MZAHH v Minister for Immigration

[2016] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 34

Catchwords:
MIGRATION – Application to extend time pursuant to s.477 of the Migration Act – application filed over a year after decision of Refugee Review Tribunal – delay not satisfactorily explained – substantive application consisting wholly of merits review – applicant’s prospects of success insufficient to justify extension of time – application dismissed.

Legislation:  
Migration Act 1958, ss.36(2)(aa), 477, 351

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Applicant: MZAHH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1306 of 2014

Judgment of: Judge Burchardt

Hearing date: 11 November 2015

Date of Last Submission: 11 November 2015

Delivered at: Melbourne

Delivered on: 19 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Iskandar (in the adjournment application; thereafter the Applicant in person)

Solicitors for the Applicant: Not indicated

Counsel for the First Respondent: Mr Hill

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The applicant’s application to extend time pursuant to s.477 of the Migration Act 1958 is dismissed.

2. The Applicant pay the First Respondent’s costs.

3. The Second Respondent’s name be changed to ‘Administrative Appeals Tribunal’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

No. MLG 1306 of 2014

MZAHH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. On 11 November 2015 I dismissed an application brought by the applicant’s legal representative to adjourn the matter. I also then, in due course, heard the applicant’s submissions in support of his substantive application for an extension of time in which to bring his application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2013. I indicated that I would give my reasons for declining the application for an adjournment in these reasons for judgment.

The Application for Adjournment

1. The applicant’s legal representative appeared only for the purposes of making the adjournment application. He said he had received instructions to act for the applicant only at the eleventh hour and had not had an opportunity to peruse the Tribunal’s decision to see whether it would or would not be appropriate to seek to file an amended Application.

2. On his instructions counsel informed me that the applicant had been referred to Victoria Legal Aid (“VLA”) in 2014. He had lodged his application on 30 June 2014 and had only heard from the Victoria Legal Aid by letter dated 5 November 2015. This letter, which was tendered as an exhibit, shows that on that date a senior lawyer of VLA wrote to the applicant indicating that VLA would not provide ongoing assistance because the applicant’s chances of success were such that “your application would not succeed at the Federal Circuit Court of Australia”.

3. As I understood the matter, the applicant consulted the firm of solicitors which sought to act on his behalf on 9 November 2015. As I indicated during the hearing itself, I pay no regard to the expression of opinion in the letter from VLA but note that even when it was received it still took the applicant several days to seek to instruct lawyers.

4. The Court’s file shows that on 1 October 2014, orders were made by consent which inter alia set the matter down for hearing before the Court on 11 November 2015. A Court Book (“CB”) was ordered to be filed by 6 November 2014 (something which, in fact, occurred on

   
   

   28 October 2014).

5. The applicant, therefore, was on notice for well over a year of the forthcoming hearing. There was nothing to suggest that the applicant had done anything whatever to chase up VLA in the intervening period to discover what, if anything was happening to any request he had made for assistance.

6. Furthermore, the tenor of the letter tended to the Court from VLA dated 5 November 2015 is not consistent with some long running antecedent inquiry. Its terms suggest the applicant had only recently made contact with VLA. In my view the applicant has been given more than enough time to seek legal representation.

7. While self-evidently the outcome of review proceedings such as these are of very considerable significance to the applicants concerned, the High Court’s observations in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 are still applicable. This Court’s lists are very heavily engaged and any adjournment would not be for a short period of time. It would also mean the Court effectively would waste the half day of hearing that had been allocated to the matter.

8. In all the circumstances, and emphasising again the very substantial amount of time that had been available to the applicant to obtain legal representation, I decided that it was inappropriate to adjourn and declined to do so.

The Substantive Application

1. The originating Application was filed on 30 June 2014. It sought an extension of time in which to bring the Application. This was unsurprising given that the Tribunal’s decision, as earlier indicated, was as long ago as 14 June 2013.

2. The Grounds of Application for Extension of Time are as follows:

   “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. Under the heading “Grounds of Application” there are some 11 paragraphs of grounds set out. It is appropriate to paraphrase these as essentially consisting of merits review grounds in that a number of criticisms are made of the Tribunal’s asserted failure to accept the applicant’s version of events. Additionally, the grounds of application take issue with the use by the Tribunal of country information. There is also a generalised rolled-up reference to jurisdictional error, which it is asserted the Tribunal committed.

