BVW17 v Minister for Immigration

[2017] FCCA 1739

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVW17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1739

MIGRATION – Decision by Immigration Assessment Authority.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 477

Case cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34 Singh v Minister for Immigration and Citizenship [2013] FCA 813 SNSYE v Minister for immigration and Citizenship [2010] FCA 500 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant:

BVW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1441 of 2017

Judgment of: Judge Emmett

Hearing date: 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Sydney

Delivered on: 26 July 2017

REPRESENTATION

Applicant appeared via video link from Christmas Island with an Arabic interpreter.

Solicitor for the Respondents: Louise Buchanan
(Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1441 of 2017

BVW17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review was filed some 13 days after the decision of the Immigration Assessment Authority (“the IAA”) dated 22 March 2017. The IAA affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant’s application for a protection visa, having been an application for a Safe Haven Enterprise Visa (SHEV).

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate 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)  In this section:

‘date of the migration decision’ means:

(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

….

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

1. Pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.

2. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 34); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the proposed appeal (see SNSYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).

3. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] per Lindgren J; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] per Lee, Nicholson and Finkelstein JJ).

4. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J).

5. In the applicant’s application for judicial review, filed 10 May 2017, the applicant identified the grounds of his application for an extension of time as follows:

   “1. I do not have legal representation or anyone to assist me.

   2. I did not have legal assistance to submit my application for the Protection claims.

   3. I am waiting for documents to arrive from my country of nationality of further facts.

   4. I am in offshore Immigration detention.”

6. The applicant was unrepresented this morning, although had the assistance of an Arabic interpreter.  His application for an extension of time was opposed by the first respondent. 

7. I explained to the applicant that of particular relevance to the Court would be the explanation for his delay in seeking judicial review and the prospects of success of his application for judicial review of the IAA’s decision.

8. I also explained to the applicant that he had 35 days in which to seek review of the decision of the IAA and that his application for  judicial review had been filed 13 days out of time.

9. I invited the applicant to say whatever he wished in support of his application for an extension of time.

10. The applicant’s explanation for his delay as disclosed in his initiating application was interpreted for the applicant and he confirmed those reasons.

11. The applicant was then sworn in to confirm his evidence for his explanation for delay given that he had failed to file any evidence in support in accordance with Orders made by a Registrar of this Court on 25 May 2017. The explanation given by the applicant under oath was that the delay was not because of him but because of “you”. The applicant said after he had made a complaint to the Ombudsman and the case manager, he was given all papers and then he lodged his application for judicial review.

12. In cross-examination, the applicant agreed that he had been handed a copy of the decision of the IAA on 23 March 2017 at 12:00pm by a CIRCO officer.

13. In the circumstances, the applicant’s explanation for his delay is wholly unsatisfactory.

14. The first respondent, in written submissions, accurately summarised the background of the applicants’ claims and the Tribunal’s decision, as follows:

    “PART II BACKGROUND

    3. The applicant is a citizen of Lebanon who first arrived in Australia in December 2005 the holder of a short stay sponsored family visitor visa: Applicant at Court Book (CB) 1 and movement record at CB 262. He departed in March 2006. In 2007 he applied offshore for a temporary business visa which was refused in 2008: CB 10-20. In 2012, he applied for another sponsored family visitor visa, but this was refused in October 2012: CB 21. The applicant again arrived in Australia at Christmas Island on 14 December 2012: Entry interview at CB 22-44, Question 47 on application at CB 143. The applicant has remained in immigration detention since 2012.

    4. On 30 September 2015, the applicant lodged an application for a Safe Haven Enterprise Subclass 790 visa (“SHEV”). The applicant later withdrew this application and lodged a further application for a SHEV on 21 June 2016: CB 123-194. It is a decision in respect of the 21 June 2016 application that is the subject of the present application.

    5. The applicant claimed in his entry interview that he left Lebanon because he was being chased by Syrian intelligence and that he also feared Hezbollah. He claimed he had previously lived in Sweden from 2002-2005: CB 37-40.

