MZAJA v Minister for Immigration

[2015] FCCA 3566

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3566

Catchwords:
MIGRATION – Application for judicial review brought more than a year
after the expiration of the 35 day period prescribed by s.477 of the
MigrationAct 1958 – no adequate explanation for the delay – application refused.

Legislation:

Migration Act 1958 (Cth), s.477

Craig v South Australia (1995) 184 CLR 163
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
SZMNO v Ministerfor Immigration [2009] FCA 797
SZSDA v Ministerfor Immigration [2012] FCA 1319
SZUWX v Minister for Immigration [2015] FCA 1389
Wei v Minister for Immigration and Border Protection [2015] HCA 51

Applicant: MZAJA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1525 of 2014

Judgment of: Judge Wilson

Hearing date: 8 December 2015

Date of Last Submission: 8 December 2015

Delivered at: Melbourne

Delivered on: 8 December 2015

REPRESENTATION

Applicant in person

Solicitor advocate for the
First Respondent: Ms J. Noble

Solicitors for the
First Respondent: Sparke Helmore

ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be refused.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1525 of 2014

MZAJA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

Introduction

1. By application filed 28 July 2014, the applicant sought judicial review of a decision made on 29 March 2013 by the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”).

   
   

   The Tribunal affirmed a decision of a delegate of the Minister.

   
   

   The delegate refused to grant the applicant a Protection (Class XA) visa.[1] The hearing of this application was fixed by orders of

   
   

   Registrar Allaway made on 5 November 2014.

   [1] Court Book filed 24 November 2014, at pp.641-665.

Background

1. On 12 October 2009, the applicant applied for a spousal visa.[2]

   
   

   At all relevant times, the applicant was a citizen of Pakistan of Pashtun ethnicity. The applicant’s former spouse withdrew sponsorship of the applicant on 28 October 2011.[3] On 19 March 2012, the applicant applied for a Protection (Class XA) visa.[4] In support of his application for a visa, the applicant wrote in hand five densely-scripted pages of reasons.[5] 

   [2] Court Book filed 24 November 2014, at pp.1-33.

   [3] Court Book filed 24 November 2014, at pp.34-38.

   [4] Court Book filed 24 November 2014, at pp.79-95.

   [5] Court Book filed 24 November 2014, at pp.85-90.

2. Those reasons can be summarised into eleven propositions as follows - 

   a)the applicant said that, as a Sunni Muslim, he was at risk of harm from sectarian violence;

   b)in June 1996, unknown persons came to the applicant’s home and attempted to kill his grandfather; 

   c)in Pakistan, the applicant started a coeducation centre in his town of Buner with his grandfather after his brother returned from his Islamic school madrassa, having been beaten by his teachers, with bruises and scars on his face and hands; 

   d)

   the applicant said that, together with his grandfather,

   
   

   he attempted to shut down the local madrassa run by the Taliban;

   e)the applicant said he was a member of the Awami National Party (“ANP”), and his grandfather was a well-known member of that party; 

   f)the applicant said that, in 2007, he received a letter from an unknown person threatening to kill him if he did not cease operation of the school and withdraw his support for the ANP;

   g)the applicant said that, following that threat, a cleaner at the applicant’s school was killed; 

   h)the applicant said that, on 14 August 2007, unknown persons came to the applicant’s house and killed his grandfather; 

   i)the applicant said that, on 25 August 2007, unknown persons opened fire on the applicant and the following day he left his village and went to Karachi;

   j)the applicant said that, if he remained in Karachi, Islamabad or any other city in Pakistan, he would be in great danger because it is very hard for a Pashtun to stay in these areas as these areas are inhibited by mostly Punjabi Shia; and

   k)the applicant said that he suffers significant health problems and it will be difficult for him to obtain treatment in Pakistan due to travel conditions, the cost of medicine and the quality of the air in Buner.[6]

   [6] First Respondent’s Written Submissions filed 1 December 2015, pp.2-3 at [6].

3. The applicant provided a typed statement of his visa application in which he stated that he escaped from Pakistan on 5 November 2007.[7] That was on account of conflict between the ANP and the

   
   

   Muttahida Quami Movement. The applicant has asserted that his life is threatened by reason of his being a Sunni Muslim. The applicant has previously said that, once he left Pakistan, his family suffered at the hands of the Taliban. 

   [7] Court Book filed 24 November 2014, pp.96-102 at [14].

The decision of the Minister’s delegate

1. On 17 May 2012, the Minister’s delegate determined that the applicant was not a person to whom Australia had protection obligations under

   
   

   s.36 of the Migration Act1958 (“the Act”) or under cl.866.221 of Sch.2 of the Migration Regulations 1994 (“the Regulations”).[8] The delegate refused to grant the applicant a Protection (Class XA) visa.[9] 

   [8] Court Book filed 24 November 2014, at pp.331-342.

   [9] Ibid.

