SZJBF v Minister for Immigration and Anor (No.2)

[2016] FCCA 1823

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZJBF v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 1823

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 426A, 426A(1), 476, 477(1), 477(2)

Migration Legislation Amendment Act (No. 1) 2009 (Cth), sch.2, Item 7

Cases cited:

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: SZJBF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 206 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 July 2016

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

Applicant in person.

Solicitors for the First Respondent:

Mr R White of

Mills Oakley Lawyers

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 206 of 2016

SZJBF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Refugee Review Tribunal (Tribunal).  By that decision the Tribunal affirmed a decision made by a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 9 July 2007 but the applicant did not file his application with this Court until 3 February 2016. I will first briefly set out the principles that must guide me in determining this application for an extension of time.

Principles

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period if two things are satisfied. First, the application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include: (a) whether there has been a reasonable and adequate explanation for the applicant’s delay; (b) whether there is any prejudice to the Minister; (c) whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   The factors to which I have referred at paragraph 47 above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (section 477, subsection (2), paragraph (b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

   [1] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]-[48]

3. In most cases the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship, in the context of extending time for making an appeal, the “court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2] What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

4. I first turn to the extent and explanation for delay.

Extent and explanation for delay

1. On any view, the delay is significant – almost nine years after the Tribunal made its decision, and almost seven years after 15 March 2009 being the date Item 7 of Schedule 2 to the Migration Legislation Amendment Act (No. 1) 2009 (Cth)) deems to be the date of the Tribunal’s decision.

2. The applicant has set out his explanation for delay in an affidavit he made on 1 February 2016. The applicant says his application was delayed because an “application was pending before the honourable Minister and also because lack of my knowledge”.

3. The applicant, who is not legally represented, was cross-examined on his affidavit. He gave evidence that he had applied for Ministerial intervention in 2008, but that application was rejected late in 2008. The applicant said he applied for Ministerial intervention after he had obtained legal advice. In the course of his evidence, the applicant disclosed the legal advice he received. After he disclosed the advice, I informed the applicant that he had disclosed evidence which was the subject of legal professional privilege. When I informed him of his right to claim privilege, and also that the evidence was not helpful to him, the applicant said he claimed privilege. I informed the applicant, however, that his having obtained legal advice before he applied for Ministerial intervention was not a matter that could attract privilege. I have not relied on the evidence the applicant gave about the advice he received from his lawyer. The applicant accepted he had previously successfully applied for judicial review of a previously constituted decision of the Tribunal, but he said he believed he could not apply again to this Court for judicial review of the Tribunal decision in question.

4. The Minister submits there is no evidence to verify the applicant’s explanation for the delay other than the bare assertions made in the applicant’s affidavit. The Minister further submits that the applicant’s applying to the Minister pursuant to s.417 of the Act indicates an acceptance by the applicant of the correctness of the Tribunal’s decision, or at the very least, a lack of intent to challenge the Tribunal’s decision. As for the evidence the applicant gave under cross-examination, the Minister submits it is not credible, and was void of meaningful detail. In any event, the Minister submits the evidence reveals the applicant was resourceful. The Minister referred to the applicant’s evidence that he had received assistance from a lawyer when preparing his application for a Protection visa, a friend assisted the applicant when he was before the Tribunal, the applicant sought legal advice in 2008, and, in around May 2016, the applicant made enquiries of Legal Aid.

5. I do not accept the applicant believed he could not apply for judicial review of the Tribunal’s decision. It is unlikely that the applicant could have held such belief given that the applicant had previously applied for judicial review of the First Tribunal’s decision, and the applicant sought and obtained legal advice after the Tribunal made its decision. Even if I were to accept the applicant believed he could not apply to this Court for judicial review of the Tribunal’s decision, the fact is the applicant did file an application with this Court, admittedly years after the Tribunal’s decision. That indicates the applicant abandoned his earlier belief. The applicant has not explained, however, when he abandoned that belief, or the circumstances in which he came to abandon that belief. That not only casts doubt about the applicant’s evidence of his belief; it leaves undetermined the period during which the applicant did not hold the belief he could not apply to this Court for judicial review, and there is no explanation why, during such period, the applicant did not apply for judicial review.

