CZA19 v Minister for Immigration
[2020] FCCA 686
•26 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZA19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 686 |
| Catchwords: MIGRATION – Protection visa – extension of time – Application 34 days late - Applicant citizen of Poland – fears retribution by government and organised crime figures for criminal acts committed in Poland – explanation for delay not accepted – application lacking merit – application refused |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | CZA19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 302 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing date: | 12 March 2020 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 26 March 2020 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | A. Gerrard |
| Solicitors for the First Respondent: | Australian Government Solictor |
ORDERS
That the application for an extension of time is refused.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 302 of 2019
| CZA19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
On 24 May 2019, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision of the Delegate not to grant the Applicant, CZA19, a Protection Visa. By application filed in this Court on 1 August 2019, the Applicant seeks judicial review of that decision.
As can be seen from the dates, the Applicant has filed his application well outside of the 35 day limit permitted.
When the matter first came before me on 13 February 2020, I explained to the Applicant that he had not filed the application on time. The Applicant said that this was due to the conditions within the detention centre. To this end, I allowed the Applicant to make a verbal application for an extension of time.
Background
This is one of the more factually complex matters dealt with in this jurisdiction. The background of the matter is this. The Applicant was born in Poland in 1970 and is a citizen of that country. He has an adult son who is also a citizen of Poland but is currently resident in Germany.
The Applicant claimed to have sought escape from Poland on a number of occasions. He first went to Spain in 1995 where, after less than three months, he was promptly deported back to Poland for being in possession of a fake passport.
Then, in 2004, the Applicant claimed he travelled to Germany but was returned to the Polish border because he did not possess the requisite documents. Finally, he claimed, in 2008, that he legally departed Poland to Bolivia via Brazil. The Applicant has a child in Bolivia. He later claimed he travelled to Peru in 2009.
The Applicant first arrived in Australia in 2009 on 28 October 2009 as the holder of an eVisitor visa, which was valid until 28 January 2010. The Applicant was arrested and charged at the border with ‘Importing a Commercial Quantity of a Border Controlled Drug’. The Applicant was convicted on 2 September 2011 and was sentenced to a term of imprisonment of 10 years and 8 months. The Applicant was granted a Criminal Justice Stay Visa on 16 August 2010.
On 8 April 2016, the Applicant escaped from prison and was not apprehended until December 2017. It appears to me during this time that the Applicant met a woman who then bore him a child. On 6 June 2018, he was convicted of ‘Escape from Lawful Criminal Detention’ and was sentenced to a term of 9 months imprisonment.
On 6 December 2018, his Criminal Justice Stay visa was cancelled and he was taken into immigration detention.
On 14 January 2019, the Applicant applied for the protection visa the subject of these proceedings.
Extension of Time
There are three aspects that a Court focuses upon when considering whether to allow an Applicant an extension of time within which to file the application. Firstly, the Court looks at the reason for the delay in filing. Secondly, the Court looks at what prejudice to the respondent would be occasioned by the grant of leave. And, thirdly, the Court looks at the merits of the application, specifically whether they are of such a nature that warrant a more fulsome examination by the Court.
It is the third of these aspects that I will look at first.
The claims of the Applicant
The Applicant claimed that he feared harm from a range of people and organisations, most notably, former Communist Party leaders, members of the Solidarity movement, some current Government members and the criminal ‘Grypser’ organisation.
The Applicant claimed that he served in the military at the time that the Communist regime was collapsing. He claimed that, in January 1991, whilst providing security at a military base, he was loading the truck and he opened a sealed box of documents. These documents contained the secret police files of frontbench politicians and many other influential Polish citizens.
In an amazing coincidence, these documents also included tapes of the Applicant’s own father (who was a high ranking officer in the Polish equivalent of the “KGB”) interrogating members of the Solidarnosc (or Solidarity) Party. The Applicant claims that his father told him to bury these documents at their holiday home.
The Applicant claimed that after he was released from military duty, he fell on hard financial times. He decided to try and sell a few of the documents that he had hidden. The Applicant claims that his father connected him to a man called MP who would know others who would buy those files.
The Applicant claimed that his father took a file of a particular politician and sold them to MP and another man, EM.
The Applicant named nine people, of various importance in Poland, whose files he had obtained by his theft of the boxes. The Applicant claimed that, after his father had sold the last files on two particular people, he and his father were the subject of multiple break-ins and blackmail. He said that his father told him to change the hiding place of these files and to not tell anyone.
