Cux15 v Minister for Immigration

[2017] FCCA 1574

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUX15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1574

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), ss.36, 477

Cases cited:

CUW15 v Minister for Immigration and Border Protection [2017] FCCA 1575

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: CUX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3522 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 3522 of 2015

CUX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Fiji, aged 50 years, having been born on 22 December 1966.

2. By Application filed in this Court on 24 December 2015 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 9 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 to him 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 his Application in this Court within 35 days of the decision of the Tribunal. He needs an extension of time under s.477(2) of some 282 days or some 9 months.

4. The present Application of CUX15 in this proceeding was heard on the same date as the Application of his wife in the matter of CUW15 v Minister for Immigration and Border Protection [2017] FCCA 1575 and evidence in one case was evidence in the other. The same procedure was adopted in their respective applications for review before the Tribunal. CUW15 also needs an extension of time under s.477(2) of the Act, being in her case an extension of 281 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 lodged his Protection visa application on 27 June 2013. He claimed that he left Fiji because of fear of torture, harassment and intimidation by the military and that it was not safe for him to return to Fiji until democracy returned there. He said that after the military coup in 2000 he was taken captive by a group of soldiers and subjected to physical abuse, torture and solitary confinement, although no charges were laid against him. He feared being tortured again if he returned to Fiji and deprived of freedom of movement, freedom of speech, freedom of worship, freedom of participation in public affairs and freedom of gathering at community functions. He further said that he was thought by the military to be one of the rebels in the 2000 coup by George Speight.

Decision of Delegate

1. At the interview with the Delegate the Applicant raised a further claim of attending meetings in Australia of the Fiji Pro-Democracy movement (FDFM) in July and November 2013 and meeting with some FDFM members in December 2013.

2. In the result the Delegate refused to grant the Applicant a Protection visa. She was not satisfied that Australia had protection obligations to the Applicant either under the Refugees Convention criterion pursuant to s.36(2)(a) of the Act nor under the complementary protection criterion pursuant to s.36(2)(aa) of the Act. The Delegate found that the Applicant had been a highly frequent traveller in and out of Fiji and had passed through the airport at Fiji on countless occasions since 2000 without ever being stopped and questioned at the airport. The Applicant agreed that he had not experienced any problems at the airport in Fiji on the way in or out when he most recently travelled back from Australia to Fiji in February 2013 and when he left Fiji for Australia in March 2013. The Delegate was not satisfied that the Applicant had a profile of interest which would cause him to be targeted by the Fijian authorities if he returned to Fiji. He faced no real chance of being persecuted for a Refugees Convention reason nor did he face a real risk of significant harm in the foreseeable future if he returned to Fiji.

Decision of Tribunal

1. The Applicant lodged an application for review of the Delegate’s decision to the Tribunal on 25 March 2014 and attended a hearing before the Tribunal on 5 November 2014 with his 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 [57]-[64] of its Decision Record.

2. In its Decision Record the Tribunal summarised the Applicant’s claims and noted that he claimed to have served in the Republic of Fiji military forces and reserves from 1988 until discharged in August 1997, during which period he had served in Fiji, Sinai and Lebanon.

3. The Tribunal noted that the Applicant claimed that he was thought by the Fijian military to be one of the rebels involved in a coup in 2000 and noted that on 19 May 2000 the Prime Minister of Fiji and his government were taken hostage and deposed by a group led by a businessman, George Speight, who claimed to be acting for indigenous Fijians but ultimately the Fijian army declared martial law on 29 May 2000 and took power.

4. The Tribunal recorded that the Applicant claimed that he was a university student at the time of the coup and not involved in it but that on 6 August 2000 he claimed to have been detained, tortured and harassed and intimidated by the Fijian military on suspicion of being one of the soldiers who had taken over Parliament and he was held in solitary confinement but ultimately no charges were laid against him and he was released the next day on 7 August 2000.

5. Then from [10]-[64] of the Decision Record the Tribunal set out the other claims of the Applicant and noted at [27] and [33] that the Applicant admitted that since 2000 he had entered Fiji approximately 30 times but that he had never been stopped at the airport of Fiji as he entered or left the country and had never been visited by the military in Fiji when he was living there at his home. The Tribunal noted that the Applicant was unable to clearly explain why he kept going back to Fiji if he thought that he was at risk of any harm there.

