MZZNM v Minister for Immigration

[2014] FCCA 3001

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZNM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3001

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal lodged some six months out of time – no error of law on the part of the Refugee Review Tribunal identified – no adequate reasons for delay – no merit in substantive case – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant: MZZNM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1030 of 2013

Judgment of: Judge Whelan

Hearing date: 10 December 2014

Date of Last Submission: 10 December 2014

Delivered at: Melbourne

Delivered on: 10 December 2014

REPRESENTATION

Applicant appeared in person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1030 of 2013

MZZNM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) of 5 December 2012.[1]

   
   

   In that decision, the Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant a protection visa.

   [1] Court Book filed 31 January 2014, at pp.176-204.

Background

1. The Applicant is Sri Lankan citizen who grew up in a Muslim village in Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 11 April 2012. On 28 June 2012, the Applicant lodged an application for a protection visa[2] and a statutory declaration[3] outlining his claims. The Applicant was interviewed by a delegate of the Minister on 6 July 2012, and the application for the visa was refused on

   
   

   23 August 2012.[4]

   [2] Ibid, at pp.29-55.

   [3] Ibid, at pp.56-59.

   [4] Court Book filed 31 January 2014, at pp.86-109.

2. The Applicant sought a review of the decision by the Tribunal on

   
   

   5 September 2012, and there was a hearing before the Tribunal on

   
   

   9 November 2012. The Tribunal handed down its decision on

   
   

   5 December 2012 affirming the delegate’s decision. An application for judicial review was filed on 10 July 2013. It was supported by an affidavit explaining why the application was filed out of time.[5]

   
   

   The Court, in dealing with that application, has to determine whether it is necessary in the interests of the administration of justice to extend the time.

   [5] Affidavit filed 10 July 2013.

The Applicant’s claims

1. The Applicant’s claims, as they were put before the delegate of the First Respondent, were that he sought protection on a number of grounds. The first of these was his Tamil ethnicity. The Applicant also stated that he was a Sunni Muslim and that he had performed a call to prayer in his village in January 2012 after, unbeknown to him, a group of Sinhalese had threatened the village with violence if they did not desist from performing the call to prayer. The Applicant stated that a group of Sinhalese men had:

   ·Abducted him;

   ·Taken him into the jungle for two hours where he had been intimidated and warned not to attend the mosque again; and

   ·Threatened him with death.

   The Applicant escaped from the men, but they continued to search for him and visit his home looking for him until he escaped to Australia.

2. The Applicant stated that he feared that, if he returned to Sri Lanka:

   ·He would be seized by local Sinhalese people;

   ·He would be tortured and perhaps killed;

   ·He would be harmed because he had left the country illegally;

   ·As he spoke Tamil, he would be considered to have connections with the Liberation Tigers of Tamil Eelam (“LTTE”); and

   ·The boat in which he travelled to Australia had been represented in Sri Lanka as having associations with the LTTE and that, as a failed asylum seeker, there was a real risk that he would suffer significant harm as he would be imprisoned and prison conditions were very harsh.

3. In the visa application, the Applicant claimed to be of Tamil ethnicity and this was also stated in submissions made by his migration agent on

   
   

   6 November 2012.[6] At the Tribunal hearing, the Applicant agreed that he was not a Tamil, but rather a Ceylon Moor; he spoke Tamil but was not a Tamil. At that point, the Applicant withdrew his claim to fear harm on the grounds of his race. The Tribunal then considered the Applicant’s claim based on his religion and his membership of particular social groups, being those who left the country illegally and as failed asylum seekers.

   [6] Court Book filed 31 January 2014, at pp.122-149.

4. The Tribunal considered the Applicant’s claim in detail and found that the Applicant had not provided a credible account of his experiences and that what he stated was implausible. In particular, the Tribunal was not satisfied that:

   ·Local Sinhalese had banned the call to prayer in the Applicant’s village;

   ·The Applicant had performed the call to prayer some one hour after returning from Colombo;

   ·The Applicant had been pursued by a group of Sinhalese;

   ·The Applicant had been forced to leave for Colombo where Sinhalese had come looking for him;

   ·The Applicant had been abducted and beaten up by Sinhalese; or

   ·

   Sinhalese men had continued to visit the Applicant’s home in

   
   

   Sri Lanka and threatened his parents.[7]

   [7] First Respondent’s Contentions of Fact and Law filed 1 December 2014, p.4 at para.14.

5. The Tribunal found that the Applicant:

   ·Had never been targeted by the Sinhalese or anyone else by reason of making the call to prayer or for any other reason;[8] and

   ·Would not be mistaken for a Tamil upon his return to Sri Lanka and would not be suspected as an LTTE sympathiser.[9]

   [8] Ibid, p.4 at para.15.

   [9] Ibid, at para.16.

6. The Tribunal was not satisfied that:

   ·The boat on which the Applicant had travelled to Australia was regarded in Sri Lanka as associated with the LTTE;[10] or

   ·

   As a returned asylum seeker who had left Sri Lanka illegally,

   
   “the applicant would suffer serious harm on account of leaving the country in breach of Sri Lanka’s emigration laws or because he had sought asylum abroad”

   .[11]

   [10] Ibid, at para.17.

