AXD16 v Minister for Immigration

[2017] FCCA 1227

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1227

Catchwords:
MIGRATION – Judicial review of decision by Administrative Appeals Tribunal affirming decision not to grant Protection visa – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

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

Applicant: AXD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 954 of 2016

Judgment of: Judge Manousaridis

Hearing date: 26 May 2017

Date of Last Submission: 26 May 2017

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

Applicant appeared in person assisted by an interpreter

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 954 of 2016

AXD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 23 April 2015, but the applicant did not file his application with this Court until 20 April 2016. I will first set out the principles that must guide me in determining this application for an extension of time.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

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

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

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

   (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.

3. The Federal Court has recently held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Explanation for delay

1. In his application, the applicant provides the following explanation for his delay in applying for judicial review:

   Ground for Application for Extension of Time:

   1. The applicant has had no legal representation.

   2. Extension of time would not amount to excessive delay and would be readily explainable.

   3. Should extension be granted there is no prejudice to third party including the respondents.

   4. In all circumstances it would be just and fair that time for filing be extended.

2. At the hearing before me, the applicant, who is not legally represented, said that the reason for his delay is that his lawyer advised him that he should apply to the Minister for intervention.

3. Neither the grounds set out in the application, nor the reason the applicant gave to me at the hearing, provide an adequate explanation for the applicant’s not having filed this application within the period prescribed by s.477(1) of the Act. As submitted by the Minister, the applicant’s intention to apply for Ministerial intervention shows an acceptance by the applicant, or at least, his legal adviser, of the validity of the Tribunal’s decision, and is at the very least open to be taken to constitute an election by the applicant to challenge the decision by some other means.[6]

   [6] First Respondent’s Outline of Submissions, [25] referring to Vu v Minister for Immigration and Citizenship [2008] FCAFC 59, [29]; SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300, [38]

Merits of substantive grounds for relief

1. I next consider whether the application discloses reasonably arguable claims for relief. That requires me to set out the applicant’s migration history, his claims for protection, and the Tribunal’s reasons for not accepting those claims.

Background

1. The applicant arrived in Australia on 21 February 2010 as the holder of a visitor visa. On 16 March 2010 the applicant applied for a Protection visa (First Protection Application). The First Protection Application was refused by a delegate of the Minister, and the applicant applied for review to the Refugee Review Tribunal (First Tribunal). On 4 August 2010 the First Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. A second application for review to the Refugee Review Tribunal (Second Tribunal) was made by the applicant on 23 September 2010. The Second Tribunal found it had no jurisdiction to hear the matter. The applicant again applied for a Protection visa on 25 September 2013 (Second Protection Application). He was able to do that, notwithstanding s.48A of the Act, because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[7]

   [7] [2013] FCAFC 71

Claims for protection

1. The applicant stated his claims for protection on four occasions: the First Protection Application;[8] a statement that formed part of the Second Protection Application;[9] a statement dated 10 March 2014;[10] and a statutory declaration made by the applicant on 23 February 2015 that was provided to the Tribunal.[11]

   [8] CB1-27

   [9] CB98-101

   [10] CB131-133

   [11] CB213-214

2. According to the statement that formed part of the Second Protection Application, as summarised by the Tribunal:

   a)In December 2005 Mr D, who was a soldier and the applicant’s neighbour, borrowed $100 from the applicant. Mr D was well known to the applicant, and he promised to pay back the money by early 2006. This did not happen, and Mr D avoided the applicant. The applicant’s wife confronted Mr D in April 2006 at his home. Mr D swore at and threatened the applicant’s wife.

   b)The military’s takeover of the government in December 2006 gave power to Mr D “to make the life of the applicant and his family very difficult”, and Mr D began to take whatever he wanted from the applicant’s property. One afternoon, the applicant’s wife saw Mr D’s sons wearing one of the applicant’s son’s shoes. The applicant’s wife asked him to return the shoes and a heated argument broke out between the applicant’s wife and Mr D’s wife. That night, a vehicle carrying four soldiers pulled up outside the applicant’s house. The soldiers took the applicant and his son to the Queen Elizabeth barracks where they were sworn at, made to strip to their underwear and run around the ground for an hour and do military exercises, and then finally forced to walk home (2007 Incident).

   c)After the 2007 Incident, the applicant and his family were victimised and the applicant is worried that the incident at the military barracks will happened again. The applicant claimed that he does not feel safe in relation to actions that may be taken against him because of the military government in Fiji as Mr D is part of the ruling government.

   d)The applicant also claimed he is unable to work and earn a living under the military government because he was forced to retire.

