BSS15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 3280

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSS15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 3280

Catchwords:
MIGRATION – Judicial review of decision by Refugee Review Tribunal affirming decision not to grant Protection visa – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

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

Cases cited:

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

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

Applicant: BSS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2360 of 2015

Judgment of: Judge Manousaridis

Hearing date: 17 November 2016 & 5 December 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Mr D Eberl 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 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2360 of 2015

BSS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27 August 2015 the applicant, a citizen of Pakistan and a Sunni Muslim, filed an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The Tribunal made its decision on 17 October 2014, which means the application for judicial review was filed outside the 35-day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). The applicant, therefore, seeks an order under s.477(2) of the Act extending the 35-day period prescribed by s.477(1) of the Act.

3. Before I consider the principles that should guide me in determining whether to make an order under s.477(2) of the Act, it might be useful to set out the procedural history of this matter.

Procedural history

1. The applicant filed his application on 27 August 2015, and the matter was listed for a First Court Date on 8 October 2015. On that day, a Registrar of the Court made directions and the application for an extension of time was set down for hearing before me at 2.15pm on 17 November 2016. The applicant, who is not legally represented, appeared at that time and date. At the commencement of the hearing, I explained to the applicant the nature of the hearing, namely, that it was a hearing on the applicant’s application for an order under s.477(2) of the Act. I also explained the matters I had to consider when determining whether to make an order under s.477(2) of the Act, and the procedure that would be followed.

2. I then proceeded to identify the evidence on which the applicant intended to rely. This was limited to the applicant’s affidavit. The applicant claimed he did not receive the Court Book which the Minister had provided and, therefore, did not consent to the Court Book being admitted into evidence. Given Mr Eberl, who appeared for the Minister, intended to cross-examine the applicant in any event, I permitted Mr Eberl to question the applicant about his knowledge of documents in the Court Book on which the Minister intended to rely.

3. The applicant was then cross-examined. I marked as an exhibit those pages of the Court Book the applicant accepted he had seen before, and whose authenticity the applicant accepted. The applicant was also cross-examined on matters relevant to his delay in making his application for judicial review. In the course of submissions that occurred after he was cross-examined, it became clear the applicant was seeking an adjournment. The applicant claimed he had not been served with the Minister’s written submissions which had been interpreted to the applicant before the hearing. I adjourned the hearing of the matter to 5 December 2016.

4. As I have set out in separate reasons, the applicant applied for another adjournment, but I refused that application.

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) of the Act 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:[1]

   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;

   [1] [2013] FCA 1284 at [47]-[48]

   (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.

3. The Federal Court has recently 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. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   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).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [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””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

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

   [5] [2015] FCA 1391 at [62]

Explanation for delay

1. In his application, the applicant provides the following explanation for his delay in applying for judicial review:

   1.I was not aware of time bar and misguided by some unprofessional lawyers they have guided me that if the act on my behalf they will charge about 15000 dollars which is very high fee and I cannot afford that

   2.No one advise me that I can submit this request by myself

   3.I was totally unaware of the jurisdiction of court, I did not know where to seek the solutions for my grief

2. The applicant also relied on an affidavit in which he repeated the three paragraphs contained in the application.

3. As I have already noted, the applicant was cross-examined at the hearing on 17 November 2016. The applicant was directed to a document titled “INFORMATION ABOUT TRIBUNAL DECISIONS [R25]” (Information Sheet).[6] That is the document that appears to be referred to in the letter dated 20 October 2014 from the Tribunal to the applicant.[7] That letter refers to “a fact sheet”, and I infer that the “fact sheet” is a reference to the Information Sheet. It was put to the applicant that he received the Information Sheet, but the applicant said he does not recall receiving it.

   [6] CB350

   [7] CB335

4. There is an insufficient basis in the evidence for me to be satisfied the applicant received the Information Sheet. In those circumstances, I am prepared to accept the applicant was unaware he had a right to apply to this Court for judicial review until shortly before the day on which he did file his application in this Court. I am not satisfied, however, that the applicant’s ignorance was due to the act or omission of any “unprofessional lawyer”. The applicant’s allegation is unsupported by particulars and evidence.

