BTI15 v Minister for Immigration

[2016] FCCA 2326

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2326

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – significant delay in application for extension of time – whether the Tribunal erred in failing to consider a claim or integer concerning military service – whether the Tribunal failed to consider the applicant’s desertion from the military and his ongoing military reserve obligation as a real risk for a Convention reason – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 477

Cases cited:

Gallo v Dawson (1990) 64 ALJR 458

NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1695

Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67

Vella v Minister for Immigration & Border Protection [2015] HCA 42

Applicant: BTI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2407 of 2015

Judgment of: Judge Smith

Hearing date: 26 July 2016

Date of Last Submission: 26 July 2016

Delivered at: Sydney

Delivered on: 26 July 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr M Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for an order under s.477(2) of the Migration Act 1958 (Cth) be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2407 of 2015

BTI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Egypt who applied for a protection visa on 4 March 2013. That application was found to have been invalid for reasons that are not relevant to these proceedings and he re-lodged the application on 11 April 2013 making the same claims. On 29 July 2013, a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for a review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The Tribunal affirmed the delegate’s decision on 28 August 2014. A year later on 1 September 2015, the applicant applied for judicial review of the Tribunal’s decision. Section 477(1) of the Migration Act 1958 (Cth) provides that such an application must be made within 35 days of the date of the decision, that is, within 35 days of 28 August 2014. Thus, this application is out of time. However, s.477(2) provides that the Court may make an order extending the time of the application if:

   …

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

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

3. It is not in dispute that the first of those requirements has been met. As to the second, while the matters to which regard may be had are not expressly confined by the Act, the matters which are usually relevant, and which are relevant to the current proceedings and were relied on by the parties, include the following:

   a)the extent of the delay and the reasons for it;

   b)any prejudice to the respondent;

   c)the impact on the applicant if the time is not extended;

   d)the interests of the public at large; and

   e)the merits of the substantive application.

4. It is fair to say that the greatest emphasis was placed on the first and last of these and I will deal with those last. There is no prejudice asserted by the Minister and I treat that consideration as neutral to these proceedings. There is a public interest, as the counsel for the applicant submitted, in having serious issues such as applications for protection visas to be considered according to law. However, that consideration really folds over into the final consideration, namely, the merits of any substantive application.

5. There is another public interest at play, namely, the efficient and timely administration of justice, which is realised in the time limit imposed by s.477(1) of the Act.

6. As to the impact on the applicant, the applicant argues that he will go back and face harm in Egypt. I do accept that one possible consequence of the fact that the applicant was out of time, and a failure by the Court to extend that time, will be that the Tribunal’s decision will stand, and thus, that he will be likely to be sent back to his home country of Egypt.

7. In that respect however, the Tribunal found that the applicant would be unlikely to face sufficient harm to warrant the grant of a visa and I am not in a position to take issue with that finding. In any event, I take into account the possibility such as it is, that the applicant will be returned to Egypt in the circumstances that he claims.

8. The first question given great attention to by the parties is the delay in the application. The delay is almost 11 months. That is more than a significant delay.

9. In my view, it falls into the category discussed in authorities such as Vella v Minister for Immigration & Border Protection [2015] HCA 42, where his Honour Gageler J said, that given the delay he would only reach a state of satisfaction required by the Act were he to be persuaded that the applicant’s case was exceptional. His Honour there referred to the decisions in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474, [13]; [2000] HCA 67 citing Gallo v Dawson (1990) 64 ALJR 458 at 459.

10. The applicant’s evidence as to the reasons for his delay was given by an affidavit which was read without objection and upon which the applicant was not cross-examined. That affidavit explained:

    …

    3.The application was filed on 31 August 2015 and is out of time by 10 months and 29 days.

    4.I have been suffering from a history of mental illness. I was diagnosed with mental illness and hospitalised on 18 January 2012 and spent 10 days in a Psychiatric and Addiction hospital.

    5.Annexed and marked with the letter 'B' is a true copy of the report by El Nozha Hospital.

