MZAMR v Minister for Immigration

[2016] FCCA 1959

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1959

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 judicial review no prospect of success – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(aa), 48B, 417, 425, 477(1), 477(2), 476
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Cases cited:

SZOCH v Minister of Immigration and Citizenship [2010] FMCA 300

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

SZSDAv Minister for Immigration and Citizenship (2012) 135 ALD 17

First Applicant: MZAMR

Second Applicant: MZAMS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2144 of 2014

Judgment of: Judge Hartnett

Hearing date: 6 May 2016

Delivered at: Melbourne

Delivered on: 2 August 2016

REPRESENTATION

The First Applicant: In Person

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: DLA Piper

ORDERS

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

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,825.

3. Order number 3 of the orders made on 5 November 2015 is discharged.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2144 of 2014

MZAMR

First Applicant

MZAMS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed 23 October 2014 which seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 4 May 2012. The Tribunal affirmed a decision by the delegate of the First Respondent not to grant the Applicants’ Protection (Class XA) visas (‘the visa’). The application 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, as set out in the Applicants’  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.”

   The Applicants failed to particularise these grounds and have failed to file any written submissions which might have shed some light on what it is they claim constituted jurisdictional error in the Tribunal’s decision.

3. Pursuant to s.477(1) of the Act, the application to this Court was required to be filed within 35 days of the date of the Tribunal decision, relevantly 4 May 2012. Therefore the Applicants’ application for judicial review by the Court was required to be filed by 8 June 2012. It was not filed until 23 October 2014. The application was filed more than two years and four months out of time.

4. In relation to the Applicants’ extension of time application, the Second Applicant deposes in affidavit evidence affirmed 22 October 2014:-

   “4. Following the decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 May 2012 I requested Ministerial intervention in my case. The lawyer I had at the time advised me that this was the best thing to do (sic) was to apply for Ministerial intervention.

   5. My understanding of the Australian legal system, and the Court process, is very limited. My comprehension of English is also limited.

   6. In the period since the Tribunal's decision, I have suffered from poor health, for which I have received treatment from my medical practitioner, Dr Rowena Ryan, at Doutta Galla Community Health, Kensington. I have been diagnosed with depression, including post-natal depression. My son, [MZALY], has been diagnosed with autism, and has ongoing health problems, which require treatment and attention.

   7. My request for Ministerial intervention was refused on 22August (sic) 2012. Since that request was declined, I have tried to get legal advice about my options. I don't have any money so am unable to pay a lawyer. I heard that I could go to the Federal Circuit Court in early September of this year. I have since obtained some free help from the ASRC.

   8. I fear serious harm if I have to return to Ethiopia.”

5. The First Respondent relies upon his response to application filed 17 November 2014. The grounds of opposition set out therein are as follows:-

   “1. The application filed on 23 October 2014 seeks judicial review of a decision of the Refugee Review Tribunal (RRT) dated 4 May 2012.

   2. Pursuant to section 477(1) of the Migration Act 1958 (Cth) the application to this Honourable Court needed to be filed within 35 days of the date of the RRT decision. The application is accordingly more than 2 years out of time. The first named applicant’s explanation for the delay is that he sought Ministerial intervention, which was refused on 22 August 2012, and that since that time has tried to get legal advice but could not afford to pay a lawyer. The first respondent contends that this is not a satisfactory explanation for the delay, which is of a significant period of time. It was the responsibility of the applicants to ascertain their review rights.

   3. Moreover, the substantive application has no prospects of success. The application pleads two broad and unparticularised grounds which fail to raise any arguable case of jurisdictional error on the part of the RRT.

   4. The first respondent accordingly opposes the application for an extension of time on the basis that it is not necessary in the interest of the administration of justice for time to be extended.”

6. In submissions filed on 28 October 2015, the First Respondent seeks dismissal of the application for an order to extend time under s.477(2) of the Act and a costs order in favour of the First Respondent.

7. The Court otherwise has before it the evidence as contained in the Court Book and an affidavit sworn by the Applicant on 22 October 2014 which annexes the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.

8. The Court notes as a historical matter that before Registrar Allaway on 4 February 2015, orders were made by consent to file and serve written submissions prior to the final hearing. The Applicants have filed no written submissions as earlier referred to but on the hearing the First Applicant made oral submissions.

9. The extension of time application was listed for hearing on 5 November 2015 and dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the non-appearance of the Applicants. However, it was in fact subsequently discovered that the First Applicant in this proceeding was present in Court and appearing in a related matter. By consent, on 12 November 2015 the Court ordered that the matter be reinstated and listed for hearing on 21 December 2015 to be heard in the same listing as the related matter. A further order was made by consent on 21 December 2015 that the matter be adjourned to 13 April 2016. On 13 April 2016 the matter was again listed for final hearing. The Applicants had genuine issues of competence with the translator provided for the hearing. The proceedings were again adjourned until 6 May 2016 to ensure that the services of another translator could be secured.

