question about the Book of Genesis as being about creation, and then gave a reasonably accurate summary of the Genesis story of Adam and Eve, and when asked why he had not been able to provide that information during his Protection Visa interview said that it was because of memory problems resulting from the medication he was taking;
u)having had the operation of s.91R(3) of the Migration Act explained to him by the Tribunal, said that he had become involved with the King’s International Church (which is presumably the same church as the King’s Christian Centre Church) in 2013 well before he lodged his Protection Visa application and he had no intention of seeking protection at the time he was baptised, and it was only later after he was threatened with death that he did so. When the Tribunal noted that he had claimed the death threat occurred at the time of his baptism, when he told his family about it, he said the interpretation of the response, over the telephone, had been faulty and misleading; and
v)in response to the Tribunal putting to him independent country information indicating that there were many Christians in India and that they were able to worship in freedom, the applicant reiterated that he could not survive in India and that the Sikhs had connections everywhere and that he would be killed, and that he would be under threat at all times.
CB 156-160 at [15].
Subsequent to the Tribunal Hearing on 22 May 2014 the applicant’s representative made a written submission to the Tribunal:
a)concerning the reasons that the applicant had changed from the Anglican church to the King’s International Church;
b)asserting that the applicant’s depression and medication affected his memory, and therefore his capacity to remember any of the stories from the Bible;
c)asserting that the applicant could not re-locate to the southern part of India where Christians are in the majority, and even if he were to re-locate he could not change his name and the risk to him would remain;
d)asserting that the applicant was attracted towards Christianity because of its liberal values; and
e)asserting that in 1936 the “Sikh Commission Board” had passed “Acts” prohibiting a Sikh from marrying someone from a different faith and stating that a Sikh who practised another religion or worshipped idols would be prosecuted with the death penalty.
CB 160-161 at [16].
The Tribunal Decision canvasses independent country information relating to:
a)Sikh religious practices such as:
i)the non-cutting of hair, including the beard; and
ii)the wearing of the turban,
and cites a 1999 Immigration and Refugee Board of Canada response to information request indicating that Sikhs who veered from the path by engaging in anti-Sikh behaviours such as cutting of the hair might be harassed by other Sikhs: CB 161-162 at [17]-[22];
b)Sikh treatment of converts to Christianity, noting that:
i)the form of any ostracism from family and community of a Sikh who had converted to another religion would depend upon the individual family or community, and whilst there were reports of Sikh groups targeting converts to Christianity in earlier years (a 2009 news report is referenced) there was no information found suggesting that Sikh groups systematically target converts from Sikhism: CB 162 at [23];
ii)the United States Department of State cited several incidents of anti-Christian violence in India in 2012 in its International Religious Freedom Report, but there were no reports of violence specifically against Sikh to Christian converts: CB 163 at [25]; and
iii)Sikh sources often discuss the issue of conversion to Christianity, and other religions or sects, with hostility and alarm and call for strict action to be taken against those seeking to convert Sikhs to Christianity: CB 163 at [26]; and
c)State protection, noting that:
i)a United States Department of State International Religious Freedom Report from 2012 said that “some local police and enforcement agencies in certain instances failed to respond effectively to communal violence, including attacks against religious minorities”: CB 164 at [28];
ii)India faced problems, including limited resources, corruption and abuse of power by authorities, in providing State protection, and that those general problems were applicable to its ability to protect Sikh to Christian converts: CB 164 at [29];
iii)the United States Department of State had noticed that some state governments enforced existing anti-conversion laws, but that Rajasthan and Punjab are not listed as states which have active anti-conversion laws: CB 164 at [30];
iv)Christians are recognised as a minority community by the National Commission for Minorities Act 1992 (India) which provides that the government will protect the existence of religious minorities and encourage conditions for the promotion of their individual identities: CB 164 at [31]; and
v)there are sizeable Christian populations in several parts of India, particularly in the southern states of Kerala, Tamil Nadu and Goa, and the three small north eastern states of Nagaland, Mizoram and Meghalaya have large Christian majorities: CB 164 at [32].
The Tribunal then turned to a consideration of the claims and evidence and accurately summarised the applicant’s claim as being a fear that he will be seriously harmed, and may be killed, on the Convention ground of his religion, as a Christian who has converted to that religion from Sikhism: CB 165 at [34].
