SZQVD v Minister for Immigration

[2012] FMCA 1051

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVD v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1051

MIGRATION – Review of decision of the Refugee Review Tribunal – whether in the interests of the administration of justice to extend time for judicial review – no explanation provided for the delay in seeking judicial review –  applicant sought Ministerial intervention on two occasions – grounds in the substantive application do not reveal jurisdictional error – application for extension of time refused.

Migration Act 1958 (Cth), ss.417, 476, 477

Evidence Act 1995 (Cth), s.136

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
SZOCH v Minister for Immigration [2010] FMCA 300
SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816
SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478
Hui v Minister for Immigration [2011] FMCA 486
Kaur v Minister for Immigration & Anor [2010] FMCA 634
MZYII v Minister for Immigration & Citizenship [2011] FMCA 193
Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195
NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84
SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301
SZGGP v Minister for Immigration & Anor [2007] FMCA 965
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Re Ruddock; Ex Parte LX [2003] FCA 561
Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457
M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387
Yad Ram and Department of Immigration and Ethnic Affairs [1995] AATA 381; (1995) 57 FCR 565
Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401
Lo v Minister for Immigration & Citizenship [2007] FCA 553; (1995) 61 FCR 221
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Applicant: SZQVD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2533 of 2011

Judgment of: Nicholls FM

Hearing date: 18 September 2012

Date of Last Submission: 18 September 2012

Delivered at: Sydney

Delivered on: 21 November 2012

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr B O’Donnell

Solicitors for the Respondents: Minter Ellison

ORDERS

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

2. The applicant pay the first respondent’s costs set in the amount of $6471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2533 of 2011

SZQVD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application, made on 7 November 2011, seeking an extension of time within which to make a substantive application to the Court, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), for review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 28 March 2011, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Egypt (Court Book – “CB” – CB 1). He arrived in Australia on 1 October 2006 (CB 3) and applied for a protection visa on 10 August 2010 (CB 1 to CB 29).

Claims to Protection

1. The applicant’s claims to protection were set out in his application. In response to the question “Why did you leave that Country [Egypt]” (item 41 at CB 7) the applicant claimed that:

   1)He had been studying in Australia but, in December 2008, was advised that he required a kidney transplant.

   2)As a result of that advice, in order to receive a transplant, he returned to Egypt for four months. However, the transplant was unable to take place as his “elderly brother was not suitable”, and his “other brother died in a shocking car accident while in the army”. That meant that no one in his family was able to provide him with a kidney.

   3)A doctor in Egypt found a “compatible” donor and “asked for 200,000 Egyptian money”. In order to obtain the funds, the applicant’s mother sold her gold and his father sold his land.

2. In response to the question: “What do you fear may happen to you if you go back to that country?” (item 42 at CB 8), the applicant claimed that if he returned to Egypt he would not be able to receive treatment. Further that he did not have any more money to spend and that he would be at “serious risk or [he] may die”.

3. Finally, in answer to the question: “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” The applicant stated: “The authorities in my country cannot protect my life or help me and I will explain more during my interview” (item 45 at CB 10).

4. The applicant appointed a “Mr Toufic Laba Sarkis”, “JP” and “Accredited Interpreter”, as his authorised representative for the purpose of his application (CB 27 to CB 29).

5. On 5 August 2010, Mr Laba Sarkis provided a letter in support of the applicant’s claims (CB 30 to CB 31). That letter was said to attach various “medical documents and other documents”, however those documents do not appear to have been reproduced in the Court Book.

The Delegate

1. On 17 November 2010, the delegate refused the grant of a protection visa to the applicant (CB 49 to CB 53). The delegate found that the applicant had “presented no nexus between his claims and a Refugees Convention ground as the essential and significant reason for the harm feared” (CB 52.9). Further, the delegate was not satisfied that the harm feared by the applicant involved “serious harm and systematic and discriminatory conduct” (CB 53.5).