    6.I was hospitalised on 4 separate occasions prior to this due to my mental instability.

    7.During my RRT proceedings I did not have a representative. I attended the Tribunal on my own and did not seek any advice.

    8.I was not aware that I could lodge an application for judicial review when my RRT appeal was unsuccessful.

    9.I suffer from mental illness which has contributed to my inability to obtain proper legal advice in order to pursue judicial review.

11. In my view, the applicant has not given any reasonable excuse for the significant delay in these proceedings. For instance, while he relies predominantly on his history of mental illness, the medical certificate indicating that he received treatment at a psychiatric and addiction hospital related to a period in January 2012 in Egypt. The applicant says that he was hospitalised on four separate occasions prior to that due to his mental instability, but there is no evidence of any instability at all in Australia, where the applicant has been since January 2013 when he arrived here on a tourist visa.

12. Further, the applicant has not given any evidence of how that mental illness might have impacted on his ability to appreciate and take action upon the consequences of the Tribunal’s decision and, in particular, what steps he might do in order to address his dissatisfaction with it. Counsel for the applicant said in submissions, although this was not supported by evidence, and counsel for the Minister asked the Court to accept, that the applicant had, instead of seeking judicial review, made an application to the Minister for intervention under s.417 of the Act.

13. I do not consider, even if that were to be accepted, that that is a reasonable excuse. It does reveal however, that the applicant was able to obtain some advice about steps that can be taken under the Act in connection with the adverse decision of the Refugee Review Tribunal. It may be that such assistance was obtained from the applicant’s brother and sister, who appear from the material before the Court to be resident in Australia.

14. Some importance is also that the applicant’s evidence contains no explanation of what steps were taken in order to obtain advice. There is nothing to say, for example, that the applicant actually tried to obtain legal advice, whether free or paid, and that those attempts were unsuccessful. I infer that possibly upon the rejection of the application under s.417 and until the very late stage, the applicant took no steps to seek advice concerning judicial review or any other step apart from the s.417 application in connection with the decision of the Tribunal.

15. That fact, together with the extreme delay, weighs very heavily against the applicant. In my view, it would require significantly strong grounds of review in order to overcome both of those matters. I turn to those grounds now. The applicant only relies upon ground 2 in his application. In order to understand that ground, it is important to set out a summary of the claims and the findings by the Tribunal. The summary contained in the respondent’s outline of submissions at [2] – [6] contain a sufficiently accurate summary for that purpose. They are:

    [2]The applicant is a male citizen of Egypt. His claims to fear persecution and/or significant harm centered around the fact that he was required to perform a period of compulsory military service in Egypt.

    [3]The applicant claimed that he had been denied an education because, after failing his final school exams twice, he was obliged to perform compulsory military service. He claimed that he had been severely mistreated during this period of compulsory military service and had absconded. He was sentenced to two years and three months’ imprisonment for absconding and was released on 25 May 2011. He claimed that he had suffered severe torture and mistreatment during his period of imprisonment, and required psychiatric care after his release.

    [4]The applicant also claimed that following his release from gaol, he had been “bombarded” by the Muslim Brotherhood which by that stage had come into government. He claimed that he had been assaulted by members or supporters of the Muslim Brotherhood in 2012, even though his evidence about exactly when this occurred and what injuries he sustained was inconsistent. At a more general level, the applicant claimed that the Muslim Brotherhood threatened his religious freedom and that he would be targeted in the future.

    [5]The delegate did not accept that the applicant was a person in respect of whom Australia owes protection obligations. The applicant sought review in the Tribunal and, after a hearing that took place on 26 March 2014, the Tribunal affirmed the delegate’s decision on 28 August 2014.

