SZRTH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1144

MIGRATION – Application for an extension of time – substantive application seeking review of decision of Refugee Review Tribunal – no satisfactory explanation for the delay – not in the interests of the administration to extend time – extension of time refused.

Migration Act 1958 (Cth), ss. 36, 65, 476, 477
Federal Magistrates Court Rules 2001 (Cth), r.4.05

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
Vu v Minister for Immigration & Citizenship [2008] FCAFC 59
Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279
Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
SZOCH v Minister for Immigration [2010] FMCA 300
SZFDE  & Ors v Minister for Immigration & Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: SZRTH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1889 of 2012

Judgment of: Nicholls FM

Hearing date: 28 November 2012

Date of Last Submission: 28 November 2012

Delivered at: Sydney

Delivered on: 6 December 2012

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for an extension of time under s.447(2) of the Migration Act 1958 (Cth) is refused.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1889 of 2012

SZRTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application, made on 30 August 2012, seeking an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) in which to bring an application, pursuant to s.476 of the Act, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 23 February 2012, to affirm the decision of the Minister’s delegate, made on 26 August 2011, to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Lebanon (Court Book – “CB” – CB 12). He arrived in Australia on 17 December 2010 on a student visa ([7] at CB 30).

2. On 8 March 2011 the applicant applied for a protection visa (CB 1 to CB 46, with annexures). He was assisted in making that application by a “Sam Issa”, migration agent and solicitor, who was also appointed as his authorised recipient (CB 20 and CB 27 to CB 29).

3. The applicant’s claims to protection were set out in a Statutory Declaration, affirmed by him on 7 March 2011, which accompanied his protection visa application (CB 31 to CB 32). Relevantly, the applicant claimed to fear harm from members of the “El Komi” party (a pro-Syrian political party, also referred to as the “SSNP” and “al-Qawmi” party) and Hezbollah because he was perceived by them to have been involved in “… the slaughter of El Komi party members” in May 2008 ([13] – [17] at CB 31 and [24] at CB 31).

4. That perception was said to have arisen because he was a “casual” driver for a former Lebanese Member of Parliament (“MP”). That MP’s bodyguards were blamed for the “military incursion” and death of “El Komi” party members and, because the applicant had been a driver for that MP, he was perceived as being involved in the killings.

The Delegate

1. The applicant was interviewed by the Minister’s delegate on 12 May 2011 (CB 55 and CB 69.5). On 26 August 2011 the delegate decided to refuse the grant of a protection visa to the applicant (CB 9).

2. The delegate found that “[g]iven the inconsistencies in the applicant’s evidence overall” she was not satisfied as to the veracity of his claims (CB 70.8). The delegate, variously, expressed doubt as to applicant’s claimed occupation, and also that he was sought as a member of “… the SSNP/al-Qawmi party in connection with events dated May 2008”, and further that he was forced to go into hiding in Lebanon (CB 70.8). Given these doubts, and the inconsistencies between the applicant’s evidence and country information (as well as internal inconsistencies in the applicant’s claims), the delegate was not satisfied that the applicant would face a real risk of harm for a Refugees Convention ground if returned to Lebanon (CB 70.9 to CB 71.1).

The Tribunal

1. On 8 September 2011, the applicant, with the assistance of Mr Issa, applied to the Tribunal for review of the delegate’s decision (CB 72 to CB 76).

2. By letter dated 23 December 2011, the applicant was invited to attend a hearing before the Tribunal scheduled for 9 February 2012 (CB 83 to CB 85). The applicant, along with his representative, attended on that occasion (CB 87 and [30] at CB 125).

3. Following the hearing, by letter dated 14 February 2012, the applicant’s representative provided “independent evidence” in support of his claims (CB 91 to CB 110). Further, the representative submitted that (at CB 91.5):

   “Whilst we concede that our clients claims would on the face seem remote (given the time that has elapsed since the alleged incident took place), however, in light of the current political turmoil and Syrian conflict which has (to a limited degree) spilt-over into northern Lebanon, such concerns cannot be discounted as being implausible or remote.”

