SZUFY v Minister for Immigration

[2014] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1682

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant the applicant Protection (Class XA) visa – Application set down for show cause hearing pursuant to reg.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for relief claimed – Application dismissed pursuant to reg.44.12(1)(a).

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476, 477(2)

Federal Circuit Court Rules 2001 (Cth), reg.44.12(1)(a)

MZZVO v Minister for Immigration and Border Protection [2014] FCCA 1447
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant: SZUFY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1086 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 18 July 2014

Delivered at: Sydney

Delivered on: 18 July 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of an Arabic interpreter.

Solicitor for the First Respondent: Ms H. Dejean of Australian Government Solicitor

The Second Respondent: The Second Respondent filed a submitting notice of appearance.

ORDERS

1. The time for the filing of the application filed in these proceedings be extended up to and including 22 April 2014, pursuant to s.477(2) of the Migration Act 1958 (Cth).

2. The application be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1086 of 2014

SZUFY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in the Federal Circuit Court on 22 April 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed a folder on 6 June 2014 which was indexed, labelled and paginated, containing all documents which may be relevant ti the hearing.  The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representative.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a citizen of Lebanon who was born in and lived in Tripoli (CB 3). He first arrived in Australia as the holder of a Student visa on 6 October 2009 (CB 5), returning to Lebanon twice after that time. On 19 December 2012, the applicant applied for a Protection visa (CB 1-61). A delegate of the Minister refused to grant the applicant a Protection visa on 14 August 2013 (CB 66-85). The applicant then lodged an application for review with the Tribunal on 22 August 2013 (CB 86-92). The applicant and his representative attended a hearing before the Tribunal on 28 February 2014 (CB 106-107).

3. The applicant claimed he came from a strict Muslim family and began to realise he was attracted to men during high school.  He claimed he had been a practicing bisexual since his arrival in Australia.  The applicant claimed in Tripoli, gays are attacked and denied jobs, and he may be killed by his father or Islamists if he returns.  The applicant claimed he had his first gay relationship in Australia, and has had other relationships with both men and women as well.  The applicant gave evidence no one in Lebanon knew about his sexuality (CB 2, 122-123).

The Tribunal’s Decision

1. The Tribunal made its decision to affirm the decision of the Minister’s delegate to refuse to grant the applicant a Protection visa on 10 March 2014 (CB 121-127).  It is convenient to note the applicant accepts the Tribunal’s decision was correct and this is discussed below.

2. In its Decision Record, the Tribunal reasoned and concluded as follows:

   a)The applicant’s claims lacked credibility and he fabricated those claims in order to be granted a Protection visa (CB 125 at [27]);

   b)The Tribunal did not accept that the applicant was either bisexual or homosexual (CB 125 at [28]);

   c)Due to the applicant’s inability to provide any evidence of his relationships (such as witnesses, clear photographs, details, dates), the Tribunal found that “Andy” did not exist (CB 125 at [29]);

   d)The Tribunal did not accept that the applicant’s father was controlling, as the applicant travelled freely and his father supported him financially (CB 125-126 at [34]);

   e)The applicant had been in Australia since 2009, but did not lodge his Protection visa application until December 2012, indicating that the applicant did not fear serious harm (CB 126 at [35]);

   f)Given its rejection of the applicant’s claims in respect of his bisexuality, the Tribunal did not accept he would feel the need to express any feelings about his sexuality on his return to Lebanon (CB 126 at [35]); and

   g)As the Tribunal did not accept the applicant was bisexual or would be imputed with being bisexual, or that he has a controlling father who would harm him, in addition to not satisfying criteria under s.36(2)(a) of the Migration Act to be a refugee, the applicant did not satisfy the complementary protection criterion (s.36(2)(aa) (CB 126 at [37]-[38]).

Current Proceedings

1. The applicant lodged his application for review with this Court on 22 April 2014.  It pleads the following grounds:

   1.  The migration agent misled me and ripped me off with $10,000 and made up a story and encouraged me to go along with it.  I regret listening to him and doing this.

   2.  The Tribunal is correct with the decision made but I decided to take it to Court because I want my lawyer who advised me to be penalised.

   3.  I contacted the lawyer and demanded my money back and he threatened me that he will report me to Immigration.

   4.  I want to give evidence in the Court to prove that my story was fabricated by my lawyer not me.  I will also provide an affidavit to support this.

2. The applicant has made an application for an extension of time to bring his application to this Court, on the basis that it was filed eight days out of time (see s.476 of the Migration Act). As there is no identifiable prejudice to the Minister, I have granted the application pursuant to s.477(2) of the Migration Act.

3. The Minister seeks dismissal of the application pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”) on the basis that no arguable case for relief is raised in the application. The Minister also seeks a refusal of an extension of time to bring the application in this Court, however, I am of the view this should be granted as the delay is short and there is no prejudice to the Minister.

