Ezq17 v Minister for Immigration

[2018] FCCA 1995

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1995

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – show cause application filed out of time – refusal of an extension of time following reinstatement of the application which had been dismissed due to the applicant’s non attendance.

Legislation:
Migration Act 1958 (Cth), ss.36, 425, 425A, 476, 477

Cases cited:
Minister for Immigration v Ahmed (2005) 143 FCR 314
Wu v Minister for Immigration (1994) 48 FCR 294
Yilmaz v Minister for Immigration (2000) 100 FCR 495
Zubair v Minister for Immigration (2000) 139 FCR 344

Applicant: EZQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3512 of 2017

Judgment of: Judge Driver

Hearing date: 23 July 2018

Delivered at: Sydney

Delivered on: 23 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Perotti of Sparke Helmore

INTERLOCUTORY ORDERS

1. Orders 1 and 2 of 13 June 2018 are set aside.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3512 of 2017

EZQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. I have before me an application in a case filed on 29 June 2018 seeking the reinstatement of a proposed judicial review application lodged on 16 November 2017. The judicial review application was itself filed out of time and, thus, called for an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Migration Act). However, on 13 June 2018, the applicant failed to appear for the hearing of that application, which was dismissed on account of that non-appearance, with a subsequent costs order.

2. The application in a case is supported by an affidavit to which is annexed a medical certificate from Dr Raja Annamuttu, which states that the doctor examined the applicant and expresses the opinion that he was suffering from an upper respiratory viral illness and would be unfit for Court on 13 June 2018.  I have accepted that evidence and in consequence of it, I have ordered that orders 1 and 2 made on 13 June 2018 be set aside.  It is then necessary to consider whether the applicant should receive an extension of time for his substantive application.

3. As noted in the Minister’s submissions, the issues are in general terms: the extent of the delay, the applicant’s explanation for the delay and the merit of the proposed judicial review application.  The extent of the delay in this matter is relatively short, about seven days.  The applicant has supported his proposed judicial review application with an affidavit in which he refers to financial problems causing him to delay filing the judicial review application until he had secured funds to pay the filing fee.  That explanation does not of itself provide a persuasive reason to delay coming to court, given that a waiver of the filing fee could have been sought, but in my mind, the more significant question is whether the proposed judicial review application has any legal merit in it. 

4. The background to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 5 June 2018.

Applicant’s claims

1. On 14 October 2014 the applicant, a citizen of Ghana, arrived in Australia on a visitor visa.[1]  On 29 January 2015, the applicant applied for the visa, with the assistance of his migration agent.[2]  The applicant’s claims can be summarised as follows:

   a)as deputy assistant director to the Minister of Education, he conducted an investigation into corruption in the Ashanti region in relation to high school fees.  He found the system was corrupt.  He reported the matter to his superior and to police, but nothing was done;[3]

   b)on 17 August 2014 at 2:00 am, his house was broken into and his family assaulted by thugs hired by a school headmaster who was being investigated and who found out he had informed authorities (the assault).  His partner was raped in front of him and their children and they were physically assaulted.  The thugs took their mobile phones, burnt his car and warned him to mind his own business or they would kill him.  The applicant and his partner went to the hospital for treatment the next day and the doctor refused to report the matter to police for fear of revenge.  The applicant reported the matter to police and followed up many times, but no one was arrested.  After being released from hospital, on 2 September 2014, his partner left and went to live with her parents and took the children;[4] and

   c)he did not move to another part of the country or another country as the thugs could travel to those countries to kill him.  He travelled to attend the International Education Conference in Brisbane on 12 October 2014.  He has received threatening text messages in Australia.[5]

   [1] Court Book (CB) 96

   [2] CB 1-35

   [3] CB 30

   [4] CB 31

   [5] CB 31

2. On 13 August 2015, a delegate of the Minister (delegate) refused to grant the applicant the visa.[6]  On 26 August 2015, the applicant applied for review of the delegate’s decision to the Tribunal with the assistance of his migration agent.[7]  On 28 September 2017, the applicant appeared at a hearing before the Tribunal with the assistance of his migration agent.[8]  On 5 October 2017, the Tribunal affirmed the decision under review.[9]

