SZUMG v Minister for Immigration

[2014] FCCA 1212

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1212

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for extension of time to make application for review – application for injunction to restrain first respondent from removing applicant from Australia – where application one year and two months out of time – whether Applicant articulated independent claim not considered by Tribunal – whether Tribunal made finding on basis that Applicant could change his employment –– whether applicant has a reasonably arguable case – whether to grant extension of time to make application.

Legislation:  

Migration Act 1958 (Cth) ss.65, 477

S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155

Applicant: SZUMG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1536 of 2014

Judgment of: Judge Raphael

Hearing date: 6 June 2014

Date of Last Submission: 6 June 2014

Delivered at: Sydney

Delivered on: 6 June 2014

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Stanford Lawyers

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application for an extension of time to file application refused. 

2. Applicant to pay the respondents’ costs assessed in the sum of $1,331.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1536 of 2014

SZUMG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before the Court, as an urgent application, a request for an injunction to restrain the Minister for Immigration and Border Protection from proceeding with a Notice of Intention to Remove, a copy of which is found as annexure B to the affidavit of Charles Stanford affirmed on 5 June 2014.  It is said that arrangements have been made for the removal of the applicant tomorrow, Saturday 7 June 2014.  It is understood that the applicant is presently in immigration detention in Brisbane. 

2. The history of the matter is that the applicant is an Iraqi citizen of Bedoon ethnicity who arrived at Christmas Island by boat on 17 February 2012. He applied for a Protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth) and his application was considered by a delegate of the Minister who refused to grant him a protection visa on 12 October 2012. On 20 November 2012 the applicant applied to the Refugee Review Tribunal for a review of that decision. He was represented by a migration agent. He appeared before the Tribunal and gave evidence and made submissions. On 28 February 2013 the Tribunal determined to affirm the decision under review.

3. The relevant ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that during the course of 2010/11 he had taken up contract work driving passengers to the Basra airfield.  These persons were not themselves Americans but he told that it came to pass that they were considered to be persons who had worked for Americans, and on 5 April 2011, whilst on his way to the airport to pick up passengers, a car approached him with four persons in it.  One of those persons was armed with a machine gun and another with a pistol.  The man with the pistol pointed it at the applicant and started shooting but he braked and swerved onto the pavement and did a U-turn and drove back.  The applicant considered this was a warning for him not to continue in this occupation and, in fact, that is what occurred.  He changed his address in May 2011 and then returned to his previous occupation as a taxi driver. 

4. At [67] the Tribunal notes:

   “The applicant said that after this he returned the minibus to the owner and then went home and stayed there until he moved house on 1 May 2011, to an address 10 or 15 minutes away.  He then resumed driving his own car as a taxi, but now only part-time.  This was because he was scared of the unknown and concerned about the possible identity of passengers.  There were no further threats and nothing else happened to him after this.”

5. The Tribunal, in its decision, considered the story told by the applicant and came to the general conclusion that it was credible.  It then looked at the independent country information concerning the situation in Iraq since 2011 when the United States forces left that country and concluded as follows:

   “[100] Although the applicant was not himself working for or with the Americans, he was successfully dissuaded from driving those who were.  Nothing happened subsequently and it is not immediately apparent why there might be a renewed threat or chance of harm now, almost two years later…

   [102] However, the Tribunal is not satisfied that everybody who had a former association with foreign forces continues at risk, including in a situation such as this where the applicant was merely driving the persons who had the association with foreign forces. 

   [103] A careful examination of the detailed information set out in footnotes 321 to 329 of the Guidelines in relation to the above quoted passage [at 101] supports a more qualified assessment.  Four specific incidents were cited since the beginning of 2011 (significantly none since October 2011) and all of these involved interpreters, translators, or informants working directly for the Americans rather than persons in the applicant’s circumstances. 

   [104] The Tribunal is not satisfied that there is any continuing interest in the applicant at all by those who threatened and attacked him in March/April 2011.  The Tribunal is satisfied that these incidents (serious as they were) do not give rise to a real chance of persecution of the applicant in the reasonably foreseeable future, whether because of an imputed political opinion or membership of a relevant particular social group.”

6. On 5 June 2014 the applicant filed an application with this Court seeking both the urgent injunctive relief, concerning which this decision is given, and also a judicial review of the Tribunal’s decision.  There were two grounds of that application.  The first was:

   “The Tribunal constructively failed to exercise its jurisdiction in that it failed to address one of the claimed bases of fear of persecution.”

7. The claimed basis was the applicant’s fear of driving a taxi referred at [67] of the Tribunal’s decision record and extracted at [4] of these reasons. 

8. The second ground of application was:

   “The Tribunal erred at [100] in assessing the claim relating to the applicant having already driven persons working for the Americans on the basis of an expectation that the applicant take steps to avoid persecution if returned to his country by not driving those working for or with Americans.”