4. On 9 July 2014 the applicant filed an affidavit sworn by himself on the same day, annexing what appears to be a transcript of the hearing before the Tribunal he has prepared on his own. 

5. At the hearing on 18 July 2014 the applicant appeared with the assistance of an Arabic interpreter.  Ms Dejean appeared on behalf of the Minister.

Applicant’s Submissions

1. The applicant elected not to file any written submissions, only filing the Affidavit noted at [5] above. The applicant instead elected to make oral submissions.

2. The applicant’s oral submissions complained about the conduct of migration agents he had previously engaged to assist him in obtaining a visa to remain in Australia.  When his application for a Temporary Resident visa was unsuccessful, the applicant engaged a new migration agent who, the applicant claims, encouraged him to fabricate claims and apply for a Protection visa (the same application that is the subject of review before this Court).

3. The applicant claims his former migration agent told him to fabricate a claim of him being bisexual to support his Protection visa application, which is untrue.  The applicant claims he was very unsure about this course of action, but felt he had no choice but to go along with it.  He claims that this sort of behaviour by solicitors and migration agents should not be allowed to happen and it has been very unfair to him.

Minister’s Submissions

1. Ms Dejean contends, in respect of the applicant’s affidavit, the transcript is not relevant to any of the grounds of review pleaded in the application.  Further, the form of the transcript is also objectionable.

2. Ms Dejean contends none of the grounds of review in the application identify any matter which could constitute jurisdictional error on the part of the Tribunal.  Further, it is apparent from Ground 2 of the application the applicant does not dispute the factual findings of the Tribunal.  It is also apparent from Ground 1 the applicant gave evidence to the Tribunal which he knew to be untrue.

3. The Minister contends that if the grounds are collectively construed as an allegation that there has been fraud on the Tribunal, this cannot succeed.  The applicant accepts he actively participated in the deception on the Tribunal, presumably by giving false evidence in respect of his sexuality.  Even if that false evidence was given at the encouragement of his legal adviser/migration agent (a matter which has not been proven), that deception cannot now vitiate the decision of the Tribunal.  Ms Dejean refers the Court to the authority of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 where the High Court held per curiam at [53]:

   53.    … [T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made …

4. Ms Dejean also contends what is further apparent from the applicant’s grounds of review is that the applicant in these proceedings is attempting to expose his representative as fraudulent and/or dishonest.  However, this is not the forum or the jurisdiction for the determination of such an issue, and the Court should not be called upon to adjudicate that matter if it has not led the Tribunal into jurisdictional error.

5. Ms Dejean further indicated at the hearing that she had provided the applicant with contact information for the Migration Agents Registration Authority and for the Law Society, because if the applicant’s complaints regarding his migration agent/solicitor are legitimate there are actions those bodies can take in that respect.

6. In conclusion, the Minister contends there is nothing before the Court that comes even close to establishing fraud on the Tribunal.  The Tribunal discharged all of its obligations and was not interrupted in doing that by anything that was done by the migration agent directly to the Tribunal, rather by the applicant’s own actions.  The application should be dismissed.

Consideration

1. At the hearing I expressed my view that I was satisfied the application should be dismissed pursuant to reg.44.12(1)(a) of the FCC Rules and costs should be awarded to the Minister, fixed in the sum of $3,000.

2. The application purports to raise four grounds of review.  On a fair reading, these grounds should be read together.  The only allegation in these grounds that could purport to substantiate jurisdictional error on the part of the Tribunal is an allegation of fraud on the Tribunal.  No affidavit supporting any claim of fraud was filed by the applicant, despite leave being granted.

3. To substantiate such an allegation it would be necessary to establish fraud by the migration agent such that the effect was that the Tribunal was disabled from discharging its statutory function.  Her Honour Judge Whelan stated in MZZVO v Minister for Immigration and Border Protection [2014] FCCA 1447 at [20]:

   20.    In other words, it would only be in exceptional cases where fraud on the part of a migration agent is such that, the Tribunal has been prevented from conducting a hearing as specified in the statutory context, that the court would be able to grant the relief sought by the Applicant in this case. …

4. I note the authority referred to above by Ms Dejean and accept the Minister’s submissions in this respect correctly address the claim before the Court.  There is no evidence before the Court to support such an allegation.  Accordingly, the application must fail.

5. Further, I have reviewed the contents of the Court Book, particularly the Tribunal’s Decision Record, noting the applicant raises no issue with the actual findings of the Tribunal.  On a fair reading, no jurisdiction error on the part of the Tribunal can be found.

Conclusion

1. For the reasons stated above, the application has not raised an arguable case for the relief claimed and should be dismissed pursuant to reg.44.12(1)(a) of the FCC Rules, with costs awarded to the Minister.

2. I further note that should the applicant wish to pursue any claims against his former migration agent, this is not the appropriate forum for the raising of those claims.  The details of the two organisations given to him by the Minister’s solicitor should be contacted by the applicant to ventilate any such claims.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:         18 July 2014