DUY19 v Minister for Immigration
[2020] FCCA 1777
•2 July, 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUY19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1777 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – grant or refusal of visas – credibility findings |
| Legislation: Federal Circuit Court Rules 2001 (Cth), sch.1 Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 477(1) |
| Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | DUY19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 867 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 4 June 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 2 July, 2020 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 3 October, 2019 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 867 of 2019
| DUY19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks an extension of time within which to seek judicial review of a decision of the second respondent made on 13 September, 2018 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa.
The first respondent opposes the application and the second respondent enters a submitting appearance.
On 25 February, 2020 the applicant filed an application to transfer the proceedings to the Hobart registry of this Court for further hearing. That application was not dealt with separately prior to coming on for hearing before me. When the matter came on for hearing, the applicant sought an adjournment on the basis that he wished to retain legal representation. I refused to adjourn the application on the basis that the applicant had been given adequate time to organise legal representation and there was no basis to think that he would be able to organise legal representation at any time in the future. He said that he had legal representation organised in Hobart. However, no lawyer appeared to seek the transfer of the matter to Hobart nor to seek the adjournment.
Background
The applicant is a citizen of the Solomon Islands. He first arrived in Australia on 27 February, 2012 as the holder of a Short Term Business (Class UC) (Subclass 456) visa. He departed and returned to Australia three times before he became an unlawful non-citizen on 19 February, 2013.
On 19 August, 2015 the applicant applied for the visa the subject of these proceedings. His claims to fear harm are set out in his statutory declaration accompanying his visa application. In that statement, he said that he left Solomon Islands because in early January, 2012 he had a secret love affair with a married woman. As a result he has been threatened, abused, harassed, spat on and threats to kill him have been made. He said that on 17 June, 2012 the husband of the woman concerned and some of her relatives came to his house demanding compensation and threatened, hit and punched him. The following day, her husband returned demanding compensation and when he found out that the applicant had escaped, the applicant says that he threatened to burn down the house and kill the applicant.
Notwithstanding these matters, on 10 October, 2012 the applicant returned to Solomon Islands and was secretly picked up at the airport by his friend. He claimed that on 29 October, 2012 he was attacked by the woman’s husband again and he returned to Australia on 18 November, 2012.
On 1 June 2017, a delegate of the first respondent refused to grant the applicant a protection visa on the basis that he was not a person in respect of whom Australia had protection obligations. The applicant applied to the second respondent for review of the delegate’s decision.
On 21 March 2018, the second respondent invited the applicant to attend a hearing on 18 April, 2018. On that day the applicant appeared before the second respondent to give evidence and present arguments.
Following the hearing, the second respondent sent the applicant an invitation to comment on information that it considered would be the reason, or part of the reason, for affirming the decision on review. That information was that the second respondent was aware of a Facebook account that listed the applicant’s current city as Brisbane with a picture of the applicant and his current partner and a list of friends including people in Solomon Islands. In its correspondence, the second respondent pointed out that the information about which it sought the applicant’s comment was relevant to the review because at the hearing he gave oral evidence that formed part of his claim. A part of that claim was that he did not have any social media accounts or Facebook because of his fear that such an account would help identify him and his current location. The second respondent pointed out that if it relied on the information in making its decision, the second respondent might find that the inconsistency between the applicant’s oral evidence and the other information before the second respondent adversely affected the credibility of his claims.
The applicant sent a response to the second respondents’ invitation. In that response he claimed that he stopped using social media in 2013.
On 13 September 2018, the second respondent affirmed the delegate’s decision not to grant the applicant a protection visa. It determined that generally speaking the applicant’s claims were not credible.
The second respondent did not accept the applicant’s evidence “in all but the most basic applications of his claims.” The second respondent accepted that the applicant was from the Solomon Islands, but it had serious concerns about his evidence, which it thought lacked detail and did not accord with ordinary common sense. The second respondent found that the applicant lacked credibility and it considered him to have given evidence in an evasive and dishonest manner. The second respondent went on to catalogue the ways in which the applicant’s evidence cased it disquiet. The second respondent recorded that although the applicant invited the second respondent to contact the woman with whom he claimed to have had an affair, he could not provide any contact details for her. That was so even though a friend of his had obtained a statutory declaration from her by going to her workplace. He also invited the second respondent to contact the applicant’s bother, but could not give any reliable means of contacting him either.