Background

1. The Applicants are Ethiopian citizens of Oromo ethnicity and Muslim faith. They are married, having married on 12 September 2004 in Addis Ababa, Ethiopia. The First Applicant, who I will refer to hereafter as the Applicant, was born on 12 August 1983 in Wolkite in Shoa, central Ethiopia. The Second Applicant was born on 29 November 1979 in Addis Ababa, Ethiopia.  The Applicants applied for Tourist visas at the Australian Embassy in Nairobi, Kenya on 5 August 2010. The Applicant and Second Applicant were granted Subclass 676 (Tourist) visas on 12 August 2010. On 29 August 2010 the Applicants arrived in Australia as the holders of the relevant tourist visas.

2. On 27 September 2010 the Applicants made application for Protection (Class XA) visas. The Applicant’s claim for protection in Australia is based on his fear of persecution for his ethnicity as an Oromo and his imputed political opinion of being a previous member of the Coalition for Unity and Democracy (CUD) or Kinijit and a member of the Oroma Liberation Front (OLF). The Second Applicant’s claim for protection in Australia is based on a fear of persecution for reasons of her imputed political opinion as a supporter of the OLF, her ethnicity as an Oromo and her membership of a particular social group as the wife of a Kinijit member and OLF supporter and an Ethiopian woman.

3. On 7 March 2011, a delegate of the First Respondent refused to grant the Applicants the visas. On 6 April 2011, the Applicants applied to the Tribunal for review of the delegate’s decision. The Applicants appeared at three separate hearings that were held by the Tribunal on 4 August 2011, 20 October 2011 and 9 November 2011. They appeared to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Amharic and English languages. The Applicants were represented by their migration agent. The Tribunal, as indicated in its Decision Record, made many enquiries of the Applicants as to matters of fact asserted by them, and put to each of them many matters with which it had concerns. The Tribunal also wrote to the Applicants, separately, on 28 February 2012 inviting them to comment on or respond to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review.

4. On 12 April 2012, the Tribunal wrote further to both Applicants, individually, advising them of the introduction of the complimentary protection criterion in s.36(2) of the Act, and inviting them to provide any submissions going toward this. The Tribunal received an extensive submission from the Applicants migration agent on 23 April 2012 as to the (then) new complimentary protection provision in s.36(2)(aa) of the Act.

5. On 4 May 2012, the Tribunal affirmed the decision of the delegate not to grant the Applicants’ visas.

The Tribunal

1. As accurately stated in the submissions of the First Respondent:-

   a)the Tribunal accepted that the Applicant had been a member of a former political party (Kinijit) prior to the Ethiopian elections in 2005, but did not accept that his association was significant. The Tribunal accepted that the Applicant had acted as an observer on election day, and that along with other observers he may have been intimidated and hampered in the performance of this role. However, the Tribunal did not accept that this amounted to serious harm, nor that the Applicant had experienced any subsequent problems as a result of his position;

   b)having made adverse credibility findings against both of the Applicants, the Tribunal did not accept the Applicant’s claims that he had been arrested and detained for six months from December 2005 to May 2006 due to his uncle’s association with the OLF and the authority’s suspicions that he was a member or supporter of the OLF. The Tribunal found that it was implausible that the Applicant had been arrested and detained, given that he had been able to continue working at a public hospital and had been issued with a licence to start his own pharmacy business. Further, the Tribunal found that even if the Applicant and other family members had been suspected of membership of the OLF, it was implausible that his brother would have been posted to a position in the Ethiopian Embassy in Nairobi;

   c)as the Tribunal did not accept that the Applicant had been arrested and detained in December 2005, it rejected most of the claims associated with such detention. The Tribunal did not accept that the Applicant:-

   i)had been mistreated in detention, nor that the Second Applicant had been interrogated while the Applicant was in detention;

   ii)had joined the OLF in June 2007 as the result of his friendship with two OLF members whom he met in detention; nor

   iii)had been forced to go into hiding when his friend’s house was searched, nor that the Second Applicant was questioned and harassed by government cadres;

   d)accordingly, the Tribunal did not accept that the Applicant was an actual or imputed member or supporter of the OLF, and that the Applicants faced a real chance of persecution for reasons of political opinion. The Tribunal found that, given the Applicant’s history of employment in the public sector, the Applicant was more than likely a member of the Ethiopian People’s Revolutionary Democratic Front (‘EPRDF’). Importantly, the Tribunal did not accept that the Applicant would choose to become involved in the OLF or any other opposition group if he returned to Ethiopia;

   e)the Tribunal found that the Applicant had not suffered discrimination in the past because of his Oromo 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 the Applicants would be persecuted in Ethiopia in the reasonably foreseeable future for reason of the Applicant’s involvement with the OLF, or because of their ethnicity;

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

2. The Tribunal relevantly summarised the claims and evidence of the Applicants that it did not accept in paragraph 153 of the Decision Record which is as follows:-

