BJU15 v Minister for Immigration
[2018] FCCA 1296
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJU15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1296 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time to make a substantive application to the Court – consideration of factors – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 |
| First Applicant: | BJU15 |
| Second Applicant: | BJV15 |
| Third Applicant: | BJW15 |
| Fourth Applicant: | BJX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1965 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 December 2017 |
| Date of Last Submission: | 14 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Solicitors for the Respondents: | Ms E Cheesman of Clayton Utz Lawyers |
ORDERS
The application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 16 July 2015, amended on 16 October 2015, and further amended on 1 June 2017 is refused.
The first and second applicants pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1965 of 2015
| BJU15 |
First Applicant
| BJV15 |
Second Applicant
| BJW15 |
Third Applicant
| BJX15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 16 July 2015, amended on 16 October 2015, and further amended on 1 June 2017, seeking an extension of time within which to make a competent application to the Court for review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 19 May 2015 which affirmed a decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visas to the applicants.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application to the Court was lodged on 16 July 2015. This is outside the prescribed time limit by 23 days. The application is therefore not competent.
3.Section 477(2) of the Act provides for an extension of time within which to make a competent application to the Court, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time. As mentioned above, the applicants have made such an application in writing on 16 July 2015.
Before the Court
On 13 August 2015, orders were made, by consent, for the progress of the matter. This included that the applicants be given the opportunity to file any amended proposed substantive application by 17 September 2015. These orders were varied by orders made by consent by a Registrar of the Court on 22 September 2015. The applicants had until 17 October 2015 to file any amended proposed substantive application. The applicants filed an amended proposed substantive application on 16 October 2015, amending both the grounds for the extension of time and the proposed substantive grounds.
The parties next appeared before a Registrar of the Court on 3 March 2016. Orders were made, amongst other things, that applicant file written submissions 14 days before the date of the hearing, the Minister file written submissions 7 days before the date of the hearing, and that the matter be set down for hearing of the extension of time. The applicant filed written submissions on 1 June 2017. The Minister filed written submissions on 8 June 2017.
At the hearing of the application for an extension of time, the applicants were represented by counsel and the Minister was represented by a solicitor. The applicants sought leave at the hearing of the extension of time to further amend the grounds of their proposed substantive application. The Minister did not oppose such leave. Leave was granted.
The evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicants (“the Court Book” – “CB”, “AE1”). Also in evidence is the affidavit of the first applicant, unemployed, made on 9 June 2015.
The application for an extension of time
The applicants’ amended grounds supporting the application to extend time are in the following terms:
“Reasons for the delay
1. The Applicant has limited command of the English language.
2. The Applicant was not aware of the possible options available to her.
3. A person claiming to be a Registered Migration Agent fraudulently advised her to lodge a s.417 Ministerial Intervention request.
4. Approximately 7 or 8 weeks later the Applicant found out that she could have the Tribunal’s decision appealed to the Federal Circuit Court.
5. On 14 July 2015 the Applicant initiated a Section 476 application to this Court without legal representation.
The extent of the delay
6. The delay is for a period of approximately 22 days.
Prejudice to the First Respondent
7. In conjunction with all the Applicant’s circumstances there would be no prejudice to the Minister in granting the extension of time.
Impact on the Applicant if time is not extended
8. The consequences for the Applicant if the extension of time is refused include:
a. loss of a right to appeal the Tribunal decision;
b. no right of appeal from a judgment refusing to extend time under s.477(2); and
c. the Applicant and her family would be sent back to Lebanon where they would be persecuted for a Section 36(2)(a) and/or Section 36(2)(aa) reason(s).
Public interests – non-refoulement obligations
9. Australia is a signatory and rectified the following International Treaties:
a. International Covenant on Civil and Political Rights (ICCPR);
b. The Second Optional Protocol;
c. The UN Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT); and
d. The Convention on the Rights of the Child (CROC).”
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 315, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant the application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The length of the delay in the current case is 23 days after the date of the expiry of the 35 day period referred to in s.477(1) of the Act. Although not inordinately long, the period of delay is still of such length as to require, in the weighing of the relevant factors in the exercise of the Court’s discretion, some reasonable or satisfactory explanation.
In their submissions before the Court, the applicants (through their counsel), submitted that after having read the Minister’s written submissions and the authorities referred to therein, the applicants’ explanation for the delay was “not particularly good” and “in some respects is less than good”.