   [6] CB 92-106

   [7] CB 107-108

   [8] CB 128-130

   [9] CB 134-148

Tribunal decision

1. The Tribunal noted its obligation to provide the applicant with a real opportunity to present his case.[10]  It considered the trauma the applicant said he had suffered as a result of the assault, but was not satisfied that it explained or mitigated the adverse credibility concerns it had.[11]  The Tribunal was satisfied the applicant was given a real opportunity to put evidence and submissions in support of his case.[12]

   [10] CB 136, [11]

   [11] CB 136, [11]

   [12] CB 136, [13]

2. In relation to the possibility of protection within other Economic Community of West African States (ECOWAS), the Tribunal noted that country information it obtained indicated that the free-movement protocols of the agreement were not widely known by government officials responsible for their implementation and there were additional weakness in the agreement.[13]  Consequently, it did not consider “statutory effective protection” in an ECOWAS country and did not draw any inferences from the applicant not having sought temporary protection in another ECOWAS country.[14]

   [13] CB 137, [16]

   [14] CB 137-138, [18]

3. The Tribunal accepted that the applicant’s director tasked him with making enquiries about corrupt practices within the Ashanti region’s education system in late 2013 or early 2014 and that he reported the corruption he found to his director and to police.[15]

   [15] CB 139, [21]

4. The Tribunal considered the applicant’s claim of the assault in detail.[16]  The Tribunal noted inconsistencies in the applicant’s evidence about his relationship with his former partner, and did not accept the applicant’s reasons for the discrepancies.[17]  On this basis, the Tribunal noted this was one reason that caused it to find the applicant was not generally credible.[18]  The Tribunal noted inconsistencies in the applicant’s evidence about leaving his home town after the claimed assault and was satisfied that he remained living at his usual address in Kumasi.[19]  In making this finding, the Tribunal found the applicant’s claims about the assault to be false.[20]  The Tribunal considered if it were wrong in this regard, it would find (based on country information) that any attack on the applicant and his family was a tragic and random violent incident that would not now give rise to a real chance of serious harm in Ghana.[21]  The Tribunal was not satisfied that the applicant had a real chance of serious harm because of the claimed assault.[22]

   [16] CB 141, [29]-[33]

   [17] CB 141, [30]

   [18] CB 141, [30]

   [19] CB 141, [31]

   [20] CB 141, [31]

   [21] CB 141, [32]

   [22] CB 141-142, [33]

5. The Tribunal was not satisfied that the treating doctor refused to report the assault for fear of revenge.[23]  It accepted that the applicant’s partner took their children to live with her parents in Accra, but did not accept that this was for the reasons claimed by the applicant; rather it found the marriage had finished at the time and they had decided to separate.[24]  The Tribunal also noted that, if the applicant’s director knew of the corruption, she or he may have been subjected to the same harm as claimed by the applicant, but the applicant had not claimed this.[25]  It found this to be a further reason to find that the applicant’s claims about the consequences of his investigation were exaggerated, if not fabricated.[26]  The Tribunal did not accept that the applicant’s brother in Ghana received strange phone calls about him, noting that this claim was not raised until near the end of the hearing and that the applicant would have raised this claim at the commencement of the hearing if it were true.[27]  Nor did it accept that anyone was seeking to locate the applicant in Australia, that a person with whom he worked on the investigation was killed, or that the applicant was of any ongoing interest to anyone in Ghana for any reason claimed.[28]  Overall, the Tribunal was not satisfied that the applicant faced a real chance of serious harm in Ghana from any ongoing threats.[29]

   [23] CB 142, [35]

   [24] CB 142, [36]

   [25] CB 142, [37]

   [26] CB 142, [37]

   [27] CB 142-143, [38]

   [28] CB 143, [39]-[42]

   [29] CB 143, [43]

6. The Tribunal had regard to country information about failed asylum seekers who returned to Ghana.[30]  It did not consider the applicant had any profile that would give rise to harm on return as a failed asylum seeker and was not satisfied that he had a real chance of serious harm on that basis.[31]

   [30] CB 144, [44]

   [31] CB 144, [45]-[46]

7. The Tribunal also considered the applicant’s Christianity and ethnic background as an Akan Ghanaian.[32]  It was not satisfied that the applicant had a real chance of serious harm for these reasons.[33]

   [32] CB 139-140, [23]–[28]

   [33] CB 140, [28]

8. Overall, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or met the refugee criterion in s.36(2)(a) of the Migration Act.[34] Having regard to its anterior findings, the Tribunal was also not satisfied the applicant faced a real risk of significant harm for any of the reasons claimed or that he met the complementary protection criteria in s.36(2)(aa) of the Migration Act.[35]

   [34] CB 144, [47]-[48]

   [35] CB 145, [51]-[53]

The proposed judicial review application

1. The grounds in the judicial review application are:

   1.Breach of Procedural Fairness

   Particulars:

   The First and Second Respondent breaches procedural fairness, breaching the natural justice rule in reaching their decision in relation to the refusal of my application for protection visa.

