BTA19 v Minister for Immigration
[2019] FCCA 2551
•17 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTA19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2551 |
| Catchwords: MIGRATION – Application to extend time for applying for judicial review of decision made by the Refugee Review Tribunal – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c) Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 196, 197C, 198, 417, 476, 477(1), 477(2) |
| Cases cited: DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 Re Commonwealth Australia & Anor; Ex parte Marks [2000] HCA 67 |
| Applicant: | BTA19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1024 of 2019 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 September 2019 |
| Date of Last Submission: | 9 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2019 |
REPRESENTATION
| Applicant in person, by video conference link, assisted by an interpreter. |
| Solicitors for the First Respondent: | Ms M Perotti of Sparke Helmore Lawyers |
ORDERS
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 12 June 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1024 of 2019
| BTA19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 April 2019 the applicant, a citizen of Fiji, filed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). By the same application, the applicant also claims an order under s.477(2) of the Migration Act 1958 (Cth) (Act) extending the 35 day period provided for s.477(1) for making an application to this Court for a remedy under s.476 of the Act. The applicant requires an order under s.477(2) of the Act because the migration decision in relation to which the applicant seeks a remedy is one that was made by the Tribunal on 12 June 2014.
Background
The applicant applied for a Protection visa on 25 February 2013. He claimed he fled Fiji because he feared his life was in danger because he is a member of the Viti Revolutionary Forces (VRF) and he took part in the VRF’s graffiti campaign in July and August 2011.[1] The applicant supported these claims with a number of documents. These include a letter dated 8 January 2013 under the typed heading “Viti Revolution Forces – Democratic Movement”,[2] a letter dated 13 January 2013 on the letterhead of “SDL” from a person said to hold the position of “Senior Party Executive”,[3] and a letter dated 8 February 2013 under the typed heading “Fiji Democracy & Freedom Movement” (FDFM).[4] The letter from the SDL claimed the applicant was a youth leader in the Methodist church for five years during which he organised and liaised with Methodist preachers to preach about equality and tolerance; and that during and after the Fiji coup the applicant’s activities were mainly against the wrongful acts committed by the military regime, and “how people must not support the regime’s programme and propaganda as it was against Christian principles”.
[1] CB182, [9]
[2] CB28-29
[3] CB30-31
[4] CB32
The applicant gave further details of his claims for protection at the hearing before the delegate;[5] and the applicant set out his claims in a statutory declaration dated 8 April 2014 which he provided to the Tribunal at the hearing held before it on 8 April 2014.[6] In that statutory declaration the applicant claimed as follows:
a)In 2011 he visited Suva to attend a wedding. When in Suva the applicant saw a group of people belonging to the VRF having a meeting about a graffiti writing campaign. The relative with whom the applicant was staying, Mr R, asked the applicant whether he wanted to take part as a guard looking out for police while they wrote the graffiti. The applicant agreed. He joined the VRF and participated in their graffiti writing campaign. This was not the first occasion on which the applicant had any involvement with the VRF graffiti campaign. The applicant claimed he had joined discussions with Mr R in 2010 when the campaign was still at the planning stage.
b)The applicant performed “four acts of graffiti writing lookout at bus stops”. After painting the last bus stop the applicant noticed the police were examining one of the sites. The applicant ran away because he knew that if the police caught him he would be punched, kicked, and probably raped. The applicant was frightened, and he refused to continue participating in the campaign. He escaped from the VRF graffiti writing group and the police.
c)The applicant returned to Ba, but he resided in the bush for fear of his life. Seven months later, after Mr R was granted bail, Mr R asked the applicant whether the applicant wanted to escape to Australia. The applicant said he did, and a member of the VRF assisted the applicant and Mr R to stowaway to Australia.
d)The applicant joined the SDL Party. The applicant was engaged to hand out pamphlets for the SDL Party in the 2001 elections, direct the elderly to voting areas, mix kava for members of the party, and run errands.
e)In 2012, after he arrived in Australia, the applicant joined the FDFM. He attended their meetings every fortnight; and in about April 2012 the applicant attended a protest rally in Canberra with Mr R.