The Applicant claimed that his father was interrogated by security forces in his home. He claims that the security forces were after the files that the Applicant had taken. He claims that the security forces killed his father during this interrogation.
The Applicant seems to suggest that the “killing” of his father was a catalyst in his first attempt to leave Poland. He said that when he was returned to Poland, government agents questioned him about one of the particular files and threatened him with a sentence of life imprisonment if he did not reveal the whereabouts of the file.
The Applicant claims that he has been beaten multiple times by government security agents trying to force him to tell them where these files are. He claims to have suffered a broken nose in 1996, three broken ribs in 1998 and another beating in 2001.
The Applicant claimed that, after being returned to the Polish border by German officials in 2004, government officers questioned him about the files but specifically about the person, EM. He claims that he told the interrogators that he knew nothing about this and that it was his father’s business but the officers continued to beat him and torture him. He claims that he was charged with conspiracy for having no passport to enter Germany but that he does not need to have a passport to travel to another EU country. The Applicant claims that this illustrates the lengths to which the government forces will attempt to coerce the location of these files from him.
The Applicant claimed that he was beaten so badly on this occasion that his neck was partially broken and he was partially paralysed on his left side.
The Applicant claimed that he was beaten whilst in jail. The Applicant claimed that in 2006, he collapsed in jail and was unconscious. He said that he was dumped at a bus stop where a passer-by noticed his distress and called an ambulance that took him to hospital. He claims that he was told that he had been poisoned.
The Applicant said that the Grypser gang (a criminal organisation) became aware of the fact that the Applicant had files that the government wanted. The Applicant claimed that this gang protected him in jail but there was to be a quid pro quo. The Applicant claims that he was beaten and tortured on two occasions by this gang to either pay them protection money or reveal the location of the files.
The Applicant claimed that this gang even pulled out his teeth with pliers. He claimed that he signed over his apartment to the gang but, because the apartment was registered in his brother’s name, the contract he signed was void. He said that the gang subsequently put out a bounty on his head and on one occasion, targeted his car in a shooting.
The Applicant claims that members of this gang have contacted him on many occasions to issue verbal warnings about how he will be killed and tortured. The Applicant said that a friend of his TS was told by the gang what would occur to the Applicant when he returns to Poland.
The Applicant claims that he has asked the Polish human rights commission for assistance and he received no reply. The Applicant claims he wrote to the District Court in Warsaw on numerous occasions asking for help, but instead he was punished by prison authorities who transferred him to faraway prisons.
The Applicant said that, following the last torture by the Grypser gang, he successfully fled to Bolivia.
The Applicant claims that he has a well-founded fear of persecution because:-
a. he has been subject to false accusations in the past (that he travelled on a false passport to Germany);
b. he will be targeted by the Grypser gang upon return to Poland;
c. he will be targeted by government officials eager to get their hands on the files that he has;
d. he will be targeted by influential individuals whose file he may possess;
e. he will be targeted by EM who is extremely influential (he claims that EM organised the shooting and killing of MP which was associated with the files);
f. he will be subjected to false charges and imprisoned and then killed.
The Tribunal hearing
The Applicant provided the Tribunal with a number of documents which included Wikipedia articles upon some of the influential Polish people he had mentioned in his claims.
The Tribunal received oral evidence from Mr TS who claimed to have known the Applicant through the Polish military service. Attempts were also made to contact the Applicant’s son to provide a statement. A translated statement was given to the Tribunal post-interview. The son said that he was beaten about six months after the Applicant left Poland. When the son was beaten again in 2010, the son told his attackers that his father was in Australia. The son was beaten again in 2013 with the attackers again wanting to know the whereabouts of the Applicant and the files. The son claimed that these men returned in 2015, but he did not answer the door and he subsequently decided to leave Poland.
There was also a non-disclosure notice issued in relation to the Applicant’s Criminal Justice Stay visa.
The Tribunal did note that overall it found, at paragraph 77 of the Court Book, the Applicant “to be a reliable and credible witness whose written and oral claims did not have any significant inconsistencies. However, in this decision, it was not the applicant’s lack of detail or the accumulation of discrepancies that the Tribunal found troubling. It was the fantastic and implausible character of the applicant’s specific and overall claims whereby the applicant entwined a fanciful political conspiracy into his otherwise accepted history involving his father’s background, criminal activities and long term imprisonment” that the Tribunal could not reconcile.