4. On 23 February 2012, the Tribunal decided to affirm the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant (CB 117). The applicant was notified of that decision by letter sent to his authorised recipient, dated 24 February 2012 (CB 115). The Tribunal’s findings and reasons were set out at [68] (at CB 134) to [77] (at CB 136) of its decision record, a copy of which was provided to the applicant.

5. The Tribunal expressed concerns about the applicant’s credibility, variously, because his evidence as to his employment and events following the incident in 2008 were inconsistent ([69] at CB 134). Further, the Tribunal expressed concerns about the applicant’s credibility because (although he had indicated in his protection visa application that he was single) he had submitted a “divorce certificate” with his protection visa application that indicated that he was married from June 2008 to August 2009 (CB 134). That is, over the period of time when he was allegedly being pursued by Hezbollah and the SSNP. These inconsistencies, coupled with the Tribunal’s concerns about the applicant’s credibility, led it to find that the applicant was an “unreliable witness” ([70] at CB 134).

6. The Tribunal accepted that the applicant was, as claimed, a driver for the MP ([71] at CB 135) and that there had been a serious incident in May 2008 where the SSNP were attacked and a number of their members were killed and injured ([72] at CB 135). However, the Tribunal did not accept that the applicant was perceived as being involved in that incident either because of his association with the MP, or because of any political opinion imputed to him ([73] at CB 135).

7. The Tribunal found that the applicant had not been pursued by anyone as a result of the incident, nor the MP’s involvement in it. Further, that the applicant was “… of no interest to the SSNP, Hezbollah, or indeed any other individual or group connected with them…” ([74] at CB 135).

8. Further, the Tribunal also considered the applicant’s statement, made in support of his claims at the hearing, that “… he had been advised by the Syrian authorities that he was on a wanted list” ([75] at CB 136). Given the applicant’s inability to give a “convincing reason” as to why he would be on such a list, the Tribunal did not accept this claim. Similarly, the Tribunal found as a fabrication the applicant’s claim that his brother had been mistaken for him and, as a result, detained by the Syrian authorities for a short period of time ([75] at CB 136).

9. The Tribunal had regard to the current situation in Lebanon, including Lebanon’s proximity to Syria. However, given its various findings, the Tribunal was not satisfied that there was a real chance that the applicant would be targeted for harm because of any political opinion held, or imputed to be held, by him.

Before the Court

1. The sole ground of the application for the extension of time before the Court is:

   “When my application was refused, a letter was sent to the Honourable Minister. I expected the Minister to accept my request. I have also provided a report from psychologist. The letter was not referred to Hon Minister. I was asked by compliance to depart Australia by 16-9-12. The area where I come from in Lebanon is dangerous & lots of killings.”

   [Errors in original.]

2. When the matter was first before the Court on 19 September 2012 the applicant appeared in person and was assisted by an interpreter in the Arabic language. On that occasion I sought to explain to the applicant the difference between the Court and the Tribunal and that the Court was not jurisdictionally charged with deciding, nor able to determine, if he was a refugee or not. Rather, the Court was concerned with jurisdictional error (“legal mistake”) in the Tribunal’s decision. Relevantly, that since his substantive application to the Court had been made more than 35 days after the Tribunal’s decision, he would need the Court to grant him an extension of time to bring that application.

3. The applicant had indicated his willingness to participate in the Court’s “RRT Legal Advice Scheme”. I urged the applicant to attend and listen carefully to the lawyer assigned to him under that Scheme. In addition, orders were made granting leave to the applicant to file any amended (substantive) application. Despite that opportunity, no amended application was filed by the applicant. Further, a Certificate on the Court’s file indicates that the applicant met with Mr David Prince, solicitor, and that written advice was provided to the applicant.

