SZUNS v Minister for Immigration

[2015] FCCA 2334

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2334

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZQGO v Minister for Immigration and Citizenship & Anor [2012] FCA 177; (2012) 125 ALD 449
SZTSU v Minister for Immigration & Anor [2014] FCCA 1697

Applicant: SZUNS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1680 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 May 2015

Delivered at: Sydney

Delivered on: 28 August 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms A Wong of DLA Piper Australia

ORDERS

1. The application 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 applicant pay the first respondent’s costs.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1680 of 2014

SZUNS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant 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 in relation to a decision made by the second respondent (Tribunal).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 13 December 2013 and the applicant filed his application for judicial review on 20 June 2014. The applicant, therefore, is some 154 days out of time.

Principles for extending time under s.477(2)[1]

[1] SZTSU v Minister for Immigration & Anor [2014] FCCA 1697

1. Under s.477(2) of the Act, the Court may order the extension of the 35 day time period if two things are satisfied. 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 SZMFJ v Minister for Immigration & Anor[2] Nicholls FM (as his Honour then was) identified a non-exhaustive list of matters that may be relevant in considering whether it is necessary in the interests of justice to order an extension of time. These matters are the extent of the delay and the reason for the delay, whether there is any merit in the application, whether there is any prejudice to the respondents if an extension is granted, impact on the applicant of an extension of time not being granted, and the interests of the public at large. 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”.[3]

   [2] [2009] FMCA 771 at [44]

   [3] [2012] FCA 177; (2012) 125 ALD 449 at [29]

3. When considering an application for an extension of time under s.477(2) of the Act, it is also necessary to bear in mind r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) which requires that any application for an extension of time be supported by an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.

Grounds for extension of time

1. In his application, the applicant lists the following matters as grounds for seeking an extension of time:

   1.      I am very fearful of returning to Lebanon.

   2.     It is a matter of life and death that my case is heard.

   3.If I am forced to return I will suffer immensely so it would be just to hear my case.

2. These grounds, even if accepted as true, afford no ground for an extension of time. They do not purport to explain the delay; and the grounds only repeat the claims for protection the applicant advanced before the Tribunal.

3. At the hearing the applicant asserted that the reason he did not file an application within the 35-day period was the negligence or inattention of his migration agent (Ms X). The applicant said that Ms X applied under s.417 of the Act for Ministerial intervention without his authority in circumstances where he believed Ms X applied to the Court for a review of the Tribunal’s decision. The applicant repeated his assertion in the witness box.

4. I do not accept the applicant’s evidence. First, there is in evidence a Form 956 dated 9 January 2014 which purports to appoint Ms X as the applicant’s agent in relation to a Ministerial intervention.[4] The form is purportedly signed by the applicant although the applicant said he did not know whether the signature on the form was his. It is inherently unlikely that a registered migration agent would have applied for Ministerial intervention under s.417 of the Act without the instructions of the person on behalf of whom the agent applied for such intervention. Second, the applicant provided no other evidence which he could reasonably be expected to have in his possession that could shed light on his claim that his migration agent applied for Ministerial intervention without the applicant’s authority. Of particular relevance is the absence of any invoices from Ms X. The applicant accepted Ms X issued invoices to him but, the applicant claimed, he could not find all of them. Those invoices may have described the services Ms X performed.

   [4] CB120-122

5. In any event, there is in evidence a letter dated 28 April 2014 from the Department of Immigration and Border Protection to the applicant informing the applicant that the Assistant Minister for Immigration and Border Protection had not exercised her power under s.417 of the Act. The applicant accepted he received this letter. The applicant said that he did not apply for judicial review until 20 June 2014 because he did not have money to brief a lawyer, and he did not know what he should do. Even if true, that is not a satisfactory explanation for the delay between the time he received the letter dated 28 April 2014 and 20 June 2014, when the applicant filed his application for judicial review.

6. I conclude, therefore, that the applicant has not given a satisfactory explanation for his delay in making an application for judicial review of the Tribunal’s decision. This conclusion, however, would not bear great weight if I were to be satisfied the application the applicant proposes to bring, if I were to order an extension of time, has some merit. It is to that question I now turn.

Claims for protection

1. The applicant’s claims for protection were based on the following alleged facts. The applicant is a Sunni Muslim from Lebanon. He is opposed to the power and rule of the Hezbollah in Lebanon.[5] In 2010 Hezbollah members stormed the applicant’s home and terrorised him and his family. Since that time the applicant and his family have been restricted and harassed by Hezbollah members and the applicant stopped attending prayer at the mosque so as not to aggravate Hezbollah.

   [5] The applicant’s claims are taken from the claims written in his application for a protection visa at CB19.

2. Following the incident the applicant has been keen on doing what he can “to stop their strength in Lebanon”. The applicant joined the March 14 Alliance, he attended local area meetings twice a month, and recruited young men to the meetings. In February 2012 two of the men from the group were kidnapped and their whereabouts are still unknown. After this incident the local meetings stopped.