In relation to the alleged threats to the applicant, the Tribunal:
a)found that it was not satisfied as to the credibility of the applicant’s unsubstantiated claim that he had been threatened by his family or that he was at risk of harm in India: CB 165 at [36] because:
i)the applicant had been raised in a family and community notably strict in its observance of the Sikh religion, and so strong that the applicant’s father and the Sikh community were said to be prepared to kill the applicant for his apostasy in forsaking Sikhism and converting to the Christian religion: CB 165 at [37];
ii)the applicant provided inconsistent reasons for not complying with the symbolic and traditional Sikh dress (long beards and hair, wearing a turban and carrying a ceremonial knife or sword), with the Tribunal noting that the applicant had suggested that he ceased wearing a turban, long hair and a beard only a few days before coming to Australia, but when asked about a 2006 passport photo showing him without a turban, beard or moustache and with his hair cut fairly short, stated that the reason for that was that it was the result of a head injury sustained in a car accident some 10 years ago, and when asked why this would prevent him wearing a beard and moustache he then said that, and only that, Sikhs are free to adopt western dress if the wish. The Tribunal also noted that the applicant had never carried the ceremonial knife which was one of the symbols of Sikhism, and that in written submissions on 22 May 2014 from his advisers a further explanation was suggested, and that was that he was simply uncomfortable with the requirements of the Sikh religion, and that this was one of the things that attracted him to Christianity because of its liberal approach to such matters: CB 165-166 at [39];
iii)the inconsistencies meant that the Tribunal was unable to be satisfied as to the credibility of the unsubstantiated claim made by the applicant that he was prevented by a medical condition from wearing a turban or uncut hair, and which, in the Tribunal’s view, provided no explanation as to why he would also have been prevented from wearing a beard or moustache or from carrying a knife, and that, therefore, “the most likely reason for his lack of observance of these aspects of Sikh religious expression is, simply, that he found them in some way inconvenient or restricting. To adhere to them, or not to do so, was a matter of personal choice for him”: CB 165-166 at [39];
iv)the country information indicated that there were variations to the extent to which male Sikhs in India observed religious requirements and practice, and some led more westernised lifestyles and therefore felt free to dispense with some or all of the religious requirements, at least in public, and that this was the position with the applicant himself “when he lived in India”, and that this personal choice did not attract any adverse consequences in that he was not forced to comply with orthodox religious practice and does not claim to have suffered any harm from his failure to do so, and that he continued to live in the family home, and in his village community, and his father sent him large amounts of money to enable him to study in Australia, which demonstrated a close and supportive family relationship, during a period when the applicant was ignoring core aspects of the Sikh religious practices and lived “in an atmosphere of considerable tolerance as regards his religion”: CB 166 at [40]; and
v)the evidence pointed to the applicant living in an environment of liberality in India which allowed him considerable freedom to live as he wished which was “markedly at variance with orthodox Sikh religious practice” and which was inconsistent with the claim that his family, who provided the liberal environment in which he lived, would go to the extreme of harming or killing him for religious conversion or because he was a Christian: CB 166 at [41]; and
b)therefore did not accept the truth of the applicant's claim that he had been threatened with serious harm, or death, from his family or his community for such reasons: CB 166 at [41].
In reaching the above conclusion the Tribunal had regard to information concerning violence towards those who convert from Sikhism to Christianity, and noted that:
a)violent incidents directed towards Christian converts from Sikhism are relatively infrequent and sporadic, and that there was no evidence of systematic targeting;
b)religious conversion is permitted under Punjab law; and
c)it was not possible to verify claims to “Acts” passed in 1936 by a “Sikh Commission Board”, but the Tribunal did not consider that they could have relevance to the situation the applicant would find himself in if he were returned to India, given that those “Acts” pre-dated Indian independence: CB 166-167 at [42].