4. The matter was set down for further directions on 28 November 2012. When the matter was called the applicant appeared in person and was assisted by an interpreter in the Arabic language. Ms C Crittenden appeared for the first respondent.

5. It was quite clear that, despite efforts on the earlier occasion to explain both the critical question of the need for an extension of time to be granted to him and the nature of judicial review of an administrative decision (specifically, its focus and limitations), the applicant exhibited no understanding of either. Nor had the opportunity afforded to him to speak to a lawyer made any difference to his ability, or willingness, to understand the nature of the proceedings he had instituted and the immediate question of the extension of time.

6. The applicant’s oral “submissions” were simply that he could not go back to Lebanon because his life was in danger. No direct attempt was made to address the extension of time question. No satisfactory explanation for the delay was proffered. In essence, he made reference to his unhappiness with his solicitor, Mr Issa, and vague references questioning Mr Issa’s competence.

7. In the circumstances, it was appropriate to proceed to a hearing of the applicant’s application for an extension of time. The applicant had been put on notice of this possibility at the first Court date. In particular, it had been put to him that if, after receiving legal advice and the opportunity to file further material, he did nothing to prosecute his case, then the Court may proceed to a hearing. The applicant had over two months to prepare. He has not put anything before the Court, nor indicated that he would seek any further legal advice. However, he did indicate that he wanted more time to get his case ready (see further below).

8. The applicant then stated that he had only received the Court Book a week ago and that he wanted more time to prepare. The Minister’s representative confirmed that that time frame accorded with their records as to when a copy had been sent to the applicant. However, a copy of the Court Book had been sent, at the earlier relevant time, to the panel lawyer assigned to the applicant.

9. Although not expressed as such, I took the applicant’s comment regarding the Court Book to be a request for an adjournment of the extension of time hearing. The applicant stated that [77] (at CB 136) of the Tribunal’s decision record caused him concern and consequently, that he wanted more time to bring more documents to the Court. No other reason was proffered by the applicant.

10. I refused the request for an adjournment. First, it was clear that the documents the applicant hoped to put before the Court were documents in support of his claimed fear of persecutory harm in Lebanon. That is, going to the merits of his refugee claim.

11. Second, the applicant’s attempt to link the “late”, or recent, receipt (by him personally) of the Court Book and to imply that he had only just seen the Tribunal’s decision record was, at best, disingenuous.

12. The rules of this Court require, relevantly, that a person filing an application, irrespective of the nature of the orders sought, must also file an affidavit stating the facts relied upon (r.4.05(1) of the Federal Magistrates Court Rules 2001 (Cth)). The applicant complied with this requirement on 30 August 2012. (The time of filing his applications to the Court.)

13. He relied on two facts in his affidavit, first, his being the applicant and second, the copy of the Tribunal’s decision record which he annexed. The Tribunal’s decision record was plainly available to him as at that date, if not earlier (see CB 116). Plainly, the applicant has had a reasonable time, and opportunity, to address any concerns arising from the Tribunal’s decision record.

14. Third, when asked as to why the applicant required more time in relation to [77] (at CB 138) his answer, in effect, was that he disagreed with the Tribunal’s findings set out there. That paragraph represents the Tribunal’s partial explanation for its findings that it was not satisfied that the applicant would be persecuted in the Refugees Convention sense if returned to Lebanon. The particular explanation concerned country information and the “current situation” in Lebanon and its proximity to Syria. This explained the applicant’s earlier statement about wanting more time to bring more documents about the situation in Lebanon.

15. Fourth, the applicant had already been given an opportunity, of some two months, in which to file a further amended application and put further evidence before the Court. Despite that opportunity, and the opportunity to obtain legal advice, he has not done so.

The Extension of Time Application

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 23 February 2012. The substantive application to the Court was not made until 30 August 2012, that is some five 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) of the Act). On 30 August 2012, the applicant made such an application in writing. That application is the subject of current consideration.