The Minister’s submissions to which the applicants referred were in the following terms ([18] – [20] of the Minister’s written submissions):
“[18] Whether an extension of time should be granted ordinarily involves consideration of whether there has been a reasonable and adequate explanation for the delay, any prejudice to the Minister, and whether the substantive case for judicial review is sufficiently arguable to justify the extension of time.[1]
[19] Considering these factors, the First Respondent firstly submits that the applicants have not provided a reasonable and adequate explanation for the delay. As to the first applicant’s claimed ignorance of the time limit within which to appeal the Tribunal decision (she says that she was ‘never informed of the option available to [her]’),[2] this is not, without more, generally regarded as a satisfactory explanation for delay.[3] By the further amended application, the first applicant claims that she was ‘fraudulently’ advised by her migration agent to lodge a Ministerial Intervention request, and that it was only about 7 or 8 weeks later that she found out that she could appeal the Tribunal’s decision to the FCC. However, notably, the first applicant has not claimed that her migration agent told her that she did not have any appeal avenues. She claims only that: ‘I was advised by [my migration agent] to seek a Ministerial intervention instead of lodging any appeal. I was told that this request, given my circumstances, had a good chance of success.[4] Nor has the first applicant provided details of how she came to learn of the option of appealing the Tribunal decision to the FCC. In these circumstances, it may well be inferred that the first applicant elected to seek Ministerial Intervention rather than challenge the Tribunal’s decision. The authorities make clear that this is not a satisfactory reason for delay.[5]
[20] As to the contention that there would be an adverse impact on the applicants if an extension of time is not granted (because they would be sent back to Lebanon where they would be persecuted for s 36(2)(a) and/or s 36(2)(aa) reasons) and that Australia has non-refoulement obligations under international treaties, these claimed factors do not carry any weight where the attack on the Tribunal decision lacks merit.[6]”
[Footnotes renumbered]
[1] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 per Foster J.
[2] Affidavit of the first applicant affirmed 15 October 2015 at [4].
[3] SZSDA v Minister for Immigration andCitizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J.
[4] Affidavit of the first applicant affirmed 15 October 2015 at [3].
[5] M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 at [24] (Full Federal Court); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21.
[6] WZANZ v Minister for Immigration & Anor (No 2) [2011] FMCA 208 at [113]; SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [194].
I agree with the Minister, for the reasons given below, that the applicants have not provided a satisfactory explanation for the delay.
I should note however, that on the issue of Ministerial intervention, the Minister has not referred to those authorities that indicate that in certain circumstances, a request for Ministerial intervention may provide a satisfactory explanation for the delay (see SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration & Anor [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [58] – [72] per Barnes FM (as she then was) and MZYII v Minister for Immigration & Anor [2011] FMCA 193 at [21] per Riley FM (as she then was)).
In any event, for current purposes, the applicants’ assertion that the former migration agent’s advice to pursue Ministerial intervention was “fraudulently” made, cannot, in the absence of any evidence to indicate fraud, be accepted.
The first applicant’s evidence was that after the Tribunal made its decision on the review, she followed her former migration agent’s advice to seek Ministerial intervention. [I note that the affidavit of the first applicant of 15 October 2015 (also referenced in the Minister’s written submissions) was not read into evidence.] There is nothing in the first applicant’s evidence to say that her migration agent did not advise her of the option to seek judicial review. Nor, importantly, is there anything in her evidence to indicate how, given the claimed events, she came to know of the option of seeking judicial review.
Before the Court, the applicants’ counsel submitted that even where the explanation for the delay “is at most not particularly good”, the strength of the proposed ground (in the further amended proposed substantive application) is “decisive”.
I accept that in the exercise of the Court’s discretion, an important element is the merit, or otherwise, of the proposed ground or grounds of the proposed substantive application. The interests of justice, generally, are not served if a strong and meritorious case, without any significant contradicting factor, is prevented from being heard.
However, the exercise of the Court’s discretion is not subject to some rigid or formulaic approach as to what is relevant in any particular case. To submit that one element (albeit an important element), is decisive, irrespective of other relevant factors, is in my view, an argument that seeks to fetter the Court’s discretion.
As the authorities set out above make clear, the “list” of relevant elements in the consideration of what is in the interests of the administration of justice is non-exhaustive (see above at [9]). Depending on the circumstances of each individual case, some elements, or factors, should be given greater or lesser weight than others.
