SZSEE v Minister for Immigration
[2013] FCCA 1026
•6 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSEE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1026 |
| Catchwords: MIGRATION – Application for 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 of justice to extend time – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 476, 477 |
| Cases cited: SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 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 Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 SZGDA v Minister for Immigration & Anor [2007] FMCA 1152 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Hicks v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2003] FCA SZJZN v Minister for Immigration & Anor [2007] FMCA 980 MZXQU v Minister for Immigration & Anor [2008] FMCA 15 |
| Applicant: | SZSEE |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2602 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 June 2013 |
| Date of Last Submission: | 15 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | City of Sydney Lawyers |
| Appearing for the Respondents: | Ms S Given |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application for an extension of time made on 9 November 2012 pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondents costs set in the amount of $9450.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2602 of 2012
| SZSEE |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 9 November 2012 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), in which to bring a substantive application pursuant to s.476 of the Act. That substantive application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 27 October 2008, which affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 25 July 2005 (CB 3). At the time of entry the applicant held a “diplomatic”, or “official”, visa (CB 3). The applicant applied for a protection visa on 21 February 2008 (CB 1 to CB 26). Supporting documentation was provided with the application (CB 27 to CB 185).
The Question for the Court
Section 477(1) of the Act provides that an application to this Court must be made within 35 days after the date of the Tribunal’s decision. The Tribunal’s decision in the applicant’s case was made on 27 October 2008 (CB 321). The applicant filed the substantive application to the Court on 9 November 2012. That is, well over three and a half years after the time limit had expired for making an application for review by the Court.
The Court may extend the time limit for review, upon application in writing by the applicant (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.477(2)(b) of the Act). The applicant made such an application, in writing, on 9 November 2012.
This Court has previously considered the elements relevant for consideration by the Court with an extension of time application. Relevantly, the elements include: (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44])
“1. The extent of the delay and the reason for the delay.
2. Whether there is any merit in the application.
3. Whether there is any prejudice to the respondents.
4. The impact on the applicant.
5. The interests of the public at large.
6. The Court’s discretion itself.”
The Application for an Extension of Time
The application currently before the Court for consideration is the extension of time application. The grounds of that application are as follows:
“1. I lodged an application to the Honourable Minister under section 417 of the Migration Act after the Tribunal’s decision. The Minister too so long time to make a decision in my disfavour.
2. As a consequence, the statutory time limit has been passed to lodge this application in this Court.
3. I request to the Honourable Registrar to extend time to lodge this application and accept my application in this particular situation.”
[Errors in the original]
The evidence before the Court is:
1)The bundle of relevant documents filed by the Minister (the Court Book – “CB”).
2)The applicant’s affidavit of 21 May 2013 (no objection by the Minister).
3)The affidavit of Nathan Albert Buck, solicitor, of 21 March 2013 (no objection by the applicant).
4)Respondent’s Exhibit 1 (“RE1”), being the applicant’s affidavit of 20 March 2013, filed in these proceedings on 21 March 2013 by the applicant, and put to him during cross-examination before the Court.
The issue for the Court in these proceedings is whether the time limit in s.477(1) should be extended. Of the relevant elements, set out at [7] above, in relation to the consideration of that question, the matters of the extent of the delay, whether any satisfactory explanation has been given, and the merits of the substantive application appear to be of great significance in this case.
The Extent of the Delay and the Explanation for the Delay
The delay in coming to Court in the current case is well over three and a half years.
The applicant urged the Court to take the view that the applicant had provided an explanation for the delay. That, even if parts of the explanation were “not entirely satisfactory”, the explanation would, nonetheless, still be of some significance in the exercise of the Court’s jurisdiction. The applicant also argued that what is reasonable in the circumstances should be viewed with reference to the circumstances in each case (with reference to SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [10] – [11] per Smith FM (as he then was)). In the current circumstances, the applicant submitted, when viewed in this way his explanation was satisfactory.
However, the applicant’s evidence before the Court was unsatisfactory in a number of ways. Some of this lack of satisfaction emerged from the unclear, vague and sometimes contradictory evidence given both in cross examination and re-examination.
