SZRWL v Minister for Immigration

[2013] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRWL & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1783

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

PRACTICE & PROCEDURE – Application for extension of time to bring proceedings – s.477 Migration Act 1958.

Legislation:

Migration Act 1958, ss.5A, 36, 336A, 336E, 336F, 412, 420, 422B, 424A, 430, 474, 477

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427

First Applicant: SZRWL

Second Applicant: SZRWM

Third Applicant: SZRWN

Fourth Applicant: SZRWO

Fifth Applicant: SZRWP

Sixth Applicant: SZRWQ

Seventh Applicant: SZRWR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2194 of 2012

Judgment of: Judge Cameron

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Sydney

Delivered on: 7 November 2013

REPRESENTATION

The First Applicant appeared in person

Counsel for the First Respondent: Mr D. A. Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicants’ application for an extension of the time within which to bring these proceedings be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2194 of 2012

SZRWL

First Applicant

SZRWM

Second Applicant

SZRWN

Third Applicant

SZRWO

Fourth Applicant

SZRWP

Fifth Applicant

SZRWQ

Sixth Applicant

SZRWR

Seventh Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of the United Arab Emirates (“UAE”) who arrived in Australia on 5 June 2010.  On 24 June 2010 he lodged an application for a protection visa alleging that he feared persecution in the UAE because of his political opinion.  His wife, who is the second applicant and a Philippine citizen, and four of his daughters, the third, fourth, fifth and sixth applicants, were included in that application as members of his family unit.  On 22 October 2010 the applicants’ applications were refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  The couple’s fifth daughter, who was born on 6 November 2010, after the delegate’s decision, was also included in the review application to the Tribunal and is the seventh applicant in these proceedings. 

2. On 15 August 2011 the Tribunal affirmed the delegate’s decision in relation to the first, second, third, fourth, fifth and sixth applicants.  In relation to the seventh applicant, the Tribunal found that it had no jurisdiction to consider her application because no primary application had been made on her behalf and, consequently, no reviewable decision to refuse her a protection visa had been made.

3. On 5 October 2012 the applicants applied to this Court for judicial review of the Tribunal’s decision. As that application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”), the applicants have applied for an extension of that limitation period.

4. For the reasons which follow, the application for an extension of the time within which to bring these proceedings will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claim for protection visas were set out on pages 5-20 of the Tribunal’s decision. Relevant factual allegations are summarised below.

2. The first applicant made the following claims in his protection visa application:

   a)he left his country because the military had issued an arrest warrant against him for accusing the government of protecting terrorists/Muslim extremists;

   b)he had spoken out at work about how the government ignored drug users who were released from gaol.  He had said that the drug users were recruited by an extreme religious group which had a large mosque and prepared people to go to Afghanistan and Pakistan for jihad.  One of his colleagues was a spy and reported him;

   c)there was no justice in the UAE and people had no right to speak against politics or Islam;

   d)he feared that if he returned to the UAE he would be gaoled or hanged.  If he was not gaoled, extremely religious Muslims would hunt him down as they believed they were always right and took justice into their own hands; and

   e)he was willing to give the army information about the activity at the mosque but had sought protection in Australia so that he and his family could be safe from the UAE government and Islamic extremists.

3. In support of their applications the applicants provided the first and second applicants’ Filipino marriage certificate showing their wedding date as 11 May 2001.  On 10 October 2010 the first applicant provided the Department with various documents relating to his assets in the UAE and the Philippines, copies of visa stamps on his passport permitting him to travel to the USA, UK and Australia and documents relating to the private education of his children in the UAE. 

4. At his interview with the delegate the first applicant said that the incident at his workplace had occurred approximately two weeks before he left the UAE.

5. Prior to the Tribunal hearing, the applicants’ representatives wrote to the Tribunal and provided:

   a)submissions responding to the delegate’s decision;

   b)detailed statements made by the first and second applicants in relation to events which had allegedly occurred in the UAE between 12 and 17 July 2009;

   c)a letter from the first applicant’s mother relevantly stating that the UAE police and security forces were looking for the first applicant;

   d)a report dated 1 February 2011 from “Companion House” regarding the first applicant’s mental state;

   e)the first and second applicants’ UAE marriage certificate showing their wedding date as 5 November 2002; and

   f)a certification from the Philippines embassy in Canberra which stated that UAE citizens were not eligible for permanent residency visas and that although the President of the Philippines was empowered to admit refugees, that power had not been used since “the Vietnam war era”.