Despite the overall finding of the credibility of the witness, the Tribunal noted a number of inconsistencies in the Applicant’s claims. For example, the Applicant claimed he had stolen 2 boxes of sensitive political information of high ranking officials, but publicly available information indicated that Sluzba Bezpienczenstwa’s (“SB”) files are held by the Institute of National Remembrance (“IPN”). The IPN indeed being the body created in 1998 to prosecute crimes from the communist period. Those files have not been previously made available to the public so it was not possible the Applicant could have accessed those files.
The Tribunal accepted that the Applicant’s father had been a government operative during the communist period. However, the Tribunal rejected the Applicant’s claims that, as a consequence of him allegedly stealing and selling the sensitive files, his father was killed in retaliation. Additionally, the Tribunal found it implausible that the files that the Applicant had stolen had information that was adverse to the interests of highly influential officials in Poland.
The Tribunal noted that, of particular concern, was the claim in relation to how the Applicant was able to stow or hide the sensitive tapes over a long period of time while he was being tortured by the authorities. The Tribunal stated a number of times it was unlikely he would not disclose the information of their whereabouts due to the risks posed to his and his family’s safety.
Additionally, while the Tribunal noted that the Applicant had made specific claims relating to the identities of the people disclosed in these files, it also stated that whoever had compiled these files had a remarkably prescient ability to predict the political fortunes of those people, during the relevant period that these files were said to have been stolen.
The Tribunal also remarked on the implausibility of the Applicant’s claim he when was imprisoned in 2006, he was poisoned and then found unconscious at a bus stop. It was also noted by the Tribunal that this claim that the authorities were trying to kill him was at odds with his other claim that powerful members of the Grypsers provided him with protection in prison.
At paragraph 116 of their reasons, the Tribunal ultimately concluded that:
Based on the highly questionable implausibility of the political aspects of the applicant’s claims as outlined above, the lack of supportive or corroborative documents, his delay applying for a protection visa as well as the number of specific inconsistencies arising from the statement from the applicant’s son, the Tribunal is not satisfied that the claimed series of events and politically motivated acts of harm and threats against the applicant represent a genuine conspiracy to force the applicant to reveal incriminating documents, and that they have not been fabricated in order to be granted a protection visa. These credibility concerns are so deep that the Tribunal is unable to provide the applicant with the benefit of the doubt about the specific political aspects of his claims…
The Tribunal also found that the Applicant was a not a person of interest to the Polish authorities and he had not been mistreated or tortured as a result of his political motivations. The Tribunal rejected the Applicant’s claim that he had been pursued by the Grypsers or any organisation over the alleged stolen files. The Tribunal found further that the Applicant had weaved his family background and criminal past into a “speculative world of opaque political intrigue involving assassinations, organised crime and corruption”. The Tribunal rejected this as a “far-fetched and fabricated political conspiracy”.
The Tribunal noted it had considered the statements provided by the Applicant’s son and the oral testimony of TS, which indicated that the Applicant had been pursued over the stolen files. The Tribunal did not find this evidence credible.
The Tribunal stated that it had considered the Applicant’s criminal history in Poland and it had accepted that the Applicant held a genuine subjective fear of harm. The Tribunal further accepted there is a significant risk of harm to the Applicant from members of criminal organisations in Poland. However, the Tribunal found that the level of state protection available to the Applicant reduced the risk to below a real risk.
The Tribunal considered whether the Applicant would be at risk, in Poland, from having committed a serious crime in Australia. It noted that based on the country information, the Applicant was not at risk of any kind of double-jeopardy.
Finally, the Tribunal also considered whether the Applicant being separated from his “de facto” and child, would engage any protection obligations (see: SZRSN v Minister for Immigration and Citizenship [2013] FCA 751). The Tribunal found that while there may be some emotional and psychological impacts on the Applicant, this would not engage any protection obligations.
The Tribunal was therefore, not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).
On the basis of the Tribunal’s rejection of the Applicant’s claims, the Tribunal was also not satisfied the Applicant met the criterion of s.36 (2)(aa) of the Act and affirmed the decision not to grant the visa (CB 318).