    [6]In summary, the Tribunal found as follows:

    (a)The Tribunal accepted that the applicant had been mistreated during his period of military service, and during his subsequent period in prison. Nevertheless, the Tribunal found that the applicant’s military service obligations and the penalty to which he was subjected for absconding were administered pursuant to laws of general application which imposed in a non-discriminatory manner. The imposition of the laws therefore did not amount to persecution;

    (b)The Tribunal was also unable to identify any Convention reason for the physical mistreatment that the applicant claims to have suffered during his period of military service;

    (c)The Tribunal did not accept that the applicant was denied the right to an education because he was forced to do military service;

    (d)The Tribunal did not accept that there was a real chance or risk that the applicant would suffer serious or significant harm by virtue of being a person in respect of whom there may have been an obligation to perform reserve military duties in the future;

    (e)The Tribunal did not accept that the applicant had a well-founded fear that he would be persecuted by virtue of being a person opposed to the Muslim Brotherhood. Similarly, the Tribunal found that the applicant was not owed complementary protection obligations in relation to his fear that he would be harmed by the Muslim Brotherhood.

    (Citations omitted).

Consideration

1. I turn then, to the ground raised in the application. There are a number of paragraphs of particulars to ground 2 which states that the second respondent committed jurisdictional error by a failure to complete the statutory task required of it to examine and deal with the applicant’s claims or an integer of his claims. Some of those particulars set out findings that appear to be more in the way of argument than particulars.

First Ground – sub-paragraph 2(d)

1. As best as I can discern, the relevant particulars are sub-paras.2(d), (e), (f) and (j). Sub-paragraph (d) states:

   However, the second respondent failed to examine the claim or integer of the applicant's claim that his mistreatment during military service and during his imprisonment did amount to persecution for a convention reason due to his membership of a social group as a military deserter and as a person with psychological illnesses and that there is real risk that the applicant will suffer serious harm for convention reasons and significant harm for complementary reasons.

2. It is trite that if the Tribunal fails to deal with a claim that has been made by the applicant on review, or a claim which arises on the material and which, if accepted, might mean that the applicant satisfies the criterion, then the Tribunal falls into jurisdictional error. However, that claim must be made either expressly or in a manner which arises naturally on the material. I use the word “naturally” not to mean anything of any particular significance, but simply as a summary of what the Courts say is sufficient to give rise to the obligation of the Tribunal to consider.

3. Allsop J, as his Honour then was, explained it better in the decision in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:

   …

   Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims…

4. The applicant in this case says that his claim that he faces harm as a member of a particular social group, namely, conscientious objector, military deserter and a person with psychological illness, arose in this way from the statement that accompanied his protection visa application, as well as certain submissions made by him in writing to the Tribunal. At pages 61 and 62 of the court book, the following document appears:

   Questions 43,44,45,46 and 47.

   -My name is [name omitted]. Born on [date omitted] raised in Alexandria Egypt with my 2 brothers and 1 sister. I finished my primary schooling and high school however struggled with my senior year and was forced to drop out and start my military service in 2005.

   I was not given any opportunity or chance to retry or continue any study. Army service is compulsory and there is no other solution. Within the first few months in the army I experienced painful trauma both physically, mentally and emotionally. Due to not obeying certain authority officers orders. (Personal needs such as cleaning his home, washing his rugs, cleaning his rugs, toilets and yards).

   This was not my impression of military service, I was belted, stripped naked, physically, verbally and mentally abused for not being a servant and obeying the higher officers “personal” needs and orders. I found it hard to live with and decided to runaway from the army. As I arrived home my parents were in shock as in Egypt military service is compulsory to complete. My father and family convinced me to go back and finish my service, Which I did only to be mistreated beyond expectation, tortured and abused by certain officers and higher authorities. [name omitted].

   I then became selfless, depressed and suffered severe anxiety and emotional, mental struggles. I ran away the second time as I felt death was near. After arriving home my family found it unacceptable and feared for my safety and their own.

   After arriving back the second time, the usual law states that I be held before the court within the first 3 days however I was thrown into a cell for 30days by the above sergeants with clear discrimination. 05/11/2009

   Within those 30days I experienced the worst torture in my life. After the 30days of injustice I was then held before the court and ordered to 2years and 3months in military imprisonment on the 5^th December 2009. All photographs and evidence on my body are present as a result of the torture and abuse I faced.