The Tribunal

1. On 7 December 2010, the applicant applied to the Tribunal for review of the delegate’s decision (CB 54 to CB 57). Mr Laba Sarkis was appointed as the applicant’s “authorised recipient” for the purpose of that review (CB 57).

2. On 14 February 2011, the applicant was invited to attend a hearing before the Tribunal on 11 March 2011 (CB 68 to CB 69). The applicant attended on that occasion, and was assisted by an interpreter in the Arabic language (CB 78 to CB 79).

3. According to the Tribunal’s account of that hearing, in addition to giving evidence about his claims as set out in his protection visa application, the applicant claimed to “… have developed sympathetic views toward Christianity” and that, if he returned to Egypt, he would “vocally support Christians” ([38] at CB 101, [43] – [44] at CB 102 and [50] at CB 103). Further, that his deceased brother had associated with members of the Muslim Brotherhood (“MB”) and his death was linked to that group ([38] – [39] at CB 101, [45] at CB 102 and [50] at CB 103)

4. On 28 March 2011, the Tribunal decided to affirm the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant ([61] at CB 106). The Tribunal’s findings and reasons are set out in its decision record ([49] at CB 103 to [60] at CB 106), a copy of which was provided to the applicant by letter dated 28 March 2011 (CB 95 to CB 96).

5. The Tribunal considered the applicant’s claims to be “… based on the Convention grounds of imputed political opinion, religion and membership of a particular social group” ([50] at CB 103).

6. In relation to his medical history, the Tribunal accepted the applicant’s evidence ([51] at CB 103). Further, the Tribunal accepted that “kidney transplant recipients in Egypt” may constitute a particular social group. However, the Tribunal was not satisfied that the applicant’s experiences in Egypt were because of his membership of that social group, nor, for that matter, any other social group ([52] at CB 103). Further, the Tribunal was not satisfied that the applicant’s experiences in Egypt amounted to “serious harm”. Nor that there was a nexus between his experiences and any of the Refugees Convention reasons ([53] at CB 103).

7. The Tribunal did not accept that the low standards of health care in Egypt, coupled with the applicant’s financial situation (including the difficulties faced by the applicant in accessing employment), would create an “… obstacle high enough to deny him access to basic healthcare in Egypt”. Further, even if it did accept that, such a denial would not be for a Refugees Convention reason ([55] at CB 104).

8. The Tribunal considered the applicant’s claim, “belatedly” made, that his brother had associated with members of the MB. The Tribunal found the applicant’s claims in that regard to be “farfetched and fanciful”, and did not accept that his brother’s death was related to the MB ([56] at CB 104).

9. In relation to the applicant’s claim to have developed a “liking for Christians”, the Tribunal was prepared to accept that claim. However, it found, that in light of country information available to it, that “… if the applicant were to return to Egypt and express his views there is no real chance that he will be subject to serious harm” for that reason, nor for his imputed, or express, political opinion, or membership of any particular social group ([58] at CB 105).

10. Finally, the Tribunal was not satisfied that, if returned to Egypt, the applicant would (as he claimed) be forced to serve in the military ([59] at CB 105).

The Extension of Time Application in relation to the Substantive Application to the Court

1. The applicant applied for judicial review of the Tribunal’s decision on 7 November 2011. At the first Court date, on 23 November 2011, the applicant failed to appear. Correspondence had been received by the Court’s registry that indicated that the applicant would be unable to attend due to a medical problem. In light of that information, the first Court date was adjourned until 1 February 2012.

2. On that occasion the applicant appeared in person and was assisted by an interpreter in the Arabic language. Ms L Weston appeared for the first respondent. At that time, I alerted the applicant to the need for him to persuade the Court that it was in the interests of the administration of justice to extend time for the making of his substantive application. Further, and relevant to that consideration was that the grounds of his substantive application, as presently pleaded, were deficient in asserting jurisdictional error, let alone that there was any reasonable prospect of him successfully prosecuting the substantive application if time were to be extended.

