BZY16 v Minister for Immigration and Anor (No.2)

[2017] FCCA 2392

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZY16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2392

Catchwords:

MIGRATION – Application to extend time for applying for judicial review of decision by Administrative Appeals Tribunal affirming decision not to grant Protection visa – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A, 417, 476, 477(1), 477(2)

Cases cited:

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

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

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
SZMYU v Minister for Immigration and Border Protection [2017] FCCA 357
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: BZY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1991 of 2016

Judgment of: Judge Manousaridis

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the  First Respondent: Ms C Hillary of DLA Piper Australia

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1991 of 2016

BZY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 23 December 2015, but the applicant did not file his application with this Court until 26 July 2016.

2. I will first set out the principles relevant in determining this application for an extension of time.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such an order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

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

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

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

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

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

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

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

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

Explanation for delay

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

   Ground for Application for Extension of Time:

   1. The applicant has had no legal representation.

   2. Extension of time would not amount to excessive delay and would be readily explainable.

   3. Should extension be granted there will be no prejudice to third party including the respondents.

   4. In all circumstances it would be just and fair that time for filing be extended.

2. At the hearing the applicant, who is not legally represented, informed me that at the time the Tribunal made its decision, the applicant did not have a lawyer, and everything went through the office of a “Ms Kirwin”, but that office had closed down. That contention appears to be incorrect, because the applicant appears to have been represented by a migration agent. The letter by which the Tribunal gave notice to the applicant of its decision is addressed to Ms Clayton of Diverse Immigration Australia.[6] Even if the applicant’s contention were correct, that would not constitute a reasonable explanation for the delay. Nor would the applicant’s not being represented by a lawyer constitute a reasonable explanation.

   [6] CB393

3. In any event, I would give little weight to the applicant’s explanation if I were otherwise satisfied the grounds on which the applicant would rely if an order were made under s.477(2) of the Act were reasonably arguable.

Merits of application

1. Before I consider the merits of the grounds stated in the application, it will be useful to set out some background to the applicant’s claims for protection, the claims for protection the applicant made, and the Tribunal’s reasons for not accepting those claims.

Background

1. The applicant is a citizen of Fiji. He served in the Fijian army until 17 May 2009.[7]

   [7] Reasons for decision, [2]

2. On 13 March 2010 the applicant entered Australia as the holder of a Tourist visa. On 11 June 2010 he applied for a Protection visa (First Protection Application). A delegate of the Minister refused the First Protection Application, and the applicant applied for review to the Refugee Review Tribunal (RRT). On 3 November 2010 the RRT affirmed the delegate’s decision not to grant the applicant a Protection visa. The applicant applied for Ministerial intervention pursuant to s.417 of the Act, but the Minister declined to exercise his non-binding powers in this matter.

3. On 6 September 2013 the applicant again applied for a Protection visa (Second Protection Application).[8] He was able to do that, notwithstanding s.48A of the Act, because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[9]

   [8] Reasons for decision, [1]-[6]

   [9] [2013] FCAFC 71

Claims for protection

1. The applicant stated his claims for protection on a number of occasions: in the First Protection Application;[10] before the delegate on the First Protection Application on 2 September 2010;[11] before the RRT;[12] in a statement dated 6 September 2013 that formed part of the Second Protection Application;[13] and in a statutory declaration made by the applicant on 9 October 2014 (Statutory Declaration).[14]  

   [10] Reasons for decision, [13]

   [11] Reasons for decision, [14]

   [12] Reasons for decision, [15]-[42]

   [13] Reasons for decision, [43]

   [14] Reasons for decision, [44]-[46]

2. In the First Protection Application the applicant claimed he had been threatened and “used” over a period of time after he voiced his opinion to his senior officer about his reservations concerning the military government. The senior officer reported the applicant to a higher-ranking officer. This resulted in the military looking down upon the applicant and mistreating him. He claimed he feared that if he were to return to Fiji he would be court-martialled and sent to prison.[15]

   [15] Reasons for decision, [13]

3. Before the RRT the applicant claimed to have become a member of the Fijian Democracy Freedom Movement (FDFM) in Australia on 2 October 2010. The applicant supported that claim with a statement from the FDFM that stated Fijians who have joined the FDFM wish the restoration of democracy and human rights in Fiji and, and these Fijians face a strong possibility of being persecuted if they were forced to return to Fiji.[16] The applicant also claimed that as a platoon sergeant, he was ordered to arrest civilians and to “perform certain activities which he found reprehensible.” The applicant claimed he took issue with the nature of his duties, which led him to express an opinion in favour of a democratic government in the lead up to the military coup.[17]

   [16] Reasons for decision, [20]

   [17] Reasons for decision, [17]

4. In the Statutory Declaration, the applicant presented what the Tribunal described as “radically new claims, not hitherto presented in any form”.[18] The applicant claimed he was an associate of a number of prominent pro-democracy advocates in Fiji and Australia and that he would face persecution because he was associated with them. The applicant claimed he was close to Mr SD, a person to whom the applicant was close while serving in the Fijian army, who later sought asylum in Australia and who had become an FDFM leader.[19]  The applicant also claimed he became close to a soldier, Mr JD, and that the applicant witnessed Mr JD being arrested and taken away in 2002. In the words of the Tribunal, the applicant “claimed to have such unique and significant knowledge of these events that he faces serious harm at the hands of the military in the event of return to Fiji”.[20]