[5] CB183-185, [12]-[14]
[6] Affidavit of P E Durham, annexure “PED-1”, pages 13-16
At the end of his statutory declaration the applicant said that the main reasons he is seeking protection is that he suffered a lot in Fiji because of his asthma; his slower ability to learn; his having had serious injuries inflicted on him by soldiers; and after all his work with the SDL and the VRF.
During the hearing before the Tribunal the applicant was asked about the claim made in the letter from the SDL that he had been a youth leader for the Methodist church. The applicant said the youth group contained people from different churches; he was appointed leader; and the group was opposed to the military regime after 2006.[7]
[7] CB191-192, [22], eleventh dot point
Tribunal’s reasons
The Tribunal was unable to be satisfied of the credibility of the claims the applicant made during the hearing before the Tribunal that he was involved with a Christian group in opposition to the military regime. The applicant did not make that claim in his application for a Protection visa; and the applicant denied the claim made in the letter from the SDL that he was a youth leader in the Methodist church. At his interview before the delegate the applicant claimed he was a Catholic, and later joined the Assemblies of God (AOG); and he denied he had been a Methodist. The Tribunal did not accept as plausible that the writer of the SDL letter intended to mean the applicant was a Catholic or a member of the AOG.[8]
[8] CB201, [45]
The Tribunal accepted the applicant may have favoured the SDL, and that he voted during the general elections of 2001 and 2006. The Tribunal did not accept the applicant was a member or active supporter of the SDL while he was in Fiji. The only support for this part of the applicant’s claims was the SDL letter, but the Tribunal was satisfied no weight should be given to that letter because the applicant himself had rejected the assertion made in that letter that the applicant was a youth leader in the Methodist church.[9]
[9] CB201, [48]
The Tribunal was not satisfied the applicant was involved with the VRF at any time.[10] The Tribunal relied on the following matters:
a)The Tribunal found inconsistencies in the evidence the applicant had provided about the circumstances in which he claims to have become involved with the VRF. The Tribunal referred as an example to the applicant’s having initially claimed that Mr R was a friend, not a relative, but later claiming he was a relative.[11]
b)The applicant’s claim in his statutory declaration that he was involved with the VRF in its planning stages in 2010 did not sit comfortably with information before the Tribunal that the VRF did not emerge until August 2011.[12]
c)The Tribunal found it difficult to accept that if, as the applicant claimed, he had been involved with the planning stages of the VRF’s activities in 2010, that it was only by chance that the applicant encountered them in Suva and was there invited to take part in the graffiti campaign.[13]
d)The applicant had given inconsistent accounts of his involvement with the night of the graffiti attacks. Before the delegate the applicant said they had “tagged” four bus stops and spent the rest of the night hiding in back streets to avoid the police, but at the hearing the applicant said he himself had painted four graffiti slogans.[14]
e)The Tribunal found the applicant’s account of his movements from August 2011 to his departure from Fiji in March 2012 to be “confused and inconsistent”.[15]
[10] CB201, [49]
[11] CB201-202, [49], first dot point
[12] CB202, [49], second dot point
[13] CB202, [49], second dot point
[14] CB202, [49], third dot point
[15] CB202, [49], fourth dot point
The Tribunal referred to the explanation the applicant gave for these inconsistencies, namely, that before the delegate the applicant panicked, and was not aware of what he was saying.[16] The Tribunal also referred to the applicant’s having submitted evidence from a “psychiatrist” stating the applicant was suffering from chronic post-traumatic stress disorder.[17] The Tribunal accepted the applicant suffered from this condition, but noted there was nothing in the evidence to indicate it would have prevented the applicant from responding accurately to the questions that were put to him during the hearing before the delegate or the Tribunal. The Tribunal said it reviewed the audio recording of the hearing before the delegate, and found the applicant was responsive to the questions he was asked, and he did not exhibit panic or distress of a kind that might account for the inconsistencies. The Tribunal also said that, having had the opportunity to observe the applicant at some length, the applicant was not prevented by any mental or emotional difficulties from responding to questions or articulating his claims.[18]
[16] CB293, [50]
[17] That is a reference to the report dated 14 March 2014 prepared by a psychologist practising at Macarthur Practice, a copy of which is at page 17 of annexure “PED-1” to the affidavit of P E Durham.
