SZUIM v Minister for Immigration

[2016] FCCA 456

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 456

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476, 477(1), 477(2)

SZQGO v Minister for Immigration and Citizenship & Anor [2012] FCA 177; (2012) 125 ALD 449
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252

Applicant: SZUIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1305 of 2014

Judgment of: Judge Manousaridis

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

The Applicant appeared in person assisted by an interpreter.

Solicitor for the Respondents: Ms Z Taylor of Clayton Utz

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1305 of 2014

SZUIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Lebanon, applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act. The remedy the applicant seeks relates to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.

2. The need for that application arises because the Tribunal made its decision on 27 June 2013, but the applicant applied to this Court for judicial review on 15 May 2014 which is significantly greater than the 35 day period prescribed by s.477(1) of the Act.

Principles governing exercise of power under s.477(2) of Act

1. Under s.477(2) of the Act, the Court may order the extension of the 35 day time period if satisfied of two things. First, the application for such order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   [1] [2013] FCA 1284; (2013) 139 ALD 252 at [47]

   [47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b) Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

3. In most cases, the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship & Anor in the context of extending time for making an appeal, the “Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2]

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

Explanation for delay

1. The explanation the applicant gives for his delay is that he was not aware of his rights to apply to this Court, and he was unaware of any time limits. Even if true, these are not adequate explanations for delay. Even if, however, these explanations were given under oath (which they were not) I would not have accepted them. The applicant acknowledged receiving the “Information Sheet” that was attached to the Tribunal’s notification of refusal sent to the applicant on 27 June 2013. The “Information Sheet” states, among other things:

   If you think that the decision of the tribunal is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.

2. The applicant also relied on a belief that the Tribunal made a jurisdictional error. Whether or not the Tribunal made a jurisdictional error, is relevant to whether an order extending time should be made. A belief that the Tribunal made a jurisdictional error does not, however, afford an explanation for delay.

3. I next consider whether the applicant’s proposed claims are sufficiently arguable to warrant an order to extend time.

Merits of proposed claims

Claims for protection

1. The alleged facts on which the applicant’s claims for protection were based are as follows. The applicant was born in a village in Lebanon. His father is, and since 2004 has been, the mayor of the village. As mayor, the applicant’s father has been a leader in organising humanitarian assistance for Syrian refugees fleeing to Lebanon to escape the Syrian conflict. That assistance included providing food, medicine, organising education for children, and seeking donations and other assistance from surrounding villages. The applicant’s father is also an active and prominent member of the Future Movement.

2. Commencing in May 2011, the applicant’s father received death threats at least once every one to three days from Syrian agents. The threats were directed to the applicant’s father and the applicant’s father’s family. That resulted in the applicant’s father going into hiding in early 2012. Syrian agents have also threatened they will kill the applicant as soon as the applicant returns to Lebanon. The applicant received telephone calls from private numbers in Australia from someone with a Syrian accent who told the applicant he will be killed if he returns to Lebanon.

Tribunal’s reasons

1. The Tribunal accepted the applicant’s father is and since 2004 has been the mayor of the village, that the applicant’s father has been a leader in organising humanitarian assistance to Syrian refuges, and is a member of the Future Movement. The Tribunal did not accept, however, that the applicant’s father received death threats. The Tribunal relied on two matters.

2. The first was country information and the absence of country information. There were no reports of the Syrian government harming Lebanese citizens who assist Syrian refugees in Lebanon. Country information indicated that it is common for Lebanese citizens to provide support to more than 400,000 Syrian refugees sheltering in Lebanon. The Tribunal was of the view that, given this widespread assistance to Syrian refugees, if Syrian agents had targeted mayors or citizens assisting Syrian refugees, the Tribunal would have expected there to be some independent reports of its occurrence.[3]

   [3] CB154-155, [15]

3. Additionally, there was country information that suggested that Hezbollah and the Lebanese government have expressed support for Syrian refugees entering Lebanon.[4] Further, the Tribunal was unable to find reports of Syrian agents kidnapping, detaining, harassing or mistreating ordinary Lebanese citizens who publicly criticise President Al Assad or the Syrian government. The Tribunal did not accept the applicant’s father had a political profile that would make him of interest to the Syrian regime or pro-Syrian agents in Lebanon.[5] Finally, there was no independent evidence before the Tribunal to suggest that members or supporters of the Future Movement were being targeted in Lebanon.[6]

