MZZFT v Minister for Immigration

[2013] FCCA 784

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 784

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – oral application for an adjournment of the hearing dismissed – application to extend – no merit on the grounds of the proposed substantive application – time not extended to the Applicant – application for extension of time dismissed.

Legislation:
Migration Act 1958 (Cth), ss.430(1), 477, 476

Federal Circuit Court Rules 2001 (Cth), – Schedule 1, Part 3, Division 1

BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

Applicant: MZZFT

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 116 of 2013

Judgment of: Judge Manousaridis

Hearing date: 10 July 2013

Delivered at: Sydney, via telephone to Melbourne

Delivered on: 18 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Whittemore
Sparke Helmore Lawyers

ORDERS

1. The First Respondent’s name be changed from ‘Minister for Immigration and Citizenship’ to ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. Subject to paragraph 3, the application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be dismissed.

3. The applicant pay the first respondent’s costs, such costs to be fixed at $5,400.

4. The parties have liberty to apply to the associate of Judge Manousaridis within seven days from the date of making of these orders in relation to the Court treating as evidence the Court Book that was filed with the Court.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 116 of 2013

MZZFT

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 July 2013 there had been set down for hearing before me an application for judicial review of a decision of the second respondent (Tribunal) made on 18 December 2012 which affirmed a decision of a delegate of the first respondent (Minister) refusing to grant a protection visa to the applicant.

2. At the time he filed his application, the applicant had retained a lawyer, and that lawyer remained on the record as the applicant’s lawyer until 2 July 2013. At the hearing on 10 July 2013, the applicant appeared without legal representation, and he applied for an adjournment. After hearing submissions from the applicant and the Minister, I dismissed the application for an adjournment, indicating that I would publish my reasons after the hearing.

3. In his amended response, the Minister contends the applicant filed his application more than 35 days after the date of the Tribunal’s decision. That is clearly correct. The Tribunal’s decision was made on 18 December 2012, yet the application was filed with the Court on 30 January 2013.

4. The applicant had not, however, filed an application under s.477(2) of the Migration Act 1958 (Cth) (Act) seeking an order extending the 35 day period. I asked the applicant whether he proposed to make an application under s.477(2) of the Act, indicating to him that the application had to be in writing, and that the application needed to specify why the applicant considers that it is necessary in the interests of the administration of justice to make the order.

5. The applicant indicated he did wish to make an application under s.477(2) of the Act. I adjourned the hearing to allow the applicant time to prepare in writing an application for an order extending the 35 day period. When the hearing resumed, the applicant filed in Court a hand written application which was marked and placed with the Court file. I set out the text of that application later in these reasons.

6. I invited submissions from the parties both on the application for extending the 35 day period and on the merits of the substantive application. I did so because one of the grounds on which the Minister opposes the application for extension of time is that the substantive application lacks merit.

7. In these reasons, therefore, I deal with the following matters:

   a)my reasons for dismissing the application for an adjournment;

   b)the application for extension of time; and

   c)the merits of the substantive application.

Application for adjournment

1. The applicant relied on the following matters to support his application for an adjournment:

   a)he had a fallout with his lawyer;

   b)he just had a baby which had been born prematurely, and this has had an emotional impact on him;

   c)he has contacted the Red Cross and is waiting to hear from them;

   d)he is currently homeless.

2. I asked the applicant what he expected to achieve if the hearing were to be adjourned. The applicant said he hoped to obtain legal representation. He said he was confident he would be able to again retain the lawyer who had represented him up to 2 July 2013.

3. The Minister opposed the application for an adjournment. The Minister submitted that: the applicant did not give any adequate reasons for the application; the applicant had been legally represented until 2 July 2013; directions previously made by the Court allowed for the filing of an amended application, but none was filed; and the applicant had not put before the Court evidence to support the matters on which he relied for an adjournment.

4. I accepted the Minister’s submissions. The matters on which the applicant relied were expressed in great generality and were presented to the Court from the bar table without any supporting or corroborative evidence. I therefore was not and am not prepared to find as a fact any of the matters advanced by the applicant. Even if I were prepared to find these matters as fact, the applicant made no attempt to demonstrate how the matters on which he relied, if true, related to his ability or inability to present his case to the Court.