6. The applicants attended a Tribunal hearing on 9 February 2011 where the first applicant made the following claims:

   a)in 2006 he travelled to Australia as a tourist.  He had previously travelled to London, Europe, the Philippines and Singapore and had also obtained tourist visas for the US and the UK but had not used them as he had changed his holiday plans.  He had not applied for a protection visa previously because he had not experienced problems prior to 12 July 2009;

   b)he had been employed in the UAE in a quasi-military role.  On 12 July 2009, while having a tea break with six colleagues, he vented his frustration about how the authorities prosecuted young people who ended up addicted to drugs and then joined extremist Islamic groups.  He also voiced his belief that Islamic extremists were operating from a particular mosque funded by the government and said that if it was up to him, he would destroy the mosque.  He spoke for about ten minutes;

   c)shortly after the tea break he was asked to report to his employer’s headquarters.  He attended a meeting with his superior who shouted at him for approximately fifteen to twenty minutes about speaking against the authorities and saying that he wished to destroy a mosque.  After the meeting his superior directed him to remain at the barracks;

   d)as he left the superior’s office he heard him directing someone to type a detention order so he pretended to go to the “bathroom” and drove home;

   e)he telephoned a soldier he knew to find out what had happened and was told that a report was being prepared to be sent to the organisation’s head office;

   f)once at home he made plans to leave the country and over the internet booked a one way ticket to fly to the Philippines on 16 July 2009.  He told his wife that he had some leave and intended to take a holiday.  He then said he told her that he was leaving the country and that he could be gaoled or executed.  He said that she had known the country well enough to know that there was no other alternative.  He explained everything to his wife after they arrived in the Philippines but could not specifically recall when he told her;

   g)at that time he already held a visa to travel to Australia but had not used it because he had not had problems and had been waiting for his children to finish school in July;

   h)between 13 and 16 July 2009 he withdrew his savings from the bank and sold two of his cars.  He continued to live at his home but lived in fear.  His organisation’s head office telephoned him but he did not answer.  He had not been arrested because he was considered to be a soldier and his employer had to wait to receive orders from its headquarters before it could issue an arrest warrant.  It did not have the authority to arrest him because that was the job of the police.  The UAE was also a very small country with a small population so there was nowhere for him to hide;

   i)on 16 July 2009 a colleague telephoned him to tell him that orders had been issued accusing him of criticising the government and that he would be referred to a Sharia court for criticising Islam.  His colleague said that he would keep the order hidden from their superior to give him additional time to leave the country.  After speaking to his colleague he went to the local airport to ask a friend if he was on a wanted list and was told he was not;

   j)he had said at the departmental interview that the incident at his workplace had occurred two weeks before he left the country because he had been emotionally disturbed during the interview and his mind had not been in a clear state;

   k)after he left the UAE the authorities raided the homes of his sister and mother looking for him and a warrant had been issued against him;

   l)apart for his meeting with his superior, he had never been detained, imprisoned, arrested or formally questioned;

   m)he had enquired in the Philippines about whether he could apply for a protection visa but had been told that he could only apply for another kind of visa based on his marriage to his wife, a Filipino citizen;

   n)he did not believe in Islam and preferred Catholicism and might disclose it if he was tortured.  He had attended church in the Philippines seven or eight times and had started attending church in Australia.  He attempted to convert to Catholicism in the Philippines but the church had refused because they did not believe him.  Even so, he was seeking protection only on the grounds of the 12 July incident and not on religious grounds;

   o)because the UAE was a Muslim country, if the authorities found out that his first child had been born out of wedlock, he would be in trouble.  He and his wife were married in Dubai in May 2002 but had also obtained a false marriage certificate in the Philippines which was backdated to a date more than nine months before their first child was born to avoid any potential problems with the authorities;

   p)he had attempted to contact his brothers three weeks before the hearing in order to obtain information to support his protection claims but they had refused to speak to him; and

   q)he feared that if he returned to the UAE he would be detained and tortured.  He would be taken to a court where he would have no appeal rights and could be executed without anyone knowing about it.

7. The second applicant made the following claims at the Tribunal hearing:

   a)she and the first applicant married in Dubai in November 2002 and had also obtained a backdated marriage certificate in the Philippines because of problems they had been facing regarding their first child being born out of wedlock in March 2002;

   b)on 12 July 2009 the first applicant told her that they were travelling to the Philippines for a short period.  He later told her that his life was in danger and that they did not have much time to discuss his decision.  Shortly after their arrival in the Philippines, the first applicant told her what had led them to leave the UAE; and

   c)her children were still in school when the first applicant came home on 12 July 2009.  They had not notified the school that they were withdrawing the children and had received emails from the school asking about them.

8. On 16 March 2011, following the Tribunal hearing, the Tribunal received from the applicants’ agent a supplementary submission relevantly outlining attempts made by the first applicant to obtain evidence confirming his airline bookings.  It was submitted that the first applicant did not wish to contact his UAE bank for proof of when he had withdrawn funds because he was concerned that the bank, which had ties to the UAE government, would learn his whereabouts.

9. On 10 May 2011, in response to information sought by the Tribunal, Emirates Airlines wrote to the Tribunal advising it that the applicants had travelled to the Philippines on 17 July 2009 on tickets paid for in cash at the Emirates Airlines office in Dubai on 18 June 2009. On 31 May 2011 the Tribunal wrote to the applicants pursuant to s.424A of the Act inviting them to comment on or respond to that information and the fact that they had been granted Australian visitor visas on 10 June 2009. The Tribunal also invited the applicants’ comments on the first applicant’s inconsistent evidence about how long before his departure from the UAE the incident at his workplace had taken place.