5. That means that the only explanation available on the evidence for the applicant’s delay is his ignorance of his rights. That is not a reasonable explanation for the applicant’s delay. It is not unreasonable to expect that persons in the position of the applicant who have been notified of an adverse migration decision would make some enquiries about options they may have available to them to challenge the decision, or, at the very least, to explore avenues for reversing or overcoming the adverse migration decision.

6. The absence of an adequate explanation for the delay would not carry much weight, or certainly, not decisive weight, if I were to be satisfied the applicant’s substantive application for judicial review had some merit. It is to that question I now turn.

Merits

Claims for protection

1. The applicant claimed that in late 2011 a complaint was made to a religious organisation for which the applicant was performing voluntary work that he was in a relationship with another man, Mr C. The president and committee summoned the applicant to appear before them. Although the applicant was in a relationship with Mr C, he denied that fact to the president and committee because he feared for his welfare. The organisation took no further action because of the applicant’s good reputation. After the complaint, the applicant and Mr C reduced the frequency of their meetings because they were both afraid of the consequences if their relationship were to be discovered.[8]

   [8] CB338, [9]

2. In October 2012 the applicant came to Australia to study. In June 2013 the president of the religious organisation telephoned the applicant and told him another complaint had been made that the applicant was in a relationship with another male in Pakistan, that Mr C had been questioned by the president about the complaint, and Mr C admitted the relationship after he was told the organisation had photographs and videos. After initially denying the allegation, the applicant told the president the allegation was true. The applicant also told the president it was everyone’s right to behave in that way. From that time the president threatened to harm the applicant, and the organisation issued a fatwa against the applicant calling for his death. The applicant then applied for a Protection visa.[9]

   [9] CB338, [10]

3. In a separate statement, the applicant sought to explain his sexual preferences, and what, in his view, accounted for those preferences. In broad terms, the applicant stated he was attracted to both males and females, and that, as he grew up, the applicant “got more confused and . . . still had attraction both the ways”.[10]

   [10] CB38

4. The applicant claimed he fears returning to Pakistan because of his membership of a particular social group, being homosexual or bisexual men in Pakistan or men who are perceived as homosexual or bisexual in Pakistan. The applicant claimed he fears he will be arrested on his arrival in Pakistan by airport authorities or by the police or religious authorities; that he will be prosecuted and gaoled for 2 years to life sentence; and that, even if he escapes “any punishment by the Court of Law”, he fears for his life under Islamic Law which states he will either be stoned to death or receive 100 lashes, fearing “in any case I will be killed”. The applicant also claimed he fears his “mental status will not be stable” if he returns to Pakistan and that his family will be physically harmed because of the applicant’s presence in the country.[11]

   [11] CB19

Tribunal’s decision

1. The Tribunal found the applicant was not a witness of truth and that the account of events on which the applicant’s claims for protection are based is false.[12] The Tribunal disbelieved the applicant’s claims that he is confused about his sexuality; that the applicant is attracted to men; that the applicant was in a relationship with a man in Pakistan; that the applicant worked for a religious organisation; and that the applicant was the subject of complaint and enquiry in late 2011 and again in mid-2013 about the applicant’s being in a relationship with another man. The Tribunal relied on a number of matters.

   a)First, the Tribunal had difficulty accepting the applicant admitted his relationship with Mr C during a telephone call with the president of the organisation. The applicant denied the allegation in 2011 when the president first put it to him because, the applicant claimed, no one would accept his relationship with Mr C, there would be disrespect, the applicant would lose work and it would be bad for him; the applicant said he had never admitted to his family, and he had consistently told them, that all allegations against him from June 2013 were false; and the applicant had indicated in his evidence before the Tribunal that homosexual relationships were not accepted in Pakistan and if found out there was risk for the people involved.[13] The Tribunal did not accept the applicant’s evidence that he admitted the relationship because the president told him Mr C had confessed and that they had videos and photographs of them.[14]

