BAI16 v Minister for Immigration
[2017] FCCA 3038
•22 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAI16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3038 |
| Catchwords: MIGRATION – Application for an extension of time within which to seek review of a decision of the Refugee Review Tribunal – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 477 |
| Cases cited: AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139 CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 |
| Applicant: | BAI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1086 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2017 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Ms Palaniappan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1086 of 2016
| BAI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter comes before me as an application for an extension of time within which to bring proceedings seeking review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), not to grant the Applicant a protection visa.
Under s.477(1) of the Migration Act 1958 (Cth) (the Act), an application to this court in relation to a migration decision must be made within 35 days of the date of the decision. However under s.477(2) of the Act the Court may, by order, extend that 35-day period as it considers appropriate if an application for the order has been made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order and the Court is so satisfied.
In his application of 4 May 2016 the Applicant sought an extension of time within which to seek review of the Tribunal decision of 30 June 2015.
The factors to which regard might be had in considering an application for an extension of time are not specified in the Act. However, it is well-established that while the Court may have regard to all the circumstances, factors which might ordinarily be taken into account would include the delay in commencing the proceedings and whether there is a reasonable and satisfactory explanation for that delay, any prejudice the Minister might suffer because of the delay, any prejudice claimed by the Applicant, and the merits of the substantive application (see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 per Foster J and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 per Wigney J). It is also relevant to have regard to the fact that there is no appeal, as such, from a decision in relation to an application for an extension of time (see AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139).
I bear in mind the discussion of principles in SZRIQ and the remarks of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (and the endorsement by the Full Court on appeal in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110), in particular the fact that there is a relatively unconfined range of factors to be considered in the exercise of the discretion, and the need to adopt a restrained approach and to proceed in a reasonably impressionistic manner in assessing the merits of the grounds of review.
Mortimer J suggested in MZABP at [63] that in the context of an application for an extension of time:
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” … the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right.
However, her Honour also stated in MZABP at [62] (albeit in relation to leave to appeal) “it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success”.
The Tribunal decision in this case was made on 30 June 2015. The application to this court was filed on 4 May 2016. The application was filed over ten months after the Tribunal decision and was thus approximately nine months out of time. That is a significant delay in the context of a 35-day time limit.
The Applicant attached to the affidavit supporting his application a copy of a letter dated 4 April 2016 from the Department advising of the grant of a Bridging E visa on 4 April 2016 to cease on 4 May 2016 and a copy of a letter of 11 April 2016 from the Minister’s office advising that he did not meet the guidelines for Ministerial intervention. He provided an unsworn statement in his application to the effect that his case was handled by a migration agent when it was before the Tribunal (consistent with the material in the Courtbook) and that the agent wrote to the Minister (seeking Ministerial intervention). The Applicant claimed he received a copy of the letter of 11 April 2016 a few days before he filed his application. However he also stated in his application that a bridging visa was granted to him until 4 May 2016 and that “the only option available” to him was to apply to the Federal Circuit Court of Australia.
In the hearing today the Applicant sought to rely on written submissions which had been prepared for him, in which, among other things, there was a purported explanation for the delay in commencing these proceedings. In these circumstances, I gave him the opportunity to give oral evidence explaining the delay in commencing these proceedings. He was also cross-examined by counsel for the Minister.
The Applicant’s evidence was that he relied on his migration agent. He asserted that she did not give him what he described as the “proper advice” and that he went to the Minister rather than to the Court. He acknowledged in cross-examination that he had received the Tribunal decision. His attention was drawn to the documents enclosed in the letter of notification of the Tribunal decision addressed to him (enclosed in the letter sent to his migration agent on 30 June 2015) which, among other things, drew his attention to his right to apply for judicial review and to the need to apply within 35 days of the date of the Tribunal decision or otherwise to seek an extension of time.
The Applicant’s evidence was that the Tribunal’s decision was not handed to him until the “last minute” by the migration agent and that she advised him to apply to the Minister. It is not clear what he meant by “last minute”. There is no evidence as to the date on which the Applicant sought Ministerial intervention. He claimed he later came to know that he could have gone to the Court from advice from some unidentified people. The time at which and circumstances in which he received this advice was not clearly explained. The Applicant’s explanation in this respect is incomplete and not entirely satisfactory.