5. Further, the only advantage the applicant could point to if an adjournment were granted was the prospect of his retaining the same lawyer he had retained up to 2 July 2013. In my opinion, there was and is no basis on which I could reasonably have inferred that this would have benefitted the applicant in any relevant way. Up to 2 July 2013, when the applicant’s lawyer filed a Notice of Withdrawal as a Lawyer, the applicant was legally represented, but he did not file any amended application even though the directions made on 6 March 2013 provided the applicant an opportunity to do this. The probabilities, therefore, are that, if an adjournment were granted to give the applicant the opportunity to retain his previous lawyer, this would not have resulted in the applicant later presenting to the Court any grounds of review that are different from those contained in the application which is before the Court.

6. It is for these reasons that I refused to adjourn the hearing.

The application for extension of time

1. Before I consider the application for extension of time, I must note that neither the applicant nor the Minister formally tendered into evidence the Court Book which had been filed or any other material. To avoid any issue that may be thought to arise from this omission, I propose to treat the Court Book (which includes the Tribunal’s decision and reasons) as having been admitted into evidence, and to mark the Court Book as “Exhibit CB”. Should either party wish to make any submissions about my so treating the Court Book, I will reserve liberty to the parties to apply within seven days to make such submissions.

2. As I note earlier in these reasons, the respondent filed in court a written application seeking an extension under s.477(2) of the Act. The application stated as follows:

   I hereby wish to request for an extension of time to my case.

   I am currently not legally represented following a fallout with my lawyer a week ago. This has not given me ample time to prepare my case. I am also undergoing emotional instability since I am homeless at the moment, in addition I had a premature baby who is still in hospital,

   I am currently waiting for help from the Red Cross (Australia).

   Given more time, I will be able to organise myself for the Court hearing.

3. The Minister made two submissions about this application. The first was that the applicant did not provide to the Court a reason why his application was not filed within time. This is one of the factors that Nicholls FM (as his Honour was then known) identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44] as being relevant to the exercise of the power to extend time under s.477(2) of the Act.

4. It is true the applicant offered no explanation for why he did not commence his application within the 35 day period. However, I will not dispose of the application for an extension of time on this ground, and I will not rely on it. The applicant was not legally represented. Although during the hearing I informed the applicant he needed to inform the Court of the reason for the delay, this was said to him before I specifically drew to the applicant’s attention the terms of s.477(2)(a) of the Act. When I did draw the applicant’s attention to the provisions of s.477(2)(a) as specifying the matters his application had to address, I omitted to again inform the applicant that he should specifically deal with the reasons for the delay. Had I done so, the applicant may have given an adequate explanation.

5. The Minister next submitted that the application for an extension of time should be dismissed because the applicant’s substantive claim lacks merit. This is another factor that was identified in SZMFJ as being relevant to the exercise of the power under s.477(2) of the Act. This submission requires me to consider the merits of the substantive application for relief. I will therefore defer my consideration of this submission until after I consider the merits of the substantive application.

Tribunal’s decision and reasoning

1. Before the Tribunal, the applicant claimed he was entitled to a protection visa for three reasons:

   a)the applicant was afraid that if he returns to Kenya (being the country of which he is a citizen[1]), he would be harassed and intimidated by Al Shabaab members who recruit young men to go to fight in Somalia;[2]

   b)the Kenyan police would not protect the applicant from forcible recruitment by Al Shabaab because the police are corrupt and because he is a young Muslim male;[3] and

   c)the applicant will be mistreated by Kenyan police and by the Kenyan security services because they do not trust Muslim young people such as himself and because young Muslims are persecuted in Kenya.[4]

   [1] Tribunal Decision, [10]

   [2] Tribunal Decision, [24]

   [3] Tribunal Decision, [120]

   [4] Tribunal Decision, [27]

2. The Tribunal rejected each of these claims. As to the first two claims, the Tribunal found that, although:

   a)there was material which showed that Al Shabaab did recruit in Kenya;[5]

   b)Al Shabaab used various forms of inducements to recruit persons in Kenya;[6] and

   c)the applicant himself was on at least one occasion approached to be recruited by Al Shabaab,[7]

   there is no information to indicate that Al Shabaab are able to forcibly recruit people within Kenyan territory.[8]

