AZACG v Minister for Immigration

[2013] FCCA 1364

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACG & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1364

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – extension of time sought – matters considered – application for review unlikely to succeed – extension of time refused.

Legislation:  
Migration Act 1958 (Cth), ss.417, 476, 477(1) &(2)

Applicant A2 of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 576
Applicant M29 of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 1266
Daniel v Minister for Immigration, Multicultural & Indigenous Affairs (2004) 205 ALR 198
Dranichnikov v Minister for Immigration, Multicultural & Indigenous Affairs (2003) 197 ALR 308
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
SZNOE v Minister for Immigration & Citizenship [2012] FCA 96
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZXDQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1632
SZJRU v Minister for Immigration & Citizenship [2009] FCA 315
BRGAE of 2008 v Minister for Immigration & Citizenship [2009] FCA 543

First Applicant: AZACG

Second Applicant: AZACH

Third Applicant: AZACI

Fourth Applicant: AZACJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 168 of 2012

Judgment of: Judge Simpson

Hearing date: 18 June 2013

Date of Last Submission: 18 June 2013

Delivered at: Adelaide

Delivered on: 17 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application pursuant to s.447(2) of the Migration Act 1958 (Cth) for an extension of time to file an application pursuant to s.476 of the Act is refused.

2. The applicant shall forthwith pay the first respondent its costs fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 168 of 2012

AZACG

First Applicant

AZACH

Second Applicant

AZACI

Third Applicant

AZACJ

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed on 15 August 2012 in which the applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 February 2012.  The Tribunal affirmed a decision of a delegate of the first respondent (“the Delegate”) dated 9 August 2011 to refuse to grant the applicants’ Protection (Class XA) Visas.

The application to extend time

1. The application for judicial review was made 133 days after the time prescribed in s.477(1) of the Migration Act 1958 (Cth) (“the Act”). The applicants therefore require an extension of time under s.477(2). The extension of time is opposed by the respondents. The application to this Court was lodged on 15 August 2012. The date of the Tribunal’s decision was 29 February 2012. To be within time, the application had to be lodged by 4 April 2012. By reason of s.477(1) of the Act, the application is incompetent unless the Court grants an extension of time pursuant to s.477(2).

2. An extension of time is only permitted if the Court considers that the interests of the administration of justice make an order for an extension necessary.  Some of the factors that the Court has to consider before making such an order are:

   a)the extent of the delay and the reasons for it;

   b)any prejudice to the respondent if an extension of time is granted;

   c)any prejudice to the applicants if an extension of time is not granted;

   d)the interests of the public at large;

   e)the merits of the substantive application; and

   f)an exercise of the Court’s discretion.

3. The applicants’ solicitor, Ms McGrath, filed an affidavit on 15 August 2012 in which she gave evidence of a number of matters that are relevant to this topic. She states that after the applicants were unsuccessful before the Tribunal, she advised them that there were two options open to them: they could seek review from this Court as there were arguable grounds for seeking such review; or, they could ask the Minister for Immigration and Citizenship to intervene and replace the decision of the Tribunal with a favourable decision. 

4. Ms McGrath said that, for financial reasons (ie they did not have the financial resources to seek review) they wished to take the option to ask the Minister to intervene.

5. The respondent submits that pursuing an alternative form of re-dress is not a sufficient explanation or excuse for delay.  They say that this is so even where an applicant has obtained legal advice on the topic.  Their submission was supported the case of Applicant A2 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs[1] in which his Honour Justice Doussa said of the applicant that:

   “… having taken that course, [to make an application under s.417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.”

   [1] [2003] FCA 576

6. In Applicant M29 of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs[2], Weinberg J in similar circumstances to the present said:

   [2] [2003] FCA 1266

   “In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT’s decision, for ministerial intervention pursuant to s.48B and s.417 of the Act.

   …

   In my view, the delay has not been adequately explained.  I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576; BC200302902 at [8]-[10].  There is nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention.  The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.”

7. In Daniel v Minister for Immigration, Multicultural and Indigenous Affairs[3], Goldberg J said that the applicant’s course of conduct in making a s.417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act, or otherwise at law. His Honour stated that the s.417 application was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the Tribunal’s decision was not to be the subject of challenge.

   [3] (2004) 205 ALR 198

8. The delay has been a long one.  The reasons for delay, or perhaps more accurately, the consequences of the delay, are that the applicants will have a second chance to overturn the Tribunal’s decision.  Other applicants generally only have one opportunity to do so.

9. The prejudice that the applicants will suffer if an extension of time is not granted is that they will not have the opportunity to have their application heard and a decision given.

10. So far as the merits of the matter are concerned, for the reasons detailed later in these reasons, I consider that the applicants’ substantive application would be unsuccessful. 

