SZSUV v Minister for Immigration

[2013] FCCA 2185

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2185

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

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to ask the correct question, denied the applicant procedural fairness and may not have applied the correct evidentiary test.

PRACTICE & PROCEDURE – Application for extension of time – relevant criteria.

Legislation:

Migration Act 1958, ss.36, 91R, 425, 474, 477

Federal Circuit Court Rules 2001, r.13.10(a)

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: SZSUV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 955 of 2013

Judgment of: Judge Cameron

Hearing date: 11 December 2013

Date of Last Submission: 11 December 2013

Delivered at: Sydney

Delivered on: 11 December 2013

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Applicant: Adrian Joel & Co

Counsel for the First Respondent: Mr J. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application for an extension of time to bring these proceedings be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 955 of 2013

SZSUV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Egypt who initially arrived in Australia on 13 July 2007 as the holder of a student visa.  He most recently arrived in Australia on 20 September 2011.  On 28 February 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Egypt because of his participation in political rallies and because of comments he had made on the internet critical of Islamic extremism and the Egyptian government. On 23 May 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. On 6 May 2013 the applicant 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 applicant has applied for an extension of that limitation period.

3. 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 applicant’s claim for a protection visa are set out on pages 4-9 of the Tribunal’s decision which I will relevantly summarise.

Protection visa application

1. The applicant made the following claims in his protection visa application and in a statutory declaration attached to that application:

   a)he was a Sunni Muslim committed to his faith;

   b)while in Egypt for a family visit in July 2011 he had been perturbed by the rise in Islamic fundamentalism, which had been enjoying unprecedented popularity in his home city, and had experienced the Egyptian military regime’s suppression of political dissidents;

   c)during his visit he had participated in political rallies calling for the military regime’s immediate removal from power.  He had participated in two rallies in Tahrir Square where he witnessed military squads arresting and beating hundreds of protestors;

   d)he was a secularist who supported pro-democratic groups and was a staunch opponent of radical Islamists.  In his blogging on the internet he had openly condemned radical Islam and Egypt’s military regime;

   e)if he returned to Egypt he would be targeted by radical Islamists and killed as he had openly criticised Islam; and

   f)his family were all moderates but were forced to support radical Islamists for fear of retribution.

Proceedings before the Tribunal

1. The applicant made the following additional claims at his Tribunal hearing on 6 September 2012:

   a)he had had difficulties renewing his passport when he visited Egypt in July 2011.  He was asked to submit documents about his military service and was asked questions about what he had been doing abroad in the previous four years;

   b)he had attended two demonstrations in his home city during his visit to Egypt in 2011.  The demonstrations were held in front of hospitals and police stations because nothing had changed since the revolution and “thugs” were everywhere and had not been kept in check.  The protesters were very upset because they were victims of crime by thugs and the police would not do anything.  Government central security forces and police attended the demonstrations to disperse the demonstrators and had hit people with batons;

   c)since September 2011, after his visit to Egypt, he had made comments on the internet, specifically Facebook and YouTube, which were critical of the Muslim Brotherhood and the new government.  The comments were written in Arabic and in his own name.  His most recent comment was posted on Facebook the day before the Tribunal hearing;

   d)he posted those comments because everyone was interested in the Arab Spring and what was going on in Egypt and he had wanted to express his own opinion.  He had not posted comments prior to September 2011 because he was afraid for his family if “they” found out that he had been posting critical comments;

   e)when asked about the comment he had made on the internet the day before the hearing, he said that he had commented on an old YouTube video clip of Anwar Sadat making critical comments about the Muslim Brotherhood.  He had commented that the Muslim Brotherhood wanted to rule rather than accomplish religious goals;

   f)he feared returning to Egypt because he was afraid he would have problems with radical Islamists such as members of the Muslim Brotherhood.  He feared the Muslim Brotherhood and the then-Muslim Brotherhood government of Egypt because he would not be able to say what he thought; 

   g)his family were fearful and did not like the Muslim Brotherhood or the alternative candidate for President, Ahmed Shafiq.  They thought that criminals and thugs had been taking advantage of the volatile political situation;

   h)he had not applied for protection sooner because he feared for the safety of his family members and conditions had worsened since his visit to Egypt in September 2011;

   i)he had not supported any political group before he came to Australia in 2007 and had not had the right to vote in the election held in 2005 because he had been in the military; and

   j)before he came to Australia, there had been problems with employment and arbitrary harassment by the authorities in Egypt.  He had also been very poorly treated during the two years he spent in the army.

