MZAMB v Minister for Immigration

[2016] FCCA 1043

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1043

Catchwords:
MIGRATION – Application for an extension of time pursuant to s.477 of the Migration Act 1958 – application 11 days out of time – explanation for delay not satisfactory – substantive application lacking merit – application dismissed.

Legislation:

Migration Act 1958, s.477

Applicant: MZAMB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2057 of 2014

Judgment of: Judge Burchardt

Hearing date: 15 March 2016

Date of Last Submission: 15 March 2016

Delivered at: Melbourne

Delivered on: 18 May 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Day

Solicitor for the Respondents: DLA Piper Australia

ORDERS

1. The applicant’s application for an extension of time pursuant to s.477 of the Migration Act 1958 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2057 of 2014

MZAMB

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 10 October 2014 the applicant filed an application in which he sought judicial review of a decision of the Refugee Review Tribunal dated 25 August 2014. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa, and, more importantly for present purposes, the applicant sought an extension of time for the making of his application under s.477 of the Migration Act 1958 (“the Act”).

2. Although the application was only 11 days out of time, I agree with the submission of the first respondent that there is not an acceptable explanation for the delay.  More importantly, and for the reasons that follow, I do not think that it is in the interests of the administration of justice to extend time as the substantive application lacks merit. 

3. The following factual account is taken from the Court Book (“CB”), (including the Tribunal’s decision), and the First Respondent’s submissions, and is not controversial. 

4. The applicant was born on 15 May 1981 in Wadi Khaled in Lebanon.  He is a Lebanese citizen whose most recent passport was Lebanese, issued 2 June 2009 and expiring on 4 May 2012.  He arrived in Australia on 10 December 2006 as the holder of a student visa and has not departed Australia since that time.  His student visa expired on 31 May 2008, and he was unlawfully in Australia until he was granted a further student visa in September 2008, which expired on 15 March 2009. 

5. He again remained in Australia unlawfully and applied for a partner visa in May 2010 which was refused.  The applicant applied to the Migration Review Tribunal to review that decision, but withdrew the application 16 December 2012 due to the breakdown of the spousal relationship.  Thereafter, and almost six years after he had first arrived in Australia, he applied for a Protection visa, and it is that application that has ultimately given rise to this hearing. 

6. The applicant was represented by a migration agent throughout the proceeding that culminated in the Tribunal’s decision, and his claims, as articulated, were said to flow from participation by the applicant in protests against the Syrian regime in 2005 following the assassination of Prime Minister Rafik Hariri.  The applicant claimed to have received death threats from Syrian secret services and Hezbollah thereafter. 

7. He further claimed that in 2006 he had participated in protests in the United Kingdom, as a result of which he received threats against himself and his family.  It should be noted, however, that the applicant returned to Lebanon following these difficulties in the United Kingdom.  He said he was, on one occasion, interrogated by secret service officers, tied to a chair and spat on after a demonstration near his father’s shop.

8. The applicant submitted a letter from the Mayor of the area of Wadi Khaled in support of is claims to the Tribunal stating that the situation in the area was very bad.  In essence, his claims were that he had a known political profile and would be targeted by Hezbollah anywhere in Lebanon as a result.  He also claimed to fear harm more generally as a Sunni Muslim, because in his area Sunni Muslims were interrogated by Syrian secret service officers for no reason.

9. Following the rejection of his claims by a delegate of the first respondent, who essentially disbelieved his claims (see CB17-118) the applicant attended the Tribunal with his agent on 13 August 2013. 

10. The Tribunal’s reasons for decision are at CB154-169.  It is not necessary to rehearse them in any detail.  They show a comprehensive exploration by the Tribunal with the applicant of the various matters he asserted, careful consideration of them and, in the ultimate, their rejection.  The Tribunal simply did not believe the applicant’s assertions as to his political involvement, whether in Lebanon or in the United Kingdom.  The Tribunal also did not believe that the applicant faced any risk of persecution as a Sunni Muslim or as a result of the security situation in Wadi Khaled. 

11. The Tribunal relied, wholly appropriately, on country information, at least in part, in coming to these conclusions.  The Tribunal also considered the matter pursuant to the complementary protection regime and concluded that there was no risk that the applicant would suffer significant harm if he was removed from Australia to Lebanon. 

12. The applicant’s grounds of application are wholly formulaic and as the first respondent’s written submissions point out, are simply not capable of illuminating any jurisdictional error on the part of the Tribunal. 

13. The applicant has explained the reasons why he was out of time in his application.  It is clear that his migration agent advised him of the 35 day time limit from his affidavit (paragraph 7).  Although it is understandable that the applicant was not able readily to find another lawyer to assist him, he has been in Australia since 2006 and is fluent in English.  I accept that the explanation for his delay in application is less than fully satisfactory. 

14. When the matter was before the court the applicant made a number of oral submissions.  It is not necessary to deal with them in any detail.  They were all essentially to the effect that he had been in Australia for some considerable time, was happy here and wished to live here.

15. In circumstances where, inter alia, the applicant had returned to Lebanon in 2006 voluntarily, had not applied for a refugee protection visa between 2006 and 2012, had not applied for a refugee protection visa in the United Kingdom following the alleged threats to him there, and had indicated an intention not to be involved in politics in the future should he remain in Australia, the Tribunal’s decision was scarcely surprising. 

16. Having studied the Tribunal’s reasons carefully, I have concluded that the Tribunal well understood the task it was required to conduct and did so in a fashion that was entirely procedurally fair to the applicant.  The Tribunal’s conclusions in the face of the applicant’s assertions and materials were, on any view of the matter, clearly open to it.  Putting the matter shortly, there is simply nothing to suggest that the Tribunal fell into any error of the sort that would ground the relief that the applicant seeks.

17. Given that the substantive application is wholly deficient in merit, it is clearly inappropriate to extend time as the applicant seeks.  The application for an extension of time will be dismissed with costs. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  18 May 2016