AJB15 v Minister for Immigration

[2016] FCCA 1005

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1005

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – application for an extension of time to bring proceedings –delay – unreasonableness – homosexuality – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 476, 477

Cases cited:
ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003

ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
SZRIQ v Federal Magistrates Court (2013) 139 ALD 252; [2013] FCA 1284

Applicant: AJB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 923 of 2015

Judgment of: Judge Smith

Hearing date: 25 February 2016

Date of Last Submission: 25 February 2016

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Respondents: Mr A Markus, Australian Government Solicitor

ORDERS

1. The applicant have leave to rely on the amended application annexed and attached as “A” to the affidavit of the applicant sworn 24 February 2016.

2. The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 923 of 2015

AJB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Egypt who arrived in Australia as the holder of an Entertainer visa on 9 May 2013 and lodged an application for a protection visa on 6 June 2013. On 16 December 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant then applied to the Refugee Review Tribunal[1] for review of that decision. The Tribunal made a decision on 6 August 2014 affirming the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. By application filed on 2 April 2015 the applicant seeks judicial review of the Tribunal’s decision. An application for review of the Tribunal’s decision must be filed within 35 days of the date of that decision: s.477(1) of the Migration Act 1958 (Cth).

3. This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:

   a)an application for that order has been made in writing to the [Court] specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the [Court] is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. The application filed in April 2015 did not specify why the applicant considered that it was necessary in the interests of the administration of justice to make the order.

Procedural matters

1. The matter came before a Registrar on a first Court date on 7 May 2015, and orders including the following were made by consent:

   2.The applicant have leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 5 June 2015.

   3.The applicant must file and serve any affidavits containing additional evidence to be relied upon by 5 June 2015.

2. At the first Court date, the matter was listed for callover on 11 November 2015.

3. No amended application and no further affidavit were filed by 5 June 2015.

4. On 10 November 2015 an amended application and an affidavit of the applicant sworn on that day were circulated by email to the Court and the first respondent’s solicitor.

5. At the callover on the following day, the matter was listed for hearing on 25 February 2016 and the applicant was granted leave to file and serve any application in a case seeking leave to rely on an amended application and any affidavit in support within seven days. Any such application in the case was to be made returnable at the hearing.

6. No application in a case was filed by the applicant within 7 days of the callover.

7. On 11 February 2016, the applicant (by his counsel) filed written submissions, and circulated by email to the Court and the Minister’s solicitor, a further revised version of his proposed amended application.

8. On 14 February 2016 the applicant (by his counsel) circulated by email to the Court and the Minister’s solicitor a ‘draft application in a case’ and a ‘draft affidavit with the amended application’.

9. At the hearing the applicant sought leave to rely upon an amended application in the form which was attached to an affidavit sworn by him on the previous day. The proposed amended application specified for the first time why the applicant considered that it was necessary in interests of the administration of justice that time be extended.

10. Counsel for the applicant also circulated by email at 9.05am on the morning of the hearing a list of authorities as well as a document entitled “the applicant’s aide memoire”. It is not entirely clear why he did that. The document referred exclusively to authorities on homosexuality, something that was not in issue in the proceedings because the Tribunal, as will be seen, rejected the applicant’s claim to be homosexual. In any event, whatever the document was called, it was a submission sent to the Court well outside the time required by the orders made by the Registrar.

11. In his affidavit the applicant stated that the reason that the amended application was late was because he went to Queensland and did not notify his lawyer. That does not constitute any excuse and were it not for the fact that, with two exceptions, the Minister did not oppose the grant of leave to amend, the Court would have refused it. It is not the first time that counsel who appeared for the applicant has conducted proceedings in a similar manner: see for example ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003; ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30.

12. At the hearing, I indicated that I would reserve my decision on the amended application and heard argument on the application for an extension of time.

Consideration

1. In SZRIQ v Federal Magistrates Court (2013) 139 ALD 252; [2013] FCA 1284 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2). His Honour explained the matters relevant to an application under s.477(2) as follows:

   [46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   [47]The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

2. While there would be no significant prejudice to the Minister if an extension of time were granted, I do not consider that it is necessary in the interests of the administration of justice to make an order extending the time for lodging an application for judicial review.

