Cuw15 v Minister for Immigration

[2017] FCCA 1575

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUW15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1575

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – assertion of jurisdictional error by Administrative Appeals Tribunal – unparticularised grounds seek merits review – no procedural unfairness – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:

CUX15 v Minister for Immigration and Border Protection [2017] FCCA 1574

MZABP v Minister for Immigration [2015] 242 FCR 585
SZTES v Minister for Immigration [2015] FCAFC 158
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
WZAVL v Minister for Immigration and Border Protection [2016] FCA 334

Applicant: CUW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3520 of 2015

Judgment of: Judge Dowdy

Hearing date: 5 July 2016

Date of Last Submission: 2 August 2016

Delivered at: Sydney

Delivered on: 11 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr D Hughes of Counsel

Solicitors for the Respondents: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 December 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3520 of 2015

CUW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a female citizen of Fiji, aged 57 years, having been born on 27 May 1960.

2. By Application filed in this Court on 24 December 2015 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 10 February 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 4 March 2014 refusing to grant her a Protection (Class XA) visa (Protection visa).

3. The Applicant did not comply with s.477(1) of the Migration Act 1958 (Cth) (Act) by filing her Application in this Court within 35 days of the decision of the Tribunal. She needs an extension of time under s.477(2) of some 282 days or some 9 months.

4. The present Application of CUW15 in this proceeding was heard on the same date as the Application of her husband in the matter of CUX15 v Minister for Immigration and Border Protection [2017] FCCA 1574 and evidence in one case was evidence in the other. The same procedure was adopted in their respective applications for review before the Tribunal. CUX15 also needs an extension of time under s.477(2) of the Act, being in his case also an extension of 282 days.

Grounds for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7]:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Claims of Applicant

1. The Applicant holds a Diploma in Librarianship from the University of the South Pacific and has most recently been employed as a librarian at the Reserve Bank of Fiji in Suva from 1998 until May 2011 and she speaks English as her first language.

2. She lodged her Protection visa application on 27 May 2013.

3. On 31 May 2000 she decided to visit her husband who was present at the Fiji Parliament daily in support of George Speight and on that visit she was sexually assaulted by two military personnel wearing balaclavas which made her unable to recognise or identify them. She claims she never reported the assault because she could not identify the men but she was warned that her life would be in danger if she did. She claimed to fear that if she returned to Fiji that she would be threatened or killed by the men who assaulted her or other military personnel. She claimed that she would suffer serious violation of her human rights and deserved a new life here in Australia.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 21 January 2014. At this interview she provided a new claim to the effect that on 21 November 2012 she was taking a morning walk in Fiji when a four wheel drive motor vehicle stopped beside her containing two military soldiers who put a sack over her face and then questioned her regarding the whereabouts of her husband and she was punched in the mouth and her front tooth was cracked. She was then let out of the car and ran home.

2. The Applicant also claimed at the interview that she had attended two meetings in Australia of the Fiji Democracy Freedom Movement (FDFM), once in July 2012 and another in August 2012.

3. The Delegate questioned the Applicant about why the new claim asserting the assault and questioning of 21 November 2012 was not made in her Protection visa application. It was also put to the Applicant that her husband, CUX15, had not mentioned anything about this claimed assault in his Protection visa application. It was put to the Applicant that the claimed incident on 21 November 2012 was fabricated and in the result the Delegate found this new claim not to be credible.

4. In the result the Delegate refused to grant the Applicant a Protection visa. The Delegate accepted that the Applicant had experienced sexual assault by the Fijian Military on 31 May 2000 but that she had not been harmed by anyone since the incident up until her departure to Australia in November 2012. The Delegate found that the Applicant had continued to live in Fiji after 2000, having a large family and living in the same home without harm. Further, the Delegate considered that the Applicant did not have any sort of political profile which placed her at risk of persecution in Fiji and there was no real chance that she would be subject to serious persecutory harm because she had attended FDFM meetings in Australia, if she returned to Fiji.

Decision of Tribunal

1. The Applicant lodged an application for review of the Delegate’s decision to the Tribunal on 27 March 2014 and she attended a hearing before the Tribunal on 5 November 2014 with her registered migration agent, Ms Michele Clayton. At the hearing Ms Clayton indicated that she wished to provide further submissions and documentary evidence to the Tribunal on a number of issues and she did so after the hearing, the substance of which the Tribunal summarised at [38]-[46] of its Decision Record.