   [11] Ibid, at para.18.

7. The Tribunal did not accept that the Applicant would be detained or imprisoned or suffer any form of mistreatment on account of leaving the country illegally or seeking asylum in Australia, nor did the Tribunal accept that the Applicant would suffer significant harm for these reasons for the purposes of the complementary protection criteria.

Grounds for review

1. The Applicant, in his application to the Court,[12] gave two grounds for review, namely that the Tribunal decision:

   [12] Application filed 10 July 2013.

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

   (b)     denied the applicant procedural fairness.[13]

   The Applicant also sought an extension of time, having filed his application some six months out of time, and provided an affidavit in support of that application.[14]

   [13] Ibid, at p.3.

   [14] Affidavit filed 10 July 2013.

2. In oral submissions to the Court today, the Applicant essentially stated that his complaint was that the Tribunal did not believe or accept what he had to say or the evidence that he put before it. He did not accept the findings made by the Tribunal with respect to:

   ·The situation in Sri Lanka;

   ·The problems that he might face as a Muslim; and

   ·The finding that he would not be implicated with being an LTTE sympathiser and be detained.

The First Respondent’s submissions

1. The First Respondent submitted that:

   ·The explanation for the delay in lodging the application did not amount to a reasonable explanation;

   ·There were gaps in the history of what the Applicant had said occurred;

   ·The Applicant had been represented by a well-established firm specialising in immigration law in the Tribunal proceedings; and

   ·

   The Applicant had obtained assistance from the

   
   

   Asylum Seeker Resource Centre in March 2013 yet did not file an application until July 2013.[15]

   [15] First Respondent’s Contentions of Fact and Law filed 1 December 2014, p.6 at para.29.

2. The First Respondent further submitted that:

   ·The Tribunal’s core findings related to the Applicant’s credibility;

   ·It was the function of the Tribunal to make such findings; and

   ·The Tribunal had detailed its reasons for not believing the Applicant’s claim.

3. The First Respondent submitted that the Tribunal’s finding were open on the material before it and noted that the Applicant had made an initial claim to Tamil ethnicity and had resiled from that claim.

   
   

   The Tribunal made findings in relation to each of the Applicant’s claims. The Applicant was given an opportunity to present evidence and arguments, and his migration agent had been able to make written submissions both before and after the hearing.

Conclusions

1. Under the provisions of s.477(1) of the Migration Act 1958 (Cth)

   
   

   (“the Act”), the Applicant had 35 days in which to lodge his application for review. He failed to do this, and his application was lodged some considerable time thereafter. The Applicant’s application is therefore incompetent unless the Court determines that it is necessary in the interest of the administration of justice to make an order extending time to enable the application to be accepted.  

2. The Court has generally applied the principles in the case of

   
   Hunter Valley Developments Pty Ltd v Cohen

   (1984) 3 FCR 344 to such applications. In this case, the most significant matters for the Court to consider are:

   ·First, the extent of the delay and the reasons for it; and

   ·Second, the substantive merits of the application. 

3. The delay is not an insignificant one. While I accept that the Applicant had some difficulty because of his limited English, there are periods of time when he appears to have done nothing to advance his application. With respect to the merits of the substantive application, it is clear that the Tribunal did not find the Applicant to be a convincing witness.

   
   

   It described his recounting of events as implausible and his evidence as vague. The Applicant’s case was not assisted by the fact that he initially claimed protection on the grounds of his Tamil ethnicity but later withdrew this, admitting that he was not a Tamil. The Applicant has not identified the error of law by the Tribunal which he claims as a ground for the review. The Tribunal dealt with the Applicant’s claims and found them not to be believable.

4. With respect to the claim to face harm because he had left the country illegally or because he was a failed asylum seeker, the Tribunal accepted country information with respect to failed asylum seekers and returnees who had left the country illegally. The Tribunal was satisfied that, on return to Sri Lanka, the Applicant would not suffer serious harm on account of leaving the country illegally or seeking asylum abroad. With respect to the claim that he would be considered to be associated with the LTTE because of the boat on which he had left

   
   

   Sri Lanka, the Tribunal was satisfied that this was not true. All of the findings of the Tribunal were within the jurisdiction of the Tribunal to make. 

5. The Applicant was aware that the delegate was not convinced of the credibility of his claims about what occurred in January 2012. He was therefore aware of what were the matters that the Tribunal would need to consider. The Applicant was invited to appear before the Tribunal, and this was postponed at his request. A written submission was made on his behalf by his migration agent. Various matters that the Tribunal considered hard to believe were put to the Applicant by the Tribunal for his comment. Other matters about the situation in Sri Lanka were also put to him for his comment. A further submission was made by the Applicant’s migration agent after the hearing.

6. I am satisfied that the Tribunal complied with the statutory requirements with respect to procedural fairness. I am not satisfied that the Applicant has a reasonable explanation for the delay in lodging his application, nor am I satisfied that the substantive application has merit. I am therefore not satisfied that the time for lodging the application should be extended. 

7. The application is therefore dismissed in accordance with the provisions of s.477 of the Act.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  23 December 2014