Edp16 v Minister for Immigration & Border Protection
[2017] FCCA 1659
•18 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDP16 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2017] FCCA 1659 |
| Catchwords: PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 477 |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 Singh v Minister for Immigration and Citizenship [2013] FCA 813 SNSYE v Minister for immigration and Citizenship [2010] FCA 500 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Waterford v The Commonwealth (1987) 163 CLR 54 Reg v The District Court; Ex parte White (1966) 116 CLR 644 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 |
| Applicant: | EDP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3755 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 18 July 2017 |
| Date of Last Submission: | 18 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2017 |
REPRESENTATION
| The applicant appeared in person with the assistance of an Arabic interpreter. |
| Solicitor for the Respondents: | Mr Dominic Eberl (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3755 of 2016
| EDP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) brought by the applicant in circumstances where his application for judicial review was filed on 29 December 2016 in respect of the decision of the then Refugee Review Tribunal now the Administrative Appeals Tribunal (“the Tribunal”) dated 6 May 2015.
Section 477 of the Act is as follows:
“Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or
(d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
Pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order extending the time period.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344); the presence or absence of prejudice to the respondent (see Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15]-[18] per Besanko J); and the merits of the substantive application seeking judicial review (see SNSYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J).
It is also well established that the mere absence of prejudice is not sufficient to justify the grant of an extension of time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J).
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] per Lindgren J; WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] per Lee, Nicholson and Finkelstein JJ).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J, with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] per Finn J; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22] per Cowdroy J; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19] per McKerracher J).
In the applicant’s initiating application for judicial review, filed 29 December 2016, the applicant identified the grounds of his application for an extension of time as follows:
“1. On 6 May 2015 the Refugee Review Tribunal affirmed the decision not to grant a protection visa.
2. On 17 June 2015 a representation was made to the Honourable Minister with extensive evidence in support of my ministerial.
3. Recently the Minister refused to intervene and I had the option to ask the Honourable Court to consider my application under migration act because the Tribunal at the time failed to take into account the proper DFAT view and overlooked my genuine fear of harm.”
(Errors in original)
The applicant was unrepresented before me this morning, although he had the assistance of an Arabic interpreter.
The applicant confirmed to the Court that he relied on the grounds of the application as reflected in his substantive application. I explained to the applicant the matters that I have referred to above in paragraphs 4 to 6 which would operate on the mind of the Court in considering his application for an extension of time.
I confirmed with the applicant that he had not filed any further evidence, either in accordance with directions made by a Registrar of this Court on 11 May 2017 or otherwise, in further support of his application for an extension of time. In fact, the applicant had filed, on 15 May 2017, an affidavit of Mr. Toufic Laba Sarkis, affirmed 15 May 2017, annexing a transcript of the Tribunal hearing. There was an earlier affidavit filed by the applicant on 13 February 2017 of Mr. Toufic Laba Sarkis affirmed 13 February 2017, which appears to be in identical terms to the later affidavit.
The applicant otherwise had no further evidence to rely on, either in respect of the explanation for his delay or in support of the grounds of his substantive application.
I asked the applicant what was the reason for his delay in seeking judicial review. The applicant answered that after the Tribunal hearing, he should have put in another application but on his solicitor’s advice, he did not do so. The applicant answered that it was not his personal fault that he did not get advice to pursue judicial review.
As is clear from the applicant’s application, Ministerial intervention was sought by the applicant on 17 June 2015. The applicant did not suggest that that representation to the Minister was made without his knowledge or authority. His complaint appears to be that it may have turned out to be the wrong advice.
It is well established that an applicant’s conduct in seeking Ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the Tribunal on grounds that may otherwise have been available under the Act (see M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21 at [14]).
Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of each.
The solicitor for the first respondent accurately summarised the background of the applicant’s claims and the Tribunal’s decision in written submissions as follows
“Background
3.The applicant is a national of Lebanon, who arrived in Australia on 19 June 1995 (Court Book (CB) 63). On 22 September 1995, the applicant applied for a PV (CB 1). On 27 June 1996, the application was refused, and the decision was affirmed by the Tribunal, differently constituted in 1997 (CB 25-44). The applicant sought Ministerial intervention in 1997. In 1998, the applicant was notified that the Minister chose not to intervene (CB 45-46).
