MZAIB v Minister for Immigration

[2015] FCCA 1787

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1787

Catchwords:
MIGRATION – Application for leave out of time – judicial review – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.477

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 297
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
MIAC v SZIAI [2009] HCA 39
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZAIB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1398 of 2014

Judgment of: Judge Harland

Hearing date: 23 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Melbourne

Delivered on: 30 June 2015

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application for an extension of time is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1398 of 2014

MZAIB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review which was filed on

   
   

   15 October 2014. The application for review was filed 240 days outside of the time limit prescribed by section 477(2) of the Migration Act 1958 (Cth). The applicant does not disclose any reason for the delay in his application for an extension of time; he merely states that the decision places his life at risk and if he is forced to return to Egypt, that he will be in a dangerous situation, arrested and will never be released from jail. When making oral submissions today with the assistance of an interpreter. The applicant said that he applied for ministerial intervention, and once that was refused he lodged the application with this Court.

2. The principles which apply with respect to applications for an extension of time are well established. Section 477(2) gives the Federal Circuit Court the discretion to extend the time for filing the application. If an application for that order has been made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order and I note that, whilst the applicant has made the application in writing, he has not addressed the issue of delay in writing at all, and then, secondly, that the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 Judge Foster considered the requirements for an extension of time under section 477 of the Migration Act 1958 and said the following at [47]:

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)  Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

4. The fact that the applicant has applied for ministerial intervention is not sufficient explanation for the delay in filing an application in this Court.

5. The Minister, in its detailed written submissions concedes that there is not a prejudice to the Minister in the application for time being granted but urges the Court to not grant the application for extension of time because there is no merit to the applicant’s application for judicial review. It is necessary to look at the merits of the application for judicial review as part of the consideration as to whether or not the administration of justice requires the extension to be granted. 

6. The applicant sets out grounds for review on page 4 of his application.  It was clear from his submissions before this Court that a lawyer prepared the grounds for him, and there was an error in those grounds where it refers to Lebanon instead of Egypt. The applicant’s complaints are detailed in three paragraphs. The first complaint is that the Tribunal failed to engage in an active intellectual process of the documents the applicant submitted to the Tribunal and that the Tribunal gave no weight to those documents but, rather, made credit findings against the applicant without considering the content of those documents. 

7. Considering that ground first, the applicant was unable to point to any specific portions of the decision which indicated a failure on the part of the Tribunal to consider the documentary evidence that the applicant placed before it. The applicant referred to a document which appears on page 225 of the Court Book (CB) which is an article from ABC News.  The respondent points out that at CB 239 to 240 the Tribunal sets out the evidence which it considered before it. That evidence includes:

   a)The application for a protection visa and written statement.

   b)Copies of the applicant’s birth certificate, military discharge certificate and other certificates.

   c)Various articles on the human rights situation in Egypt.

   d)A copy of an email from the applicant’s brother dated 8 October 2012 stating that people from the Muslim Brotherhood were after him because of his membership of the National Democratic Party (NDP).

   e)A copy of the applicant’s passport.

   f)A copy of the report from the applicant’s psychologist dated 30 September 2013.

   g)A translated copy of the NDP certificate stating that the applicant had been a member of that party.

   h)A translated copy of a certificate from the NDP showing gratitude and appreciation to the applicant’s mother.

8. The article referred to at CB 225 is clearly captured by the Tribunal summary referring to various articles on the human rights situation in Egypt. It was not necessary for the Tribunal to list each article individually.  The applicant had the opportunity by reason of the orders made by a Registrar of this Court on 15 October 2014 to file further evidence, file any amended application, obtain a transcript of the proceedings before the Tribunal and to file and serve written submissions. The applicant did not file any further documents in accordance with those directions made on 15 October 2014.  

9. In order to succeed in his complaint that he mentioned other documents to the Tribunal, but that they were not included, the applicant would need to have obtained a transcript of the proceedings before the Tribunal and to point to parts of the transcript to support his claim.  The Court also pointed out to him that he could refer to specific parts of the decision where he says they did not consider his documents. The applicant did not do so. The respondent addresses this aspect of the applicant’s complaint in some detail and points out that it is clear from various parts of the Tribunal decision that it did consider the documents the applicant put before it. For example, at paragraph 36 of the Tribunal decision, the Tribunal referred to and accepts the applicant’s evidence that his mother received a certificate of appreciation from the NDP. 