   e)In the statutory declaration made on 23 February 2015, the applicant claimed that because of the September 2014 elections, “the tension has increased between the families”.[12]. The applicant claimed that just before the election, a poster was put on the front lawn of Mr D’s property showing Frank Bainimarama and a local candidate. The applicant’s family took down the poster. Mr D was furious and threatened the applicants’ family that “I have taken you people to the camp before this is going to happen soon again”. The applicant claimed that if he returns to Fiji, he will need to protect his family.

   f)The applicant also provided evidence that he was a financial member of the Fiji Democracy and Freedom Movement (FDFM). At the hearing, the Tribunal put to the applicant that during the First Tribunal hearing the applicant had made a late claim that he was involved in the SDL Party,[13] and that his membership of that party was part of the reason he claimed action had been taken against him. The applicant said that was true. Before the Tribunal, the applicant claimed he was a member of the SDL Party.[14]

   [12] CB213, [4]

   [13] That is, the Soqosoqo Duavata ni Lewenivanua

   [14] CB235, [34], [35]

3. The applicant’s representative provided to the Tribunal a submission.[15] It stated that during the pre-election period in September 2013 a poster in support of a Fijian political candidate was suspected to have been taken down by the applicant’s children, resulting in “a serious physical conflict” between the families of Mr D and the applicant. The submission further stated that before the applicant arrived in Australia, he was imputed with holding an anti-regime political opinion, and this “was the basis on which the army officer appeared to have mobilised the army against the applicant”.[16]

   [15] CB207

   [16] CB207

Tribunal’s decision

1. The Tribunal first considered the applicant’s claims based on his membership of the SDL party. The Tribunal noted that it had some concerns about the applicant’s claims. The applicant did not include this claim as part of his Second Protection Application. The applicant confirmed he was making a claim based on his being a member of the SDL only after the Tribunal put to the applicant that he included such a claim in the First Protection Application.[17] Further, the applicant did not include the claim based on membership of the SDL in the First Protection Application, or in the written statement that accompanied that application, and he did not raise that claim before the delegate. The applicant first raised that claim at the hearing before the First Tribunal.

   [17] CB238, [46]

2. While the Tribunal was prepared to accept the applicant may have been an ordinary member of, and may have undertaken some fundraising for, the SDL Party, the Tribunal was not satisfied there was any link between the applicant’s involvement with the SDL Party and the 2007 Incident and the ongoing dispute with Mr D, given that the applicant’s initial evidence to the Tribunal was that his dispute with Mr D was over the $100 which the Tribunal considered to be the true situation.[18] The Tribunal was not satisfied the applicant had spoken publically against the military regime in Fiji as part of his involvement with the SDL Party so as to have invited any adverse attention by the authorities in the applicant. The Tribunal was therefore not satisfied that the applicant or his family have been imputed with anti-regime views as the reason for the military’s mobilisation against the applicant and his family, or that the applicant has suffered any harm in the past as a result of his involvement with the SDL Party.

   [18] CB238, [47]

3. The Tribunal also considered whether the applicant faced any risk of harm because he may have been a member or supporter of the SDL Party. The Tribunal referred to country information that indicated it is unlikely that ordinary SDL members and supporters would be subjected to harm unless they were vocal opponents of the government, and noted that this assessment was made in relation to the interim military government. The Tribunal noted there was no evidence to indicate there is a real risk of significant harm for ordinary SDL Party members under the current elected government in Fiji.[19] The Tribunal concluded, therefore, it was not satisfied there is a real risk to the applicant of significant harm based on the applicant’s involvement in the SDL Party.

   [19] CB238, [48]

4. Second, the Tribunal considered the claims relating to the compulsory resumption of land the applicant had made in the First Protection Application.[20] The Tribunal was not satisfied this claim was an issue of current concern to the applicant, because the applicant did not raise it in the Second Protection Application, and he did not volunteer it as an issue at the Tribunal hearing. The Tribunal noted that the threat to acquire the applicant’s land was made in 2009, and that, on the applicant’s own evidence, there has been no progression on that threat. The Tribunal also referred to the applicant’s evidence that he would be able to sell his home and that the applicant made no reference to difficulties as a result of any intention to compulsorily resume the property. The Tribunal was therefore not satisfied there is a real risk of the applicant’s land being resumed in the reasonably foreseeable future.[21]

   [20] CB239, [50]

   [21] CB239, [50]-[52]