3. The elements relevant to this consideration have been considered by this Court on a number of occasions (for example, 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).

4. Particularly, relevant to the current case is the extent of the delay, whether any satisfactory reason has been advanced by the applicant for the delay and the merits, or otherwise, of the substantive application.

5. The sole ground advanced in the application for an extension of time can, in part, be seen as an attempt by the applicant to explain the delay in his coming to this Court. That is, that when he was notified of the Tribunal’s decision, he sought Ministerial intervention. Before the Court the applicant made various allegations about his migration agent (who is also a solicitor). In essence, his complaint was that he had paid him money and that he did not obtain the (immigration) results the applicant wanted. Vague references were made by the applicant to his view of Mr Issa’s competence. He confirmed that he had made no formal complaint to the relevant authorities about any aspect of Mr Issa’s conduct.

6. What emerged from the applicant’s account is that, acting on Mr Issa’s advice, the applicant sought Ministerial intervention instead of coming to this Court. However, despite opportunity to do so, the applicant has provided no evidence whatsoever to the Court about the circumstances attendant on that election. For that matter, as the respondent Minister correctly submitted, there is no evidence before the Court that the applicant actually made such a request to the Minister.

7. What remains, therefore, is an assertion by the applicant that, with Mr Issa’s direction, he sought Ministerial intervention. He did not come to Court within the requisite time. The delay was just under five months after the expiry of the 35 day period.

8. In the circumstances, the election to pursue Ministerial intervention is not a satisfactory explanation for the delay in coming to Court (Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364, Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 (“Daniel”) at [15] per Goldberg J and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16] – [24] and [36] per Black CJ, Sackville and Sundberg JJ. See also my discussion in SZOCH v Minister for Immigration [2010] FMCA 300 at [38] and [53] – [54]).

9. Given that the applicant put nothing further to the Court, in the circumstances, he has failed to provide a satisfactory explanation for the delay in him coming to Court. I did not see any references to Mr Issa’s competence as creating any basis to assist the applicant in explaining the delay. Plainly, from what the applicant told the Court, his expectation was that the Minister would intervene to assist him. The complaint about Mr Issa was a reaction to this unexpected outcome.

10. For the sake of completeness, and in relation to the Tribunal’s decision, the applicant’s comments before the Court did not suggest conduct on the part of Mr Issa as found in SZFDE  & Ors v Minister for Immigration & Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189. Even if they had done so, no evidence whatsoever was put before the Court to suggest, let alone establish, any fraud on the part of Mr Issa such as to vitiate the Tribunal’s decision.

1. Further, nor can I see any merit in the sole ground of the substantive application such as to invoke the interests of the administration of justice and therefore to extend time for the making of the application.

2. The sole ground of the substantive application is as follows:

   “The Tribunal misunderstood my claim.”

3. When regard is had to the Tribunal’s decision record, it is clear that the complaint lacks merits, let alone that it has any reasonable prospects of success. The Tribunal clearly understood the applicant’s claim. That is, that he feared serious harm from Hezbollah and the SSNP. The Tribunal considered that particular claim and the applicant’s evidence advanced in support of it. However, ultimately, it simply chose to reject the proposition that that claim provided a basis for it to reach the requisite level of satisfaction mandated by the Act (ss.65 and 36(2)) for a protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

4. The reasons for this include credibility concerns, inconsistencies in the applicant’s evidence and involving independent country information before it. Those adverse findings were available to the Tribunal on the material before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

Conclusion

1. The applicant has not provided a satisfactory explanation for the delay in coming to the Court. The sole ground of the substantive application lacks merit. Despite opportunity nothing further has been put before the Court by the applicant. While it is true that the Minister would not be prejudiced by any order to extend time, I cannot see that it is, in the circumstances presented, in the interests of the administration of justice to extend time. Accordingly, I will make an order refusing the application for an extension of time.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 6 December 2012