BZAIK v Minister for Immigration

[2015] FCCA 3489

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3489

Catchwords:
MIGRATION – Application for an extension of time within which to commence judicial review proceedings – whether satisfactory explanation for delay in commencing proceedings – whether prospects of success apparent proposed judicial review proceedings – no satisfactory explanation for the delay – no prospects of success proposed judicial review proceedings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65(1)(a)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration v Li (2013) 249 CLR 332
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

Applicant: BZAIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1037 of 2014

Judgment of: Judge Jarrett

Hearing date: 27 April 2015

Date of Last Submission: 27 April 2015

Delivered at: Brisbane

Delivered on: 24 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Mac Giolla Ri (Direct brief)

Solicitor for the First Respondent: Mr Hawker

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance:

ORDERS

1. The name of the second respondent be changed to “Administrative Appeals tribunal”.

2. The amended application for an extension of time filed on 27 April, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1037 of 2014

BZAIK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to commence proceedings for judicial review of a decision of a refugee review tribunal.  By the decision sought to be reviewed, the second respondent affirmed a decision of a delegate of the first respondent to refuse to grant a Protection (class XA) visa to the applicant. 

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Despite orders made on 2 February, 2015 permitting the applicant to file and serve any amended application giving complete particulars of each ground of review relied upon together with any further affidavit evidence upon which he intended to rely, no further documents were filed until the applicant sought leave to file an amended application on the morning of the hearing before me.  I granted that leave.  The amended application changed the grounds of review relied upon by the applicant substantially.  These changes, however, were foreshadowed in his counsel’s written submissions delivered on 17 April, 2015.  The first respondent, quite properly, took no issue with the amended application, having been put on notice of the new grounds that the applicant wishes to agitate.

Background

1. The applicant is a citizen of Sri Lanka, He arrived in Australia as an unauthorised maritime arrival on 1 June, 2012.

2. On 10 September, 2012 the first respondent exercised his power under s.46A(2) of the Migration Act1958 Act to allow the applicant to lodge a Protection (Class XA) visa application.  The applicant lodged such an application on the same day.

3. In a declaration lodged in support of the application the applicant claimed that:

   a)Between 2000 and October 2010, he worked on a casual basis for many employers in Udappu and Ponaputty;

   b)In the 2010 elections he assisted a person from the village in which he was born in an election under the UNP party banner;

   c)During the campaign a local criminal, Munkumar, was arrested and charged with bombing offences;

   d)After Munkumar’s release from jail in February, 2012 he beat the applicant severely and in May, 2012 Munkumar threatened to kill the applicant if he worked with the UNP again; and

   e)The applicant claimed that as a result of those threats he feared for his life and decided to leave the country. He claimed that he had no protection from the police and if he was to return he feared that Munkumar would kill him and he would be arrested, detained, tortured and interrogated due to leaving Sri Lanka illegally.

4. On 16 November, 2012 a delegate of the Minister refused the application for the visa.

5. On 12 December, 2012 the applicant lodged an application for review by a refugee review tribunal. On 26 April, 2013 the applicant was invited to appear before the tribunal to give evidence and present arguments.

6. On 30 May, 2013 a hearing took  place before the constituted tribunal.  The applicant and the applicant’s representative appeared at the hearing.

7. The applicant’s representative provided a post-hearing written submission which the tribunal received on 23 June, 2013. 

8. On 14 May, 2014 the tribunal affirmed the decision not to grant the applicant the visa. 

9. The material before me reveals that prior to reaching its conclusions, the tribunal re-listened to the full audio recording of the hearing from start to finish, reviewed all its file notes of the hearing and considered all the evidence before the tribunal including the submissions.

The tribunal’s decision

1. The tribunal delivered reasons for its decision on 14 May, 2014.  It found that the applicant’s claims in relation to working at the elections for a local candidate in October, 2010 were unreliable and not credible. 

2. The tribunal reached that conclusion based upon some inconsistencies in the applicant’s claims and inconsistencies between his claims and independent information available to the tribunal.  The tribunal also discounted evidence in the form of a letter relied upon by the applicant to support his claims.  The tribunal gave that letter no weight because it was inconsistent with the applicant’s own evidence. 