At best for the applicant, the following appears to be the sequence of events following the Tribunal’s decision, made on 27 October 2008. The applicant had been represented before the Tribunal by Mr D Bitel, a lawyer and migration agent. Following the notification of the Tribunal’s decision, he attended Mr Bitel’s office on 1 November 2008.
While the applicant gave various accounts, what can be said was that at that time he knew, generally, of the possibility of coming to the Court to seek review of the Tribunal’s decision (see [14] of the applicant’s affidavit of 20 March 2013 (RE1) and [2] of his affidavit of 21 May 2013).
In or “around” January 2009, the applicant attended Mr Bitel’s offices to “ask about the progress” of his appeal to the Court. The applicant’s evidence was that Mr Bitel told him he had not lodged any such application. Further, his evidence was that Mr Bitel accepted liability, and apologised, for not having filed the relevant documents with the Court.
It is important to note here that the applicant’s affidavit evidence varied as to what happened next. This was not satisfactorily explained by his evidence before the Court.
In his affidavit of 20 March 2013 (RE1), the applicant says Mr Bitel advised him he could lodge an “appeal” to the Minister to intervene (presumably pursuant to s.417 of the Act) ([15] of RE1). The affidavit is silent as to whether this occurred.
However, this appears to have occurred because, as Mr Buck’s evidence reveals, the Minister’s department received such a request made on behalf of the applicant, by Mr Bitel, on 23 January 2009 (see [4] of Mr Buck’s affidavit).
In his affidavit of 20 March 2013 (RE1), the applicant said that in “or around January 2009” he became aware that he could lodge an application for an extension of time to the Court ([16] of RE1). He did not do so because he did not have sufficient funds to pay Mr Bitel ($3,300) or ultimately any other lawyer for that service ([16] of RE1).
In his affidavit of 21 May 2013, the applicant’s evidence is that he accepted Mr Bitel’s advice (although the applicant was unable to say precisely when, even in oral evidence before the Court) to make the intervention request because he felt he had “no choice” given what Mr Bitel had advised him ([2] – [3] of his affidavit of 21 May 2013).
In context of the applicant’s other evidence, this advice would have been given to him “on or about” 11 January 2009 when he says he saw Mr Bitel ([15] of RE1). In his affidavit of 21 May 2013 (at [3]), the applicant says he had no choice, in this regard, because any application to the Court would be out of time ([3] of his affidavit of 21 May 2013).
Yet, in his earlier affidavit (RE1), he said that, at the same time (“on or around January 2009”) he became aware, from an unnamed source that he could make an application “out of time”, seeking an extension of time. None of this was satisfactorily explained by the applicant’s oral evidence before the Court.
On balance, what can be said is that at this point of time (January 2009), the applicant knew of the option of “going” to Court, albeit by way of seeking an extension of time. He elected to follow Mr Bitel’s advice and pursued Ministerial intervention. That he did so because he preferred to use a lawyer in whatever action he took, as he insisted in his evidence before the Court, may be allowed. However, this does not detract from the point that, “in or around January 2009”, he chose to pursue Ministerial intervention at a time when he knew of the option of coming to Court and seeking an extension of time within which to make his application for judicial review of the Tribunal’s decision.
Attempts by the applicant’s counsel in re-examination to clarify matters as to whether the $3,300 the applicant was required to pay related to the Ministerial intervention, or the possibility of coming to Court for judicial review, were not successful. Nor did his evidence satisfactorily explain how it was that Mr Bitel made the intervention request for him if he was unable to pay the $3,300. Noting that he otherwise said that the matter of limited funds was a factor in his not being able to come to Court at an earlier time.
The Ministerial intervention request was determined in August 2009 (see Mr Buck’s affidavit at [8] and annexure “NAB5” to that affidavit). The applicant’s evidence was that he “found out” that his Ministerial intervention request was unsuccessful “at the end of August 2009” (his affidavit of 21 May 2013 at [4]).
As set out above, some care needs to be taken with the applicant’s evidence. In spite of what he clearly said in the affidavit of 21 May 2013, before the Court the applicant said he could “not remember or recollect the exact time” that he found out about the Ministerial intervention request. The applicant then persisted in answers to the effect that he “did not understand”.