The Application in this Court
The Applicant’s original application listed eight “grounds” of review. These grounds (without alteration) are as follows:
1. THE DECISION IS UNFAIR BECAUSE: a. The respondent in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness. b. The respondent’s decision was unreasonable. c. The respondent took into account irrelevant considerations. d. The respondent failed to take relevant considerations into account. e. There was insufficient evidenceor no evidence to support various findings made by the respondent’s. f. The respondent failed to properly exercise his discretion under s 36(2)(a),(aa),(b) or (c) of the Migration Act 1958 (the Act) and s 5J(1). g. The respondent failed to properly questioning witness. h. The respondent dit [sic] not properly apply s5H(1)(a),(b) of the Act.
It is noticeable that there are a couple of typographical errors in these grounds and that there is no particularity at all to them. Additionally, the Court notes that the Applicant did not comply with the orders of Registrar Benter made on 4 September 2019. The matter was listed to proceed before me on 13 February 2020.
On 29 January 2020, the Applicant filed an application in a case requesting an adjournment of the hearing on 13 February 2020, as well as a Polish interpreter. He also filed two Affidavits. The first Affidavit of the Applicant provided his reasons for his non-compliance with the orders of Registrar Benter, namely that he is unpresented and was awaiting the outcome of pro bono legal assistance. The second Affidavit contained a number of annexures, in English and Polish. These appeared to be a statutory declaration of the Applicant, news articles relating to the Polish mafia and SB, a journal article about AAT decisions in migration law matters and a UN document.
On 13 February 2020, the Applicant appeared before me in Perth via video link from Yongah Hill Detention Centre. He was assisted by a Polish interpreter. Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the Applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
It was also explained to the Applicant that this Court cannot review the merits of the Tribunal decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] and BXT18 v Minister for Immigration and Border Protection [2019] FCCA 2455.
As stated above, I explained to him that he had not filed the application on time and that he was 34 days late in filing the application. The Applicant explained that the conditions of the detention centre did not allow him to seek the legal advice he required and he believed he was entitled to. I explained to him that there were numerous Applicants who had appeared before the Court unrepresented and legal representation was not an entitlement. However, I nevertheless allowed the Applicant’s application and adjourned the matter for 4 weeks. I also explained to the Applicant that the matter would be proceeding whether he received the pro bono assistance or not.
As a result of what happened on this day, the Applicant filed another affidavit on 25 February 2020. This affidavit contained, what seemed to be, further, or substituted, grounds.
Consideration of the application
Upon resumption of the hearing on 12 March 2020, the Applicant appeared in person, together with a Polish interpreter. Because I had explained the proceedings to him in the previous occasion, I allowed the Applicant to make whatever submissions he wished to make to me.
As best as I can make out, there is really only one ground. That ground is that the Tribunal did not undertake an assessment of his claims, under s.36 of the Act, in a proper, lawful manner. I put this to the Applicant and he agreed. The matters that he wished to point out to me were his “particulars” of that ground.
The Applicant claimed that the findings of the Tribunal were not consistent with UN guidelines. He also referred to a “human rights report” that was written in Polish and is not translated. The Applicant claims that this report shows that Poland is not a country that respects the Rule of Law.
The Applicant, in his affidavit, referred to large slabs of the decisions in WAEE v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 and House v R (1936) 55 CLR 499 with no explanation as to how these authorities impact upon his particular case.
The Applicant also complained about matters to do with the Delegate and that the Tribunal did not the errors that the Delegate had made. Obviously the Applicant has misunderstood that the Tribunal is there to look at his matter with a fresh set of eyes. He is also not understood that this Court is reviewing the decision of the Tribunal only.
The Applicant also took issue with particular paragraphs in the decision of the Tribunal and wrote why it was that he disagreed with what was said in each of those paragraphs. At the hearing, I provided the Applicant with an opportunity to say what he wanted to say about why he submitted that the Tribunal had made a jurisdictional error.
The Applicant’s oral submissions mainly were him reading from the affidavit that he submitted on 25 February 2018 and pointing out each of the paragraphs to which he did not agree. The Applicant claimed that the Tribunal did not, to use my words “practice what they preached”, in paragraph 75 of their reasons. He claims that he was not given the benefit of the doubt as he should have been. In reality, the Applicant was seeking to engage the Court to enter into an impermissible merits review exercise.
The complaints that were made by the Applicant were mostly arguments against the findings or conclusions made by the Tribunal. The Applicant complained that documents that he had given to corroborate his story not taken into account. However, the Applicant did not have any of these documents translated, nor did he asked for them to be translated. He did not claim to the Tribunal that the documents corroborated his account. This is illustrated in a submission he made both in his February 2020 affidavit and in the hearing before this Court; that the hospital records would corroborate his story that he was poisoned in a prison and dumped at a bus stop. This was the first time that such a claim was made.
