MZZRO v Minister for Immigration & Anor
[2014] FCCA 882
•13 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZRO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 882 |
| Catchwords: MIGRATION – Review of Refuge Tribunal – application for extension of time – refused. |
| Legislation: Migration Act 1958 (Cth), ss.477, 36, 476, 422, 424, 425, Div 4, P7 |
| Huiyang Li v Minister for Immigration & Anor [2011] FMCA 12 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 |
| Applicant: | MZZRO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1416 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 April 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Mr Swan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for extension of time pursuant s.477(2) of the Migration Act 1958 (“the Act”), is refused.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.00 within 28 days of this Order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1416 of 2013
| MZZRO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 April 2013 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).
The applicant is a 23-year-old male citizen of Sri Lanka who was born in Udappu in the north-west of Sri Lanka. His ethnic origin is Tamil and religion Hindu. He arrived at Christmas Island on 29 May 2012 by boat and was held at two detention centres until released in the Australian community. On 15 September 2012 the applicant applied for a Protection visa. The decision not to grant the applicant a Protection visa was made on 23 November 2012. (CB 88-115)
As the decision of the Tribunal was dated 29 April 2013 and the application for judicial review was not lodged until 2 September 2013, the provisions of s.477 of the Migration Act 1958 (Cth) (“the Act”) require that the applicant be granted an extension of time if he is to proceed with his application. Section 477(2) of the Act provides the Court with a discretion to extend the period within which a review may be made, provided the Court is satisfied that it would be in the interests of the administration of justice to make such an order.
Section 477(2) provides:
“(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.”
In his application filed on 2 September 2013, the applicant specified the grounds of application for extension of time as follows:
“1.I was detained in May 2012 and released into the community on November 2012 and I arrived in Melbourne in December 2012.
2.I have no family in Australia to support me.
3.My case was rejected on 29 April 2013 and my migration agent informed me of this on May 3 2013. I asked him if he can help me with my case and he said he would to talk to an organisation and let me know.
4.A few days later I received the decision by post from my migration agent.
5.I don’t know English so I took the decision letter to the case manager in AMES and she told me that in a week they would stop assisting me but would also refer me to another organisation and they would call me. The other organisation did not call me.
6.In July a woman called me on my phone and asked if I was Sarankumar Vairavasuntharam in English. I said “Yes” and she asked me my date of birth. I gave her my date of birth but I asked her to call me back with a Tamil interpreter. She didn’t call me back.
7.Because no one including my migration agent called me back after promising to help me, I got scared and asked my friends to help me. My friend told me that he had heard about a refugee organisation called RISE in Melbourne who may be able to assist me but he was not sure of where it was located.
8.After my friend made some enquiries from other friends on 30 August 2013, he finally managed to get the address and took me to the office. They explained what the letter from lawyer said and told me from their experience many of their members who have approached Victoria Legal Aid have been informed that because they have a backlog of cases they will not able to look at it immediately.
9.I don’t want to delay the matter any further and am not in a position to pay for a private lawyer to look at my RRT decision. Therefore, I currently am lodging this application without legal representation.
10.For the reasons outlined above, I consider it is necessary in the interests of the administration of justice to grant me an extension of time to submit my application for judicial review of the Refugee Review Tribunal’s decision of 29 April 2013.”
The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
a)the extent of the delay;
b)the reasons for it;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion, and
g) the merits of the proposed substantive application.[1]
[1] HuiyangLi v Minister for Immigration & Anor [2011] FMCA 12 at para.35 per Nicholls FM; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at para.7 per Judge Lucev (“WZASC”).
Otherwise, the applicant seeks, in his substantive application, by way of final order that the decision of the Tribunal be quashed on the basis that:
“(a)The Refuge Review Tribunal did not afford me procedural fairness;
(b)The Refuge Review Tribunal applied the wrong legal test.”
Applicant’s claims
On 16 July 2012 an Irregular Maritime Arrival Entry interview was conducted with the applicant in the Darwin Detention centre. (CB1-13) The applicant’s response to a question, “Why did you leave your country of nationality” was as follows:
“Tell me your reasons for leaving Sri Lanka?
I used to be a fisherman in Undappu – I worked with my father. At one stage my father became unable to engage in fishing so I had to venture out to sea alone. At sea I got entangled in problems with the Singhalese people. I told my family about the problems I had.
