SZUAR v Minister for Immigration

[2016] FCCA 373

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 373

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

PRACTICE & PROCEURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 474, 477

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 667 of 2014

Judgment of: Judge Cameron

Hearing date: 28 January 2016

Date of Last Submission: 28 January 2016

Delivered at: Sydney

Delivered on: 28 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M. Stone of DLA Piper

ORDERS

1. The applicant be granted leave to file in a court an amended application dated 6 June 2014 and his affidavit sworn or affirmed on 6 June 2014.

2. The applicant’s application in a case filed on 25 November 2015 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $1,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 667 of 2014

SZUAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (“Rules”) seeking to set aside orders made by this Court on 20 October 2015 which dismissed his application filed on 18 March 2014 on the basis that those orders were made in his absence.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 15 June 2012.  On 20 November 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 Bangladesh because of his political opinion.  On 24 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision and on 23 January 2014 the Tribunal affirmed the decision of the delegate to not grant him a protection visa. 

3. In his initiating application filed in the Court on 18 March 2014 the applicant sought judicial review of the Tribunal’s decision. He also sought an extension of time within which to file his application as it had been filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”).

4. The applicant’s application was listed for its first court date on 28 April 2014. The applicant appeared and the matter was listed for callover on 8 October 2014. The applicant also appeared on that day, at which time his application for an extension of time was listed for hearing on 9 February 2016. On 12 June 2015 the Court wrote to the applicant at his address for service advising him that his hearing had been moved to 20 October 2015. There was no appearance by the applicant on that day and on the application of the Minister, the applicant’s application for an extension of time was dismissed pursuant to r.13.03C(1)(c) of the Rules.

5. In my view the considerations which are relevant to the decision whether to grant the present application in a case are whether the applicant’s explanation for his non-attendance on 20 October 2015 is a satisfactory one and whether his application for an extension of time has reasonable prospects of success.

SATISFACTORY EXPLANATION

1. Turning first to whether the applicant has provided a satisfactory explanation for his non-attendance, the applicant’s evidence was that he had been sick on the hearing date.  He also said that he had not realised that the hearing date had been brought forward and that he had made a mistake. 

2. In cross-examination, the applicant was shown the Court’s letter of 12 June 2015 as well as a letter sent to him by the Minister’s solicitors dated 13 October 2015, both of which identified the 20 October 2015 hearing date.  The applicant said that he had received the Court’s letter and appeared also to say that he had received the letter from the Minister’s solicitors.  The applicant also said, in connection with his allegation of having been sick on 20 October 2015, that he had been sick for a period in October 2015 but had not seen a doctor.

3. I do not accept the applicant’s evidence concerning why he did not attend last October’s hearing.  His evidence was inconsistent in that he said that he did not attend because he was sick and he did not attend because he did not know of the hearing date.  Further, his evidence concerning being unwell was not compelling and I consider it very unlikely, having received letters from the Court and the Minister’s solicitors advising of a new hearing date, that he was unaware of it.

4. I find that the applicant has not provided a satisfactory explanation for his non-attendance on 20 October 2015. 

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides a time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding in 2014, it relevantly provided:

   477 Time 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 23 January 2014 which means that the applicant had until 27 February 2014 to file his originating application.  As the application was not filed until 18 March 2014, it was filed out of time.

Application in writing citing reasons

1. The consequence of the applicant’s originating 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 was made to the Court for an extension of time specifying why the applicant considered that it was 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 made an application in writing for an extension of time by including such a request in his originating application made on 18 March 2014. Further, his application 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 would have been in the interests of the administration of justice for time to be extended for the filing of the application which commenced 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 had reasonable prospects of success and whether the applicant had a satisfactory explanation for the delay in commencing the proceedings.

Satisfactory explanation for delay

1. In his application commencing the proceedings the applicant stated that he had been late in filing that application because he did not receive the Tribunal’s notification of decision letter from his representative until 28 days after the date of the decision and, because of his very limited knowledge of English and legal words, it was hard for him to make the application.  Nothing further on this subject was included in the affidavit filed with the initiating application on 18 March 2014.

