Cwe16 v Minister for Immigration

[2018] FCCA 2677

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWE16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2677

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for extension of time under s.477(2) of the Migration Act 1958 (Cth) needed of 357 days – no adequate or reasonable explanation for failure to file application under s.477(1) of the Migration Act 1958 (Cth) – proposed substantive grounds not reasonably arguable and without reasonable prospects of success – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.417, 477

Cases cited:
AWA15 v Minister for Immigration [2018] FCA 604
Bechara v Bates [2018] FCA 460

Applicant: CWE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2698 of 2016

Judgment of: Judge Dowdy

Hearing date: 13 September 2018

Delivered at: Sydney

Delivered on: 13 September 2018

REPRESENTATION

The Applicant appeared
in person

Counsel for the First Respondent: Mr J. Lambe

Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 6 October 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3667.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth), the applicant have up to including 18 October 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2698 of 2016

CWE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant in this matter is a male citizen of Egypt aged 34 years, having been born on 6 July 1984. 

2. By Application filed in this Court on 6 October 2016, he seeks:

   a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of 357 days outside the time limit prescribed by s.477(1) for the bringing of an application in this Court; and

   b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 4 September 2015, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 June 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant has travelled to Australia on two occasions.  On the first occasion, he travelled to Australia on 2 August 2012 on a three month multiple entry Tourist (Class TR) (Subclass 676) visa, which had been granted to him offshore on 6 May 2012.  He departed Australia on 22 October 2012.  Then on the second occasion the Applicant travelled to Australia on 30 June 2013 on a three month single entry Tourist (Class FA) (Subclass 600) visa granted offshore on 19 May 2013.  He then lodged his application for the Protection visa on 24 September 2013.

Claims for Protection

1. He claimed in his Protection visa application that he had been educated at Port Said University in Egypt from September 2003 to June 2007 and that upon completion of his study there, from June 2007 to June 2013 he had been a self-employed clothing importer.  In relation to protection, he claimed:

   a)that he was an active and financial member of the Muslim Brotherhood and the Freedom and Justice Party;

   b)his activities included organising, packaging and delivering assistance packages to the poor;

   c)during election time, he was involved in campaigning for the party and assisted the poor and illiterate to vote;

   d)he financially supported the party;

   e)in 2010, after delivering goods to a prison, he was taken to the police station and interrogated and imprisoned for two days.  In the same year, he was interrogated about the same incident and a ban was put on his imports until he paid a bribe; 

   f)prior to President Morsi gaining power he was heavily involved in Egypt’s revolution.  He was detained for two days in relation to his Muslim Brotherhood activities and monitored closely.

   g)prior to his arriving in Australia he noticed increasing opposition directed at him and other Muslim Brotherhood members;

   h)since his arrival in Australia many of his Muslim Brotherhood associates have been put into prison for actively supporting the Muslim Brotherhood; and

   i)the Applicant feared that he will be detained, harmed or killed by the authorities if he returns to Egypt because he is a Muslim Brotherhood supporter.  He claimed to have been interrogated, insulted and detained by police and that if he returned to Egypt, he would be harmed and possibly killed and could be jailed.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant Grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial Grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 17 February 2014.  At the interview with the Delegate the Applicant claimed that he could not return to Egypt because he was a member of the Muslim Brotherhood, which has been declared as a terrorist organisation by the Egyptian Government and that if he returned to Egypt, he would be detained and killed by the Egyptian authorities.  He told the Delegate that he was a Sunni Muslim and the Delegate accepted that was the case because 90 per cent of the Egyptian population is Sunni Muslim.

2. In the result the Delegate came to the view that she was not prepared to accept that the Applicant was currently of interest to the Egyptian State security forces because he was questioned in 2010 and 2013, that he was a financial member of the Muslim Brotherhood or that the Applicant was currently of interest to the Egyptian State security forces because he was a member of the Muslim Brotherhood and she refused to grant a Protection visa to the Applicant under either the Refugee’s Convention criterion or the complementary protection criterion.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 24 July 2014 for merits review of the Delegate’s decision and appeared before the Tribunal on 26 August 2015 to give evidence and present arguments.  At [16] of its Decision Record the Tribunal foreshadowed its findings that the Applicant was not a credible and truthful witness, that there were various inconsistencies in his evidence throughout the immigration process, the unpersuasive nature of some key aspects of his claims and other reasons detailed thereafter in the Decision Record.

2. At [18] of its Decision Record, the Tribunal found certain implausibilities in the Applicant’s claims and from [23] to [25] it recorded certain other inconsistencies in the Applicant’s claims as made. 