There is authority to support the view that the mere fact of an application for Ministerial intervention after a Tribunal decision is not, in itself, a factor which provides an acceptable explanation for failure to lodge an application for judicial review within time (see in particular, the remarks of Jessup J in Vu v Minister for Immigration and Citizenship (2008) 101 ALR 211; [2008] FCAFC 59 at [29]), although there are also circumstances in which an application for Ministerial intervention can form part of circumstances which, considered as a whole, do amount to a reasonable and acceptable explanation (see MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 per Mortimer J at [11] and MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 per Mortimer J at [15]). The Applicant’s explanation was lacking in detail. Taken at its highest, his claim is that he relied on his migration agent’s advice and sought Ministerial intervention on that basis. It is not clear whether he was initially aware of his right to seek judicial review.
In any event, even if his explanation for the delay is to be seen as reasonable and acceptable, either in whole or in part, it is not in itself such as to warrant the grant of an extension of time. As contended for by the First Respondent, the difficulty that faces the Applicant is that, as I discuss further below, the grounds in his application have such poor prospects of success that an extension of time would be an exercise of futility in the sense considered by Mortimer J in MZABP.
The grounds of review, both in the application and as explained in oral and written submissions, are hopeless, in the sense that on an impressionistic consideration, I am confident that they must fail (see MZABP at [66]).
In order to consider the grounds of review, it is necessary to consider the background to this case and the Tribunal reasons for decision.
The Applicant, a citizen of Fiji, arrived in Australia in 2007. In November 2013, he applied for a protection visa. He provided a written statement in support of his protection visa application. He claimed, in essence, that he had been employed as a law clerk in the registry of the High Court in Fiji, with primary responsibility for handling criminal and civil files and taking files from the Magistrates Court to the High Court. He claimed to fear harm from a former politician and military personnel and the military government. He claimed that a businessman (Mr P) offered him a bribe to destroy paperwork relating to a tax case he was involved in, that Mr Qarase, the former Prime Minister, threatened him if he did not do so and that he was also threatened by military personnel because he had refused to provide them with court paperwork relating to the tax matter involving Mr P. The Applicant claimed “military rebels” had threatened to kill him and threatened his family for failing to provide them with court internal documents.
The Applicant claimed to fear “military personnel and the military government and those running the government” as well as former politicians. He claimed to fear being prosecuted (sic) or killed.
The Applicant was interviewed by a delegate of the Minister in relation to his protection visa application. The application was refused. The delegate expressed concern in relation to the credibility of the Applicant’s claims, having regard to inconsistencies between the claims in his written statement and his evidence at interview and the delay of six and a half years between the time of the Applicant’s arrival in Australia and his application for protection.
The Applicant sought review by the Tribunal. He attended a Tribunal hearing in June 2015. The only evidence before the Court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
In its reasons for decision, the Tribunal set out the law and the background to the application. It then described in some detail the claims made by the Applicant in his November 2013 statement and in his interview with the delegate in June 2014. It described the delegate’s decision and referred to the concerns expressed therein. It summarised the claims made by the Applicant at the Tribunal hearing in June 2015. It also recorded issues that it had raised with the Applicant in relation to matters such as inconsistencies, discrepancies and implausibilities in his evidence, the current situation in Fiji and his delay in seeking protection.
The Tribunal recorded that when asked what he feared would happen on return to Fiji, the Applicant claimed he feared he would be harmed by Mr Qarase and his clan and the military because he refused to help them. He claimed part of the military supported Mr Qarase.
In its findings and reasons, the Tribunal referred to the fact that the delegate had a number of concerns about serious inconsistencies and other difficulties with the Applicant’s evidence. It indicated that it shared those concerns. It elaborated on its concerns.
The Tribunal stated that it had been unimpressed with the Applicant as a witness at hearing. It had regard to the fact that while as recently as November 2013 he had been able to provide a detailed written account of his claims, at hearing he appeared to have difficulty providing any detailed account and several times he had replied that he did not remember in response to questions about key aspects of his claims. In addition, on one important matter, the claimed approach by Mr P, the Applicant’s evidence at the hearing was inconsistent with his earlier statements.