3. In March 2012 the applicant was discussing the kidnapping with two other members at a coffee shop when they were approached by a man who wanted to talk to them about a business deal. The applicant and the two members gave their details to the man. The next night the applicant was taken from his home by force, blindfolded and taken in a van to an old factory. The applicant’s friends were also at the factory, as well as the man the applicant met the previous day. The applicant and his friends were interrogated and beaten. When they were released the applicant and his friends were warned not to meet except to bring young men to fight for the cause of Hezbollah.

4. Ten days after the applicant’s release he was visited by the man from the coffee shop who was checking on the applicant’s progress in recruiting men to fight for Lebanon. One of the applicant’s friends also experienced a similar incident. That same evening the applicant and his friend went to the police station to lodge a complaint but there was nothing the authorities could do. The applicant claims he is being monitored and if he becomes defiant there is a high chance he will be kidnapped. The applicant fears harm from Hezbollah members and intelligence.

Tribunal’s reasons for decision

1. The Tribunal found the applicant was not a member or supporter of the 14 March Alliance. The Tribunal considered the applicant had a very shallow knowledge of the 14 March Alliance. It found that, although claiming to be a recruiter of people to the 14 March Alliance, the applicant “was unable to relate any policies of the Alliance except in the most basic terms by indicating its being in opposition to” Hezbollah. Second, the applicant had no corroborating evidence of his membership of the 14 March Alliance.

2. On the basis of its finding the applicant was not a member or supporter of the 14 March Alliance, the Tribunal found the applicant did not attend rallies organised by the Alliance, he did not suffer harm as a result of his being associated with the Alliance, the applicant’s family home was not stormed by Hezbollah, the applicant was not targeted by Hezbollah, the applicant’s friends in the Alliance were not kidnapped, and the applicant’s family were not supporters of the Alliance. For these reasons, the Tribunal found the applicant’s overall credibility to have been “seriously undermined”.[6]

   [6] CB116, [47]

3. The Tribunal also concluded that the applicant was not targeted by Hezbollah as a recruit or as a threat to them.[7] The Tribunal relied on country information detailing the recruitment activities of Hezbollah and the situation of a person that is of particular interest to Hezbollah.[8] The Tribunal put this information to the applicant for comment[9] but preferred the country information over the evidence given by the applicant because it came from an independent source.[10] It held the applicant’s fear of suffering harm from Hezbollah was not credible.[11]

   [7] CB116, [48]

   [8] CB112-115, [43]

   [9] CB111-112, [36]-[37]; CB112, [40]

   [10] CB116, [48]

   [11] CB116. [48]

Merits of application

1. The application does not set out any grounds of application. If I were to have regard only to the application, therefore, the application would have no merit if I were to grant an extension of time. There was before the Court, however, material which I propose to consider to determine whether the applicant would have any meritorious claim for judicial review of the Tribunal’s decision if I were to make an order under s.477(2) of the Act.

2. First, there is the affidavit the applicant filed with his application on 20 June 2014. The affidavit, however, only reiterates the claims for protection the applicant made before the Tribunal. The affidavit, therefore, discloses no arguable claim of jurisdictional error because the Court does not have jurisdiction to determine whether the applicant has a valid ground for protection.

3. Second, there is the assertions the applicant made before me, both from the bar table, and from the witness box, relating to what Ms X said to the applicant after the hearing before the Tribunal. Before the applicant went into the witness box, I understood him to have submitted that he expected Ms X to provide to the Tribunal additional submissions or material after the hearing, but that Ms X failed to do so. When giving evidence, however, the applicant did not go so far. He said that after the hearing Ms X said to him that Ms X had already sent everything to the Tribunal and that everything had been done and finished. Ms X also said, according to the applicant, that the applicant should not worry because Ms X knew the applicant’s case and she will complete everything.

4. I am not satisfied the applicant intended to say that Ms X had informed him that she would provide additional submissions or documents to the Tribunal, or that the applicant believed Ms X had done so. Even if, however, that is what the applicant intended to say, it is impossible to discern any arguable ground of jurisdictional error. First, any failure by Ms X to have done that which she indicated to the applicant she intended to do cannot, in the absence of fraud, have resulted in the Tribunal making a jurisdictional error. Nothing the applicant said, however, suggests Ms X engaged in any fraud. Second, the applicant was unable to particularise what it was Ms X intended to submit or provide, or should have submitted or provided, to the Tribunal. In the absence of such particularisation, it is impossible to determine that, had Ms X done what she was supposed to do, that could have resulted in the Tribunal making a different decision to the one it made.

5. The applicant raised no other matter which indicates he has or may have any arguable ground for relief in relation to the Tribunal’s decision if I were to make an order under s.477(2) of the Act to extend time.

6. For these reasons, I am not satisfied it is in the interests of the administration of justice that I grant the applicant an extension of time for commencing his application for judicial review of the Tribunal’s decision. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 August 2015