BMD15 v Minister for Immigration

[2017] FCCA 2995

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMD15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2995

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Administrative Appeals Tribunal – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(3), 425(1) , 476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: BMD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2038 of 2015

Judgment of: Judge Manousaridis

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Sydney

Delivered on: 12 December 2017

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Ms E Warner-Knight of Australian Government Solicitor

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act in relation to the decision made by the Refugee Review Tribunal on 16 June 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2038 of 2015

BMD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Refugee Review Tribunal (Tribunal).[1] By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

   [1] As originally constituted, the proceeding named the Refugee Review Tribunal as the second respondent. On 13 August 2015 the Administrative Appeals Tribunal was substituted as the second respondent.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[2]

   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.

   The factors to which I have referred at paragraph 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 (section 477, subsection (2), paragraph (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.

   [2] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]-[48]

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[3] Further:[4]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [3] [2015] FCA 1391 at [63] (cases cited omitted)

   [4] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[5] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[6]

   [5] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [6] [2015] FCA 1391 at [62]

Approach

1. The Minister does not oppose the Court making an order extending time under s.477(2) of the Act. The Minister submits, however, that the application raises no arguable case for the relief it seeks and should be dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. Given also that the Minister does not object to the making of an order under s.477(2) of the Act, I will assume for the purposes of this application that the applicant has given adequate reasons for his delay in making his application to this Court for judicial review of the Tribunal’s decision. The question I will consider in these reasons for judgment, therefore, is whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

Applicant’s claims

1. The Tribunal considered the applicant, a citizen of Israel, to have made a number claims. The first claim for protection the Tribunal considered the applicant to have made was based on the applicant’s having been discriminated against in the Israeli military reserve. Although the Tribunal noted the applicant did not pursue this claim, the Tribunal accepted the applicant experienced some discrimination more than 30 years ago while serving in the military but it was not satisfied the discrimination that he suffered at that time was “so serious” so as to amount to persecution or that he suffered similar discrimination after leaving the army.[7]

   [7] CB146, [20]

2. The second claim for protection the Tribunal considered the applicant to have made was one based on religion. In his application the applicant said his religion was Islam. Before the Tribunal he said he was a “Muslim-Jew”, and, later, that he considered himself to be “a Jew, a Muslim, a Buddhist and a human being”. The Tribunal accepted that the applicant’s beliefs and self-identification as a “Muslim-Jew” may be regarded as “unconventional and unorthodox”.[8] Although country information before the Tribunal pointed to reports of societal abuses and discrimination based on religious affiliation, belief, or practice in Israel, the Tribunal was satisfied the evidence before it did not suggest that Israelis who hold unconventional views of the nature held by the applicant are subjected to serious harm by the Israeli government, religious Jewish citizens of Israel, or right-wing activists.[9] The Tribunal, therefore, was not satisfied there is a real chance the applicant will face serious harm because of his actual or imputed political opinion if he were to return to Israel.[10]

   [8] CB146-147, [21]-[22]

   [9] CB147, [22]

   [10] CB147, [22]

3. The third claim for protection the Tribunal considered the applicant to have made was one based on his political views. The Tribunal accepted the applicant holds views critical of Israeli government policies, ideology and attitude towards military occupation. The Tribunal noted, however, that country information indicated the laws of Israel provide for freedom of speech, and that individuals may criticize the government publicly and privately without reprisal. It also noted there was no country information to suggest that Israeli citizens, who unsuccessfully apply for asylum in other countries, including Australia, face any consequences on their return to Israel. The Tribunal was prepared to accept that the applicant’s views may not be popular in Israel, and he may experience a degree of intolerance. The Tribunal, however, was not satisfied the applicant will face serious harm because of his actual or imputed opinion if he were to return to Australia; nor was it satisfied the applicant faces a real chance of being persecuted in Israel for a Convention reason because he lodged a Protection visa application in Australia.[11]

   [11] CB148, [26]

4. The fourth claim for protection the Tribunal considered the applicant to have made was one based on the applicant’s mental condition. The Tribunal accepted the applicant is suffering from a mental condition, and that he has previously been diagnosed with post-traumatic stress disorder and major depression. The Tribunal, however, was:[12]

   not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Israel, there is a real risk that he will be subjected to any form of harm, including disability related discrimination, that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act.