4. The Affidavit in support adds nothing to the Application itself.

5. Although Registrar Caporale gave the applicant the opportunity by the consent orders made on 1 October 2014 to file any amended application and affidavits he has not done so. This is unsurprising given the applicant’s lack of English and presumed lack of understanding of the law of Australia. It has the inevitable consequence, as so often in such cases, that the Court is left with the materials in the CB and the written submissions made by the first respondent.

The Submissions Made at Court

1. The applicant, who was by this stage self-represented, responded in terms to various paragraphs in the first respondent’s written submissions.

2. The applicant referred to paragraph 8.3 and said that he had told the Tribunal about the assault. The police asked who had assaulted him and he could not identify anybody so the police refused to write it down.

3. The applicant referred to paragraph 8.4. He said the doctor was writing at night and simply got it wrong.

4. The applicant referred to paragraph 8.5. He said the Tribunal mentioned actions taken by the authorities but no such action was taken.

5. The applicant referred to paragraph 8.6. He said that the Department of Foreign Affairs (“DFAT”) report was wrong. He said the truth is the persecution of Copts continues.

6. The applicant referred to paragraph 27.2 of the first respondent’s submissions. He said that he had told the Tribunal that this was all just talk but not real. He said that after Morsi had left a lot of churches had been burned. This was the exact opposite of what the Tribunal was saying. It was just a matter of show.

7. So far as the delay between the Tribunal’s decision in June 2013 and the Application in June 2014 was concerned, the applicant said the delay occurred because he applied to the Minister. He said it took from July 2013 until June 2014 for the Minister to get back to him. He said that after he lodged his Application VLA were representing him and took his file and said they would get back to him. It took them a year. He said he had got a call from VLA on 2 November 2015 refusing to represent him. He said he was emailed on 4 November 2015 and was here.

8. The first respondent was content to rely upon the written submissions filed. In reply the applicant asserted that the Court had sent correspondence to the address of his cousin.

The Tribunal’s Decision

1. I do not propose to traverse the copious materials in the CB. That is because it seems to me the Tribunal had a clear and cogent understanding of the case the applicant put and the documentation upon which he relied.

2. The Tribunal set out the application for review and the relevant law in unexceptionable terms at CB254-256.  The paraphrase at paragraph 17 (CB256-257) seems to me to be a fair one (see CB79-81).

3. The Tribunal described the review application at paragraphs 21-26 (CB257-258) and I note that because of the delay in the Tribunal’s deliberative processes the Tribunal member re-listened to the hearing and incorporated subsequent events which gave rise to later relevant country information (paragraph 26).

4. The Tribunal set out at some considerable length country information (CB258-265). It was, of course, open to the Tribunal to take into consideration such country information.

5. The Tribunal went on to consider the applicant’s claims of being injured in an incident which took place in Sohag on 28 November 2011. This was the critical event from which it was said that the applicant’s difficulties evolved. At paragraphs 45-46 (CB265) the Tribunal recorded:

   “45.  The applicant described the events of 28 November 2011.  His description was not detailed and included information such as that two people were killed which was probably only known after the event.  His description of how his was assaulted was particularly terse, he simply stated that when he heard people knocking and breaking things in the shop he went out to the street to see what was happening and then after that he woke up in hospital.  He said that he woke up in hospital the next day, about 1 or 2 am.

   …

   46.  He stated that he then went to the police to file a report to the prosecution on 4 December.  He clarified that this was a report to the public prosecution.  He said that he filled out a report about what happened at the shop; that they broke into the shop and stole things from the shop and the house.  Some people knew he reported the incident and he started to get threats.”

6. The Tribunal put it to the applicant that the police report was, in fact, different to what the applicant himself was saying. The Tribunal recorded (paragraph 48, CB 266):

   “I put to him that the report was different to what he had told me, that it did not mention his claimed assault, being knocked unconscious or waking up in hospital, merely recounting that he had heard breaking noises at the shop and their second unoccupied house and had gone to investigate after the perpetrators had finished and found that the house and shop were damaged and that items had been stolen.”

7. The Tribunal records at CB 266 the discussion it had with the applicant at the hearing, from which it is clear that the Tribunal was having considerable difficulty believing the applicant’s version of events. The Tribunal also traversed the fact that the doctor’s report on the Departmental file did not indicate that the applicant had been unconscious or woke up in hospital as he had claimed, and was dated 28 November 2011, not the 29^th, the date the applicant claimed he was discharged (paragraph 54, CB 266).