2. In his evidence at the hearing of this application the applicant stated that when he received the letter from the Tribunal there were only three or four days left within which he could commence this proceeding.  He said that he took the letter from the Tribunal to the department, was told that he should get a lawyer and that he had 14 days within which to file his application for review of the Tribunal’s decision.  It was put to him that perhaps the conversation he was recalling concerned an application for a bridging visa and not an application for judicial review of the Tribunal’s decision but the applicant was firm that the discussion had concerned the latter issue. 

3. In substance, the applicant’s evidence was that he was advised by the department to file his application for judicial review within 14 days.  I consider that most implausible.  It is very unlikely that the department would have given advice contrary to the legislation and it is more likely, as the Minister submitted, that the discussion which the applicant recounted concerned issues surrounding a bridging visa.  It should be noted, and I take into account, the fact that the delay in filing the initiating application was not great or likely to have been prejudicial to the Minister.  However, that is not the test.  The question is whether the applicant has provided a satisfactory explanation for his delay and, in my view, he has not.  The applicant’s explanation is that he was advised by the department that he had a further 14 days and he has given no other explanation for not filing his application in the Court in the time available.  He did say in his initiating application that he had limited knowledge of English and legal words so it was hard for him to make the application but he has not explained, other than what he has said in relation to the department’s advice, why he did nothing in the three or four days which he still had upon receipt of the Tribunal’s letter.  Given those facts, I am not persuaded that the applicant has provided a satisfactory explanation for the delay in filing his initiating application.

Reasonable prospects of success

1. In relation to the question of whether the substantive application has reasonable prospects of success, 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 will 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 applicant demonstrate that he had reasonable prospects of proving that the Tribunal’s decision on his visa application was affected by jurisdictional error.

Claims before the Department

1. As previously indicated, the applicant’s protection visa application was lodged on 15 June 2012.  He made the following claims in a statement attached to his application:

   a)his home was raided by members of the Haque Group in 1999. During the raid, his parents and siblings were beaten and their money and gold was taken.  He was not at home at the time;

   b)in 2000, and as a result of the raid, he decided to join the Sharbo Hara Party (also referred to by the Tribunal as “Sharbohara” and “Sharbahara”).  His duty as a member of the party was to follow leaders’ orders and to carry weapons when required; 

   c)although initially a political party, the Sharbo Hara Party later became a gangster group.  He “got to know” the party through friends;

   d)he also joined the BNP in 2002 and participated in political activities such as party meetings;

   e)he moved to Dhaka after one of his friends was killed by the Haque Group.  He stayed in Dhaka for two years;

   f)he left the Sharbo Hara Party in 2003 because the police were targeting them.  Usually, members were killed by the police as soon as they were arrested.  When one of the leaders of the Sharbo Hara Party was arrested in Dhaka, he decided to leave Bangladesh to save his life;

   g)he fled to Malaysia but was continually harassed and attacked by the police and Tamil people.  Consequently, he decided to seek asylum in Australia; and

   h)if he returned to Bangladesh he would be harmed by the Haque Group because of his membership of the Sharbo Hara Party and the BNP.  The Bangladeshi police would also seek to detain and kill him as he had been a member of the Sharbo Hara Party.

Proceedings before the Tribunal

1. The applicant appeared at a hearing before the Tribunal on 17 December 2013.  Written submissions were also provided on 13 December 2013 and 16 January 2014.

2. 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 s.36(2)(aa) of the Act.

3. The Tribunal did not accept that the applicant had been a member of Sharbahara, noting that he had provided inconsistent evidence regarding key aspects of his claims, namely:

   a)the applicant claimed that he had been motivated to join the Sharbahara group in order to protect his family.  He referred in this connection to the incident in 1999 when his house was raided but, at the Tribunal hearing, also claimed that his father had been extorted six or seven times by the Haque Group and that his house had been robbed a second time.  These latter claims had not previously been made.  In the Tribunal’s view, if the applicant had been motivated to join Sharbahara to protect his family as claimed, he would have mentioned these events earlier, particularly given their seriousness.  The Tribunal did not accept that the applicant would not have appreciated their significance for his application for protection;

   b)the applicant’s evidence about the second robbery had been confusing and unclear.  He gave inconsistent evidence about when the robbery had occurred and about what had happened during the robbery; 

   c)in the statement accompanying his protection visa application as well as initially before the Tribunal, the applicant claimed that his membership of Sharbahara had been facilitated by friends.  However, in his pre-hearing submissions of 13 December 2013 the applicant claimed that his uncle was affiliated with the group and had supported him joining the organisation;