4.On 13 August 2013, following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), the applicant made a fresh application for the PV. The applicant claimed that (CB 18-20; 92):
4.1. from 1991, he was an active 'Lebanese forces' activist, and due to this, he came under the adverse attention of the Lebanese authorities
4.2. he is a Roman Catholic, and Lebanon is an Islamic state where Hezbollah terrorists have significant influence
4.3. in 1994, Samir Geagea, the leader of the 'Lebanese forces' was arrested for political reasons, and the 'Lebanese forces' were banned.
5.On 13 June 2014, the delegate refused to grant the applicant a PV (CB 102−115). The delegate considered the applicant's claims under the Refugees Convention criteria (s 36(2)(a) of the Act) and the complementary protection criteria (s 36(2)(aa) of the Act). On 14 July 2015, the applicant applied to the Tribunal for review (CB 116−117). On 25 March 2015, the applicant was invited to attend a Tribunal hearing (CB 122−125), which he attended on 5 May 2015 (CB 132−134).
Tribunal Decision
6.On 6 May 2015, the Tribunal affirmed the delegate's decision not to grant the applicant a PV. The Tribunal noted the bar imposed by s 48A of the Act and the decision of the Full Court of the Federal Court in SZGIZ. The Tribunal only assessed the applicant's claims against the complementary protection criteria (s 36(2)(aa) of the Act) (CB 140 at [8]).
7.The Tribunal accepted that the applicant was a low level supporter of the Lebanese Forces from 1987, and participated in Lebanese Forces meetings, celebrations and political 'occasions'. It also accepted that there were tensions between Christian factions and Syrians, and that at the end of the civil war some members of the Lebanese Forces, including Sannir Geagea, were arrested jailed and harassed (CB 141 at [14]−[15]).
8.Having regard to available country information, the Tribunal was not satisfied there was any evidence to indicate that ordinary members and supporters of the Lebanese Forces were at risk of serious harm by Lebanese authorities. When this was put to the applicant for comment at the hearing, he stated he had lost everything and there was no work for him. The Tribunal was not satisfied, on the material before it, that there was a real risk of significant harm to the applicant on the basis of his support for, and association with the Lebanese forces (CB 141−142 at [16]−[18]).
9.In relation to his claims of being a Roman Catholic, the Tribunal noted that at the hearing the applicant did not claim to fear harm due to his religion, or from Hezbollah. The Tribunal accepted that militant Islamic groups and radicals have a presence in Lebanon. The applicant gave evidence that the situation is bad and he would not be able to live with dignity. On the material before it, the Tribunal did not accept this claim. The Tribunal was not satisfied that there was a real risk that the applicant would be subjected to significant harm on the basis of these claims (CB 142−143 at [19]−[20]).
10.The applicant also claimed to fear returning to Lebanon due to instability and tension there. The Tribunal was satisfied this was a risk faced by the population generally and not by the applicant personally. The Tribunal therefore found that there would not be a real risk that the applicant would suffer significant harm as a result of the general instability (CB 143 at [21]).
11.The Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm for any other reason, and affirmed the decision of the delegate (CB 143 at [22]−[25]).
12.On 3 June 2015, the applicant, with the assistance of a lawyer, sought Ministerial intervention for a second time (CB 144−146). The applicant was notified on 6 December 2016 that the Assistant Minister considered the applicant's request and declined to intervene (CB 147−149).”
In support of Ground 1, the applicant stated that he was an active Lebanese Forces activist and that he had a lot of fear because he had been threatened.
The Tribunal accepted that the applicant was a low-level supporter of the Lebanese Forces from 1987 until his departure from Lebanon in 1995. The Tribunal accepted that the applicant had participated in meetings, celebrations and political occasions in Lebanon and that during the Lebanese Civil War, the applicant had provided information to the Lebanese Forces about the location of the army units in his area and that that information was based on his own observations of the movement of the army units in his area.
The Tribunal also accepted the applicant’s claims that at the time he was still in Lebanon, Syrians were still there and that there were tensions sometimes escalating into battles between Christian factions in some areas. The Tribunal also accepted that there was a time at the end of the Lebanese Civil War where Lebanese Forces members were arrested, jailed and harassed, including the Lebanese Forces leader, Samir Geagea.
Having regard to country information before it, the Tribunal found that in 1994, the Lebanese Forces militia was dismantled as part of a general demobilisation of all Lebanese militia groups. The Tribunal also accepted that, in those circumstances, the applicant may have received threats or warnings by anonymous individuals. However, the Tribunal noted that the applicant did not claim to have been harmed in any other way before his departure and that he had continued to reside at the same address and work in the same place of employment.
