MZZJM v Minister for Immigration
[2013] FCCA 1599
•19 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZJM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1599 |
| Catchwords: MIGRATION – Application lodged out of time – no acceptable explanation for delay – application without merit – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 477 |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
| Applicant: | MZZJM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 498 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 19 September 2013 |
| Date of Last Submission: | 19 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the First Respondent: | Ms Holt |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 498 of 2013
| MZZJM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 September 2012. The Tribunal affirmed a decision of the delegate of the Minister refusing the Applicant a protection visa. The Applicant now seeks an order that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal requiring it to determine the application according to law.[1]
[1] Application of the Applicant filed 17 April 2013, at p.2.
The application was not made to the Court until 17 April 2013. It was therefore not made within the 35 days of the date of the decision of the Tribunal, and the Applicant is required to make an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”).
Background
The Applicant is a citizen of Pakistan. He arrived in Australia on
6 October 2010 on a student visa. On 24 March 2011, the Applicant filed, with supporting documentation, an application with the Department of Immigration and Citizenship for a protection visa
(“the Department”). The Applicant attended an interview with the Department on 6 September 2011 and on 26 October 2011, the delegate made a decision to refuse to grant a protection visa to him.
The Applicant was notified of the delegate’s decision on
26 October 2011 and on 4 November 2011, he applied to the Tribunal for a merits review of the delegate’s decision.
The Applicant provided further documentation in support of his application. He received an initial invitation to appear before the Tribunal on 10 May 2012, but this was subsequently rescheduled to
11 May 2012. On that day, the Applicant attended, gave oral and documentary evidence in support of his application and provided further documents after the hearing on 16 July 2012.
On 2 August 2012, the Tribunal invited the Applicant to appear at a further hearing on 7 September 2012 and on 16 August 2012,
the Applicant provided yet further documentation in support of his application.
The Applicant attended the Tribunal on 7 September 2012 and gave evidence in support of his application. On 19 September 2012,
the Tribunal made a decision affirming the delegate’s decision under review.
The Tribunal’s decision
The Tribunal, in its decision, accepted that the Applicant and his family originated from North Waziristan in the Federally Administrated Territories (“FATA”). The Applicant’s family had lived, however,
in Mardan since 2001. The Tribunal accepted that the Applicant had attended Gomal University between 2002 and 2007 and accepted that during this time, he may have been a member of the Pukhtoon Student Federation (“the PSF”), although the Tribunal did not accept that the Applicant had any leadership positions within the PSF, and found that the Applicant’s membership of the PSF had not brought him to the attention of either political opponents of the Awami National Party (“the ANP”), militants or anybody else.
Further, the Tribunal did not accept that the Applicant was a member of the ANP or played any significant role in the party, or that he had a profile as a political worker or activist. The Tribunal found that the Applicant did not face a real chance of persecution from the militants or anyone else for reasons of his political opinion, real or imputed,
or any other Convention reason now or in the reasonably foreseeable future if he was to return to his home in Mardan, and that the Applicant did not have a well-founded fear of persecution.
The Tribunal made those findings on the basis of a number of credibility concerns arising from evidence given by the Applicant.
In particular, the Tribunal did not accept that certain documents, mainly letters, provided by the Applicant, were genuine and did not accept that the Applicant had received threatening letters from the militants.
On the basis of its findings in relation to the credibility of the evidence provided by the Applicant, the Tribunal therefore did not accept his claims. The Tribunal also considered the application of the complementary protection criteria and found that it was satisfied that the Applicant did not meet the provisions of s.36(2)(aa) of the Act.
Grounds of review
The grounds of application, as set out in the application are as follows:
1. The decision of the second respondent was affected by jurisdictional error in that it misconstrued the legal test in relation to relocation by failing to identify a place to which the applicant could relocate
2. The decision of the second respondent was affected by jurisdictional error in that, at paragraph 175 of the decision, in assessing whether the applicant was at risk of significant harm it sought to impose an additional requirement of a Convetnion (sic) nexius (sic) between the significant harm feared and the reason for it.
3 The decision of the second respondent was affected by jurisdictional error in that it failed property (sic) to consider whether the applicant was at risk of being subjected to degrading treatment or punishment.
4. The decision of the second respondent was affected by jurisdictional error in that it failed to consider an integer of the applicant’s claim, namely, that upon return to Nigeria he is likely to be placed in a camp for internally displaced persons where he will be at risk of serious harm or significant harm.[2]
[2] Application of the Applicant filed 17 April 2013, at p.2.
