Mzaly (BY His Litigation Guardian) v Minister for Immigration

[2016] FCCA 1977

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZALY (BY HIS LITIGATION GUARDIAN) v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1977

Catchwords:
MIGRATION – Review of a decision of the Second Respondent – application for Protection (Class XA) visa – application for extension of time – no adequate explanation for delay – application for jurisdictional review no prospect of success – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch.1

Migration Act 1958 (Cth), ss.36(2)(aa), 91R, 91S , 424A(1), 425(1), 425(2)(b), 476, 477(1), 477(2)

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

SZOCH v Minister of Immigration & Anor [2010] FMCA 300
SZSDAv Minister for Immigration and Citizenship (2012) 135 ALD 17

Applicant: MZALY (BY HIS LITIGATION GUARDIAN)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2040 of 2014

Judgment of: Judge Hartnett

Hearing date: 6 May 2016

Delivered at: Melbourne

Delivered on: 2 August 2016

REPRESENTATION

The Applicant: Litigation Guardian In Person

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for an extension of time under s.477(1) of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $10,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2040 of 2014

MZALY (BY HIS LITIGATION GUARDIAN)

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the Applicant wherein, the Applicant’s biological father has consented to act as the litigation guardian for the Applicant. The application, dated 8 October 2014, seeks an extension of time to permit judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 27 February 2013. The Tribunal affirmed a decision by the delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The application, if an extension of time is granted, seeks that the Court grant relief in the form of constitutional writs against the Tribunal decision under s.476 of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of the application are as follows:-

   “1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.”

3. Pursuant to s.477(1) of the Act, the application made to the Court was required to be filed within 35 days of the date of the Tribunal decision. The Applicant’s application was to be filed by 3 April 2013 if it were to be filed within the relevant time limit. It was not filed until 8 October 2014. The application was more than 18 months out of time.

4. In relation to the Applicant’s extension of time application and in support thereof, the Applicant’s litigation guardian deposed in affidavit evidence affirmed 7 October 2014 relevantly as follows:-

   “a. After receiving the RRT decision dated 27 February 2013, I spoke with my private lawyer Hannah Dixon, of Clothier Anderson & Associates

   b. This appointment occurred within one week of receiving the RRT decision

   c. Hannah Dixon advised me that to go to court via her law firm would be very expensive. I did not have enough money at that time to pay for the costs.

   d. At this time, I attempted to secure legal aid, and approached the Refugee Council of Australia, and the Refugee and Immigration Legal Centre for advice. Both organisations advised me that they were unable to provide me with legal aid.

   e. I did not approach the Asylum Seeker Resource Centre at this time because I had sought legal aid there in 2012 after my first immigration refusal, but I was advised they would be unable to represent me regarding my son's application.

   f. As Victoria Legal Aid had also told me they were unable to assist me following my first immigration refusal in 2012, I did not approach them at this time either.

   g. Hannah Dixon told me that I could also make a request directly to the Minister for Immigration and Citizenship ('the Minister') for the grant of a Permanent Visa for my son.

   h. As I could not secure legal aid, or afford the costs involved in the Federal Circuit Court Application, I decided to engage Clothier Anderson and Associates to prepare a request to the Minister to intervene directly in my son's case, and to grant a permanent visa under section 417 of the Migration Act 1958 ('the request to intervene').

   i. Clothier Anderson & Associates submitted a request to intervene to the Minister on 12 April 2013.

   j. On or around 9 September 2014, I received a call from a case officer at the Department of Immigration, who told me to come to the Department of Immigration to collect the Notice of Ministerial intervention request outcome ('the Notice') for the request concerning my son.

   k. The Notice was dated 4 September 2014. It stated that the Assistant Minister from Immigration and Border Protection had considered my son's case, and decided it was not in the public interest to intervene, and therefore did not exercise his powered under section 417 of the Migration Act in this case…

   l. After I received the Notice I talked to my Psychiatrist, Dr. Peter Wing at Foundation House about it. Dr. Wing told me he would talk to a lawyer about my case.