6. In my opinion, the applicant has given no adequate explanation for his delay in commencing these proceedings. I next turn to the merits of the grounds the applicant seeks to raise if an order under s.477(2) of the Act were made.

Merits of application

1. In his application for a protection visa,[3] the applicant makes two claims. The first is that he is a converted Christian, and that when he changed his religion from Muslim to Christian, his life was threatened by Muslim fundamentalists, and he was targeted by Muslim terrorists because of his religious beliefs. The second claim is that the Bangladesh Nationalist Party (BNP) and their associates Jamaat-E-Islam will kill him because of his conversion, his association with the Awami League, and, his protesting against the BNP and their political activity. In relation to both claims, the applicant stated “I will provide more later”. The applicant did not provide any further information to the delegate and, on 11 November 2005, the delegate rejected the applicant’s application for a Protection visa.

   [3] CB19-22

2. The applicant applied to the Tribunal (First Tribunal) for judicial review on 12 December 2005. He did not provide any additional material to the First Tribunal other than answering questions when he appeared before the First Tribunal on 8 February 2006. The First Tribunal affirmed the Minister’s decision on 26 May 2006. The First Tribunal’s decision was set aside by this Court after the applicant successfully applied to this Court for judicial review of the first Tribunal’s decision, and the matter was remitted to the Tribunal.

3. By letter dated 18 April 2007, a differently constituted Tribunal invited the applicant to appear before it on 15 May 2007 to give evidence and present arguments. The applicant did not appear at the hearing, and the Tribunal proceeded to make a decision on the review application without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Act.

4. On 16 May 2007, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting the applicant to comment on information that would be the reason, or a part of the reason, for affirming the decision under review. The applicant provided no response to the letter.

5. In its decision, the Tribunal referred to evidence the applicant gave at the hearing before the First Tribunal. The applicant gave evidence that:

   a)when his student visa had been cancelled, he went to see a lawyer who took his money and then disappeared;

   b)he did not believe in any religion, he had not accepted Christianity and was still a Muslim;

   c)he was a supporter of the Awami League and it was this that led to his problems with the BNP and Jamaat-E-Islam;

   d)he went to City College in Dhaka as claimed in his protection visa application but conceded other “things” in his application were not true;

   e)when he was politically active in the area he lived in in Bangladesh, a lot of people worked under him and when the Awami League was in power he used those people “to do some violence against the BNP”. The applicant said that when the BNP came to power, people wanted to get revenge on him for those activities. When the Tribunal put to him he was 16 years old when the Awami League came to power, the applicant said he got into politics then and gradually became a “gang leader”.

Tribunal’s decision

1. The Tribunal was not satisfied the applicant was in fear of persecution when he left Bangladesh.

   a)First, the applicant did not apply for a protection visa until September 2005 although he arrived in Australia in November 2004 on a student visa.

   b)Second, the applicant was unable to provide detailed information on his activities as a supporter of the Awami League. At the hearing before the First Tribunal, the applicant was vague about the nature of his political activities.

   c)Third, the applicant was not explicit at the hearing before the First Tribunal or in his written evidence about the harm he suffered.

   d)Fourth, the applicant claimed that only his family, rather than him, had been attacked.

2. The Tribunal found the applicant was not a high profile activist of the Awami League and that he suffered no harm because of his political opinion after the BNP came to power in 2001. On the basis of these findings, the Tribunal was not satisfied there was a real chance the applicant would face persecution because of his political opinion if he returns to Bangladesh in the foreseeable future.