The Applicant, in oral submissions, stated that he had not lodged his application to the Court within the 35 days provided because he had been advised to apply for ministerial intervention in his case. It was only after this was unsuccessful that the Applicant lodged the application with the Court. In relation to the application itself,
the Applicant stated:
·The Tribunal accepted his membership card as a member of the PSF, but the card itself showed that he was general secretary;
·The Tribunal accepted he gave a radio interview in which he criticised the militants, but did not give weight to the fact that he was doing so as someone from Waziristan, and this would be important to the militants because they did not want any local people to be seen to be speaking out against them;
·The Tribunal gave too much weight to the two letters it found to be fraudulent, and not enough to the ones which were genuine; and
·For some people, there was no safe relocation anywhere within Pakistan.
The First Respondent’s submissions
The First Respondent’s submissions were as follows in relation to the application for an extension of time:
·The decision of the Tribunal was made on 19 September 2012; the application for judicial review was filed on 17 April 2013 and it was therefore well outside the statutory timeframe;
·Section 477(2) of the Act provides that the Court may extend the time period if an application has been made in writing, which has not occurred in this case, and the Court is satisfied that is necessary in the interest in the administration of justice to make the order.
The relevant factors to be considered in determining whether an extension of time should be granted were those set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
(“Hunter Valley Developments”), which have been followed in a number of decisions of the Federal Court, the Federal Magistrates Court and the Federal Circuit Court.[3]
[3] See SZMNO v Minister for Immigration & Citizenship [2009] FCA 797; Wong v Minister for Immigration [2009] FMCA 747.
In Hunter Valley Developments, Wilcox J referred to five factors:
1.Applications for an extension of time are not to be granted unless it is proper to do so – the legislative time limits are not to be ignored;
2.There must be some acceptable explanation for the delay;
3.Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against the grant of an extension;
4.The mere absence of prejudice to the respondent is not enough to justify the granting of an extension; and
5.The merits of the substantive application are to be taken into account in considering whether an extension should be granted.[4]
[4] (1984) 3 FCR 344 at 348-349.
The First Respondent submits that the Court should not proceed to hear the substantive application filed well outside the prescribed statutory timeframe. An application for an extension of time has not been properly made, but if it were so, it should not be granted, first because the legislative time limit should not be ignored and the Applicant has failed to provide a satisfactory explanation for the delay. The alleged application for ministerial intervention is not an acceptable explanation. Second, in relation to the merits of the substantive application, there was no arguable case and there is therefore no utility in granting the extension of time.
In relation to the grounds set out in the application, the
First Respondent submits that the first ground is misconceived, as the Tribunal correctly identified and applied the test for relocation.
The Tribunal specifically considered the Applicant’s ability to relocate to another part of Pakistan and discussed the possibility of relocation to a larger city such as Islamabad with the Applicant at the hearing.
After considering the evidence, the Tribunal was not satisfied there was a real chance of the Applicant facing Convention related persecution if he moved to Islamabad, and found that it would be reasonable, in the sense of practicable, for the Applicant to relocate to Islamabad if he continued to have a strong subjective fear of returning to his home town.
In relations to grounds two to four of the application,[5] the
First Respondent submits that these appear to be grounds in relation to the complementary protection provisions - they do not appear to relate to the actual decision of the Tribunal made on 19 September 2012.
[5] Application of the Applicant filed 17 April 2013, at p.2.
The Applicant has not identified any jurisdictional error in the reasons of the Tribunal. The First Respondent submits the Tribunal, in its reasons, clearly set out the legal framework including the requisite satisfaction required under relevant provisions of the Act and the Refugee Convention. The Tribunal correctly considered the application of the complementary protection criteria at paragraphs [114] to [116][6] of its reasons and found that it was satisfied that the Applicant did not meet the provisions of s.36(2)(aa) of the Act.[7]
[6] Court Book filed 12 July 2013, at pp.370-371.
[7] Ibid, p.371 at para.[118].
It is unclear, in relation to the second ground, how this relates to the decision of the Tribunal. The Tribunal considered the definition of significant harm at paragraphs [19] and [20] of its reasons and set out the circumstances where it will be found that there is not a real risk that the Applicant will suffer significant harm.[8] At paragraph [116] of its reasons, the Tribunal clearly had regard to that definition and did not seek to impose any additional requirement of a Convention nexus.[9]
[8] Ibid, at p.339.
[9] Ibid, at pp.370-371.
In relation to ground three, the Tribunal found it did not accept the Applicant faced a real risk of being arbitrarily deprived of life, having the death penalty carried out against him, being subjected to torture or to cruel and inhuman treatment or punishment, or to degrading treatment or punishment, if he were returned to Pakistan, and again, that is set out paragraph [116] of the reasons.[10]
[10] Court Book filed 12 July 2013, at pp.370-371.
