MZAHG and Minister For Immigration and Anor

[2015] FCCA 2726

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHG & MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2726

Catchwords:
MIGRATION – Judicial review of refusal of protection visa – application to reinstate – application for extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Mima v Yusuf (2001) 206 CLR 323
SZSDA v Minister for Immigration and Citizenship & Refugee Review Tribunal [2012] FCA 139

Applicant: MZAHG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1305 of 2014

Judgment of: Judge McGuire

Hearing date: 6 October 2015

Date of Last Submission: 6 October 2015

Delivered at: Melbourne

Delivered on: 29 October 2015

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave be granted to amend the name of the second respondent to ‘Administrative Appeals Tribunal’.

2. Leave be granted to the applicant to reinstate his substantive application for judicial review.

3. The applicant’s application for extension of time is hereby dismissed.

4. The applicant pay the first respondent’s costs fixed in the quantum of $1,800.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1305 of 2014

MZAHG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed 17 June 2015 asking that the orders of 3 June 2015 dismissing the substantive application be “stayed or set aside”.

2. In support of that application the applicant relies on an affidavit sworn 17 June 2015 where he deposes:

   (1)  I am the primary applicant in this proceeding; 

   
   
   

   (2)  I seek further review of a decision by the Migration Review Tribunal 19/12/2014 to refuse to accept my application for review; 

   
   
   

   (3)  A judgment was made in my absence.  I did not have the financial capacity to pay for the legal submissions requested; 

   
   
   

   (4)  I request the opportunity to present my own case and draft my own submissions;. 

   
   
   

   (5)  A copy of the judgement (sic) made 3^rd June 2015 is annexed herto (sic) and marked “annexure A”;

   
   
   

   (6)  I didn’t receive the second hearing date letter so I don’t know the date or time.

3. The application for reinstatement is opposed on the following bases:

   i)That the applicant does not provide a reasonable explanation for his non-attendance in Court;

   ii)That, in any event, there is no merit to the substantive application.

4. The applicant appears in-person now and with the assistance of an interpreter. 

5. The substantive application filed 30 June 2014 seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) dated 29 November 2013 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”).

6. The matter before me now is further complicated by the applicant requiring the indulgence of an extension of time to file his substantive application.  The application for judicial review was lodged some 178 days outside of the 35-day time limit.

7. The application for an extension of time is also opposed.  Obviously, the argument by the first respondent as to a lack of merit in the substantive application and, therefore, one of futility is again raised here.

Reinstatement Application

1. The applicant made some oral submissions consistent with his affidavit material set out above. The applicant says that his financial relationship with his then solicitors was in the process of breaking down.  Significantly, however, he says that he did not receive notification of the hearing date.  A document was tendered in evidence which supports that submission in that it appears that the notice of the hearing was sent to an address other than that given on the applicant’s notice of address for service.  Whilst there is some hearsay evidence to suggest that the applicant might also have received the notification of the hearing date from his then solicitors, I am satisfied that there is sufficient doubt as to the correct administrative process having taken place that I should give the benefit of the doubt to the applicant.  Consequently, I am persuaded on this argument, and without entering into the merits of the substantive argument, that the applicant’s substantive application be reinstated.  I will order accordingly.

Extension of Time on the Substantive Application

1. The first respondent opposes this application on the grounds of both unsatisfactory explanation for the delay and on the merits of the substantive application and, hence, there being futility in granting the application for an extension of time. 

2. In his substantive application and under the heading “Grounds of Application for Extension of Time” the applicant makes the following submissions in full:

   (1)  I relied on representations made to the Coptic Church by the Minister of Immigration and Border Protection that he would give careful consideration of all refugee cases supported by the leadership of the Coptic Church in Australia;

   
   
   

   (2)  The Minister failed to adequately consider the case;

   
   
   

   (3)  I therefore wish to place before the Federal Circuit Court my contentions that the Refugee Review Tribunal made decisions based on errors of law and that the decisions ought to be put aside and the matter referred to the Refugee Review Tribunal to decide according to law.

3. It is well established that in respect of an application for an extension of time the Court must consider:

   i)The duration of the delay;

   ii)The reasons for the delay;

   iii)The relative prejudices to the applicant and/or the respondent on the refusal of the extension or the grant of the extension of time respectively;

   iv)Matters of public interest;

   v)The merits of the substantive application.

4. The delay in this matter is a lengthy one of some 178 days which I calculate to be approximately six months.

5. The public interest and the public purse are served by prudent administration of justice.  Time limits are enshrined in the legislation for a reason.  They are not simple invitations or suggestions as to the lodgement of documents, but to provide “limitations”.

6. The applicant here says that he relied on representations made to the Coptic Church, of which he is a member, by the Minister of Immigration and Border Protection. The applicant does not particularise this claim in the sense of timing of or content of the alleged representations. There is no corroborative material, as for example from the person to whom the representations were allegedly made.