   I was released from the military on 25/05/2011 only to find the country was in turmoil from the revolution. I struggled with my everyday duties, felt down, depressed and selfless. My father advised me to seek a psychologist and psychiatrist which I did for a few months. I was advised to start going out , look for work, start a family etc, but all was far from reach.

   The Islamic extremists then had overtaken the country and its freedom.

   -No true choice of voting

   -No choice of dress code. Only Islamic clothing

   -Growing of beard

   -Dawaa talk – Conveying Jehad

   -Persuading youth to go fight in Palestine and Afganistan (to protect our “brothers)

   These are only a few of what all parties wanted to happen. For anyone who did not obey or agree was called a disbeliever and not a true muslim.

   During the events of the referendum on the Constitution in Alexandria on 15/12/2012 and when I call the National League voters referendum to vote no on the constitution the Group Muslim Brotherhood of Egypt’s regime, resulting in injury to an artery right hand cutting.

   Events Commander Ibrahim Mosque on 21/12/2012 was the attack on protesters by the brotherhood of the presidential system after the protesters rejected the referendum and the Commander Ibrahim Mosque (Al-mahlawi) Atonement everyone says no to referendum.

   And in the end that Egypt became unstable with lots of incidents of robbery, murder and rape in addition to a group of elders like Dr. duad Baz Professor of constitutional law at Al-Azhar University and Dr. Mahmud Shaalan issued fatwas to kill members of the National Salvation Front, consisting of Dr. Mohamed ElBaradei and Dr Amr Moussa

   (errors in original)

5. The applicant says, in particular, that the claim of conscientious objector arose because the applicant says in this document that he was not given any opportunity or chance to retry or continue his study. In my view, that claim simply does not arise. The applicant did not refuse to undertake military service and, if he had objected to it, it was not for any reason of his conscience, which is an essential element of being a conscientious objector. The simple fact is that he would have preferred to study than to go into the army.

1. That does not, on any view of the meaning of conscientious objector, bring him within the definition of that term and, for that reason, there was no error in the Tribunal failing, if indeed it did fail, to consider that claim.

2. Similarly, although the applicant said that he had undergone severe anxiety and emotional and mental struggles, there is nothing in this document or in any other document put forward by the applicant, that suggests that this anxiety and emotional and mental struggles, whether it be called psychological illness or otherwise, was any activating reason for any of the treatment of which he complained that he had suffered in the past and that he might suffer in the future.

3. The claim of military desertion appears to have been made simply by the fact that he left the military prior to his time having elapsed. However, it is clear that the Tribunal dealt with that. The Tribunal’s findings in respect of the applicant’s claims relating to the military, including his mistreatment during military service and the treatment of him during the punishment for his desertion, were dealt with at [33] – [35] of the Tribunal’s reasons.

4. The Tribunal there found that there was no Convention reason for any of the additional physical treatment that the applicant claims to have encountered while doing his military service. There was nothing wrong with that finding. Simply put, the applicant never claimed anything that could be said to have amounted to a Convention reason for that treatment.

Second Ground – sub-paragraph 2(e)

1. The balance of the claims concerning military service were dealt with by way of reference to laws of general application, which brings up the second particular, which is in sub-para.(e) of the originating application, as set out below:

   Further, the second respondent failed to examine the claim or integer of the applicant's claims that his mistreatment during military service and his further mistreatment during his imprisonment were due to the fact that he was a military deserter and due to his psychological illnesses, and such mistreatment was not administered under the laws of general application.

2. The applicant’s argument in this respect appeared to be that the Tribunal wrongly dealt with the treatment of the applicant during his military service with the application of the law of military treatment. However, that is not the way that the Tribunal dealt with it. Paragraph [33] of the Tribunal’s reasons makes it clear that what the Tribunal dealt with was the requirement that the applicant perform military service and, subsequently, the punishment that he received for running away as being administered under laws of general application.