   Accordingly the First and Second Respondent breached procedural fairness by not considering my situation and information and evidence provided to them. In their decision is in breach of natural justice. 

   2.In Relation to the extension of time. I was in financial hardship and I did not have the application fees for the application to be file or instruct a solicitor.

   Particulars:

   Due to my financial situation I was not able to file my application for review on time and it was not possible to file without paying the application fees. Now I managed to pay application fee and apply.

2. I also have before me as evidence the court book filed on 5 February 2018. 

3. I invited the applicant’s submissions this afternoon on the question of an extension of time.  He told me of various difficulties he faces, including his fear of returning to Ghana, his ongoing health difficulties, his inability to work and, hence, a shortage of money, and the fact that he no longer has a Ghanaian passport.  He fears that if he is required to return to Ghana, he will be seriously harmed almost immediately.  As I explained to him, the merits of his protection application are beyond the scope of this proceeding.  His health concerns and other issues may raise humanitarian issues which could be considered by the Minister if he were so minded.  They also are beyond the scope of this proceeding.

4. The applicant is unable to advance any arguable case of jurisdictional error by the Tribunal.  I agree with the Minister’s submissions concerning the lack of merit in the proposed application. 

5. Ground 1 contends that both the delegate and the Tribunal breached the procedural fairness obligations by not considering the applicant’s situation and information and evidence.  To the extent ground 2 challenges the delegate’s decision, this Court has no jurisdiction to conduct a review of the delegate’s decision.[36]  Further and in any event, it is well established that if the Tribunal’s decision is not flawed, it cures any defects and irregularities in the delegate’s decision.[37]

   [36] Section 476(2)(a) and s.476(4) of the Migration Act

   [37] Wu v Minister for Immigration (1994) 48 FCR 294; Yilmaz v Minister for Immigration (2000) 100 FCR 495; Zubair v Minister for Immigration (2000) 139 FCR 344; Minister for Immigration v Ahmed (2005) 143 FCR 314.

6. Insofar as this broad assertion attacks the Tribunal’s decision, the applicant has not specified the information and evidence that the Tribunal is said to have failed to consider and for this reason alone this ground should not succeed. Further, there is nothing before the Court to suggest that the Tribunal did not otherwise comply with its obligations under Part 7, Division 4 of the Migration Act. By invitation dated 21 July 2017, the applicant was invited to attend a hearing before the Tribunal on 28 September 2017 in compliance with s.425 and s.425A of the Migration Act, which he attended with his migration agent. The Tribunal had regard to the claims of the applicant and discussed the applicant’s claims and evidence with him at the hearing. The Tribunal made findings that were reasonably open to it on the material before it.

7. Ground 2 provides reasons for the delay in filing the application for judicial review, in support of the application for an extension of time. This is not a proper ground of review and could not establish jurisdictional error by the Tribunal.

8. Accordingly, the grounds of the substantive application do not reveal a sufficiently arguable basis to support the extension of time application.

Conclusion

1. I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case and the application for an extension of time is refused pursuant to s.477(2) of the Migration Act. It follows that the application is incompetent for want of jurisdiction.

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in the sum of $4,500.  Noting the Minister’s work in preparing for the first hearing in this matter and extending to the hearing today, I am satisfied that costs of not less than that amount have been reasonably and properly incurred. 

3. The applicant refers to his impecuniosity, but as it has been repeatedly stated, that is not a reason for the Court to refrain from making a cost order.

4. The applicant appealed for help and referred again to his ongoing health conditions and his absence of work.  His humanitarian circumstances may be a reason for the Minister’s Department to consider writing off or waiving the debt established by a costs order if such a request were made.  The circumstances do not, however, persuade me that the Court should refrain from making a cost order. 

5. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

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

Associate: 

Date:       25 July 2018