SZOEL v Minister for Immigration & Anor [2010] FMCA 309 (3 May 2010)

Last Updated: 12 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOEL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 309

MIGRATION – RRT decision – application for judicial review more than 35 days after decision – whether extension of time necessary in interests of administration of justice – inadequate explanation for delay – no arguable case for grounds of review – extension of time refused – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.424A, 477

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZNZI v Minister for Immigration [2010] FMCA 57

Applicant:

SZOEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 430 of 2010

Judgment of:

Smith FM

Hearing date:

3 May 2010

Delivered at:

Sydney

Delivered on:

3 May 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms J Dinihan

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
(2) The application is dismissed as incompetent.
(3) The applicant must pay the first respondent’s costs in the sum of $2,935.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 430 of 2010

SZOEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia on a three month visitor’s visa in July 2008. On 11 September 2008, an application for a protection visa was filed in his name. The application form was largely incomplete, and disclosed no person assisting the applicant. It attached a typed statement containing a history upon which the applicant sought protection in Australia against return to India, based on claims that he had been persecuted for involvement in a political party known as the INLD. Country information showed that this party had contested national and local elections in Haryana State.
2. The applicant presented no documentary corroboration of his claims to either the Department or the Tribunal. In my opinion, they were accurately summarised by the Tribunal in paragraph [71] of its findings and reasons as follows:
   • The applicant’s claims related to his own political involvement and the political involvement of his family and his father in particular. The applicant indicated that neither he nor his father was a member of the INLD but that they held cards as workers of the party. He stated that his father was a worker at a higher level than him. The applicant stated that his father played a very important role in the party and described his father as a very important and very essential worker in the INLD. The applicant also described himself as very important and stated that he was a good worker of the party. He indicated that he had been a worker from just after 2000. The activities in which he claimed to have been involved included campaigning for the INLD just before the 2004 elections and campaigning for the party in Mohana (also described as Muana) some two or more years later.
3. The applicant lodged his application in Sydney, and gave a Sydney address for mail, being a post box at Parramatta. However, correspondence inviting him to an interview which was sent to that address was returned to sender, marked “unknown”. The delegate then made a decision on 20 November 2008 refusing the application. The delegate said that in the absence of an interview she was unable to be satisfied that the applicant had a well-founded fear of persecution for any of the Convention reasons.
4. The file copy of the letter informing the applicant of this decision has an address and registered post sticker, suggesting that it was sent to the Parramatta post box. Later, the applicant claimed not to have received it, and gave a new address in Queensland. This was a residential address, and not a post box. He also gave that address to the Tribunal, when lodging an application for review on 16 March 2009. The application to the Tribunal was also lodged in Sydney.
5. The Tribunal’s inquiries of the Department of Immigration produced the information that the Department could not establish that the delegate’s decision was posted to the applicant in November 2008. It therefore measured the time for the appeal from the later sending of a copy of the decision to the applicant’s new address, and held that it had jurisdiction.
6. The Tribunal then proceeded with a hearing, which the applicant attended by video link from Cairns on 12 May 2009. The hearing appears to have occupied more than three hours. In the course of it, the Tribunal questioned the applicant about his claims in the visa application.
7. The Tribunal made a decision on 27 May 2009, affirming the delegate’s decision. A copy of its decision is shown as being posted by registered post to the applicant at his residential address in Queensland, and this is the same address for service which he has given the Court more recently.
8. In its statement of reasons, the Tribunal carefully recited the course of the hearing, which shows that it more than fully brought to the applicant’s attention some concerns it had about his evidence. In particular, in the course of the hearing the applicant displayed some glaring inadequacies in his knowledge of the elections in Haryana in which he claimed to have been active and been persecuted. He did not know that the 2004 election was for candidates to the national parliament, and he did not know the name of the candidate which his party had supported in his district, and on whose behalf he claimed to have been working. He also did not know that a State election had been held in Haryana the following year, in which the INLD had lost control of Haryana.
9. In its findings and reasons the Tribunal identified these defects, and it concluded:
   • that the applicant’s level of political knowledge is so limited that his claims about his own political involvement and his family’s political profile, are lacking in credibility.
10. Based largely upon this conclusion, the Tribunal did not accept that the applicant or his father had been involved in the INLD as members or workers for the party. It did not accept that he had been harassed or threatened by supporters of Congress, nor that he or his father were “targeted” or in any way harmed by opposition party members. It did not accept that the applicant or his parents had left their home village for the reasons claimed.
11. The Tribunal did not accept that the applicant would “in any way seek to involve himself in politics if he were to return to India or that he would wish to do so”. It did not accept “that the applicant is a person who would be motivated to involve himself in political activities in India”. It therefore found “to be remote the chance that the applicant would suffer persecution in India for reasons of an actual or imputed political opinion”. Since it did not accept that he came from a family that supported or was involved in the INLD, it found that there was “no real chance that the applicant would suffer persecution for reason of membership of this group”.
12. The applicant did not file an application for judicial review until 2 March 2010. This was more than eight months after the expiry of the 35 day time limit for bringing applications set by s.477 of the Migration Act. The application contains an application for an extension of time, but does not contain that part of the form requiring applicants to specify their grounds for such an application. Nor did the affidavit filed in support of the application set out any circumstances in support of an application for extension of time.