2. In its Decision Record the Tribunal summarised the Applicant’s claims from [4]-[46]. It recorded that she feared that the men who had sexually assaulted her on 31 May 2000 might have military connections and that she feared being threatened or killed if she returned to Fiji because her abusers knew her identity. She also claimed that she did not support military law in Fiji and that she had suffered a serious violation of her human rights and could not live in Fiji any longer. It recorded that she feared for her life if she returned to Fiji because she had been sandwiched between the military and her husband and was scared because of the friction between the ex-military, the government and the current military, as a result of which there was always danger in Fiji.

3. From [47]-[77] the Tribunal analysed and considered the Applicant’s claims under the topics of the sexual assault on 31 May 2000, the alleged interest of the Fijian authorities in her husband, the alleged 2012 assault and her political opinion and attendance at two meetings of the FDFM in Australia.

4. In the result the Tribunal accepted that the sexual assault on 31 May 2000 had happened and that the Applicant understandably remained very distressed about it. However it rejected as remote a chance that her previous assailants might harm her in the future for the primary reason that she had been living and working in Suva for some 12 years after the assault without any further contact from her previous assailants or people associated with them. The Tribunal concluded that the attack on 31 May 2000 was an opportunistic assault some 15 years ago, during, as the Applicant herself had said, a period of lawlessness in Fiji. The Tribunal did not accept that the Applicant was assaulted in 2012 as claimed by her and it rejected any claim that she might be harassed or harmed as a family member of people who were involved in the coup in Fiji in 2000 and it was but a remote chance that she would be questioned or harassed because of her connection with her husband in the future. There was no evidence that the Fijian authorities were aware of her fleeting contact with the FDFM in Australia.

5. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.

Adjournment Application

1. At the commencement of the hearing the Applicant and her husband, CUX15, applied for an adjournment on the basis that they were themselves unprepared to run the case and the legal representative that they had retained was unable to be in Court on their behalf that day because he was “looking after another case today”. At TP13.1-3 the Applicant’s husband said of the reason for the requested adjournment:

   The only reason, your Honour, was because our representative pulled out last minute and we’re not really well-prepared to come and present our case by ourselves here today.

2. The Applicant’s husband was cross-examined by Mr Hughes of Counsel who appeared for the Minister. I find on the evidence relevant to the adjournment application that from on or about 2 July 2016 telephone messages passed between the Applicant’s husband and their migration agent, Mr Govind Pilay, concerning Mr Pilay’s retention on the Applicants’ behalf of a lawyer to appear for the Applicant and her husband at the hearing of their respective Applications. The Applicant’s husband wanted to know the fees that would need to be paid to the lawyer and on Sunday, 3 July 2016 at 12.09pm Mr Pilay advised the Applicant’s husband by text message that the lawyer would appear at the hearing for $3,000 including air fare and requested that the Applicant’s husband let him know soon his attitude. Apparently the Applicant’s husband did not reply to Mr Pilay’s text message and Mr Pilay at 4.03pm on 3 July 2016 sent a further text to the Applicant’s husband stating: “I need to know today pls”. At TP24.37 the Applicant’s husband gave evidence in cross-examination to the effect that he decided not to use the lawyer offered by Mr Pilay.

3. The Applicant at the hearing relied on her husband’s evidence in support of the adjournment application. Mr Hughes opposed any adjournment, and in the result I refused it. If I had adjourned the hearing it would have been necessary to adjourn it for approximately a year or displace another case in my docket that had already been set down for hearing.

4. There can be no doubt that the Applicant was well aware that the hearing of her Application had been set down for 5 July 2016. An order had been made by the Court setting the hearing down for 5 July 2016 on 21 March 2016. The Court file contains correspondence that indicates that the Applicant had confirmed receipt of that order to the Minister’s solicitors prior to 23 March 2016 and the Minister’s solicitors had sent a letter dated 28 June 2016 to the Applicant noting that the hearing was set down for 5 July 2016. Accordingly, the Applicant had ample time to arrange for legal representation and to prepare for the hearing. It would put this Court in an impossible position if it had to routinely adjourn a hearing because of an assertion from an applicant that he or she had been unable to arrange legal representation. Accordingly, I considered it in the interests of justice that the hearing proceed and that the adjournment application be refused.

5. Notwithstanding the refusal of the adjournment I attempted to ameliorate any disadvantage suffered by the Applicant by making the following order at the conclusion of the hearing, namely:

   1. Direct that the Applicant file and serve any Written Submissions and any other material in support of her application by 27 July 2016.