[18] CB203, [50]
Next, the Tribunal considered the applicant’s political activities in Australia. The Tribunal accepted the applicant is a member of FDFM, and that he attended various functions organised by it, including a protest rally it organised outside Parliament house in Canberra in April 2012. The Tribunal further accepted that the FDFM’s activities, including the organisation of protests, are monitored by Fijian authorities, and that it is possible that the applicant’s participation in the protest could be identified from photographs. The Tribunal, however, was not satisfied the applicant was ever involved in political activities directed against the Fijian regime, or that he had taken any leadership role in the FDFM’s activities in Australia. For those reasons, the Tribunal was not satisfied there is a real chance the applicant will suffer serious harm if he returned to Fiji because of his involvement with the FDFM in Australia.[19] The Tribunal was also not satisfied there was anything to indicate that if he were to return to Fiji the applicant would involve himself in political activism against the government.[20]
[19] CB204, [54]-[55]
[20] CB204, [57]
The Tribunal then considered whether the applicant faced a real risk he would suffer harm because he left Fiji illegally. The applicant’s representative claimed that the applicant’s illegal departure from Fiji exposed him to such risk. The Tribunal noted that this submission was not supported by information that suggests the applicant’s departure from Fiji was illegal. The Tribunal, therefore, did not accept the applicant faced a real risk of persecution because of the manner in which he departed Fiji.
On the basis of these findings, the Tribunal was not satisfied the applicant met the criterion provided for by s.36(2)(a) of the Act.
Finally, the Tribunal considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. Relying on findings it had already made, the Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Fiji there would be a real risk the applicant would suffer significant harm.
Course of hearing before the Court
The applicant appeared by video conference link at this Court’s Perth registry.[21] He is not legally represented, but there was an interpreter present in the Court before me in Sydney. As is my usual practice, I explained to the applicant the essential facts that led to the matter coming before me – the applicant’s applying for a Protection visa, the delegate’s refusal to grant a Protection visa, the applicant’s applying to the Tribunal for a review of the delegate’s decision, the Tribunal’s affirming the delegate’s decision, and the applicant’s filing an application with this Court. I also informed the applicant that of which he was aware of, namely, that he was required to obtain an order under s.477(2) of the Act before I could consider his application for a remedy under s.476 of the Act, and that in the application he filed he was in fact seeking such an order.
[21] On 24 June 2019 the applicant filed an application in a case seeking, among other things, a “writ of habeas corpus” requiring the applicant be physically present before the Court. It appears that it was in response to that application that on 1 July 2019 Judge Cameron ordered the Minister bring the applicant to the Perth registry of the Court for the hearing of his application.
I further explained to the applicant that although Judge Cameron had set down for hearing both the application for extension of time and the hearing of the substantive application, if an extension were granted, I indicated that, subject to any objection, I proposed to hear only the application for an extension of time. Neither the applicant nor Ms Perotti, who appeared for the Minister, objected to that course. I then explained to the applicant the matters of which I needed to be satisfied before I could make an order under s.477(2) of the Act. I also explained the procedure that would be followed. I identified the documents each party filed and on which they intended to rely, and then invited the parties to make submissions.
Principles governing exercise of power under s.477(2)
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.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[22]
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;
[22] [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.
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. 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”.[23] Further:[24]
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).
[23] [2015] FCA 1391 at [63] (cases cited omitted)
[24] [2015] FCA 1391 at [62] (cases cited omitted)
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””;[25] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[26]
[25] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[26] [2015] FCA 1391 at [62]
Particularly relevant to the circumstances of the case before me is the relevance of the length of the delay in an applicant applying for a remedy under s.476 of the Act. In his written submissions the Minister relies on paragraph 16 of the judgment of McHugh J in Re Commonwealth Australia & Anor; Ex parte Marks,[27] where, speaking in the context of the six months permitted under the rules of the Court to apply for the writs of certiorari and mandamus, his Honour said:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. . . . The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
[27] [2000] HCA 67
I do not take the Minister to be submitting on the basis of this passage that, barring exceptional circumstances, significant delay necessarily prohibits the Court from making an order under s.477(2) of the Act.