   m. I understand that Dr. Wing spoke with the Asylum Seeker Resource Centre around this time, and as a result of this conversation, I received a telephone call from the Asylum Seeker Resource Centre on 30 September 2014.

   n. The Asylum Seeker Resource Centre provided me with an appointment time to meet a lawyer on the next day.

   o. On the 1 October 2014, I met with a lawyer at the Asylum Seeker Resource Centre, who advised me that I could still make an Application to the Federal Circuit Court.

   p. On the 7 October 2014, I attended a further appointment at the Asylum Seeker Resource Centre, where I completed an Application Form for the Federal Circuit Court, as well as this Affidavit.”

5. The First Respondent opposes the Applicant’s application. The First Respondent relies upon his response to application filed 26 October 2014. In submissions filed on 19 October 2015, the First Respondent seeks the dismissal of the application and that it be accompanied by a costs order in favour of the First Respondent.

6. The matter proceeded before Registrar Burns on 21 January 2015.  The Applicant was required in orders made that day by consent, to file and serve any amended application and any written submissions prior to the final hearing. The Applicant has filed no amended application nor written submissions.

7. The extension of time application was listed on 5 November 2015. The matter was adjourned part heard to 21 December 2015 as the Applicant’s litigation guardian made allegations that required further evidence to be before the Court as described hereafter. On 21 December 2015 the matter was, by consent, adjourned to 13 April 2016. On 13 April 2016 the matter was listed for final hearing, however due to genuine issues had by the Applicant’s litigation guardian with the translator who attended this hearing, the proceedings were adjourned until 6 May 2016 to ensure that another translator could be secured.

8. The hearing of the Applicant’s parents’ matter and this matter proceeded consecutively on 6 May 2016.

Background

1. The Applicant’s parents are Ethiopian citizens of Oromo ethnicity and are of Muslim faith. The Applicant’s parents applied for Tourist visas at the Australian Embassy in Nairobi, Kenya on 5 August 2010. The Applicant’s parents were granted Subclass 676 (Tourist) visas on 12 August 2010. On 29 August 2010 the Applicant’s parents arrived in Australia and on 27 September 2010 the Applicant’s parents made applications for Protection (Class XA) visas.

2. The Applicant is an Ethiopian citizen, who was born in Australia on 23 June 2011. A delegate of the First Respondent refused the Applicant’s parents’ applications for Protection (Class XA) visas on 7 March 2011. That decision was affirmed by the Tribunal on 4 May 2012. As the Applicant in this matter was not born until June 2011, he was not included in the application lodged by his parents in September 2010. Accordingly the Applicant made a separate application to the First Respondent for a Protection (Class XA) visa (‘the visa’) on 1 June 2012. On 24 August 2012, a delegate of the First Respondent refused to grant the Applicant the visa. On 11 September 2012 the Applicant applied to the Tribunal for review of the delegate’s decision.

3. On 9 November 2012 the Tribunal invited the Applicant to attend a hearing on 10 December 2012. By facsimile dated 6 December 2012, the Applicant’s representative informed the Tribunal that it had received instructions from the Applicant’s parents to waive their right to a hearing before the Tribunal and, accordingly, requested that the Tribunal make a decision ‘on the papers’ in their son’s review application. By further facsimile on 11 December 2012, the Applicant’s representative provided written submissions to the Tribunal on behalf of the Applicant.

The Applicant’s claims and the Tribunal decision

1. These are as accurately set out in the First Respondent’s submissions dated 19 October 2015 as set out in the following paragraphs.

2. The Applicant’s claims for protection were said to be, in large part, dependent upon those of his parents and in particular, those that were made by his father. Specifically, it was claimed on the Applicant’s behalf that he feared serious harm from Ethiopian authorities arising from his father’s membership and financial support of the outlawed Oromo Liberation Front (‘OLF’).