   2. Direct that the Respondent respond to the materials filed and served by the Applicant by 4 August 2016.

6. In the result the Applicant did file on 26 July 2016 her Written Submissions and the Minister filed on 2 August 2016 his Further Written Submissions.

Grounds of Extension Application

1. The Grounds in the application for the extension of time are as follows:

   1. The Applicant is a refugee claimant, and is fearful of returning to her country as conditions have not improved.

   2. The application for protection visa has not been properly and legally considered by the Tribunal.

2. Neither of those Grounds have any relevance to explaining or justifying the very considerable delay in the Applicant filing her Application in this Court. However, the Applicant affirmed an affidavit on 24 December 2015 in support of her application for extension under s.477(2) of the Act which relevantly deposed as follows:-

   [2]Attached is a copy of the decision of the Refugee Review Tribunal … on 10 February 2015 on my application for a humanitarian protection visa in Australia.

   [3]I was aggrieved by this decision and wanted to seek a review of same with this Court. My husband and I made inquiries with my migration agent and as well amongst the community we were living, in Griffith. All of them advised that, although there would be mistakes with the decision and I could make an appeal to this Court it would cost very dearly and I could not afford to fund same.

   [4]My husband made a request for a Ministerial Intervention on 9 March 2015, for himself and me.

   [5]However, on 8 December 2015, I was informed by the Ministers office that my request for his intervention has not been favourably considered. I am therefore seeking leave of this court to grant me an extension of time to apply for a review of the decision. A copy of the Minister's decision is attached.

3. At the hearing the Applicant’s husband said that he got the decision of the Tribunal, was aggrieved by it and wanted to come to this Court but he was unemployed at the time of the Tribunal decision and made an application for Ministerial intervention and was then informed by the Minister’s office on 8 December 2015 that his request for intervention had not been favourably considered and that he then decided to apply to this Court.

4. In considering whether it is in the interests of the administration of justice to grant an extension the Courts have developed non-exhaustive guidelines as to the factors to be taken into account and I will do so in considering the application for extension in this case. Those factors include:

   a)whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;

   b)the reason for the delay;

   c)whether there is any prejudice to the Minister;

   d)whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success: SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]; and

   e)the absence of the applicant having a right of appeal if an extension is not granted.

5. In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not to travel beyond an examination of the substantive grounds at “a reasonably impressionistic level”: MZABP v Minister for Immigration [2015] 242 FCR 585 at 598 [63].

Delay

1. I consider that the Applicant’s delay of some 9 months in filing her Application in this Court is very considerable and I do not consider that she has given an adequate explanation for that delay. I infer and find that she made a deliberate decision to apply for Ministerial intervention rather than to apply to this Court. She could have made her application for Ministerial intervention whilst at the same time applying within time to this Court for judicial review of the Tribunal’s decision. She asserts impecuniosity as a reason for not applying to this Court but many if not most applicants apply to this Court without the assistance or intervention of a lawyer. Further, when she did apply to this Court on 24 December 2015 she filed the Application herself personally without a lawyer. She has not explained why she could not have done the same earlier within the prescribed 35-day period from the date of the Tribunal decision. I consider the following paragraphs from the judgment of Farrell J in WZAVL v Minister for Immigration and Border Protection [2016] FCA 334 at [33]-[35] to be generally applicable to the Applicant’s position here:

   [33]An applicant’s choice to pursue Ministerial intervention rather than to exercise rights available to him to continue to challenge a Tribunal’s decision is a deliberate forensic choice and may be taken as an implicit acceptance that the Tribunal’s decision was not to be the subject of challenge with the result that there is no satisfactory explanation for the delay in exercising appeal rights: M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293 per Black CJ, Sackville and Sundberg JJ at [16]-[24] and the cases there cited. The applicant appears to have been unrepresented in relation to his migration matters, although he does appear to have representation in relation to his compensation claims, and he plainly does not accept the Tribunal’s decision. However, he has not claimed that he was unaware of his appeal rights and those factors do not detract from the force of the Full Court’s reasoning.

   [34]As pointed out by Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 at [42], there is no reason in law why an application for judicial review could not have been made at the same time as the application to the Minister. The terms of s 417, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such an application where other avenues of possible relief are available as of right.

   [35]In accordance with this authority, the length of the delay and the circumstances in which the delay occurred are a sufficient basis to dismiss the application for an extension of time. 