To accept the applicants’ submission would mean that a delay of for example, a year or even longer (as is sometimes seen in this Court), should nonetheless be of no account in the face of what is, albeit a meritorious argument. On the applicants’ view, the “list” of relevant factors to be considered by the Court is simply a “list” of one relevant factor.
There may be circumstances where an inordinate delay is of itself a sufficient reason to refuse the extension of time (AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [56] – [62]).
In short, the exercise of the Court’s discretion is a matter of a reasonable weighing of the various factors relevant to, and arising from, the circumstances presented in each case. It is not the application, in every case, of a prescriptive consideration only of the merits of the proposed substantive grounds.
In any event, putting aside the issue of the delay, the proposed ground in the current case, and in the circumstances presented, lacks sufficient merit, of itself, to warrant the extension of time.
Background
The background to the applicants’ claims to the protection visas are as follows.
The first and second applicants before the Court are wife and husband respectively. The third and fourth applicants are their infant children. Their application for the visas was received by the Minister’s department on 17 February 2014. The first applicant submitted her own claims for protection, and claims on behalf of the third and fourth applicants. The second applicant applied as a member of the first applicant’s family unit (CB 1 to CB 53 and CB 90 to CB 125).
The first applicant claimed to fear harm on the basis that there were “a lot of complications between [her] husbands (sic) family (parents) and us. Also [her] husband doesn’t speak to [her] family” (CB 38.9). The first applicant claimed that her husband borrowed money from his parents to support her study in Australia. They were unable to repay this money. Further, that his parents “never wanted her” for their son, and have made threats to her and her family, including that they would kill her, or make her husband leave her, and under the laws of Lebanon, her children would be taken away from her (CB 39).
The first applicant also claimed to fear harm on the basis that she would be unable to access appropriate medical care in Lebanon regarding an existing medical condition (CB 39.6). She also claimed to fear harm from the generalised violence in Lebanon (CB 39 to CB 40). The first applicant advanced claims on behalf of the third and fourth applicants that stemmed from the impact on them, if her claims to fear harm were realised on return to Lebanon.
The delegate refused the grant of the visas on 16 April 2014 (CB 126 to CB 150). The delegate was not satisfied that the first, third or fourth applicants claimed to fear harm on the basis of any of the Refugees Convention grounds (CB 141.5). The delegate also found that the applicants did not meet the complementary protection criterion for the grant of the visas (CB 149.9).
The applicants applied for review to the Tribunal on 13 May 2014 (CB 151 to CB 156). The applicants were invited to, and attended, a hearing before the Tribunal on 4 February 2015 (CB 166 to CB 171 and [3] at CB 209). The applicants’ representative sent further submissions and supporting documentation to the Tribunal by email on 21 February 2015 (CB 172 to CB 205). The Tribunal affirmed the delegate’s decision on 19 May 2015 (CB 208 to CB 220).
In its decision record, the Tribunal first set out the material before it for consideration ([14] at CB 210 to [31] at CB 214). The evidence included documentary evidence and written submissions, as well as oral evidence provided by the first and second applicants at the Tribunal hearing.
Relevant to the proposed ground of review, at [28] (at CB 213) of its decision record, the Tribunal noted:
“Ninthly, [the second applicant] also gave oral evidence. I asked him to comment on his wife’s suggestion that his family would seek retribution on his wife because of their marriage. He said that he his (sic) father and brother had already requested him to leave his wife and to take the children with him. He had refused to do so. [The second applicant] explained that he married [the first applicant] against the will of his family. He said that he loved his wife, but if forced to return to Lebanon he would have to abide by his family’s culture, divorce his wife and to take (sic) his children. I enquired how they could force him to do such a thing. He said he would be pressured and forced, otherwise they would kick him out and that problems would occur. He said he was sure that eventually he would divorce his wife because of the pressure.”
The Tribunal summarised the first applicant’s claims to fear harm as follows ([39] at CB 215):
“[The first applicant] fears on returning to Lebanon that:
- her children will be removed from her care by her husband’s family;
- her husband will be forced by his family to leave her and divorce her;
- she will be unable to access medicine and medical treatment for herself and possibly for her children;
- she and her family will face violence and harm in Tripoli in the area in which she used to live.”