What kind of problems?
Sometime in April when I had gone out fishing, I had thrown my fishing nets in the same area as the Singhalese fishermen by mistake – when they were pulling up their nets at around 2.00am in the early morning they found mine. They became angry at me for this. There was a hot exchange of words – I then pulled my nets back and came ashore. Three days later they came to my home, threatened me saying that they would beat me up. I later found that they had also burnt my nets.
I heard that there was a boat leaving for Australia and my brother-in-law (Kalaimohan) told me to leave because I could not live there without being harassed by the Singhalese fisherman.
Is this the sole reason why you have left Sri Lanka?
Yes.”
On 15 September 2012, the applicant applied to the Department of Immigration and Citizenship (as it then was) (“the Department”) for a Protection visa. (CB 18-44)
The applicant’s claims were articulated in a declaration accompanying his application for the Protection visa and submissions in support of the Protection visa application. (CB 45-47 and 75-78, respectively)
In his declaration the applicant stated that he is a Tamil by ethnicity and Hindu by religion and that he worked as a fisherman between December 2007 and March 2012 without incident. He then, relevantly, stated (CB 45 to 46):
“The reasons I left
9.In April 2012, I was fishing at Udappu and my net accidently damaged the net of other fishermen who were Sinhala. An argument ensued and two Sinhala fishermen boarded my boat and beat me.
10.After beating me the fishermen left the area. I returned to Udappu that morning and told my father of the incident.
11.That night, the same group of Sinhala fisherman came to our house with Army and Navy personnel and I was taken to the joint Army/Navy camp at Aandimunai.
12.At the camp I was questioned about the incident and also about my fishing in the Trincomalee area. I was accused of going to Trincomalee and working for the LTTE not fishing. I was beaten and released the same night.
13.Next the Sinhala fishermen burnt morning, my boat, equipment and nets.
14.My parents told me I was at risk after being accused of helping the LTTE by both the Army and Navy and I should leave. With the help of my brother-in-law I left Sri Lanka.
15.I left Sri Lanka on 10 May 2012 to travel to Australia by boat. The RAN intercepted our boat and we were taken to Christmas Island. Our boat left from Trincomalee in Sri Lanka. We did not stop in any other countries.
What I fear may happen to me if I return:
16.I fear that the Sri Lankan Army or will interrogate and torture me for my alleged support of the LTTE. There is no possibility of me getting protection from the Army or Navy, or any other arm of the Sri Lankan Government.
17.I fear that if my asylum claim is not successful and I am forced to return to my home country, the authorities at the Airport will arrest me and detain and interrogate me. The authorities are likely to do this as I left Sri Lanka illegally. I could be tortured and imprisoned.
…
20.The authorities at the Airport will arrest me and detain and interrogate me if I am returned as a failed asylum seeker as I left Sri Lanka illegally. I could be imprisoned and tortured.”
The submission made on his behalf by his migration agent relevantly stated (CB75-76):
“In summary, our client fears persecution because Sri Lankan Government security agencies and affiliated paramilitary organisations suspect that he may be linked with the LTTE.
In April 2012, our client was fishing at Udappu and his net accidently damaged the nets of nearby Sinhala fishermen. An argument ensued and two Sinhala fishermen boarded his boat, beat him and then left the area.
On returning to shore in the morning, our client told his father of the incident. In the evening, the same Sinhala fishermen came to our client’s house with Army and Navy personnel and our client was taken to the joint Army/Navy camp at Aandimunai.
At the camp, our client was questioned about the incident and also about his previous fishing in the Trincomalee area. He was ccused of going to Trincomalee to work for the LTTE and was beaten and then released the same night.
Next morning, the Sinhala fishermen burned our client’s boat, equipment and nets.
Our client was told by his parents that he was at risk after being accused of assisting the LTTE by both the Sri Lankan Army and Navy and he should leave Sri Lanka. With the help of his brother-in-law he left Sri Lanka.
In addition, our client fled Sri Lanka illegally and he fears he will be intercepted on return to Sri Lanka, accused of supporting the LTTE and consequently seriously mistreated.
…
In this case, an assessment of whether or not our client’s fear of persecution is well-founded involves consideration of what happened to him and other Tamils like him in the past and current information about the circumstances in Sri Lanka. Those considerations inform what might happen in the reasonably foreseeable future.