10. On 8 July 2011 the first applicant provided a statement in which he admitted that the information from Emirates Airlines was correct and that his evidence that he had booked the flights on 12 or 13 July 2009 was false.  He claimed that he had made that false claim because he thought that he would not be believed if he said that he had already booked the tickets.  The first applicant claimed that he had purchased the tickets on 18 June 2009 with the intention of going to the Philippines for a family holiday and that it was a coincidence that the problems which made it necessary for him to flee the UAE began on 12 July 2009.

11. In a submission dated 3 August 2011 the first applicant claimed that he was the subject of various arrest warrants based on unfounded allegations relating to dishonoured cheques. He claimed that the charges had been fabricated as an excuse to detain him as a political dissident so that he could be charged with sedition and treason. The submission attached copies of the relevant arrest warrants, as well as two online country information articles about the authorities detaining political dissidents on minor charges.  On 11 August 2011 the first applicant provided a further submission in which he claimed that the police would not provide his UAE lawyers with stamped copies of his warrants as his file was with the prosecution until the authorities apprehended him.  He submitted that the charges were false and laid as a means of luring him back to the UAE where he would be unable to obtain a fair trial.  The first applicant asked the Tribunal to make further enquiries with his lawyer and the UAE authorities in relation to his outstanding warrants.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).

2. For the following reasons, the Tribunal did not accept any of the first applicant’s claims regarding the alleged workplace incident on 12 July 2009 and its aftermath, or that he and his family had left the UAE as a consequence of any such incident:

   a)on the basis of information obtained from Emirates Airlines, the Tribunal did not accept the first applicant’s evidence that he had booked his and his family’s flights to leave the UAE on 12 or 13 July 2009.  Rather it found that he had booked the flights on 18 June 2009.  The Tribunal noted that the first applicant conceded that he had given false evidence on the issue but it did not accept his explanation for having done so.  It found that the first applicant’s false evidence cast doubt on his credibility generally;

   b)on the basis of departmental records, the Tribunal found that the first applicant was granted an Australian visitor visa on 10 June 2009.  That information, combined with its finding about when the first applicant booked his flights, led the Tribunal to reject his claim that it was a mere coincidence that he had already been granted a visitor visa and booked his flights prior to the incident on 12 July 2009.  It found that the first applicant’s departure from the UAE had been unrelated to the alleged 12 July incident;

   c)the Tribunal did not accept as plausible that the first applicant’s isolated ten minute “rant” would have produced the grave consequences he claimed.  It also considered it implausible that the first applicant would have remained at his home between 12 and 17 July 2009 if he had truly been fearful that the 12 July incident might have grave consequences.  The Tribunal did not accept the first applicant’s explanations as to why the authorities had not looked for him at his home; and

   d)the Tribunal noted that the first applicant gave inconsistent evidence about the period between his workplace problems and his departure from the UAE: in his departmental interview he claimed it was two weeks and in his statutory declaration and evidence at the Tribunal hearing he claimed it was five days.  The Tribunal found it implausible that the first applicant would have mistakenly claimed at his departmental interview that that critical period lasted two weeks.

3. The Tribunal did not accept the first applicant’s claim that since his departure from the UAE the authorities had visited his home, his mother’s home or the home of any other members of his family in relation to him.  It also did not accept that the authorities had maintained an interest in the first applicant, that he had avoided contact with his family in the UAE due to his fears of the authorities, that he had unsuccessfully made efforts to contact his brothers or other family members to obtain evidence in support of his protection visa claims or that his family had refrained from assisting him out of fear of the authorities.

4. Although noting that the second applicant’s evidence had been generally consistent with that of her husband, given the information it had received from Emirates Airlines and its concerns about the first applicant’s claims, the Tribunal gave little weight to the second applicant’s evidence.  For the same reasons, the Tribunal also gave little weight to the first applicant’s mother’s statement regarding visits by the authorities in the UAE.

5. The Tribunal gave little weight to the documentation provided by the applicants, including the warrants, on the basis that its significant concerns about the first applicant’s credibility far outweighed any weight which the documentation might have carried.  In particular, the Tribunal noted that although the first applicant claimed that various arrest procedures had been pursued in the days following the 12 July incident, the warrants that he had produced were unrelated to that incident but were related instead to dishonoured cheques he had uttered at various times.  The Tribunal accepted that a number of warrants for the apprehension of the first applicant in relation to dishonoured cheques might have been issued and might still have been outstanding but it did not make any further enquiries about them with the UAE authorities or the first applicant’s solicitors, as requested by the first applicant, because it accepted them as genuine and because it did not think that it would have been able to obtain any information of relevance which had not already been provided by the first applicant’s UAE solicitors.

1. The Tribunal did not accept that the first applicant was a person with an adverse political profile within the UAE and thus gave little weight to country information indicating that UAE authorities sometimes arrested political dissidents on minor charges as a pretext for charging them with more serious crimes.