   [12] CB1448, [29]

5. At the beginning of its reasons, the Tribunal considered whether the applicant had a right of entry to Lithuania. It did so because the delegate found that, because the applicant’s mother was Lithuanian, the applicant, under the law of Lithuania, had a right to enter and reside in Lithuania within the meaning of s.36(3) of the Act. The Tribunal disagreed, finding that, although the applicant, as a descendant of persons who held Lithuanian citizenship before 15 June 1940, and who fled or were exiled from that country before 11 March 1990, had an indefinite right to reinstate that citizenship, the applicant had not reinstated himself as a citizen of Lithuania, and, therefore, is not a national of Lithuania. The Tribunal also found the applicant has no existing right to enter and reside in Lithuania for the purpose of s.36(3) of the Act.

Grounds of application

1. The applicant, who is not legally represented, relies on grounds set out in the application to this Court. He also relies on matters set out in his affidavit of 22 November 2016, and in submissions he made at the hearing before me.

2. In the application, under the heading “Ground of application”, the applicant states the following (errors in original):

   1.The Applicant has resided in Australia for the last 16 years.

   2.The Applicant can’t move backwards as he is not the same person any more.

   3.The Applicant has business, social and commitments interests in Australia.

   4.The Applicant is 54 years of age with an estimate destiny of another 19 years to live and he wishes to be buried in Kelem, Lithuania.

   5.The Applicant was forced into this predicament and acted rightly at all material time also by being in this Court.

   6.The Applicant has invested $1.3 million cash and his labour skills while in Australia, yet any tangible result.

   7.The Tribunal’s hearing was constructed inappropriately because the focus of the introduction set aside the decision of the Minister’s delegate regarding the Applicant’s Lithuanian ground and consequently tried to place the Applicant against his homeland.

3. The matters stated in the first six paragraphs of the applicant’s grounds of application cannot reasonably be considered to raise any claim of jurisdictional error by the Tribunal. Whether or not any of the matters stated in the first six paragraphs of the applicant’s grounds of application are true is not relevant to the tasks the Tribunal undertook when reviewing the applicant’s application for review and, therefore, is not relevant to whether the Tribunal made any jurisdictional error. The seventh ground does, however, relate to what occurred at the hearing before the Tribunal and the applicant has set out in his affidavit of 22 November 2016 that which the applicant says occurred at the hearing before the Tribunal.

4. In his affidavit of 22 November 2016, under the heading “Grounds of Application”, the applicant deposes as follows:

   a)The applicant first emigrated to Australia in 1999 through what he states is a settlement plan known as the “Independent Executive Scheme”;[13] that the respondents have “consistently failed to provide” the applicant with the entire file regarding the applicant’s “Independent Executive Scheme” status, thus compromising his “defence”; [14] and that out of necessity the applicant was “forced into an act of self-defence and physical survival, by shifting from the ““Independent Executive Scheme” to the “Asylum Seeker Scheme””.[15]

   b)The Tribunal asked the applicant “What do you have against Israel”,[16] and that “[t]his statement turned the entire hearing on its head because I do not have anything against my homeland apart from various serious concerns that are obviously out of my control”.[17] The applicant submits this question “diverted the main line of my argument that was meant to be based on the notion of “natural law””, and the applicant was “not ready in the hearing for such a tactic and method of interrogation”, and he considered “my entire response in the matter as prejudicial to any future remedy in law”.[18]

   c)The Tribunal dismissed the delegate’s findings that the applicant had an existing right to reside in Lithuania and, therefore, the applicant is not entitled to a Protection visa. That occurred after the applicant prepared his entire argument on the delegate’s findings on the applicant’s right to enter and reside in Lithuania. The applicant, therefore, was prevented from “delivering any proper and relevant argument in the hearing”. [19]

   d)Once a “fundamental finding” of the delegate is dismissed, the matter should be ordered back to the delegate for reassessment, or “at least” the applicant should be provided with all “necessary and relevant information with adequate time to allow me to properly respond to such drastic changes” of the delegate’s findings.[20]

   [13] Applicant’s affidavit, [10]

   [14] Applicant’s affidavit, [11]

   [15] Applicant’s affidavit, [13]

   [16] Applicant’s affidavit, [14]

   [17] Applicant’s affidavit, [15]

   [18] Applicant’s affidavit, [16]

   [19] Applicant’s affidavit, [18]

   [20] Applicant’s affidavit, [19]

5. Before me the applicant made submissions to the following effect (applicant’s oral submissions):

   a)At the beginning of the hearing the Tribunal indicated it had rejected the delegate’s conclusion that the applicant had the right enter and reside in Lithuania.

   b)The applicant was shocked when, at the beginning of the hearing, the Tribunal asked the applicant what he had against Israel. The applicant said he was “numbed” by the question, that he felt as if he were a defendant, and that he had to talk against Israel. The applicant did not have anything against Israel because it was his homeland. The applicant distinguished between saying things against his homeland and having a negative attitude to his homeland.

   c)The Tribunal did not take into account, or sufficiently take into account, the applicant’s mental condition.

