SZQLG v Minister for Immigration and Citizenship
[2011] FMCA 791
•26 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLG v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR | [2011] FMCA 791 |
| MIGRATION – Application for an extension of time within which to seek judicial review of a decision of the Refugee Review Tribunal made in 1998 – application refused. |
| Migration Act 1958 (Cth), ss.417, 477 Migration Legislation Amendment Act (No.1) 2009 (Cth) |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 SZNZI v Minister for Immigration and Citizenship [2010] FMCA 57 SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197 SZOSB v Minister for Immigration and Citizenship [2010] FMCA 998 VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 |
| Applicant: | SZQLG |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1516 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act is refused.
The application of 18 July 2011 is dismissed as incompetent under s.477(1) of the Migration Act.
The applicant pay the costs of the first respondent fixed in the sum of $3,123.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1516 of 2011
| SZQLG |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
On 18 July 2011 an application was filed in this court in the name of the applicant seeking review of a decision of the Refugee Review Tribunal dated 17 June 1998 affirming a decision of a delegate of the first respondent not to grant him a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the Court within 35 days of the date of the migration decision (or the date of commencement of Schedule 2 to the Migration Legislation Amendment Act (No.1) 2009 (Cth), see in particular clauses 7 and 12 of Schedule 2).
Under s.477(2) of the Act the court may by order extend the 35-day period as the court considers appropriate if an application for such an 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 and the court is satisfied that it is necessary in the interests of the administration of justice to do so.
The applicant did not apply to this court for review within 35 days of the Tribunal decision or within the 35 day period in s.477. His application was filed over 13 years after the date of the Tribunal decision. His application is therefore incompetent unless the court makes an order extending the time pursuant to s.477(2) of the Act.
In the application of 18 July 2011 the applicant sought an extension of time on the basis, that he “only became aware of the decision on 17/7/11, please refer to my affidavit.” However when the affidavit in the name of the applicant said to have been affirmed on 17 July 2011 and filed on 18 July 2011 was shown to him in the witness box he did not recognise the signature in his name. In contrast, he did recognise what must be said to appear to the lay eye to be a rather different signature on the affidavit he affirmed on 12 September 2011 specifically in relation to his application for an extension of time.
While this is a matter of concern, the applicant had ample opportunity in his second affidavit and also in oral evidence in chief to address the delay and reasons for the delay in seeking judicial review. He was also cross-examined. It is not necessary for the purposes of these proceedings to consider further any implications arising from the applicant’s claim that he did not recognise the signature on one of the affidavits said to have been filed by him (both of which are said to be witnessed by the same person). I make no criticism of the applicant himself in this respect.
When this matter first came before the court for directions it was listed for hearing of the application for an extension of time preceding any hearing of the merits of the substantive application. As indicated, the applicant was given and took the opportunity to file an affidavit in support of his application for an extension of time.
The first respondent opposed any extension of time and relies on an affidavit filed on 26 August 2011 of Matthew David Alderton in relation to the chronology of events involving the applicant’s application for a protection visa and what occurred thereafter.
A copy of the Tribunal’s decision of 17 June 1998 is before the court. The applicant arrived in Australia in 1996. In January 1997 he lodged an application for a protection visa claiming that he had a well-founded fear of persecution in his home country of Lebanon. The application was refused by a delegate of the first respondent in May 1997.
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. It is apparent from the Tribunal reasons for decision and also from the applicant’s evidence that the applicant attended a Tribunal hearing. I will return to what occurred in that hearing when considering the merits of the substantive application.
In its findings and reasons, while the Tribunal accepted that the applicant “may have been a supporter of Michel Aoun’s anti-Syrian cause” in Lebanon and that he had a fear of returning to Lebanon, it did not accept that such fear was well-founded.
The Tribunal made adverse credibility findings about the applicant’s claims regarding events in Lebanon for reasons which it gave, including that the applicant gave as his reason for coming to Australia that he wanted to see his daughters. The Tribunal found it “implausible that someone who feared he would be killed in Lebanon would not state that reason when given an opportunity to do so”. It did not accept the applicant’s explanation that “his wife told him not to do so until he was safe”, having regard to the long period of time he was in Australia before he filled in his protection visa application. The Tribunal also had regard to independent country information that there were “many thousands of Aoun supporters in Lebanon” at the time of the Tribunal decision who were “going about their business untroubled by what the applicant himself stated was a pervasive Syrian security presence”.
While the Tribunal accepted that the applicant was involved with the Aoun movement in the late nineteen eighties, it did not accept that he was on a wanted list as claimed. It found he was “never troubled by the authorities at that time or subsequently”, that he commuted weekly within Lebanon until 1996, obtained a passport and departed unhindered. It had regard to independent evidence which strongly suggested that the applicant was not wanted by the authorities.
Nor did the Tribunal accept the late claim raised for the first time at the hearing that the applicant was shot at in the mid 1990s after being accused of being an Aounist supporter. It found it “implausible that the applicant could not remember when the shooting incident took place”. It also found implausible the applicant’s claims about being stopped at a checkpoint he had crossed many times on one occasion and shot at in circumstances where he dared the sentry to shoot and that the sentry would then resume checking cars and let him drive off. It found that there were specified discrepancies in the applicant’s account of this incident and also had regard to his continued freedom of movement in and ease of departure from Lebanon.