10. However, the Tribunal went on to say that, whilst it accepted that the applicant had some local recognition in his neighbourhood, he did not accept that his social service activities made him anything other than a low profile NDP member. From the applicant’s own evidence, he did not participate in direct political activities other than occasionally encouraging neighbours to vote in favour of Mubarek. The Tribunal specifically states that it took into account the email from the applicant’s brother dated 8 October 2012 which stated that some people from the Muslim brotherhood were looking for the applicant. But that email did not outweigh the other concerns that the Tribunal had, including the country information which indicated a lack of targeting NDP members as well as the applicant’s limited profile and the passage of time. The applicant left Egypt in 2008 and was originally in Australia on student visas before applying for a protection visa on 26 October 2012.

11. At paragraph 37 the Tribunal specifically refers to the evidence from the applicant’s psychologist and accepted that the applicant suffers from anxiety and depression. At paragraph 38, the Tribunal accepts that the applicant has a subjective fear of returning to Egypt, but that is not the test that is set out in the Migration Act 1958. 

12. The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows

    The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.

    It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).

    The Act provides for classes of visas: s 31.  Visas may be permanent or temporary: s 30.  One class of visa is a protection visa: s 36(1).  The criterion for a protection visa is provided for in s 36(2).  It relevantly provides:

    (2)     A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

    Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:

    … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.

    Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.

    If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order.  First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.

    Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.

13. The applicant has not been able to point to anything which supports his complaint that the Tribunal did not actively engage in the intellectual process of considering his evidence and documents.  It really seems to be a complaint that would invite the Court to engage in an impermissible merits review.  It is not sufficient for the applicant to disagree and be unhappy with the Tribunal’s decision.  The applicant must establish that the Tribunal has made a jurisdictional error.

14. To the extent that the applicant complains about the Tribunal relying on country information which the applicant says is unreliable, the Tribunal is entitled to consider country information from a variety of sources.  It is not limited to considering country information provided by the applicant.  The issue of what weight to place on evidence and material before it is a matter for the Tribunal and not for the Court – see:  Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 297.

15. The applicant has the onus of establishing that the material was not considered by the Tribunal: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. The applicant has not done this. It is clear from the decision itself that the Tribunal did consider the corroborative evidence that the applicant put forward, but made findings of fact after considering the whole of the evidence before it, which was not limited to the documents provided by the applicant, but also his oral evidence and also country information.

16. The applicant also complained that the Tribunal did not investigate his claim.  As the Minister points out, the Tribunal is not under an obligation to investigate claims.  The duty of the Tribunal is to review the issues rather than make its own inquiries and the only exception to this is where there was a failure to make an “obvious inquiry of a critical fact, the existence of which is easily ascertained.”  See:  MIAC v SZIAI [2009] HCA 39 at [24].

17. The weight the Tribunal puts on country information is a matter for the Tribunal.  See:  NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11-13]. The Tribunal may also rely on the absence of country information. See: NZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. This is relevant because the Tribunal referred to there being a lack of country information indicating that low profile members of the NDP were being targeted.

18. The applicant makes a complaint that the Tribunal’s decision was affected by actual bias.  The applicant did not expand upon that in the application and when asked to expand on that at the hearing the applicant indicated that his lawyer had prepared that and that he felt that he did not understand the basis for the Tribunal’s decision and therefore it must be based on some personal element.

19. What the applicant is inviting the Court to do is to engage in an impermissible merits review. See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is not enough to say that a Tribunal decision maker has been biased because the applicant does not agree with the outcome of the decision. Allegations of bias are a serious matter. I accept the Minister’s comments in his written submissions about the principles applying to allegations of bias and find that there is no substance that would establish any bias on the part of the Tribunal.

20. The applicant has not been able to establish any error of law on the part of the Tribunal. The delay in this case is significant. The applicant has not provided any adequate explanation for the delay.

21. Consequently, there would be no utility in granting the applicant’s application to extend time.  Therefore I will dismiss the application to extend time.

22. In the event that the application was dismissed, the Minister seeks costs fixed in the sum of $5,800 and as costs follows the events, I will make that order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  30 June 2015