2. At the hearing the Tribunal invited the applicant to submit downloaded internet documents of his comments with translations, together with any other submissions he wished to make to the Tribunal.  On 27 September 2012 the applicant’s adviser submitted to the Tribunal pages downloaded from the internet, with various language translations, indicating that the applicant had “Liked” or “Shared” various comments made by individuals on social media.  The documents were generally undated, but given their contents, most appeared to have been generated in 2012.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person 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”) or pursuant to s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)it noted that the applicant had not claimed to have suffered any serious harm before he came to Australia in 2007.  The Tribunal accepted that he had experienced arbitrary harassment by Egyptian authorities, including by his superiors in the army, but noted that he had not indicated that his harassment had been for any particular reason other than the arbitrary exercise of power against powerless people like him;

   b)it accepted that the applicant had visited Egypt from July to September 2011.  It also accepted as credible the applicant’s account that he had witnessed violence against attendees at demonstrations about the inadequacy of health and security services but noted that he had not claimed to have been harmed by anyone during his visit to Egypt;

   c)it did not accept as reasonable the applicant’s explanation for his delay in applying for protection in Australia and considered that such a long delay in lodging an application indicated that he was not in fear of being seriously harmed at the time he returned to Australia in September 2011;

   d)it accepted that the applicant had posted various comments on Facebook and YouTube after his return to Australia from Egypt in September 2011.  However, it considered the evidence presented about these activities to be limited and did not accept that the evidence submitted indicated that the applicant was an internet activist or originator of the critical comments; and

   e)it was not satisfied that there was a real chance that the applicant would be seriously harmed in the future should he return to Egypt.  In this connection, the Tribunal:

   i)found that as the demonstrations attended by the applicant had been about local issues and had occurred before the elections, they could not be construed as hostile to the Muslim Brotherhood.  It also noted that the applicant did not claim to have been harmed either at the demonstrations or as a result of his participation in them;

   ii)accepted that the applicant had supported social network postings critical of the Muslim Brotherhood and the President but did not find that these opinions gave the applicant anything approaching a high profile as a political activist opposed to the government in Egypt.  It also did not accept that the internet activity engaged in by the applicant was of such importance that it would attract any adverse attention from Egyptian authorities;

   iii)did not accept that the applicant had a profile that would attract any adverse attention from authorities if he were to express his political views on return to Egypt.  In this regard, the Tribunal noted that the applicant had a virtually non-existent political profile and a diversity of views was being expressed in Egypt on a regular basis; and

   iv)noted the applicant’s claim that he feared the extremist views of the Islamists generally, because he might be harmed for not conforming to such views in his opinions and lifestyle.  It did not consider that any risk of harm to the applicant for that reason was anything other than a remote, insubstantial or far-fetched possibility.

Proceedings in this Court

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 11 October 2012 which means that the applicant had until 15 November 2012 to commence these proceedings. As the application was not filed until 6 May 2013, 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 applicant considers 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 applicant applied in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application and affidavit in support specified why he 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.

2. The Court is not confined in the issues which it may consider relevant to its determination of that issue. In this case, relevant considerations are whether the applicant has provided a satisfactory explanation for his delay in commencing the proceedings and whether the proceedings as a whole have a reasonable prospect of success, noting that a matter which does not is liable to be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001.

3. In the circumstances of this case, the question whether it is in the interests of the administration of justice to extend time 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 applicant has 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’s 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 will conclude that it is in the interests of the administration of justice to extend the time within which to bring these proceedings, it is necessary that the applicant demonstrate that he has reasonable prospects of proving that the Tribunal’s decision was affected by jurisdictional error. I have concluded that he has not done so.

2. In his amended application the applicant alleged:

   1.The first respondent failed to address the correct question before it, namely whether the applicant was entitled to be granted a protection visa according to law.

   Particulars

   a)The first respondent concluded at paragraph 69 that considering the applicant could not meet the refugee criterion in accordance with section 36(2)(a), this meant he could not meet the complimentary protection criterion referable to the application of 36(2)(aa).

   2.The applicant has been denied procedural fairness in the making of the decision by the first respondent with respect to the operation of section 36(2)(aa) of the Migration Act and in so doing offends the application of section 420(2)(b). Application of this provision includes the duty of the respondent to identify to the applicant issues which may be of determinative significance, which were not apparent from the terms and nature of the protection visa application completed, nor the Departmental or Tribunal interviews conducted. Such duty also exists independently of statutory obligation.