Explanation for delay
The applicant has given an explanation for his delay in that part of the form of application he filed in this Court beginning with the words “Grounds of application for extension of time”. As submitted by Ms Perotti, however, the applicant failed to support these grounds with an affidavit “explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension”, as he was required to do.[28] After Ms Perotti informed me she did not intend to cross-examine the applicant if he were to give sworn evidence to the effect of the grounds stated in the application, I informed the parties that I would waive compliance with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth), and treat the grounds the applicant set out in the application as evidence.
[28] Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)
The grounds of application for extension of time stated in the application are as follows (errors in original):
1.The applicant could not afford the legal fees for representation and legal instructions, and he lack legal knowledge and instructions
2.The applicant could not speak and write English and was Suffering from Chronic posttraumatic stress disorder Evidence from Psychiatrist reports
3.Fear of deportation as a factor, the applicant fear under section (91)(3) of the migration act not to be deported to Fiji, where he fears for his life and Persecution.
The applicant informed me he had no idea of the procedures he had to follow; he had no person to assist him; everything was very new to him; the person who had helped him before the Tribunal “disappeared”; the applicant does not have family in Australia; and the applicant does not know how to read or write. The applicant further said he was able to obtain assistance after 8 April 2019 when he was placed in immigration detention from other persons who were in detention.
The applicant’s explanation is inadequate. First, the claim that the applicant had no person to help him does not sit conformably with the material before me which shows that the applicant had legal representation before the Tribunal, and that he continued to receive assistance after that date because by letter dated 11 July 2014, the applicant’s legal representative applied to the Minister for Ministerial intervention under s.417 of the Act.[29] The Department of Immigration and Border Protection informed the applicant’s legal representative of the unsuccessful outcome of that application by letter dated 17 October 2014.[30] Second, even if the applicant’s explanations are accepted as true, they remain inadequate. It is reasonable to expect that a person in the position of the applicant who had applied and had been refused a Protection visa would assume some responsibility for making enquiries about his rights. The applicant’s explanations, if true, indicate the applicant made no enquiries about his rights. Further, there is nothing to suggest it was outside the applicant’s capacity to make such inquiries. As I have already noted, the applicant had engaged a solicitor; and, after the applicant was placed in immigration detention, he sought and obtained the assistance of other persons who also were in immigration detention.
[29] CB211
[30] CB229
Apparent merits of proposed grounds
The application contains three proposed grounds.
Proposed ground 1
The proposed first ground is as follows (errors and emphasis in original):
The Tribunal constructively Misapplied Assessment, and failed to comply pursuant to s (36) 2 (a) (aa) of the Migration Act 1958 (Cth), that the Australian has no Non refoulement obligation to the applicant, that during his interview he was not credible applicant for the grant of Conventional protection and Complementary protection visa, and denied the applicant’s procedural fairness and natural justice.
(a)the Tribunal erred in holding that Australian has no obligation to the applicant because of the inconsistency during the interview but failed to ensure that the applicant has no power authority to control his chronic post-traumatic stress disorder, his asthmatic illness and short memories (evidence attached marked (TD 1) Psychiatrist reports.
The ground is directed to the Tribunal’s not accepting the applicant’s explanation for the inconsistencies on which the Tribunal relied for finding the applicant’s claims were not credible. As stated, the ground goes no further than expressing disagreement with the Tribunal’s finding that the psychiatric evidence on which the applicant relied did not explain the inconsistencies in the applicant’s evidence. As I have already set out, the Tribunal considered the applicant’s reliance on the psychiatric report. The Tribunal, however, did not accept that the applicant’s psychiatric condition explained the inconsistencies. The Tribunal relied on the report’s not indicating that the applicant’s condition prevented the applicant from responding accurately to the questions that were put to him during the hearing before the delegate or the Tribunal. The Tribunal also relied on its hearing of the audio recording of the applicant’s interview before the delegate. It is beyond argument that it was reasonably open to the Tribunal not to accept for the reasons it gave the applicant’s explanation for the inconsistencies on which the Tribunal relied for finding the applicant’s claims were not credible. Ground 1, therefore, is not arguable.
