BAL15 v Minister for Immigration

[2016] FCCA 45

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 45

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – application for extension of time to bring proceedings – significant delay – insufficient reasons given for delay – whether the Tribunal considered the applicant’s relocation upon return to Lebanon – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 417, 476, 477(2)

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252
SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158

Applicant: BAL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1606 of 2015

Judgment of: Judge Smith

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms C. Hillary, DLA Piper Australia

ORDERS

1. The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1606 of 2015

BAL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Lebanon who applied for a protection visa on 19 October 2012. A delegate of the Minister refused to grant the applicant a visa and he applied to the Refugee Review Tribunal for review of that decision. The Tribunal made a decision on 29 May 2014 to affirm the delegate’s decision.

2. The applicant wishes to apply to this Court for judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth). However, such an application must be made within 35 days of the date of the decision. The applicant did not make any application until 15 June 2015, almost 12 months out of time.

Extension of time

1. Under s.477(2) of the Act, the Court has the power to extend the time within which an application may be made if:

   a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. There was no issue that the first of these conditions was satisfied. The Minister contended that the period ought not to be extended because the applicant had not given a sufficient excuse for his delay and that there were insufficient merits in the ground of review relied on by the applicant. I agree for the following reasons.

3. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) as follows:

   [46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   [47]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;

   (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.

   [48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

4. In his application the applicant put forward two reasons for which an extension of time ought to be granted:

   1.I was represented by Sabelbert Morcos Lawyers in Victoria. The lawyers lodged a letter to the Minister for Immigration instead of a review with the Court.

   2.I now ask the Honourable Court to accept my application for review as I have change of circumstances and I am unable to return to Lebanon.

The reason given for the delay

1. The reference in the application to a “letter to the Minister for Immigration” is a reference to an application made by the applicant to the Minister for the exercise of the Minister’s discretion under s.417 of the Act. That section enables the Minister to make a decision more favourable to the applicant than that made by the Tribunal.

2. It is not clear from the evidence when the application was made; however, on 11 May 2015 an officer of the Department of Immigration wrote to the applicant indicating that the Assistant Minister had personally considered his case and decided that it would not be in the public interest to intervene. For that reason, the Assistant Minister did not exercise the power under s.417 of the Act.

3. I accept that the applicant was assisted by a lawyer in respect of his application under s.417 and infer that he made that application on the basis of the advice given to him by the lawyer. However, the applicant has not explained what that advice was and, in particular, whether, as a result of the advice, he was aware that he had the option of seeking judicial review of the Tribunal’s decision by way of application to this Court.

4. It is somewhat controversial whether an application to the Minister under s.417 might provide a reasonable excuse for delay in bringing proceedings. In my view, there can be no blanket rule and whether it is a reasonable excuse for delay depends upon all the circumstances of the particular case. It may be, for instance, that an applicant is advised that his or her only recourse is to seek the exercise of the Minister’s discretion. In this case, as the applicant has not explained what advice he was given and has not said one way or the other whether he was aware of the availability of judicial review, I do not consider that his application to the Minister provided a reasonable excuse for such a significant delay.

5. This factor, then, weighs against an extension of the period within which to bring an application under s.476.

Merits of the grounds on the substantive application

1. There is one ground of review in the application:

   1.The Member of the Refugee Review Tribunal rejected my case on the basis that I can relocate in Lebanon. The argument for relocation is not reasonable because I cannot meet the high cost of relocation as well as unable to protect myself in Beirut.

2. In order to understand this ground, and why it has little, if any, prospects of success, it is necessary to understand the applicant’s claims and the way in which the Tribunal dealt with them on review.

3. The applicant comes from a town in the North of Lebanon where he lived with his family. In 2009 a Mr S, who has an extensive criminal history, married the applicant’s sister. Subsequently, the applicant became engaged to one of Mr S’s sisters. The applicant claimed that Mr S began subjecting his sister to domestic violence and, when the applicant intervened, Mr S assaulted him. A number of other incidents occurred and finally, when the applicant went to see Mr S to resolve the issues, Mr S and others from his family dragged the applicant out of his car and beat him until he lost consciousness. He claims that after this incident he was threatened by members of Mr S’s family.

4. The applicant also claimed that he was involved in an organisation called the “Future Freedom Movement” in his village. As part of that involvement, in April 2008, he was on his way to a protest when his car was shot at and one of the passengers was killed and two others sustained serious injuries. In light of this he says that he fears harm at the hands of Hezbollah and its associated groups as well as the Syrians who support them.

