MZZVQ v Minister for Immigration

[2014] FCCA 1296

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1296

Catchwords:
MIGRATION – Application for extension of time to lodge application for review of decision of the Refugee Review Tribunal – delay not significant and acceptable explanation of reasons for delay – application without merit – application under s.477(2) of the Migration Act 1958 (Cth) dismissed.

Legislation:

Convention relating to the Status of Refugees

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 425, 477(2)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MZXHY v Minister for Immigrationand Citizenship [2007] FCA 622

Applicant: MZZVQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1916 of 2013

Judgment of: Judge Whelan

Hearing date: 21 May 2014

Date of Last Submission: 21 May 2014

Delivered at: Melbourne

Delivered on: 21 May 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The Application filed 12 November 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1916 of 2013

MZZVQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Application for an extension of time

1. I think that Ms Latif, Counsel for the First Respondent, has given a very clear explanation of the Court’s jurisdiction and the matters that the Court needs to take into account in these proceedings. It is an application for judicial review of a Refugee Review Tribunal

   
   

   (“the Tribunal”) decision of 4 October 2013 where the Tribunal affirmed a decision not to grant the Applicant a protection visa.

   
   

   The application[1] was brought outside the timeframe provided by the Migration Act 1958 (Cth) (“the Act”) by some four days, and the Applicant seeks an extension of time in which to lodge this application. As Counsel for the First Respondent has identified, both in her oral submissions and in the written submissions,[2] the type of matters that the Court needs to take into account in deciding whether to grant an extension of time are whether there is some acceptable explanation for the delay and, particularly in cases such as this, whether there is merit in the substantive application.[3]

   [1] Application filed 12 November 2013.

   [2] First Respondent’s Contentions of Fact and Law filed 12 May 2014.

   [3] See further Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

2. I have read the reasons in the application as to why there was delay.

   
   

   I understand that the Applicant has not had legal representation

   
   

   and that he might not be familiar with the legal requirements, so I would certainly not dismiss this application for an extension of time simply on the basis of there not being an acceptable explanation for the delay. I think that the Applicant has indicated acceptable reasons for the delay. I, therefore, need to turn to whether the case itself has merit.

The substantive application

1. The Applicant is a Fijian national who applied for a protection visa on 1 October 2012. This application was rejected by a delegate of the

   
   

   First Respondent on 13 November 2012 and on 21 November 2012, the Applicant applied for a review of that decision by the Tribunal.

2. At the hearing, the Tribunal heard from the Applicant and a witness who gave oral evidence on behalf of the Applicant. The Tribunal considered the Applicant’s claims and those were as follows:

   ·In 2000, the Applicant was detained and interrogated at military headquarters on three occasions because he was suspected of being involved in the escape of a notorious prisoner, who happened to be his cousin;

   ·The Applicant did not report the matter for fear of further repercussions from the military;

   ·The Applicant’s cousin may have gone past the house during his escape; and

   ·There was some corroboration of the fact that the Applicant had been detained and interrogated as a result of the abovementioned events.

3. The Applicant also claimed that he remained of interest to military authorities and was subjected to ongoing military searches, intimidations and threats. Later, in 2006 or 2007 - I am not sure which, as the Applicant provided a different date in Court to that given before the Tribunal - the Applicant was detained on two occasions and was also threatened as a result of his political opinions and relationship with his cousin. The Applicant has stated to the Tribunal, and again today, that he was a supporter of the Fiji Democracy & Freedom Movement (“FDFM”) in Australia and that the Fijian military may have become aware of his involvement as a result of media releases and photographs.

4. The Applicant also says his family continue to receive anonymous phone calls from people seeking his whereabouts and there was various information supplied to the Tribunal in support of these claims.

   
   

   After the Tribunal hearing, the Tribunal wrote to the Applicant and informed him that, on the information before it, there might be a reason for affirming the delegate’s decision. The information referred to was discrepancies in the Applicant’s evidence and the oral evidence of another witness, and the Applicant was given an opportunity to respond to that and also provide further information concerning his involvement in the FDFM.