   d)the applicant made no mention in his statement of any uncle, let alone of an uncle who had been a member of Sharbahara and had played a role in him joining the party.  In the Tribunal’s view, if the applicant’s uncle had had any role in his alleged membership of Sharbahara, the applicant would have provided consistent evidence of this throughout the process;

   e)the applicant’s knowledge about Sharbahara was vague and lacking in detail.  In particular, he did not know what the party’s ideology was despite having been a member for three years; and

   f)in his statement the applicant claimed that his duty as member of Sharbahara was to follow orders and carry weapons as required.  However, at the Tribunal hearing the applicant failed to make any reference to these activities, instead claiming that he had acted as an informer and would let his group know if other party members came to his village.

4. Given its finding that the applicant had not been a member of Sharbahara, the Tribunal did not accept that his family had been the victims of repeated extortion by the Haque Group, that his friend had been killed by the Haque Group, or that he had been in hiding whilst in Dhaka.  Consequently, the Tribunal did not accept that if the applicant returned to Bangladesh he would face harm from the Haque Group, the Bangladeshi police or from members of Sharbahara itself.

5. Further, the Tribunal did not accept that the applicant had been a member of the BNP, noting that it was implausible that he would be a member of two opposing political parties at the same time, namely, the BNP and Sharbahara.  The Tribunal also noted that the applicant had provided inconsistent evidence about when he had become a member of the BNP and the nature of his involvement with that party.

6. The Tribunal did not accept that the applicant had been a member of Jamaat-e-Islami (as claimed during his interview with the delegate) because he did not raise his alleged membership when asked specifically by the Tribunal at the hearing if he was a member of any other parties.

7. Finally, the Tribunal noted the submissions made by the applicant’s adviser that the applicant, having spent many years abroad, would be identified as being a westerner or a wealthy westerner and would be targeted in Bangladesh as a result.  Given the vague and limited information before it, the Tribunal did not accept that the applicant would be so perceived or targeted upon his return to Bangladesh.

Application for judicial review

1. In the amended application the applicant alleged (numbering added): 

   1.In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars

   RRT unreasonably raised doubt over the applicant’s involvement with the Sharbohara Group with which his uncle was a dominant and active leader.  The Department and the Tribunal misunderstood or misconstrued the facts.  Migration advisor for the Applicant in his submission (Court Book p 196-2002) very clearly clarified the applicant’s motivation to join the Sharbohara Party, Applicant’s activities and role in the Party.  Applicant’s Uncle was an active and long-time member of the Sharbohara Party.

   Applicant claims that there are many Violent-Criminal and Terrorist Groups in Bangladesh which are active.  The Haque Group is one of the famous and notorious gang of the Criminals in Bangladesh.  As the applicant stated earlier that Applicant’s Village was attacked and looted seven times in the past by the Haque Groups.

   And for the safety of his and family’s life from this Haque Group of Criminals The applicant joined the Shabohara Party.  When it became more worst, the applicant decided to leave Bangladesh.

   The applicant argues that the Department and the Tribunal asked many irrelevant questions to test the credibility of his evidence. 

   The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which the applicant was not prepared.  He was nervous and confused at the time of making Statutory Declaration and also at the time of interview with the Department and Lawers who helped him to prepare the application.

   The Tribunal raised the question about telling these things now, and raised the question why he did not mention earlier in the Statutory Declaration with the Original Application.  For the protection of his life and his family he became very close to the BNP party leaders so that they could help from the attacks from the Haque Group.

   The applicant never told in the interview he was party leader or active member of any fundamentalist party or BNP party.  Simply, to gain sympathy and support for protection of life he supported the BNP.

   The Department has accepted that he was very confused.  He was himself not understanding what answer he is giving for which questions.  The Department told the applicant first understand the question then give answer.  The applicant was totally nervous (Court Book Page 94 Col 4-5).

   The applicant believes he was denied procedural fairness when the hearing was conducted not freely and fairly.

   2.The applicant claims that the RRT made a jurisdictional error when it made decision in which the finding of reasons are confused.  The applicant argues that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian law.