3. The tribunal found that the applicant never worked for a UNP candidate at local government or regional or municipal council elections in October, 2010 or at any elections in 2010 or at any elections at all.  Given that finding, the tribunal:

   a)found that Munkumar did not exist and the applicant’s claims in relation to being threatened and attacked by him were not credible at all;

   b)did not accept that the applicant had a political affiliation or association with any political party in Sri Lanka or had ever been involved with any political party;

   c)did not accept that the applicant’s mother died from stress or related causes due to threats being made to her from Munkumar or from anyone.

4. On the basis that the applicant had given evidence that he had never been involved or associated with the LTTE in any way, the tribunal did not accept that there was a real chance that the applicant would suffer serious harm for reason of his Tamil ethnicity.  The tribunal further found that the applicant did not have a real or perceived anti­government profile nor had he been imputed with an actual or imputed anti-government or pro LTTE political opinion.

5. In relation to the applicant’s return to Sri Lanka the tribunal:

   a)accepted that returned failed asylum seekers are routinely questioned at the airport.  However, it was not satisfied that this amounted to serious harm for the purposes of the Act.

   b)accepted evidence that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later stage however based on the applicant’s circumstances it did not accept that he would be persecuted for reason of his membership of a particular social group, namely failed Tamil Sri Lankan asylum seekers upon his return;

   c)accepted that the applicant would be in breach of the Immigration and Emigration Act of 1948 (IEA) and would be detained for questioning and security and character checks and would be undertaken;

   d)found that he would be arrested, charged, held on remand and then bailed on an offence under the IEA however considered laws under the IEA to be laws of general application and did not accept that prosecution for beach of the Sri Lankan migration laws amounted to persecution;

   e)considered the circumstances of individuals who are held in prison in Sri Lanka and found that it was not satisfied that the short-term nature of the imprisonment or remand amounted to serious harm;

   f)found that it was likely the applicant would be fined no more than AUD$1,900 and more likely AUD$850 and there was no evidence that the applicant would be unable to pay such fine;

   g)did not accept that the applicant was without any person to provide a surety and considered that he would be bailed in quick time following any arrest.

6. The tribunal considered the complementary protection criteria from paragraphs [184] to [201] of its reasons for decision and found that it was not satisfied that he had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk that he would suffer significant harm in the form of being arbitrarily deprived of his life, having the death penalty carried out, being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

7. Accordingly, the tribunal was not satisfied that the criteria in ss.36(2)(a) or 36(2)(aa) of the Act had been satisfied and the decision under review was affirmed.

Extension of time

1. An application to this Court for judicial review of a decision of a refugee review tribunal must be made must be made within 35 days of the date of the decision sought to be reviewed.  That time might be extended by the Court if the Court concludes that it is necessary in the interests of the administration of justice to do so.

2. The factors ordinarily seen as relevant to an exercise of the discretion to extend time are:

   a)the length of the delay in commencing the application;

   b)the reasons for the delay;

   c)the prejudice to the respondent if the application is granted;

   d)the merits of the underlying claim sought to be advanced; and

   e)consideration of fairness as between the applicant and other persons in a like position.

3. The application for judicial review here was filed on 21 November, 2014.  The application was filed 156 days outside of the time period set by s.477(1) of the Act.  It is a lengthy delay.  The application for judicial review is incompetent unless the Court grants an extension of time.

4. The applicant has indicated in his application that an extension of time is required as:

   I have not worked nor did I receive any financial assistance for the past six months which made it difficult for me to get any help.

   I am not assisted by any lawyer at present and my English proficiency is poor, hence, I had difficulties with getting assistance to file this case. Please accept my application.

5. The applicant has provided no satisfactory explanation for his delay.  Many applicants in these types of cases are unable to work, have poor English language skills and have no financial resources.  Many have no legal representation.  However, a great many are able to file an application for judicial review within the time limited for that purpose by the Act.  In fact, the applicant commenced these proceedings in the very circumstances described by him as the explanation for not commencing the proceedings within time.  He does not explain the effect upon his ability to commence these proceedings within time, of the matters to which he points by way of explanation for his delay.  Such evidence is necessary given that he was able to commence these proceedings despite all of those matters, albeit not within the time limited by the Act for that purpose.  It is also important to note that the applicant was represented in his proceedings before the tribunal.

6. I accept the first respondent submissions that the  applicant has failed to provide any satisfactory reasons for the delay in commencing these proceedings.