During the hearing the applicant said that in around May 2019 he telephoned the Administrative Appeals Tribunal (AAT) three times and requested that he be provided with an audio recording of the hearing before the Tribunal. I understood the applicant initially said that he himself had telephoned the AAT, but the applicant later said that it was an African person in detention who made the inquiries. The applicant later said that another Fijian person at the detention centre interpreted to the African man the applicant’s desire that the AAT provide the applicant with the audio recording. The applicant made these claims from the bar table. I indicated to the parties that I would treat what the applicant said from the bar table as if it had been given under oath, I would consider whether I would accept that evidence, [31] and that I would also consider the significance of what the applicant said, assuming what he said is true.
[31] I would not have been bound to accept the applicant’s statements, even if given under oath, and even if they were not the subject of cross-examination – see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586
I have doubts about the truth of the applicant’s statements. There is in evidence a copy of an AAT document titled “Case Notes” which records that on 11 April 2019 a person who described himself as the applicant’s friend had called the AAT from Villawood detention centre asking for a copy of the Tribunal’s decision, and that the decision was sent to the email address of the applicant’s friend.[32] There is no record in the evidence before me that a request was made for an audio recording. Second, the applicant appeared before Judge Cameron on two occasions after May 2019, but he said nothing to Judge Cameron about his having previously requested that he be provided with an audio recording of the hearing before the Tribunal, but the AAT had not provided the recording to him. I do not, however, propose to make any finding about whether the applicant requested the AAT provide him with an audio recording, and will assume that he made such request.
[32] CB207
That the applicant may have requested an audio recording of the hearing before the Tribunal does not by itself indicate whether the applicant has any arguable ground of review. The only relevance of the applicant’s having made such request is to the question of whether the applicant’s having requested, but not having received, the audio recording ought to lead me to adjourn the hearing to permit the applicant an opportunity to obtain the audio recording. I asked the applicant questions that were relevant to that question. I asked the applicant the purpose for which he wanted to hear the audio recording. The effect of his answer was he wanted to determine whether the Tribunal had correctly understood the applicant’s evidence. I informed the applicant that he would need an interpreter to undertake such task, and I asked him how he would obtain an interpreter. The applicant said he would find someone.
There would be no utility in granting the applicant time to obtain the audio recording of the Tribunal hearing. First, the purpose for which the applicant says he wants to hear the audio recording is to determine whether the Tribunal correctly understood his evidence. There is nothing to suggest, however, that the Tribunal did not correctly understand what the applicant said at the hearing. None of the grounds claim the Tribunal did not understand any part of the applicant’s evidence; and the applicant makes no such claim in the written submissions he has filed. (I will refer to the applicant’s written submissions later in these reasons.) Second, there appears to be no real prospect that the applicant will be able to engage the services of an interpreter to interpret to him the evidence the applicant gave at the hearing before the Tribunal, as interpreted by the interpreter who assisted the applicant at the hearing, or what the Tribunal member said. Thus, there is no real prospect that if I were to adjourn the hearing the applicant would be able to fulfil the purposes for which he says he requires the audio recording.
Proposed ground 2
The proposed ground 2 is as follows:
Such and other grounds that the unrepresented Appellant is presently unaware but the Honourable Court thinks fit.
This proposed ground does not state any ground. It is an appeal to this Court to find a ground of which the applicant is unaware.
Proposed ground 3
The proposed ground 3 is as follows (errors in original):
The tribunal member in making its decision failed to take into account one or more relevant considerations.
Particulars
(a)the applicant status as a family unit with [Mr R] a refugee on protection visa Class XA Subclass 866 within the meaning of 1951 convention relating to the status of refugee ( Refugee Convention) recognised under Australia law. The Tribunal did not identify or avert to the existence of the relevant consideration set out in direction 65.
(b)whether or not Australia owes an obligations to the applicant, the tribunal found that Australia’s non-refoulement obligations were not relevant to the present application but nonetheless found that it was not satisfied there was a real chance that the applicant will suffer serious harm or a real risk if he return to Fiji and that Australia did not owe the applicant any protection obligation.
(c)the likelihood that the legal consequence of the decision was indefinite immigration detention of the applicant in circumstances because of the operation of section 189 and s 196 of the act where;
(i)It is likely that Australia owes non-refoulement obligations to the applicant’s
(ii)the applicant is banned from making another protection application because of section 48A of the migration act.
