SZRLL v Minister for Immigration

[2012] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRLL v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 691

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant seeking extension of time for judicial review application – extension of time refused.

Migration Act 1958 (Cth), s.477

Applicant: SZRLL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 964 of 2012

Judgment of: Driver FM

Hearing date: 9 August 2012

Delivered at: Sydney

Delivered on: 9 August 2012

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, Solicitor

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 964 of 2012

SZRLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from judgment)

1. On 3 May 2012 an application was filed in this Court to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 February 2012. It is common ground that in order for the Court to entertain the application, an extension of time would be required in the exercise of the Court’s discretion under s.477(2) of the Migration Act 1958 (Cth) (“the Migration Act”). The decision of the Tribunal concerned the applicant, who is a man from Lebanon who claimed persecution in that country on account of his sexual orientation.

2. The applicant arrived in Australia on 23 January 2010 and applied to the Minister’s Department for a protection visa on 24 May 2010.  That application was refused on 8 October 2010 and the applicant sought review by the Tribunal on 4 November 2010.  The Tribunal referred to the interview conducted by the Minister’s delegate with the applicant on 24 September 2010 and its own hearing conducted with him.  The applicant was represented by a solicitor before the Tribunal.  The Tribunal hearing was initially conducted on 24 February 2011.  The Tribunal recounts at [63] of its reasons[1] that the solicitor requested an adjournment because the solicitor considered the applicant was having difficulty.  The Tribunal records its surprise at that contention, but granted the adjournment.  There were post hearing submissions and a psychologist’s report was provided to the Tribunal referring to the applicant’s state of mental health and his background.

   [1] Court Book (“CB”) 166

3. The hearing was resumed on 10 November 2011.  On 15 November 2011, the Tribunal wrote to the applicant drawing attention to perceived inconsistencies in his evidence.  In response to that invitation, a further psychologist’s report was provided.  The Tribunal in its decision accepted that the applicant is an unmarried man who grew up in a rural community in the north of Lebanon. 

4. The Tribunal accepted that the applicant adheres to the Sunni Muslim faith and that his family have conservative views on religious and social matters.  The Tribunal accepted that the applicant comes from a large family and that he had certain family grievances.

5. The Tribunal accepted that the applicant left school at the age of 10 years and that he has only a very basic level of literacy.  The Tribunal noted the psychologist’s report indicating that the applicant had below average intellectual functioning.  The Tribunal states that it took that into account in assessing the applicant’s evidence[2].  Nevertheless, the Tribunal satisfied itself that the applicant was able to answer questions in a calm and responsive manner during both Tribunal hearings.  The Tribunal concluded that it should not place too much emphasis on minor inconsistencies in the applicant’s evidence or limited explanations of detail or some inaccuracies in assessing his general credibility.

   [2] CB 176 at [133]

6. Nevertheless, at [135] of its reasons[3], the Tribunal concluded that the applicant had not given a truthful account of his circumstances in relation to his sexual orientation.  The Tribunal was not satisfied that the applicant had been harmed in the past by reason of his asserted sexual orientation or that he would face significant harm in the future for that reason should he return to Lebanon. 

   [3] CB 176

7. The show cause application filed on 3 May 2012 proposes as a ground of review that the Tribunal’s decision was affected by jurisdictional error because it measured the applicant’s claim to be a homosexual against a set of criteria which did not take into account the applicant’s cultural and religious background or his depressed psychological state.

8. In relation to the extension of time application, the application states that it would be in the interests of the administration of justice to permit an extension of time because the applicant has been suffering from depression and stress which has made it difficult for him to consider his position and give proper instructions to his lawyers. 

9. I gave directions in this matter on 6 June 2012 and listed the matter for a hearing today on the application for an extension of time.  That application is opposed by the Minister.  The extension of time application is supported by the affidavit of Maria da Graça Teixeira-Alves made on 3 May 2012, to which is annexed a copy of the Tribunal’s decision.  Ms Teixeira-Alves deposes that while a copy of the decision of the Tribunal was received in the office of the applicant’s present solicitor on 2 April 2012, the copy was not fully legible and it was not until 12 April 20 that a legible copy was received.  I also have before me the court book filed on 25 May 2012. 

10. Further, I permitted the applicant to give oral evidence in relation to his explanation for the delay in bringing this matter to court.  The applicant stated that he was informed of the Tribunal’s decision about a month after the decision was made.  That cannot be correct having regard to other evidence.  I received as an exhibit a report by the applicant’s psychologist dated 15 June 2012 recounting a visit by the applicant to see the psychologist on 9 March 2012.  I received that evidence for the purpose of verifying the date of that visit. 