3. In light of that, I urged the applicant to attend, and listen carefully, to the lawyer assigned to assist him under the Court’s: “RRT Legal Advice Scheme”. Consent orders were made on that occasion granting leave to the applicant to file and serve any amended application by 14 March 2012.

4. Despite that opportunity, and the opportunity to receive legal advice, the applicant continued to press unchanged, the grounds of his initial applications to the Court.

5. The grounds of the application for an extension of time are as follows:

   “1. I wrote to the Hon Minister.

   2. I attach copy of the Reply.”

Before the Court

1. At the hearing of the application for an extension of time, the applicant appeared in person. While an interpreter in the Arabic language was present, the applicant confirmed that he could speak English (see also CB 1). While the interpreter had some difficulty, I was satisfied that the level of interpretation was adequate for the purpose and in the circumstances. Mr B O’Donnell of counsel appeared for the first respondent.

2. The Court had before it the Court Book, as well as written submissions on behalf of the Minister. The applicant sought to rely on the affidavit of Mr Laba Sarkis, affirmed on 14 March 2012, to which was annexed a transcript of the Tribunal hearing. The Minister proposed that, given the applicant was an unrepresented litigant, the transcript be admitted into evidence. However, given that it appeared that Mr Laba Sarkis was a “partial advocate”, that the transcript be limited under s.136 of the Evidence Act 1995 (Cth). That is, that the transcript be admitted as evidence of what Mr Laba Sarkis believed was said at the hearing. That was the course adopted by the Court. Also before the Court was the applicant’s affidavit of 7 November 2011 annexing various correspondence from the Minister’s department.

The Application for an Extension of Time

1. Section 477 of the Act provides that an application to this Court must be made within 35 days of the date of the Tribunal’s decision (s.477(1) of the Act). The Tribunal’s decision in the current case was made on 28 March 2011. The substantive application to the Court was not made until 7 November 2011, that is some six months after the expiration of the time for the making of a valid application

2. This Court may extend the time, upon an application being made in writing (s.477(2)(a) of the Act), if the Court is satisfied that “… it is necessary in the interests of the administration of justice” to do so (s.447(2)(b)). The applicant has made such an application, in writing, on 7 November 2011, which is the subject of the current consideration.

3. The circumstances relevant to this consideration have been considered on a number of occasions by this Court (see my consideration in SZMFJ v Minister for Immigration & Anor[2009] FMCA 771 at [44] and SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23]. See also SZNZI v Minister for Immigration & Anor[2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor[2010] FMCA 197 at [52] per Barnes FM). Relevant to the current case is the extent of the delay, whether any satisfactory reason has been advanced by the applicant for the delay, the merits, or otherwise, of the substantive application, and any impact on the applicant.

4. Given the applicant’s submissions to the Court (which did not distinguish between any of these elements nor seek to address them in any way), it is important to note that while the applicant did receive advice from the lawyer on the Court’s “RRT Legal Advice Scheme”, it was his submission before the Court that he relied exclusively on the advice and support of Mr Laba Sarkis, a person who often assists applicants before the Court, but who is not legally qualified, nor for that matter a registered migration agent. This may account for the applicant’s complete lack of understanding of the basis of the Tribunal’s decision, and, importantly, his failure to address the sole issue now before the Court. That is, the extension of time.

5. In this case the length of the delay in the applicant seeking judicial review is over seven months. In his oral submissions to the Court the applicant made no attempt to explain the delay, let alone provide a satisfactory explanation.

6. The best, for the applicant, of what can be derived from the attachment to his affidavit of 7 November 2011, is that following the Tribunal’s decision on 28 March 2011 the applicant sought intervention on two occasions by the Minister, pursuant to s.417 of the Act.

7. In his submissions Mr O’Donnell pointed to what he said were two lines of authority relevant to the question of whether seeking Ministerial intervention could provide a satisfactory explanation for the delay. He referred to an “older” line of authority that propounded that not only was such an application not an excuse for a “late” application, but represented an abandonment of the option of pursuing judicial review. A “later” line was said to have expressed doubt about that, in the sense that it allows for other circumstances to be taken into account in this consideration.