5. The Tribunal found that there were a number of inconsistencies and implausibilities in the applicant’s evidence concerning the claims about Mr S. Based upon that, the Tribunal found that the applicant had exaggerated and embellished many aspects of those claims and, while it accepted that the applicant was engaged to the sister of Mr S and that that Mr S was married to the applicant’s sister, it found that the applicant was never assaulted or otherwise harmed, and he was not seriously threatened in any way. It accepted that the applicant and Mr S may have argued because of the conflict between Mr S and the applicant’s sister but found that in spite of this, there was no reason for Mr S to harm the applicant. The Tribunal also found that the applicant did not have a well-founded fear of persecution in Lebanon at the hands of Mr S, his family friends or associates, and that there was no real risk of significant harm to him from Mr S, his family, friends or associates.

6. In respect of the applicant’s political claims, the Tribunal accepted that the applicant took part in fighting in 2007 but did not accept that he had a well-founded fear of persecution by reason of any political opinion or that there was a real risk that he would suffer significant harm in connection with his political activities.

7. For those reasons the Tribunal found that the applicant did not meet the criteria for the grant of a protection visa in sub-ss.36(2)(a) or (aa).

8. In addition to the above findings, the Tribunal went on to consider whether the applicant could reasonably relocate within Lebanon to an area other than his home town in which there was no appreciable risk of harm. At the hearing conducted by the Tribunal, the applicant was asked about relocation. The applicant responded that he would need a lot of money and that he could not get a good job because he had only had five years of schooling. He also said that he had no friends or relatives in a place such as Beirut. The Tribunal found that there would be no real risk of harm to the applicant in Beirut and that, in spite of what he said about requiring a lot of money and needing to get a good job, the economic situation in the North of Lebanon, where the applicant had lived, was in fact much more dire compared to that in Beirut. It also noted that as the applicant was currently single and had no children it would be easier for him to move. It concluded that in all the circumstances relocation was reasonable and for that additional reason, the applicant did not satisfy the criteria for the grant of a protection visa.

9. As noted above, the applicant’s only complaint about the Tribunal’s decision was in respect of its finding about relocation. In particular, his argument was that he could not meet the high cost of relocation. The high cost of relocation was one of the circumstances that the Tribunal was required to consider when determining whether or not relocation was reasonable in all of the circumstances. However, it did consider that question and concluded that the amount of money required by the applicant in order to relocate did not make it unreasonable because of the fact that financial circumstances in Beirut were better than where the applicant had previously been living. In light of that finding, the applicant’s complaints only go to the merits of the Tribunal’s decision. In any event, even if the applicant were correct that the Tribunal did not properly understand or apply the principles relating to relocation, it would not have made any difference to the decision of the Tribunal to affirm the delegate’s decision.

10. The Tribunal made clear that its consideration of relocation was in addition to, rather than as part of, its determination on the applicant’s own claims that he did not meet that criteria for the grant of the visa. Those claims were assessed by the Tribunal and essentially rejected on the basis of factual findings made by it. As I can discern no error in its dealing with the applicant’s substantive claims and the applicant has raised none himself, I find that any error in the relocation finding would not give rise to any real prospects of success in a substantive application for judicial review.

Other matters

1. The Minister has not suggested that he would suffer any prejudice as a result of an extension of the period within which to bring time. The submissions of both parties did not raise anything other than the reasons for delay and the merits of the ground in the application as relevant to the interests of the administration of justice in this case.

2. I note that there is no right of appeal from a decision refusing to grant an extension of time under s.477(2). It may be argued that the absence of a right of appeal has no impact where there are no reasonable prospects of success and it is the statutory consequence of a refusal to make an order under s.477(2) (SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158). In my view, however, it remains relevant to the interests if the administration of justice to consider this, and I have taken it into account.

3. In my view, even though the applicant will be denied a right of appeal, the delay in this matter is considerable and he has not established a sufficient excuse for that delay, nor established sufficient prospects of success in any substantive application. For those reasons, I am not satisfied that it is necessary in the interests of the administration of justice that the applicant be granted an extension of the period within which he may bring judicial review proceedings in respect of the Tribunal’s decision.

Conclusion

1. The application for an extension of the period within which the applicant may bring proceedings under s.476, for relief in respect of the decision of the Refugee Review Tribunal dated 29 May 2014, is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  4 February 2016