The Tribunal also did not accept the claim made for the first time at the hearing that the applicant had difficulty obtaining a passport and had to enlist the help of friends with contacts with Syrian intelligence. This claim was said to be contrary to his original claims and “highly implausible” in light of independent country information.
The Tribunal found an incident in the mid-seventies, when the applicant’s identity card was taken from him, was an “unpredictable criminal act” and not persecution for a Convention-related reason.
In view of the Tribunal’s findings about the applicant’s credibility, independent country information and the applicant’s record of travel and employment within Lebanon in the 1990s, the Tribunal was not satisfied that he had a well-founded fear of persecution for a Convention reason at the time of the decision, or in the reasonably foreseeable future if he returned to Lebanon.
As indicated, the court must consider whether it is necessary in the interests of the administration of justice to extend the time for making the application. In that context it is appropriate to have regard to all of the circumstances.
Of particular relevance, however, are issues such as the extent and nature of the delay and any explanation provided by the applicant in that respect as well as whether there is any merit in the application. Notwithstanding that the considerations which might bear on the discretion are unconfined, the issues of delay and merit are critical considerations (see SZNZI v Minister for Immigration and Citizenship [2010] FMCA 57 at [11] and SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197).
The applicant’s claims and evidence about what occurred after the Tribunal decision do not amount to a reasonable or satisfactory explanation for the delay in commencing these proceedings. The delay was significant, being over 13 years. The extent of the delay must be balanced against the reasons for delay, but the applicant has not provided a reasonable explanation for such an inordinate delay in seeking judicial review in this court.
I note that these are not the first judicial review proceedings in relation to the Tribunal decision in issue. The applicant conceded in cross-examination that, apparently after he found out about the Tribunal decision – although he was not clear about the timing – he sought the assistance of a lawyer, a Mr Issa, at a firm of lawyers called Harrisons. After some prevarication he appeared to concede that he was aware that he had received a negative decision from the Tribunal and seemed to say that thereafter he simply left matters to his solicitors, to whom he had paid some money. He stated that he was unaware the judicial review applications were made, first to the Federal Court and then to the High Court. If the applicant was unaware of these proceedings then the existence of such prior proceedings would not in any way provide an explanation for the period of time they occupied after the Tribunal decision.
The first of these was an application for judicial review filed in the Federal Court on 16 July 1998. It was discontinued on 21 August 1998. On 16 February 2000, according to a letter to Mr Issa, the applicant made a request to the Minister to exercise his discretion under s.417 of the Migration Act to substitute a more favourable decision for the decision of the Tribunal. By letter dated 25 May 2000 the applicant was notified that the Minister had decided not to consider exercising his power in that case.
It is not entirely clear whether the applicant was disclaiming knowledge of this application to the Minister because at one point he did refer to knowledge of an application being made to the Minister in 2000, although he seemed to recall that being an application on his behalf by Mr Laba Sarkis, who made such an application in 2007. The applicant’s lack of recollection of precise dates is understandable given the considerable amount of time that has passed. What is not understandable and what I do not accept on his evidence is his claim that he had no knowledge whatsoever of any actions being taken on his behalf in relation to the decision of the Tribunal and that this somehow provides a reasonable explanation for the delay.
If the applicant had no such knowledge at a time when he had the assistance of solicitors, that can only have been through a conscious decision on his part not to inquire as to what actions were being taken on his behalf.
Subsequently, on 23 May 2003, the applicant’s solicitors filed a draft order nisi application in the High Court’s original jurisdiction seeking judicial review of the Tribunal decision as part of the Muin and Lie class action. His matter was, with other such matters, remitted to the Federal Court, but on 23 April 2004 the applicant’s solicitors filed a notice of discontinuance. I note that the notice of discontinuance also provided for the applicant to pay the respondent’s costs at a figure to be agreed.
If one were to accept the applicant’s contention that he remained ignorant as to what was being done on his behalf, again, such ignorance would have been maintained in the face of assistance from his lawyer in two legal proceedings as well as in writing to the Minister and also notwithstanding an adverse costs order against him.
Moreover, on 16 May 2006 a further application was made to the Minister in the name of the applicant himself from an address which he agreed was his address, again asking the Minister to exercise power under s.417 of the Act. The applicant was advised by letter sent to his address on 25 January 2007 that the Minister had decided not to exercise that power to substitute a more favourable decision for that of the Tribunal.
Subsequently, on 12 July 2007 Mr Laba Sarkis wrote to the then Minister on behalf of the applicant again asking that he exercise his power under s.417 of the Act. On 21 September 2007 the applicant, through Mr Laba Sarkis, was advised that the additional information he had provided and the previous information did not bring the case within the Minister’s guidelines and that no further action would be taken in respect of his case.