Although the Tribunal found that some of the first applicant’s claims “were exaggerated … repetitive, and sometimes without substance”, it found her responses “were consistently the same: she want[ed] to have a better life for her children by staying in Australia” ([35] at CB 214). The Tribunal found that the first applicant’s first, second and fourth claims to fear harm (see [34] above) had the relevant nexus to a Refugees Convention ground, however, the third claim to fear harm did not ([44] – [46] at CB 216).
However, the Tribunal went on to consider that none of the first applicant’s claims to fear harm were “well-founded” ([49] at CB 216). At [49] (at CB 216) of its decision record, the Tribunal stated:
“While I consider that [the first applicant] genuinely holds the fears I have referred to as her first, second and fourth fears, I do not accept that that any of these fears are ‘well-founded’ or are based on a ‘real chance’ of being persecuted. In relation to her first and second fears, I do not accept that her husband will either divorce her, or leave her and take the children away from her. He told me that he loves [the first applicant]. He has supported her through all her health difficulties and, prior to that, while she was studying in Australia. I do not accept that he will succumb to family pressure to divorce her, less still remove his children from her care.”
The Tribunal also found that under the complementary protection criterion, there was not a “real risk” that the first applicant’s fears would occur ([55] at CB 217 to [61] at CB 218). In regards to the claims to fear harm advanced on behalf of the first applicant’s children, the Tribunal summarised their claims to fear harm as follows ([66] at CB 219):
“The claims made by [the first applicant] which I understand to be advanced for each of the children are as follows:
- the children will be removed from [the first applicant]’s (sic) by her husband’s family, and thereafter looked after by that family;
- the children will suffer harm as [the second applicant] will divorce[the first applicant];
- the children will be unable to access medicine and medical treatment; and
- the children will face violence and harm in Tripoli in the area in which she used to live.”
For the same reasons given with regard to the first applicant’s claims, the Tribunal was not satisfied that the children met the Refugees Convention criterion or the complementary protection criterion for the grant of the visas ([67] at CB 219 to [73] at CB 220).
Consideration
The sole ground of the further amended proposed substantive application to the Court is in the following terms:
“The Tribunal did not make its decision of 19 May 2015 according to law, in that:
Ground 1
The Tribunal made a jurisdictional error by failing to apply the test of whether the mother had a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground.
Particulars
1. The Tribunal erred by failing to apply the ‘real chance’ test in consideration of whether the mother had a
well-founded fear of serious harm on the basis of the children being taken away from her care.”
The applicants’ ground asserts that the Tribunal failed to properly apply the “real chance” test when it came to determine whether the first applicant had a well-founded fear of harm, if she were to return to Lebanon.
Specifically, the ground asserts that the Tribunal erred in failing to apply the “real chance” test in relation to the consideration of whether the first applicant’s fear that on return, the children would be taken away from her care, was well-founded.
The applicants’ argument before the Court, in explanation of the proposed ground, was in essence, that while the Tribunal referred to past and present events, it did not consider the matter of a well-founded fear of the children being taken away from the first applicant with a focus on the future.
It is by now trite to say that a fear of persecution is well-founded if there is a “real chance” of being persecuted (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) per Mason CJ at [12] (and see further Dawson and McHugh JJ) and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 570 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). The “test” involves an assessment of a real chance of persecution, with a focus on the reasonably foreseeable future if the applicant were to return to his or her home country (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) and Guo).
The role of past and current events can provide a basis on which to assess whether an applicant’s fear is well-founded in the sense as set out above (Guo).
For current purposes, the following from Guo (at 574 to 575) is of assistance:
“…The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
Important to the current consideration, and the merit of the applicants’ proposed ground, is that it is not sufficient (to satisfy what is required of the “real-chance” test), for the Tribunal to simply make findings about what has occurred in the past or the present. The test requires the Tribunal to look to the future (Guo, Wu Shan Liang and Chan Yee Kin).
In the current case, the applicant’s submissions directed attention to [49] (at CB 216) of the Tribunal’s decision (see [37] above).
The applicants’ argument was that the Tribunal’s assessment as to possible future conduct (in the context of the first applicant’s claim to fear harm in relation to her children being taken away from her), was that the children’s father (the second applicant), gave evidence that he loved their mother (the first applicant), and that he had also supported her throughout her studies in Australia, and during her ill-health.
The gravamen of the applicants’ complaint was that the Tribunal had regard to this evidence from the second applicant, which was evidence of past and current circumstances, and then simply proceeded to make findings about the future.