…
The current situation in Sri Lanka: The current, ongoing human rights abuses against Tamils, ethnic repression of Tamils by forcefully resettling Sinhalese in Tamil areas, an increased troop presence in the North and East, and the activities of Paramilitary groups whose actions are condoned by the central authorities and who act with impunity, are all indicators of the serious circumstances that Tamils, in particular Tamils originating from the North and East, continue to face. They are also indicators that the Sri Lankan authorities still harbour the same motivations and perceptions that drove them to persecute the Tamil population over many years, culminating in the round up and slaughter of thousands of innocent Tamils in May 2009, as reported by the UN Expert’s Report, dated 31 March 2011 (“the 2011 Experts Report”) and the BBC Channel 4 documentary “Sri Lanka’s Killing Fields.”) Footnotes omitted
The submission set out extracts from country information regarding the persecution, torture and killing of Tamils residing in the north of Sri Lanka, particularly those suspected of having links with the (Liberation Tigers of Tamil Eelam (“LTTE”). The submission also set out extracts from country information in relation to the treatment of Tamils who are failed asylum seekers on their return to Sri Lanka and states that (CB 85):
“the inescapable inference is that returning Tamil asylum seekers will be suspected of supporting the LTTE and face a real chance they will be seriously harmed for that reason.”
It is clear that the applicant claimed to fear persecution and significant harm:
a)Because of his Tamil ethnicity;
b)Actual or implied political opinion as a supporter of the LTTE;
c)Membership of a particular social group being, “Tamils from the North or East of Sri Lanka”; and
d)His status as a failed asylum seeker if he returned to Sri Lanka.
For completeness it should be noted that the Tribunal identified and considered two further claims of the applicant, these being:
a)That he faced harm as a Tamil fisherman who was required to obtain a pass to fish (CB159 at [47] to[48]); and
b)That he had heard “grease men“ in his village in 2011. (CB 159 at [49])
Tribunal Proceedings
On 13 December 2012, the applicant, through his migration agent, applied to the Tribunal for review of the delegates decision. (CB 117 to 122)
On 7 January 2013, the Tribunal invited the applicant to attend a hearing before it in Sydney on 6 February 2013 by video link from Brisbane. (CB127 to 130) The applicant’s migration agent requested that the hearing be postponed as the applicant had moved to Victoria and was unable to attend. (CB 131) On 8 February 2013, the Tribunal invited the applicant to attend a rescheduled hearing on 14 March 2013 in Sydney by video link from Melbourne. (CB 138 to 141) At the hearing the applicant was accompanied by his migration agent and assisted by an interpreter in the Tamil and English language.
Tribunal decision
In its decision record, the Tribunal set out the applicable law in relation to sub- sections 36(2)(a) and (aa) of the Act, (CB 153 to 155).
In its Findings and Reasons, the Tribunal summarised the reasons the applicant is seeking protection in Australia as follows (CB 158 at [46]):
·“as a Sri Lankan Tamil, he is not safe in Sri Lanka, and has no protection.
·He is a member of a particular social group of Tamils from the north or East of Sri Lanka and his real and imputed political opinion arising from is (sic) race and his former residents in a predominantly Tamil region, including Udappu in the North West of Sri Lanka.
·He, a Sri Lankan Tamil, will be harassed by Sinhalese fisherman and the Sri Lankan CID will take him away, kill him and throw him away.
·The Sri Lankan army will interrogate and torture him for his alleged support of the LTTE because he said he had worked in Trincomalee and there is no possibility of getting protection from any arm of the Sri Lankan government.
·Since he has been in Australia, family members have told them that the authorities have come searching for him 3 times and the Army and Navy have told his parents they will take him away if they catch him.
·If he returns he fears that the Army and Navy will search for him and take him and enquire about who organised his boat trip.
·If forced to return to Sri Lanka, he fears that the authorities at the airport will arrest him, detain, interrogate him because he is a Tamil who left Sri Lanka Illegally and is a failed asylum seeker. He could be tortured and imprisoned.
·He cannot relocate to Sri Lanka because he has to register everywhere else. The authorities would look for him and if they found him they are taught to kill him.”
As noted earlier the Tribunal also identified, “two other possible claims” (see [15] above).