Even if the applicant maintained a degree of deliberate ignorance in the face of such activity on his behalf, at that latest by the end of September 2007, he must have been clearly aware of the adverse Tribunal decision. There is no explanation whatsoever for the delay from that time until the lodging of his application in this court. I note in that respect that it was Mr Laba Sarkis who witnessed both of the affidavits said to have been affirmed by the applicant in these proceedings.
There has been an extraordinarily lengthy and inordinate delay and there is no acceptable or reasonable explanation for that delay.
It is also relevant to have regard to the merits of the present application for judicial review. As Lucev FM pointed out in WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075, in assessing merit in circumstances where the application for an extension of time is being determined as a preliminary question the assessment must necessarily be broad, involving a consideration of the outline of the case in relation to which the party seeking the extension of time bears the burden of persuasion.
I have borne in mind that the view has been expressed (albeit in the context of an application for an extension of time within which to appeal) that it is often appropriate for a court to regard the apparent existence of reasonable prospects of success as a necessary but not sufficient condition. Another way of looking at this issue is that the longer the delay without reasonable explanation, the stronger would need to be the argument on substantive merit as Heerey J suggested in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 at [23] in relation to the exercise of the discretion to refuse relief. Wilcox J in Gararth v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316 at [62] suggested that although there is not and should not be a rigid rule, a delay of five years would ordinarily be extremely difficult to excuse.
The delay in this case is, as indicated, extremely significant. The grounds in the application are generally expressed and unparticularised and do not raise any arguable case of jurisdictional error. The claim that the Tribunal “overlooked [the applicant’s] well-founded fear of persecution” seeks merits review. The claims that “the decision was not properly exercised, contrary to the law” and that the applicant was “denied substantial justice” are meaningless in the absence of particulars.
As the applicant is self-represented I have had regard to the Tribunal decision. However there is nothing on the face of that decision to suggest any arguable case of jurisdictional error on any of the bases contended for by the applicant or otherwise.
The applicant raised a fresh claim in oral submissions, which was that he had just received the Tribunal hearing tape and that he had identified some interpreter errors. There is no evidence before the court in that respect and nor is there any explanation as to how the applicant was able to make such identification, given that he does not speak English, but assuming for present purposes that he had some assistance I have considered his claims in that respect.
However, apart from saying that there were “little mistakes” and “some mistakes”, there was only one specific alleged mistake identified in the applicant’s submissions. That was that he suggested that a claim he made at the Tribunal hearing about three priests having been slaughtered was mistranslated as a reference to three nuns. It is the case that in the Tribunal account of what occurred in the hearing it referred to such a claim in the context of its consideration of the applicant’s claim that he had been shot at in the mid 1990s. The Tribunal recorded that when asked why he had been shot, the applicant said that at the time shooting “was a very common occurrence in Lebanon”, “death was easy in Lebanon” and that he mentioned the case of “three nuns who had been murdered in 1975”. In response, the Tribunal suggested there had been an improvement in conditions in Lebanon since that time. The applicant claimed that this was not the case, especially if someone was wanted. The Tribunal went on to discuss the applicant’s ease of obtaining a passport and departing from Beirut and other matters.
Taking it at its highest, even if such a claimed mistranslation was made out it would not be such as to establish that the applicant was either effectively prevented from giving his evidence in the sense considered in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 or that the errors that occurred in translation were so material as to cause the decision-making process to miscarry. The single error or possible error that has been identified has not been shown to be material to the Tribunal conclusions (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230). No potential claim of jurisdictional error on the basis of interpreter error is substantiated on the evidence before the court and the claims of the applicant.
The applicant’s general claims about his inability to remember dates at the Tribunal hearing and his dissatisfaction with the Tribunal’s concerns in that respect also do not establish any basis for jurisdictional error. The claims made by the applicant and the material before the court are not such as to establish even arguable prospects of success. They certainly do not demonstrate a case of such strength as to outweigh the extraordinarily lengthy and unsatisfactorily explained delay in the commencement of these proceedings.
Even taking the applicant’s case at its highest he has adopted what can only be described as an extremely casual approach to obtaining information about what was happening in relation to his matter. While this might be understandable in the context of a person who clearly would prefer to remain in Australia rather than to return to Lebanon, that fact and the issues that the applicant raises about compassionate circumstances, such as the presence of his family in Australia, are not such as to amount to circumstances that make it necessary in the interests of the administration of justice to extend the time for the application. As Smith FM observed in SZOSB v Minister for Immigration and Citizenship [2010] FMCA 998 at [45] there is a “public interest in challenges to the validity of administrative decisions being brought promptly. That public interest is reflected in the time limit in s.477(1) and the demanding test before time can be extended”.
Taking into account all of the circumstances, on the material before the court I am not persuaded to exercise the discretion provided by s.477(2) of the Act as I am not satisfied it is necessary in the administration of justice to extend the time. The application for an extension of time should be refused and the application dismissed as incompetent.
The applicant has been unsuccessful and the Minister seeks costs in the scale amount of $3,123. The applicant told the court that he cannot work. He sought the opportunity to pay any such costs order by instalments. I do not consider it appropriate for the court to set a timetable for payment of any costs order. The applicant’s impecuniosity is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 14 October 2011
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