    6. In his SHEV, the applicant claimed that from 2007 he was a military intelligence informant to the Lebanese Armed Forces and that he provided the army information relating to terrorist groups operating in Tripoli. He claimed to fear being killed by various groups and individuals in Tripoli because of his role as an informer to the LAF and because he had refused to join those groups and he might be forced to join them. He also claimed that because of the release of his personal details on the website of the Department of Immigration and Border Protection (Department) in February 2014 Hezbollah and other extremist groups ‘will know’: CB 178-181, 208-222. He attended an interview with a delegate of the Department on 27 June 2016 in relation to his application: CB 195, 271.

    7. On 14 February 2017, a delegate of the Minister refused to grant the applicant a protection visa: CB 266-299.

    8. On 23 February 2017, the delegate’s decision, being a fast track reviewable decision as defined in s 473BB of the Act, was referred to the IAA for review under Part 7AA of the Act: CB 300. The applicant was notified of the referral on the same day: CB 307-319.

    9. The IAA made a number of post referral requests for documents to the Department, to which the Department responded: CB 305-6, 320-343, 344-350.

    PART III TRIBUNAL DECISION

    10. On 22 March 2017, the IAA affirmed the delegate’s decision: CB 351-373. A copy of the decision was handed to the applicant on 23 March 2017: CB 374-5.

    11. The IAA accepted that the applicant was a national of Lebanon who arrived in Australia undocumented by boat on 14 December 2012: CB 356.

    12. In relation to the applicant’s claims to fear harm in Lebanon, the IAA found, in summary, that:

    12.1. The applicant had provided very little detail about the personal circumstances in which the threats and harm he claimed to face arose, even when pressed for details. Rather, the details provided by the applicant concerned the broader situation in Tripoli, the political and historical background to the conflict, and did not relate specifically to the applicant’s situation. The IAA found that many of the applicant’s key claims are not plausible: CB 357-8.

    12.2. The IAA did not accept that the applicant acted as an informant for the LAF, including due to the inconsistent claims made at his entry interview compared with his later claims in relation to his reasons for leaving Lebanon, and for four specific reasons. The IAA found it was not plausible the applicant could infiltrate various different groups, including due to his claims about his family’s history; the information said to have been provided to the LAF was general and would not have endangered his life; the applicant did not explain how the groups became aware he had passed information to the LAF and, given country information, had the groups become aware that the applicant had passed information to the LAF, he would have been harmed: CB 361-2.

    12.3. The IAA did not accept the applicant’s claimed fear of specific harm from Hezbollah. The IAA did not accept the applicant’s evidence about specific issues with Hezbollah or people said to be linked to it, including any issues arising from a relative in Australia: CB 361-2.

    12.4. The IAA did not accept that the circumstances of the applicant’s brothers’ deaths reflect a risk of harm to the applicant: CB 362-3.

    12.5. The IAA considered the general security situation in Tripoli. In light of country information indicating an improved security situation and the applicant’s own evidence that he would not engage in fighting upon return and where he lived, the IAA did not accept he would face a real chance of harm from generalised violence. The IAA considered country information and found that the security situation in Tripoli had changed significantly since the applicant left, with a negotiated ceasefire having been entered into in 2014. The IAA found that while the applicant had lived in an area beset by sectarian and political violence, it was not satisfied that the applicant himself had ever been targeted or harmed as claimed or that he faces such harm in future: CB 362-364.

    12.6. The IAA did not accept that the applicant had provided any credible information to support his assertion that he faced a risk of recruitment from Sunni militia groups and rejected that claim: CB 364.