   “153. On the basis that the Tribunal does not accept the applicant husband’s claims that he, his uncle or his brother were members or supporters of the [Oroma Liberation Front] OLF or that he had any friends or associates who were associated with the OLF, the Tribunal does not accept that the applicants have been of any adverse interest to the Ethiopian authorities in the past because of their political opinion or Oromo ethnicity. The Tribunal does not accept that the applicant husband has been involved in any opposition politics since his limited participation prior to the May 2005 election. Since then, the Tribunal has found that the applicant husband has not engaged in any opposition politics in either Ethiopia or since arriving in Australia and it therefore does not accept, that if the applicant husband returned to Ethiopia, he would chose (sic) to become involved in either the OLF or any other opposition group. In light of the country information discussed above and the Tribunal’s findings that neither the applicant husband or his family have been members or supporters of the OLF or have been suspected of either being members or supporters of the OLF or perceived as being anti-government, and having considered the applicant’s claims both individually and cumulatively, the Tribunal does not accept that the applicants face a real chance of persecution for reasons of their political opinion, real or imputed, Oromo ethnicity or membership of the particular social group ‘failed asylum seekers’ or ‘Ethiopian women married to Oromos’, now or in the reasonably foreseeable future. The Tribunal finds the applicants (sic) fear of persecution is not well-founded.”

Post Tribunal

1. On 31 May 2012 the Applicants sought Ministerial Intervention pursuant to s.417 of the Act, on the basis that unique and exceptional circumstances existed requiring intervention from the Minister.

2. On 10 July 2012, the Applicant submitted to the Minister a request to allow a further application pursuant to s.48B of the Act, on the basis that the Applicant had new evidence relevant to his initial refugee claim.

3. By letter dated 22 August 2012, the Minister refused the Applicants’ claim for intervention.

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 whether it is necessary in the interests of the administration of justice to make an order. They were:-

   a)whether there has been a 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]

   The Court notes also that the public interest requires that there be an end to litigation and that the length of this delay would warrant exceptional circumstances.

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

3. The First Respondent submitted that the Applicants have not provided a satisfactory explanation for the lengthy delay in commencing the proceedings. Additionally, the Applicants have not demonstrated that their application for judicial review of the Tribunal’s decision would have any real prospect of success. As such, the First Respondent submitted, it is not necessary in the interests of the administration of justice to make an order to allow an extension of time.

4. 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 Applicants were 868 days late in filing their application in the Court. This is a substantial, extraordinary delay. The legislatively stated time period needs to have some meaningful effect.

Reasons for delay

1. The reasons for the delay advanced by the Applicants are, I find, inadequate to support an application for an extension of time. The Applicants identified their inability to pay for and obtain legal assistance, and their decision to submit a request for Ministerial intervention, as reasons for their failure to make a timely application to the Court.

2. These reasons do little to distinguish the situation of the Applicants from that of many other Applicants who approach the Court seeking a remedy pursuant to s.476 of the Act. In particular, the Applicants cannot rely upon the fact of having pursued an application for Ministerial intervention as a satisfactory explanation for their failure to file the present application within time.[2]

   [2] SZOCH v Minister of Immigration and Citizenship [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. For the reasons which follow, it is apparent that the proposed substantive application is not sufficiently arguable to justify the extension of time.

Tribunal Findings

1. The application for review contains two grounds, alleging that the Tribunal’s decision was affected by an error of law and that the Tribunal denied procedural fairness to the Applicants. No particulars are provided in relation to either of those grounds. The grounds are fairly meaningless therefore.

2. As submitted by Counsel for the First Respondent, the Tribunal’s decision was based on findings of fact which addressed the Applicants’ claims and which were open on the material before the Tribunal. Central to the Tribunal's reasoning was that the Tribunal did not accept that the Applicant had been arrested in December 2005 and detained for 6 months because of a suspected association with the OLF. The Tribunal also rejected the Applicant’s claim that, as a direct consequence of his detention from December 2005 to May 2006, the Applicant subsequently became an active member of the OLF and was forced into hiding after the arrest of one of his colleagues in the OLF. Those findings were based on the Tribunal's assessment of the credibility of the Applicants and the plausibility of their evidence.

3. The Tribunal did not fail to accord procedural fairness to the Applicants or otherwise fail to comply with its natural justice obligations under s.425 of the Act. Indeed the Tribunal conducted three separate hearings and forwarded the correspondence of 28 February 2012 to the Applicants. Following the commencement of the amendments to s.36(2) of the Act (which introduced the complementary protection criteria), the Tribunal invited the Applicants to provide any additional information they believed may be relevant to an assessment regarding complementary protection. The Applicants relied on essentially the same claims as those already before the Tribunal and the Tribunal’s decision on complementary protection was based on its findings of fact in relation to those claims. Each of those findings of fact were open to the Tribunal on the evidence before it and the task of fact finding is a matter for the Tribunal and not the Court as is so often said.

4. No error of law is apparent anywhere in the lengthy and carefully constructed and considered, Tribunal Decision Record.

5. The application for an extension of time shall be dismissed with costs ordered.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 2 August 2016