   [4] CB155, [15]

   [5] CB155, [16]

   [6] CB155, [17]

4. The second matter on which the Tribunal relied for not accepting the applicant’s claim that his father was the subject of threats is a file note in relation to the applicant prepared by a compliance officer of the then-named Department of Immigration and Citizenship (Department) on 10 April 2012. The file note did not record the applicant as having expressed fears about returning to Lebanon at that time, or that he had received death threats, or that the applicant’s father had received death threats.

5. The Tribunal also did not accept the applicant’s claims that he had received death threats in Australia. First, the Tribunal found the applicant’s evidence to be vague and inconsistent. The Tribunal noted that the applicant initially said that he “used to” get threats from a private number, but then later claimed he was still receiving death threats.[7] Second, there was the Compliance Officer’s file note which did not record the applicant stating he had received any death threats in Australia.[8] Third, the Compliance Officer’s file note recorded the applicant inquired if he could lodge a “visa for marriage”. The Tribunal found this indicated that the applicant had a desire to stay in Australia permanently, and was looking for whatever visa he could get which would enable him to stay in Australia.[9]

   [7] CB157, [20]

   [8] CB157, [22]

   [9] CB158, [24]

Proposed grounds of application

1. The application for review, as amended at the hearing, contains four grounds of review. The first is as follows:

   The tribunal erred in finding that my father does not have a political profile that would make him of interest to the Syrian Regime or pro-Syrian agents in Lebanon.  Reports relied upon by the RRT relate to ordinary Lebanese citizen.  My father is a Mayor of a large village and is very influential in the area and vocal as anti-Syrian regime figure. (paragraph 16)

2. The applicant, who is not legally represented, did not make any submission in relation to this ground. The ground raises no arguable case of jurisdictional error. It only manifests disagreement with the Tribunal’s findings of fact which the Tribunal based on country information that was available to it. The Court does not have jurisdiction to determine wether the Tribunal was correct in the findings it made. It was a matter for the Tribunal to determine what weight it should give to country information, at least where it is reasonably open to the Tribunal to consider such country information is relevant. It is not reasonably arguable that it was not reasonably open to the Tribunal to consider relevant the country information on which the Tribunal relied for finding the applicant’s father did not have a political profile that would make him of interest to the Syrian regime. Ground 1, therefore, has no reasonable prospects of success.

3. The second ground of application is as follows:

   The Tribunal erred in not considering claims in s424A response (paragraph 18)

4. The applicant did not make any submissions in relation to this ground. This ground appears to relate to a claim the applicant made in his response to a letter dated 24 April 2013 the Tribunal sent to the applicant pursuant to s.424A of the Act.[10] The applicant responded by letter dated 25 June 2013.[11] Item 9 of the Tribunal’s letter referred to the applicant not referring at the Departmental interview on 13 July 2012 to the applicant’s father or family going into hiding in Lebanon. In answer to items 7, 8, and 9 of the Tribunal’s letter, the applicant said that “at the time of danger did go into hiding and did not stay in one place and to date they are hiding and only visit our family home when it is dark or accompanied by armed group available in certain time to attend meeting”. The Tribunal referred to this response, and treated it as a new claim by the applicant that the applicant’s father was accompanied by an armed group when attending meetings. The Tribunal did not accept that claim because it expected the applicant would have made that claim earlier if it were true.[12] Ground 2, therefore, has no reasonable prospects of success.

   [10] CB141-144

   [11] CB147-148

   [12] CB156, [18]

5. The third ground of application is as follows:

   The tribunal erroneously relied on a departmental File Note 10/APR/12 as evidence that I was not in fear.  The File Note was in the context of a routine visit.  I was able to renew my student visa then and did not think that I was forced to depart Lebanon then.  Not all of the discussion with the officer was recorded on the system.  The File Note is contradictory.  How can the officer say “… he wishes to remain in A/a and study…” Followed by “… he advised that he needs a little time … Then he can depart A/a …” (paragraph 21)

6. This ground seeks to challenge the factual findings the Tribunal made on the basis of the Compliance Officer’s file note. That raises no arguable case of jurisdictional error. It only manifests disagreement with the Tribunal’s findings. It is not reasonably arguable that these findings were not reasonably open to the Tribunal to make for the reasons it made them. Further, there is no arguable basis for suggesting the Tribunal did not give the applicant notice of the potentially adverse inferences that were available to be drawn based on the matters contained and not contained in the file note.