7. In any event, there is ample authority to the effect that a party does not raise a reasonable explanation for a delay in lodging an application for judicial review by electing to visit his complaint upon the Minister rather than bring the application to the Court within the time limits prescribed.  Those authorities make it clear that ignorance of the obligations under the regulations is not of itself a satisfactory excuse of explanation[1].

   [1] SZSDA v Minister for Immigration and Citizenship & Refugee Review Tribunal [2012] FCA 139 at [38]

8. Prima facie there would, of course, be a prejudice to the applicant if an extension of time is not granted and as a consequence he is unable to prosecute his application before this Court.  The result would be that his ambitions for a visa would be thwarted.  This is, however, only one consideration for the Court to be balanced against all of the others.

The Merits of the Substantive Application

1. The grounds of the application, in fact, mostly constitute a narrative or chronology.  They are set out under nine paragraphs in the application as follows:

   (1)  I was a Deacon and Sunday School teacher in El Ghorizat, Egypt from 2006 to 2011.  I (sic) a Coptic Christian;

   
   
   

   (2)  I was threatened by Mustafa Bakry, the father of a Muslim boy who I was accused of attempting to convert to Christianity.  I was later attacked by Bakry in August 2011;

   
   
   

   (3)  I reported the assault, evidenced by a doctor’s report to police who forced me to mediate with Bakry and abandon all legal rights; 

   
   
   

   (4)  I then left for Alexandria in August in 2011 because of continuing threat of violence;

   
   
   

   (5)  The Tribunal referred to Country information concerning increasing Muslim-Christian violence.

   In paragraph 63 of the decision, the Tribunal member referred to the increase in Muslim-Coptic violence since the fall of the Mubarak regime.  In particular, he quoted the US Commission on International Religious Freedom 2012 annual report as follows:[2]

   “Violent sectarian attacks targeting Coptic Orthodox Christians and their property also increased significantly.  In 2012 Coptic and Human rights groups reported more than 40 sectarian incidents resulting in nearly 100 deaths, mostly Coptic Christians, surpassing the death toll of the previous 10 year combined.  In most cases, perpetrators have not been convicted.  In other cases, alleged perpetrators have been detained for short periods but eventually released without charge.  The ongoing violence and the failure to prosecute those responsible continued to foster a climate of impunity, especially in Upper Egypt”. 

   (6)Many other international reports mirror the above findings and are not (sic) out in paragraph 61-66 of the RRT Decision.

   (7)The member unreasonably suspected my evidence of persecution and threats and referred to country information in her decision but specifically found in paragraph 32 of her decision that the risk of harm to Christian in Al Ghorizat are other than isolated and circumstance specific.

   (8)That I believe that the decision of the Minister is so unreasonable as to amount to an error of law.  I have been referred to the case of Mima v Yusuf (2001)[3] and in that case the judges stated: “If the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its jurisdiction to make the decision he or she made and the decision was not authorised by the Act.”

   (9)I request this honourable Court to grant the orders I seek in my application. 

   [2] Refugee Review Tribunal decision 29 November 2013 at page 16

   [3] 206 CLR 323

Background.

1. The applicant is an Egyptian citizen.  He arrived in Australia on a Temporary Business Entry (Class UC) (Subclass 456) visa (“the business visa”) on 11 February 2012 valid for one month.  On 8 March 2012 the applicant applied for a protection visa. 

2. 28 June 2012 the Minister’s delegate refused the grant of a protection visa. 

3. On 17 July 2012 the applicant sought a merits review of the delegate’s decision before the Tribunal. 

4. On 25 September 2012 the Tribunal invited the applicant to attend a hearing before it scheduled for 4 December 2012.

5. On 1 December 2012 the applicant’s representative provided the Tribunal with written submissions and various documents in support of the applicant’s application.

6. The applicant attended the hearing, accompanied by his representative and an interpreter, on 4 December 2012.  The hearing was subsequently adjourned to 8 March 2013 and the applicant was again invited to attend.

7. On 14 March 2013 the applicant’s representative provided further documents to the Tribunal.  Translated documents were provided to the Tribunal on 26 March 2013. 

8. The Tribunal refused the applicant his application on 29 November 2013, advising him by letter of 2 December 2013. 

9. The application to this Court was lodged on 17 June 2015.  The prescribed time limit under the regulations is 35 days following presumed receipt of the Tribunal’s decision. 