In his affidavit of 20 March 2013 (RE1), the applicant stated that he “kept in contact with” Mr Bitel for approximately the next two years ([17] of RE1). He also stated that he could not afford to pay for legal representation. In his affidavit of 21 May 2013, the applicant states that, in addition to keeping in contact with Mr Bitel, he attempted to engage “with several other Bangladeshi solicitors” ([6] of his affidavit of 21 May 2013).
That he was unable to obtain legal assistance over this period because of the costs and a lack of funds, still leaves unexplained why he did not attempt to lodge the application himself.
First, he knew that this option was available to him (see [23] above). Second, while accepting his preference was to come to Court with legal assistance, the applicant did not explain, or even attempt to explain, through his evidence to the Court, why he did not at least attempt the option of commencing proceedings on his own behalf in these exigent circumstances.
At that time, the applicant had been in Australia for some years without permission. He gave evidence in relation to the period after 18 July 2012 (see [34] below) that he was reluctant to approach the Tribunal to obtain his file because he did not have a visa. In my view, in the circumstances, that explanation also applies to the three year period prior to 18 July 2012. This, again, is an unsatisfactory explanation. The applicant chose to continue to remain in Australia without permission, over taking appropriate action, known and available to him, to seek review of the Tribunal’s decision in Court.
The applicant’s evidence was that he met a solicitor (in context, Mr B Halligan, with the firm of solicitors representing him before the Court now) on 18 July 2012. Although, in cross-examination, he said it could have been earlier. The application to the Court was made on 9 November 2012. There is no indication on its face that it was “prepared” by anyone other than by the applicant himself. No notice was received by the Court from any solicitor acting for the applicant at that time. This sequence of events was not satisfactorily explained before the Court.
In his affidavit of 21 May 2013 (at [7]) the applicant stated that, in October 2012, he went to see a solicitor, “Mr Latif in Lakemba”. Mr Latif instructed him to go to the “Refugee Review Tribunal and obtain your file”. He was “afraid to take this action” but did this ([8] of the applicant’s affidavit of 21 May 2013). He then said that Mr Latif told him to make the application to the Court himself. His evidence was that Mr Latif “prepared” the application to the Court ([9] of his affidavit of 21 May 2013).
His evidence, before the Court, was that Mr Halligan (“around” 18 July 2012, although in cross-exam the applicant said it could have been earlier) also told him to go to the Tribunal and obtain his documents. He was “reluctant” to approach the Tribunal because he said he did not have a valid visa.
Before the Court, in re-examination, the applicant gave evidence that there was no interpreter present at the time he made the affidavit of 20 March 2013 (RE1). He said that the “gentleman who prepared it” read it in English.
The affidavit of 21 May 2013 contains a certification by an interpreter for a “non-English speaking affidavit”. The affidavit of March does not (RE1). It may be that the applicant’s counsel, through his questioning in re-examination, sought to lay the foundation to implicitly argue that any inconsistencies between the two documents could be explained on that basis. However, no express or specific submission in this regard was subsequently made. In any event, the applicant otherwise gave evidence to the Court that everything in “all” his affidavits was “true and correct”. [I note both affidavits were said to have been “prepared” by Mr Halligan].
Consideration of Explanation for Delay
The “three year” period between the date of the Tribunal’s decision and the application to Court may, for convenience, be seen as follows:
1)Period one: from the date of the Tribunal decision (27 October 2008) to the applicant’s attendance on Mr Bitel in January 2009 (two and a half months).
2)Period two: From January 2009 when the Ministerial intervention request was made to its disposition and notification to the applicant at the end of August 2009 (about seven months).
3)Period three: From the end of August 2009 to 18 July 2012 when he met with Mr Halligan (nearly three years).
4)Period four: from 18 July 2012 to the filing of the application to the Court on 9 November 2012 (about three and a half months).
Period one may be appropriately explained on the basis that there is satisfactory evidence before the Court that the applicant believed that an application for judicial review had been made to the Court on his behalf. Further, that the applicant had no “practical” knowledge of how to commence this himself.