   b)Second, the applicant’s Student visa was due to expire in August 2013. The applicant sought advice from migration agents about the possibility of extending that visa. The applicant, however, did not inform any of the agents he had consulted about the problem that had arisen about his safety in June 2013.[15] The Tribunal did not accept the applicant’s explanations for his not mentioning this to the agents.[16]

   c)Third, the applicant gave inconsistent evidence about the Fatwa that had been issued. The applicant provided to the delegate a document titled “FATWA” which included a number of dates, one of which is 10 June 2013.[17] In his Protection visa application, which he signed on 22 August 2013, the applicant “made ambiguous statements about whether a Fatwa had actually been issued by that time”.[18] In a written statement,[19] the applicant said he was verbally advised that the matter would be reported to the police and media, mosques, and that there might be a Fatwa issued against the applicant. The applicant also said in that statement that there were “chances” that there “might” be a Fatwa and warrant against him.[20]

   d)Fourth, the Tribunal had difficulty accepting and found incongruous “the scenario conveyed by the applicant of a complaint being made to the organisation in late 2011 that he was in a relationship with another man; the complaint being deflected simply on the applicant’s denial of that allegation and because he was held in high esteem by the organisation; he and Mr C nevertheless reducing their contact with each other and then the same complaint resurfacing some 18 months later and some eight months after the applicant had left Pakistan”.[21] The Tribunal appreciated the applicant claimed that he had been informed that photographs and videos had been produced; but assuming that was so, the Tribunal had difficulty accepting that such evidence would emerge long after the applicant had left Pakistan, and long after the first complaint was made.[22]

   e)Fifth, although not central to the applicant’s account of events on which his application for protection was based, the Tribunal found the applicant gave inconsistent evidence about his employment in Pakistan.[23]

   [12] CB346, [38]

   [13] CB338-9, [11]

   [14] CB339, [12]

   [15] CB339, [14]

   [16] CB340, [15], [16]

   [17] CB66

   [18] CB340, [18]

   [19] CB37-41. The statement is dated 22 August 2013

   [20] CB340-341, [19]

   [21] CB342, [23]

   [22] CB342, [23]

   [23] CB343, [29]

2. The Tribunal referred to a number of photographs and other documents the applicant produced to the Tribunal in support of his claims. These included photographs showing a crowd purportedly protesting against the applicant; a document containing the applicant’s photograph and purporting to be an order that the applicant be killed and photographs of various locations where this document is displayed; newspaper articles reporting protests against the applicant for being homosexual; documents purportedly from the religious organisation, which included a Fatwa, a membership card, and cards and an undated letter purportedly from Mr C.[24]

   [24] CB345, [36]

3. The Tribunal put to the applicant that according to country information false and fraudulent documents were prevalent and available in Pakistan. The applicant agreed it was very easy to get false documents in Pakistan, but said that if his documents were false, he could have provided many more.[25] After referring to submissions the applicant made about documents to the delegate, and submissions his representative made, the Tribunal said:[26]

   The Tribunal has considered all of these responses as well as the contents of all of these documents. However, the Tribunal’s concerns about his credibility are not outweighed by the assertions conveyed by these documents. The Tribunal finds that the applicant is not a witness of truth, the account of events on which his protection claims are based is false and it does not give evidentiary weight to these documents. The Tribunal finds, in line with available country information, that the content of these documents is false. The Tribunal finds that these documents, including the various photographs, have all been contrived and fabricated to support the applicant’s false protection claims.

   [25] CB345, [37]

   [26] CB346, [38]

4. Because the Tribunal did not accept the applicant to be a witness of truth, the Tribunal disbelieved the applicant’s claims that he is confused about his sexuality, that he is attracted to men and that he was in a relationship with another man in Pakistan, and that the applicant was the subject of a complaint and enquiry in late 2011 and again in mid-2013 about his being in a relationship with another man. The Tribunal, therefore, also disbelieved the applicant’s claims that he received a telephone call from the president of the religious organisation, that a Fatwa had been issued against him, that protests had taken place against him and Mr C, that there were media reports about that, and that members of the applicant’s family had rejected him.[27]

   [27] CB346, [39]

5. The Tribunal concluded, therefore, there is not a real chance the applicant will suffer serious harm and the applicant does not hold a well-founded fear of persecution based on any convention ground. The Tribunal also concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.