6. The first of the applicant’s oral submissions may properly be characterised as a claim that, contrary to s.425(1) of the Act, the Tribunal failed to give the applicant reasonable notice of the issues it considered arose in relation to the decision under review. The extent of the Tribunal’s obligation to give the applicant notice of the issues arising under the delegate’s decision is governed by the principles contained in the following passage from the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:[21]

   The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   [21] [2006] HCA 63; (2006) 228 CLR 152 at [35]

7. Two questions arise. The first is whether the applicant’s being entitled to enter and reside in Lithuania was an issue before the Tribunal; and the second is whether the issues the Tribunal considered in its reasons for decision were issues of which the applicant had been given notice, or of which the applicant ought reasonably to have been aware were issues the Tribunal would consider relating to the decision under review. In my opinion, there is no doubt that both questions are to be answered in the affirmative. Whether the applicant had a right to enter Lithuania was unquestionably an issue before the Tribunal because the delegate considered it to be dispositive of the applicant’s application for a Protection visa. And all other issues the Tribunal considered in its reasons were without doubt question issues in relation to the decision under review because the delegate did not consider those issues and, thus, were not the subject of any finding by the delegate.

8. The second of the applicant’s oral submissions and the second of grounds stated in the applicant’s affidavit of 22 November 2016 I identified above give rise to the question whether the shock the applicant claimed to have experienced when he was asked what he had against Israel, and when the Tribunal questioned the applicant about his claims, effected any unfairness to the applicant. More particularly, the question is whether the Tribunal’s asking the applicant what he had against Israel, and its considering the applicant’s claims for protection on the basis that he was a national of Israel, subverted the purpose of s.425(1) of the Act, namely, to provide the applicant with a real and meaningful opportunity to give evidence and present arguments.

9. In my opinion, there is no arguable case of unfairness to the applicant. First, the applicant did not inform the Tribunal that he was shocked or that he was otherwise not in a position to continue with the hearing. Second, although the transcript of the hearing before the Tribunal is not in evidence, the Tribunal’s reasons reveal that the applicant was able to, and did engage, with the Tribunal’s questions. Third, the Tribunal accepted all of the asserted facts on which the applicant relied. The Tribunal affirmed the delegate’s decision because, on the basis of the matters asserted by the applicant, it was not satisfied there was a real chance the applicant would face persecution in Israel or that he would otherwise suffer significant harm or that there was a real risk the applicant would suffer significant harm if he were to return to Israel. Fourth, the Tribunal records that, at the hearing (which occurred on 5 June 2015) the applicant requested further time to provide written submissions, and the applicant agreed he would provide such information by 15 June 2015. The applicant, however, did not provide any further material to the Tribunal.[22]

   [22] CB145, [10]

1. As to the third of the applicant’s oral submissions, it is beyond argument the Tribunal considered the applicant’s mental condition from the point of view of whether it gave rise to a claim for protection. The Tribunal was satisfied it did not. The Tribunal did not, however, expressly consider whether the applicant’s mental condition prevented him from meaningfully participating in the hearing. In my opinion, however, it is not reasonably arguable, on the material before me, that the applicant’s mental condition prevented him from participating in the hearing. As I note above, the transcript of the hearing before the Tribunal is not in evidence before me; but the Tribunal’s reasons for decision indicate without a doubt that the applicant was able to understand and answer the questions the Tribunal asked of him.

2. In my opinion, none of the grounds on which the applicant relies raise an arguable case that the Tribunal made a jurisdictional error.

Conclusion and disposition

1. Given the grounds on which the applicant relies raise no arguable case of jurisdictional error, I am not satisfied it is necessary in the interests of justice that I should make an order under s.477(2) of the Act that the time prescribed by s.477(1) of the Act be extended. I propose, therefore to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 December 2017