11. I propose to exercise my discretion to not grant an extension of time for the filing of the application.

The applicants’ claims

1. The first and second applicants are husband and wife respectively and the third and fourth applicants are their two sons.  All the applicants are citizens of Albania who arrived in Australia on 16 April 2010.

2. The applicants applied to the Department of Immigration and Citizenship (‘the Department’) for Protection (Class XA) visas on 21 June 2010.  They appointed a migration agent to assist them in connection with their application.  Both the applicant (husband) and the applicant (wife) made convention-related claims.  The third and fourth applicants relied on the claims of their parents as members of their family unit.

3. The first applicant claimed to fear harm on the basis of his political involvement in the Demo-Christian Party (‘the DCP) in Albania.  He claimed that his family was targeted in the past because of their anti-communist views and were now targeted by the current government because of his political affiliations and because they are of the Roman Catholic faith.  He claimed that he was attacked in 1992-1993 during the elections and was forced to move to Italy in 1996 as a result of the threats he received from Muslims.  In Italy, he continued his involvement in the DCP and returned to Albania on a number of occasions to assist in elections.  In 2005, he started to receive threatening letters and in November 2009 he was attacked outside a bar.  He also claimed to fear harm as a member of the social group “spouse of an Albanian woman who has suffered rape”.

4. The second (applicant) wife claimed that her car had been deliberately hit from behind in June 2009.  She says that on 28 November 2009 her car was stopped and she was forced into another vehicle by three men.  She was taken to a quiet part of town and then gang raped.  She claimed that she feared that she would face persecution for reasons of her membership of one or other of two particular social groups namely “Women in Albania” and “Albanian women who have suffered rape”.

The delegate’s decision

1. On 7 April 2011, a Delegate for the first respondent (“the Delegate”) invited the applicants to attend an interview scheduled for 5 May 2011.  The first and second applicants attended the interview and gave evidence in support of their claims.

2. In a decision dated 9 August 2011, the Delegate refused to grant the applicants Protection visas.  The Delegate was not satisfied that “Women in Albania” constituted a particular social group.  Nor did the Delegate accept that the applicants had faced serious harm in the past.  She found their willingness to travel back and forth between Italy and Albania on a number of occasions indicated that they lacked a genuine subjective fear of persecution.  The Delegate was also not satisfied on the evidence before her that the applicants would be denied state protection by the Albanian authorities.  Accordingly, the Delegate was not satisfied that the applicant’s fear of persecution was “well founded”.

The Tribunal’s proceedings

1. On 25 August 2011, the applicants lodged an application with the Tribunal to review the Delegate’s decision.  They appointed a representative to act on their behalf in connection with the review.

2. By a letter dated 4 November 2011, the Tribunal validly invited the applicants to attend a hearing scheduled for 12 December 2011.  The first and second applicants accepted this invitation and appeared before the Tribunal at the scheduled hearing.

3. In support of their claims, the applicants also provided statutory declarations, a letter from the Parish of Santa Monica, a psychologist’s report and medical records relating to the second applicant.

4. On 14 December 2011 and 4 January 2012, the applicants’ representative provided the Tribunal with further written submissions in support of the applicants’ claims for protection.

The Tribunal’s decision

1. In a decision dated 29 February 2012, the Tribunal affirmed the Delegate’s decision to refuse to grant the applicants Protection visas.

2. On the basis of accepted independent country information (‘ICI’) before it, the Tribunal found that the applicants did not have a well-founded fear of persecution for reasons of their support for the DCP.

3. The Tribunal also found it “implausible” that as an ordinary member of the DCP, the first applicant would have been pursued from the time when he left Albania in 1996 to when he left Italy in 2010.  The Tribunal also found it implausible that if the threats against the applicants had been made, that they did not take any earlier steps to avoid persecution, such as seeking help from the Italian authorities or relocating within Italy.  Nor did the Tribunal accept that the first applicant would have returned to Albania on a number of occasions as he did (including with his family) if he had a genuine fear of persecution.  In making her finding, the Tribunal expressly rejected the applicant’s claim that they were in hiding on their return to Albania.

4. The Tribunal also found as “implausible” the applicant’s explanation for the attack on him in November 2009 and his claim that he would be targeted by fundamentalist Muslims because of his religion and/or political opinion.  In reaching this finding, the Tribunal placed weight on accepted ICI that indicated Catholicism to be one of the four major religions in Albania.

5. In light of the applicants’ own evidence that their parents and siblings remained living in Albania without suffering harm, the Tribunal did not accept that the applicants would be targeted because of their ancestors’ anti-communist views.