9. The applicant faces a number of hurdles in obtaining the relief he seeks. The first and most significant one is that his application is very seriously out of time. Under s.477 of the Act an applicant is required to file any application for judicial review within 35 days of the decision of the Tribunal. In this case the application for review was not filed until one year, two months, and one day after the decision. There is on the record an affidavit of Ian Rintoul, affirmed on 5 June 2014, which attempts to explain the reasons for the delay. This is done in the form of questions and answers between, presumably, Mr Rintoul and the applicant.

   “Q:  You have to explain why there is such a long delay in commencing proceedings in the Federal Circuit Court. 

   A:  After my claim was rejected by the RRT I got no guidance about the need to find a lawyer and go to the Federal Court (sic).  I received letters in English but I couldn’t understand them and in Sydney I was lost as to where to find help.  The lawyer I had during the RRT hearing did not give me any more guidance.  After my first rejection I received help in going to the RRT but after the RRT rejection I was on my own. 

   Q:  Did you take any advice about seeing a lawyer?  If not why not?  Was it for reasons of language difficulty or lack of money or lack of knowledge of the Australian legal system?  Other reasons? 

   A:  I had no clear advice that I needed to find a lawyer, I thought Immigration would help me.”

10. It appears that the applicant did not obtain any legal advice until he found himself in immigration detention in Brisbane in May 2014.  He had, however, done something.  He had been to see a migration agent who had told him that he was out of time to apply to this Court and that, instead, he could make an application to the Minister.  This application was made, although it is not clear exactly when that occurred.  It was decided by the Assistant Minister for Immigration and notice of her decision was sent to the applicant on 25 November 2013 at an address in Queensland.  The Minister had determined not to interfere with the decisions of the delegate and the Tribunal.  25 November 2013 is over six months before the application that the Court is considering was filed and so the applicant is seriously out of time.

11. The position adopted by this Court in respect of these applications is that, noting always the very severe possible effects of a refusal, it tends towards leniency where it is able to see, within the application, at the very least a reasonably arguable case.  However, the extent of that leniency is always juxtaposed with the length of the delay and the reasons given for it.  An apparently particularly egregious alleged jurisdictional error will excuse quite a considerable delay.  It was for this reason that the Court was required to consider the submissions made by the parties as to the existence of jurisdictional error in this particular case.

12. The applicant’s argument is that [67] of the Tribunal decision articulates a claim made by the applicant independent of the claim made by him arising out of the fear he had from driving the minivan, and that this independent claim was not given appropriate consideration.  The Court believes that in order to assess whether or not there is a substantially arguable case in relation to this allegation it is necessary to look at the Tribunal’s decision record as a whole.  It seems to the Court from looking ahead from [67] through to [72] that the applicant’s point about being concerned about the identity of his passengers became subsumed into a general concern about a continuing danger because of his minicab passengers: 

    “[70] Asked what he thought would be the problem or problems should he now return to Iraq, the applicant replied murder.  Asked by whom and for what reason the applicant replied he did not know exactly but feels he made a big mistake by working with the Americans.  The Tribunal observed that he had not worked with the Americans; he had driven people who did.  The applicant replied that he had assisted by driving these people to their workplace. 

    [71] The applicant confirmed that his fear is of harm by unknown persons because in early 2011 he had been driving these people to the airport…”

13. It does seem to the Court, with respect to the applicant, that that was the nature of his claim and that there was not, in fact, any separate claim arising out of some general fear of anyone who got in to his taxi.  Indeed, it is difficult to understand such a possible fear if the applicant was prepared to drive his taxi, even part-time.  In those circumstances, and with regard to this particular claim, the Court believes that the arguable case is not sufficiently high to warrant the disregard of the statutory time limit where substantive reasons for delay have been given for only than three months out of the total of 14 months.

14. In regard to the second ground of application, this is what is known as an “S395 point”, it being suggested that the Tribunal fell into jurisdictional error by coming to its conclusion on the basis that the applicant would change his employment: S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.[1]  Interestingly, there is now some possibility that S395 will be reviewed as Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155[2] has been accepted for hearing by the High Court on an appeal from the Minister.  However, at the moment, S395 is the law and so if the Tribunal did indeed come to the conclusion suggested it would be in error. 

    [1] “S395”.

    [2] “SZSCA”.

15. Mr Baird, who appears on behalf of the Minister, argues that the S395 point does not come to be considered on the facts, and that the Tribunal is nowhere saying that the applicant would have to change his behaviour.  The Court has considered the Tribunal’s decision record from [94] to [104] and cannot see in it any suggestion by the Tribunal that the applicant should not continue to work as a taxi driver, either full-time or part-time.  These paragraphs deal with what the Court has already considered to be the applicant’s real argument, that he would be targeted as a person who had assisted the Americans, and the Tribunal had come to the conclusion that he would not.

16. Whilst the Court is not required to come any definitive view about these matters, they are important in coming to such a view about whether or not leave should be granted to file the applications to the Court out of time and grant the injunction.   The Court is of the view that it cannot be said to be in the interests of justice to permit such a lengthy extension of time in all the circumstances of this particular case. The leave to file the application out of time is refused. The applicant must pay the respondents’ costs assessed in the sum of $1331.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  11 June 2014