It would be tedious and unhelpful to go through each and every one of the complaints made by the Applicant. They included claims that there was a wrong assessment of the witnesses that the Applicant produced to the Tribunal; that there were improper questions asked by the Tribunal; that s.5J of the Act was misinterpreted; that protection in Poland is not guaranteed; that Poland is guilty of human rights abuses and the country information used by the Tribunal was wrong; and, that the mental health of the Applicant would suffer if he were returned to Poland.
Because my task in this case is not to assess whether or not a jurisdictional error has occurred, but rather to assess whether the Applicant has sufficient merit in his application to warrant this Court giving him leave to file the application out of time, I have not gone through each of the points as I would if this were a review of the Tribunal decision.
There is nothing to suggest that the Tribunal took into account “irrelevant considerations” or failed to have regard to “relevant considerations”. The Tribunal decision, itself, was quite comprehensive and spanned 175 paragraphs. There was no stone unturned by the Tribunal, and there was a full assessment of each of the claims made by the Applicant.
The Tribunal complied with all of its statutory duties. The Applicant was invited to submit material and attend a hearing in which he gave evidence. He was additionally invited to provide post-hearing information. The Applicant accepted this opportunity.
The simple fact of the matter is this: the Tribunal has rejected the Applicant’s story, labelling it as “elaborate”, a “fanciful political conspiracy” and “far-fetched”. The Tribunal also noted a number of inconsistencies and the absence of independent corroborative evidence to support the Applicant’s claims. All of this is within the remit of the Tribunal.
It has been held that the Tribunal may reject an Applicant’s claims on the basis that the narrative provided is inherently unlikely (see: SZKOK v Minister for Immigration and Citizenship [2010] FMCA 90 at [30]. This was certainly an option open to the Tribunal on the evidence provided. The Tribunal reached this conclusion after a careful consideration of the Applicant’s claims. The fact that the Tribunal simply did not accept the narrative provided by the Applicant is not indicative of any error on the part of the Tribunal.
The Applicant took issue with the manner in which the Tribunal considered the separation that would ensue between his biological child and himself if he were to be removed from Australia. The Tribunal noted that the Applicant would “be emotionally and psychologically affected in an adverse manner” if this were to happen.
The Applicant submitted to me that his “concubine” is of Aboriginal descent and has lost the custody of their child (presumably through the actions of a Department of Child Services). He submitted that his child will become “an orphan” if he, the Applicant, is removed from Australia.
However, it is clear from a reading of the reasons of the Tribunal, that this circumstance was well and truly discussed, and engaged with, by the Tribunal.
Notwithstanding that I do not need to go so far as to decide the issue, it seems to me that there is no error evident in the Tribunal’s decision. Accordingly, I do not find that there is sufficient merit in the Applicant’s application to warrant an extension of time.
Consideration of the delay and any prejudice to the Minister
I do not find that there is any merit in the excuse that the Applicant has given for his failure to file his application within the 35 day time limit. The Applicant may be unrepresented, but he seems to have quite a deal of experience with legal systems both here and in Poland. The notice given to him upon the refusal by the Tribunal, was clear that the Applicant had 35 days in which to make this application.
I do take into account that the Applicant has been in detention and may have been moved to different detention centres, but there is no evidence that illustrates what “roadblocks” the detention system put in place so as to prevent him being able to file the application within time.
The fact is that the Applicant did not even apply for an extension of time when he filed the application. Notwithstanding that his application form noted that an extension of time was required if the application was not made within 35 days of the date of the Tribunal decision, the Applicant still ticked the “no” box in answer to the question as to whether he was seeking an extension of time.
It is clear to me that the Applicant was very cavalier as to his responsibilities to file his application within time.
I do note that the Minister has not submitted that there is any undue prejudice afforded to him if the extension of time were to be granted.
Conclusion
Taking into account the lack of a proper explanation as to why the application was filed out of time and the lack of merit in the substantive application, the application for extension of time must fail.
The application is refused with costs fixed in the sum of $7,467.00.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 26 March 2020
Corrections
Corrected on 30 March 2020 at Paragraph 52 with the insertion of “and BXT18 v Minister for Immigration and Border Protection [2019] FCCA 2455”.
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