11. I infer from all of the available material that the applicant was aware of the Tribunal’s decision at the time he visited the psychologist. The applicant stated that he was informed of the Tribunal decision by his then solicitor who had acted for him before the Tribunal. The court book records that the Tribunal’s decision was notified by letter dated 28 February 2012. There is no reason to suppose that the applicant’s then solicitor was tardy in drawing the Tribunal’s decision to the attention of the applicant. I conclude that the applicant was advised of the Tribunal’s decision by his former solicitor within the limitation period specified by s.477(1) of the Migration Act.

12. I accept from the applicant’s evidence and from the court book that the applicant has limited education and that he is also taking the medication Zoloft for an apparent depressive illness.  There was a significant delay during the course of the Tribunal’s review between the initial hearing and the resumed hearing of the Tribunal during which time the applicant obtained and submitted to the Tribunal a psychologist’s report.  It is unclear why such a delay was necessary and, as was noted by the Tribunal, the applicant did not provide a report from his treating psychiatrist.  Having been informed of the Tribunal’s decision by his solicitor, even taking into account his limited education and his psychological health, it should have been possible for the applicant to give instructions to lodge an application in this Court if only as a protective measure.

13. Parliament has prescribed a time limit of 35 days for an appeal from a decision of the Tribunal so that there can be some certainty in the review of migration decisions on their merits.  The delay in this case was a delay of approximately of one month after the limitation period expired.  That period of delay is significant.  While I have regard to and sympathy for the applicant’s apparent psychological difficulties, I do not accept that he has advanced a satisfactory explanation for the delay in bringing his application to court.  It should have been possible for him to give instructions to his then solicitor to make the application.  He did not do so.  The time period had already expired by the time he gave instructions to Mr Jones.

14. From that point prompt action was taken, but there is an inadequate explanation for the delay between the time the applicant was notified by his former solicitor of the decision and the time he gave instructions to Mr Jones.  Having regard to the unsatisfactory explanation for the delay in bringing the case to court, it would, in my view, not be in the interest of the administration of justice to grant the extension of time, notwithstanding that the Minister would not be prejudiced by such a grant and the applicant plainly would be prejudiced by a refusal to grant an extension of time.  Even if I were satisfied that a satisfactory explanation for the delay had been advanced, and I am not so satisfied, I am not satisfied that the application, as elaborated upon by the applicant’s solicitor in oral submissions today, raises a serious question to be tried.

15. The Tribunal was plainly aware of and took into account the applicant’s low level of education, his family circumstances, the medication he was taking and the opinion of his psychologist.  The applicant might have been further assisted if he had advanced a report from his treating psychiatrist, but for whatever reason that was not provided to the Tribunal.  The Tribunal was under no obligation to make its own medical assessment.  The Tribunal’s reasons disclose that even allowing for the applicant’s poor education and psychological problems, his evidence concerning his asserted homosexual relationship did not satisfy the Tribunal that the applicant was recounting real events from his life experience.

16. In essence, the Tribunal formed the view that the applicant’s evidence concerning his asserted homosexual relationship was untrue.  The applicant expresses concern that the Tribunal had some expectation that he, as a homosexual, should behave in a particular way both in Lebanon and in Australia and should be able to give a detailed account of sensitive matters.  I do not read the Tribunal’s decision that way.  In my view, the Tribunal’s reasons do not disclose that the Tribunal had an expectation of some general standard of behaviour reflecting homosexual orientation or that a particular level of detail should necessarily be provided by a homosexual concerning his or her relationships.

17. The Tribunal’s assessment was related to the evidence given by the applicant over two hearings in circumstances where the Tribunal found the applicant was generally able to give coherent and logical answers to questions.  The Tribunal was concerned with inconsistencies in the applicant’s account and a lack of detail in his account concerning the critical issue of his sexual relationship.  In my view, no arguable case of jurisdictional error by the Tribunal is available based upon the material before me.  For that reason also I will refuse the extension of time.

18. In consequence of that order, the Court has no jurisdiction to entertain the application filed on 3 May 2012.[4] I will order that the application for an extension of time, pursuant to s.477(2) of the Migration Act, be refused.

    [4] BZABK v Minister for Immigration [2012] FCA 774. As was pointed out in that judgment, it is unnecessary to make any further order to dispose of the application.

19. In consequence of the dismissal for the application for an extension of time, the Minister seeks an order for costs in the sum of $3,239 in accordance with the court scale.  The solicitor for the applicant put to me that he could not consent to such an order, but because of difficulty in obtaining instructions from his client, he was not able to put anything to the court in opposition to a costs order.  The Minister’s actual costs exceed $5,000 and I see no reason to depart from the Court scale. 

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  10 August 2012