2. Whilst accepting that there might have been a number of outstanding warrants for the first applicant concerning dishonoured cheques, the Tribunal found that the law the subject of those warrants was not discriminatory and applied to all members of the UAE community.  Given its finding that the first applicant did not have an adverse political profile in the UAE, the Tribunal did not accept his claim that the warrants were being used as a means of targeting him for political reasons.  It found that the UAE’s penal code would not be enforced or applied in a discriminatory, selective or persecutory manner in relation to the first applicant.  The Tribunal concluded that the first applicant’s fear of harm in connection with his outstanding warrants was not a fear of persecution for a Convention reason but rather a fear of criminal prosecution under a law of general application.

3. The Tribunal had regard to the report from Companion House regarding the first applicant’s psychological problems but found that, even allowing for those matters and affording the first applicant considerable latitude in his oral evidence, he lacked credibility.

4. The Tribunal was satisfied that the first applicant did not have an objectively well-founded, or a subjective, fear of persecution for religious reasons, whether real or imputed.  In this connection:

   a)although accepting the first applicant’s evidence about the Christian activities he had undertaken in the Philippines and in Australia, the Tribunal noted that the first applicant had adamantly continued to claim that his fear of returning to the UAE had nothing to do with religion and that he had not sought protection during his earlier international travels because he had had nothing to fear in the UAE prior to 12 July 2009;

   b)the Tribunal did not accept, even if the first applicant converted to Catholicism or it became known that he was not a genuine Muslim, that there was a real chance that he would be harmed as a result of that.  It found that country information indicated that the UAE had a generally high level of religious tolerance and freedom and that the consequences for persons who converted from Islam to other religions was generally confined to social stigma and some administrative disadvantage, which the Tribunal found would not amount to serious harm.  Given its findings that the first applicant would not be a person of adverse interest to the authorities, the Tribunal did not accept that he would ever be tortured or otherwise placed in a position that his religious views would be interrogated; and

   c)for those reasons, the Tribunal was also not satisfied that the first applicant subjectively feared serious harm for reasons of religious extremism or violence in the UAE generally, or for any other reason connected with his former employment. It also did not accept that any such fear of harm was objectively well-founded.

5. The Tribunal did not accept that the first applicant subjectively feared, or that his fear was objectively well-founded, that he would be harmed for having children born out of wedlock.  The Tribunal noted that the first applicant had been adamant in his oral evidence and written submissions that his claim for protection was based solely on the 12 July 2009 incident.  The Tribunal also noted the first applicant’s evidence that the difficulties he and the second applicant had faced in back-dating their marriage documentation were ultimately resolved and that they did not face problems because of that issue.  It further noted that all of the first applicant’s children born in the UAE had been issued with UAE passports.

Application for extension of time

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. It relevantly provides:

   477Time limits on applications to the Federal Circuit Court

   (1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   (a)…

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The Tribunal’s decision was dated 15 August 2011 which means that the applicants had until 19 September 2011 to commence these proceedings. As the application was not filed until 5 October 2012, it was brought well out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies why the applicants consider it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made. In this case the applicants made an application in writing for an extension of time by including such a request in their application commencing these proceedings. Further, their initiating application specified why they said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. In the circumstances of this case, that question will be determined by whether the allegations made in the substantive application (for judicial review) have reasonable prospects of success. Given the conclusion I have reached on that question it is not necessary to consider whether the applicants have a satisfactory explanation for the delay in commencing the proceedings.

Reasonable prospects of success

1. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring these proceedings, it was necessary that the applicants demonstrate that they had reasonable prospects of proving that the Tribunal’s decision on their visa applications was affected by jurisdictional error. I have concluded that they have not done so.

2. In their application commencing these proceedings the applicants alleged:

   A.The Decision maker assessment of the case is discriminatory. The case was discriminated in the process and made an adverse findings and reaching a mistaken conclusion. that the applicant is not a person whom Australia has protection obligations under the Refugees Convention and criterion set out in s.36(2)(a)(aa) of the Migration Act 1958 for a protection visa is a judicial error of law under conduct of review s.420 (Tribunal) without regard on the country laws and human rights and exposed the claim case RRT 1010258 thereby giving access to the law enforcement fraud prevention unit in UAE via Group Security (linked with UAE National Security, Military Intelligence, Police, Immigration) caused to aggravated harm fear and unauthorised exposure of identifying information an offence under s.336E, s.336F (during the asylum process before the case was determined and decided)

   a.The case was treated arbitrarily and unfairly by the decision maker that caused to breached the conduct of review under ss.420, 422B, 430 of the Migration Act 1958.

   b.The case assessment was discriminatory because of the nationality and race that caused the decision maker to commit an offensive action in disclosing the identifying information to UAE authority under ss.336E, 336F of the Migration Act 1958.

   c.The decision is breached of s.36 of Migration Act 1958.

   d.      The decision is breached of Australia law.

   e.The decision is breached of the Refugee Convention and the International Law on human rights.

   f.The decision is breached of Australia non-refoulement obligations under the Convention Against Torture and Convention on the Rights of the Child. Moreover, is a breached of Australia law and the Extradition Treaty between Australia and UAE article 4(b) (c).

   f.The decision lead to removal of the Applicant is a breached of Article 13 of the International Convention on Civil and Political Rights.