   Particulars

   The applicant claims that the Tribunal and the Department formed the opinion based on the limited information about the possible harm to the applicant.  The Tribunal ignored all other independent information about the attacks on the Applicant’s village.  RRT made unreasonable doubt about applicant’s documents related with his claims.

   The Department and the Tribunal made opinion with the Closed mind.  The applicant claims that he left Bangladesh because of continuous attacks and torture by the supporters of the Haque Group.  He had no protection from the local authorities because his attempts to get help from the local police failed because of monopoly of Haque groups and administrative authorities in Bangladesh.

   The RRT did not account any evidence of real chance of risk despite the facts his close friend was killed by the Haque group.

   3.The Tribunal made a jurisdictional error when it did not consider his claims under the Complementary protection Clauses.

   Particulars

   The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return to Bangladesh.  The applicant claims that the Tribunal blindly follow the decision of the Delegate.

   The Tribunal did not consider that how the applicant came to Australia by Boat taking high risk of life.  The RRT ignored intentionally the relevant consideration related with complementary protection set out in s.36(2)(a).  He is subjected to a significant harm as consequences of being tried for murder with possibility that death sentence would be carried out on him.

   The RRT ignored real test of persecution and made decision with closed mind.

1. Given the nature of the applicant’s allegations and the fact that this is an interlocutory hearing, it is not necessary to deal in great detail with the allegations made by the applicant in his amended application.

Ground 1

1. The particulars of the first allegation made in the amended application do not have a logical connection to that allegation.  The consequence of that fact is that the allegation does not identify what mandatory consideration was not taken into account by the Tribunal.  For that reason alone, the allegation is not made out.

2. The particulars principally raise questions going to the merits of the applicant’s visa application and for that reason do not disclose jurisdictional error.  The only matter of substance which the particulars raised was an allegation that the Tribunal’s hearing was not free or fair.  Such concepts are not particularly relevant to administrative reviews.  They do suggest a denial of natural justice but the applicant identified nothing which would bear out such an allegation.

Ground 2

1. The allegation in the second ground of the amended application, that the Tribunal’s reasons were confused, suggests that the Tribunal’s reasons were illogical.  A review of the Tribunal’s decision record, summarised earlier in these reasons, does not support such a contention.  The other element of the second allegation, concerning the real chance test, takes the matter no further.  There was no need for the Tribunal to apply the real chance test because it did not believe the applicant’s factual allegations.

2. The particulars of the second allegation alleged that the Tribunal failed to have regard to evidence but failed to identify what evidence in the Tribunal’s possession it failed to consider, if any, and why such an omission might have amounted to jurisdictional error.  The further allegation contained in the particulars, that the Tribunal had a closed mind, which is really an allegation of bias, was in substance no more than a complaint that the Tribunal did not believe the applicant.  Such a state of disbelief is insufficient to make out an allegation of bias.

Ground 3

1. The principal substance of the third ground of the amended application was that the Tribunal failed to consider the applicant’s claims by reference to the complementary protection criterion set out in s.36(2)(aa) of the Act. That is not correct. Under the heading “Complementary protection obligations” in paras.33 to 39 of its reasons, the Tribunal did consider the applicant’s claims by reference to issues of complementary protection.

2. Turning to the other matters raised by the particulars of this allegation, the Tribunal’s review was, to the extent the evidence permitted, thorough and detailed.  Contrary to the particulars of this allegation, the Tribunal’s review did not amount to a blind following of the delegate’s decision and was not demonstrative of a closed mind.

Generally

1. Finally, at the hearing of this application and in his affidavits the applicant raised issues going to the merits of his visa application.  As explained earlier, the Court has no power to conduct a review of the merits of the applicant’s visa application. 

Finding

1. For these reasons, I conclude that the substantive application for judicial review would not have reasonable prospects of success were time to be extended for the commencement of the proceedings.

CONCLUSION

1. I have concluded that the applicant has not provided a satisfactory explanation for his failure to attend the hearing of his application in this Court on 20 October 2015, has failed to provide a satisfactory explanation for his delay in commencing these proceedings and has not demonstrated that his substantive application would have reasonable prospects of success were the Court’s dismissal of the matter of 20 October 2015 set aside and he be granted an extension of time to commence the proceedings.  I therefore conclude that it is appropriate to dismiss the present application that the orders made on 20 October 2015 be set aside.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  29 February 2016