3. The Tribunal found that the Applicant was a citizen of Ethiopia and, to the extent that his claims were premised upon being a member of the particular social group comprising his father’s family, that a family could be a particular social group for Convention purposes.

4. Having considered all of the evidence before it, including evidence presented to the previous Tribunal (in connection with the Applicant's parents’ visa applications), the Tribunal made the following findings:-

   a)it did not accept that the Applicant’s father was detained for six months in 2005 because he was suspected of being involved with the OLF. This finding was made on the basis that the Applicant's father would not have been able to return to his hospital job if he was actually detained for six months as a suspected OLF supporter or associate;

   b)it did not accept that the Applicant’s father met two OLF members in jail and assisted them with OLF related tasks. Consequently, the Tribunal did not accept that the Ethiopian authorities were searching for the Applicant's father as a suspected OLF member or supporter;

   c)it did not accept that the Applicant’s uncle could have retained his senior diplomatic post if the Applicant's father had been detained in 2005 because of his suspected involvement with the OLF, and/or if Ethiopian officials were searching for the Applicant's father in 2010;  and

   d)it did not accept that the Applicant’s other uncle fled Ethiopia for South Africa because the government suspected him of also being associated with the OLF. This was due to there being no evidence before the Tribunal to suggest that his brother, the diplomat, had lost his job.

5. In relation to the claims made by the Applicant in relation to his uncles, the Tribunal relevantly states as follows:-

   “34. The applicant submits that his uncle, Zenu Jemal Ummer, avowed his support of the EPRDF in a manner that enabled him to retain his diplomatic post and that his father and uncle were estranged and in limited contact. The applicant also submitted that his uncle, Nuredin, was granted refugee status in South Africa in May 2012 on the basis of his membership of the OLF and that this grant of refugee status to Nuredin supports the applicant’s claim that his father and brother were involved with the OLF; and undermines the previous Tribunal’s reliance on the DFAT advice. The applicant asserts that Nuredin was granted refugee status because of his OLF membership but has not provided any documentation which identifies the basis of Nuredin’s refugee status.

   …

   38. The Tribunal accepts that the applicant’s uncle, Nuredin, was granted refugee status in South Africa in 2012. The applicant has not provided any independent evidence of the reason for this grant of refugee status, however, although he is on notice that the credibility of his father’s claim is an issue in his case. The applicant has submitted that Nuredin had been making arrangements to leave Ethiopia at the time of his father’s review hearing in November 2011 in order to escape his own difficulties as a member of the OLF. The Tribunal, having regard to the DFAT advice, does not accept that Nuredin was associated with the OLF and had to leave Ethiopia because of difficulties he was having as a result if (sic) this association because it does not accept that Nuredin’s brother, Zenu Jemal Ummer, could have retained his diplomatic posting if Nuredin was having difficulties with the Ethiopian authorities because he was a member of the OLF. Further, the Tribunal does not accept that Zenu Jemal Ummer could have retained his position if two of his brothers were associated with the OLF or suspected of being associated or having difficulties because of an association. The applicant has not provided any evidence that Zenu Jemal Ummer has lost his diplomatic position or suffered any consequence arising from having two brothers suspected of associated with the OLF and, in the absence of any such evidence, the Tribunal is satisfied that he is still a diplomat and that no consequence has befallen him. For these reasons, the Tribunal does not accept that Nuredin left Ethiopia because he was having difficulties arising from an association with the OLF.”

6. The Tribunal found, for the reasons identified above, that the Applicant’s father was not suspected by the authorities in Ethiopia of being associated with the OLF. The Tribunal was not satisfied that there was a real chance that the Applicant’s father would be persecuted in Ethiopia in the reasonably foreseeable future for reason of his alleged involvement with the OLF.

7. The Tribunal also found that the Applicant’s father had not suffered discrimination in the past because of his ethnicity. The evidence before the Tribunal indicated that he was an educated professional who held a government job for many years and who also established· his own business in Addis Ababa. As a result, the Tribunal did not accept that there was a real chance that the Applicant’s father would be persecuted in Ethiopia in the reasonably foreseeable future for reason of his involvement with the OLF, or because of his Oromo ethnicity.