7. At the hearing, I granted the applicant leave to rely on a fourth ground contained in a document the applicant filed in Court. That document included the following (emphasis in original):

   The tribunal member has erred (para 35-37) in considering the complementary protection criteria as a separate issue requiring a separate assessment.

   The tribunal erroneously assumed that as I do not have a well-founded fear of persecution for a convention reason…then…the tribunal is not satisfied that there are substantial grounds for believing that…there is a real risk I will suffer significant harm.

   This is without any proper or complete assessment of the complementary protection criterion or the significant harm criterion.  This is demonstrated by the fact that they just copied and pasted information to my decision record notably as in para 37…being removed from Australia to China which highlights the improper disposition of cases.

   This demonstrates that the tribunal did not even consider the criterion properly and not even considered the right country being Lebanon not China where I will suffer significant harm.  As a result, the tribunal did not consider whether I will be subject to significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon.

   I believe this amount to jurisdictional error and the matter should be remitted back to the tribunal to be determined according to law.

8. This ground makes two claims. The first is that the Tribunal assumed that if the applicant did not have a well-founded fear of being persecuted for a Convention reason,[13] then it necessarily followed that the applicant did not have a claim for complementary protection as provided for by s.36(2)(aa) of the Act. The Tribunal did not proceed on any such assumption.

   [13] The reference to the Convention being, of course, a reference to Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)

9. It is true the Tribunal referred and relied on the findings it made in relation to the applicant’s claim for protection based on his claim to be a refugee within the meaning of the Convention in concluding the applicant did not face a real risk of suffering significant harm if he returns to Lebanon. It is beyond argument that it was permissible for the Tribunal to proceed in this way; there was no matter that arguably was before the Tribunal that it could reasonably have considered to be relevant to a claim based on complementary protection that was not also relevant to the applicant’s claim based on his being a refugee within the meaning of the Convention. In other words, there was nothing arguably before the Tribunal that could reasonably have suggested there was anything other than a complete overlap between the matters that could reasonably be regarded as relevant to the applicant’s claims based on his being a refugee, and the applicant’s claim based on complementary protection.

10. The second claim the ground makes is based on the following passage from the Tribunal’s reasons for decision:[14]

    Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

    [14] CB161, [37]

11. The applicant submits that this passage indicates the Tribunal did not properly consider the applicant’s claims based on complementary protection.

12. It is apparent the Tribunal copy and pasted this passage from another decision. That by itself, however, does not raise any arguable case that the Tribunal did not consider the applicant’s claim. The passage must be assessed in the context of the Tribunal’s reasons as a whole. When that is done, and when regard is had to the fact that the Tribunal decided Lebanon was the applicant’s country of reference, there is no arguable case that the Tribunal did not consider the applicant’s claims. The Tribunal’s inclusion of “China” rather than “Lebanon” cannot reasonably be viewed other than as a slip. Ground 4, therefore, has no reasonable prospects of success.

Other matters

1. The length of the applicant’s delay in making his application for judicial review is substantial and, when considered with the absence of any adequate explanation for the delay, weighs heavily against the Court exercising its discretion in favour of making an order extending time. If no order extending time is made, the applicant will suffer no prejudice because the grounds of review on which the applicant proposes to rely if an extension were granted do not have merit and, for that reason, are not sufficiently arguable to justify an order extending time. If an order were made, on the other hand, the Minister would suffer prejudice in his incurring costs in resisting an application based on insufficiently arguable grounds for the relief it seeks, and the Minister may be unable to recover the costs he incurs.

Conclusions

1. I am not satisfied it is in the interests of the administration of justice that I should make an order under s.477(2) of the Act to extend the time by which the applicant may make an application for relief under s.476 of the Act. I propose, therefore, to dismiss the application for an extension of time. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 March 2016