3. The Tribunal also referred to the claim the applicant made in his Protection visa that he feared harm because he had changed his religion. The Tribunal noted that, at the hearing before the First Tribunal, the applicant said this claim was not true, and in fact he was still a Muslim and in any event not a religious believer. The Tribunal accepted that evidence as credible.

Grounds of Review

1. The application filed in this Court contains the following grounds of review:

   [1] In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   [2] The tribunal failed to assess my harm on the basis of my claims.

   [3] The tribunal failed to assess the present situation in Bangladesh since I left.

   Particulars:

   [a] AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was effect the decision [sic].

   [b] And for the safety of my life I forced to leave Bangladesh. When it became worse, I decided to leave Bangladesh.

   [c] I argue that the Department and the Tribunal asked many irrelevant questions to test the credibility of my evidence.

   [d] The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. I was nervous and confused at the time of interview with the Department.

   [e] For the protection of my life and I became serious target by the Muslim fundamentalist due to my conversion.

   [f] The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question.

   [g] I will provide more details in my Amended Application.

   [h] I believes [sic] I was denied procedural fairness when the hearing was conducted not freely and fairly.

2. In addition to these grounds, the applicant, who is not legally represented, made oral submissions. I will first consider the grounds stated in the application, and then consider the oral submissions the applicant made.

3. As the Minister correctly submits, the particulars are not particulars of the three grounds raised in the application, but appear to be separate complaints. I will treat each of the three grounds, and each of the alleged particulars as distinct grounds.

4. Ground [1] discloses no arguable jurisdictional error because it does not identify the considerations it is alleged the Tribunal failed to take into account.

5. Ground [2] has no reasonable prospects of success. The Tribunal correctly identified the claims the applicant made, both in his application for a Protection visa, and in the evidence the applicant gave before the First Tribunal; and the Tribunal assessed those claims.

6. Ground [3] also has no reasonable prospects of success. First, it is unclear what this ground claims constitutes the “present situation in Bangladesh” which the Tribunal ought to have considered. Second, the Tribunal impliedly did consider the “present situation in Bangladesh” (that is, as it existed in July 2007); it was against that background that the Tribunal assessed whether the applicant had a well-founded fear of persecution if he returned to Bangladesh, given the findings it made that the applicant was not a high profile political activist, the applicant’s not having suffered harm because of his political opinion, and the applicant’s delay in applying for a protection visa.

7. As for particular [a], it was reasonably open to the Tribunal not to accept the applicant was a high profile activist of the Awami League for the reasons it gave. Further, particular [a] does not identify the fact or facts it is said the Tribunal misunderstood or misconstrued, or the manner in which it misunderstood or misconstrued those facts. The claim stated in particular [a], therefore, has no prospect of success.

8. Particular [b] asserts facts in support of the applicant’s being entitled to protection. This discloses no arguable case of jurisdictional error because it impermissibly invites the Court to adjudicate on the merits of the applicant’s claims for protection.

9. Particular [c] discloses no arguable case of jurisdictional error. First, whether or not the delegate asked irrelevant questions is not relevant to what the Tribunal decided. Second, the Tribunal did not ask the applicant any questions because the applicant did not appear before the Tribunal. To the extent the applicant seeks to refer to questions the First Tribunal asked, and on which the Tribunal relied in its reasons for decision, the particular does not identify the questions it is claimed were irrelevant.

10. What I have said about particular [c] applies to some extent to particular [d]. That is, the questions the delegate asked are irrelevant to what the Tribunal did; and the Tribunal did not question the applicant because the applicant did not appear before the Tribunal. To the extent the applicant seeks to refer to the questions asked by the delegate, there is no evidence to support the assertion that the applicant was nervous or confused when questioned by the delegate; and there is nothing that could reasonably have suggested to the Tribunal that the applicant was nervous or confused when questioned by the delegate. Further, the applicant does not identify the inconsistency he claims the Tribunal found, or the questions which he claims were asked of him which led to the Tribunal finding inconsistencies in the applicant’s claims, or the questions which the applicant claims he answered under a state of confusion and nervousness.