In relation to the nature of the applicant’s Christian faith, the Tribunal:
a)was prepared to accept, on the basis that the applicant commenced attending King’s International Church 16 months prior to lodging the Protection Visa application, that his motives for attending the church and subsequently undergoing baptism were otherwise than to strengthen his claims for protection: CB 167 at [45];
b)considered that there were reasons to doubt the extent to which the applicant had embraced the Christian faith, and referred in particular to:
i)the applicant’s ability to provide only limited information in response to questions about the King’s International Church and the Bible at the Protection Visa interview;
ii)that there was little in his responses to questioning from the Tribunal which suggested his exposure to Christian worship and teaching had had any particular significance for him or that his baptism might have represented a transformational event in his life;
iii)his descriptions of religious gatherings at Villawood Immigration Detention Centre which were highly vague; and
iv)his claimed involvement in evangelical activities which was not significant: CB 167-168 at [45];
c)additionally considered the nature of the applicant’s responses on some of the issues and found that:
i)there was no substantiation for the applicant’s claim to be consulting a psychiatrist for depression and having been prescribed medication, but nevertheless accepting it, did not accept, having had the opportunity to observe the applicant at the Tribunal Hearing and consider his responses to questions, that he did in fact suffer from a poor memory, beyond the normal limits of human recall;
ii)he gave obfuscatory responses to questions concerning the Bible, and that he was unable to relate stories told by Jesus because, in the Tribunal’s view, he did not know any of them; and
iii)his claimed lack of confidence in the interpreter provided by the Tribunal was disingenuous, and only arose in the last few minutes of the hearing, when he was invited to speak about stories told by Jesus, and that when he was invited to respond to the same questions in English (which he spoke fluently) his responses corresponded closely with the version previously provided by the interpreter, and the Tribunal was “not satisfied that the standard of interpretation in this or any part of the hearing was deficient”: CB 168-169 at [46];
d)found that the applicant was drawn to the King’s International Church by the practical support it gave him following the breakdown in his marriage in late 2012: CB 169 at [47];
e)accepted that the applicant converted from Sikhism to Christianity in 2013, but was not satisfied that this marked a very significant change in the applicant's life as the Tribunal did not consider him to be a devoutly observant Sikh before 2013 or that he has become a devoutly observant Christian since then. The Tribunal was also not satisfied that if the applicant were to return to India that he would seek to worship as a Christian or undertake evangelical work designed to convert others to Christianity: CB 169 at [47];
f)was not satisfied that there was a real chance that the applicant would face serious harm on return to India because of his conversion from Sikhism to Christianity, a conclusion reinforced by the delay of some nine months between the date of the applicant’s baptism in June 2013 and his application for a Protection Visa made after he had been placed in immigration detention in March 2014: CB 169 at [48]-[49];
g)was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there would be a real risk that he would suffer harm which would amount to significant harm in terms of the complementary protection provisions of s.36(2)(aa) of the Migration Act: (CB 169-170 at [51]; and
h)affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 170 at [53].
The Judicial Review Application and proceedings in this Court
Earlier orders
The Court made orders on 15 October 2014 (“15 October 2014 Orders”) which permitted the applicant to file and serve an amended application or any affidavit evidence by 26 November 2014. No amended application nor further affidavit was filed. Nor did the applicant file submissions as he was entitled to do under the 15 October 2014 orders.
Grounds of the Judicial Review Application
The Judicial Review Application raises three grounds which, transcribed without amendment from the Judicial Review Application, are as follows:
GROUND 1
The Tribunal made a procedural mistake in not taking into consideration vital information provided by the applicant or not giving sufficient weight to such evidence.
Particulars
The applicant pleads that information relevant to his case was not given due consideration by the Tribunal. For example, the applicant showed that he is now a devout Christian practicing Christianity which was not accepted by the Tribunal. This is a misconstruction of the applicant's religious faith and form an illogical conclusion.
GROUND 2
As the Tribunal did not take into account evidence or due weight to such information was not given or considered irrelevant to his case the applicant-suffered injustice.
Particulars
The applicant states because the Tribunal did not accept his evidence as valid, or was considered irrelevant or was without a base his application for protection was rejected.
GROUND 3
The applicant was not given a fair hearing by the Refugee Review Tribunal.
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”). If there is no jurisdictional error, then no relief can be afforded to the applicant.
Consideration – ground 1
Ground 1 appears to assert error by reason of:
a)ignoring relevant material in the sense referred to in Yusuf, or possibly failing to respond to a substantial, clearly articulated argument relying upon established facts, which is actually a failure to accord natural justice, in the sense referred to in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] per Gummow and Callinan JJ; and
b)not giving sufficient weight to such evidence (that is, presumably, evidence not allegedly considered).
In terms of the ignoring of relevant material or failure to respond arguments, the only relevant particular is that the Tribunal did not accept that the applicant was a devout Christian.
The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant. The Tribunal’s conclusions that it did not accept the claims as made by the applicant as to his alleged devoutness were findings of fact, open to the Tribunal on the available material for the reasons that it gave: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J (“Randhawa”); Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ (“Shatku”); SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J (“SZQWV”). The Tribunal set out and took into account the information and claims made by the applicant as to his conversion to, and the nature of, his Christianity, and further information was elicited as a result of enquiries made by the Tribunal of the applicant at the Tribunal Hearing: see [25(f)-(j)] and [26(l)-(v)] above. The Tribunal drew conclusions on the basis of all of that material, in particular as to the devoutness of the applicant’s Christian faith: see [32(a), (b), (c)(ii), (d) and (e)] above, as it was entitled to do: Randhawa FCR at 451 per Beaumont J; Shatku at [19] per Gray, Dowsett and Stone JJ; SZQWV at [23] per Gilmour J.
