CWJ17 v Minister for Immigration

[2017] FCCA 2376

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWJ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2376

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:

Migration Act 1958 (Cth), ss.425, 477

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
MZABP v Minister for Immigration (2015) 242 FCR 585; [2015] FCA 1391

Applicant: CWJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2043 of 2017

Judgment of: Judge Driver

Hearing date: 27 September 2017

Delivered at: Sydney

Delivered on: 27 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Strugnell of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2043 of 2017

CWJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 May 2017.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 20 September 2017. 

Factual background

1. The applicant is a citizen of Lebanon, who last arrived in Australia on 29 March 2009 on a Prospective Marriage (Class TO) (subclass 300) visa. The applicant applied for a protection visa on 9 March 2017[1].

   [1] Court Book (CB) 1-37

2. In his protection visa application, the applicant claimed that he would be socially isolated due to a criminal conviction in Australia. He also claimed that his uncle had threatened to kill him because he “defamed the family”.  However, at interview with the delegate he denied this claim and asserted his migration agent must have incorrectly made it. The applicant then claimed to fear harm due to an ongoing dispute with his uncles over his father’s will.

3. On 21 March 2017, the delegate refused to grant the applicant a protection visa[2]. The applicant sought review of the delegate’s decision before the Tribunal by application dated 24 March 2017[3]. The applicant appeared at a hearing before the Tribunal on 21 April 2017[4].

   [2] CB 64-72

   [3] CB 73-78

   [4] CB 100-102

Tribunal decision

1. The Tribunal rejected the applicant’s claim because it found he was not a credible witness. The Tribunal made the following key findings:

   a)the applicant made no mention of the dispute in his initial claim, and has made no formal complaint against his agent[5];

   b)the applicant’s actions with respect to the claimed threat were inconsistent, as he did not apply for protection on an earlier trip to Australia and voluntarily returned to Lebanon[6];

   c)it lacked credibility that the applicant’s uncles could not have forged the applicant’s signature given their alleged connections to the government, or that they did not pressure the applicant’s family in Lebanon to sign a power of attorney[7];

   d)it did not accept that a law preventing the applicant’s uncles from forging his signature would have stopped them given that killing him would also have been illegal[8];

   e)it did not accept the applicant moved constantly between 2005–2009 to avoid his uncles, or that he was bashed by them[9]; and

   f)it did not accept the applicant would be killed because of the shame he brought his family by his incarceration in Australia, noting he withdrew this claim at hearing[10].

   [5] CB 115 at [30]

   [6] CB 115 at [31]

   [7] CB 115 at [32]

   [8] CB 115 at [32]

   [9] CB 116 at [34]

   [10] CB 116 at [35]

2. For these reasons, and having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason[11]. For the same reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion[12].

   [11] CB 116 at [35] and [38]

   [12] CB 116 at [36], [37] and [39]

The present proceedings

1. These proceedings began with a show cause application filed on 28 June 2017. The application was filed outside the 35 day period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. In support of the extension of time application the applicant asserts a lack of knowledge about immigration law and a lack of English. He also asserts that the Tribunal focused on other things except his fear for his life and that his life is at risk in Lebanon. These assertions are repeated under the heading “Grounds of Application”.

2. The applicant also asserts as a ground of application that he lacks proper guidance as he does not have a lawyer or agent.  He also says that due to poor English he does not understand the correct meanings of English words. 

3. The Court has power to grant an extension of time in the interests of the administration of justice.  As is noted in the Minister’s submissions, the factors taken into account in considering whether to grant an extension of time include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed application.[13] 

   [13] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]–[23]; MZABP v Minister for Immigration (2015) 242 FCR 585; [2015] FCA 1391 at [45]–[58]

4. The applicant filed an affidavit in support of his application but there are no factual assertions in that affidavit bearing upon his application for an extension of time. 

5. The only evidence I have before me apart from that affidavit is the court book filed on 3 August 2017. 

6. The delay in this matter is relatively short.  By way of explanation for that delay the applicant told me from the bar table that he made two attempts to file his application.  On the first occasion it appears the application was rejected because there was a problem with one of the documents.  He made a second attempt which was successful.

7. This is corroborated by two facsimile lines on the top of the application.  The first shows a transmission on 14 June at 11.32.  The second shows a transmission on 28 June at 13.23.  I infer from that that the applicant initially attempted to file his application on 14 June.  That would still have been some days outside the prescribed period which expired on 9 June.  However, at all material times the applicant has been held in immigration detention.  Taking into account the difficulties of life in detention I am satisfied that he has put forward a reasonable explanation for the short delay. 

8. There is no issue of prejudice in this case.

9. The applicant’s real difficulty, however, is the lack of merit in his judicial review application.  The grounds in the application do not extend beyond a proposition regarding the merits of the applicant’s claims for protection.  The applicant does assert under the heading of the grounds for the extension of time that the Tribunal did not focus on his main claim which is the fear for his life.  It appears, however, from the court book and in particular the Tribunal decision that the Tribunal was well aware of the applicant’s claims and did focus on them. 

10. The grounds of review are addressed in the Minister’s submissions.  I agree with those submissions. 

Ground 1

1. The first ground contends “lack of knowledge about immigration acknowledge and understand the proper meaning of English”. This is not a proper ground of review.

Ground 2

1. The second ground contends “my life is at risk of significant harm on the basis of these claims as outlined in the complementary protraction” [sic]. This ground seeks impermissible merits review. The Tribunal clearly considered and rejected the applicant’s claims on the basis of adverse credibility findings[14]. Further, it set out and applied the correct tests, including the test for complementary protection, and made findings that were open to it for the reasons that it gave[15]. 

   [14] CB 115-116 at [25]-[35]

   [15] CB 116 at [36]-[37]

Ground 3

1. Ground 3 contends “lack of proper guidance as I don't have a lawyer or agent. Due to poor English I misunderstood the correct meaning of English”. Again, this is not a proper ground of review. In any event, the applicant gave evidence to the delegate and the Tribunal that he was assisted in completing his protection visa application form by a migration agent.

2. To the extent this ground may be construed as a complaint that the applicant was not afforded a real and meaningful opportunity to participate in the hearing due to his poor English[16], I note that the applicant was assisted by an Arabic interpreter at the Tribunal’s hearing on 21 April 2017. Further, the Tribunal’s reasons do not disclose that the applicant made any complaint about the standard of interpretation, or that he had any difficulty responding or otherwise participating in the hearing.

   [16] cf. s.425 of the Migration Act

3. The applicant told me from the bar table that he is making efforts to obtain identity documents which might support an application for a partner visa.  It appears that he is in a relationship with an Australian woman and they have had a male child together who is now three years of age.  I indicated to the applicant that he would be well advised to seek advice and assistance in relation to such an application.  While those personal circumstances may support a partner visa application they do not have any bearing on the resolution of the challenge to the Tribunal’s decision. 

Conclusion

1. I conclude that the interests of the administration of justice in this case do not require the granting of an extension of time.  I refuse the application for an extension of time.  It follows that the proposed judicial review application is incompetent. 

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed.  The applicant did not wish to be heard on costs.

3. I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     29 September 2017