5. Third, the Tribunal considered the applicant’s claims relating to his membership of the FDFM.[22] The Tribunal accepted the applicant is an ordinary member of the FDFM in Australia and attends meetings.[23] The Tribunal referred to country information that noted: (a) the FDFM was known in Fiji but was seen to have little traction inside Fiji; (b) FDFM’s overseas activities were likely to be monitored by the interim government through media reporting and the internet; (c) FDFM organisers have not been specifically targeted on their return to Fiji; and (d) no instances had been verified of any individual having been targeted on their return to Fiji because of his or her involvement with FDFM. The Tribunal noted that country information supports the view that an ordinary member of the FDFM in Australia would not be targeted on return to Fiji unless that person was suspected of ongoing anti-regime activity in Fiji. The Tribunal concluded that the applicant did not fall into this category and there was no evidence before it to indicate that there would be a real risk of significant harm to a FDFM member under the current democratically elected government.[24]

   [22] CB239, [53]

   [23] CB239, [53]

   [24] CB240, [56]

6. Fourth, the Tribunal considered the applicant’s claims relating to employment and economic difficulties.[25] Relying on the applicant’s own evidence at the hearing before it, the Tribunal was not satisfied the applicant was forced to retire due to his age, and he is not able to work in Fiji. The Tribunal accepted the applicant is concerned that the economic situation in Fiji is such that he will face difficulties gaining employment. After referring to the defined categories of significant harm,[26] the Tribunal concluded it was not satisfied that the employment and economic difficulties in Fiji constitute significant harm.[27]

   [25] CB240, [58]

   [26] CB240, [60]

   [27] CB241, [61]

7. Fifth, the Tribunal considered the applicant’s claims relating to his dispute with Mr D.[28]The Tribunal noted that at the heart of the applicant’s claims for protection are the 2007 Incident and the ongoing tension with Mr D and his family. The Tribunal was satisfied the 2007 Incident occurred, the applicant has an ongoing dispute with Mr D, Mr D was in the military, the dispute was over the payment of a debt, and in 2007 Mr D caused army officers to take the applicant and one of his sons to an army camp where they were made to strip off and exercise. The Tribunal referred to country information that indicated there is an ongoing potential for military personnel to pursue personal vendettas.[29]

   [28] CB241, [62]

   [29] CB241, [62]

8. The Tribunal also accepted that after the 2007 Incident there have been ongoing tensions between the applicant and his family, and Mr D and his family, and that these tensions have manifested in verbal altercations. The Tribunal, however, doubted physical altercations occurred between Mr D’s children and the applicant’s children. At the hearing before the Tribunal, the applicant initially referred to verbal abuse, and only later referred to physical fights. The Tribunal did not consider that any fights, aside from the 2007 Incident, constitute significant harm.[30]

   [30] CB241, [64]

9. The Tribunal found that the actions of the applicant and his family did not suggest the applicant or his family faced a real risk of significant harm. The Tribunal relied on the applicant’s waiting three years after the 2007 Incident before coming to Australia, and that the applicant was willing to leave his wife and five children to live in the family home since 2010.[31]

   [31] CB241, [67]

10. The Tribunal concluded, therefore, there is not a real chance the applicant will suffer serious harm and the applicant does not hold a well-founded fear of persecution based on any convention ground. The Tribunal also concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Fiji, there is a real risk the applicant will suffer significant harm.

Grounds of application

1. Under that part of the application that is headed “Grounds of application”, there is included 19 detailed paragraphs which allege matters, most of which can only reasonably be characterised as being relevant to claims for protection. The applicant asserts government policies which have as their target “the genocide and annihilation of the native Fijian race”, the 2013 constitution being illegally imposed on Fiji, Christians being unable to practice their faith with freedom, and the harm people will suffer in Fiji if they were to speak out against Fiji’s repugnant laws. The grounds also assert the applicant had recently formed the Fiji Native Government in Exile (FNGE). The aim of these assertions appears to be to “implore” this Court to consider the applicant’s “appeal according to the Refugees Convention”,[32] and to “implore” the Court “to consider that the definition of ‘significant harm’ will need to be widened so as to take into account the genocide of [the applicant] and [the applicant’s] race”.[33]

   [32] Grounds of Application, [18]

   [33] Grounds of Application, [19]

1. In addition to the matters set out in his application, the applicant relied on an affidavit he swore on 18 April 2016, and on a draft of an affidavit the applicant handed up in Court at the hearing before me. I admitted the draft affidavit on the assumption that all assertions of fact contained in the document are true, but reserved to the Minister the right to adduce evidence if I were to conclude that any asserted fact, if true, might give rise to an arguable case of jurisdictional error.