Aside from the matter particularised and dealt with by the Court above: see [37] above, it otherwise suffices to observe that the Tribunal very fully set out the applicant’s claims, and considered all of them, before arriving at conclusions plainly open on the evidence. In those circumstances, an allegation that the Tribunal ignored relevant material or failed to respond to an argument cannot be made out.
The applicant also suggests that there was jurisdictional error by reason of the Tribunal’s reasoning being illogical.
In the High Court in Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [119] per Crennan and Bell JJ (“SZMDS”) the plurality majority Justices accepted a submission that:
…not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.
Those plurality Justices went on to say at [130] per Crennan and Bell JJ that:
…illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.
Importantly, the above observations were caveated by the following observation of the same plurality Justices at [135] per Crennan and Bell JJ:
…a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.
In SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 it was observed at [15] per Rares J that:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
and further at [85] per McKerracher J that:
… Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….
In this case the findings made by the Tribunal were all findings which were open on the factual material before the Tribunal, for reasons set out otherwise in relation to the other grounds of review. Likewise, those findings have a logic and rationale discernible from and on that same factual material. The Tribunal arrived at factual conclusions which were within the reasonable range of factual conclusions open to an administrative decision-maker. In the above circumstances, there is no illogicality in the reasoning of the Tribunal in the Tribunal Decision, and, therefore, no jurisdictional error on this basis.
Ultimately the applicant has done little more than submit that he does not agree with the findings of the Tribunal. This is an impermissible plea for merits review and cannot be entertained by the Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
The applicant complains that the Tribunal has not given sufficient weight to the evidence that it ignored or failed to respond to. The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ, and the failure to give “sufficient weight” to particular facts (for example, about the devoutness or otherwise of a person’s belief) does not give rise to jurisdictional error.
For all of the above reasons ground 1 cannot be made out and demonstrates no jurisdictional error in the Tribunal Decision.
Consideration – ground 2
Ground 2 appears to be no more than a differently worded reiteration of ground 1, which disputes the Tribunal’s findings, without proper particularisation, alternatively, with particulars that are not comprehensible. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM (“SZLEX”); WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (“WZATH”).
The generalised allegation in ground 2 that the Tribunal took into account irrelevant considerations is simply not made out. The Tribunal took account of no consideration that it was not bound to consider under the Migration Act, or implied by the subject matter, scope and purpose of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 at [19]-[41] per Mason J.
For the above reasons, ground 2 cannot be made out, and does not give rise to jurisdictional error in the Tribunal Decision.
Consideration – ground 3
Ground 3 is a bare assertion of a failure to afford the applicant a fair hearing, that is a denial of procedural fairness, by the Tribunal.
Ground 3 is completely lacking in particulars and therefore able to be dismissed on that basis alone: SZLEX at [17]-[21] per Emmett FM; WZATH at [60] per Judge Lucev. Nevertheless, the Court has considered the bases upon which a failure to afford procedural fairness might arise in a matter such as this.
If the contention is one of actual or apprehended bias, there is no evidence before the Court to indicate that the Tribunal was guilty of pre-judgment or was in any way biased. It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421, (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly raised various concerns about the applicant’s case with the applicant and canvassed relevant issues in accordance with its obligations under the Migration Act: see, for example, at [26] above. The opportunity afforded to the applicant to make submissions before and after the Tribunal hearing, and the Tribunal’s questioning of the applicant at the Tribunal hearing, demonstrate that the Tribunal gave the applicant the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims, a fact reinforced by the applicant being allowed to file Post-Tribunal Hearing Submissions. In relation to these matters, the Tribunal Decision does not demonstrate pre-judgment on the part of the Tribunal, nor does it give rise to a reasonable apprehension of pre-judgment by the Tribunal: cf WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [71]-[72] per Barker J. No inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal Decision: VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23 at [21] per Kenny J.
If the allegation is one of a lack of procedural fairness then:
a)the requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act: Migration Act, s.422B; and
b)as this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: CB 141-142; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 9 ALD 300 (“SZBEL”). The applicant attended the Tribunal Hearing and gave evidence in support of his claims CB 143-144. The Tribunal Decision shows that the Tribunal put to the applicant matters in respect of which the Tribunal might make an adverse finding, or which were in some way in contention or dispute. It is unnecessary to set out the Tribunal Decision for these purposes in any more detail than is set out above: see [24]-[32] above. No evidence was led by the applicant in contradiction of the procedural and evidentiary narrative set out in the Tribunal Decision, and in those circumstances, the Court accepts the procedural and evidentiary narrative as set out in the Tribunal Decision: SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at [13] per Collier J (“SZGJY”); Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [59] per Perram J (“SZNVW”). The Tribunal’s obligations under s.425(1) of the Migration Act were therefore complied with.
