FEDERAL COURT OF AUSTRALIA

WZAUQ v Minister for Immigration and Border Security [2016] FCA 758

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant pay the costs of the first respondent to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1    This is a purported appeal from a judgment and orders of the Federal Circuit Court dated 5 February 2016: WZAUQ v Minister for Immigration & Anor [2016] FCCA 152. Judge Lucev dismissed the applicant's application for an extension of time in which to seek judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) dated 27 May 2014 pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act).

2    By virtue of s 476A(3)(a) of the Act no appeal to this Court lies from the order made by the Federal Circuit Court under s 477(2) of the Act. However, the order is susceptible to judicial review pursuant to s 39B(1) of the Judiciary Act 1903 (Cth).

3    The Minister is prepared to treat the application as one under s 39B for orders in the nature of certiorari and mandamus. I too am content to proceed on that basis to avoid the result that the application would otherwise be incompetent. I will refer to the appellant as the applicant.

Background

4    The following uncontroversial background is drawn substantially from the Minister’s written submissions.

5    The applicant first arrived in Australia in March 2008 on a student visa. His claims for protection, as they were stated in submissions accompanying his visa application, revolved around a claim that while in Australia he converted his religion from Sikhism to Christianity, and that if he were to return to India he would be ‘executed’ by his community as his conversion ‘angered many in my religion who are fiercely proud and take revenge for any insult to their faith’.

6    In a further submission made to the delegate, the applicant claimed that after he was detained in immigration detention he told his father about his detention and conversion and his father ‘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’..

7    On 28 March 2014 a delegate of the Minister refused the applicant’s application for the visa.

8    On 2 April 2014 the applicant applied to the Tribunal for review of the Delegate’s decision.

Tribunal decision

9    In a decision dated 27 May 2014, the Tribunal found:

(1)    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 because:

(i)    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);

(ii)    During the period that the applicant was living in India with his family and was ignoring core aspects of the Sikh religious practices he lived ‘in an atmosphere of considerable tolerance’;

(iii)    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 that that was inconsistent with the claim that his family, who provided the liberal environment in which he lived, to go to the extreme of harming or killing him for religious conversion or because he was a Christian. Therefore, the Tribunal 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.

(2)    On the basis that the applicant commenced attending King’s International Church 16 months prior to lodging his protection visa application, the Tribunal was prepared to accept that his motives for attending the church and subsequently undergoing baptism were otherwise than to strengthen his claims for protection.

(3)    While the Tribunal accepted that the applicant converted from Sikhism to Christianity in 2013, it 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.

(4)    Accordingly, the Tribunal 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.

(5)    The Tribunal was also 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 s 36(2)(aa) of the Act.

10    Therefore the Tribunal affirmed the decision not to grant the applicant the visa.

Proceedings in the Federal Circuit Court

11    The application to the Federal Circuit Court was filed some 43 days outside of the time period set by s 477(1) of the Act and accordingly the application was incompetent by virtue of s 477(1) unless the Court granted an extension of time pursuant to s 477(2) of the Act.

12    The applicant raised two grounds in respect of the application for an extension of time and three proposed substantive grounds of review.

13    The applicant appeared before the primary Judge at a hearing on 27 March 2015. Despite orders made on 15 October 2014 for the preparation of the matter, including the filing of evidence, leave to amend the application and to file submissions, the applicant did not put any material before the Court.

14    The primary Judge found that the delay in filing the application was "quite substantial" and that the applicant had not provided a satisfactory explanation for the delay.

15    The primary Judge further accepted that the Minister would suffer minimal prejudice if the extension of time were granted, but that the absence of prejudice was not enough to justify the grant of an extension of time.

16    The primary Judge went on to consider the merits of each of the applicant's proposed grounds.

17    In relation to ground one, the primary Judge found that the only relevant particular that the Tribunal did not accept was that the applicant was a devout Christian, that the Tribunal's conclusion in that regard was open to it for the reasons it gave and that the findings had a "logic and rationale discernible from and on that same factual material".

18    In relation to the applicant's second ground, the primary Judge found that the Tribunal had not taken into account any consideration that it was not bound to consider.

19    In considering the applicant's third ground, the primary Judge found that the Tribunal had properly raised various concerns about the applicant's case with him and canvassed relevant issues in accordance with its obligations under the Act. The primary Judge found that no bias was demonstrated and that there was no proper basis for the suggestion that the applicant had been denied procedural fairness.