   Particulars

   a)Section 36(2)(a) provides for consideration of Convention based persecutory grounds whilst section 36(2)(aa) provides for consideration of claims with respect to complimentary protection.

   b)The first respondent either did not apply any procedure, or any satisfactory procedure, to identify issues distinct from Convention based persecutory claims which could be relevant and determinative when considering claims based on harm, and to inform the applicant as to the character of such issues.

   c)The applicant assumed the reasons provided by the Minister’s departmental delegate for refusing the protection visa identified the totality of issues that arose in relation to that decision, and proceeded with his request for review and attendance at the interview with the Tribunal on such basis.

   d)Had the respondents discharged the notification obligations as to unresolved complementary issues (which at least may have been inferred by virtue of the nature of the persecutory claims presented) the applicant would have been provided with an opportunity to particularise such claims, which could include discrimination, socioeconomic deprivation and failure of police to provide protection and other harm not falling within a Convention ground.

   e)As at the time of completion of the application of a protection visa Class XA on Form 866A and the time of Departmental and tribunal interview, the applicant remained ignorant of the evidentiary ambit of complementary claims, in contrast to the knowledge of the respondents as to the ambit of such claims.

   f)The decision record of the respondent limits complementary consideration to a set of factual circumstances or mosaic, as conveyed with respect to persecutory claims, the effect of which has been to curtail and/or intermix the ambit of analysis contemplated with respect to the operation of section 36(2)(aa), and deprive effective consideration thereof.

   g)Further, by virtue of the conclusion drawn as to the applicant not being found to have suffered serious harm in the Convention context, such view has been extended to the unresolved context of complementary harm and/or also sustained the evidentiary foundation in dismissing claims of real risk of significant harm.

   h)The first respondent improperly disregarded the behaviour of the applicant whilst in Australia which was relevant to consideration of complementary protection.

   3.Error of law.

   Particulars

   a)There is no evidence that the respondent adopted the correct evidentiary test when considering complementary claims, namely a real chance of real risk.

   b)The first respondent concluded as a result of determining the applicant could not satisfy a Convention based ground, this therefore meant that the applicant could not satisfy evidentiary criteria with respect to section 36(2)(aa).

Relevant legislation

1. Section 36(2)(aa) of the Act provides:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (aa)a non‑citizen in Australia … to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm …

2. Section 91R(3) provides:

   (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.

3. Section 425 of the Act relevantly provides:

   425   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …

Ground 1

1. The applicant submitted, in substance, that the Tribunal’s discussion of the issue of complementary protection was so brief and unconnected with the remainder of its reasons for decision that it had, in substance, not considered the issue.  The applicant referred in this regard to the fact that although the Tribunal had discussed his claims in detail, it had done so in the context of Convention-based protection and that it was only after the Tribunal concluded that he did not face a real chance of harm in Egypt for his political opinion and disagreements with the Muslim Brotherhood that it went on to dispose of the issue of complementary protection in the following terms:

   The Tribunal is therefore not satisfied on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm, as defined in the Act.

2. The applicant relied on SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7 where Judge Driver held that an independent merits reviewer (“Reviewer”) had been required, but had failed, to engage with the language of s.36(2)(aa) of the Act and to consider evidence relevant to that provision. However, the applicant in that case had advanced allegations which were capable of supporting an entitlement to complementary protection, even if not Convention-based protection, and the Reviewer’s failure to expressly consider them in the complementary protection context as well as in the Convention context indicated that they had not been considered in the complementary protection context.

3. However, that is not this case and each case depends on its own facts and on what the decision-maker’s reasoning was:  SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57]; SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [35]. In this case the Tribunal concluded that:

   a)the applicant’s conduct had been so inconsequential in a political sense that he was of no interest to the Egyptian authorities by reason of his political opinion; and

   b)the risk that his non-conformity with the mores of Egypt’s Islamists would see him suffer harm was remote, insubstantial and far-fetched. 

   Significantly, the applicant did not advance any other basis to support a claim for complementary protection. In such circumstances, no separate, detailed consideration of the applicant’s claims by particular reference to the tests for entitlement to complementary protection was required.

4. Citing SZSFK at [94], the applicant submitted that the Tribunal had been required to identify from his factual allegations those incidents that were conceivably relevant to significant harm. If Judge Driver was saying at [94] of SZSFK that the Reviewer in that case had been required to set those matters out in his reasons, I respectfully disagree with him.  The relevant obligation is to consider material matters, not to cite them, albeit the absence of such express consideration from reasons for decision may evidence a failure to consider.  For the reasons already given I am not persuaded that the Tribunal failed to have regard to a relevant matter when considering the possibility that Australia had complementary protection obligations to the applicant.