In relation to the fourth ground, the First Respondent submits the Applicant did not make any claims in relation to a possibility that he would be persecuted or otherwise harmed by being placed in a camp for internally displaced persons, and made no claims in relation to Nigeria at all.
Essentially, the First Respondent submits that the Tribunal considered the evidence and it did not accept the Applicant’s claims on the basis of a number of credibility concerns. The Tribunal’s findings that the Applicant’s claims lack credibility were open on the evidence before it, and in any event, is not amenable to review by this Court. It is well established that credibility findings are findings of facts and a matter for the Tribunal.[11] The Tribunal was not required to make the Applicant’s case for him, nor was it required to uncritically accept any or all of the claims made by the Applicant,[12] and it is a matter for the Tribunal’s discretion what information it relies on and what weight it gives to such information.[13] For those reasons, the claim lacks merit.
[11] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
[12] Prasad v Minister for Immigration & Ethnic Affairs (1985) 65 ALR 549.
[13] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Conclusions
The first ground articulated by the Applicant is that the Tribunal misconstrued the legal test in relation to relocation by failing to identify a place to which he could relocate. The Tribunal’s substantive finding was that the Applicant’s fear of persecution for a
Convention-related reason, if he were to return to his home town, was not well founded. It was therefore not necessary for the Tribunal to consider whether there were other areas of Pakistan where the Applicant would not be exposed to a real chance of persecution for a Convention reason, or whether it was reasonable for him to relocate.
The Tribunal, however, did discuss with the Applicant the issue of relocation to a larger city, such as Islamabad, where he had previously spent some time. The Tribunal went on to specifically discuss whether there was a real chance of the Applicant facing Convention related persecution if he were to move to Islamabad, and the fact that the Applicant had family in Islamabad who had provided him with support in the past. I find no substance to ground one.
Grounds two to four deal with the issue of complementary protection. There is no paragraph [175], as was pointed out by the
First Respondent, referred to in the Tribunal’s decision, so it is therefore unclear as to which part of the Tribunal’s decision this ground is intended to relate. The Tribunal considered Australia’s complementary protection obligations in its Statement of Decision and Reasons at paragraphs [114] to [116].[14] The Tribunal correctly identified significant harm as defined in the Act and dealt with whether the Applicant might face a real risk of suffering any of the experiences which are covered by the term ‘significant harm’ should he return to Pakistan.
[14] Court Book filed 12 July 2013, pp.370-371.
The Tribunal did not seek to impose any additional requirement of a Convention nexus between the significant harm feared and the reasons for it, but dealt with the Applicant’s claims, all of which related to his political activism. Ground four makes no sense, as it has never been suggested by either the Applicant or the Tribunal that he was likely to be placed in a camp for internally displaced persons in Nigeria should his claim for protection be dismissed.
The First Respondent, in submissions, correctly identified the grounds necessary for the granting of an extension of time to lodge an application under s.477(1) of the Act.
While the Applicant could be given leave to lodge a written application, he still faces the obstacle of establishing that it is necessary, in the interest of the administration of justice, that the application be granted. There has been no acceptable explanation for the extraordinarily long delay in lodgement of this application, except a claim that an application for ministerial intervention was made.
As the Full Court of the Federal Court said in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12, that in itself does not provide an acceptable explanation for a failure to lodge an application for review with this Court.
The First Respondent claims no particular prejudice with respect to the application, but that matters little if the application is without merit.
It appears that the grounds for review have simply been copied from an unknown source, and bear little relevance to the actual decision of the Tribunal.
The Tribunal considered the Applicant’s claims. It made adverse findings about his credibility. Such findings were within the jurisdiction of the Tribunal to make and were based on reasonable grounds. The Applicant, in his oral submissions, criticises the findings of the Tribunal but those are matters of fact, including the weight that the Tribunal gives to various items before it, and are not matters which can be the subject of a review by this Court. It discharged its functions. The Tribunal gave the Applicant ample opportunity to make his case, including conducting two hearings and putting to the Applicant its concerns about the veracity of the documents upon which he relied.
On all of those grounds, I am not satisfied that, in carrying its statutory function, the Tribunal fell into jurisdictional error and for those reasons I therefore am of the view that the application lacks merit.
Having found that there was no acceptable explanation for delay and that there is not sufficient merit in the application that on the grounds of the administration of justice this application should be allowed to proceed, I do not grant leave to the Applicant to lodge a written application for an extension of time.
On that basis, the application is not validly before the Court as there is no extension granted to enable the application to be heard.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 14 October 2013
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