8. The Tribunal concluded, having taken into account s.91S of the Act, that it did not accept there was a real chance that the Applicant would be persecuted in Ethiopia in the reasonably foreseeable future because he was a member of his father’s family.

9. The Tribunal also found that there were no substantial grounds for believing that there was a real risk that the Applicant would be subjected to significant harm in the form of the death penalty, torture, cruel or inhuman treatment, punishment, or degrading treatment, on being removed from Australia. This decision was made on the basis that the Applicant’s father was not affiliated (or suspected of being affiliated) with the OLF, and the Applicant’s family had not been subjected in the past to significant harm on the basis of their ethnicity.

10. The Tribunal also rejected the submission that the Applicant would be arbitrarily deprived of life given the high infant mortality rate in Ethiopia. This was due to the Applicant being part of an educated, urban family who previously had resided in Addis Ababa. Further, the Tribunal noted that the Applicant’s father was a health professional, and that the Applicant appeared to be relatively well placed to have access to health care upon any return to Ethiopia.

11. By a letter dated 28 February 2013 the Tribunal informed the Applicant of its decision to affirm the decision of the delegate to refuse the visa.

Extension of time application

1. The Court has the power to allow an extension of time pursuant to s.477(1) of the Act; however this is governed by s.477(2) of the Act as follows:-

   “(2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

2. Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 set out the factors that may ordinarily be taken into account in considering the administration of justice:-

   a)Whether there has been reasonable and adequate explanation for the Applicants’ delay;

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

   c)Whether the Applicants’ substantive case for judicial review is sufficiently arguable to justify the extension of time.[1]

   [1] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].

3. I shall now address these factors below. 

The extent of the delay

1. The 35 day period for making an application to the Court pursuant to s.477(1) of the Act ended on 8 June 2012. The Applicant was over 18 months late in filing his application with the Court. This is a substantial delay. The Court is mindful of the need to give the statutory time limit a meaningful application.

Reasons for delay

1. The Applicant’s litigation guardian deposed to his inability to pay for and obtain legal assistance, and the parents’ decision to submit a request for Ministerial intervention, as reasons for the failure to make a timely application to the Court.

2. As submitted by Counsel for the First Respondent these reasons do little to distinguish the situation of the Applicant from that of many other applicants who approach this Court seeking a remedy pursuant to s.476 of the Act. In particular, the Applicant cannot rely upon the fact of having pursued an application for Ministerial intervention as a satisfactory explanation for his failure to file the present application within time.[2]

   [2] SZOCH v Minister of Immigration & Anor [2010] FMCA 300 at [38].

Prospects of success of the proposed substantive application

1. It was well established in SZSDAv Minister for Immigration and Citizenship (2012) 135 ALD 17 at [39] that a court should not exercise a discretion to extend time if the proposed substantive application has no prospect of success. The Court determines there is no prospect of success in the substantive proceedings for the reasons which follow.

Evidence at hearing

1. Ms Karyn Anderson, Solicitor and Partner at Clothier, Anderson & Associates and Ms Sanmati Verma, Senior Lawyer at Clothier, Anderson & Associates were both served with subpoenas on 23 December 2015 to attend court and give evidence. Ms Anderson and Ms Verma attended the hearing on 13 April 2016 and again on 6 May 2016. These witnesses were subpoenaed by the First Respondent to respond to the Applicant’s litigation guardian’s submission and the consequent concern of the Court, that the signature on the document titled ‘Instructions, to waive RRT hearing’ at page 547 of the Court Book had been forged and was not his signature.

1. Ms Anderson and Ms Verma both gave evidence at the hearing that they had not forged the Applicant’s litigation guardian’s signature on the signed authority document and further Ms Verma’s evidence was that the signature was that of the litigation guardian whom she had observed sign the document. The Court unreservedly accepts the evidence of both witnesses who are officers of the Court. This evidence is also supported by the totality of the evidence which includes a chronology of the actions taken by the litigation guardian since arriving in Australia.