In these circumstances, the Tribunal stated that it had given careful scrutiny to the Applicant’s claims. It summarised his claims as claims that in 2007 he had refused pressure from the deposed prime minister, Mr Qarase, and an associated businessman (Mr P) to destroy court documents in relation to pending tax charges against Mr P’s business. He further claimed that the military had threatened him to provide court information, detained him overnight at military barracks and mistreated him there. He also claimed the military had visited his home on two occasions and threatened him and his family and that they had subsequently threatened his family. He claimed to fear that on return to Fiji he would be harmed by Mr Qarase and Mr P and also by the military.
The Tribunal accepted that it was possible that a businessman might seek to bribe a court employee in order to gain information about or to in some way assist him in legal proceedings being brought against him for tax evasion and that it was also conceivable that former Prime Minister Qarase, although deposed from power and under pressure from the military, might seek to intervene in support of the businessman.
However the Tribunal had serious concerns about the Applicant’s claims to the extent that they went beyond this. Further it had regard to the fact that Mr Qarase and his business associates were prominent targets of the military at that time and found it hard to see that legal action against Mr P could just “disappear” because a court clerk abstracted a file. The Tribunal found that the Applicant’s account of incidents had varied significantly at the interview with the delegate from his original written statement. It found that this strongly suggested that the Applicant had embroidered and elaborated on whatever approach might have been made to him. The Tribunal also had regard to the fact that at hearing the Applicant had stated the approach by Mr P was by telephone, whereas previously he had claimed he had been summoned to an interview with Mr P in Mr P’s office. It considered the Applicant’s explanation for this inconsistency: that he could not remember properly. The Tribunal found this explanation unpersuasive, as this approach was a key aspect of the incidents claimed. This led the Tribunal to doubt seriously whether the approach to the Applicant was made at all.
The Tribunal had regard to the fact that the Applicant said that he had not responded positively to the approaches made by Mr P and Mr Qarase, but that notwithstanding his expressed fears in this regard nothing further was said to have been done by either Mr P or Mr Qarase in relation to the Applicant or his family before his departure from Fiji some weeks later, or in the eight years since that time. The Tribunal observed that it had not been claimed there had been any contact by Mr P or Mr Qarase thereafter.
Having regard to these matters and in the context of other difficulties that faced Mr P and Mr Qarase (who had subsequently been sentenced to prison in Fiji in relation to other matters), the Tribunal did not accept that Mr P or Mr Qarase would harm the Applicant if he returned to Fiji now, after eight years. It did not accept that they would have the capacity and motivation to seriously harm the Applicant now on account of his claimed unwillingness to corruptly assist Mr P with his legal problems in January 2007. The Tribunal was satisfied the Applicant did not face a real chance or risk of serious harm on return to Fiji on this basis.
The Tribunal also considered the Applicant’s claims to have been threatened by and to fear members of the military. It stated that it had given careful consideration to his claims to have been threatened by members of the military in 2007. Referring to country information, it acknowledged that in early 2007, after the 2006 coup, the military were very assertive and intrusive, including in taking action against members of the former government and persons associated with them. However the Tribunal “noted with concern” that the Applicant’s initial account of his encounter with the military differed “fundamentally” from his evidence at interview with the delegate. In his written statement he had stated that he was accosted and threatened on the street by members of the military, whereas at interview he had stated that he was actually arrested and taken to the military barracks, detained overnight, mistreated and threatened.
The Tribunal was of the view that the Applicant could hardly have omitted overnight detention at the military barracks from his lengthy, detailed written statement, had it actually occurred. The Tribunal was not satisfied that this had occurred. It also found that if the Applicant had provided a false account at the interview with the delegate, this raised a serious question about whether he was stopped and threatened by the military at all.
The Tribunal also found that there were discrepancies in the Applicant’s evidence concerning the claimed visits to his home and threats to his family by the military. In addition, it found it hard to see why the military would act as claimed, as it could have informed itself about the case against Mr P in the normal way through the court process, demanded the information from the court, or even gone to the court and accessed or taken the file.
