Azadv v Minister for Immigration

[2015] FCCA 966

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 966

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – extension of time sought – application without merit – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476 and 477(1) & (2)

SZMFJ v Minister for Immigration and Anor [2009] FMCA 771
Attorney-General (NSW) v Quin (1990) 170 CLR 1

Applicant: AZADV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 198 of 2013

Judgment of: Judge Simpson

Hearing date: 18 August 2014

Date of Last Submission: 18 August 2014

Delivered at: Adelaide

Delivered on: 21 April 2015

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Ms C Deegan for the Australian Government Solicitors

ORDERS

1. The application for an extension of time to lodge the application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review is refused pursuant to s.477(2) of the Act.

2. The Applicant shall pay the First Respondent’s cost fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 198 of 2013

AZADV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 April 2013.  The Tribunal affirmed a decision of a Delegate of the First Respondent not to grant the Applicant a Protection (class XA) visa (“the visa”). 

2. The Applicant requires an extension of time to make his application as it was not made within the time provided for by s.477(2) of the Migration Act 1958 (Cth) (“the Act”). The First Respondent opposes the application on the basis that it is not in the interests of the administration of justice to extend the time for the making of the application. They submit that this is so because the Tribunal’s decision is not affected by jurisdictional error.

Background

1. The Applicant is a citizen of Sri Lanka.  He arrived at Christmas Island on 21 May 2012 as an unauthorised maritime arrival. 

Before the Delegate

1. On 23 September 2012, the Applicant lodged an application for the visa claiming to be a Tamil who feared returning to Sri Lanka and being harmed and mistreated by the Sri Lankan authorities, including the Criminal Investigation Department (CID), due to his ethnicity, Hindu religion, imputed political opinion of being associated with the Liberation Tigers of Tamil Eelam (“LTTE”), as well as his membership of a particular social group of failed asylum seekers.

2. On 14 January 2013, the Delegate of the Minister refused the application.  On 13 February 2013, the Applicant applied for review of the Delegate’s decision by the Tribunal. 

Before the Tribunal

1. On 4 March 2013, the Applicant was invited to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in his case.  A hearing was conducted on 3 April 2013 at which the Applicant was present and had the assistance of a Tamil interpreter.  He was also represented by his Migration Agent who had acted for him throughout the initial phase of his application before the Delegate.

2. In a decision record dated 18 April 2015, the Tribunal affirmed the Delegate’s decision.  The Tribunal set out in its decision record the claims and evidence both before the Delegate and in the Tribunal.  After detailing the case advanced by the Applicant, the Tribunal made a number of findings (with reasons) as follows:

   ·The Applicant was born in Sri Lanka and is an ethnic Tamil;

   ·It did not consider that being unable to teach amounted to serious harm;

   ·It accepted that the Applicant was the victim of bullying in his role at the education office and that on one occasion the bullying and harassment included a sexual assault;

   ·It did not accept that there was a real chance that the Applicant would be persecuted for an actual or imputed political opinion should he return to Sri Lanka in the foreseeable future;

   ·It considered that the Applicant will not return to work for the education office and that therefore will not be exposed again to the bullying and harassment that he previously experienced there, it was therefore not necessary to make findings about whether there was a real chance of him suffering from serious harm amounting to persecution at that workplace;

   ·The chance of the Applicant’s former boss seeking him out to cause serious harm is too remote to amount to a real chance;

   ·There was no real chance that the Applicant would face serious harm, should he be returned to Sri Lanka, on account of his Tamil ethnicity and/or imputed political opinion;

   ·Should the Applicant return to Sri Lanka in the foreseeable future there was no real chance that he would be persecuted for reasons of his religion, nor would he be prevented from practising his religions such as to cause him serious harm;

   ·It was accepted that, as the Applicant left Sri Lanka illegally, the consequences of the Applicant returning would include being questioned, detained and fined.  The Tribunal did not accept that as a Tamil or Hindu the Applicant’s chance of suffering serious harm as a person who departed the country illegally was elevated.  Further, the Tribunal did not accept that being detained for a few days and fined amounted to serious harm; and

   ·Finally, the Tribunal considered the Applicant’s claims singularly and cumulatively, but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being returned to Sri Lanka, there would be a real risk that he would suffer significant harm.

3. The Tribunal concluded by finding that Australia does not have protection obligations to the Applicant by operation of ss.36(2)(a) or 36(2)(aa) of the Act. Accordingly, it affirmed the decision under review.