It did so without considering (or undertaking “the necessary speculation”) as to how that evidence informs the future (see [20] of the applicants’ written submissions). The Tribunal’s reasoning was described as a “mechanical” shift from findings about past and current events, without consideration of what would likely occur in the future. That is, there was a “gap” in the Tribunal’s reasoning, which reveals jurisdictional error on its part.
In its decision record, the Tribunal reported that before the delegate, the first applicant claimed that her husband’s family would cause harm to her “including leading to divorce and loss of her children” (see [19] dot point one at CB 211).
As set out above, the Tribunal reported the following evidence given by the second applicant at the Tribunal hearing ([28] at CB 213) [I note that while a transcript of the Tribunal hearing was filed as an annexure to an affidavit filed by the applicants, the applicants did not ask the Court to read that affidavit.]:
“Ninthly, [the second applicant] also gave oral evidence. I asked him to comment on his wife’s suggestion that his family would seek retribution on his wife because of their marriage. He said that he his (sic) father and brother had already requested him to leave his wife and to take the children with him. He had refused to do so. [The second applicant] explained that he married [the first applicant] against the will of his family. He said that he loved his wife, but if forced to return to Lebanon he would have to abide by his family’s culture, divorce his wife and to take (sic) his children. I enquired how they could force him to do such a thing. He said he would be pressured and forced, otherwise they would kick him out and that problems would occur. He said he was sure that eventually he would divorce his wife because of the pressure.”
[Emphasis added.]
It is important to note that in the Tribunal’s report of the second applicant’s evidence, including its reported questioning of him, the focus was on past events, but also with a view to the future. For example, as the Tribunal stated, “if forced to return to Lebanon”, and, “how they could force him” (in context, the second applicant’s family if the applicants were to return to Lebanon in the future) (see above at [52]).
Further, amongst other matters, in its assessment of the first applicant’s claims, the Tribunal set out the following (under the heading of “Consideration and Findings – [First Applicant]”) ([35] at CB 214 and [39] – [40] at CB 215):
“[35] … I accept that [the first applicant] fears that her children will be taken away from her if she returns to Lebanon.
…
[39] [The first applicant] fears on returning to Lebanon that:
- her children will be removed from her care by her husband’ family;
- her husband will be forced by his family to leave her and divorce her;
- she will be unable to access medicine and medical treatment for herself and possibly for her children;
- she and her family will face violence and harm in Tripoli in the area in which she used to live.
[40] I shall refer to these fears respectively as the [first applicant’s] first, second, third and fourth fears.”
[Emphasis added.]
For current purposes, the first two dot points at [39] (at CB 215) of the Tribunal’s decision record, are relevant. In relation to the first applicant’s “first” and “second” fears, the Tribunal found that such fears satisfied the definitions of “significant physical harassment of the person” and “significant physical ill-treatment of the person” (as they appeared at s.91R(2)(b) and (c) of the Act) (see [43] at CB 215 to CB 216 to [44] at CB 216).
However, the Tribunal also properly recognised that the relevant test was whether the fear was “well-founded” ([48] at CB 216).
It is in this context that the Tribunal expressed the findings set out at [49] (at CB 216) of its decision record (see [37] above).
There is no legal error in the Tribunal having regard to past events or the “current” situation on the evidence before it. The legal error would arise if the Tribunal then did not engage in the “necessary” consideration by looking to the future.
Noting the use of the word “will” on two occasions as it appears in [49] (at CB 216) of the Tribunal’s decision record, when reading that paragraph plainly (and in light of [39] (at CB 215) – see [54] above), there is a basis to find that the Tribunal understood that the
“real-chance” test required a future focus (being what would, or “will”, likely happen in the future). This is particularly so when regard is had to the totality of the Tribunal’s relevant reasoning as set out above.
In my view, it is clear that the Tribunal’s findings as to the past and current conduct of the first applicant’s husband (the second applicant), was the rational basis for finding what “will” (likely) happen in the future.
There is nothing from the applicants to argue that the Tribunal failed to consider any integer of the claim made by the first applicant to fear harm in relation to the care of her children, if the applicants were to return to Lebanon. That is, the Tribunal dealt with the claim as it was put to it, and made findings probative of the evidence before it.
Conclusion
The applicants’ proposed ground lacks merit such that it argues for the extension of time. This, when coupled with the absence of a reasonable explanation for the (albeit, not overly lengthy) delay, leads to the conclusion that it is not in the interests of the administration of justice to extend time. I will make the appropriate order.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 25 May 2018
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