The Tribunal was of the view that in the circumstances of the time, there would have been no need for the military to seek to suborn a law clerk in order to access the file or to find out what was happening. Further, although the Applicant had previously said that the military wanted advance information about unspecified personal court information, at the Tribunal hearing he asserted (for the first time) that the military wanted to assist Mr P and Mr Qarase by accessing relevant court documents. The Tribunal found this to be highly implausible in the circumstances of early 2007.
In any event, the Tribunal went on to find that even if this did occur, it was very difficult to accept that the military would have an ongoing interest in the Applicant or his family for this reason after eight years. In addition, the Tribunal had regard to the fact that the political situation in Fiji had changed dramatically from the uncertain and rather lawless situation prevailing soon after the 2006 coup. It stated that it was very hard to see that there would be any ongoing problems for these reasons if the Applicant now returned to Fiji. It referred to the free elections of September 2014 which resulted in an elected government which could not be characterised as a military government and found that the role of the military was very different from what it had been in 2007. The Tribunal also had regard to the fact that, despite the Applicant’s repeated claims that his family in Fiji had been threatened for this reason, there was no claim or evidence that any harm had come to them at the time or over the intervening years.
Finally, the Tribunal found it hard to understand the fact that, if all of these claims were true and the Applicant came to Australia fearing persecution, he did not apply for refugee status at the time or, in any event, much earlier than six and a half years later.
In all the circumstances, the Tribunal was not satisfied that the Applicant and his family were threatened by the military as claimed. It was satisfied he did not face a real chance or real risk of serious or significant harm on return to Fiji by members of the military who were seeking to assist Mr P or Mr Qarase in 2007.
The Tribunal also considered the Applicant’s circumstances cumulatively. It was satisfied he did not face a real chance of serious harm amounting to persecution on return to Fiji now or in the reasonably foreseeable future for a Convention reason or reasons.
The Tribunal considered the complementary protection criterion in light of its finding that the Applicant would not face a real chance or real risk of serious or significant harm in relation to the matters already discussed. It also had regard to the Applicant’s claims about his employment prospects and the economic situation of his parents. It did not accept that those arose for a Convention reason. Nor was it satisfied that the Applicant faced any greater difficulty in relation to future employment in Fiji than the population generally. Indeed, it observed that given the Applicant’s qualifications and experience, it might be thought he would be in a better position than most to obtain employment and secure a livelihood.
Having regard to all the circumstances, the Tribunal was not satisfied there were substantial grounds for believing the Applicant would face a real risk of significant harm should he return to Fiji. It found that he did not meet the complementary protection criterion and affirmed the delegate’s decision.
The first ground of review is that:
The Refugee Review Tribunal at the time ignored my fear of persecution and the harm and risk from the military.
If this is intended to assert a failure by the Tribunal to consider the Applicant’s fear of persecution or any aspect of his claimed fear, whether that be his claimed fear of the military or otherwise, there is no arguable basis for such a contention.
The Tribunal did not ignore the Applicant’s claimed fear of persecution. It considered both his written and oral evidence to the delegate and at the hearing. Contrary to this ground, it expressly considered his claimed fear, both of former politicians and of the military in Fiji. It did not accept that certain aspects of his claims were credible, but also made findings on the alternative basis that if the events he complained of had occurred, that had been more than eight years earlier, circumstances in Fiji had changed and the Applicant had delayed some six and a half years in applying for refugee status.
It is not arguable that the Tribunal’s findings were not reasonably open to it on the material and evidence before it for the reasons which it gave.
Insofar as the Applicant took issue with the fact that the Tribunal did not accept that his claims were true, I bear in mind that credibility findings and other findings of fact are not immune from challenge in the sense considered in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 and SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089. There were valid and cogent reasons provided by the Tribunal for rejecting the Applicant’s claims. It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an Applicant. There is nothing in the material before the Court to indicate any arguable case that the Tribunal reached a conclusion or made a finding without any logical or probative basis or that the decision was affected by legal unreasonableness or of other jurisdictional error. In particular, as discussed further below, there is nothing in the material before the Court to support any arguable claim of a denial of procedural fairness.
Ground 1 is not arguable.
