Azs17 v Minister for Immigration
[2018] FCCA 2173
•9 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZS17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2173 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 CQG15 v Minister for Immigration [2016] FCAFC 146 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 N258/00A v Minister for Immigration (2000) 101 FCR 478 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZHISv Minister for Immigration [2006] FCA 1641 SZRUG v Minister for Immigration & Anor[2013] FCCA 142 |
| Applicant: | AZS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 699 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Abbas of R & J Lawyers |
| Solicitors for the Respondents: | Ms K Hooper of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 699 of 2017
| AZS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the then Refugee Review Tribunal (Tribunal) made on 30 March 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The application was filed well outside the period prescribed under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, the applicant seeks an extension of time pursuant to s.477(2). Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 2 August 2018.
The applicant is a male citizen of Iran, who arrived in Australia on 1 August 2012. The applicant applied for a protection visa on 13 December 2012.[1] The applicant claimed to fear harm in Iran due to his Arab Kumari ethnicity, his religion (as an agnostic and/or a convert from Islam to Christianity), his imputed political opinion (as opposed to the Iranian regime due to his opposition to the confiscation of his family members' land) and his membership of a particular social group (namely, failed asylum seekers returning from a western country).
[1] Court Book (CB) 30
On 19 September 2013, the delegate refused to grant the applicant a protection visa.[2]
[2] CB 145
The applicant sought review of the delegate's decision before the Tribunal by application dated 25 September 2013.[3] The applicant appeared at a hearing before the Tribunal on 9 January 2015.[4]
[3] CB 172
[4] CB 236
The Tribunal made its decision on 30 March 2015, affirming the decision not to grant the applicant a protection visa.[5] The Tribunal found the applicant was not a credible witness and rejected his material factual claims. The Tribunal found that the applicant provided inconsistent evidence in relation to when and how often he was beaten by the Basij,[6] in relation to when and why he decided to leave Iran,[7] and in relation to his claimed lack of religious belief and conversion to Christianity.[8] The Tribunal was prepared to accept that the applicant may have been suffering from depression at the time of the hearing, but found this did not negate its concerns about the applicant's credibility.[9] The Tribunal found the applicant was not a credible witness and that he fabricated some claims and embellished others.[10]
[5] CB 264
[6] at [25]–[30]
[7] at [31]–[33]
[8] at [56]
[9] at [35]
[10] at [37]
Accordingly, while the Tribunal accepted the applicant's father and uncle inherited land on which the Govtand Dam was built and accepted the applicant may have been involved in altercations with the Basij stemming from the dispute over land and compensation, it did not accept that the applicant was beaten or shot at by the Basij on any occasion.[11] The Tribunal also did not accept that the Basij raided the applicant's house or threatened his mother, or that the applicant decided to leave Iran because of this incident.[12] The Tribunal found the applicant was not the owner of the property and therefore not entitled to compensation, and did not accept that the Iranian authorities did not pay the applicant compensation because he was an Arab.[13] The Tribunal did not accept that the applicant would face harm in relation to the land dispute, or on account of his imputed political opinion.[14]
[11] at [37]–[40]
[12] at [40]
[13] at [41]
[14] at [40]–[42]
Having regard to independent country information and the applicant's evidence, the Tribunal did not accept that the applicant would face harm on account of his Arab ethnicity,[15] because he has no religion,[16] as a convert to Christianity[17] or as a member of a particular social group of failed asylum seekers returning from a western country.[18] In relation to the applicant's claimed conversion to Christianity, the Tribunal was not satisfied the applicant attended church or was baptised for any reason other than strengthening his protection claims and disregarded his conduct under (then) s.91R(3) of the Migration Act.[19] In relation to the applicant's illegal departure, the Tribunal found that any detention on return was not persecutory, nor serious harm.[20]
[15] at [50]
[16] at [59]
[17] at [80]
[18] at [92]
[19] at [80]
[20] at [91]
For the same reasons, and setting out specific findings,[21] the Tribunal found the applicant did not satisfy the complementary protection criterion.[22] In this context, in relation to the applicant's attendance at church in Australia, the Tribunal was not satisfied that the Iranian authorities would become aware of his activities or that it would result in an adverse profile if they did, given the Tribunal was not satisfied the applicant would practise Christianity or proselytise in Iran.[23]
[21] at [95]–[109]
[22] at [110]–[111]
[23] at [107]
The present proceedings
The proposed judicial review application was lodged on 8 March 2017 and filed the following day. As pointed out in the Minister’s submissions, that was 674 days outside the 35 day period prescribed under s.477(1) of the Migration Act. While the application was accompanied by an affidavit by the applicant’s former solicitor, Mr Hugh Ford, which I received, the Minister also points out correctly that rule 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) provides that an application must be supported by an affidavit explaining the delay and showing why it is in the interests of the administration of justice for an extension of time to be granted. No such affidavit has been filed in these proceedings. It was therefore open to me to dismiss the extension of time application for that reason alone. I have elected not to and have taken submissions on the question of whether an extension of time should be granted.
