FSF17 v Minister for Home Affairs

[2019] FCCA 620

FEDERAL CIRCUIT COURT OF AUSTRALIA

FSF17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 620

Catchwords:
MIGRATION –Application for judicial review of decision of the Refugee Review Tribunal.

Legislation:

Migration Act 1958 (Cth)

Applicant: FSF17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 534 of 2017

Judgment of: Judge Young

Hearing date: 19 & 22 February 2019

Date of Last Submission: 22 February 2019

Delivered at: Darwin

Delivered on: 22 February 2019

REPRESENTATION

The Applicant:	In person
Counsel for the Respondent:	Ms Butler

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Ms Symonds is granted leave to withdraw as solicitor for the Applicant.

2. The application for extension of time is refused. 

3. The application filed 22 December 2017 is dismissed.

4. The applicant pay the First Respondent’s costs in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 534 of 2017

FSF17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review of a decision of the Refugee Review Tribunal made on 7 April 2017.  The applicant applied to this Court on 22 December 2017.  His application was thus about three and half years out of time.  I will turn to the application for extension of time in a moment.  The applicant’s claims, essentially, are that he is as an Iranian citizen; he met a woman in 2009 in Iran; it turned out that this woman with whom he developed the relationship was the sister of a member of the Basij which is, as I understand it, a paramilitary or similar organisation attached to the regime in Iran. 

3. The brother disapproved of the relationship and the applicant says that he was picked up, as I understand it, at a Basij checkpoint and beaten and, indeed, tortured by the brother and others and, further, he had acid poured on a tattoo of the woman’s initials.  The tattoo was said to be variously on a hand or on a shoulder.  The applicant said that he continued to be harassed by the Basij after that.  He said that he left and went to another city, Mashhad, but returned, as I take it, to Tehran and resumed a relationship with the woman in 2011. 

4. He said that the woman had told him that her brother may kill him and she urged him to flee and left Iran in 2012 and travelled to Indonesia and eventually to Australia.  He said that he feared harm from the Basij or from the regime because the Basij was influential in Iran and the brother was a powerful person and he would be imputed, because of his relationship with the woman which was said to be irregular or illegal, with anti-regime sentiment and would be harmed as a consequence. 

5. He said that there was also a later summons he received about disturbing the peace in Iran which is referred to by the Tribunal.  Essentially, the Tribunal did not believe the claims made by the applicant about these matters and referred to inconsistencies and implausibilities.  It referred to inconsistencies in the applicant’s narrative and also considered it implausible that the applicant would not have known, as he said he did not know, about the woman’s relationship to her brother.  I am satisfied having read the decision that the Tribunal’s conclusions about the applicant’s credibility or lack thereof were open on the material. Credibility findings, where there is a basis for the finding, is a matter that is within jurisdiction and cannot give rise to jurisdictional error. 

6. I am satisfied that there appears to be a basis for the Tribunal’s conclusions.  The other issue that was raised by the applicant was he asserted that he had converted to Christianity while in Australia and that also put him at risk of harm, presumably under the complementary protection ground but not necessarily, should he be returned to Iran.  Again, the Tribunal assessed the assertions made by the applicant about that and considered that his claims were not credible, essentially, that he had made these claims to boost his protection claims within Australia and that they were not credible claims.

7. The applicant’s application sets out his grounds of application as follows: 

   (1)  I believe the Tribunal committed a jurisdictional error in my case.

   (2)   The Tribunal made assumptions about my truthfulness based on a superficial understanding of my situation and the circumstances that led me to seek asylum.

8. There are no further particulars.  The applicant did not file an outline of submissions and his oral submissions to me today failed to address any recognisable ground of jurisdictional error.  It appears to me that there is very little merit in his application.  In relation to his application for extension of time, as I have mentioned, the application is some three and a half years out of time.  In the application the grounds for extension of time were said to be as follows:

   (1)  My lawyer at Adronicus legal firm advised me of the rejection of my appeal at the Refugee Review Tribunal but did not advise me about applying for judicial review.  We spoke in my language Farsi/Persian.

   (2)   I moved to Darwin.  On 6 March 2015 I paid $3000 to law firm Freeman & Gopal by net transfer in Sydney for advice and representation.  I attempted to contact them by phone on five occasions but they never responded or returned my phone calls.

   (3)   During 2015 and ’16 I moved between Darwin, Adelaide and Sydney and back to Adelaide.  In November 2017, I was advised by the Department of Immigration and Border Protection that I could apply to the Federal Circuit Court for judicial review.

9. In oral submissions, the applicant mentioned those matters and, in addition, mentioned to me that when he was in Darwin he had been bitten by a white-tail spider in 2015 and was hospitalised for a period of about one and a half months.  An application for extension of time under section 477 permits the Court to extend the relevant 35-day period for an application of this Court if it is satisfied that it is necessary in the interests of the administration of justice to make the order.  Things that are conventionally taken into account in assessing whether or not it is in the interests of the administration of justice to extend time include whether there is merit to the application as a significant factor, the adequacy of the explanation for delay and any other relevant matter. 

10. In this case, I am satisfied that there is little merit to the application and I am satisfied that the applicant has not demonstrated any jurisdictional error in the decision of the Tribunal.  I am also not satisfied that there is an adequate explanation or even a plausible explanation for the applicant’s delay: some three and a half years.  The fact is that his troubles with his lawyers were in 2015 shortly after the decision and, similarly, his relatively short period of hospitalisation was also in 2015.  I am not satisfied that there is an adequate explanation for the delay at all and accordingly I refuse the application for extension of time and the application is dismissed. 

11. The application is dismissed and there will be an order that the applicant pay the second respondent’s costs in the sum of $7467.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:13 March 2019