The Tribunal stated that it did not accept the applicant was a truthful witness (CB159 at [50]). The reasons for this were in summary:
a)the conflicting evidence the applicant gave at the hearing and the information provided during the entry interview regarding the incident with the Sinhalese fishermen. The Tribunal did not accept the applicant’s explanation for the differing accounts which included that he was in detention and was not feeling well on that day. The Tribunal noted that his evidence at the hearing was consistent with aspects of his claim made in his visa application but found that, “those claims have been fabricated for the purpose of making the application.” (CB 159 at [51]);
b)the Tribunal reasoned that, if the applicant had fled Sri Lanka by boat because the of the events he claimed during the hearing, even accepting that the applicant would have been stressed as a consequence of fleeing his country by boat, those events would be at, “the forefront of his mind during the entry interview.” The Tribunal considered whether the applicant’s lapse in memory was a consequence of the traumatic nature of the events he claimed had occurred. The Tribunal, however, noted that the applicant had not claimed he had been harmed while detained and that he was released within a few hours. The Tribunal concluded:
“Taken singly or cumulatively, the Tribunal is not satisfied that the applicant’s reasons for the differences in his evidence explain the applicant’s (sic) not mentioning at the entry interview the events he later relied on.” (CB 160 at [53] to [54]);
c)the Tribunal identified inconsistencies in the applicant’s evidence about the time he worked in Trincomalee in the East of Sri Lanka and held that these inconsistencies reinforced its view that the applicant’s evidence was not credible. (CB160 at [55] to [57])
The Tribunal stated in respect of the applicant’s claims (CB 160 at [58]:
“Giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant was involved in a dispute with Sri Lankan fishermen in April 2012 while at sea near Udappu, however, it does not accept that it went beyond threats being made to him while at sea. It is not satisfied that they burned his nets or his boats thereafter. The Tribunal does not accept any version of the consequences he has described of that incident including that the Sri Lankan fishermen came to his house with Army and Navy personnel, that he was detained or questioned and accused or suspected of any association with the LTTE for any reason or that since he has been in Australia, family members have told him that the authorities have come searching for him three times and the Army and Navy have told his parents they will take him away if they catch him.”
The Tribunal stated it had taken into account the country information provided by the applicant’s migration agent as well as country information available to it, which included the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated 12 December 2012 (CB 161 at [59] to [61]). The Tribunal found (CB 162 at [63]):
“The Tribunal is not satisfied that the applicant has provided any evidence that supports a finding that the CID will be interested in him if he returns to Sri Lanka because of his activities in Sri Lanka before he left. It finds that he does not have a risk profile such as the UNHCR has set out. It is not satisfied that he will suffer harm in Sri Lanka because he is a Sri Lankan Tamil, that he will be harassed by Sinhalese fisherman and the CID will take him away, kill him and throw him away for that reason or any other reason. It is not satisfied that the Sri Lankan army will take an interest in him and will interrogate and torture him for his alleged support of or working for the LTTE because he has worked in Trincomalee because it does not accept his evidence about the Army detaining and questioning him for the reasons given above.”
The Tribunal was not satisfied that the applicant would suffer harm if he returned to Sri Lanka because he was a member of a particular social group of Tamils from the North or East of Sri Lanka (CB 162 at [64]).
The Tribunal found that there was not a real chance that the applicant will suffer serious harm if he returns to Sri Lanka, nor that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm, because of the claims and reasons given by the applicant (CB 162 at [65]).
In relation to the applicant’s further claims, the Tribunal stated it was prepared to give the applicant the benefit of the doubt and accept that Tamils in Udappu require fishing passes which are issued by the Army and Navy. The Tribunal observed there was no evidence that the applicant or his father had suffered any harm because of the requirement for a fishing pass and that the only impact on the applicant and his father in the 25 years of war between the LTTE and Sri Lankan government, as fishermen, was the need to obtain a fishing pass and the presence of the Sri Lankan Army and Navy. Consequently, the Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm if he returns to Sri Lanka, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because he is a Tamil fisherman who requires a pass to go fishing (CB 163 at [68]).