3. The logic of that, of course, was that absent the requirement for the applicant to perform military service, or absent a law requiring punishment for absconding, then the treatment as described by the Tribunal as “additional physical mistreatment” would not have, and thus in the future, will not occur. Once again, there is nothing illogical about that approach. Further, at [34], the Tribunal explained in an orthodox way what, in fact, is meant by the law of general application. That is, a law that does not supply the discriminatory element that is required in the definition of “refugee” in Article 1A(2) of the Refugees Convention[2].

   [2] Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967 [1954] ATS 5 and [1973] ATS 37.

Third Ground – sub-paragraph 2(f)

1. The third ground is in sub-para.(f) which is:

   Given that the applicant remains eligible for military reserve service for a further nine years from 2009, the date of discharge, until 2018, there is a real risk for both convention and complementary reasons that the applicant will suffer serious or significant harm given he was a former military deserter and a sufferer of psychological illnesses. The second respondent failed to examine his membership of a social group for convention and complementary reasons and failed to examine that the real risk of further extra judicial mistreatment is not administered under the law of general application.

2. The Tribunal deals with the question of the obligation of the applicant to perform reserve duty in [37] of its reasons. The Tribunal’s critical finding was that it was not satisfied that there was a real risk that the applicant would be called upon for reserve duty. The logical consequence of that finding, of course, was that there was no real risk that the applicant would be harmed upon being called up as a reservist, the likelihood of him being recalled having a direct logical relationship with the consequences of him being called.

3. Although the applicant attacked that logic, I can see no error in it and can see no error in the way in which the Tribunal dealt with the possibility that the applicant might face harm as a consequence of being called up to reserve duty in the military.

Fourth Ground – sub-paragraph 2(j)

1. The final ground is in sub-para.(j) of the particulars as set out below:

   The second respondent failed to examine the claim or integer of the applicant's claim that his membership of a social group as a military deserter and as a person with psychological illnesses exposed him to a real risk of serious harm for convention reasons and significant harm for complementary reasons by the Muslim Brotherhood and Islamic extremists operating in Egypt and the region.

2. The Tribunal dealt with the claimed harm at the hands of the Muslim Brotherhood under the heading Muslim Brotherhood in the second part of [37] in its statement of reasons. Essentially, the Tribunal member held that:

   I do not accept, however, that the applicant’s evidence discloses that he was under any serious personal threat of harm from such people or that they had any serious intention of attempting to recruit him for jihad or any other form of religious violence; or that they had any serious intention to harm the applicant if he did not comply.

   …

3. Further, the Tribunal found with its eye on the future that the extremist groups did not seek to forcibly recruit individuals to fight for them and, thus, that the possibility that the applicant would be harmed by the Muslim Brotherhood in the reasonably foreseeable future was remote. In that way, the Tribunal dealt with the factual claim of the risk of harm without delving into any Convention basis for the potential harm and so dealt with the totality of any claim arising in respect of the Muslim Brotherhood.

4. As I have found above, there was not in any event, a possible claim raised on the material and certainly none raised expressly by the applicant, that any harm faced by the applicant in connection with the Muslim Brotherhood had any relation to any characteristic that he had that might possibly fall within a particular social group. In particular, the applicant did not claim that he was going to be harmed because he was a conscientious objector, a military deserter, or because of some psychological illness.

5. Although counsel for the applicant at the hearing added that it might be inferred that it was because of his religion, him being it was said, a moderate; that did not arise in the material either and it was not something that was required to be considered. It was possible, as the delegate had found, that the claim amounted to a claim of harm for reasons of political opinion (see p.173 of the court book) or indeed, of religious opinion. As I have said, the Tribunal dealt with the claim at a level which did not require it to consider the reasons for which that harm might come to the applicant.

Conclusion

1. For those reasons, I consider that there is little, if any, merit in the grounds raised by the applicant in respect of the Tribunal’s decision. For that reason, taken together with all of the other considerations, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period within which to make an application for judicial review. The application will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 8 September 2016

Corrections

The judgment has been amended to comply with section 91X of the Migration Act 1958.