   [18] Reasons for decision, [44]

   [19] Reasons for decision, [44]

   [20] Reasons for decision, [45]

Tribunal’s decision

1. The Tribunal found the applicant’s claims about the arrest of Mr JD to be “problematic”, and that the applicant “invented the claim about witnessing” Mr JD’s arrest in 2002.[21] The Tribunal found the applicant had not provided a credible reason for not having previously raised his claim in relation to Mr JD, and that this claim was inconsistent with the applicant’s having claimed over time that his problems in Fiji had not started until 2006.[22] The Tribunal was not satisfied the authorities in Fiji ever regarded the applicant as a person who had information against them that the applicant should be discouraged from sharing.[23]

   [21] Reasons for decision, [64]

   [22] Reasons for decision, [64]

   [23] Reasons for decision, [64]

2. The Tribunal was also not satisfied the applicant had any potentially significant links with any other alleged dissidents, including Mr SD. The Tribunal was confident the applicant exaggerated his familiarity with these names. The Tribunal gave no weight to the applicant’s attendance at meetings at which the dissidents were present.[24] The Tribunal was not satisfied the applicant was ever put under pressure to repress the civilian population in Fiji, or that he ever came under conflict with the military in the wake of the coup. The Tribunal relied on the applicant’s family not being harassed.[25]

   [24] Reasons for decision, [65]

   [25] Reasons for decision, [66]

3. The Tribunal gave weight to Fiji’s return to constitutional democracy and to independent evidence that FDFM members have not been harassed by members of the former regime upon their return to Fiji. The Tribunal did not find helpful material the applicant had submitted about Mr Frank Bainimarama’s concerns about high-profile dissidents in Australia because the material submitted by the applicant related to individuals in leadership positions who had been accused of publicly advocating sedition or a coup against the now-elected government, which was not relevant to the applicant’s claims. The Tribunal was not satisfied this affected the applicant’s “protection prospects in Fiji” in any way.[26] The Tribunal also gave little weight to the applicant’s having joined the FDFM in Australia. It gave more weight to the applicant’s not having spoken publicly on pro-democracy issues.

   [26] Reasons for decision, [67]

4. The Tribunal, therefore, was not satisfied the applicant satisfied the criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act as it applied to the applicant.

Grounds of application

1. The grounds of application comprise 31 paragraphs. None of the paragraphs refers to the Tribunal’s decision. Under the heading “Grounds of application” there is a statement given in the name of the applicant. The first paragraph states the applicant is “seeking political asylum in Australia”. The remaining paragraphs contain assertions of fact and submissions in support of a claim for asylum. The matters asserted in the statement do not reflect the claims the applicant made before the Tribunal or the RRT. They disclose no arguable case of jurisdictional error by the Tribunal.

2. The applicant also relies on an affidavit he filed with his application, which annexes the Tribunal’s decision but does not address it. Rather it asserts matters on the basis of which the applicant claims protection. The matters stated in the affidavit also disclose no arguable case of jurisdictional error

3. There is one matter that I should note. The Tribunal considered the applicant’s claims both against the criterion specified by s.36(2)(a) of the Act and s.36(2)(aa) of the Act. The Tribunal did not have jurisdiction to assess the applicant’s claim against s.36(2)(a).[27] This does not give rise to any arguable case of jurisdictional error by the Tribunal. In that regard, I refer and adopt what Judge Smith said in SZMYU v Minister for Immigration and Border Protection:[28]

   It may have been an error for the Tribunal to consider the refugee criterion; however, in order to establish that that error amounts to jurisdictional error sufficient to justify an order setting aside the decision of the Tribunal, it must be shown that the error affected the Tribunal’s exercise of its duty. That has not been shown in this case and the ground must be rejected.

   Alternatively, even if consideration of the refugee criterion did amount to jurisdictional error, given the Tribunal’s conclusion in respect of the complementary protection criterion, there was only one decision available to it; namely, to affirm the decision of the delegate. For that reason, any relief ought to be refused on a discretionary basis: see for example SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA26; Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202;  Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.

   [27] Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

   [28] [2017] FCCA 357 at [16] and [17]

Other matters

1. A final matter to note concerns the Court Book the Minister filed with the Court. As I have set out in a separate judgment[29] dealing with an application the applicant made on 21 September 2017 for an adjournment, the applicant said he did not receive the Court Book because he had given as an address for service an office that was occupied by Ms Kirwin. Apart from referring to the letter the Tribunal sent to the applicant’s migration agent I have relied only on the Tribunal’s reasons for decision. There was nothing in the applicant’s grounds of application that made it necessary or even convenient for me to consider anything other than the Tribunal’s reasons.

   [29] See BZY16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2390

Interests of the administration of justice?

1. Given I am not satisfied the applicant has given an adequate explanation for his delay in filing his application, and that I am satisfied the application and affidavit the applicant files discloses no arguable case of jurisdictional error, I am not satisfied it is in the interests of the administration of justice that an order be made pursuant to s.477(2) of the Act.

Disposition

1. I propose to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  29 September 2017