   1.Tribunal omitted significant evidence in the decision s.430 that the Tribunal disclosed and give the RRT case number to the Law Enforcement body of the government in the decision and s424A letter that caused lack of transparency and left no opportunity for the applicant to challenge and to appeal the decision thru judicial process. The applicant was not aware of this facts until 10 August 2012 from FOI the evidences now caused to make this application to appeal under s477(2).

   2.The Tribunal review process and decision was affected by judicial error of law under s.420 omitted and concealed that the Tribunal made an official open communication with the Law Enforcement in UAE body of the government in relation to the asylum application of the applicant.  Thus (Tribunal), aggravated the harm fear in the country where return is contemplated is an offence under ss.336E, 336F is a judicial error of law.

   3.The Tribunal commits an offence under s.336E, in its conduct that caused disclosure of identifying information of the applicant and all the member of the family unit and is an offence under s.336F(3)(a)(b) is a Judicial error of law.

   4.The applicant submits that when and how the ticket was purchased is not a criteria under Subclause 4020 (5)(b) of the Migration Regulations 1994 and s.36 of Migration Act 1958. Tribunal used the airline ticket as a relevant criteria to consider in making the decision to a protection visa. The applicant submits that if the airline ticket is the criteria to grant a protection visa, why the Tribunal omitted an concealed the evidence (email from Emirates Airlines Travel Services) in the decision s430 is a judicial error of law. The Tribunal decision was affected by an error of law in the conduct of review s.422B, s420.

   5.The Tribunal completely mislead in stating in the decision the applicant claim is anti-government and anti-Islam. There are huge variations in the Tribunal interpretation of the applicants claim in the decision comparison to what is the actual claim on the basis of the primary application to the Department and further submission to the Tribunal, is a judicial error of law.

   6.The Tribunal breached of privacy and security is an offence s336E by giving to the Law Enforcement the RRT case number of the Applicant … and not taking into account the claim for protection on convention grounds for reason of religion and political opinion and the military. Exposed the applicant’s claim who is at risk of persecution, torture and death penalty for treason under the military court is a crime, a breach of honor and loyalty by virtue in UAE.

   7.The Tribunal decision was affected by lack procedural fairness under s422B in relying on country information that does not relate nor applicable to the applicant a UAE national is a judicial error of law.

   8.The Tribunal breached the privacy of the applicant’s Child (seventh name applicant), her name was included in its official communication with the Law Enforcement in UAE. The Child was born in Australia and has nothing to do with the family airline ticket information when the family fled out of UAE 17 July 2009 she was not born at that time and should not be identified to the UAE authority, is an offence under ss336E, 336F.

   9.The Ministerial Intervention Unit decision it is a “not a public interest to intervene on humanitarian grounds” without considering the totality of the claim as a family unit is a breached of human rights and the convention. It is a breached of the Australia law and the International law. The decision lacks the procedural fairness that will result to irreparable damage to the Applicant and the children, the father the main applicant who will be tortured and face death penalty. Knowingly aware of the totality of the application under the jurisdiction of the Minister of Immigration and Citizenship.

   10.The Applicants is non-citizen in Australia, and protection obligations are owed under the Convention and Australia laws, as the Applicant as family unit satisfy the asylum protection obligations·grounds under the Convention and that·obligation to protection be accorded· to Applicant and the family, the fundamental group unit of society they belongs.

Improper disclosure of information by Tribunal

1. This assertion was made in various of the allegations in the application and is conveniently dealt with separately.  It raised two issues.  The first was whether the Tribunal’s request of Emirates Airlines exposed the first applicant to a separate risk of persecution.  The second was whether that request was beyond the Tribunal’s power.

2. The applicants submitted that because Emirates Airlines is the UAE government airline there was a risk that the information provided by the Tribunal would be accessible by UAE military intelligence and other security bodies. The applicants submitted that, if that was so, the first applicant was owed protection pursuant to ss.36(2)(a) and 36(2)(aa) of the Act.

3. The applicants’ claims regarding the Tribunal’s communication with Emirates Airlines were summarised in the Minister’s written submissions in the following terms:

   The applicants’ complaints in relation to this issue are spread throughout the application and affidavit.  They can be summarised as follows (with distinct allegations of reviewable error of law set out in bold):

   (a)The Tribunal disclosed the names of the applicants to Emirates Airlines, a 100% UAE government-owned entity, in the context of the proceedings relating to an application for status as refugees.