That is not the case with period two. On the best view of the evidence, the applicant knew of both the possibility of an application to the Court, including an application for an extension of time, and of seeking Ministerial intervention.
With legal advice, he elected to proceed with the latter. His evidence that he felt he had no choice because he felt he had to follow Mr Bitel’s advice does not detract from the fact that he knew he could nonetheless come to Court. His evidence to the Court on the question of the $3,300 was unsatisfactory, and unclear, as to whether he was seeking to relate it to this period, the Ministerial intervention, or any application to the Court, including subsequently in period three.
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]).
In relation to period three, the applicant, again, has not provided a satisfactory explanation. His initial evidence was that he did not know that he could come to Court without legal representation. Under cross-examination, it emerged that he did not want to come to Court without legal representation, not that he could not. In any event, this was contradicted by his affidavit evidence that in or around January 2009 he knew he could lodge an application to the Court for an extension of time and “I decided to try to lodge this application my self” ([16] of RE1). That he did not do so at that time, or before November 2012, remained, in all the circumstances presented, expressly unexplained.
In relation to period four, the applicant’s explanation for his delay, again, is not satisfactory. It cannot be said that either Mr Halligan or Mr Latif had any part in that delay. Importantly, when it was put to him in cross examination that he had “wasted” this time, he agreed.
In all, therefore, the applicant has not provided a satisfactory explanation for his failure to make his application to the Court for a period of well over three and a half years. This is not a basis on which to grant any extension of time.
The Merits of the Substantive Application
The second of the elements relevant, in this case, to the consideration as to the extension of time is whether the ground of the substantive application to the Court is of such or any merit as to argue in favour of the extension of time (see [7] above). It is equally as important as the question of delay, to consider whether the applicant’s assertion of jurisdictional error on the part of the Tribunal has sufficient merit such as to be said that is should weigh in the applicant’s favour in the exercise of the Court’s discretion.
Before the Court the applicant sought to press a proposed amended application if time were extended.
The sole ground of the “proposed” amended application, proposed with the benefit of legal representation, and advice from counsel, is in the following terms:
“Ground.
The Tribunal misapplied the law to the facts and in doing so failed to exercise its jurisdiction, asked the wrong question, and/or failed to take into account a relevant consideration.
Particular.
(i) The Tribunal disregarded the fact that an article written by the Applicant with his photograph attached had been published in Bangladesh, wrongly relying on section 91R(3) of the Migration Act, purporting to rely on the fact that the applicant sent the article to his family in Bangladesh for publication while he was in Australia.
(ii) The relevant facts were that the article was published in Bangladesh, not Australia, and that the relevant action was the article’s publication and distribution, not the sending of the article for publication.”
Claims to Protection
The following is of assistance, by way of background, to understand the ground.
The applicant’s claims for protection were set out in a statement attached to his protection visa application (CB 27 to CB 39). Relevantly, the applicant claimed to fear harm because of his political opinion. The claims may be summarised as follows:
1)The applicant claimed to fear harm due to his political opinion and involvement with the Awami League (“AL”) in Bangladesh. He claimed to have attended rallies with the AL and have to been an active member from 1981, holding executive roles from 1996 (CB 29.5 to CB 36.2)
2)The applicant alleged that due to his political opinion and activities with the AL, he was harassed, detained and tortured on a number of occasions by their opponents (CB 29.8 to CB 36.3) Further, the applicant claimed that he left Bangladesh in November 1998 for Dubai to escape possible harm and returned to Bangladesh in April 1999 (CB 30.1).
3)Further, the applicant claimed to have published his political opinions in a number of magazines in Bangladesh, as well as having written articles on other matters. He claimed that due to these publications he had been harassed and harmed by people that he criticised both politically and “locally” (CB 34 to CB 35).
4)Even further, the applicant claimed that he had an article while in Australia that he had sent to his family in Bangladesh. His family had then organised for the article to be published in Bangladesh ([78] at CB 341).
5)The applicant feared that, if he returned to Bangladesh, he would be seriously harmed by the government.