The second respondent was troubled by the applicant’s travel between Australia and Solomon Islands following the affair that the applicant claimed he had pursued. The second respondent said:
27. Given that the applicant had come to Australia and returned to the Solomon Islands on three occasions following his initial arrival in February of 2012, in the time-frame when these threatening episodes were supposedly happening, the Tribunal queried why the applicant returned. The applicant says that he went back to the Solomon Islands because there were no threats while he was in Australia. He says that he waited a lengthy period before applying for the protection visa following his arriving in Australia, as he was ill-informed, and did not know that he could. Considering that the applicant worked in [the workplace] for a 7-year period, the Tribunal does not accept that he would not have understood the concept of a protection visa and availed himself of it at an earlier juncture were his claims genuine.
As to the question of the applicant’s use of social media, the second respondent said:
30. The applicant says that [Mr A] could not contact him in Australia, as it is not easy for [Mr A] to locate him here. The applicant says this is because he is “hard to find”. The Tribunal asked if it was realistic to assume that [Mr A] was still looking for his several years later, having not tried particularly hard to locate him in the several years that have passed since 2012. Given that many persons these days have social media accounts that are public, the Tribunal queried whether the applicant was searchable by social media, and whether [Mr A] might locate him in this way. The applicant denied having any social media accounts, telling the Tribunal he did not use [specified social media], “just in case they saw my face.”
31. In order to be sure to afford the applicant procedural fairness, the Tribunal put to him the Tribunal’s understanding of his evidence, namely that, “You don’t have any [specified social media], because that would increase the possibility that they find you?” The applicant responded with, “Yeah, that’s right.”
32. The Tribunal then logged in to the hearing room computer, and located a [social media] profile that appeared to belong to the applicant and which was publically (sic) accessible. The Tribunal explained that it was important for the applicant to give straightforward and honest answers, and then showed him the profile. The profile, which lists the applicant’s current city as [Australian city], also depicted the applicant with his current partner, whom he has partnered with following his arrival in Australia. The applicant acknowledged that it was his profile, but told the Tribunal he does not use the profile, despite his earlier claiming to have no social media in case he could be located.
33. Following the hearing, on 18 April 2018, the Tribunal offered the applicant the opportunity to respond to the concerns it had in relation to the genuineness of his claims, as he gave oral evidence that he did not have any social media accounts, because of his fear that such an account would identify him and his location.
34. The applicant replied to the Tribunal’s invitation to comment, indicating that “I came to realize that social media could be a possible way for [Mr A], families and relatives to know where about of me. So I decide not to use social media anymore. I stopped using my [social media] account since 2013 for the fact that I don’t trust social media in regard to my safety and security
35. The Tribunal does not accept the applicant’s explanation. Firstly, the [social media] profile pictures him with his current partner, whom he said he had been with for between 2 and 3 years at the time of hearing. As there is a picture revealing them together, it is readily apparent that he must have used the account at some juncture in the past 2-3 years. Further, the applicant himself told the Tribunal of his concerns that he could be located and considers his efforts to now retract his earlier evidence to be disingenuous.
In light of the second respondent’s inability to accept the claims upon which the applicant’s claim to refugee protection were based, the second respondent was not satisfied that the applicant met the criteria in ss.36(2)(a) or (aa) of the Migration Act 1958 (Cth). The decision of the delegate was affirmed.
In this Court, the applicant applies for an extension of time within which to bring an application to review the decision of the second respondent. He filed his application for an extension of time 350 days after the time limited for the filing of the application for review had passed. The decision of the second respondent was made on 13 September, 2018. The present application was filed on 3 October, 2019.