(d)It was a misunderstanding of the legal consequence of the decision because of the Operation of section 197C of the act was such that, the applicant is required to be removed to Fiji irrespective of Australia’s non-refoulement obligations which is a contravention to the United Nation convention, applicant’s family unit as a refugee on protection class XA Subclass 866.
The applicant relies on the following authorities
· NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (FC) and
· DMH16 Minister for Immigration and border Protection (2017) FCA 448.
Paragraph (a) of the particulars to the proposed ground 3 appears to claim that the Tribunal failed to consider the applicant was a member of the family unit of Mr R. As stated, this ground is not arguable. The applicant did not in his form of application state Mr R was a family member. On the contrary, in his form of application for a Protection visa the applicant ticked the box next to the word “No” in relation to questions 10 and 12. Question 10 asked whether there are any members of the same family unit who are in Australia but are not included in the application; and question 12 asked whether any of the persons included in the application and named in question 1 have close relatives who are in Australia at the time of application. Also relevant is the Tribunal’s finding that the applicant gave inconsistent evidence that Mr R was and was not a relative.
Before me the applicant submitted that the applicant’s answer in his form of application was misunderstood by the Tribunal because the notions of relative and friend in Fijian culture are complex. That may be so, but what is relevant is how a reasonable person in the position of the Tribunal would read the material that was before it; and the only reasonable reading of the applicant’s application is that the applicant had no relative in Australia at the time of application. In any event, the expression of “member of the family unit” is defined in reg.1.12 of the Migration Regulations 1994 (Cth). There is nothing in the material that was before the Tribunal, and there is nothing in the material before me, that could reasonably suggest Mr R was a member of the applicant’s family unit, as defined in reg.1.12, or that the applicant was a member of Mr R’s family unit.
When asked whether he wished to make any submissions in relation to paragraph (a) of the particulars to proposed ground 3, the applicant said that Mr R had been granted a Protection visa; and that the applicant’s clams for protection were similar to those Mr R had made. The applicant asked how was it possible that Mr R was granted a Protection visa but the applicant was not. That Mr R was granted a Protection visa does not by itself raise any arguable ground of jurisdictional error. What another Tribunal member may have decided in relation to the claims of another person was not relevant to the Tribunal’s assessment of the applicant’s claims. First, the Tribunal’s duty was to consider the applicant’s claims based on the evidence the applicant gave and all other material that was before it. Second, although Mr R gave evidence before the Tribunal,[33] the claims Mr R made on his own behalf, the material on the basis of which Mr R was granted a Protection visa, and the reasons for which a differently constituted Tribunal decided Mr R was entitled to be granted a Protection visa, were not before the Tribunal.
[33] CB194-195, [23]
For these reasons, paragraph (a) of the particulars to proposed ground 3 does not disclose any arguable ground of jurisdictional error.
Paragraph (b) of the particulars to proposed ground 3, as stated, appears to be directed to a finding or process of reasoning the Tribunal did not make or follow. There is nothing in the Tribunal’s reasons to suggest it found that Australia’s non-refoulement obligations to the applicant were not relevant. Paragraph (b) of the particular, therefore, raises no arguable case of jurisdictional error.
When asked whether he wished to make any submissions in relation to paragraph (b) of the particulars to proposed ground 3, the applicant said the Tribunal did not believe him, and the Tribunal seemed to be biased against him. I did not understand the applicant to be claiming actual bias. I understood the applicant to claim bias on the ground that the Tribunal disbelieved him in circumstances where the applicant was telling the truth. Later in the hearing before me the applicant asked whether the Tribunal did not believe him because he was very weak or lacked an education.
I take the applicant to claim that it was not reasonably open to the Tribunal not to accept him as a credible witness. That is not an arguable claim. The Tribunal principally relied on inconsistencies it identified. It is beyond argument that it was reasonably open to the Tribunal not to accept for the reasons on which it relied the applicant’s explanation for the inconsistencies; and, having not accepted those explanations, it is beyond argument that it was reasonably open to the Tribunal to rely on the inconsistencies as matters which undermined the credibility of the applicant’s claims.