The applicant alleges a breach by the Tribunal of s.91R(3) of the Act. That subsection is in the following terms:
“(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
The applicant relied on the following part of the Tribunal’s decision record ([113] at CB 349):
“As referred to in the Tribunal’s letter dated 4 August 2008, and as I explained to the applicant in the course of the hearing before me, the law in Australia requires the Tribunal to disregard conduct engaged in by applicants for refugee status in Australia unless the Tribunal is satisfied that the conduct has been engaged in otherwise than for the purpose of strengthening the applicant’s claim to be a refugee (see subsection 91R(3) of the Act). In his letter dated 24 September 2008 Mr Bitel said that the applicant submitted that his political activity in Australia was consistent with his political activity in Bangladesh. Mr Bitel submitted that subsection 91R(3) therefore did not apply. However for the reasons given about I have not accepted the applicant’s claims regarding his involvement in politics and journalism in Bangladesh. I am not satisfied that the applicant’s conduct in attending meetings here and in sending articles to his family to arrange for them to be published in Bangladesh was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. I therefore consider that I am required to disregard that conduct in determining whether the applicant has a
well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future.”[Emphasis added]
The thrust of the applicant’s complaint is that the Tribunal “misapplied” s.91R(3) of the Act because it “used” the subsection to “exclude evidence in relation to conduct” that had occurred outside Australia, and engaged in by a third party, not the applicant. That is, his family in Bangladesh. The applicant seeks to draw a distinction between what he says is the conduct of the applicant in Australia, the sending of articles which he had authored, and the conduct of his family overseas who caused the articles to be published.
At [113] (at CB 349) the Tribunal’s relevant finding is plain. The conduct that it focussed on there was the applicant’s conduct in Australia of “attending meetings here and in sending articles to his family”. That this was done for a consequential purpose of his family arranging for them to be published in Bangladesh, does not alter the fact that the applicant’s conduct in Australia was what the Tribunal said it disregarded pursuant to s.91R(3) of the Act.
At the beginning of the hearing before the Court, and at parts subsequent, during the hearing, I confirmed with the applicant’s counsel that the ground pleaded, and the error asserted, was a “breach” of s.91R(3) of the Act. On, at least, a fair reading no such misapplication of s.91R(3) of the Act has occurred (noting Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 (“SZJGV”) per French CJ, Crennan, Kiefel and Bell JJ).
It may be that any alleged failure by the Tribunal to address the publication of the articles by the applicant’s family in Bangladesh may have been argued, initially, with reference to a ground asserting a failure to deal with an integer of the claim expressly made. This was not done. But in any event, for the reasons below, no such argument would have ultimately succeeded.
The applicant did not rely on any authority to support his attack on the Tribunal concerning the alleged misapplication of s.91R(3) of the Act. The Minister did so.
In essence the Minister’s position, before the Court, was that to properly understand what the Tribunal did at [113] (at CB 349), regard must be had to how the applicant addressed his case, the explanation of his case provided by his representative, relevant findings made by the Tribunal and the “intersection” between, or causal effect of, the applicant’s conduct in Australia (disregarded by the Tribunal for the purposes of s.91R(3) of the Act) and the alleged conduct of his family overseas (the third parties).
The Minister referred to SZGDA v Minister for Immigration & Anor [2007] FMCA 1152 (“SZGDA”) (per Driver FM, as he then was). In that case, the Court had before it an applicant who had been unsuccessful in his application for a protection visa who had, amongst other things, claimed that while in Australia, he had given information about himself to a newspaper in the country of claimed persecution for the purpose of that information being published there.
In SZGDA the Court found, relevantly, that in that case (at [26]):
“Section 91R(3) is couched in terms which lead me to the view that it is an imperative requirement. It goes to the heart of the consideration of applications before all decision makers dealing with protection visa claims. It is couched in terms which brook no equivocation. The Tribunal recognised, correctly, that the applicant’s conduct in Australia in arranging for newspaper articles to be published in order to support his claims to be a refugee had to be disregarded. It was not then open to the Tribunal to consider the same conduct in order to decide that the applicant had no subjective fear of persecution and that there was no substance to his claims. In using the conduct to reach those findings, the Tribunal fell into jurisdictional error and the applicant is entitled to the relief he seeks.”