3. At [26] the Tribunal then considered and took into account the delay of the Applicant in arriving in Australia on 30 June 2013, but not making his Protection visa application until 24 September 2013 and at [27] the Tribunal found the Applicant not to be a credible, truthful or reliable witness and that his evidence showed a propensity to tailor evidence in a manner which achieved his own purpose. The Tribunal further found in that paragraph that he had fabricated and concocted his claims to achieve an immigration outcome.  In the result, the Tribunal affirmed the Delegate’s decision not to grant a Protection visa to the Applicant. 

Grounds of Application for Extension

1. In his Application filed in this Court the Applicant sought in writing an extension of time and gave the following Ground:

   (1)I appointed and paid a person to lodge a submission to the courts.  During the last month I have been asking him for an update on my application.  In the end I found out that no application was lodged.  I tried to approach this person but have been told she is overseas.

2. The Applicant tendered no affidavit evidence in support of his Ground for extension. The person who he seems to assert he had paid to lodge the Application in this Court is not identified and there is no time given as to when anything happened in relation to the failure to lodge an Application to this Court in time. It is apparent from the evidence that, after the decision of the Tribunal had been handed down on 4 September 2015, an application was made by his migration agent by letter dated 1 October 2015 to the Minister for Ministerial intervention under s.417 of the Act.

3. That application was determined adversely to the Applicant by letter from the Department of the Minister dated 3 May 2016. The Applicant still took four or five months to make his Application in this Court. There is no evidence as to why his migration agent took no step to bring an application in this Court. In other words the Applicant has not, in my view, given any adequate or reasonable explanation of why he did not comply with s.477(1) of the Act in the time limit there prescribed. Many applicants in this Court suffer from the same language problems as the Applicant suffers from and, without the benefit of any migration agent, manage to bring their application for judicial review from a Tribunal decision in time.

4. However, I now turn to consider the most important factor in whether or not an extension of time should be granted and that is whether or not the proposed substantive Grounds relied upon by the Applicant are reasonably arguable and, in accordance with authorities in the Federal Court, I bring an impressionistic view to bear upon those substantive Grounds in coming to a view about whether or not they have reasonable prospects for success.  In particular, I take into account the relevant principles applicable to an application for an extension of time which have been conveniently stated recently by her Honour Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:

   [17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection[2016] FCA 214 at [19](Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.

   (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

   (2)The length of the delay is a relevant factor.

   (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.

   (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

   (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

   [18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services[2017] FCA 916 that:

   12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391(MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

   (emphasis removed)

5. It follows from her Honour’s discussion in that case that, 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 travel beyond an examination of the substantive Grounds only at a reasonably impressionistic level. 

Proposed Grounds of Attack on Tribunal Decision in This Court

1. The Grounds proposed are as follows:

   1.At point 18 the RRT states that my claims were implausible but did not say why.

   2. At point 19 the RRT said it was implausible that I be allowed into the prison to deliver goods despite the fact that I explained I had a permit to enter. The RRT did not have information on how the prison system work in Egypt so it was not in the position to think that the delivery process was otherwise. The RRT based is adverse findings on incomplete evidence.

   3. At point 20 the RRT used independent country information relating to limited access for "prison visitors". I was not a prison visitor. I had a permit for a specific job. The RRT based its adverse findings on incorrect and irrelevant information.

   4. At point 23 the RRT states that in my initial statement I claim "activities with....released from prison”. When asked about the     activities at hearing I specified "accused of financing". The RRT     found this was contradictory. This was not contradictory it was explanatory. The word “activities” is a general description with no specific meaning. I specified the meaning.

   5. At Point 26 the RRT made an adverse finding against me due to the fact that I delayed my application for a protection visa. When asked why I explained that due to the events that were happening I waited to see changes and outcome. The RRT did not accept this despite the fact that a serious political coup actually occurred at this time and the country had no government.

   6. At point 33 the RRT claims "...not satisfied there.....applicant being removed from Australia to Sri Lanka...." at no time did I mention Sri Lanka and I do not have right of entry to Sri Lanka.

Proposed Ground 1

1. This Ground asserts that at [18] of its Decision Record the Tribunal did not state why the claims considered there were implausible.  However, to look only in isolation at [18] is not a fair construction of the reasons of the Tribunal. 

2. Paragraph [18] should be viewed together with [19], [20] and [21] and, in my view, the reasoning in those paragraphs are not, in a legal sense, illogical or unreasonable and do not lack an intelligible justification.  Those paragraphs deal with the Applicant’s claim that in 2010, he delivered blankets to a prison in Port Said and that, during the visit, he spoke to another prominent member of the Muslim Brotherhood. 