3. First, the application was filed more than six months out of time. The reason given by the applicant for the delay was that his former migration agent did not advise him on lodging a judicial appeal. He says that he was advised to lodge a request to the Minister under s.417 of the Act and that he was not aware of his right to file an application for judicial review. After his request to the Minister was refused, he said that he sought legal advice from a barrister who apparently advised that he had reasonable prospects of success on review. There is no explanation as to why he had not sought that advice before, or whether he had read the letter sent to him by the Tribunal with its decision which explained the availability of judicial review. I do not accept his evidence that he was unaware of the availability of judicial review and in the circumstances do not accept that there is any reasonable excuse for him having failed to do so. Rather, he appears to have chosen a different route to achieving a favourable outcome.

4. Secondly, contrary to the applicant’s submission, this matter does not involve the interests of the international community in respect of the interaction between homosexuality and religious fundamentalism. The short point is that the applicant claimed to be a homosexual and the Tribunal did not accept that claim.

5. Thirdly, there are insufficient prospects of success to warrant either leave to amend the application or to outweigh the lack of reasonable excuse for delay such as to satisfy me that it is necessary in the interests of the administration of justice for an extension of time be granted.

6. In order to understand my reasons concerning the merits of any application for review, it is first necessary to have regard to the applicant’s claims for protection and the Tribunal’s reasons for rejecting those claims.

7. The applicant claimed that he faced persecution in Egypt for reason of his homosexuality. The delegate summarised his more particular claims accurately as follows:

   a)The applicant had many casual relationships with men in Egypt, as well as relationships with two women. He stated that although he had a five-month relationship with a woman he could not get emotionally involved.

   b)In 2006, he had a relationship with an older man, and when he broke off the relationship, the older man retaliated by spreading a rumour that the applicant was gay. His cousin found out and told the applicant’s mother, who begged him to stop and pressured him to marry. He did marry and have a child, but separated from his wife six months after his child was born. He was pressured, and tried, to reconcile on a number of occasions, but it did not work out.

   c)In 2008, he had another relationship with an entertainer (Mohamed) who was married. They were caught in a compromising situation in a nightclub and were reported to the police. They got off with a warning because Mohamed was a married man, was well-known, and the police believed him when he denied the allegations. However Mohamed thought that the applicant would continue to attract adverse attention from the police, and assisted him to depart for Australia.

   d)He had visited certain areas in Sydney trying to find a gay club, but had a lot of difficulties because his English is poor.

   e)If he was to return to Egypt, he would be persecuted and may be killed, as homosexuality is not tolerated there either by the authorities or, more generally by the community.

8. The applicant attended a hearing conducted by the Tribunal and gave evidence and made submissions in support of his application. The Tribunal made its decision on 6 August 2014 to affirm the delegate’s decision to refuse to grant the applicant a protection visa.

9. The Tribunal found that the applicant’s claims lacked credibility and that the applicant was not a reliable, credible or truthful witness and that he had fabricated his claim in order to be granted a protection visa. He gave detailed reasons for these conclusions and, on the basis of those conclusions, was not satisfied that the applicant satisfied the criteria for the grant of the visa.

First ground

1. The first ground in the proposed amended application is:

   The adverse credibility findings by the second respondent was affected by jurisdictional error as it revealed a sufficient lack of rational or logical connection between the tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

2. Underneath the heading “Particulars” under this ground there are 19 paragraphs, the first 17 of which do not constitute particulars of the asserted lack of rational or logical connection. Rather, those paragraphs are no more than a recitation of various findings made by the Tribunal. The penultimate and final paragraphs are as follows:

   r)As a consequence, at [52], the second respondent erred by finding ‘the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.’

   s)Further, at [53], the second respondent erred by finding that there were not ‘any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm’.

