SZUPB v Minister for Immigration & Border Protection
[2014] FCCA 2466
•20 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUPB & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2466 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of the administration of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth) ss.417, 477 |
| M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 |
| First Applicant: | SZUPB |
| Second Applicant: | SZUPC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1754 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 October 2014 |
| Date of Last Submission: | 20 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2014 |
REPRESENTATION
| The applicants appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Mr Julian Pinder (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1754 of 2014
| SZUPB |
First Applicant
| SZUPC |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicants seek an order pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) that time be extended to them to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 27 September 2013.
Section 477 of the Act is as follows:
“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) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(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); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or
(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
Section 477(1) of the Act requires that any applicant for judicial review be made within 35 days of the date of the RRT’s decision. Section 477(2) of the Act provides that the Court may extend that period if the Court considers that it is necessary in the interests of administration of justice to do so.
The applicants’ application for judicial review was not filed until 26 June 2014, some two hundred and thirty-seven days in excess of the time limit. The application for an extension of time is opposed by the first respondent on the basis of the inadequacy of the explanation by the applicants for their delay and the utility in extending time in light of the prospects of success of the application to establish jurisdictional error on the part of the RRT.
The applicants were unrepresented before me this morning, although had the assistance of an interpreter. The applicants confirmed that the second applicant’s claims were dependent on those of the first applicant.
By consent, the first applicant was given leave to give oral evidence by way of a further explanation for the applicant’s delay.
The substance of the first applicant’s evidence was that the applicant, following the RRT’s decision and with the support of his soccer club, sought Ministerial Intervention pursuant to s.417 of the Act, asking the Minister to provide a more favourable result than that provided by the RRT. The first applicant was unable to recall when the applicants received a response from the Minister declining to exercise his discretion pursuant to s.417 of the Act. However, the first applicant did confirm that it was after receiving the Minister’s refusal to his request that the applicants decided to seek judicial review of the RRT’s decision.
That explanation by the first applicant is not satisfactory in the circumstances. It is a matter for the applicants as to the course that they choose to adopt following the determination by the RRT to affirm the decision under review to refuse them protection visas. It is well established that an applicant’s conduct, in seeking Ministerial Intervention under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the RRT on grounds that may otherwise have been available under the Act (see: M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293; Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).
Nevertheless, in considering whether it is necessary in the interests of the administration of justice to grant leave to the applicants, I do have regard as to the prospects of success of the applicants’ application and grounds in establishing jurisdictional error on the part of the RRT.
The grounds for judicial review relied upon by the applicants are as follows:
“1. The decision of the Tribunal is affected by an error of law.
2. The Tribunal’s rejection of the incident involving kidnapping and assault as having genuinely occurred, constituted a failure to reasonably assess whether I faced a real chance of persecution.
3. As the alleged event poses great significance to the ultimate question of whether a real chance of persecution exists, the Tribunal is obliged to consider the probability of the incident occurring. The strong physical evidence provided by my wife in reference to the damage to the car and the bruises to my physical being, in addition to Mr Meridjanian’s testimony that my coaching career had become ‘life threatening’ suggests that the probability is neither ‘far-fetched’ or ‘remote’. As such, the Tribunal is legally obliged to give consequence to the claim and therefore erred in dismissing the claim as fabrication.
4. The Tribunal acknowledges that I have worked in an environment where there are reported high levels of corruption in senior government and military officials. As such, this greatly impedes my access to police protection in Armenia. This was not adequately considered in the Tribunal’s assessment of my situation.
5. The Tribunal erred in classifying this particular risk as one that faces the population of the country generally.
6. I wish the Court to take into consideration that the risk which I face is not one that is faced by the population of Armenia generally. By reason of my professional profile, I am in a position particularly threatened by the corrupt nature of Armenian football.
7. The decision of the Tribunal failed to take into account relevant considerations.
8. The Tribunal member erred in failing to give proper and realistic consideration to the evidence provided by Mr Meridjanian and Mr Jambazian.
9. The Tribunal dismissed this evidence as unsubstantial as they did “not resolve the Tribunal’s concerns about the truth of the applicant’s claims”.
10. It is arguable that the Tribunal member had already arrived at the conclusion that my claims were untruthful, prior to taking into serious consideration the letters of support provided by the my friends [sic] who were familiar with my particular predicament.