As to the applicant’s claims regarding the greasemen, the Tribunal took into account country information in the delegate’s decision in relation to greasemen attacks and the applicant’s evidence that he did not witness the attack in the village and did not think that person will be a problem for him in the future. It also took into account the fact that this was not a claim made in his application or at the Tribunal hearing. It stated it was not satisfied that there was a real chance the applicant would suffer serious harm if he returns to Sri Lanka, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm from a greaseman or greasemen. (CB163 at [69])
The Tribunal then considered the applicant’s claim based on being a failed asylum seeker returning to Sri Lanka. The Tribunal made findings with respect to the circumstances of failed asylum seekers returning to Sri Lanka based on advices from the Department (CB163 at [71]). The Tribunal also considered other country information (CB 165 at [72 to [75]).The Tribunal stated (CB165 at [76] to [79]):
“76.The Tribunal accepts that the applicant left Sri Lanka illegally on a boat and travelled to Australia. The Tribunal also accepts that having departed from Sri Lanka in that manner means that on return to Sri Lanka he will come under the scrutiny of the Sri Lankan authorities. For the reasons given earlier, the Tribunal is not satisfied that the applicant has a profile that would otherwise bring him to the attention of the Sir (sic) Lankan authorities. The Tribunal finds that he is not a facilitator/organiser of people smuggling, or repeat offender.
77.The Tribunal is not satisfied that the Army and Navy will search for him and take him and enquire about who organised his boat trip if he returns to Sri Lanka because of the procedures that have been put in place, particularly since to November 2012. In making that finding, that (sic) Tribunal has taken account of the reports of returnees being visited in 2011. However, given the new, rigorous process that is in place, the Tribunal gives that evidence little weight.
78.The Tribunal accepts that the applicant may be questioned at the airport, charged and placed on remand, which may include being briefly detained in the remand section of Negombo prison if he arrives on a public holiday or at a weekend. It does not accept that he will be tortured and imprisoned.
79.The Tribunal does not accept that those processes, singly or cumulatively, amount to serious harm in respect of the Refugees Convention or significant harm as required by the complementary protection legislation.”
For these reasons the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a convention reason: s.36(2)(a); or that the applicant satisfied the complementary protection criterion: s.36(2)(aa). (CB166 at [81] to [82]).
Extension of Time
As the applicant was self - represented in the Court proceedings, the Court explained to him the nature of proceedings in which the Court considers an application of time pursuant to s.477(2) and, in particular, the factors that the Court considers in determining such an application. The Court identified the primary factors as being the extent of the delay, the reasons for the delay and the merits of the substantive application. I now proceed to consider these factors.
Extent of Delay
The 35 day period for making an application to the Court pursuant to s.477(1) of the Act ended on 3 June 2013. The applicant is, therefore, 91 days late in filing his application in the Court. I accept the Minister’s submission that this is not an insubstantial delay.
Reasons for Delay
It is apparent from the applicant’s reasons for delay specified in his application filed September 2013 that he was aware on 3 May 2013 that the Tribunal had, “rejected his case.” He says he was told this by his migration agent. His reasons for his delay in applying for judicial review of the Tribunal decision are in essence that, because he could not read English, he relied on others to assist him and relied on their statements that they would refer him to (unspecified) organisations who would then call him. These included his migration agent, a case manager in AMES, and his friends. It appears that sometime in late August/early September 2013 he approached Victoria Legal Aid who informed him that they had a backlog of cases and would not be able to look at it immediately. At this point he decided to lodge his application without legal representation.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay. As the Federal Court observed in SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38] per Foster J:
“In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay….”
In this case there is no evidence as to the reason for the delay, and no evidence that the applicant is in any different position to the vast majority of persons applying for protection visas around Australia, who file judicial review applications under s.476 of the Act with this Court within time. Many applicants for protection visas do not speak or read English and appear before this Court without legal representation.
The Minister submits that the applicant has not provided a reasonable explanation for his delay in lodging an application for review pursuant to s.477(1) and that this fact should weigh in favour of the Court not granting the application for an extension of time sought by the applicant.
In all the circumstances, the Court does not consider that there has been a satisfactory explanation for the delay.
Merits of Substantive Application
The Minister submits that the substantive application has no reasonable prospects of success and on this basis, the application for an extension of time should be refused.
Procedural Fairness Ground
The applicant’s first ground for judicial review is that he was not afforded procedural fairness by the Tribunal. In the proceedings I asked the applicant to explain what he meant by this. He was unable to assist the Court. He said he did not know.
The Minister submits that the grounds specified by the applicant in his application for judicial review do not contain any particulars to make them meaningful and on this basis the application should not succeed. Unfortunately, the applicant was unable to assist the Court in understanding the basis for his claim that he was not recorded procedural fairness.