8. In the respondent’s outline of submissions, and before the Court, Mr O’Donnell set out what he said represented the two sets of authorities:

   1)Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 (“Applicant A2 of 2002”) at [9] per von Doussa J, Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21 (“Daniel”) at [15] per Goldberg J, M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 (“M211 of 2003”) at [16] – [24] and [36] per Black CJ, Sackville and Sundberg JJ, Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [32] per Jessup J with whom Gyles and Besanko JJ agreed and SZOCH v Minister for Immigration [2010] FMCA 300 at [38] and [53] – [54] per Nicholls FM.

   2)SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [58] – [72] per Barnes FM and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM.

9. While I accept some variance in this regard, I am not convinced that the “older” line of authority was as clear as suggested. The variation posited by Mr O’Donnell is echoed in some earlier authorities. For example, see Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195, where Finkelstein J rejected the contention on behalf of the Minister that time taken up in pursuing a request pursuant to s.417 of the Act would not constitute a good reason for the delay (see in particular at [6] and [8]). (See also NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84 and SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301.)

10. I also considered this point in an earlier case, SZGGP v Minister for Immigration & Anor [2007] FMCA 965 (not appealed), were other cases where also brought to my attention (see relevantly [76] – [78] and the cases cited there: Applicant A2 of 2002 at [9] per Doussa J, Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at [9] per Gray J, Re Ruddock; Ex Parte LX [2003] FCA 561 at [42] per Heerey J, Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [12] per Weinberg J, Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18] –[20], Weinberg J, Daniel at [14] per Goldberg J, M211 of 2003, S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [10] – [11] per Madgwick J, SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 and M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 at [18] and [20] per Goldberg J).

1. In any event, it is not necessary in this case to pursue such consideration. That is because, despite opportunity, the applicant has put nothing relevant before the Court other than the correspondence referred to above. In the circumstances what the Court is left with is that the applicant, after notification of the Tribunal decision, sought Ministerial intervention. That he did so once may allow, in some circumstances, (but not apparent in the current case), for some reasonable explanation for the delay. However, that he did so on a second occasion makes that less so. That is, given that is represents an insistence on addressing his claims to be a refugee, rather than seeking to assert legal error on the part of the Tribunal.

2. What is also present in the bundle of correspondence from the Minister’s department is a notice to the applicant confirming that his Bridging visa (“E”) was due to expire on 9 November 2011. The applicant was put on notice that he should present a “valid ticket” to the Minister’s department by 9 November 2011, and that the “valid ticket” should be for departure from Australia no later than 22 November 2011.

3. In all the circumstances therefore, what is presented, is that, for whatever reason and at least with the assistance of Mr Laba Sarkis, the applicant elected to pursue Ministerial intervention rather than coming to Court to assert jurisdictional error in the Tribunal’s decision. Further, I note, he pressed this approach on a second occasion.

4. The coincidence in the timing of the application to the Court and the notice from the Minister’s department makes it, at least, tolerably clear that the applicant came to the Court in an attempt to delay his departure from Australia, not necessarily to argue for legal error in the Tribunal’s decision. That was confirmed by the applicant before the Court when he submitted that when the Minister’s department “… forced him to buy a ticket and go back to Egypt I didn’t have any other option other than this course”. That is, coming to this Court was to avoid removal, rather than for the purpose of asserting jurisdictional error in the Tribunal’s decision.

5. That view is supported by the bare grounds of the substantive application to the Court:

   “1. The Tribunal misunderstood my claims

   2. The Tribunal misapplied the law”

6. It may be allowed that a legally unrepresented applicant may have some difficult in articulating his legal grounds to the Court. However, the total lack of any particularity in the grounds of the substantive application adds weight to the proposition referred to above. That is further strengthened by the circumstance that, even after receiving legal advice, the applicant put nothing further before the Court.