7. The first respondent does not suggest that there would be any prejudice to him should the requested extension be granted.

8. I turn to the merits of the underlying application for judicial review.

9. In his application filed on 21 November, 2014 the applicant specifies the following grounds of review:

   1.  That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.  I have not been afforded procedural fairness and denied natural justice.

   3.  The decision maker failed to take into consideration the cultural differences in making his determination.

10. The grounds raised in that application lack content.  I accept the first respondent’s submission that the grounds are no more than a ‘pro forma’ application for judicial review and do not give any real indication of the error that the applicant will seek to establish in the proceedings.

11. However, at the hearing before me, the applicant sought and was granted, leave to file an amended application.  By that amended application he abandoned all of the grounds in his original application and instead, proposed to pursue the following ground should he be granted the requisite extension:

    1. The decision is invalid because of jurisdictional error on the basis that the finding was the applicant had no well-founded fear of persecution on the basis of political opinion was unreasonable, in that it was illogical and irrational.

12. The applicant relies on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

13. However, for the reasons that follow, the applicant’s reliance upon that decision and the principles that flow therefrom does not assist him.

14. As the first respondent points out, the ground of unreasonableness only applies with respect to decisions involving the exercise of a discretion.  In Minister for immigration v Li (2013) 249 CLR 332 at [22] French CJ said:

    22.    The question of the “unreasonableness” of the MRT’s decision not to adjourn the review was agitated, independently of the question of its asserted failure to accord procedural fairness to the first respondent.  This aspect of the case raises the question whether the decision of the MRT was unreasonable in the sense used by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that is to say so unreasonable that no reasonable tribunal could have made it.  In approaching that question it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion.  The distinction was made by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS when, referring to so-called “Wednesbury unreasonableness” their Honours said:

    “The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts.  Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.”  (footnotes omitted)

    (footnotes omitted)

15. McKerracher J noted the distinction between the principles relating to unreasonableness in decision making on the one hand, and illogicality or irrationality in fact finding on the other, in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 as follows:

    83.    The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the  extent to which the process of fact finding might be regarded as unreasonable.  As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.

16. What the applicant’s submissions reveals is an attack upon the fact-finding undertaken by the tribunal.  The applicant suggests that the tribunal’s finding that he had not participated in elections as he had claimed, and the consequential dismissal by the tribunal of his claims about the criminal were not logical or rational.

17. The tribunal’s decision involved no exercise of discretion. Upon the first respondent’s delegate being satisfied of the matters of which satisfaction was required for the purposes of s.65(1)(a) of the Act, he was to grant the visa. The event that the first respondent’s delegate was not so satisfied the visa was to be refused. No question of the exercise of a discretion could, or did, arise.

18. The fact-finding process in this particular case occurred for the purposes of determining whether the criteria in ss.36(2)(a) or 36(2)(aa) were satisfied. As the first respondent submits, this involved the tribunal considering whether it was satisfied as to the existence of relevant facts necessary to conclude that Australia had protection obligations towards the applicant. The tribunal’s determination of intra-murial facts, the jurisdictional facts of “satisfaction” of the matters requiring satisfaction in ss.36(2)(a), 36(2)(aa) and s.65(1)(a) of the Act and the decision to refuse to grant the visa involved no exercise of discretion. As the first respondent submits, the ground of review known as “unreasonableness” has no application.

19. Accordingly, to the extent that the applicant seeks to rely upon legal unreasonableness to vitiate the tribunal’s decision, the ground specified by the applicant in his amended application for judicial review does not reveal any jurisdictional error.

20. To the extent that the applicant seeks to attack the fact-finding undertaken by the tribunal on the basis that it was irrational or logical, the applicant’s claims are also bound to fail.

21. The applicant acknowledges that the tribunal did not accept that he had taken part in any political activity in Sri Lanka.  He accepts that the tribunal’s rejection of his claims were based, almost entirely, on a finding that no election of any kind had taken place in October, 2010 and no local election, the type of election suggested by the applicant, took place in the calendar year 2010.