In its findings and reasons the Tribunal considered each of the claims which had been made by the applicant, and dealt with them at some considerable length, as set out above: see [24]-[32] above. In circumstances where the Tribunal had regard to the claims made by the applicant at each stage of the administrative review process, but in particular the claims made to the Tribunal itself, and the applicant was given an opportunity to be heard both with respect to his claims and the Tribunal’s questions concerning his claims, which were put to the applicant during the course of the Tribunal hearing, there can be, in the absence of any particulars for this ground, no proper basis for a suggestion that the applicant was denied procedural fairness by the Tribunal.
The Tribunal Decision noted at CB 159 (bullet points 1-3) that the applicant raised an issue with the way the interpreter was interpreting his evidence regarding his knowledge of the Christian faith. The Tribunal Decision notes that the applicant requested that the Tribunal ask those questions directly to him in English which the Tribunal then did: CB 159 (bullet point 2). Having questioned the applicant directly in English the Tribunal observed that the “interpreter had previously conveyed an accurate translation of these responses”: CB 159 (bullet point 3). It is the case that if an applicant has had proceedings mis-interpreted in a manner which has a significant impact upon the outcome of the proceedings because, for example, the Tribunal has been misled as to relevant facts or claims, or relevant facts or claims have not been put before the Tribunal as a consequence of the misinterpretation, that that has been held to be a denial of procedural fairness by both the Federal Court and this Court: see, for example, Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 and WZAPM v Minister for Immigration & Citizenship & Anor [2013] FCCA 266.
In the absence of a transcript of the Tribunal hearing, and an affidavit from an accredited interpreter as to what was or was not said at the Tribunal hearing, it is not possible to conclude that there was any mis-interpretation of the applicant’s evidence at the Tribunal hearing, and the Court must therefore accept the Tribunal’s account of the proceedings before it: SZGJY at [13] per Collier J; SZNVW at [59] per Perram J. In this case there is, therefore, no evidence of mis-interpretation, and the Tribunal has, as a consequence, not been misled as to relevant facts or claims, and nor is it the case that any relevant facts or claims have not been put before the Tribunal as a consequence of the interpretation which did take place. In any event, even if there was a difficulty with the interpretation, that was cured by the applicant fluently responding to the same questions, with effectively the same answers according to the Tribunal. No denial of procedural fairness and no error, jurisdictional or otherwise, arises with respect to the manner in which the Tribunal dealt with this issue.
In all of the above circumstances, the Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act, and ground 3 cannot be made out and does not give rise to jurisdictional error in the Tribunal Decision.
Consideration of grounds – conclusion
No jurisdictional error in the Tribunal Decision can be made out. It is therefore a privative clause decision within the meaning of s.474 of the Migration Act, and, as such, is not reviewable by this Court. The Judicial Review Application therefore has no prospects of success, and the Court should not therefore extend time: SZQGO at [29] per Murphy J; SZSDA at [39] per Foster J.
Other criteria generally
Whilst the impact on the applicant is a consideration in relation to the Extension of Time Application, and whilst the Court is sympathetic to the circumstances in which the applicant as a self-represented litigant has found himself, the lack of a lawyer to assist the applicant is still insufficient to explain the delay. From the answers given by the applicant at hearing it is evident that he has had no contact with a lawyer since April 2014, that is, the month before the Tribunal Decision was handed down, and there is no evidence of any attempt by the applicant to contact his lawyer since that time, or any evidence of what he said were the difficulties in contacting his lawyer from the Yongah Hill Immigration Detention Centre. Furthermore, when the matter was before a Registrar of this Court for directions in October 2014 the issue of a lack of access to a lawyer was not raised, and it is, in any event, evident from the comments made by the applicant at hearing that the lawyer who previously assisted him was one appointed for the purposes of assisting him with the Tribunal hearing and no more. The Court notes that there is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. It follows that a lack of legal representation cannot, of itself, be a reasonable explanation for a delay in filing judicial review proceedings in this Court. Furthermore, it would be unfair to grant this applicant an extension of time in circumstances where other applicants have not been granted an extension of time in similar circumstances, and where future applicants in a similar position to the applicant are unlikely to be granted an extension of time based on the law as it currently stands. It would not, therefore, be in the public interest to make an exception for this applicant.
Conclusions and orders
The Court has concluded that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act, particularly given that the Judicial Review Application has no prospects of success, and it follows that the Extension of Time Application ought to be dismissed, and there will be an order accordingly; and
b)in the circumstances, it is unnecessary therefore to make a further order that the Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 5 February 2016
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