The Tribunal’s decision

1. The Tribunal, in its decision,[4] accepted that the Applicant was a

   
   

   Fiji national. It was not satisfied that the Applicant was wholly credible, having regard to his immigration history and delay in applying for the visa, but did accept that the Applicant’s cousin was in the vicinity of his house after his escape and found it plausible that the Applicant was arrested and questioned in relation to an alleged sighting of his cousin at, or near, his home.

   [4] Court Book filed 13 February 2014 at pp.282-301.

2. The Tribunal did not accept that the Applicant was suspected,

   
   

   or accused, of involvement with, or support for, the coup in 2000 and found that the Applicant had exaggerated his claims regarding the level of interest in him, the number of times he had been detained and the severity of his treatment.

3. The Tribunal did not accept the Applicant was involved with,

   
   

   or suspected of involvement with or support for, the Taukei Nationalist Movement (“TNM”) or included in a government list of dissenters,

   
   

   or that he was detained by the Fijian military in 2006. The Tribunal also did not accept that the Applicant was threatened. While it accepted that the Applicant’s Wife may have received threatening calls in his absence, the Tribunal was not satisfied that those calls related to the claimed events of 2000 and 2006.

4. The Tribunal did not consider that the Applicant would be a person of interest to the Fijian authorities for reasons of:

   ·His alleged association with his cousin;

   ·Suspected support for the 2000 coup; or

   ·Alleged involvement with the TNM or the Soqosoqo Duavata ni Lewenivanua,

   should he return to Fiji now, or in the reasonably foreseeable future.

5. The Tribunal accepted that the Applicant had become a member of the FDFM and had worked for that movement on a radio station in Australia, but did not consider that this conduct engaged the protective provisions of the Convention relating to the Status of Refugees

   
   

   (“the Convention”), either in relation to s.36(2)(a) of the Act or the complementary provisions in s.36(2)(aa) of the Act. The Tribunal was not persuaded that the Applicant was entitled to either a protection visa under the Convention provisions or under the complementary protection provisions.

Conclusions

1. The application for judicial review was lodged on 12 November 2013. It was filed out of time. In considering the substantive merit of the application, the first thing the Court needs to consider is the grounds of the application. The application contains one ground which is

   
   “I have important information to present to the Court that can help my case that I have not provided previously”

   .[5]

   [5] Application filed 12 November 2013 at p.3.

2. As Counsel for the First Respondent has explained in her submissions, the ground, in terms of a judicial review, is misconceived.

   
   

   The Applicant is not permitted to tender new evidence and invite the Court to make new, or different, factual findings to those that were made by the Tribunal.[6] The Court has to consider the material that was relied upon by the Tribunal and if the Tribunal made some error in relying on that material. In terms of my reading of the Court Book[7] and the Tribunal’s decision, I am unable to find that the Tribunal has relied on material, or has failed to consider material, that it should have,

   
   

   or that it has made an error in the way that it has approached its task in dealing with the application.

   [6] MZXHY v Minister for Immigrationand Citizenship [2007] FCA 622 at para.8.

   [7] Court Book filed 13 February 2014.

3. The Tribunal made certain findings in relation to the credit of the Applicant and they are not matters which the Court can reconsider. I am also satisfied that, from my reading of the Court Book, the Tribunal complied with the relevant requirements, particularly with respect to ss.424A and 425 of the Act, in terms of the procedures that it carried out.

4. I have read the medical certificates[8] that have been provided by the Applicant to the Court this morning and they certainly do raise some concerns about the Applicant’s health and his mental state. However,

   
   

   I do note that the report from the psychiatrist has indicated that the Applicant was fit to participate in these proceedings[9] and I believe that, from his presentation this morning, he has been able to put to the Court the matters which he wished to put before it.

   [8] Report by Dr Peter Wigg dated 19 May 2014 and letter from Dr Janet Bodycomb dated 20 May 2014.

   [9] Report by Dr Peter Wigg dated 19 May 2014.

5. On the basis of the material that is before the Court, I am unable to find that there is any jurisdictional error on the part of the Tribunal which would justify the granting of orders in this matter in favour of the Applicant.

6. Having found that the application lacks merit, I am therefore not satisfied that I should exercise my discretion to extend the time in which to lodge the substantive application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  23 June 2014