11. The Tribunal erred in dismissing Mr Jack Jambazian’s knowledge of corrupt practices in Armenian soccer because he was “drawing on his knowledge from his period with Dinamo-Zenith, around 2005 to 2006, and did not have more recent or more specific information about match fixing.”
12. Though past events are not a certain guide to the future, in many areas of life, proof that events have occurred in the past often provides a reliable basis for determining the probability of their recurrence.
13. Moreover, where circumstances remain unchanged and in this case, where the same individuals persist in positions of authority (as I have affirmed), it is not unreasonable to presume that the corrupt practices of the past continues in the present.
14. In the absence of further evidence to the contrary, Mr Jamazian’s knowledge and understanding of Armenian match-fixing should not be dismissed due to the time period in which it was gleaned.
15. The Tribunal member mentions that “there is no apparent reason why a corrupt military official would discuss any illegal gambling arrangements in the presence of players or other officials”. However, as I have already claimed that many senior government officials and football personalities are implicated in the corruption, it is not difficult to follow that they would be comfortable in discussion these matters in, what is to be understood, a private arena. Moreover, the players are unlikely to be in a position to contend these senior individuals’ authority so there would be no obvious risk to discussing such matters in their presence.”
All the grounds were interpreted for the applicants and the first applicant was invited to say whatever he wished in respect of each of those grounds.
The first respondent tendered a bundle of relevant documents identified as “Court Book” which was marked exhibit 1R. Exhibit 1R makes clear that the first applicant arrived in Australia on 6 August 2011 on a tourist visa and the second applicant arrived in Australia on 31 October 2011 on a tourist visa. Protection visa applications were lodged on behalf of the applicants on 3 November 2011.
The first named applicant claimed to fear harm in Armenia from corrupt soccer club owners and officials because he refused to engage in active match-fixing. The first applicant also claimed that authorities in Armenia could not protect him.
On 18 July 2012, the applicants’ applications for protection visas were refused by a delegate of the first respondent. (“the Delegate”)
On 20 August 2012, the applicants lodged an application for review of the decision of the Delegate refusing the protection visa applications.
Both applicants attended the hearing and gave evidence. They were represented at the hearing by a migration agent. The RRT’s decision record makes clear that the RRT also heard evidence from a witness for the applicants. The RRT’s decision record makes clear that the RRT explored the first applicant’s claims with him at the hearing in some detail and put to the first applicant concerns it had about his evidence and noted his responses.
In particular, the RRT put to the first applicant that it had been unable to locate reports indicating that violence or threats of violence were widespread in Armenian soccer. In relation to the applicants’ witness, Mr Merajanium, the RRT found that he did not have recent or specific information about match-fixing and therefore found that his evidence shed little light on the practices that formed the basis of the applicants’ fears in relation to Armenia.
The RRT was prepared to accept that there is at least some corruption and match-fixing in Armenian football, as well as other organisational and financial problems. However, the RRT found the first applicant’s evidence about his experiences in Armenia before 2011 in relation to feeling under pressure to be involved in match-fixing, to be vague and uncertain. The RRT noted that it considered the applicants’ evidence of photographs and videos but found that they were insufficient to support the applicants’ claims and did not accept the applicants’ captions and commentary as accurately reflecting what was depicted in the evidence provided by the applicants.
In relation to the applicant’s allegation of being assaulted and detained in February 2011, the RRT found the first applicant’s evidence to be untruthful and found that he had fabricated this claim in order to bolster his claims for protection. The RRT found that first applicant’s evidence and the second applicant’s evidence of their accounts of the alleged kidnapping to be inconsistent in material aspects and put those concerns to the first applicant pursuant to s.424AA of the Act.
Ultimately, the RRT was not satisfied by the explanations provided by the applicants. In relation to other claims made by the applicants of past harm in Armenia, threats to the applicants’ family and threatening inquiries after the applicants’ arrival in Australia, the RRT found those claims to be amorphous and changeable, completely unreliable and untruthful. The RRT noted that it took into account the written evidence of the applicant’s witness, Mr Jambazian, however found that the observation in that and other supporting letters did not resolve the RRT’s concerns about the applicant’s truthfulness.
Ultimately, the RRT comprehensively rejected the applicants’ claims of past harm in Armenia and affirmed the decision under review.
Ground 1 of the application for judicial review is an unparticularised, bare assertion and does not identify any error capable of review by this court.
In relation to Ground 2, the RRT’s decision record makes clear that it explored and considered the applicants’ claims of kidnapping and assault in Armenia. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). The RRT’s rejection of that evidence would appear to be a finding that was open to it on the evidence and material before it, and for the reasons it gave.