   (b)The disclosure included the Tribunal case number, making it easy for a recipient of the Tribunal’s correspondence to link the applicants’ names with the decision record, which is publicly available.  Even with the removal of identifying information from the published decision record, the nature of the file … mean that a recipient of the Tribunal’s disclosure could link the information in the decision record to the applicants by name.

   (c)Neither the Tribunal’s correspondence with the applicants, nor its decision record, revealed that the applicants’ Tribunal case number had been disclosed to Emirates Airlines along with their names. This was an error of law under ss.420, 422B and 430 of the Act (decision record claim).

   (d)The Tribunal’s disclosure was an offence under ss.336E and 336F of the Act. This was an error of law (identifying information claim).

   (e)The response from Emirates Airlines was received from a division of Emirates Airlines called “Group Security”.  Group Security is “linked with UAE National Security, Military Intelligence, Police, Immigration”.  In this way, the applicants claims to be refugees in fear of persecution by the UAE authorities has been exposed to the UAE authorities.  (At certain places in the affidavit and submissions the Applicant alleges that Group Security is itself a UAE government body.  There is no evidence to support this, and an inference is plainly open from the documents that this is not the case CB330, 331.)

   (f)The Tribunal’s disclosure was therefore contrary to the Tribunal’s assurance at the hearing that the UAE authorities would not come to know anything about the applicants’ claim for asylum.

   (g)The applicants are in grave danger of persecution upon their return to the UAE, given that the UAE authorities are now aware that the applicants have made a claim for asylum, and are aware of the following facts which are set out in the Tribunal’s decision record:

   (i)     the Tribunal described the Applicant’s views as anti-government and anti-Islam.  The Applicant now fears persecution, torture and the death penalty on grounds of treason should he be forced to return to the UAE;

   (ii)     the first child in the family (the third applicant) was born out of wedlock.  Australian travel advice and a US State Department report indicate that in the UAE, mothers of children born out of wedlock. face lashing, imprisonment and deportation;

   (iii)   the first and second applicants obtained a fake marriage certificate for use in the UAE.  This was not previously a source of the applicants’ fear of persecution but now is; and

   (iv)    the Applicant prefers Catholicism to Islam, has attended Catholic churches and has previously to be baptised.  Independent country information considered by the Tribunal indicated that the legal punishment for conversion of a UAE citizen to Christianity is death.  Although the Tribunal concluded, based on other independent county information, that in fact the consequences of conversion from Islam in the UAE are limited to social stigma, that other information related only to the large majority of UAE residents who are non-citizens.  The penalty for UAE nationals is death.

   (h)The Tribunal fell into legal error in (i) exposing the applicants to those sources of fear of persecution; and (ii) failing to find that the applicants are owed protection obligations in consequence of the exposure (sur place claim).

   (i) Further, the Tribunal’s action in exposing the applicants to harm should they return to the UAE was a reviewable error of law under s.420 of the Act (s.420 claim).

4. Contrary to the applicants’ assertions, any breaches of ss.420 and 422B(3) do not, by themselves, supply a basis to set the Tribunal’s decision aside: Minister for Immigration & Citizenship v Li (2013) 297 ALR 225; Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427. As observed by the Minister in his written submissions, it is not sufficient merely to allege a breach of ss.420 or 422B. To rely successfully on those provisions it is necessary to show that, having regard to their requirements, the Tribunal failed lawfully to carry out one of its substantive or procedural obligations.

5. The obligation to which the applicants relevantly referred in this connection was the Tribunal’s duty under s.430 of the Act to provide reasons for its decision. Section 430 relevant provides:

   430Refugee Review Tribunal to record its decisions etc.

   (1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)     sets out the decision of the Tribunal on the review; and

   (b)     sets out the reasons for the decision; and

   (c)sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based. …

1. That the Tribunal did not refer in its reasons to the fact that its letter to Emirates Airlines identified the applicants’ case number was not a matter which s.430 required the Tribunal to include in its reasons because it was not evidence on which any finding of fact was based. In any event, a failure to comply with s.430 does not amount to jurisdictional error even if it might point to an error of that sort in the Tribunal’s procedure or reasoning. Given that no breach of s.430 has been demonstrated, no associated breaches of ss.420 or 422B have been made out either.

2. The second element of this aspect of the applicants’ allegations was their assertion that the Tribunal’s communication with Emirates Airlines breached ss.336E or 336F of the Act. Those sections relevantly provide:

   336E         Disclosing identifying information

   (1)     A person commits an offence if:

   (a)the person’s conduct causes disclosure of identifying information; and

   (b)     the disclosure is not a permitted disclosure.

   Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

   …

   336FAuthorising disclosure of identifying information to foreign countries etc.

   (1)The Secretary may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:

   …

   (3)A disclosure is taken not to be authorised under this section if:

   (a)the person to whom the identifying information relates is:

   (i)     an applicant for a protection visa; or

   … and

   (b)the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country. …

3. Both of those provisions operate by reference to “identifying information” which is defined in s.336A of the Act as follows:

   identifying information means the following:

   (a)any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);

   (b)any meaningful identifier derived from any such personal identifier;

   (c)any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;

   (d)any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.