   [5] Tribunal Decision, [132]

   [6] Tribunal Decision, [141], [142]

   [7] Tribunal Decision, [132]

   [8] Tribunal Decision, [126]

3. The Tribunal concluded that:

   a)the fears the applicant expressed to the Tribunal about his returning to Kenya were not well founded;[9]

   b)there is not a real chance of the applicant being forcibly recruited or harmed by Al Shabaab;[10] and

   c)because of the conclusion referred to in (b), it was not necessary for the Tribunal to consider the applicant’s claim that he could not access state protection against the activities of Al Shabaab.[11]

   [9] Tribunal Decision, [149]

   [10] Tribunal Decision, [151]

   [11] Tribunal Decision, [151]

4. The Tribunal rejected the third of the applicant’s claims on the basis of a number of findings. The Tribunal did not accept the applicant’s claims that police in Kenya had detained him in a cell or sent him to prison or had a hose turned on him,[12] or that he was intimidated “all the time”,[13] or that police had used rubber pipes to beat people who were on the street at night and that this had happened to him numerous times.[14] The Tribunal concluded that the applicant has not been persecuted by the police due to his membership of the social group “young Muslim males” or for any other Convention reason.[15]

   [12] Tribunal Decision, [154]

   [13] Tribunal Decision, [156]

   [14] Tribunal Decision, [157]

   [15] Tribunal Decision, [160]

5. Additionally, the Tribunal found that, although there was information which suggested a high level of corruption and the presence of arbitrary arrest and detention in Kenya,[16] the relevant country information indicates that police conduct of arbitrary arrest and detention and the use of excessive force is not directed to any particular group but, rather, is widespread and indiscriminate.[17] Accordingly, the presence of arbitrary arrest and detention in Kenya, not being directed to any particular group, does not amount to persecution for a Convention reason.[18]

   [16] Tribunal Decision, [162]

   [17] Tribunal Decision, [167]

   [18] Tribunal Decision, [167]

Applicant’s challenge to Tribunal’s decision

1. The application filed in these proceedings lists seven grounds of review. These grounds are not supported by any written submissions.

2. At the hearing, on being invited to make submissions about the grounds of review specified in the application, the applicant could not offer anything further than what was set out in the application. Accordingly, I will consider each of the grounds of review as set out in the application.

Ground 1 – Failure to take into account persecution of Muslims and their being potential Al Shabaab recruits

1. The first ground of review is that the Tribunal failed to take into account the fact that Kenyan young Muslims are persecuted and that they are potential Al Shabaab forced recruits.

2. This ground is untenable. It assumes as a fact that young Muslims are persecuted in Kenya and that they are potential Al Shabaab forced recruits. The Tribunal did not make such finding; and it made findings which are inconsistent with the assumption (see paragraphs 20 – 23 of these reasons).

Ground 2 – Failure to take into account danger of relocation within Kenya

1. The second ground on which the applicant relies is that the Tribunal did not take into account that relocation within Kenya is not safe because Al Shabaab operate freely and they are constantly hunting for young Muslims to recruit them secretly.

2. This ground is untenable. First, it assumes as a fact an assertion which is inconsistent with a finding of the Tribunal. The assertion is that Al Shabaab constantly hunt for Muslims to recruit them secretly. The Tribunal’s finding that is inconsistent with that assertion is that there is no information to indicate that Al Shabaab are able to forcibly recruit people within Kenyan territory.[19]

   [19] Tribunal Decision, [126]

3. Secondly, as submitted by the Minister,[20] the issue of relocation was not a matter which the Tribunal was obliged to consider. That is so because the Tribunal concluded that the fears the applicant expressed to the Tribunal about his returning to Kenya were not well founded.[21]

   [20] Minister’s written submissions, [19]

   [21] Tribunal Decision, [149]

Ground 3 – Failure to take into account unavailability of state protection

1. The third ground on which the applicant relies is that the Tribunal failed to take into account that the applicant will not be protected by the Kenyan government.