3. There are other claims mentioned in [18] and then the Tribunal states that the claims are implausible and then, in [19], [20] and [21], it gives the reasons why it finds those claims to be implausible, including at [19] that it was highly implausible that a member of the public and a Muslim Brotherhood supporter would be able to walk around the prison distributing blankets.  In my view, Ground 1 has no reasonable prospects for success. 

Proposed Ground 2

1. Neither does Ground 2, because Ground 2 brings into play consideration of the same paragraphs, namely [18] to [21], which I have considered in relation to Ground 1. Ground 2 would fail, in my view, to establish jurisdictional error. 

Proposed Ground 3

1. Ground 3 complains that the Tribunal referred to or used independent country information relating to limited access to prison visitors.  Ground 3 would, in my view, fail to establish jurisdictional error.  In [20] of the Decision Record, of which Ground 3 makes complaint, the Tribunal was referring to country information which indicated that visitors’ access to detainees held under the emergency law in Egypt were limited, and took that information into account in evaluating the Applicant’s claim that he was able to simply visit the prison and talk to a prominent Muslim Brotherhood member and deliver blankets. There is nothing legally illogical or unreasonable in that reasoning or in its use of relevant independent country information, and Ground 3 has no reasonable prospects of establishing jurisdictional error.

Proposed Ground 4

1. Ground 4 relates to [23] of the Tribunal’s reasons.  In this paragraph, the Tribunal is contrasting as inconsistent the fact that in his Protection visa application he did not claim “that he was arrested because he was accused of financing terrorist organisations”, but had so claimed at the Tribunal hearing.  This is completely conventional because in the assessment of credibility, Courts and decision-makers regularly consider inconsistencies in the course of evidence in evaluating the relevant parties’ credibility.  Accordingly, in my view nothing that the Tribunal has said in [23] of its Decision Record has any prospects of being regarded as subject to or exhibiting jurisdictional error.

Proposed Ground 5

1. Ground 5 as proposed attacks [26] of the Decision Record.  At [26] the Tribunal noted that there had been a delay between 30 June 2013 when the Applicant arrived in Australia and 24 September 2013 when he made his Protection visa application.  He was questioned about the delay, and he gave as the reason that he was waiting to see what would happen and if the Muslim Brotherhood were still in power he would not have applied for protection. However, the Tribunal considered that this was a matter that cast doubt on the genuineness of his claimed fear of harm in Egypt, and there is a whole body of authority which has held that the Tribunal is entitled to take into account delay in the way in which the Tribunal has in [26], and proposed Ground 5 also fails to have reasonable prospects for success in establishing jurisdictional error.

Proposed Ground 6

That leaves Ground 6.  In Ground 6 the Applicant proposes to attack the reference at [33] of the Decision Record to the Applicant “being removed from Australia to Sri Lanka”. And he says, and there is no reason to doubt him, that at no time did he mention Sri Lanka and that he never claimed to have a right of entry to Sri Lanka. However, in my view, the reference to Sri Lanka is a clear typographical error which does not result in jurisdictional error.  It is true that there are a number of cases where the Tribunal has inaptly and inappropriately referred to countries or facts which, perhaps by reason of cutting and pasting, has led to it being confused about the case which it is truly meant to be considering and has led to a misapprehension of the claims which are being made by the relevant applicant.  

1. However, that is not the case here.  The Decision Record of the Tribunal otherwise refers to the country of Egypt on numerous occasions.  The references to Egypt can be found at [2], [4], [6], [13], twice at [14], five times at [17], two again at [27], 14 references at [28], three references at [29], a reference in [30], [31], [32] and three references in [34]. The country information footnoted to the Decision Record refers to country information relevant to Egypt. There are constant references to the Muslim Brotherhood, that as far as I am aware, is an organisation found only in Egypt.

2. The reference to Sri Lanka is clearly a typographical error which cannot be seen as having had any impact on the decision of the Tribunal and does not indicate any misunderstanding or misapprehension of the subject matter and claims which the Tribunal was considering.

3. Accordingly, in my view, proposed Ground 6 has no reasonable prospects for success.

Conclusion

1. That leads, in my view, to the conclusion that the proposed substantive Grounds which would be asserted by the Applicant are not reasonably arguable and do not have reasonable prospects of success, and therefore that it would be futile to grant an extension of time as sought by the Applicant. In those circumstances, I do not consider that it would be in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made, and accordingly the Application for extension of time made by the Applicant in this Court pursuant to s.477(2) is refused.

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

Date:  19 September 2018