6. The Tribunal accepted on the basis of the evidence before it, including a psychologist report dated 30 October 2011, that the second applicant had been a victim of gang rape.  The Tribunal was not satisfied, however, that she had been targeted for reasons of her political or religious views.  In reaching this finding, the Tribunal noted its earlier concerns about the plausibility of the applicant’s claim and gave “little weight” to the psychologist’s report as corroborative evidence of the second applicant’s claims to have been targeted for a Convention reason.  The psychologist simply recounted the history that the applicant had given her and expressed her opinion about the applicant’s psychological state and the reason for it.

7. Accordingly, the Tribunal did not accept that the applicants had been targeted for reasons of their religion and/or political opinion or that they would be targeted for those reasons if they returned to Albania in the reasonably foreseeable future.

8. The Tribunal was also not satisfied on the evidence before it that the second applicant would face serious harm for reasons of her membership of a particular social group comprising of “Women in Albania”.  Nor did it accept that the applicants would be targeted for reasons of the second applicant having been a victim of sexual assault.

9. Accordingly, the Tribunal found that the applicants were not persons to whom Australia owed protection obligations and it affirmed the decision under review.

The merits of the substantive application

1. The applicants’ application relied on three grounds.  At the hearing Counsel for the applicants indicated that Ground 3 was no longer to be pursued.  The remaining grounds were in the following terms:

   “1.The Tribunal failed to observe the requirements of natural justice and/or committed jurisdictional error, in that it failed to make a finding as to whether:

   1.1“Albanian women”;

   1.2“Albanian women who have been raped”; and

   1.3spouse of an Albanian women (sic) who have been raped,

   comprised particular social groups before it considered whether the applicants were members of those classes, whether they had a fear, whether that fear was well founded and, if so, for reason of membership of the group.

   2.The Tribunal committed jurisdictional error by failing to ask the right question, in that it:

   2.1made a finding “that there is no reason to believe they would tell anyone [about the wife’s rape] if they returned to Albania or that they would be targeted for serious harm if they were discovered” which was to the effect that they could live in Albania without attracting adverse consequences; and

   2.2failed to make a finding as to what may happen if the applicant returns to Albania.”

Applicants’ case

1. It is put on behalf of the applicants that the Tribunal erred in the manner it dealt with the fact that the applicant (wife) had been gang raped in November 2009 and that she did not want it to be known in Albania that she had been raped.  They submitted that this error constituted jurisdictional error in one of two ways: firstly, it failed to consider whether “Albanian women who have suffered rape” constituted a particular social group; and second, it failed to ask itself the question of why the applicant wife did not want the fact of the pack rape to be publicly known in the event that she returned to Albania. 

2. The applicants’ case has suggested that the Tribunal approached the matter incorrectly in that it did not follow the steps to be taken in matters where applicants claim that persecution is on the basis of their membership of a particular social group or class.  This approach was detailed by Gummow and Callinan JJ who stated:

   “First the Tribunal needs to determine whether the group or class to which the applicant claims to belong is capable of constituting a particular social group for the purposes of the Convention. … If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  There then follows the questions whether the applicant has a fear, whether the fear if well founded, and if it is, whether it is for a convention reason.”[4]

   [4]     Dranichnikov v Minister for Immigration, Multicultural & Indigenous Affairs (2003) 197 ALR 308 at [394]

3. Counsel also referred to the case of Applicant S v Minister for Immigration & Multicultural Affairs[5] in which the Court stated:

   “As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.”

   [5] (2004) 217 CLR 387 at [36]

Respondent’s case

1. The respondent’s case is that there was no need for the Tribunal to go through the process suggested in Dranichnikov as the applicants did not have a well-founded fear of persecution.  It is submitted on behalf the respondent that there was no obligation on the Tribunal to make a finding about the existence (or otherwise) of a claimed particular social group in a situation where there is a finding that the applicants do not have a well-founded fear of persecution for any reason. Logic suggests that this must be correct.

2. The respondent refers to the following passage from the decision of Greenwood J in SZNOE v Minister for Immigration and Citizenship[6] (with emphasis added):

   “… There is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Article 1A(2) of the Refugees’ Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s.91R(1) of the Act.”

   The respondent relied on the following further cases:  MZXDQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration & Citizenship [2009] FCA 315 at [29]-[50] per Besanko J; and BRGAE of 2008 v Minister for Immigration & Citizenship [2009] FCA 543 at [21]-[25].

   [6] [2012] FCA 96 at [78]

3. The respondent submits that unless the Tribunal makes a jurisdictional error on the question of fact of whether the applicants hold a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicants claims membership.

Conclusions

1. The Tribunal was not required to accept the applicants’ claims at face value.  The weight to be given to their claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[7]  In particular, the Tribunal’s findings that the applicants’ claims were not credible were findings of fact that were open to the Tribunal to make on the evidence before it.  The Court cannot review the merits of the Tribunal’s findings. 

   [7]     Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282

2. If the matter was not out of time, it would be dismissed.

3. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  17 September 2013