2. In the affidavit of 18 April 2016, the applicant:

   a)claimed he was a member of a charity organisation called “Pacific Indigenous Samaritan Assoc. Inc.” (PISA);

   b)described the activities of PISA;

   c)claimed he was a member of the FNGE;

   d)described the activities of the FNGE;

   e)complained of social engineering by way of enforced and intensive assimilation masterminded by the government of Fiji;[34]

   f)claimed to fear persecution because of his membership of FNGE,[35] his Christianity,[36] and his being a native Fijian;[37] and

   g)claimed to fear significant harm because he is a member of FNGE.[38]

   [34] Affidavit, [26]

   [35] Affidavit, [38]

   [36] Affidavit, [64]

   [37] Affidavit, [66ff]

   [38] Affidavit, [119]

3. The draft affidavit contains what can reasonably be characterised as two grounds for challenging the decision of the Tribunal. These are:

   a)The Tribunal identified “a wrong issue/incorrect interpretation”.[39] The ground takes issue with the Tribunal describing the applicant as “claiming to fear harm from the Fijian military”. The applicant claims this trivialises the fact the applicant had been harmed by the Fijian military.

   b)The Tribunal ought to have taken into account a Unites States Department Report of 2015 and the UK Law Society Report of 2012 rather than relying on the country information on which the Tribunal relied.[40]

   [39] Draft affidavit, [5]

   [40] Draft affidavit, [7]

4. The draft affidavit otherwise contains assertions, some of which are relevant only to the applicant’s claims for protection, but many of which are not even relevant to those claims. Thus, the draft affidavit refers to the applicant having kept a low profile after the 2007 Incident until he lost his job when he turned 55,[41] the applicant’s membership of FDFM ending in August 2015 when it dissolved, the applicant continuing to “pay membership in the charity organisation, Pacific Indigenous Samaritan Assoc. Inc.”,[42] the applicant’s entitlement to be a member of the FNGE, the activities of PISA,[43] the “Tri-Nation Treaty” made between the FNGE and three Australian Aboriginal tribes,[44]and the needs of the Australian Aboriginal people.[45]

   [41] Draft affidavit, [10]

   [42] Draft affidavit, [12], [13], [29], [30], [35]

   [43] Draft affidavit, [18]-[21]

   [44] Draft affidavit, [23]-[27]

   [45] Draft affidavit, [28], [29]

5. Finally at the hearing before me, the applicant submitted the Tribunal trivialised the applicant’s claims; it did not take the applicant’s claims seriously; Fiji is under a “cloud of democracy”; what was happening before in Fiji is happening today; the 2007 Incident did occur to the applicant; if you speak out against the military you are tortured; and the world does not know what is really happening in Fiji.

Reasonably arguable?

1. In my opinion, none of the grounds the applicant raises are reasonably arguable. It is beyond argument that the claims for protection the applicant makes in his affidavit and his draft affidavit are claims the applicant did not make before the Tribunal; and it is beyond argument this Court does not have jurisdiction to determine whether the applicant has a valid ground for protection based on the matters asserted by the applicant in his affidavit or his draft affidavit.

2. The applicant’s submission that the Tribunal “trivialised” his claims is not reasonably arguable. The Tribunal accepted the incident with Mr D occurred in 2007. There is no reasonably arguable basis for contending, however, that, given that finding, the only conclusion that was reasonably open to the Tribunal on the material that was before it was that the applicant faced a real risk of significant harm if he were to return to Fiji. The Tribunal gave reasons why it concluded it was not satisfied the applicant faced such risk. It is not arguable it was not reasonably open to the Tribunal not to be so satisfied.

3. The applicant’s claim the Tribunal did not take the applicant’s claims seriously is also not arguable. The Tribunal identified each of the claims the applicant had made, and gave reasons for not being satisfied that those claims gave rise to a real risk of significant harm if he were to return to Fiji. It is not arguable it was not reasonably open to the Tribunal not to be so satisfied. Nor does the applicant’s claim that the Tribunal ought to have considered a Unites States Department Report of 2015 and the UK Law Society Report of 2102 disclose a reasonably arguable case of jurisdictional error. There is no suggestion the applicant directed the Tribunal’s attention to these reports. In any event, it was the Tribunal to determine the weight it should give to the country information on which it relied.[46]

   [46] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]

4. All of the other matters on which the applicant relied in his draft affidavit either are matters that could only be relevant to whether the applicant has grounds for protection, and many were not relevant even on that question. This Court does not have jurisdiction to determine whether the applicant has valid grounds for a Protection visa. That was a matter that was within the jurisdiction of the Tribunal. This Court’s jurisdiction is limited to determining whether the Tribunal undertook its task free from jurisdiction error.

Interests of the administration of justice

1. The applicant’s delay in applying for judicial review is significant. The applicant’s explanation for the delay is not adequate. And the grounds on which the applicant proposes to rely for challenging the Tribunal’s decision, if an order were made under s.477(2) of the Act, are not reasonably arguable. It follows, therefore, that I am not satisfied it is in the interests of the administration of justice that an order be made pursuant to s.477(2) of the Act.

Disposition

1. I propose to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding thirty–six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 June 2017