Before this Court

Grounds of the substantive application

1. The grounds of the substantive application read as follows:

   “1.That the decision of the second Respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.More detail will be provided by the legal representative.”

2. I invited the Applicant to put whatever submissions he wished to make.  He did not speak fluent English and therefore had the services of an interpreter who assisted him throughout the hearing. 

3. I adjourned for a short period to allow the interpreter to read the First Respondent’s written outline of submissions to him.  I have spent some considerable time explaining to the Applicant the matters that were relevant to his application and the limitations that existed in relation to the relief that I was able to grant him.

4. The Applicant initially requested that I grant him the visa sought.  I explained the nature of the hearing.  The Applicant complained about certain findings that had been made by the Tribunal.  None of the matters that the Applicant raised amounted to an allegation of jurisdictional error. 

5. The First Respondents relied heavily on their outline of submissions but nevertheless gave some brief oral submissions to supplement same. 

6. As the Applicant was unrepresented, I perused all of the documents and satisfied myself that there was no indication of jurisdictional error.

Extension of time

1. The Applicant had filed his application for an extension of time on 8 July 2013, six weeks after the time by which he was required to do so under s.477(1) of the Act.

2. The First Respondent submitted that the Court may, if it is satisfied that it is in the interests of the administration of justice, extend the time for the making of the application.  They correctly submitted that the factors relevant to whether the Court should exercise the discretion to extend time, include the length of the delay, whether the Court was satisfied that the Applicant has provided an adequate explanation for the delay, and the merits of the application.  The case of SZMFJ v Minister for Immigration and Anor[1] was referred to.

   [1] [2009] FMCA 771

3. The Applicant’s ground for the extension of time application stated:

   “1.My English proficiency is poor.  I did not know I had to apply for judicial review within 35 days.  With the limited support in terms of bringing the case to Judicial Review, was very difficult.

   2.I could not get a lawyer to fill this set of forms for me.  I could not find Tamil community or the refugee support groups in Adelaide to assist me until recently.

   3.I am aware that I am late by a few days, and I am extremely sorry about this.  Please accept this application.” (sic)

4. The First Respondent opposed any extension of time being granted principally because of the delay which was not insignificant, the explanation for the delay was inadequate, and there was no merit to the substantive application.  They submit that a six week length of delay is not insignificant.  They submit that coupled with the inadequate explanation offered by the Applicant, these two factors alone are sufficient to deny the application.  They submit further, that no evidence of other material in support of the application has been filed by the Applicant to explain the delay in bringing the proceeding.  They submit that absent an adequate explanation, the application for an extension of time should be dismissed.

5. The First Respondent also relies on the poor merits of the substantive application.  They submit that even if the Court were satisfied that the Applicant had provided an acceptable explanation of his lengthy delay before commencing the proceedings, the absence of any merit in the application would result in the Court not being satisfied that extending time would be in the interests of the administration of justice.

Submissions

1. The First Respondent submitted that the grounds identified by the Applicant highlighted the complete lack of merit in the substantive application.  They submitted that the application does not identify the required jurisdictional error on the Tribunal’s part.  Accordingly they say that in the absence of particulars, the application should be dismissed. 

2. The First Respondent quite rightly submits that it is well established that it would not be a jurisdictional error for the Tribunal to reach a conclusion, which on the material is open to it, but which conclusion reasonable minds might differ.  The case of Attorney-General (NSW) v Quin[2] at [37] was referred to.  The First Respondent further submitted that it is for an Applicant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims. 

   [2] (1990) 170 CLR 1.

3. The First Respondent submits that the findings of the Tribunal were open to be made on the evidence before it, the conclusions were not unreasonable, irrational or illogical.  Further, they say that the Applicant was apprised of the issues for the Tribunal’s determination, and was given the opportunity to give oral and written evidence to the Tribunal.  Each of the Applicant’s claims were comprehensively dealt with by the Tribunal in its reasons and the Tribunal did not fall into legal error, let alone jurisdictional error, and has not failed to construe and apply the Refugee Convention in its dealings with the relevant country information on Tamil asylum seekers.

4. The First Respondent submits that the application for an extension of time should be refused and the proceedings dismissed.

5. I agree with the proposition that the findings made by the Tribunal were open to it to make and that no jurisdictional error has been revealed.

6. Taking into account my assessment of the merits of the case, I propose to refuse the request for an extension of time.  This makes it unnecessary for me to dismiss the application.

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

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate:

Date: 21 April 2015