Grounds of application

1. The application the applicant filed with the Court contains extensive text. I will deal with each separate claim that can reasonably be identified in that text.

2. First, it is stated:

   My application for protection should be consider on proof and evidence which I provided, not on just country information

3. I read this passage as claiming that the Tribunal based its decision only on country information, not on evidence the applicant provided. This raises no arguable case of jurisdictional error. It is true the Tribunal considered country information about the production and availability of fraudulent documents in Pakistan. It is beyond argument, however, that the Tribunal did not only consider such country information in finding the documents on which the applicant relied were contrived. The Tribunal also considered the applicant’s evidence and, for the reasons it gave, expressed difficulties with accepting that the applicant’s evidence was credible. The Tribunal then considered, in the light of country information about the production and distribution of fraudulent documents in Pakistan, whether its concerns about the applicant’s credibility were outweighed by the documents on which the applicant relied. The Tribunal concluded the existence of the documents did not outweigh its concerns. It is beyond argument that it was reasonably open to the Tribunal to so conclude.

1. Second, the application states:

   Medical and Psychological conditions are not good enough for any return to my home country. I am under depression and anxiety the prescribe medicine. I am taking have serious side effect which may include suicidal.

2. This raises no arguable case of jurisdictional error by the Tribunal. It is true that in his application for a Protection visa the applicant claimed that his mental health will not be stable if he returns to Pakistan.[28] It is beyond argument, however, that this claim was entirely premised on factual assertions which the Tribunal did not accept, those claims being that the applicant was confused about his sexuality, that complaints had been made about the applicant’s having been in a relationship with a male, and that the applicant had admitted such relationship. The applicant did not claim protection because of any medical or psychological conditions he claimed he suffered independently of his claim about his sexuality or about a complaint having being made about his having been in a relationship with a male.

   [28] CB19

3. Third, the application states (errors in original):

   Consider my protection application on larger humanitarian ground. As department have already accept my claim of harm feared amount to be persecution and the claimed harm amount is significant harm, further please consider my medical and Psychological condition on humanitarian grounds also

4. This statement appears to refer to the delegate’s having accepted that the applicant is confused about his sexuality and sexual preferences, and the applicant was in a physical relationship with a male in Pakistan before he arrived in Australia.[29] This statement is capable of being read as a claim that the Tribunal did not give the applicant reasonable notice that the issues that it considered were before it included whether the applicant was confused about his sexuality, and about whether the applicant had a physical relationship with a male in Pakistan.

   [29] CB184

5. So read, however, this statement raises no reasonably arguable case of jurisdictional error because it is not arguable that the Tribunal did not give the applicant notice that the credibility of the applicant’s claims in their entirety were in issue, and that, even though the delegate had found aspects of the applicant’s claims credible, the Tribunal would have to satisfy itself about the credibility of the applicant’s claims. That is apparent from the following passage from the Tribunal’s reasons:[30]

   At the beginning of the hearing the Tribunal made clear to the applicant that the purpose of its questions included the need to assess his credibility. The Tribunal told the applicant that although the delegate may have found certain aspects of his evidence credible, the Tribunal would, nevertheless, have to satisfy itself whether or not his account was truthful.

   [30] CB344, [35]

6. To the extent the applicant’s third statement invites the Court to consider humanitarian grounds, and to consider the applicant’s medical and psychological condition, the Court does not have jurisdiction to do so. The Court’s jurisdiction is limited to determining whether the Tribunal made a jurisdictional error.

7. Fourth, the applicant requests that the Minister review the applicant’s case “on larger and humanitarian ground as facts and circumstances section 417 of the immigration act”. It is beyond argument that this Court does not have jurisdiction to direct the Minister to consider a matter under s.417 of the Act.