1. I record that in the Written Submissions filed after the hearing by the Applicant referred to in [23] above the Applicant appeared to flatly contradict the evidence contained in her affidavit extracted at [25] above. She could not, of course, be cross-examined on these fresh assertions and I prefer and accept the sworn evidence given by her and her husband in each of their affidavits dated 24 December 2015. I had not given the Applicant leave to put on further factual evidence, but only legal submissions. Those affidavits make clear and I find that both the Applicant and her husband well knew of the decision of the Tribunal shortly after it was handed down and they could have made an application within the 35 day period but chose not to do so.

Prejudice to Minister

1. It is not suggested that there is any real or actual prejudice to the Minister but an absence of prejudice is not conclusive in the present circumstances and the element of finality in administrative decision-making is a factor that needs to be taken into account.

Loss of Applicant’s Right of Appeal

1. This is an important right which will be lost if extension is not granted and a firm factor in favour of an extension.

Applicant’s Reasonable Prospects of Success on Substantive Application

1. I now turn to consider this important factor in considering whether or not to extend time.

Substantive Grounds of Attack on Tribunal Decision in this Court

1. The substantive Grounds in the Application are as follows:-

   1. The Tribunal did not see, the real chance of being persecuted or facing serious harm, in the continuously changing and evolving situation in Fiji.

   2. The Tribunal failed to recognise that as a member of the armed forces, with links to opposition, the Applicant is a member of a social group, who are always monitored within the country.

   3. The Tribunal did not provide procedural fairness by indicating aspects of the case, it did not believe or requesting additional evidence, and did not review same according to substantial justice and merits of the case.

Ground 1

1. I do not consider that this unparticularized Ground has any realistic prospects of success and it appears to invoke a merits review of the Tribunal’s decision which is not available in this Court.

2. The Tribunal accepted that the Applicant was sexually assaulted in May 2000. The Tribunal considered the position in Fiji since the coup in 2000, including relevant country information applicable to the claims made by the Applicant. At [64] of its Decision Record the Tribunal did not accept that the Applicant was assaulted in 2012. It found at [68] that neither she nor her children had otherwise been questioned, harassed or harmed whilst living in Fiji from 2000 to 2012. In my view the Tribunal gave full consideration to the Applicant’s claims but rejected them.

Ground 2

1. Likewise, I do not consider that Ground 2 has any prospects for success. On its face this Ground concerns the Applicant’s husband and there is no explanation of how the Ground relates to or impacts upon the Applicant herself.

2. The Applicant’s husband told the Tribunal that he had never been harmed since 2000. He had ceased to be a member of the Fijian armed forced in August 1997 and he had never suggested to the Tribunal that he had “links to opposition”. Rather, as recorded in [10] and [44] of the Tribunal’s Decision Record, the Applicant’s husband told the Tribunal that whilst he had voted for the SDL Party in the 2006 election in Fiji and attended rallies during that election, he had not been involved  in any other political activities in Fiji and had not expressed his political opinion there in any other way and he would not in the future participate in plans to overthrow the elected government of Fiji and that as a former civil servant he would not want to disrupt any elected government.

3. Ground 2 also seeks to invoke a merits review which is not available in this Court.

Ground 3

1. I do not consider that this unparticularized Ground 3 has any prospects of success.

2. The Applicant did not lead or provide any evidence that the Tribunal did not afford her procedural fairness. The registered migration agent who attended the Tribunal hearing was given an opportunity to and did provide a further submission and documentary evidence to the Tribunal, as recorded in [13] above.

3. It was for the Applicant to present such evidence as she deemed fit and appropriate to the Tribunal in support of her claim for a Protection visa and the Tribunal had no obligation in the circumstances of this case to seek or request or identify any additional evidence relevant to the Applicant’s visa application.

Applicant’s Written Submissions Filed 26 July 2016

1. Paragraphs [37] to [58] of these Written Submissions allege numerous further jurisdictional errors by the Tribunal. My order at the hearing, reproduced at [22] above, did not give leave to the Applicant to rely upon further substantive Grounds and I do not give leave now. They have obviously been prepared with the help of a lawyer and largely allege that the Tribunal took into account irrelevant factors and failed to take into account a number of relevant factors, and that the findings of the Tribunal were unreasonable or irrational, or both, and they argue with the merits of the Tribunal’s decision and its factual findings.

2. In my view nothing in [37] to [58] of these Written Submissions would sustain a finding by this Court that the Tribunal decision is affected by jurisdictional error.

Conclusion

1. The length of the delay in making application to this Court outside the time period of 35 days required by s.477(1) of the Act is considerable and the delay has not been satisfactorily explained and in my view the three Grounds have no prospects of success and accordingly the application for extension of time made by the Applicant pursuant to s.477(2) is refused.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:       11 July 2017