5. The applicant also submitted that in SZSGA, Robertson J had found:

   Decision-makers needed to clearly distinguish between statutory provision, which bore on the complementary protection criterion and those, which did not. The use of language drawn from an irrelevant provision of the Migration Act at least created confusion and pay point to reviewable error.

   and went on to say in the same paragraph:

   … the reliance by the Reviewer on unspecified “finding set out above” was particularly problematic .  On its face, it appeared to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant. (at [32])

6. In my view, neither of those passages is a finding by his Honour but is, rather, a paraphrasing of certain statements made by Judge Driver in SZSFK.  The relevant finding made by Robertson J was that referred to earlier in these reasons, that each case depends on its own facts.  I do not accept that the first of the passages referred to by the applicant represents a statement of the law applicable to every case raising the issue of complementary protection or that the subsequent comment reflected the views of Robertson J.

Ground 2

1. The essence of the first part of the second ground of the application was that the applicant did not know of the possible availability of complementary protection or whether he might satisfy the tests for its availability to him and that the Tribunal should have put him on notice of this because s.425 of the Act required that it do so. In paras.3-7 of his affidavit filed on 15 July 2013 the applicant said:

   3.As at the time of the Review request, I believed the issue to be determined was based upon ground of persecution which I know can be described as harm suffered for reasons which includes political opinion, religion, membership of social group and other grounds.

   4.At all time during the conduct of the interview before the First Respondent and to the best of my understanding with respect of representations and submissions made on my behalf prior to such interview, I believed that I had to establish reasons for persecution.

   5.I cannot precisely recollect what was said to me at the interview about harm in terms of what I now understand to apply with respect to complementary protection.

   6.I understood as at the time of lodgement of my protection visa application, lodgement of review and during the interview that any reference to the term harm existed in relation to harm which may emerge with respect to the grounds of persecution I tried to rely on.

   7.I formed this view because of the information I understood that was sent to me and the conduct of the interview undertaken by the First Respondent.  Also to the best of my knowledge I never received any information explaining that a review could consider the possible existence of significant harm in a way that could involve different circumstances to that which exist with respect to my claims or persecution. …

2. The Tribunal had no duty to alert the applicant to this issue because the delegate had already done so in her decision record where, under the heading “Part C – Assessment of Protection Obligations under the Complementary Protection provisions in the Migration Act”, she discussed complementary protection, and the tests for its availability, and concluded that Australia did not have such obligations to the applicant. That was a decision dispositive of the applicant’s application for a visa and as such remained an issue before the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163 [35]. Moreover, the section of transcript of the Tribunal’s hearing adduced as evidence at the hearing of this application satisfies me that the Tribunal did raise the issue with the applicant and his adviser.

3. The second part of the second ground of the application was an assertion that the Tribunal had excluded the applicant’s conduct in Australia from its consideration of the possibility that Australia owed him complementary protection. It was submitted that the Tribunal had done so in reliance on s.91R(3) of the Act notwithstanding that that provision has no application to claims for complementary protection.

4. The conduct to which the applicant referred in this regard was referred to in the following passage in the Tribunal’s reasons:

   It was explained to the applicant that he needed to be aware that if the Tribunal were satisfied that the sole reason for posting critical comments on the Internet was to strengthen his claims to be a refugee within the meaning of the Refugees Convention, then the Tribunal was legally required to disregard his Internet activities in Australia.

5. However, the Tribunal did not disregard the activities in question whether in respect of the Convention-based claims or otherwise, as paras.60 and 64 of its reasons make plain.

6. For these reasons the second ground of the application is not made out.

Ground 3

1. The applicant advanced various submissions in support of the third ground of the application and I have considered them. However, this allegation cannot succeed for the same reason that the first ground has not succeeded, namely:

   a)the Tribunal concluded that the applicant’s conduct had been so inconsequential in a political sense that he was of no interest to the Egyptian authorities by reason of his political opinion;

   b)the risk that his non-conformity with the mores of Egypt’s Islamists would see him suffer harm was remote, insubstantial and far-fetched; and

   c)no other bases to support a claim for complementary protection were advanced.

Conclusion

1. I am not persuaded that there is any basis to find that the Tribunal’s decision is affected by jurisdictional error.  Consequently, the substantive proceedings have no reasonable prospects of success.  In such circumstances, I conclude that it is not in the interests of the administration of justice to extend time to bring these proceedings.

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

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  18 December 2013