22. However, the applicant is critical of the way in which the tribunal has reached these conclusions having regard to his evidence.  As counsel for the applicant pointed out in his written submissions, the applicant’s evidence about when the election had on which he had worked had taken place varied:

    a)“In the 2010 elections ...”, in his ‘Declaration’, dated 10 September 2012;

    b)“In 2010”, in his advisor’s written submissions to the first respondent’s delegate;

    c)“About two years ago”, in his entry interview;

    d)“October 2010”, in answer to a question by the tribunal member;

    e)“They happened in 2010” in answer to the tribunal member asking for the date of the election;

    f)“Not in August 2010 but in October 2010”;

    g)“All he could remember was that he was helping in the campaign at the elections in 2010.”

23. Counsel for the applicant also pointed out that the hearing before the tribunal was the first time the applicant suggested that the election was in October, 2010 rather than simply in 2010.  I accept that submission.

1. When asked about the type of election at which he had assisted, the applicant, variously, said:

   a)“It was for a candidate contesting the Puttalam district”;

   b)they were “elections for parliament done nationally”

   1.   ;

    

   ;

   c)they were not presidential elections;

   d)they were local government or local elections;

   e)they were regional elections;

   f)they were regional council elections;

   g)they were local government elections or regional council elections;

   h)“All he could remember was that he was helping in the campaign at the elections in 2010.”

2. The applicant emphasises that until the tribunal hearing the applicant had never asserted that the elections had taken place in a particular month or that the elections were “local” elections. It was submitted that the questions about whether the election was “local” were asked by the tribunal in the context of whether the elections had been Presidential.  It was only when the tribunal member asked “leading questions” that the applicant agreed that the elections were local government or local elections.  But the tribunal’s reasons do not bear that out.  Certainly it is the case that the tribunal sought to confirm the nature of the elections with the applicant, but he seems to have suggested that the elections were regional of his own accord.

3. The independent information before the tribunal demonstrated that a “presidential election” was held in January, 2010 and “parliamentary elections” were held in April, 2010.  The tribunal put that information to the applicant.  But the applicant insisted that the only elections he could remember occurred in October, 2010 and were regional council elections.  He then stated that all he remembered was that he was helping in the campaign at the elections in 2010.

4. The tribunal identified a number of other inconsistencies in the applicant’s evidence to the tribunal and his evidence in his interview with the first respondent’s delegate.  It put those in consistencies to the applicant for his comment during the hearing.

5. Following the hearing, the applicant’s advisor made a post-hearing submission concerning the timing of the elections at which the applicant claims to have assisted.  The tribunal records those submissions as follows:

   116. She made submissions that the applicant was not able to provide the date and description of his political involvement in the 2010 election, and that the tribunal had raised this as an issue regarding the applicant’s credibility. She stated that the applicant was referring to an election in the 10^th Month of 2010. She stated that the applicant stated that he might have lost his memory and was not able to provide the correct date of the election.  She submitted that in her view there is also the possibility that he might have been confused in converting the date from the Tamil calendar to English.

6. The applicant asks me to infer that a “general election” is a “local election” when compared with a “presidential election”, in the sense that only national candidates stand in Presidential elections whereas candidates stand to be local members at general elections.  But when asking me to draw that inference, the applicant does not suggest that the inference that was drawn by the tribunal, based upon the direct evidence of the applicant, should be discounted on the basis that the inference was not open to the tribunal on the facts proved to its satisfaction.

7. The applicant argues that the only rational inference that could be drawn from the applicant’s comments about the nature of the elections at which he was helping was that he was assisting at national parliamentary elections, i.e. where a local candidate is elected to a national parliament.  But that is not the only inference that is open having regard to the applicant’s evidence.  The applicant was insistent on the timing and the nature of the elections even after the tribunal put to him the independent information that it had about the elections in Sri Lanka in 2010.  The tribunal discusses this aspect of the matter in paragraphs [148] – [150] its reasons for decision. 

8. Moreover, there is no suggestion in the tribunal’s reasons that the applicant had difficulty in identifying the month of the elections as October.  There is no suggestion that he identified the timing of the elections by reference to a Tamil calendar rather than an English calendar.  The only suggestion comes from his representative’s post hearing submission which, according to its own terms, is speculation.  The tribunal dealt with this matter explicitly at paragraph [150] and [153] of its reasons for decision.