Ground 3 appears to be a complaint that the RRT did not give sufficient weight to the applicant’s witness, Mr Merajanium’s testimony, before finding that the applicant’s claims were a fabrication. It is for the RRT to consider and evaluate the evidence before it, and make findings based on that evidence. Again, there is nothing to suggest that the RRT’s assessment of Mr Merajanium’s evidence as disclosed in the RRT’s decision record was not open to it on the evidence and material before it, and for the reasons it gave.
Ground 4 asserts that the first applicant’s claim not to be able to access police protection in Armenia was not considered. However, the RRT rejected the first applicant’s claims of past harm in Armenia and, therefore, implicitly any need to access state protection. The RRT found it difficult to believe that the first applicant never had an opportunity to seek protection abroad in circumstances where he travelled outside Armenia on many occasions and enjoys considerable standing in Armenia. The RRT found such conduct added to its doubts about the fist applicant’s truthfulness about the “persistent, long-term threats and pressure” that he experienced in Armenia.
In relation to Grounds 5 and 6, as stated above, the RRT put to the first applicant at the hearing that it had been unable to locate reports indicating that violence, or threats of violence, are widespread in Armenian soccer. Beyond a particular incident involving Ruben Hayrapetyan, the RRT was unable to find any further references to further corroborate the claims of his involvement in match-fixing. The RRT did have regard to a report suggesting corruption in Armenian football, however, noted that the two Armenian referees were suspended and prosecuted. Nevertheless, the RRT was prepared to accept that there is at least some corruption and match-fixing in Armenian football, as well as other organisational and financial problems. The RRT rejected the first applicant’s by Mr. Hayrapetyan’s bodyguards and found that the first applicant’s claims in Armenia before 2011 mainly centred on his feeling of being under pressure.
The RRT accepted that the first applicant had a high-profile in football in Armenia, was aware of match-fixing and other corrupt practices and that during his career he had to navigate this environment with some care. However, the RRT did not accept that the first applicant ever suffered harm because of his work as a coach or his refusal to engage in match-fixing.
Ground 7 asserts that the RRT failed to take into account relevant considerations. Those relevant considerations were wholly unparticularised. It is not apparent from the RRT’s decision record that there was any consideration raised by the applicant which the RRT failed to address.
Similarly, Ground 8 asserts that the RRT failed to properly consider the evidence of the applicants’ witnesses. As stated above, only Mr Merajanium gave evidence, which the RRT found shed little light on the first applicant’s claims of corrupt practices. Further, as stated above, the RRT found that Mr Jambazian’s written evidence did not resolve the RRT’s concerns about the first applicant’s truthfulness. There is nothing on the face of the RRT”s decision record to suggest that those findings were not open to the RRT on the evidence and material before it, and for the reasons it gave.
As stated above, the rejection of the applicants’ evidence and its credibility findings would appear to be open to it on the evidence of material before it, including its adverse credibility findings and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Grounds 9, 11, 12, 13, 14 and 15 generally cavil with the findings and conclusions of the RRT. Such complaints invite merits review, which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). Again, the RRT’s decision record makes clear that it explored the applicants’ evidence in some detail at the hearing, and put to the first applicant its various concerns, and noted the applicant’s responses.
Ground 10 suggests that the RRT was prejudiced against the first applicant’s claims. Such an allegation suggests bias on the part of the RRT, and is a serious allegation which requires evidence. A failure by the RRT to accept the applicant’s evidence does not, by itself, establish such prejudgment (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
There is nothing on the face of the RRT’s decision record or the conduct of its review as reflected in exhibit 1R to suggest that the RRT had not approached its review, other than with a mind open to persuasion.
A fair reading of the RRT’s decision does not suggest any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, none of the grounds of the applicants’ application have demonstrated sufficient prospects of success such that it would be in the interest of justice to extend time to the applicants. Were time to be extended to the applicants, it is highly likely that on the grounds of the application, the Court would find that the application does not raise an arguable case for the relief claimed, and it would likely be dismissed pursuant to 44. 12 of the Federal Circuit Court Rules2001 (Cth).
In such circumstances, and coupled with the inadequacy of the applicants’ explanation for the delay, I am not satisfied that it would be in the interest of justice to extend time to the applicants. Accordingly, the application for an extension of time is refused.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 October 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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