[Emphasis added]
I agree with the Minister that the circumstances of the case before the Court in SZGDA and the current case are analogous. Both cases involved an applicant in Australia claiming to fear harm in their own country. In both cases an applicant arranged to send material to be published by a third party in the country of claimed persecution.
In the current case before the Court, the applicant submitted that SZGDA was not one of the cohort of cases dealing with s.91R(3) of the Act subsequently before the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJGV FCAFC”). That is, that in an important Full Federal Court case dealing with s.91R(3), at that time, none of the cases before the Full Federal Court dealt with the conduct overseas by third parties in the context of s.91R(3) of the Act. [At that time SZJGV FCAFC was an important authority in the meaning and interpretation of s.91R(3) until the judgment of the High Court in SZJGV.]
It is the case that in SZJGV, in both the Federal Court and High Court, the issue for resolution did not directly involve such third party conduct. The question resolved in the High Court was whether s.91R(3) of the Act permitted a decision maker to use evidence of conduct in Australia to make findings adverse to an applicant’s claims to be a refugee. That is, in circumstances where s.91R(3) of the Act was found to have been engaged.
I agree with the Minister that, notwithstanding what otherwise was found in SZJGV by the High Court (and for that matter the Full Federal Court), that part of SZGDA extracted above was not “overturned”. That is, the conduct in Australia of arranging and sending overseas material to be published fell within s.91R(3) of the Act, in circumstances where the Tribunal found that such conduct was consequent upon conduct in Australia engaged in solely for the purpose of strengthening the refugee claims. The Court in SZGDA then went on to find that having disregarded such conduct, it was not open to the Tribunal to otherwise consider the conduct in Australia, for example in its application to discredit the applicant’s claim.
It was this latter proposition that was the subject of consideration of the higher Courts. The former proposition was left untouched. In that light the principle of comity requires that I follow what was said in SZGDA given that, respectfully, I cannot see that it was plainly wrong (Hicks v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2003] FCA at [75] – [76] per French J (as he then was)). As the factual situation between SZGDA and the current case is analogous, the Tribunal’s finding in relation to s.91R(3) as to the applicant’s conduct and its consequence, was correct. That is, once the Tribunal had formed the view that the conduct of drafting the article and sending it overseas for publication was done for the sole purpose of strengthening the applicant’s refugee claim the conduct by his family in arranging publication must be disregarded.
The Minister also drew attention to other cases of this Court where similar (to the current case) factual situations arose.
In SZJZN v Minister for Immigration & Anor [2007] FMCA 980 (“SZJZN”), Cameron FM (as he then was) had before him an applicant who claimed to have become a Christian acolyte while in detention. On review before the Court, the applicant raised a ground that the Tribunal misconstrued s.91R(3) of the Act by disregarding conduct of third persons which resulted in the applicant being trained as, or becoming an acolyte (SZJZN at [10]).
The Court found (SZJZN at [14] – [16]):
“[14] The applicant submits that the Tribunal disregarded not only the conduct of the applicant, but also the conduct of third parties associated with the applicant becoming an acolyte, although the section does not require any more than that the applicant’s conduct be disregarded.
[15] Although at CB 291 the Tribunal did say that s.91R(3) required it to disregard the applicant’s preparations to become an acolyte, at CB 296 it went further and made a positive finding that these activities were not based on a genuine intensification of the applicant’s faith. In circumstances where the underlying conduct of the applicant was dismissed as false, any reference to third party involvement in that conduct would be of no practical utility to the Tribunal’s reasoning.
[16] Any connection which third parties might have to the applicant’s conduct in question is meaningless without reference to that conduct. Even were the Tribunal to have regard to the actions or observations of third parties, as advocated by the applicant, it would only be in the context of the conduct of the applicant which it dismissed as not genuine. As a result, the Tribunal would not be in error by disregarding such conduct of third parties even if it were to have done so on this occasion. But a proper consideration of the Tribunal’s decision does not reveal that it did, in fact, disregard the involvement of third parties. The better view would be that, having reached an unfavourable view of the relevant conduct of the applicant, any involvement by third parties was of no assistance to the Tribunal in determining whether the applicant had a well-founded fear of persecution by reason of his religion and thus their conduct was not referred to in its reasons: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.”