9. Because the tribunal was not satisfied that the applicant had assisted at any elections as he claimed, the tribunal decided that it followed that Munkumar did not exist and had been fabricated by the applicant.  The applicant argues:

   14.    The nature and timing of the relevant election was central to the Member’s decision. In fact, the Member did not feel it necessary to consider other issues once he had reached the conclusion that no local election had taken place in Sri Lanka in 2010.

10. And so it was.  The tribunal said:

    146. Having considered all the evidence before it, the tribunal does not find credible at all the applicant’s claims that he ever worked for a UNP candidate in Ponapitty or that there was a criminal named Munkumar who was involved in any bombing during or after the elections in 2010 or that Munkumar was arrested and jailed only to be released in February 2012 or that he inflicted serious harm on the applicant and threatened the applicant in February 2012 and May 2012 for reason of the applicant’s work for a UNP candidate and the applicant’s work for the UNP party.

    156. Having considered the adviser’s submissions, it considers the applicant’s responses to the elections that he attended and the dates that he attended as critical to his entire claims about the existence of a criminal called Munkumar and the applicant’s claimed participation in politics for a three week period in his home area. The tribunal has already found that the applicant has not been a credible witness in this regard…

    157. The tribunal notes that mere inconsistencies had been raised with the applicant about what he had said at the department interview and what he had said at the hearing, noting that most inconsistencies that were raised arose from the delegate’s decision record provided by the applicant to the tribunal. However, as reasoned above, the tribunal has made its findings of fact of the applicant not having attended any elections in October 2010 (the one and only elections claimed by him to having participated at), based solely on his oral and written evidence along with country information which did not support his claims, and that having made a finding in this way, concluding that the applicant could not have met up with a criminal called Munkumar at the time of those elections and also concluding that all other claims relating to Munkumar could not have been credible. Having made a definitive finding in this regard, the tribunal has no need to make any findings on perceived inconsistences.

11. The applicant argues that the rejection of the applicant’s claims on the basis of the reasons given by the tribunal was an unreasonable decision because:

    a)until asked leading questions, the applicant’s evidence had only ever suggested that he had worked on a national parliamentary election;

    b)there was a national parliamentary election in 2010, on the material, either in April or August 2010;

    c)the tribunal had evidence before it of a difference between the calendar the applicant habitually used and the “English” calendar;

    d)the applicant’s representative submitted that the applicant had asserted that the election was in the “10th month of 2010” and the tribunal member did not contradict this but failed to address its significance;

    e)logically, it is not possible for a person who does not speak English to raise problems with translations, nor is there any evidence that the applicant was aware of differences between the calendars about which a similar submission can be made;

    f)the tribunal had no evidence before it about the Tamil calendar;

    g)even if there were no calendar difficulties, the Member’s drastic findings are not open given that the discrepancy in the applicant’s memory from the known facts was merely (assuming a general election) either 2 months or 6 months.

12. However, the tribunal was entitled to conclude that the applicant had given inconsistent evidence and made inconsistent claims about his participation in the elections in 2010.  Indeed he had.  Upon the tribunal concluding that it could not accept the applicant’s claims about those matters, it was open to the tribunal to conclude that it could not accept his claims about the involvement of the criminal, Munkumar, as well.  The claims were woven with each other.  The applicant’s meeting and interactions with Munkumar were as a result of his claimed involvement in the election.  Once the tribunal did not accept that the applicant had participated in the elections as it did, the rest of his claims about Munkumar stood unsupported by the claims about how he came into contact with him. 

13. Whilst others might have formed different conclusions about the facts than this particular tribunal did, that is not point.  The tribunal’s reasons set out its chain of reasoning which led to conclusions about the facts.  Having regard to those reasons, there is nothing which is illogical or irrational.

14. To the extent that the applicant’s proposed ground of review seeks to attack the tribunal’s findings of fact concerning his involvement in an election in 2010 or the existence of Munkumar, as illogical or irrational, his application cannot succeed.

Conclusion

1. The applicant’s application to extend time within which to commence judicial review applicant proceedings must be dismissed. The applicant has offered no satisfactory explanation for his delay in commencement of the proceedings and, for the reasons I have set out above, I am of the view that he has no prospects of success on his proposed application.  To grant an extension of time within which to bring the proceedings in those circumstances, would be futile.

2. The amended application, filed by leave on 27 April, 2015, must be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2015.

Deputy Associate: 

Date: 24 December 2015