2. This ground is untenable. Although not explicitly stated, the activities against which this ground implicitly claims the applicant will not be protected by the Kenyan government is the forcible recruiting activities of Al Shabaab. The Tribunal, however, not only made no such finding; it found there is not a real chance of the applicant being forcibly recruited or harmed by Al Shabaab.[22]

   [22] Tribunal Decision, [151]

3. In these circumstances, the Tribunal was not obliged to consider whether or not the applicant would be protected by the Kenyan government, because, as the Tribunal found, there was no need for protection in the first place.

Ground 4 – Fear of torture by Al Shabaab

1. The fourth ground of review is that the Tribunal failed to take into account that the applicant could be tortured and even killed by Al Shabaab if he returned to Kenya.

2. This ground is untenable. It assumes as a fact that the applicant could be tortured and even killed if he returned to Kenya. The Tribunal made no such finding. And it is inconsistent with the Tribunal’s finding that there is not a real chance of the applicant being forcibly recruited or harmed by Al Shabaab.[23]

   [23] Tribunal Decision, [151]

Ground 5 – Reliance on misleading country information

1. The fifth ground of review is that the Tribunal relied upon general and misleading country information on Kenya.

2. This ground does not identify the information which is said to be general or misleading; nor does it identify the respects in which it is said the country information on which the Tribunal relied is general or misleading.

3. In any event, and as submitted by the Minister,[24] this ground, even if it could be established, discloses no jurisdictional error. As was said by the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:[25]

   There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. . . . . It is not . . . an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.

   [24] Minister’s written submissions, [27]

   [25] Gray, Tamberlin, Lander JJ, at [11]

Ground 6 – Failure to take into account applicant is innocent victim

1. The sixth ground of review is that the Tribunal failed to take into account that the applicant is an innocent victim of a terrorist organisation including Al Qaeda.

2. This ground is untenable. It assumes as a fact that the applicant is an innocent victim of a terrorist organisation. The Tribunal made no finding to that effect, and in any event made findings which are inconsistent with such assumed fact (see paragraphs 20 – 23 of these reasons).

Ground 7 – Failure to focus on other issues other than credibility

1. The seventh, and final, ground of review is that the Tribunal failed to focus on other issues instead of the credibility of the applicant.

2. This ground is untenable. It incorrectly characterises the Tribunal’s reasons. Further, as the Minister submits,[26] this ground, unparticularised as it is, appears to be nothing more than an expression of dissatisfaction with the Tribunal’s conclusions.

   [26] Minister’s written submissions, [30]

Conclusion and disposition

1. For the reasons set out above, each of the grounds for review set out in the application lacks merit, which means that the application itself lacks merit.

2. Five of the seven grounds each rest on the contention that the Tribunal failed to take into account facts which the Tribunal had not found, or which the Tribunal was not prepared to find, or which were inconsistent with findings the Tribunal did make. The Tribunal made no reviewable error by not relying on facts the Tribunal either did not find or was not prepared to find. The remaining two grounds amounted to nothing more than an expression of disagreement with conclusions which it was within the jurisdiction of the Tribunal, not of this Court, to make.

1. In addition to delay and the merits of the application, I have also considered the applicability to the circumstances of this case of the other matters identified in SZMFJ as being relevant in determining whether I should make an order under s.477(2) of the Act.

2. I am not satisfied that, in the circumstances of this case, it is necessary in the interests of justice that I make an order under s.477(2) to extend the 35 day period for the making of an application for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Act.

3. In these circumstances, the appropriate order is to dismiss the application for an extension of time. It is unnecessary to make a further order that the application be dismissed.[27]

   [27] BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [43] (Foster J): “Once the extension of time application was refused, there was nothing left before the federal magistrate which would be the subject of an order.”

4. I also propose to order that the applicant pay the Minister’s costs, such costs to be fixed at $5,400.[28]

   [28] Pursuant to Federal Circuit Court Rules 2001 – Schedule1, Part 3, Division 1 – Costs for migration proceedings that have concluded.

5. Finally, as I note in paragraph 14 of these reasons, I propose to grant the parties liberty to apply within seven days to my associate in relation to my admitting the Court Book into evidence.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 July 2013