3. The applicants written submissions were, in essence, as follows (the references in parentheses are to paragraphs in the Tribunal’s reasons):

   a)At [47], there was no evidentiary basis for the second respondent to refute that the applicant had a relationship in Australia with a Jordanian called Bilal.

   b)At [48], there was no evidentiary basis for the second respondent to lend ‘no weight to the witness who came to support the applicant; although he claimed they were in a casual relationship...’

   c)At [49], there was no evidentiary basis for the second respondent to lend ‘little weight to the photos presented post-hearing. They showed the applicant kissing the cheek of a bare-chested man in the mardi gras and with his arms around two different bare-chested men in a different street setting.’

   d)At [50], there was no evidentiary basis for the second respondent to find that the ‘other photos are undated and show the applicant with someone who is allegedly Bilal. One or both of the people in the photos appears intoxicated and there is nothing in them to indicate that they are in some kind of homosexual relationship.’

4. None of these contentions is sustainable and, in truth, the ground is nothing more than an attempt to re-agitate the merits of the applicant’s claimed to be a homosexual.

5. First, as the Minister submitted, the following principles are well established:

   a)the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the Tribunal to determine: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 and 291-292;

   b)the Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; and

   c)nor is the Tribunal required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J.

6. Secondly, each of the impugned paragraphs in the Tribunal’s reasons reveal that there was a basis in the evidence, including a lack of evidence, for each of the Tribunal’s findings:

   [47]I do not accept that the applicant had a relationship in Australia with a Jordanian called Bilal. The applicant had no record of any correspondence with him, alleging that after a fight with him he had deleted all details of and messages with him from his phone. I also note that the period he allegedly had a relationship with Bilal began after he received a rejection notice from DIBP and ended six weeks prior to his RRT hearing. This timing is very coincidental.

   [48]I lend no weight to the witness who came to support the applicant; although he claimed they were in a casual relationship he provided no evidence of this other than his verbal testimony. In addition, he claimed that they had only been friends for six or seven weeks and could shed no light on the applicant’s homosexual identity because it wasn’t part of his business. It is reasonable to assume that someone who is allegedly in a relationship with the applicant has been called in as a witness to support the applicant’s claimed to fear persecution because of his alleged homosexuality would be able to provide more information regarding the issue of the applicant’s sexual identity.

   [49]I also lend little weight to the photos presented post-hearing. They showed the applicant kissing the cheek of a bare-chested man in the Mardi Gras and with his arms around two different bare-chested men in a different street setting. The applicant appears to be in normal street clothes, without a companion of his own and there is no indication that he is known to any of the people in the photos. Although undated, given the applicant’s date of arrival in Australia they appear to be from this year’s Mardi Gras. The photos themselves are not indicative of anything other than the applicant attended mardi gras (as did an estimated 300,000 people) as a spectator and had his photo taken with random participants.

   [50]The other photos are undated and show the applicant with someone who is allegedly Bilal. One or both of the people in photos appears intoxicated there is nothing in them to indicate that they are in some kind of homosexual relationship.

7. In oral argument in support of this ground, counsel for the applicant submitted that there was not “sufficient evidentiary or logical basis” for these findings rather than that there was no evidence or logical basis for the findings. Even if I were to accept that that was so, it would be no more than a complaint that different findings ought to be made, in other words, an attack on the merits of the decision.

8. For those reasons, the first ground has no prospects of success.

Second ground

1. The second ground in the proposed amended application is as follows:

   a)The Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   b)Alternatively, the second respondent erred by, misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.

2. The particulars to this ground refer to the particulars of the first ground. The ground is not addressed in the applicant’s written submissions and appears to be nothing more than a different way of stating the same arguments raised in support of ground one. For the reasons I have given in respect of ground one this ground, too, has no prospects of success.

Third ground

1. The third ground in the proposed amended application is:

   The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.

2. There are two particulars to this ground. The first is a reference back to the particulars to ground one. For the reasons that I have given in respect of that ground, there are no prospects of this reformulated argument.