[Emphasis added]
The facts in the current case are analogous. The Tribunal rejected the applicant’s claims to have been a journalist and to have been involved in politics (see [111] at CB 349):
“…Since I do not accept his claims regarding his involvement in politics and journalism in Bangladesh in the past, I do not accept that there is a real chance that he will become involved in politics or journalism in Bangladesh if he returns to that country now or in the reasonably foreseeable future.”
It cannot be said in this case that the Tribunal failed to understand or consider an integer of the applicant’s claim that he had sent articles to Bangladesh to be published by his family.
The Tribunal specifically addressed this conduct ([112] at CB 349):
“As referred to in the Tribunal’s letter dated 4 August 2008, when the applicant was interviewed by the officer of the Department and again at the hearing before me on 25 July 2008 he referred to the fact that he had attended two political meetings in Australia, one on the anniversary of the death of Bongobondhu held by the Bongobondhu Parishad and one held by the Australian Awami League. At the hearing on 25 July 2008 he said that one of the articles with his photograph on it which he had produced to the Department had been written since he had been in Australia. He said that he had sent the article to his family in Bangladesh who had arranged for it to be published.”
[Emphasis added]
I cannot see that the approach taken by Cameron FM (as he then was) was plainly wrong. In fact, I respectfully agree with it. In the current case the applicant’s family’s actions are meaningless without reference to the applicant’s conduct and his claims as to what had occurred both in Bangladesh and in Australia.
The Tribunal rejected the applicant’s claims to have been involved in journalism and politics in Bangladesh. The family’s claimed action in the publication of the articles has no meaning other than in the context of the applicant’s conduct. Once that conduct in Australia was disregarded by the Tribunal (the applicant makes no attack on this aspect of the Tribunal’s findings), then any conduct by the family is of no assistance to the applicant.
The Minister also referred the Court to MZXQU v Minister for Immigration & Anor [2008] FMCA 15 (“MZXQU”) (per Riley FM as she then was). While in that case the particular facts are distinguishable to the current case, what her Honour said at [39] – [40] is of direct relevance to the current circumstances:
“[39] In any event, s.91R(3)(b) of the Act only expressly authorises the Tribunal to disregard the conduct in Australia of the person claiming refugee status. That provision does not authorise the Tribunal to disregard the conduct of any other person and, more particularly, that provision does not authorise the Tribunal to disregard the conduct of another person who is not in Australia.
[40] If the conduct of a third party who is overseas is in fact meaningless without reference to the conduct in Australia of the applicant, it may be appropriate to disregard the third party’s conduct under s.91R(3)(b) of the Act. However, in the present case, the conduct of the applicant's wife in Burma stood alone. She went to the Post Office in Burma to dispatch a letter to the applicant, the letter was opened and she was questioned as a result. Additionally, the applicant's wife sent the applicant an email which made it clear that the applicant was seeking protection in Australia. The applicant claimed and the Tribunal apparently accepted that the email was intercepted by the authorities and they became aware that the applicant was seeking protection in Australia. The fact that the letter and email were sent to the applicant does not transform the wife's conduct into the conduct of the applicant.”
[Emphasis added]
Again, I respectfully agree with what was said in MZXQU. In the current case, the conduct of the applicant’s family had no relevant meaning without the conduct of the applicant in Australia in drafting and despatching the article to them for publication.
In all, and following the reasoning in these cases, with which I respectfully agree, the Tribunal in the current case was correct to disregard the conduct pursuant to s.91R(3) of the Act. The sole ground of the application lacks merit sufficient to argue for the exercise of the Court’s discretion to extend time.
Conclusion
The applicant’s explanation for the lengthy delay in coming to Court is not satisfactory. The sole ground of the proposed substantive application to the Court lacks merit. In these circumstances it is not appropriate to extend time. I will make an order refusing the extension of time pursuant to s.477(2) of the Act.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 August 2013
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