4. “Personal identifier” is defined in s.5A of the Act as follows:

   personal identifier means any of the following (including any of the following in digital form):

   (a)fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

   (b)     a measurement of a person’s height and weight;

   (c)a photograph or other image of a person’s face and shoulders;

   (d)an audio or a video recording of a person (other than a video recording under section 261AJ);

   (e)     an iris scan;

   (f)     a person’s signature;

   (g)any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

5. The applicants did not take the Court to any provision in the Migration Regulations 1994 (“Regulations”) which prescribed any identifiers not already listed in s.5A and the Minister submitted that there were none. My own researches into the Regulations as at 31 March 2011, when the Tribunal wrote to Emirates Airlines, have not identified anything which contradicted that submission.

6. Such information as was contained in the Tribunal’s letter to Emirates Airlines was not the sort of information dealt with by ss.336E or 336F of the Act. Consequently, that letter did not breach those provisions. Moreover, as observed by the Minister in his written submissions, a breach of such sections, even if it had occurred, would not mean that the Tribunal’s decision was affected by jurisdictional error.

7. Another aspect of the applicants’ allegations regarding the Tribunal’s communication with Emirates Airlines turned on the possibility that it had created circumstances which justified a sur place claim.  Any obligation which the Tribunal might have had to consider such a claim depended on the applicants raising it expressly or upon it being clearly available on the material before the Tribunal. The applicants did not make such a claim expressly and, given that no link between Emirates Airlines and the UAE police and security agencies was apparent on the material which the evidence indicates was before the Tribunal, it was not a matter which the Tribunal was obliged to consider as an unarticulated but available claim.

8. One final element of the applicants’ allegations concerning this issue was that the Tribunal’s disclosure of information to Emirates Airlines was a privacy breach. Even if that were so, it would not amount to jurisdictional error in the Tribunal’s performance of its duty under the Act.

Ground A

1. In this ground the applicants made a number of allegations against the Tribunal.  The first of these was that its assessment of the applicants’ review was “discriminatory” and made reference to their ethnicity and nationality.  The applicants did not identify in what way their ethnicity or nationality caused the review to be dealt with differently from the way it would have been conducted had they been of a different ethnicity or nationality.  Further, no comparator for either of those characteristics was identified.  Having regard to the Tribunal’s decision record I am not persuaded that there is any factual basis for this allegation and I find that it is not made out.

2. The second allegation made in this ground was that the Tribunal had treated the applicants’ review arbitrarily, which implies that the Tribunal had not conducted a bona fide review.  I am not persuaded that this allegation is supported by the evidence.  The Tribunal’s decision record, which is the only evidence before the Court relevant to this issue, does not suggest that the Tribunal undertook the review in anything other than a conscientious manner.  It recorded the first applicant’s allegations, considered them together with the country information available to it, and reached conclusions which were reasonably and logically open in the circumstances.  I find that this allegation is not made out.

3. The next element of this ground was that the Tribunal’s conclusion on the review was mistaken.  That assertion was, in reality, an invitation to reconsider the merits of the applicants’ visa applications which, for the reasons already given, the Court cannot do.

4. The applicants also alleged in this ground that the Tribunal had conducted its review “without regard on the country laws”, which appears to be an allegation that the Tribunal should have had regard to the laws of the UAE.  However, unless the first applicant demonstrated that he had a well-founded fear of persecution for a Convention reason in the UAE, there was no reason for the Tribunal to consider the laws of the UAE.  As the first applicant did not make out that allegation, the Tribunal had no duty to consider the laws of that other jurisdiction in that context.

5. The next aspect of this ground of the application was an allegation that the Tribunal’s decision breached s.36 of the Act. It was not identified in what way this was said to be so although this assertion appears to imply that the Tribunal’s decision on whether the first applicant met the criteria for the grant of a protection visa was factually or legally erroneous. For the reasons already given, an allegation that the Tribunal’s decision was factually erroneous is not one which can be entertained in judicial review proceedings. To the extent that a legal error is alleged, an unparticularised allegation of a breach of s.36 is insufficient to make out such a claim. The same conclusion applies to the applicants’ further allegations in this ground that the Tribunal’s decision “breached” Australian law and the Convention.

6. The next element of this ground of the application was an allegation that the Tribunal’s decision breached “the International law on human rights”, Australia’s “non-refoulement obligations under the Convention Against Torture and Convention on the Rights of the Child” and breached “Article 13 of the International Convention [sic] on Civil and Political Rights”.  However, as the Minister pointed out in his written submissions, this aspect of the allegation assumed that the Tribunal found that the first applicant had a well-founded fear of persecution in the UAE.  As it did not make such a finding, this allegation lacked a factual foundation and is thus not made out.  Further, to the extent that this allegation sought to engage Australia’s complementary protection obligations, such matters were not available for consideration by the Tribunal at the time of its review of the applicants’ case.