1. The second particular is that the Tribunal failed to examine the “integer of the applicant’s claim that he would face a real risk of serious or significant harm at the hands of his family, community or Islamic extremist for being a failed asylum seeker on the basis of his failed claims of homosexuality.

2. The applicant’s written submissions do no more than refer to a number of well-known authorities concerning the obligation of the Tribunal to consider claims made by putative refugees. What they do not grapple with is the fact that the applicant never claimed that he might be harmed upon return to Egypt because he had failed in a claim based upon homosexuality. Further, the applicant did not, and could not, point to any evidence that was before the Tribunal which, if accepted, might have established that the applicant had a well-founded fear of persecution in Egypt for reasons of a failed claim based on homosexuality. In light of that, there was simply no obligation on the Tribunal to consider the existence of such a fear. The Tribunal dealt with and rejected the claims actually made by the applicant.

3. For those reasons this ground, too, has no reasonable prospects of success.

Fourth ground

1. The fourth ground in the proposed amended application is:

   The second respondent failed to take into account a relevant consideration in the exercise of power or failed to give proper, genuine or realistic consideration of the applicant’s claims or integers of those claims.

2. Once again, there are two particulars to this ground. The first is that the Tribunal failed to take into account, relevantly or give the submissions of the applicant proper, genuine or realistic consideration, in particular, his claims of homosexuality in Egypt, the relationship with Bilal, the testimony by the witness and the photographs of the Mardi Gras. Contrary to the assertion in this particular, it is pellucid from the paragraphs in the Tribunal’s reasons that are set out above that it did consider each of those matters. The applicant’s real claim is that it did not accept them. Once again, that is a matter that only goes to the merits of the Tribunal’s decision and not something with which this Court has any power to interfere.

3. The second particular is that the Tribunal failed to take into account whether the applicant faces a real risk of harm for being a failed asylum seeker on the basis his failed claims of homosexuality. That is the same as the third ground and, for the reasons given in respect of that ground has no prospects of success.

Fifth ground

1. The fifth ground in the proposed amended application is:

   The second respondent exercised power in a manner that was unreasonable, or lack evident or intelligible justification.

2. The particular to this ground is that there was no logical basis for the Tribunal to refute the applicant’s claims of homosexuality in injured, his relationship with Bilal, the testimony by the witness in the photographs of the Mardi Gras. For the reasons given in respect of ground one, there is no reasonable prospect that that argument will succeed.

3. As a matter of completeness it ought to be noted that the applicant’s written submissions also included the following:

   Moreover, the second respondent failed to give proper, genuine or realistic consideration to:

   a)the applicant’s claims of homosexuality in Egypt;

   b)the relationship with Bilal;

   c)the testimony by the witness and the photographs of the Mardi Gras;

   d)Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958 (Cth) and the matters identified in PAM 3 Refugee and Humanitarian Complementary Guidelines;

   e)the country information;

   f)whether the applicant faces a real risk of harm for being a failed asylum seeker on the basis of his homosexuality.

   (Emphasis added)

4. The emphasised sub-paragraph was not in the proposed amended application no leave was sought to rely upon. It was not the subject of any argument and there was no explanation as to why it was included and why it ought to be considered by the Court. Those facts alone would be sufficient to refuse leave to raise those grounds. However, the critical factor is that there is simply no basis for the assertions.

5. For those reasons, I conclude that none of the arguments raised by the applicant in the proposed amended application has any prospects of success. In those circumstances, any amendment to include them would be futile and so I would refuse leave to rely on those grounds.

6. However, the amended application contains, for the first time, a specification of the reasons for which the applicant considers it is in the interests of the administration of justice to extend time. As I have noted above, that is one of the two preconditions to the Court’s power to extend time. In light of that, even though I consider the grounds in the amended application have no substance, I will grant leave to the applicant to rely upon the amended application attached to his affidavit sworn on 24 February 2016.

Conclusion

1. In those circumstances, the first precondition to the Court’s power to grant an extension of time has been satisfied. Nevertheless, for the reasons I have given, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the period within which an application for judicial review may be brought. The application must be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  29 April 2016