20    Accordingly, the primary Judge concluded that it would not be in the interests of the administration of justice to extend time, and dismissed the application.

The notice of appeal

21    The applicant raises the following nine grounds:

(1)    There are some jurisdictional errors in the R.R.T. Decision.

(2)    The R.R.T Member did not assess my complementary Protection Properly.

(3)    The R.R.T deprived me of natural justice.

(4)    Trying to send me back home will result in jeopardising my life pushing me into life threatening situation being physically harmed, mentally tortured and emotionally unstable for the rest of my life.

(5)    The R.R.T Member made an error of law since the decision the R.R.T Member made regarding my case is wrong.

(6)    The R.R.T member made an error of law for not considering my relevant document which are important in my case.

(7)    The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life.

(8)    The R.R.T. Member made an error of law by not considering evidence which are significant and critical to the decision under review.

(9)    I have more evidence and enough information for fair complimentary protection. As a result of data breach by immigration my life will be at risk and danger if I was to be sent home.

22    The relevant inquiry as to these “appeal” grounds is as to whether, for the purposes of judicial review, they are capable of disclosing "jurisdictional error" on the part of the Federal Circuit Court.

23    As Mortimer J observed in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [11], “unless the Federal Circuit Court misconceived the nature of its function or the extent of its powers in considering whether it was necessary in the interests of justice to grant the extension of time sought by the applicant, then it cannot be said to have fallen into jurisdictional error”. See also: SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 and SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394 at [14]-[15].

24    The Minister submits that the Court below correctly understood that the task it was required to undertake in considering the application for an extension of time was to determine whether it was in the interests of the administration of justice to exercise the discretion to extend time, having regard to the prospects of success of the application, the delay in commencing the application and any explanation for the delay.

Grounds 1 and 5

25    These grounds are unparticularised assertions of error in the Tribunal's decision. They do not disclose jurisdictional error.

Grounds 2 and 9

26    These grounds, in effect, assert that the Federal Circuit Court failed to find errors in the Tribunal's decision. They do not support a conclusion that it "misconceived the nature of its function or the extent of its powers". No such allegations were raised before it.

27    The Court below considered the material before it and concluded that there was no arguable case for relief. This was a conclusion open to his Honour on that material.

28    Moreover, the Tribunal in fact considered the requirements of s 36(2)(aa) of the Act and made findings in relation to the complementary protection criteria at Reasons for Decision [51] to [53]. Indeed, as the evidence demonstrates, the applicant was detained in February 2014. It follows that he could not have been affected by the January 2014 data breach.

29    No jurisdictional error is revealed by these grounds.

Grounds 3, 6 and 8

30    These grounds bear some similarity to those in the Court below. However, no jurisdictional error is revealed by the primary Judge's assessment of those grounds.

31    The Tribunal is not required to refer to each piece of evidence, but only such as it considers relevant to its findings: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [33], [68]. Furthermore, the Tribunal's decision discloses that consideration was given by it to:

(a)    the submissions provided in the proceedings before the delegate;

(b)    documentary evidence submitted which included a letter from Pastor Laver and a baptismal certificate;

(c)    evidence given by the applicant in his protection visa interview;

(d)    evidence given by the applicant in hearing before the Tribunal; and

(e)    post hearing submissions.

32    It is evident from its decision that the Tribunal took this evidence and material into account in making its findings.

33    The Court below, correctly in my opinion, concluded that the assertion that the Tribunal ignored relevant material or failed to respond to an argument could not be made out.

34    There is no basis to the complaint that the applicant was denied natural justice.

35    I accept the Minister’s submissions that:

(1)    the applicant was afforded procedural fairness as required under Part 7 of the Act which by reason of s 422B of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61.

(2)    the Tribunal complied with its obligation under s 425 of the Act by inviting the applicant to the hearing and, at that hearing, the Tribunal put to the applicant issues arising for consideration in the matter.

Grounds 4 and 7

36    These grounds in effect constitute relief by way of impermissible merits review of the Tribunal's decision such is not open either to the Court below or to this Court: AAX15 v Minister for Immigration and Border Protection & Anor [2015] FCA 1206 (at [19]).

Conclusion

37    No jurisdictional error has been established. The proceedings will be dismissed with costs.

Associate:

Dated:    29 June 2016