7. The remaining element of ground A was an allegation that the Tribunal breached an extradition treaty between Australia and the UAE.  As the Tribunal review was not concerned with extradition, no question of the application of the Treaty on Extradition between Australia and the State of the United Arab Emirates made in Hobart on 26 July 2007 arises.

Ground 1

1. In this ground the applicants alleged that the Tribunal failed to disclose in its decision record that it had disclosed their case number when it contacted Emirates Airlines.  They alleged that they only became aware of this on 10 August 2012 and that it was the acquisition of this information which caused them to bring these proceedings.  For the reasons already given, the absence from the Tribunal’s reasons of a reference to its enquiry of Emirates Airlines does not amount to jurisdictional error.

2. The remainder of this allegation appears to be an explanation of why these proceedings were brought late.  For reasons already given, it is not necessary to consider whether the applicants have a satisfactory explanation for that.

Grounds 2 and 3

1. The matters raised by these grounds have been dealt with earlier in the discussion of the Tribunal’s enquiry of Emirates Airlines.

Ground 4

1. In the fourth ground of the application the applicants alleged that the Tribunal erred because it had wrongly considered that the manner and timing of purchase of their tickets from the UAE to the Philippines was a criterion to be taken into account when considering whether to grant them protection visas. The applicants were correct to submit that when and how the tickets were purchased was not a criterion for the grant of a protection visa. However, the Tribunal did not treat those issues as if they were. The relevance of this aspect of the matter was the shadow it cast over the first applicant’s credibility, not whether the accuracy of his statement on this issue satisfied or failed to satisfy any criterion for the grant of a visa. Consequently, the subsidiary allegation in this ground, that the Tribunal concealed evidence of its enquiry of Emirates Airlines and that this amounted to a breach of s.430 and jurisdictional error, lacks a factual foundation.

Ground 5

1. I accept the Minister’s submissions on this ground of the application:

   This ground alleges that the Tribunal fell into error in characterising the Applicant’s outburst as having expressed anti-government and anti-Islamic views.  It alleges that there were “huge variations” in the Tribunal’s interpretation of the Applicant’s claim.  This goes nowhere, because nothing turns on the Tribunal’s description of the Applicant’s outburst. For reasons unrelated to its characterisation, the Tribunal did not accept that the outburst had occurred.  The Tribunal considered fully the claims of the Applicant relating to the alleged incident and it rejected them in their entirety.

Ground 6

1. The principal matter raised by this ground has been dealt with earlier in the separate discussion of the Tribunal’s enquiry of Emirates Airlines. The additional issue which this ground raised concerned the Tribunal’s alleged failure to consider the first applicant’s claim to fear persecution because of his political opinion and religious beliefs. Contrary to that assertion, the Tribunal did consider those matters, as the summary of the relevant parts of its reasons at [17(c)], [21] and [24] above demonstrates.

Ground 7

1. The allegation made in the seventh ground of the application, that the Tribunal relied on country information which was irrelevant to the applicants’ review, was unparticularised and thus lacks meaningful substance.  In any event, the Tribunal’s conclusion that the first applicant was not a credible witness and that his account was not to be believed was not based in any substantive way on country information.  The only country information which was referred to in a substantive way in the Tribunal’s reasons concerned UAE laws regarding the uttering of cheques which were not met on presentation and the level of religious tolerance in the UAE.  Those matters were not central to the applicants’ claims or determinative of them.  In any event, in the circumstances they were not irrelevant to the applicants’ claims as the applicants alleged.

Ground 8

1. The matters raised by this ground have been dealt with earlier in the separate discussion of the Tribunal’s enquiry of Emirates Airlines. In any event, the seventh applicant was not properly included in the application to the Tribunal because, as the delegate had made no decision in respect of her, she could not make an application for review to the Tribunal: s.412(2) of the Act. Consequently, even if some aspects of the Tribunal’s conduct had some impact on the seventh applicant, such conduct could not for that reason affect the validity of a statutory review to which she was not properly a party.

Ground 9

1. In the ninth ground of the application the applicants alleged that the decision of the ministerial intervention unit to not intervene in their claim arose out of a denial of procedural fairness.  Although some reference to a ministerial intervention request was referred to at p.150 of the first applicant’s affidavit sworn on 5 October 2012, the applicants expressly eschewed any reliance on the affidavits they had filed in the proceedings.  On that basis, and as the Court was taken to no other evidence supportive of the ninth ground of the application, that ground is not made out.  Further, even if the document at p.150 of the first applicant’s affidavit sworn on 5 October 2012 had been before the Court, it would have been insufficient on its own to make out the ninth ground of the application.

Ground 10

1. The tenth ground of the application made no particular allegation of jurisdictional error on the Tribunal’s part.

Conclusion

1. As the applicants have not demonstrated that the Tribunal’s decision was affected by jurisdictional error, their substantive application to this Court does not have reasonable prospects of success.  In those circumstances, I find that it is not in the interests of the administration of justice to extend the time for the bringing of these proceedings.

2. Consequently, the application for an extension of time will be dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 7 November 2013