The Tribunal was not satisfied that Syrian intelligence personnel had asked about him in the last couple of years or that they had any adverse interest in him.
Based on the country information before it, the Tribunal found that the ban on the Lebanese Forces political party was lifted in 2005 and it has since become a legitimate part of the Lebanese electoral landscape.
The Tribunal found there was no evidence before it to suggest that members and supporters of the Lebanese Forces were at risk of serious harm by the Lebanese authorities or anyone else.
The Tribunal noted that it discussed this country information with the applicant at the hearing and noted that the applicant stated that due to his circumstances at the time, he had to leave Lebanon. However, on the evidence before it, the Tribunal was not satisfied that there was a real risk that the applicant would be subjected to significant harm from any source arising from his support for an association with the Lebanese Forces prior to his departure from Lebanon. The Tribunal noted that the applicant did not claim to fear harm due to his religion nor did he claim to fear harm from Hezbollah.
In any event, the Tribunal noted that there was no evidence before it to suggest that Roman Catholics or other Christians in Lebanon had been subjected to significant harm by Hezbollah, radical Islamic groups or anyone else. In relation to the applicant’s expressed general fears and concerns in relation to instability and tension in Lebanon, the Tribunal found that there was no discriminatory factor to that fear in that it was a risk faced by the population generally and not by the applicant personally.
The Tribunal found that there was not a real risk that the applicant would suffer significant harm in Lebanon as a result of general lack of security and instability.
Accordingly, the Tribunal found that the applicant did not satisfy the criteria for protection either in s36(2)(a) Of the Act or the complementary criteria in s36(2)(aa) of the Act. The Tribunal then affirmed the decision under review made by a delegate of the first respondent of 13 June 2014, refusing the applicant a protection visa.
It is clear from the Tribunal’s decision record that it considered in detail the claims made by the applicant to fear harm in Lebanon. It discussed the applicant’s claims with him at the hearing and also discussed with the applicant country information before it. That information indicated that the applicant may not be at risk of harm for the reasons claimed, should he return to Lebanon.
The applicant’s assertions to this Court that the Tribunal failed to consider that he was an active member of the Lebanese Forces and that he had a lot of fear because he was threatened were matters that were considered by the Tribunal.
In the circumstances, the complaint in ground 1 that the Tribunal failed to consider his well-founded fear of harm as an informant of the Lebanese Forces since 1991 would not appear to be made out.
In Ground 2, the applicant asserts that the Tribunal failed to consider country information which the applicant confirmed to this Court was not given to the Tribunal for consideration.
The Tribunal otherwise identified with specificity the country information to which it did have regard. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the circumstances, Ground 2 has no prospect of success.
In Ground 3, the applicant asserts that the Tribunal had failed to see his subjective fear of harm and persecution and the circumstances which he says forced him to leave Lebanon in 1995, approximately a year after Samir Geagea’s arrest. As is clear from the summary of the Tribunal’s reasons above, the Tribunal was aware of the subjective fear of harm claimed by the applicant. However, the Tribunal ultimately found that, based on the evidence before it, the applicant’s fear was not well-founded for the reasons claimed.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, Ground 3 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal.
The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
The Tribunal’s findings and conclusions would appear to have been open to it on the evidence and material before it and for the reasons it gave.
Accordingly, all 3 grounds of the application as identified by the applicant would appear to have no prospect of success or, at best, insufficient prospects of success to outweigh the significant delay by the applicant and the unsatisfactory nature of the applicant’s explanation for that delay.
Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdiction error, none is apparent on the face of the Tribunal’s decision record, and none has been identified by the applicant.
I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision. I also accept the first respondent’s concession that it suffers no prejudice if the court was to grant an extension of time. However, as stated above, it is also well established that the mere absence of prejudice is not sufficient to justify extending time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J).
However, as stated above, there is also a significant public interest in the finality of administrative decisions and (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491).
In the circumstances, in light of the unsatisfactory explanation for the applicant’s delay and the fact that the applicant’s application for judicial review of the Tribunal’s decision appears to have no prospects of success, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended to the applicant to seek judicial review of the Tribunal’s decision.
Accordingly the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 4 August 2017
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