8. At paragraph 56 (CB 266-267), the Tribunal commenced the kernel of its conclusions as follows:

   “… I do not accept his explanations for why he said he did not mention these things to the prosecution.  As I put to the applicant at hearing, this inconsistency causes me to disbelieve that these things occurred as the applicant said they did.  This further causes me to doubt the applicant’s other claims, and his general credibility.  To put it clearly, I find his testimony to the public prosecution, so close to the events they describe, and the news report, to be convincing.  I find the applicant, in his claims and his testimony at the hearing, to be unconvincing and lacking credibility.”

9. The Tribunal went on to find that the applicant was not assaulted, knocked unconscious or woke in hospital.  The Tribunal gave weight to the doctor’s report and did not accept the applicant’s claims.

10. The Tribunal went on to reject the applicant’s claims that he had subsequently been threatened for reasons that seem to me cogent (paragraphs 59-65, CB 267-268).

11. The Tribunal went on to deal with the country information and the position of Copts in Egypt generally.  The Tribunal gave weight to information from DFAT that most Copts continue to live peacefully with their Muslim neighbours, despite the absence of security and a rule of law, making life more difficult for Copts particularly living in rural and remote communities (paragraph 69-70, CB 268-269).

12. The Tribunal found at paragraph 72 (CB 269) that the applicant:

    “... may be exposed to some low-level harassment and discrimination, which does not constitute serious harm, and that the likelihood of the applicant being killed or seriously harmed as a Coptic Christian, on the basis of the country information above, is remote.  I therefore found that the applicant does not have a well-founded fear of serious harm amounting to persecution.”

13. The Tribunal went on to consider the applicant’s claims against the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (“the Act”) and concluded, based on the same factual findings, that the applicant was not at such risk.

14. The Tribunal went on to dismiss the application accordingly.

The written submissions of the first respondent

1. The kernel of these submissions are set out at paragraph 2 as follows:

   “2.    In summary, the First Respondent (the Minister) contends as follows.

   2.1 It is not in the interests of justice to grant an extension of time to bring the application.  The delay is very substantial (almost a year), and the Applicant has not provided any satisfactory explanation.  Moreover the Applicant’s claims lack sufficient prospects to warrant an extension of time.

   2.2    The Applicant’s claims simply challenge the factual correctness of the Tribunal’s findings.  However, the analysis of country information was a matter for the Tribunal.  It could not be said that there is no evidence before the Tribunal to support its conclusions.”

2. The written submissions went on to deal with the applicant’s criticisms of the use of country information by the Tribunal and submitted, inter alia, at paragraph 26:

   “The weighing up of different country information is generally a matter for the Tribunal.  In NAHI v Minister for Immigration, the Full Court of the Federal Court held:

   [T]he Tribunal did rely on “country information” in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used.  Both the choice and the assessment of the weight of such material were matters for the Tribunal.  The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”

3. The submissions went on to point to information supporting the conclusions which the Tribunal reached.

4. The submissions further supported the factual findings made by the Tribunal in relation to the alleged assault and the doctor’s report, in respect of both of which the Tribunal reached adverse conclusions to the position contended for by the applicant.

Consideration

1. It must first be said that the applicant has not provided an acceptable explanation for his delay in filing his Application. Putting the matter at its highest, it appears to be an assertion that he delayed while seeking ministerial intervention, presumably pursuant to s.351 of the Act. This, of course, was a decision made by the applicant and does not, in my view, constitute an acceptable explanation for the delay.

2. It should be noted that the applicant was represented at the Tribunal hearing by his migration agent, and it is not unreasonable to infer that given that the applicant was told about ministerial review, he would also have been told about the possibilities of judicial review.

3. Further, and even assuming in the applicant’s favour that the delay were to be acceptably explained (which, of course, it is not) there is insufficient merit in the applicant’s case for it to be in the interests of justice to extend time as he seeks.

4. In summary, the applicant’s complaints about the Tribunal’s decision are clearly merits review in each and every instance. The applicant, very understandably, does not like the key factual findings made by the Tribunal and, furthermore, would wish to have achieved a different set of conclusions in relation to the country information. Nonetheless, fact finding of this sort is pre-eminently the role of the Tribunal.

5. There is nothing in the Tribunal’s decision that seems to me to give rise to any likely finding that the Tribunal misconstrued its task or misapplied itself in such a way as to give rise to jurisdictional error.  The applicant’s prospects of success are simply not good enough for it to be in the interests of justice to extend time as he seeks.

Conclusion

1. For these reasons, the applicant’s Application for an Extension of Time will be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  19 January 2016