Consideration

1. The grounds of application are unparticularised grounds: that the Tribunal’s decision was affected by an error of law and that the Applicant was denied procedural fairness by the Tribunal.

2. The Applicant, who at all times was represented by a migration agent, advised the Tribunal that he would not attend a hearing and consented to the Tribunal making a decision on the review without taking any further action to allow or enable him to appear before it.

3. The Tribunal’s findings were responsive to the claims advanced by the Applicant and were open to it on the material and evidence before it.

4. No error of law is made by the Tribunal. As submitted by Counsel for the First Respondent there is evidence contained in the Decision Record of:-

   a)the Tribunal stating the law regarding the circumstances in which a visa may be granted;

   b)the Tribunal stating the law regarding refugee criterion, including the definition of ‘refugee’ under Article 1A of the Refugees Convention, the effect of ss.91R and 91S of the Act and the meaning of ‘persecution’, ‘serious harm’ and ‘well founded’;

   c)the Tribunal stating the law regarding the complementary protection criterion contained in s.36(2)(aa) of the Act; and

   d)the Tribunal correctly applying the law in the manner in which it considered the Applicant’s submissions, evidence and claims.

5. The Applicant was afforded procedural fairness. The Tribunal invited the Applicant to a hearing, in conformity with its obligation under s.425(1) of the Act. The Tribunal had no obligations under s.424A(1) of the Act to identify for the Applicant dispositive ‘information’, given the Tribunal's decision reflected its subjective appraisal of the Applicant's evidence and claims.[3]

   [3] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].

6. The Applicant’s litigation guardian signed a consent on 6 December 2012 stating that the Applicant waived his entitlement to a hearing. By so doing, the Applicant engaged s.425(2)(b) of the Act and the Tribunal was entitled to determine the review without the Applicant appearing before it. The Court is satisfied on the evidence given at the hearing that there is nothing to indicate that the consent provided was anything less than informed and effective.[4]

   [4] C.f. Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152.

7. The application for an extension of time will be dismissed. The First Respondent has filed submissions as to costs dated 26 May 2016. The First Respondent seeks a costs order of $12,923.00. The amount prescribed under Item 3 of Division 1 of Part 3, Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) is an amount of $6,825 for matters heard prior to 21 May 2016. An award of costs is a discretionary matter. This proceeding has involved legal work beyond that normally required for this type of hearing and beyond that contemplated by the Schedule 1 scale of costs lump sum fee. The costs of the adjournment of the proceedings and the additional costs associated with the issuing of the subpoenas as set out in the affidavit of Ms Emily Wilde sworn on 26 May 2016 and relied upon by the First Respondent are taken into account by the Court.

8. The First Respondent seeks an additional costs order of $3,784.00 for the costs thrown away as a result of the hearing on 5 November 2015.

9. The amount sought is the total sum for the following items of Part 1, Schedule 1 of the Rules:-

   a)$1,706.00 (item 3(a) – an interim hearing as a discrete event);

   b)$278.00 (item 13(a) – daily hearing fee for a short mention); and

   c)$1,800.00 (item 14 – disbursements, including Counsel’s fees).

10. Between 5 November 2015 and 18 January 2016, being the date upon which the filed subpoenas and affidavit were served on the Applicant, the First Respondent incurred professional fees of $4,628.00 (inclusive of GST) as a result of work done by corresponding with Clothier Anderson & Associates and preparing, filing and serving the relevant subpoenas. The First Respondent seeks 50 percent of these costs, being the amount of $2,314.00

11. The Court makes a costs order which shall provide for a sum in addition to that of $6,825 by the addition of the amounts of $2,500 and $1,500 being a part of the additional costs claimed and an amount determined reasonable on the evidence before it and in the special circumstances of this case.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 2 August 2016