Paragraph (c) of the particulars to the proposed ground 3 claims the Tribunal was required to take into account the consequence of the applicant being placed in indefinite immigration detention by the operation application of s.189 and 196 of the Act in circumstances where there is a likelihood of Australia owing the applicant non-refoulement obligations, and the applicant would be unable to make a further application for protection. This is not arguable. Sections 189 and 196 are provisions that apply to persons who are unlawful citizens. That the applicant might have become an unlawful non-citizen because the Tribunal might affirm the delegate’s decision was not relevant to the task the Tribunal was required to perform when reviewing the delegate’s decision. The Tribunal’s task was to determine whether the applicant met the criteria for the granting of a Protection visa. Further, although it is likely that the Tribunal’s affirming the delegate’s decision would mean that the applicant could not lawfully remain in Australia, the Tribunal’s decision would not by itself have the consequence of rendering the applicant an unlawful non-citizen. Whether the applicant would become an unlawful non-citizen would depend on actions he chose to take, and in particular whether he would depart Australia or remain in Australia without any visa.
Paragraph (d) of the particulars to proposed ground 3 claims the Tribunal ought to have had regard to s.197C of the Act. That is not arguable. The ground assumes the applicant was owed non-refoulement obligations. By finding the applicant did not satisfy the criteria for the grant of a Protection visa, the Tribunal in effect found Australia did not owe the applicant any non-refoulement obligations. Further, s.197C of the Act is not a provision that it was relevant for the Tribunal to consider for the reasons that it was not relevant for the Tribunal to consider s.189 or s.196 of the Act.
Finally, I turn to the two cases referred to in paragraph (d) of the particulars. The first is NBMZ v Minister for Immigration and Border Protection.[34] That case concerned a decision by the Minister not to grant on character grounds a protection visa to a person who had been assessed as a refugee. The second case DMH16 v Minister for Immigration and Border Protection.[35] That too concerned a decision not to grant on character grounds a Protection visa to a person who had been assessed to be a refugee. Neither of these cases is relevant to the circumstances of the applicant because he has not been assessed to be a person to whom Australia owes any protection obligations
[34] [2014] FCAFC 38
[35] [2017] FCA 448
The applicant’s written submissions
The applicant filed two sets of submissions. The first is titled “Submissions of the Applicant” which the applicant filed on 26 August 2019. In that document the applicant relies on a number of additional proposed grounds. The first is as follows:
The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the Applicant’s claim for protection could amount to significant harm for the purposes of s36(2)(aa) of the Migration Act 1958 (Cth).
The gist of this part of the applicant’s written submissions is that the Tribunal failed to consider the applicant claimed he had a fear of being harmed, and that this fear itself constituted significant harm. This proposed ground is premised on the applicant’s claims being true. The Tribunal, however, did not accept the applicant’s claims. This proposed ground, therefore, is also not arguable.
The second proposed ground stated in the applicant’s written submissions is as follows:
The Tribunal erred by failing to take into account evidence of significance, namely that the perpetrators are Fijian police and Fijian military.
As with the first of the proposed grounds stated in the applicant’s written submissions, this proposed ground is premised on the applicant’s claims being true. The Tribunal, however, did not accept the applicant’s claims. This proposed ground, therefore, is also not arguable.
The third proposed ground stated in the applicant’s written submissions is as follows:
The Tribunal erred by failing to take into account the well founded fear of persecution is ‘for reasons of the applicant’s membership of a particular social group and his actual or imputed political opinion.
This proposed ground is in part based on the assertion that the applicant is related to Mr R “through his great grandmother”. That assertion is said to be found in the “witness evidence” of Mr R. The applicant submits that if the applicant and Mr R are not to be considered as members of the same family unit, they nevertheless constitute members of a particular social group. The only apparent basis on which it is submitted that the applicant and Mr R should be treated as members of a particular social group appears to be the political opinions they share. This proposed ground is not arguable, given the findings the Tribunal has made. These include the Tribunal’s not being satisfied that the applicant was involved with the VRF; the applicant was not a member or active supporter of the SDL while he was in Fiji; the applicant was never involved in political activities directed against the Fijian regime, and had not taken any leadership role in the FDFM’s activities in Australia; or that the applicant would engage or involve himself in political activism against the government if he returned to Fiji. In other words, given the Tribunal’s findings, the applicant has no political opinions in common with Mr R which would give rise to a real chance of significant harm based on his being a member of a particular social group defined by reference to holding a particular set of political opinions.