    12.7. The IAA found that no details of the applicant’s protection claims were released as part of the data breach. The IAA also noted that the applicant had not made clear how he thinks accessing the information disclosed might increase the risk of the harm he claimed to fear. As the IAA had found that the applicant was not at risk of harm from any group before leaving Lebanon and in light of country information considered by the delegate indicating that Lebanon has a long history of migration and return and seeking asylum is not a crime, the IAA found that there is no evidence to suggest that access to the information released or anyone suspecting the applicant to have sought asylum overseas would lead to a real chance of harm: CB 364.

    12.8. The IAA also noted that there is information in the delegate’s decision and the referred material relating to character and security concerns about the applicant. While the IAA accepted the applicant had been in prison in Lebanon for the reasons given at his SHEV interview, the IAA found the applicant had not raised any concerns to fear harm arising from this. The IAA disregarded the other material provided to it regarding the applicant, including for the purposes of assessing credibility: CB 365.

    13. The IAA then made findings rejecting any fear of persecution or risk of significant harm arising from these claims.”

15. In relation to the applicant’s grounds for review in his substantive application, the applicant confirmed he relied on grounds identified in that application.

16. Those grounds are as follows:

    “1. The Purported Decision or the Minister from Immigration and Border Protection (Respondent) and His Department (IAA) on 22 March 2017 is legally unreasonable in that it is vitiated by Judicial Error and has denied me Procedural Fairness.

    2. The Immigration Assessment Authority (IAA) Ignored relevant information.

    3. The Immigration Assessment Authority (IAA) came to the wrong conclusion based on the factual evidence before him/her.

    4. I believe the Immigration Assessment Authority (IAA) misunderstood my circumstances and the real harm I will suffer if I am returned to my country of nationality.

    5. There was no International Treaties Obligation Assessment (ITOA) for the discloser of my personal and private information on February 20 14, now known as the “DATA BREACH”.”

    (Errors in Original)

17. Each of the grounds of the applicant’s application for judicial review was interpreted for the applicant, and the applicant was invited to say whatever he wished in support of those grounds.

Ground 1

1. Ground 1 asserts that the IAA’s decision is legally unreasonable and that he was denied procedural fairness. I asked the applicant in what way the decision was legally unreasonable. The applicant responded that he had not been given a chance to lodge documents in time and therefore been denied procedural fairness. He said he had not an opportunity to elaborate on his claims and that members of his family had been killed in explosions, that his mother had a stroke and he had a stroke on Christmas Island.

2. The bundle of Relevant Documents tendered and marked Exhibit 1R made clear that the applicant had lodged a large amount of material in support of his application for protection, including claims relating to alleged violence suffered by himself and members of his family at the hands of Hezbollah and Sunni extremists. The applicant was assisted in his protection visa application by a migration agent. Further, the IAA’s decision record makes clear that the IAA gave careful considerations to all his claims.

3. The applicant’s complaint in Ground 1 misconceives the role that the IAA was required to undertake. The IAA was tasked with assessing the applicant’s risk of harm in the reasonably foreseeable future if he was removed back to Lebanon.

4. The IAA’s conclusions that the applicant did not face a real chance of serious harm, or a real risk of significant harm for the reasons given, appeared to be open to it on the evidence and material before it and for the reasons it gave. The IAA identified with particularity the concerns it had about the applicant’s evidence in relation to various internal inconsistencies, contradictions and implausibilities that it found to exist in the applicant’s evidence.

5. The IAA also identified country information that it found indicated that the security situation in Tripoli generally had improved, and particularly in Bab al–Tebbaneh and Jabal Mohsen. It is well established that the country information to which a decision-maker had regard and the weight it gives that information is a matter for the decision maker (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

6. Unreasonableness is where a decision-maker has come to a conclusion that is so unreasonable that no reasonable decision-maker could come to it, or where a decision has been made that lacks an “evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at 234).

