SZRQY v Minister for Immigration

[2014] FCCA 171

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRQY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 171

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

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

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

Applicant: SZRQY

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1753 of 2013

Judgment of: Judge Manousaridis

Hearing date: 25 November 2013

Delivered at: Sydney

Delivered on: 7 February 2014

REPRESENTATION

The applicant appeared by telephone.

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application 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.

2. The applicant pay the costs of the application.

3. The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1753 of 2013

SZRQY

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 29 July 2013, the applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister).

2. The Tribunal made its decision on 20 June 2013, which means that the applicant filed his application outside the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). That, in turn, means that this Court cannot entertain the applicant’s claim for judicial review unless the Court first extends the 35 day period by making an order under s.477(2) of the Act.

3. Accordingly, these reasons deal with the applicant’s claim for an order under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act.

Principles governing exercise of power under s.477(2)

1. The power conferred by s.477(2) to extend the 35 day period prescribed by s.477(1) is discretionary; and the factors the Court should usually consider when exercising that discretion were identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[1] Although his Honour there identified five separate factors, the determining factor in an application for an extension of time will usually be whether the applicant has a meritorious claim.

   [1] [2009] FMCA 771 at [44]

2. I will therefore first consider whether the application raises a meritorious claim. That, in turn, requires me to set out the claims for protection the applicant made before the Tribunal, and the Tribunal’s reasons for rejecting those claims.

Applicant’s claim for a protection visa

1. The applicant is a national of Bangladesh.[2] He claims he fled Bangladesh in January 2005 because his life was in danger.[3] He claimed his life was in danger because he led an active role in the politics of the Bangladesh Nationalist Party (BNP).

   [2] CB231 [98]

   [3] The applicant’s claims are set out at CB26

2. The applicant claimed the danger came from activists and leaders of a competing political party, the Awami League. During 1995, being the year before the Awami League came to power, members of the Awami League threatened the applicant that if he continued his political activities, the Awami League would harass him if it came to power. The applicant did not cease his activities and, after the Awami League came into power in 1996, its members harassed the applicant and beat and tortured him. Undeterred by this violence, the applicant continued his political activities, but then became aware that the Awami League planned to kill him. The applicant responded by going into hiding. In addition, the applicant resolved to come to Australia as a student. The BNP was returned to power in 2001. In 2005, the BNP was losing popularity as a result of which “we tried to save ourselves”. The applicant then decided to proceed with his plan to travel to Australia as a student, and he left Bangladesh in 2005.

3. The applicant claims that he fears to return to Bangladesh because he will suffer the humiliation, harassment and torture he suffered at the hands of the Awami League and also at the hands of government officials.

4. The applicant repeated and expanded on his claims when he appeared before the Tribunal. He claimed that he also feared persecution because he was exposed to corrupt practices and extortion. He also claimed that, in addition to his political fears, he was at risk because “when people return from overseas, they’re perceived to have money, ‘they finish him’”.[4]

   [4] CB230 [91]

Tribunal’s reasons

1. The Tribunal did not accept the applicant’s claim because it formed “comprehensive concerns about the credibility of the applicant’s claims”.[5]

   [5] CB323 [101]

2. First, there was the delay in the applicant’s applying for a protection visa. The applicant arrived in Australia in January 2005 but he did not apply for a protection visa until 2011.[6] The Tribunal did not accept the applicant’s explanation for the delay.[7]

   [6] CB232 [102]

   [7] CB232 [102]

3. Second, in 2011, the applicant purchased an air ticket to Dhaka but subsequently cancelled it. The Tribunal did not accept the applicant’s explanation that he purchased the ticket in the hope that his problems in Bangladesh had subsided but then changed his mind when his parents informed him that his opponents became aware the applicant planned to return and his opponents warned his parents the applicant should not return.[8] The Tribunal was “concerned that the applicant cancelled his planned flight when he realised that he may be able to achieve permanent residency on the basis of a protection visa, and not as a result of any news from Bangladesh that he remained in danger”.[9]

   [8] CB232-3 [103]

   [9] CB233 [103]

4. Third, the applicant’s travel history added to the impression that the applicant was not a person in need of protection. The Tribunal referred to the applicant’s not obtaining a passport until 2003 even though, on his claim, the applicant was harassed and tortured in 1996, 1997 and again in 1999.[10]

   [10] CB233 [104]

5. Fourth, having obtained his passport in 2003, the applicant did not leave Bangladesh until January 2005, even though, on the applicant’s claim, during that period he claimed to have had a gun held to his head, and had been in hiding.[11]

   [11] CB233 [104]

6. Fifth, there was the delay between the time the applicant obtained a visa to Australia in late November 2004 and his leaving Bangladesh in mid-January 2005.[12]

   [12] CB233 [104]

7. Sixth, the applicant’s claim of infrequent contact with the BNP after he arrived in Australia was in “stark contrast to his claimed longstanding involvement in his party, and his social activism”.[13]

   [13] CB234 [106]

8. Seventh, on asking the applicant for more detailed information of what the Tribunal considered was the applicant’s very broad account of his activities in Bangladesh, the political positions he held, and the incidents of harm, the applicant’s answers “revealed a number of inconsistencies, marked gaps in knowledge and anomalies”.[14]

   [14] CB234-5 [107]

9. Based on the Tribunal’s doubts about the applicant’s credit, the Tribunal did not accept any of the applicant’s claims of fear of persecution based on any association with the BNP or its associated youth groups.[15] The Tribunal also rejected the applicant’s claim of fear of persecution based on his being perceived a wealthy individual if he were to return to Bangladesh.[16]

   [15] CB237, [110] – [111]

   [16] CB237-238 [113]

Proposed grounds of review

1. In his amended application the applicant proposes to raise three grounds of review.

Ground 1 - failure to assess persecution on the basis of the current political situation in Bangladesh

1. The first of the proposed grounds of review is as follows:

   The Refugee Review Tribunal failed to assess my persecution on the basis of current political situation faced the BNP activists in Bangladesh.