7. The matter is put beyond doubt when regard is had to the applicant’s submissions before the Court. Far from addressing the question of any misunderstanding of his claim before the Tribunal, or any misapplication of the law the applicant sought, at some length, to reagitate the claims that he had put to the Tribunal.

8. His own health, the difficulties of treatment, costs of health care, the standards of health care in Egypt, and the allegation of his brother’s death at the hands of the Egyptian authorities were all pressed in some detail before the Court.

9. However, these were all matters that were put to the Tribunal. It is clear that, despite opportunity to obtain some understanding of the different role of the Tribunal and the Court, the applicant has chosen to make his presentation to the Court on the basis that either the Tribunal member came to the wrong conclusion, or the Court should substitute its own findings for those of the Tribunal member.

10. The first can have no prospect of success if time were extended and the proceedings allowed to continue. The applicant is entitled to a fair hearing and process before the Tribunal, not necessarily a “fair outcome” (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

11. As to the second this, in the circumstances, does not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

12. The first ground of the substantive application is, in the circumstances, not worthy of supporting an extension of time. Any plain reading of the Tribunal’s decision record, and the relevant material, reveals that the Tribunal did not misunderstand the applicant’s claims. As Mr O’Donnell correctly submitted, the Tribunal generally accepted the applicant’s factual claims as they related to his medical condition and kidney transplant.

13. The second ground asserts a misapplication of the law. As referred to above, no particulars are given in the substantive application, nor were any given by the applicant before the Court.

14. Mr O’Donnell submitted that the only “potentially controversial” matter involving the application of law was the Tribunal’s finding that kidney transplant recipients in Egypt could form a particular social group for the purposes of the Refugees Convention. The Tribunal made such a finding at [52] (CB 103)”

    “… The Tribunal is prepared to accept that ‘kidney transplant recipients in Egypt’ may constitute a particular social group…”

15. Although no submissions were pressed on this, given what is set out below, I understood, and agree with what was implicit in the first respondent’s submission that there is clearly a distinction between a “particular social group” as that term is understood (and as it conjures immediate connection to the purposes of the Convention) (Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 (“Applicant S”), see also Yad Ram and Department of Immigration and Ethnic Affairs [1995] AATA 381; (1995) 57 FCR 565), and a “social group” or even a “group” in general. (For the distinction see Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401 and Applicant A and Applicant S generally.)

16. However, whether a social group, or even a group to which an applicant belongs, is a “particular social group” is a matter for the Tribunal to determine. It arises from the material before the Tribunal (see also Applicant A per Kirby J in this regard). In Applicant A the majority found that the preferred social group in that case (persons in China, having one child) was not a “particular social group”. However, McHugh J noted that they could be in some circumstances (see Applicant A at 269, see also, for example, Lo v Minister for Immigration & Citizenship [2007] FCA 553; (1995) 61 FCR 221 at 231).

17. In any event, as Mr O’Donnell also submitted, whatever the Tribunal’s approach here, on this point, it concluded in the applicant’s favour. That is, that the applicant was a member of this “particular social group”. Had the Tribunal ultimately decided the review application in the applicant’s favour, this would have been a point available to the Minister, should he have chosen to pursue it, for judicial review.

18. However, the Tribunal subsequently found that the applicant’s membership of such a group would not be the reason for any harm suffered by the applicant on return to Egypt ([52] at CB 103). Such a finding of fact is not reviewable by this Court (Wu Shan Liang and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (“Plaintiff S157/2002”)).

19. Further, despite the Tribunal’s apparent confusion as to the distinction outlined above, the Tribunal’s finding of the absence of a nexus between the applicant’s experiences and any of the relevant reasons in the Refugees Convention ([53] at CB 103) stands in answer to what the Tribunal purported to set out, initially at [52] (see [49] above). I agree with Mr O’Donnell’s submission that the ultimate reason for the Tribunal’s decision was, however characterised by the Tribunal, the applicant’s claimed harm, and fear of future harm, lacked a Refugees Convention nexus.