The Minister submits that there was no breach of the procedural fairness code specified in the Act.
Section 422B of the Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of natural justice in the conduct of the Tribunal in relation to matters it deals with. Section 424A(1) provides that the Tribunal must give an applicant clear (written) particulars of any information it considers would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal is required to invite the applicant to comment on or respond to the information. There are, however, two exceptions to this requirement. The first exception is found in section 424AA. This section applies in circumstances where applicant is appearing before the Tribunal, because of an invitation made under s.425 of the Act, and the Tribunal orally gives the applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal is required to ensure, so far as is reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on by the Tribunal in affirming the decision under review. The Tribunal must orally invite the applicant to comment on or respond to the information and advise the applicant that he or she may seek additional time to comment on or respond to the information.
In this matter the applicant was invited to appear before the Tribunal pursuant to s.425 of the Act (CB 127 and 140). In its decision record the Tribunal states (CB 157 to 158):
a)It put to the applicant the inconsistencies it had identified between the information provided by the applicant during his entry interview and the information he provided to the Tribunal at the hearing. It noted that these inconsistencies, “may lead the Tribunal to find that he had not been truthful.” (at [38] to [39]);
b)A break was taken during the hearing “to enable the applicant to confer with his representative about whether he wished to respond or comment on information put to him pursuant to section 424AA or seek extra time to make comments. He made his comments when the hearing resumed.” (at [37]) The Tribunal records that the applicant took a break and returned with an explanation for the inconsistencies (at [41]);
c)He told the applicant that if the Tribunal found that the applicant had not been truthful, then this would be a reason or part of the reason for affirming the delegate’s decision. The applicant said he understood the consequences of the Tribunal relying on this information (at [41]);
d)The applicant’s representative then made submissions in relation to the issue of the applicant’s credibility (at [42]); and
e)The Tribunal allowed the representative 7 days within which to lodge any further submissions (at [42]). On the face of the Court Book, further submissions were not made by the migration agent.
The second exception to the requirement that the applicant be advised in writing about information which the Tribunal considers would be the reason or part of the reason for affirming a decision under review, is country information: see s.424A(3)(a).
I am satisfied that the Tribunal conducted the hearing in accordance with the natural justice rules specified in Division 4, Part 7 of the Act. Accordingly, I am satisfied that the applicant would not have reasonable prospects of success in prosecuting his application for judicial review on the ground that the Tribunal did not accord him procedural fairness.
Wrong Legal Test Ground
The applicant’s second ground for judicial review is that the Tribunal applied the wrong legal test. In the proceedings I asked the applicant to explain what he meant by this. He was unable to assist the Court. He said he did not know.
The Minister submits that the grounds specified by the applicant in his application for judicial review does not contain any particulars to make them meaningful and on this basis the application should not succeed. Unfortunately, the applicant was unable to assist the Court in understanding the basis for his claim that Tribunal applied the wrong legal test.
As noted earlier, the Tribunal set out the applicable law at the commencement of this decision in relation to the applicant’s application for a protection visa. (CB 153 to 155) I am satisfied that the Tribunal correctly set out the tests to be applied in relation to the application for a protection visa for convention reason (s.36(2)(a)) and under the complementary protection provisions: s.36(2)(aa). I agree with the submissions of the Minister that it can be inferred from this that at least the member understood the applicable law.
The Tribunal considered the evidence in detail, made findings in respect of the applicant’s claim for protection and based on those findings reached conclusions having correctly applied the tests in relation to each of the criterion for the grant of a protection visa. Accordingly, I am satisfied that the applicant would not have reasonable prospects of success in prosecuting his application for judicial review on the ground that the Tribunal applied the wrong legal test.
Conclusion
I have found that the applicant has not provided a reasonable explanation for the delay in making his application for judicial review, which delay was 91 days beyond the 35 day limit provided for under s.477(1) of the Act. I have further found that the applicant would not have reasonable prospects of success in prosecuting his application for judicial review. Accordingly, I am not satisfied it would be in the interests of the administration of justice to grant the applicant an extension of time within which to make his application for judicial review.
Consequently, I refuse to extend the time within which the applicant may make his application for judicial review under s.477(2) of the Act. Orders will be made refusing the application for an extension of time and that the applicant pay the respondent its costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 13 June 2014
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