The Tribunal’s decision

1. The Tribunal accepted that the applicant was a Coptic Christian but did not accept that his alleged fear of persecution in Egypt was well-founded [11] and [16].  At [17-18] the Tribunal expressed its doubts as to the credibility of the applicant’s claims.  Further, the Tribunal found some of the applicant’s claims to be “implausible” [22-23].  The Tribunal made other findings in respect of the applicant’s evidence to be “inconsistent, implausible, vague, and undetailed” [24-26] At [27] of its reasons, the Tribunal says:

   The above matters and findings relate to core claims, and taken cumulatively leave me in such profound doubt about the applicant’s overall account of his circumstances in Al Ghorizat that I am not willing to accept any aspect of it.  I do not accept that the applicant had any deacon or teaching or outreach role with the church El Ghorizat or that his stated conflict with Bakry (and his friends) ever occurred – or that he was subsequently beaten unconscious or that he (or his brother or father) were ever threatened about the applicant or harmed in any way, or that he left Al Ghorizat due to these stated circumstances.

2. At [32] the Tribunal states:

   Even accepting credible reporting of sectarian tension and episodic violence Sohag, and other areas of Upper Egypt, I do not accept the material before me soundly supports the view that that (sic) instances of death and serious harm to Christian in Al Ghorizat are other than isolated and circumstance-specific.  I am not willing to extrapolate from these – or isolated, episodic incidents in various locations throughout Egypt – that the applicant, in his accepted personal circumstances, faces any real or serious harm in Al Ghorizat, now or in the reasonably foreseeable future, for any reason, including his religion. Even accepting that episodic sectarian violence flares at times in Upper Egypt – including in Sohag – often reactive to local circumstances or political developments, I find the information provided by the applicant does not indicate or soundly support the view there are more than very isolated circumstance-specific instances of serious harmed (sic), including by injury or death to Christians in Sohag generally, or Al Ghorizat specifically.  I find there is no real chance that the applicant (or his family members) – in all his accepted circumstances – will be seriously harmed or killed there in any such violence, now or in the reasonably foreseeable future.

3. The Tribunal considered country information from various sources, including from the applicant and his own representative, such being set out in detail and referenced at [61-69]. 

4. The Tribunal considered the applicant’s claims individually and cumulative and found that the applicant did not face a real chance of persecution in Egypt.  Similarly, the Tribunal concluded that the applicant did not satisfy the complementary protection criteria [39-41]. 

Substantive Application to this Court

1. The applicant did not make written submissions in support of his application, pursuant to the orders and directions of the Registrar.  Nevertheless, and with the assistance of an interpreter, he was offered the opportunity to make oral submissions at the hearing.  Those submissions suffered by the apparent common misunderstanding that this Court provides yet another forum for a merits review.  Therefore, from the grounds of complaint set out above and from the applicant’s oral submissions, I glean his grounds of complaint to be summarised as follows:

   (I) that the Tribunal’s determination was so unreasonable as to amount to an error of law;  and/or

   (II) that the Tribunal ignored relevant material and/or relied on irrelevant material and/or asked itself the wrong question and/or identified the wrong issue (hence the reference to Yusuf (2001) 206 CLR 323).

2. The applicant complains that the Tribunal took into account the available country information, but that “many other international reports mirror the above findings and are not (set) out in paragraph 61-66 of the RRT decision.”

3. The applicant does not particularise what other country information was or should have been available to the Tribunal. 

4. The applicant does not argue that, specifically, country information was available and not considered by the Tribunal.

5. It is well established that it is not for the Tribunal to argue the applicant’s case for him. 

6. At paragraph [7] of his grounds of application, the applicant refers to [32] of the Tribunal’s decision.  He suggests that the Tribunal’s determination might be contrary to, or unreasonable within context, to the applicant’s evidence and the country information.  However, at [32] it is properly characterised by the initial premise “even accepting credible reporting of sectarian tension and episodic violence…”  The Tribunal goes on to say:

   I do not accept that the material before me soundly supports the view that the instances of death and serious harm to Christians in El Ghorizat are other than isolated or circumstance specific.

7. It is clear, therefore, that the Tribunal is exercising its proper role in making determinations of fact and credit.  In doing so it has properly referenced the “credible reporting of sectarian tension and episodic violence”.  In this sense, the reference and assessment of country information is a factual matter for the consideration of the Tribunal.  I am persuaded that the findings were open to the Tribunal on the available evidence and a full reading of the Tribunal’s reasons do not indicate any unreasonableness of logic from the evidentiary base to the findings.  Similarly, the applicant does not assert what, if any, irrelevant material was considered by the Tribunal, and he does not specify what, if any, relevant material was not considered.  He does not particularise the Tribunal asking itself a wrong question.  Again, however, on a considered reading of the Tribunal’s reasons, I am not persuaded that there was a failure on any of these counts. 

8. Therefore, I find no merit in the applicant’s application in respect of what I see as his two proper grounds of complaint. 

Conclusion

1. Consequently, not being satisfied that the applicant has provided a persuasive argument in respect of the lengthy delay in lodging his application to this Court, and also not being satisfied as to the merits of the substantive application, his application for an extension of time is refused and the substantive application dismissed.  There will be orders accordingly, together with an order that the applicant pay the first respondent’s costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 29 October 2015