20. It must be said here that the delegate’s relevant understanding of the difference between a “social group” and a “particular social group” (as set out in her decision record and as reproduced at CB 51 to CB 52) may have been, and indeed may still be, of assistance to the Tribunal member in understanding relevant concepts.

21. I also raised with Mr O’Donnell that, on its face, there was a contradiction in the Tribunal’s decision record. That is, as between [44] (at CB 102):

    “The Tribunal put to him that there are many Egyptians who vocally support Christians and that there is evidence before the Tribunal to suggest that those who speak in support of Christians are harmed…”

    and, the Tribunal’s findings at [58] (at CB 105):

    “… The Tribunal has uncovered no information in any of the sources consulted to suggest that Muslims who advocate tolerance, defend Christians, speak against extremism and terrorism are being subjected to harm or mistreatment by anyone in Egypt. The Tribunal finds that if the applicant were to return to Egypt and express his views there is no real chance that he will be subjected to serious harm for the reason of his religion, imputed or express political opinion or membership of any particular social group.”

22. That contradiction, in my view, is explained, satisfactorily, by the insertion of the word “no” between the words “is” and “evidence” (at [44] at CB 102). Tribunal decision records are meant to be read fairly and holistically (Wu Shan Liang). In context, it is clear that is what the Tribunal meant. Tribunal decision records (as well as Court judgments) can all benefit from “proof reading” before handing down.

23. Before the Court, the applicant raised a number of matters that he said occurred after the making of the Tribunal’s decision. In particular, some recent court event in Egypt that he indicated were relevant to his circumstances should he return to Egypt. He apparently had some document relevant to this.

24. In relation to that document (not properly or adequately identified, nor, or ultimately, pressed by the applicant), and in relation to submissions about the situation subsequent to the Tribunal’s decision in Egypt, none of that is relevant to the Tribunal’s decision in showing jurisdictional error on its part.

25. The applicant also stated, from the bar table, that he was “mentally disturbed” and “was in Westmead Hospital for about a month because of the pressure I had from the Department”. No medical, or other, evidence was put before the Court to support that assertion. Importantly there is nothing, let alone any evidence, to show that this was raised as an issue before the Tribunal to explain any difficulty the applicant had in presenting his case to the Tribunal. The only medical references were to his renal problems, matters which the Tribunal accepted and dealt with.

26. In all, therefore, the grounds of the substantive application, even when viewed as beneficially as possible for the applicant, reveal no error, let alone reasonable prospects of success, such as to argue for an extension of time pursuant to s.477(2) of the Act.

27. Before the Court the applicant also submitted that he “would die” if he returned to Egypt given his medical condition, the state of care in Egypt and that his kidney donor’s family wanted to kill him.

28. Even putting to one side any hyperbole in that submission, it is clear that, if the applicant were to return to Egypt and based on his account, there would be some impact on the applicant in terms of the standard of care available. (The Tribunal accepted this at [54] at CB 103.)

29. However, this is not such as can assist the applicant in the exercise of the Court’s discretion as to what is in the interests of the administration of justice in the current proceedings. The Court has no power to grant the applicant a visa. That is not within the purview of the jurisdiction granted to the Court. That jurisdiction, in the current circumstances, is to review the Tribunal’s decision to search for jurisdictional error (s.476 of the Act and see Plaintiff S157/2002).

30. In the context of the extension of time, any impact on the applicant’s mental or physical health, even if accepted by the Court, cannot serve to assist the applicant. The interests of the administration of justice focussed here is on whether time should be extended for the making of the substantive application such that any jurisdictional error on the part of the Tribunal can and should be addressed. In the current case, no such error is apparent from the grounds of the substantive application, nor is error nor otherwise evident.

Conclusion

1. In the circumstances, therefore, where no such jurisdictional error is apparent and no satisfactory explanation for the delay in coming to this Court has been proffered, the extension of time should be refused. I will make an order accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  21 November 2012