   Particulars:

   A.The Tribunal failed to assess my persecution on the basis of current political situation faced the BNP activists in Bangladesh. Further the Tribunal made the following comment that:

   (i)The applicant has not any political affiliation or opinion that will motivate him to engage in relevant political or social welfare activities if he returns to Bangladesh.

   (ii)There is no real risk that he will suffer significant harms as defined in subsection 36(2A) of the Act.

2. At the hearing, which was conducted by telephone, I invited the applicant to make submissions to the Court in support of this ground. The applicant, who was not legally represented, began by saying that he proposed to obtain some documents to submit to the Court. As I understood the applicant, he said that the documents would show that members of the BNP are being currently killed at the rate of 25 to 30 a week. After I informed the applicant that I did not see those documents to be relevant, the applicant made no further submissions in support of ground 1.

3. In my opinion, ground 1 raises no arguable case of jurisdictional error. First, it assumes as a fact a claim which the Tribunal rejected, namely, that the applicant was or had an association with BNP, and that he had been persecuted because of that association. Having found that the applicant was not associated with the BNP, and had not been persecuted on account of that association, there was no occasion for the Tribunal to consider the political situation in Bangladesh, and in particular, the political situation as it affected the BNP or any of its current or past members.

4. Second, to the extent that the ground calls into question the two comments referred to in ground 1, this is nothing more than a claim that the Tribunal’s comments are incorrect. It amounts to an impermissible challenge to findings which it was within the jurisdiction of the Tribunal, and not of this Court to make.

Ground 2 - failure to assess persecution on the basis of the current political situation in Bangladesh

1. The second of the proposed grounds of review is as follows:

   The Refugee Review Tribunal failed to assess my credibility according to the Migration Act.

   Particulars

   A.The Tribunal failed to assess my credibility according to the Migration Act. Further the Tribunal made a comment that:

   (i)The circumstances are strong indicators that the applicant did not flee danger in Bangladesh, and that he does not have a genuine need for protection, for any reason. They also raise doubts about his credibility as a whole.

2. During the hearing, the applicant said that the submissions he made in relation to ground 1 also apply to ground 2.

3. Ground 2 also raises no arguable case of jurisdictional error. The ground does not specify the manner in which it is alleged the Tribunal did not assess the applicant’s credibility in accordance with the Act. And the ground only manifests disagreement with a finding which it was within the jurisdiction of the Tribunal, and not of this Court to make.

Ground 3 - failure to assess claim based on perceived wealthy returnee

1. The third of the proposed grounds of review is as follows:

   The Refugee Review Tribunal failed to assess my persecution under complimentary [sic] protection.

   Particulars:

   A.     The Tribunal failed to assess my persecution under complimentary [sic] protection that:

   (i)The Tribunal failed to assess my claims of robbed or assaulted on my return to Bangladesh, as a person perceived to be wealth [sic] because of my past residency in Australia.

2. This ground does not raise an arguable case of jurisdictional error. The Tribunal did assess the claim the applicant made based on the risk of his being perceived a wealthy person if he were to return to Bangladesh. The Tribunal identified the claim[17]and set out in its reasons what the applicant said in support of that claim.[18] It concluded that it did not accept the applicant’s claim.[19]

   [17] CB237 [112]

   [18] CB237-238 [[13]

   [19] CB238 [113], [117]

Other factors relevant to s.477(2)

1. The applicant’s delay in filing the application for review was relatively minor. At the hearing, the applicant said he did not file the application within the prescribed 35 day period because he did not have any legal assistance. I accept that explanation and if the applicant had shown he has a meritorious claim for relief, I would not have declined to exercise the discretion under s.477(2) because of the applicant’s delay in filing this application.

2. On the other hand, given my finding that the applicant’s substantive claims lack merit, not to extend the time for filing the application will not have an adverse impact on the applicant because his application is bound to fail; and to extend the time will prejudice the Minister to the extent the Minister will incur additional costs to defend a claim that is bound to fail. Further, the interests of the public at large will be served if time were not extended to file an application for a claim that is bound to fail; it is not in the interests of the public to devote public resources to the determination of a claim that is bound to fail.

Disposition

1. For these reasons, I am not prepared to extend the 35 day period prescribed by s.477(1) of the Act for the making of an application for a remedy in exercise of the Court’s original jurisdiction under s.476 of the Act.

2. I propose, therefore, to dismiss the application to extend the 35 day period and order that the applicant pay the Minister’s costs of that application. In addition, as requested by the Minister, I propose to order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 7 February 2014