2. The Minister’s delegate made a collection of factual findings. Specifically, the delegate did not accept that the applicant would not relocate to other cities within Pakistan, such as Lahore, Faisalabad or Islamabad. The Minister’s delegate did not accept that the applicant was at risk of persecution on account of his religion as the delegate was of the view that the applicant had not provided convincing evidence of that matter. 

The hearing before the Tribunal

1. The applicant applied to the Tribunal on 13 June 2012.[10] He wrote to the Tribunal on 12 July 2012, by way of written clarification, pointing out that he had an ex-wife and five children in Pakistan.[11] The Tribunal invited the applicant to appear before it and, on 29 August 2012,

   
   

   the applicant did in fact appear before the Tribunal to explain his situation with his former wife.

   [10] Court Book filed 24 November 2014, at pp.343-348.

   [11] Court Book filed 24 November 2014, at pp.351-352.

2. The applicant told the Tribunal that he divorced his wife in

   
   

   August 2007 and that divorce is frowned up on in his culture, bringing shame to his family. The applicant also provided newspaper reports and various internet articles concerning the situation in Pakistan.[12]

   
   

   The Tribunal invited the applicant to attend a second hearing, which he did, on 18 March 2013 at which he provided further documents about Pakistan and its internal conflicts. On 29 March 2013, the Tribunal handed down its decision. The Tribunal affirmed the delegate’s decision not to grant a Protection (Class XA) visa to the applicant. 

   [12] Court Book filed 24 November 2014, at pp.360-372.

3. Of the more important matters that emerged from the Tribunal’s decision, the following are among them -

   a)the Tribunal accepted that the applicant was a member of the ANP in Karachi but considered that, at most, he was an ordinary member and was not an active member. As a result, the Tribunal was satisfied the applicant, as a non-active member of the ANP, could return to Karachi without facing a real chance of suffering serious harm; 

   b)the Tribunal said it was satisfied, based on country information, that the risk that the applicant would be harmed by extremist groups was remote and that the applicant did not face a real chance of harm from Shia sectarian groups in Pakistan;

   c)the Tribunal accepted that the applicant’s brother may have been beaten in the madrassa and that the applicant and his grandfather may have complained but the Tribunal did not accept that the applicant was motivated by this incident to open up his own school.

   d)further, the Tribunal indicated that the applicant had not provided any supporting evidence of the claim in sub-para (c) herein. 

4. As a result of those findings, the Tribunal did not accept that the applicant received any threatening letters from the Taliban or any other group in relation to the education centre. The Tribunal said that,

   
   

   given the applicant’s grandfather did not hold an official position within the ANP, the Tribunal could not find any country information that indicated that members of the ANP who were not leaders, or who did not hold official positions in the party, were the subject of targets. Further, the Tribunal did not accept that the applicant’s grandfather was killed in the way claimed. The Tribunal said it was not satisfied that any alleged attempt on the grandfather’s life, 10 years earlier,

   
   

   was relevant to the applicant’s claim regarding the events in 2007. 

5. The Tribunal indicated that it was satisfied, based on country information, that the risk the applicant would be harmed by extremist groups was remote and that the applicant did not face a real chance of harm from Shia sectarian groups in Pakistan. The Tribunal further indicated that it did not accept that the applicant received a letter in 2006 or 2007 warning him to leave the ANP as it did not accept the applicant, as an ordinary member of the ANP, would be targeted by the Taliban. Given that the applicant’s grandfather was not killed in 2007 as claimed, the Tribunal was satisfied that there was not a real chance that the applicant would suffer serious harm in the future because he or his grandfather complained about the madrassa to village elders. 

6. After considering the applicant’s claim in relation to his health,

   
   

   the Tribunal observed that the applicant’s condition was not because of a Convention reason and there was no evidence that he would be denied appropriate healthcare because of a Convention reason. As a result, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution arising from the condition. 

7. So far as the complementary protection visa was concerned,

   
   

   the Tribunal did not accept that the applicant’s medical condition provided substantial grounds for believing there was a risk he would suffer significant harm based on country information considered by the Tribunal. The Tribunal was not satisfied that there were substantial grounds for believing the applicant would be at real risk of significant harm if returned to Pakistan, noting that the applicant’s family returned to Buner in 2010 and had not suffered any harm. 

8. The applicant did not have a profile, according to the Tribunal,

   
   

   which would make him of interest to the Taliban. As a result,

   
   

   the Tribunal was satisfied he could relocate to Karachi without a real chance of serious harm or real risk of serious harm and that it would be reasonable given that the applicant’s uncle or other family members live there. The Tribunal said there was no evidence before it that they suffered any harm in Karachi. Finally, the Tribunal said that it was satisfied that the applicant could relocate to Lahore and it did not accept that the applicant would be targeted by the Taliban or other military group in the city.

Legal issues associated with judicial review

1. Let me now turn to certain legal issues associated with judicial review.

   
   

   This Court does not engage in a merits review. It is concerned with judicial review based on jurisdictional error. An application for

   
   

   judicial review must be made within 35 days as prescribed by s.477(1) of the Act. This Court can extend that 35 day period in the circumstances set out in s.477(2) of the Act. They are discretionary matters but the discretion is not one at large. This was the subject of a very recent decision handed down on 5 December 2015 by the Honourable Justice Griffith in the Federal Court of Australia in SZUWX v Minister for Immigration[13] (“SZUWX”).