7. As stated above, a fair reading of the IAA’s decision record makes clear that the findings it made and the conclusions it reached were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. It is well established that credibility finding is a matter par excellence for a decision maker (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

1. Otherwise, the applicant’s complaint in Ground 1 appears more to be a disagreement with the findings and conclusion of the IAA, thereby inviting merits review this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

2. Accordingly, Ground 1 would appear to have no prospects of success

Ground 2

1. Ground 2 asserts that the IAA “ignored relevant information”. I asked the applicant what was the relevant information that IAA ignored. The applicant responded that he was a member of the military and all his papers should be certified by the army and defence in Lebanon and that this information would say what happened to him in the army, what happened to his brothers and his work.

2. However, the applicant confirmed that these are documents and material that was not provided to the IAA in support of his claims. In the circumstances, it was not information that the IAA ignored because it was information that was ever before it.

3. Accordingly, Ground 2 appears to have no prospects of success.

Ground 3

1. Ground 3 asserted that IAA “came to the wrong conclusion based on the factual evidence”. In support of Ground 3, the applicant repeated submissions he made in support of Ground 2 and said that he belonged to the military and his papers in Lebanon would endorse that.

2. The IAA’s decision record makes clear that the IAA understood the applicant’s claims and explored those claims with him at a hearing. The IAA put to the applicant concerns it had about his evidence and noted his responses. The IAA made findings that appeared to be open to it on the evidence and material before it and for the reasons it gave. The IAA identified country information about the improvement of the security situation in Tripoli. Ultimately, the IAA concluded that the applicant did not meet the Refugee criterion in s.36(a) or the complementary protection criterion in s.36(aa) of the Act. As stated above, those findings and conclusions would appear to be open to the IAA on the evidence and material before it and for the reasons it gave.

3. In the circumstances, Ground 3 appears to have no prospect of success.

Ground 4

1. Ground 4 asserts that IAA misunderstood the applicant’s circumstances and the real harm he would suffer if he returns to Lebanon.

2. In support, the applicant repeated some of his protection claims. The applicant did not identify any particular misunderstanding on the part of the IAA and none is apparent on the face of the IAA’s decision record.

3. In the circumstances, Ground 3 does no more than challenge the IAA’s findings and conclusions, thereby again seeking merits review which this Court cannot undertake.

4. Accordingly, Ground 4 appears to have no prospects of success.

Ground 5

1. Ground 5 asserts that the applicant was not given an International Treaties Obligation Assessment (“the ITOA”) for disclosure of his personal and private information in February 2014, now known as “data breach”.

2. There is no right or entitlement to an ITOA. The IAA found that there was no information relating to the content of the applicant’s protection claim that was released as a result of the data breach.

3. In any event, the IAA rejected the applicant’s claim to be at a risk of harm from any militia group of any political or sectarian persuasion, including from Hezbollah. The IAA found that there was no credible or plausible explanation that any of those groups would have been concerned about the applicant’s application for asylum,

4. The IAA also referred to the fact that country information considered by the Delegate indicated that Lebanon had a long history of migration and return and seeking asylum is not a crime.

5. The IAA concluded that the applicant was not at the risk of harm from any group by his departure and that there was no evidence to suggest that any information available due to the data breach, or the fact that he may have been known or suspected of seeking asylum overseas, would result in a real chance of harm upon his return.

6. Those findings and conclusions would appear to be open to the IAA on the evidence and material before it and for the reasons it gave.

7. Accordingly, Ground 5 appears to have no prospects of success.

Conclusion

1. Whilst I make no final finding as to whether or not the IAA’s decision is affected by jurisdiction error, none is apparent on the face of the IAA’s decision record, and none has been identified by the applicant this morning.

2. In the circumstances, I am satisfied that the applicant’s substantive application for judicial review of the IAA’s decision has insufficient prospects of success such that it would be in the interests of justice to extend time to the applicant. 

3. I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the IAA’s decision. However, there is a significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491).

4. In balancing the interests of both parties and the overall interests of justice, in light of the unsatisfactory explanation for the applicant’s delay and that the applicant’s application for judicial review of the IAA’s decision appears to have no prospects of success, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

5. Accordingly the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 26 July 2017