Section 477(2) of the Act provides that the Court may order that the 35 day period prescribed under s.477(1) of the Act be extended if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order for the extension. It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted 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 appeal: SZTES v Minister for Immigration and Border Protection [2015] FCA 719; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391.
The delay in commencing the proceedings by the applicant is significant. The only explanation for the delay appears in the affidavit that he filed with his application. The applicant says that his application is out of time because of his lack of knowledge and that he is not represented by any legal representative. However, it was the applicant’s responsibility to ascertain his review rights and any applicable time limits: SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108. In any event they were notified to him when he received the second respondent’s decision. That the applicant was unrepresented does not, of itself, justify an extension of time being granted: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [9]. These matters weigh against an order for an extension of time.
The first respondent quite properly does not suggest that he will suffer any prejudice if the extension is granted. As the first respondent points out, however, there is the public interest in the finality of administrative decision making and an extension of time in the circumstances may impact on public confidence in the finality of such decisions.
Ordinarily, the most significant matter considered on an application such as this is the merit of the proposed application for review. The Court will have regard to the proposed grounds of review at an “impressionistic level” to determine whether there is sufficient merit in the proposed appeal to warrant an order for the extension of time.
The applicant proposes three grounds of review. In the first he contends that the second respondent made a jurisdictional error because it failed to consider “each integer of my claim or failed to take into account the whole of the oral and written evidence in determining whether I have well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Solomon islands and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of me being removed from Australia to Solomon Islands come out there is a real risk that I will suffer harm”.
The second proposed ground contends that the second respondent discarded the applicant’s evidence without giving “any solid evidence” of its cumulative credibility concerns. The third proposed ground contends that the second respondent failed to apply the correct test in relation to the complementary protection criteria.
None of these proposed grounds of review have any merit, even at an “impressionistic level”. The particulars that the applicant gives to the first proposed ground of review highlight that his complaint with the second respondent’s decision is that it did not believe him. Indeed, the particulars given by the applicant in respect of the other two grounds of review also repeat his claim that his evidence ought to have been believed and was improperly disregarded by the second respondent.
Moreover, in the particulars to his proposed ground one, the applicant seems to assert matters which were not part of his case before the second respondent He asserts in his particulars that he had an extra marital affair with a “Solomon Islands police relative”. Although there is an oblique reference to the person with whom he had an affair being related to someone in the police service in the statutory declaration that he swore for his visa application, he told the second respondent at the hearing that the woman with whom he had an affair “may” be related to someone in the police force. Further, he sets out in the particulars to this proposed ground that he will be killed by the Solomon Islands police and “authorities” and that the local authorities “were guided by the local police of Solomon Islands”. None of that, however, formed part of his claims in his original visa application or his evidence as recorded by the second respondent in its reasons for decision. There is nothing to suggest that the way in which the tribunal has recorded the applicant’s evidence is inaccurate.
The credibility findings made by the second respondent were based on rational grounds and arrived at following a consideration of matters that were logically probative to the issue of credibility. I accept the first respondent’s submission that it cannot be said that the decision lacked an evident and intelligible basis or that no other rational or logical decision maker could not have drawn the same conclusions as those drawn by the second respondent in this case.
Further, the second responded correctly identified the meaning of significant harm and set out s.36(2)(aa) of the Migration Act in its decision. The second respondent was plainly aware of the tests to be applied to properly determine the applicant’s claim for complementary protection. Relying on its earlier factual findings, the second respondent was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed, he would face a real risk of significant harm. That course was properly open to the second respondent.
Conclusion
I accept the first respondent’s submission that the applicant’s proposed grounds of review amount to nothing more than an attempt to engage in impermissible merits review of the second respondent’s decision. Even at an impressionistic level, there is no argument that would permit the Court to conclude that the second respondent has fallen into jurisdictional error.
Accordingly, the extension of time must be refused and the application dismissed with costs. Costs should be fixed in an amount pursuant to Part 3 Division 1 Item 2 of Schedule 1 to the Federal Circuit Court Rules 2001.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 July, 2020.
Associate:
Date: 2 July 2020
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