11. Particular [e] repeats a claim which the applicant made in his application for a protection visa. This discloses no arguable case of jurisdictional error. First, it invites the Court to undertake merits review. Second, as noted by the Tribunal, before the First Tribunal, the applicant said this claim was not true, and in fact he was still a Muslim and in any event not a religious believer.

12. Particular [f] relates to the applicant’s questioning by the delegate. That discloses no arguable case of jurisdictional error. What occurred before the delegate is irrelevant to whether the Tribunal made a jurisdictional error.

13. Particular [g] is not a ground. It states the applicant will provide more details in his amended application. The applicant has not filed any amended application.

14. Finally, there is particular [h]. It claims the applicant was denied procedural fairness “when the hearing was conducted not freely and fairly”. There is no substance to this ground. First, although the applicant appeared before the First Tribunal, the applicant did not appear before the Tribunal. Thus there can be no basis for the claim that the Tribunal did not conduct a hearing “freely and fairly”. To the extent this ground is intended to refer to the hearing before the First Tribunal, the ground does not identify the manner in which the First Tribunal did not conduct the hearing freely and fairly. Further, how the First Tribunal conducted the hearing is not relevant to whether the Tribunal committed any jurisdictional error.

1. At the hearing, the applicant made a number of submissions. First, he submitted the Tribunal did not properly consider the applicant’s claims because the applicant did not have a hearing. That discloses no arguable case of jurisdictional error. The applicant does not claim he did not receive the letter dated 18 April 2007 from the Tribunal inviting him to attend a hearing before the Tribunal on 15 May 2007.[4] The applicant informed me that he did not appear before the Tribunal because he did not have any proper documents, and he did not want to show any fake documents. Nor does the applicant claim he did not receive the letter dated 16 May 2007 from the Tribunal inviting the applicant to comment on the matters set out in the letter.[5] Both letters specified as the applicant’s address the address the applicant specified in his application for review.[6] In those circumstances, the Tribunal had the power under s.426A(1) of the Act to make a decision on the applicant’s application for review without taking any further action to allow or enable the applicant to appear before it. There is nothing in the material before me that could raise an arguable case that the Tribunal acted unreasonably by deciding to make a decision on the applicant’s review without taking any further action to allow or enable the applicant to appear before it.

   [4] CB75

   [5] CB77

   [6] CB49

2. Second, the applicant submitted the Tribunal did not act in good faith. The basis of that submission is that the Tribunal decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This submission is not arguable. As I have already noted, the applicant does not claim he did not receive the Tribunal’s letter inviting him to appear before it; and, on the material that is before me, there is nothing to raise doubt that the Tribunal posted the letter to the address the applicant nominated in his application for review as the address to which the Tribunal should send correspondence to the applicant. There is also nothing in the material before me that could raise an arguable case that the Tribunal acted unreasonably by deciding to make a decision on the applicant’s review without taking any further action to allow or enable the applicant to appear before it.

3. Third, the applicant submitted the Tribunal misjudged his case because he did not appear before the Tribunal to tell it about his case. That does not raise any arguable case. There is nothing to suggest the Tribunal was not entitled to proceed as it did under s.426A of the Act and that its so deciding was unreasonable.

4. Fourth, the applicant submitted that he could obtain documents from Bangladesh that will show he has grounds for fearing harm if he were to return to Bangladesh. That does not raise any arguable case of jurisdictional error. Whether or not the applicant will face harm in Bangladesh was a matter for the Tribunal to determine.

Conclusion

1. For all these reasons – the absence of a reasonable explanation for the delay in commencing the application for judicial review, the 9 year delay in applying for judicial review, and the absence of any merit in any of the grounds stated in the application – I am not satisfied it is in the interests of the administration of justice that an order be made under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act.

2. I propose, therefore, to dismiss the application for extension of time.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 July 2016