6. At [65]-[90] of its Decision Record the Tribunal considered and analysed the Applicant’s claims, and accepted that part of his claims to the effect that he was detained overnight and tortured by members of the Fijian military in 2000 but released the next day without charge. It noted that the Applicant did not claim to have been arrested or harmed by the Fijian military or anyone else in Fiji after 2000 and the Tribunal found that to be the case. Further, the Tribunal accepted a STARTTS report dated 10 June 2014 which had been submitted in support of the Applicant’s case, to the effect that he was suffering from a range of severe symptoms associated with post-traumatic stress, depression and anxiety, arising from a history of complex trauma exposure, including witnessing casualties of war and civil conflict.

7. Nevertheless, the Tribunal did not consider that there was a real chance that the Applicant would be seriously or significantly harmed in Fiji in the reasonably foreseeable future and relied in particular in support of that finding on the admitted fact that he had been able to travel in and out of Fiji without being arrested or harmed in any way on some 30 occasions up until his most recent arrival in Australia in March 2013.

8. At [75] of the Decision Record the Tribunal further accepted the Applicant’s evidence that the Fijian military were able to commit human rights abuses with impunity between 2000 and 2012 and found that if the Fijian military had been motivated to harm him they could and would have done so but the truth was that the Applicant had not been harassed or arrested in Fiji on his trips in and out of the country and that during almost all of his visits to Fiji the Applicant had resided at his usual home address where he would have been easy to locate. In these circumstances the Tribunal found that the most obvious inference was that he was of no serious interest to the Fijian military.

9. The Tribunal found at [77] that the Applicant was “left alone” in Fiji because he was not under any suspicion of involvement in planning a coup or indeed of doing anything else that threatened the interests of the Fijian regime. It found at [83] that the Applicant’s own conduct was not consistent with his claims to fear being seriously or significantly harmed in Fiji.

10. Accordingly the Tribunal found that the Applicant did not have a well-founded fear of being persecuted for a Refugees Convention reason or that there was a real risk that if he returned to Fiji that he would suffer significant harm. The Tribunal found the chance the Applicant would be harmed in any way if he returned to Fiji to be remote and the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.

Adjournment Application

1. At the commencement of the hearing the Applicant and his wife, CUW15, 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 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 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 and his migration agent, Mr Govind Pilay, concerning Mr Pilay’s retention on the Applicants’ behalf of a lawyer to appear for the Applicant and his wife at the hearing of their respective Applications. The Applicant 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 by text message that the lawyer would appear at the hearing for $3,000 including air fare and requested that the Applicant let him know soon his attitude. Apparently the Applicant 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 stating: “I need to know today pls”. At TP24.37 the Applicant gave evidence in cross-examination to the effect that he decided not to use the lawyer offered by Mr Pilay.

3. I refused the adjournment application, which was opposed by Mr Hughes. If I had adjourned the hearing it would have been necessary to adjourn the hearing 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 his 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 at a directions hearing on 29 January 2016 when the Applicant appeared in person. The Minister’s solicitors had also 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 his 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 his 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 his 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 his Application in this Court. However, the Applicant affirmed an affidavit on 24 December 2015 in support of his 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 9 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. I made inquiries with my migration agent and as well amongst the community I was 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]     The members in the Griffith community, which included Australians to whom I have been working since arriving in the region convinced me, that people of my integrity and calibre are required to be able to stay and contribute in regional areas like Griffith, and that they will personally support a request to the Minister to allow me to stay in the country on humanitarian considerations. Seeing these as a source of support and persuaded by them, I made a request for me and my wife to the Minister of Immigration for his intervention.

   [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 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 his Application in this Court is very considerable and I do not consider that he has given an adequate explanation for that delay. I infer and find that he made a deliberate decision to apply for Ministerial intervention rather than to apply to this Court. He could have made his application for Ministerial intervention whilst at the same time applying within time to this Court for judicial review of the Tribunal’s decision. He 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 he did apply to this Court on 24 December 2015 he filed the Application himself personally without a lawyer. He has not explained why he 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 [24] above the Applicant appeared to flatly contradict the evidence contained in his affidavit extracted at [26] above. He could not, of course, be cross-examined on these fresh assertions and I prefer and accept the sworn evidence given by him and his wife 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, as well as his wife, 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 considered the position in Fiji since the coup in 2000, including relevant country information applicable to the claims made by the Applicant, as well as the Applicant’s own evidence about the position in Fiji, including that he had not been arrested or harmed by the Fijian military or anyone else in Fiji after 2000.

Ground 2

1. Likewise, I do not consider that Ground 2 has any prospects for success.

2. The Applicant 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 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 him 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 [9] above.

3. It was for the Applicant to present such evidence as he deemed fit and appropriate to the Tribunal in support of his 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 [23] 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-six (46) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:       11 July 2017