   [13] [2015] FCA 1389 at [36].

2. Returning to the present case, the Tribunal handed down its decision on

   
   

   29 March 2013. The applicant had 35 days within which to apply to this Court for judicial review. In other words, without an extension of time, the applicant had until a date in early May 2013 within which to apply for judicial review. On 28 July 2014, he applied to this Court, considerably outside of the 35 day period prescribed by the legislation – over a year late, in fact. The applicant has sought an order extending the time from 35 days under s.477(1) of the Act. Under s.477(2) of the Act, an applicant, when seeking leave, must recognise what was said in SZUWX:

   Self-evidently, the discretion to extend time is expressed in broad terms by reference to the Court extending the 35 day period as it “considers appropriate”. Although the legislation does not provide a list of considerations which may be relevant to that question, the discretion is not entirely at large. That is because:

   (a)it is a precondition to the exercise of the discretion that the applicant apply in writing for time to be extended and to indicate in writing why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)another precondition is that the Court itself must be satisfied that “it is necessary in the interests of the administration of justice to make the order”.[14]

   [14] [2015] FCA 1389 at [36].

3. As the Minister correctly pointed out, the application of s.477(2) of the Act turns broadly on two considerations. The first is whether the delay has been satisfactorily explained. The second is, in view of the applicant’s prospects on the judicial review application, the interests of justice require the granting of an extension of time.[15] Here the applicant has not explained either, in my judgment.

   [15] See SZSDA v Ministerfor Immigration [2012] FCA 1319 at [37]-[38].

4. As to the delay of more than a year, the applicant asserted that his

   
   

   case officer misguided him and later changed her mind about the nature of the visa sought. Recognising that the applicant may have inarticulately conveyed the real detail of the way the case officer allegedly misguided him, nevertheless, the delay of over a year is extraordinarily long. Consistent with the observations of the

   
   

   Federal Court of Australia in SZMNO v Ministerfor Immigration[16],

   
   

   the grant of leave to extend the 35 day period, in circumstances when over a year had elapsed since the Tribunal made its decision, called for reasons that were very persuasive indeed. The reasons stated by the applicant fell well short of being very persuasive indeed.

   [16] [2009] FCA 797 at [12].

5. Today, the applicant told me the delay was due to medical reasons. Those seemed to me to miss the point. He said he waited for the grant of legal aid. Again, that explanation was given from the Bar table and was not supported by affidavit and I was unable to adequately assess the veracity of that assertion. As to the element of s.477(2) of the Act that calls for regard to be had of the applicant’s prospects on the judicial review application, the applicant relied on one ground of review, it being that the Tribunal failed to properly consider all the applicant’s claims.

6. [17] (1995) 184 CLR 163.

   I now turn to certain aspects of judicial review generally.

   
   

   In an application under s.477(1) of the Act, an applicant must show jurisdictional error, as the High Court has pointed out in

   
   Craig v South Australia.[17]

   In my view, an assertion to the effect that the Tribunal failed to consider all of the applicant’s claims, without specifying which, does not demonstrate jurisdictional error. On its face, the decision of the Tribunal does not reveal that it failed to consider all or any of the applicant’s claims. 

7. In any event, the Tribunal was required to address the elements or the integers of the claims according to what the Full Court of the

   
   

   Federal Court of Australia has said in Paul v Minister for Immigration and Multicultural Affairs.[18] In short, the applicant has not explained adequately the one year delay in applying to this Court, nor has he demonstrated that his application supports his contention in relation to jurisdictional error. 

   [18] (2001) 113 FCR 396 at [79].

8. The applicant submitted that, by reason of his religion, ethnicity, race and political opinion, he sought protection. He relied on the

   
   

   Geneva Convention. He said many other people from his region in Pakistan have been given protection visas. I cannot speak for those people for whom protection visas were allegedly given. However I am satisfied that the applicant failed to prove the matters he needed to prove under s.477 of the Act.

9. I recognise that the result of this decision works a degree of hardship to the applicant, according to what he has told me. However, the strictures of s.477 of the Act are tight. They call for compliance with strict time limits and for affidavits to be filed deposing to the events prescribed.

10. Since delivering these reasons, the question of extending time beyond the 35 days prescribed by s.477(1) of the Act was the subject of a decision of the High Court of Australia in Wei v Minister for Immigration and Border Protection[19](“Wei”), the decision in which was handed down on, that is to say, after I delivered reasons in this proceeding. In that case, an order was made extending time. The facts of Wei were very different to those with which this case is concerned. In the case of Wei, the High Court was not dealing with an inadequately explained delay of over one year in the making of the application for judicial review.

    [19] [2015] HCA 51.

11. For these reasons herein, I dismiss the application filed 28 July 2014 and I order the applicant to pay the first respondent’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  28 January 2016