I have received as evidence the court book filed on 27 April 2017.
The parties both filed written submissions in advance of today’s hearing and made oral submissions through their representatives.
The Minister’s submissions deal with relevant considerations in relation to an extension of time. A non-exhaustive list of factors relevant to this Court's exercise of discretion to extend time include:[24]
a)the extent of any delay;
b)the reasons for such delay;
c)prejudice to the respondents;
d)impact on the applicant should time not be extended;
e)interests of the public at large;
f)merits of the proposed substantive application; and
g)the general discretion of the Court.
[24] See, for example, SZRUG v Minister for Immigration & Anor[2013] FCCA 142 at [8] per Judge Nicholls (and the cases there cited)
The delay in this matter was a very long one. There is no evidence of the reasons for delay, although in the application form the applicant draws attention to asserted financial and mental stress. Be that as it may, it did not prevent the applicant seeking ministerial intervention under s.417 of the Migration Act following the Tribunal decision.
The applicant was legally represented before the Tribunal and has been legally represented in this proceeding. The inference is open in the circumstances that the applicant made a considered choice to pursue ministerial intervention in preference to seeking judicial review in this Court. I agree with the Minister’s submission that an informed choice to pursue ministerial intervention in preference to judicial review proceedings is not a reason to grant an extension of time when ministerial intervention is declined.
Given the length of the delay there would need to be significant countervailing factors to justify the granting of an extension of time. I see no such countervailing factors. There is no evidence of psychological or financial issues preventing the applicant in coming to court in a more timely way, and even if there had been, that would not in itself, in my view, have necessitated the granting of an extension of time. Further, the grounds of the proposed judicial review application advanced are not, in my view, persuasive.
Both those grounds and the written submissions prepared in support of this application are a detailed critique of the Tribunal decision, but struggle to rise above a simple argument over the merits of the Tribunal decision.
The applicant's grounds of review and written submissions misstate the nature of the Tribunal's jurisdictional task. In particular:
a)it is for the applicant, not the Tribunal, to supply evidence in as much detail as necessary to satisfy the Tribunal that the relevant Convention criterion is satisfied;[25]
b)the Tribunal was not required to accept uncritically any of the applicant's claims;[26]
c)the Tribunal does not require rebutting evidence before rejecting the applicant's factual assertions;[27]
d)the “no evidence” ground is not available where the finding challenged is in substance a negative one;[28]
e)the Tribunal's conclusion that the applicant was not a credible witness was a finding of fact for the Tribunal to determine, and it was not unlawful for the Tribunal to engage in such an assessment;[29]
f)the Tribunal's findings of inconsistency were reasonably open to it. The concern identified by the Tribunal at [31]–[33] was plainly with the consistency of the applicant's evidence as to the timing of the applicant's decision to leave Iran;[30]
g)there is nothing apparent in the Tribunal's reasoning in relation to the applicant's credibility that would suggest any error in its approach;[31]
h)the applicant was on notice that his credibility was a dispositive issue; it was considered by the first respondent's delegate.[32] The Tribunal traversed its concerns with the applicant, at the Tribunal hearing.[33] The applicant's representative in post-hearing submissions dated 9 January 2015 addressed concerns that had been traversed with the applicant at the Tribunal hearing.[34] The applicant was plainly afforded an opportunity to give evidence and present arguments about the determinative issues on review;[35] and
i)the Tribunal is not required to give the applicant the benefit of the doubt.[36]
[25] Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]
[26] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 [21]
[27] Selvadurai v Minister for Immigration (1994) 34 ALD 347 at [7]
[28] Sunchen Pty Ltd v Commissioner of Taxation (2010) 264 ALR 447 at [43] –[45], per Perram J and the cases there cited; N258/00A v Minister for Immigration (2000) 101 FCR 478 at [27]
[29] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]–[68]
[30] cf applicant's submissions at [12] – [18]
[31] cf CQG15 v Minister for Immigration [2016] FCAFC 146 at [36]–[38]
[32] see, for example, CB 152; 156; 158
[33] see, for example CB 269[30]; 269[33]; 274[43]
[34] CB 250 and following
[35] SZBEL v Minister for Immigration (2006) 228 CLR 152
[36] SZHISv Minister for Immigration [2006] FCA 1641 at [10]–[11] per Jacobson J
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case. The application for an extension of time is refused with the consequence that the application is incompetent by reason of a want of jurisdiction.
I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000, bearing in mind that the matter was listed for a final hearing today should an extension of time have been granted.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 August 2018
0
9
3