A fourth proposed ground is the applicant’s having been diagnosed with chronic post-traumatic stress disorder. The applicant asserts the Tribunal failed to consider a claim based on the applicant’s being at risk of suffering significant harm because of this condition. It is true the applicant brought before the Tribunal evidence of his suffering from this condition; and that the Tribunal accepted the applicant suffered from that condition. It is not reasonably arguable, however, that the applicant made any claim that he faced a real risk of harm if he returned to Fiji because of that condition, or that such a claim ought reasonably to have arisen from the material that was before the Tribunal. The applicant relied on his psychological condition to explain away the inconsistent evidence the applicant had given in the course of his application for a Protection visa.
The second set of submissions on which the applicant relies is titled “Submission [sic] in Reply of the Applicant”, which the applicant filed on 9 September 2019. These submissions are addressed to the Minister’s written submissions. Under the heading “Ground 1” the applicant submits the Tribunal lacked the medical expertise to determine whether the applicant’s condition explained the applicant’s inconsistencies. That is not arguable. The Tribunal did not purport to assess the applicant’s explanation, and the medical evidence on which he relied, by relying on an expertise it did not possess. The Tribunal considered the evidence before it. One item of evidence was the medical report, which the Tribunal found did not suggest that the medical condition from which the report stated the applicant suffered prevented the applicant from responding accurately to the questions that were put to him during the hearing before the delegate or the Tribunal. The other items of evidence on which the Tribunal relied were its senses, first in hearing the audio recording of the hearing before the delegate, and, second, its hearing and seeing the applicant give evidence before it. It is beyond argument the Tribunal was correct to find the medical evidence did not suggest that the medical condition from which the report stated the applicant suffered prevented the applicant from responding accurately to the questions that were put to him during the hearing before the delegate or the Tribunal; and it is beyond argument that it was open to the Tribunal to rely on its senses to determine whether the applicant was able to understand and respond to questions that had been put to him by the delegate and by the Tribunal.
Under the heading “Ground 2”, the applicant submits the Tribunal ignored the applicant’s evidence that he feared harm from the Fijian police and military, and that the Tribunal relied on its own interpretation and findings. That is not arguable. As my summary of the Tribunal’s reasons should indicate, the Tribunal considered the applicant’s claims, and it rejected them for reasons that are intelligible and which were reasonably open to it.
Under the heading “Ground 3” the applicant claims he is without liberty, and has been unrepresented at all relevant times. It repeats the claim that the applicant’s claims should have been considered on the basis that the applicant and Mr R formed part of the same particular social group.
The applicant had representation before the Tribunal. It is true the applicant is unrepresented in the proceeding before the Court but that by itself does not give rise to any arguable case of jurisdictional error by the Tribunal; and it does not give rise to any obligation on this Court for itself to consider whether there are arguable grounds of jurisdictional in addition to those on which the applicant relies.
For completeness, I should finally mention that the applicant had previously applied for an order that his matter be referred for pro bono relief. On 20 August 2019 the Registry, as directed by Judge Cameron’s associate, emailed the applicant with the following:
At the interlocutory hearing on 1 July 2019 his Honour considered your application in a case, including your request for Court appointed pro bono legal assistance. His Honour delivered an ex tempore decision which, among other things, refused your application for a referral for pro bono legal assistance …
Conclusion and disposition
I have concluded the applicant had not given an adequate explanation for the delay in applying to this Court for a remedy in relation the Tribunal’s decision of 12 June 2014; and I have found that none of the grounds or submissions on which the applicant relies disclose any arguable case of jurisdictional error. These matters lead me to conclude I am not satisfied it is necessary in the interests of the administration of justice that I should make an order under s.477(2) of the Act extending the time provided for by s.477(1) of the Act for the applicant to apply to this Court for remedies in relation to the Tribunal’s decision. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed. I will consider the question of costs when I pronounce my reasons.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 September 2019
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