8. Fifth, the application makes a number of statements to the effect that the applicant is unable to return to Pakistan because he fears harm due to his having committed homosexual acts in Pakistan, which is illegal under Pakistan law; that the applicant fears harm from private organisations such as religious groups, including the organisation by whom he had been employed; a Fatwa has been issued against the applicant because of his homosexuality; and it is likely that students, or parents of students, at a school the applicant once taught would harm him. None of these matters, however, raise an arguable case of jurisdictional error by the Tribunal. They are without a doubt an invitation that the Court consider the merits of the applicant’s claims for protection. The Court does not have jurisdiction to consider the merits of the applicant’s claims for protection.

9. Sixth, the applicant refers to the delegate’s finding that the “applicant does not have statutory effective protection in a third country as set out” in s.36(3) of the Act. The application relies on this finding to state the applicant does not have any other place to live. That raises no arguable case of jurisdictional error by the Tribunal.

10. Seventh, the application refers to the delegate’s acceptance of the applicant’s claims to the extent he claimed he is confused about his sexuality and sexual preference, and that he was in a physical relationship with a male in Pakistan before the applicant arrived in Australia. Relying on that finding, the application states the applicant is “unable to return to my country of Citizenship because there would be a significant threat to my personal security, dignity or human rights should [I] be forced to return”. The applicant also referred to the delegate’s finding that the harm claimed by the applicant is “significant harm” within the meaning of s.36(2A) of the Act.

11. These matters raise no arguable case of jurisdictional error. Provided the Tribunal gave the applicant notice that it might depart from findings the delegate made in favour of the applicant, the Tribunal was not bound to make the findings the delegate made. As I have already concluded, it is beyond argument the Tribunal gave the applicant notice that the credibility of the applicant’s claims in their entirety was in issue.

12. Eighth, the application states the applicant would be a “positive healthy addition to the Australian society”. Whether that is so or not is not arguably relevant to whether the Tribunal made a jurisdictional error.

13. Finally, the application refers to the applicant’s psychological condition, and states that if the applicant returns to Pakistan, he will face irrecoverable harm and may commit suicide. The application further states he cannot bear the disgrace of being a homosexual in Pakistan, that the applicant believes his return to Pakistan would harm him and his family, and that he cannot survive in that community any more. These matters do not disclose an arguable case of jurisdictional error because they are premised on facts which the Tribunal did not accept.

Submission made at the hearing

1. At the hearing before me, the applicant repeated the effect of some of the statements made in the application. Thus, the applicant submitted the Tribunal’s decision was not based on fact, but on country information and inconsistent information contained in the applicant’s application for a Student visa. For reasons I have given, it is beyond argument that, although the Tribunal relied on country information, it also relied on other matters on which it was reasonably open to rely for not accepting the applicant’s claims. It is also beyond argument that, although the Tribunal did take into account information contained in the applicant’s application for a Student visa, the Tribunal relied on other matters on which it was reasonably open to rely for not accepting the applicant’s claims.

2. Further, the applicant submitted the Tribunal gave no weight to the documents on which the applicant relied, and that it gave no weight to those documents in circumstances where there was no evidence the documents were fake. It is true the Tribunal gave no weight to the documents. As I have already concluded, however, it is beyond argument that it was reasonably open to the Tribunal, for the reasons it gave, not to give the documents any weight and to conclude they were contrived. It is also beyond argument that the matters on which the Tribunal relied for finding the documents on which the applicant relied, namely country information about the production and distribution of fraudulent documents in Pakistan and the concerns the Tribunal expressed about the applicant’s credibility, constituted a sufficient basis on which the Tribunal could conclude the documents on which the applicant relied were contrived.

Conclusion and disposition

1. Given the applicant has not provided an adequate explanation for his delay in applying for judicial review of the Tribunal’s decision, and, more significantly, the matters stated in the application disclose no arguable case of jurisdictional error by the Tribunal, I am not satisfied it is necessary in the interests of the administration of justice that an order should be made under s.477(2) of the Act extending the time provided for by s.477(1) of the Act to make an application for relief under s.476(1) of the Act.

2. 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 forty-six 46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 16 December 2016