Ground 2 is “I do meet and qualify for aspects of convention reasons yet the Tribunal failed to accept my subjective fear of persecution.” As indicated, the Tribunal is not required uncritically to accept an applicant’s claims. It gave cogent and valid reasons for its approach, both in relation to its credibility concerns and also on an alternative basis. Insofar as the Applicant claimed that the events he complained of had happened and that his fear of returning to Fiji was genuine, he seeks impermissible merits review. This court has no power to determine whether he is a refugee. This ground is not arguable.
Ground 3 is that the Tribunal “failed to rely on country information and made a decision contrary to the facts presented and contrary to my statement of 28 November 2013”.
I asked the Applicant if he could identify the country information referred to in this ground. He was not able to assist.
The Tribunal referred to country information in relation to the situation in Fiji after the 2006 coup, in particular in early 2007. This was not information that was adverse to the Applicant. The Tribunal had regard to this information, but it also had regard to the inconsistencies in the Applicant’s evidence as to exactly what occurred in his claimed encounter with the military, in particular the significant initial omission of any claim of overnight detention and mistreatment and other discrepancies in his evidence as well as implausibility in his claims.
Moreover, the Tribunal went on to find that even if an interaction with the military had occurred in 2007 as claimed, it was not satisfied that the military would have an ongoing interest in the Applicant or his family after eight years. It had regard to the changed circumstances in Fiji, as well as to the absence of any claim or evidence of harm to the Applicant’s family at the time or over the intervening years. The Tribunal was not satisfied the Applicant and his family were threatened by the military “as claimed” and was satisfied he did not face a real chance or risk of serious or significant harm on return to Fiji in that respect.
As indicated, the Applicant was not able to identify, and there is nothing in the Courtbook to indicate, that he provided any country information to the Tribunal that the Tribunal failed to consider.
Insofar as the Applicant’s concern is that the Tribunal made a decision contrary to his statement of 28 November 2013, as set out above, it had regard to inconsistencies between that written statement and the Applicant’s oral evidence to the delegate and to it. It was reasonably open to the Tribunal to have regard to such inconsistencies in failing to accept aspects of the Applicant’s claims. Beyond this ground 3 seeks impermissible merits review. It does not raise any arguable jurisdictional error.
In the last paragraph under the heading “Grounds of application”, the Applicant purported to reserve his right to submit an amended application after he received a copy of his file. He had an opportunity to do so. He did not take it.
I have however considered his written submissions. The submission reiterates the basis for the Applicant’s claims to fear harm in Fiji and addresses the events he claimed occurred in Fiji. In this respect he seeks impermissible merits review. Insofar as he relies on the grounds in his application, no arguable jurisdictional error is raised. It is also claimed the Applicant believes he has an arguable case, because the Tribunal misunderstood his claim and “ignored that the people who want to harm me are corrupted”. However there is no basis for an arguable claim that the Tribunal misunderstood the Applicant’s claim or ignored relevant circumstances of or claims about Mr P or Mr Qarase or others he claimed to fear, including the military. It referred to the subsequent imprisonment of Mr P and Mr Qarase and considered the position of the military as well as the current situation in Fiji.
The written submissions and the Applicant’s oral submissions (which took issue with the Tribunal’s conclusion) do not go beyond seeking impermissible merits review and do not establish that the Applicant has any arguable ground of review in relation to the Tribunal decision.
I have also considered whether there is any arguable lack of procedural fairness. I note that the Tribunal’s account of what occurred in the Tribunal hearing suggests that the Tribunal raised with the Applicant dispositive issues in relation to his claims, matters of concern and apparent inconsistencies. There is no evidence to suggest that the Tribunal failed to raise any dispositive issues with the Applicant or that it otherwise denied the Applicant procedural fairness. Insofar as s.424A of the Act is relevant, independent country information is outside the obligation in s.424A(1) of the Act (see s.424A(3)(a)).
The Minister conceded that he would not suffer any prejudice if time was extended. It is possible that if time is not extended the Applicant may return to his country of origin where he claims to fear harm. The Applicant claims that he is working and has a unit. He clearly wants to stay in Australia where he has been for some considerable time. It is also the case that there is no appeal, as such, from a decision in relation to an application for an extension of time.
However, having regard to all the circumstances, in particular the fact that the grounds of review as pleaded and as explained by the Applicant are hopeless, I am not satisfied that it is in the interests of the administration of justice to grant the Applicant an extension of time.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 7 December 2017
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