13. The applicant attended a First Court Date before me on 23 March 2010, when I explained the necessity for him to explain his delay and also to point to arguable grounds for review. I fixed the matter for hearing today to consider his application for extension of time, and to consider whether there were arguable grounds raised by the application. The applicant was given the relevant documents and referred for free legal advice. However, he has not filed any amended application, written submissions, or evidence in support of an extension of time.
14. The applicant did not attend the hearing today when it was listed at 10.15 am, but arrived shortly before 11 am. Fortunately, I was able to recall the Minister’s solicitor and the interpreter, and his hearing has proceeded.
15. When invited to indicate his reasons for his delay in bringing the application to the Court, the applicant made a series of not entirely consistent statements. These were, first, that he had not had permission to work, and therefore could not afford to get good advice. Secondly, that the Tribunal’s letter had been sent to his post box which he did not clear speedily. Thirdly, that he was upset by the Tribunal’s decision and was sick. And fourthly, that he had difficulty reading the Tribunal’s decision and getting advice about it.
16. The applicant did not refer to correspondence which is in the green book, showing that a letter was sent to the Minister dated 10 August 2009 with a signature which may or may not be that of the applicant, inviting the Minister to exercise his powers under s.417 of the Migration Act. I note that this letter is dated after, not before, the expiry of the 35 day time limit for applying to the Court. The correspondence shows that it was refused by the Minister, and the letter informing this outcome was sent to the applicant’s Queensland address on or around 11 December 2009. As I have noted, the present application was not filed until 2 March 2010.
17. I have considered all that the applicant has said to me, and the contents of the correspondence with the Minister, but I do not consider that any of what he has said shows or even points to an adequate explanation for his failure to commence Court proceedings within the required time. His assertions of fact are unverified, and one of them is plainly wrong. The Tribunal’s letter was sent to his residential address, and not to a postal box. Clearly, the applicant did receive and understand the Tribunal’s decision sufficiently to employ somebody to write to the Minister in August 2009. I consider that he must have received it and obtained advice about its contents, long before commencing the present application. He has also found somebody to help him with the present application, and that person has made use of a precedent frequently presented to the Court by Indian applicants. I am not persuaded that the applicant has pointed to reasons explaining his delay, which show that it is “necessary in the interests of the administration of justice” for me to extend time.
18. Time can be extended notwithstanding the absence of an acceptable explanation for delay, if the merits of the substantive matter appear to justify this (see SZNZI v Minister for Immigration [2010] FMCA 57 at [11]). I have therefore invited the applicant to address the merits of his principal application, and considered whether it raises arguable grounds for the relief claimed. However, I do not consider that the applicant’s grounds point to any arguable ground of jurisdictional error affecting the Tribunal’s decision.
19. The grounds set out in the application are as follows:
    • 1. The Tribunal did not give to the applicant before the hearing the independent country information that it had about INLD. The Tribunal used this information. This was against the section 424A of the Migration Act 1958.
    • 2. The Refugee Review Tribunal denied the applicant procedural fairness by reaching the adverse conclusions the certain aspects of applicant claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
    • 2. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
    • 3. The RRT has failed to investigate applicant claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 27 May 2009 was effected by actual bias constituting judicial error.
20. The contention in ground 1, that the Tribunal’s decision was affected by a breach of obligations under s.424A, is misconceived for two reasons. First, the independent country information referred to by the Tribunal concerning the involvement of the INLD in elections in Haryana to the Indian National Lok Dal in 2004 and in state elections in 2005, is excluded from obligations under s.424A(1) by s.424A(3)(a). Secondly, the Tribunal did not rely upon this information as a reason for affirming the delegate’s decision. Rather, it was the applicant’s evidence at the hearing revealing his lack of knowledge of the elections, which led to the Tribunal affirming the decision. If this was “information” given by the applicant to the Tribunal, then it also was excluded from obligations under s.424A(1) (see s.424A(3)(b) and compare SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609).
21. Ground 2, first occurring, lacks any particulars or details showing how it relates to the present Tribunal’s decision. In my opinion, it is also incapable of application to the present Tribunal’s decision, since the Tribunal did not proceed on the basis that the applicant’s claims were “implausible”. Nor was the applicant denied any opportunity to be heard in relation to the Tribunal’s grounds for affirming the delegate’s decision. The Tribunal did not accept the applicant’s claims because it found them unbelievable in the face of his lack of knowledge of the elections he claimed to have been active in. Its conclusions were plainly open to it. The matters of concern to it were very thoroughly put to the applicant in the course of the hearing.
22. Ground 2, secondly occurring, is one which I have always had difficulty understanding. If it invites the Court to find that the applicant satisfied “the four key elements of the Convention definition”, then this is not its function. In my opinion, the Tribunal’s complete rejection of the applicant’s credibility sufficiently addressed and completed its exercise of jurisdiction, and there was no aspect of the Convention definition which it was bound to address and failed to do so.
23. In relation to Ground 3, there was no procedure which the Tribunal was required to follow and failed to do so. It was under no duty to make any inquiries of its own in India or elsewhere (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). The ground points to no basis for alleging “actual bias”, and I can see no substance whatsoever for that contention in the present case.
24. The applicant today was unable to explain any of these grounds, nor point to any other ground of arguable jurisdictional error affecting the Tribunal’s decision. In my opinion, the absence of merit in the principal application is so manifest that it would be inappropriate to extend time in the present case for that reason alone.
25. I have therefore concluded that this is a case where I should refuse the application for extension of time, and dismiss the application as incompetent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 11 May 2010