SZUPZ v Minister for Immigration
[2017] FCCA 224
•14 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUPZ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 224 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time in which to make a competent application – whether it is in the interests of the administration of justice to extend time – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5L, 36, 476, 477 Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 DZADC v Minister for Immigration & Anor (No.2) [2012] FMCA 778 |
| Applicant: | SZUPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1824 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 December 2016 |
| Date of Last Submission: | 2 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.
The applicants pay the first respondent’s costs set in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1824 of 2014
| SZUPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), on 2 July 2014 seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act for review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 22 April 2014, which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application was filed outside that time limit by 36 days. The application is therefore not competent.
Section 477(2) of the Act provides that the Court may extend the time within which to make a competent substantive application, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The applicant has made such an application to extend time in writing. The sole ground of that application is in the following terms:
“Applicant is unaware of the legal processes in Australia and has little English knowledge and so requires time to find a lawyer to represent him.”
Therefore, the issue for current consideration is whether time should be extended such that the applicant can make a competent substantive application to the Court.
The factors to be considered in relation to the question of the extension of time are non-exhaustive. However, there are a large number of authorities that provide guidance to this Court as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the relevant factors to be addressed and arising from the circumstances presented in considering the exercise of the discretion, appear to be the length of the delay, whether any adequate explanation or reasonable excuse has been given to explain the delay, whether the proposed substantive application for judicial review is sufficiently or reasonably arguable or has reasonable prospects of success or has such merit as to justify the extension of time and allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the application should have such prospects of success so as not to render the extension of time an exercise in futility.
Before the Court
At the hearing of the application to extend time the applicant appeared in person. He was assisted by an interpreter in the Tamil language. Ms R François of counsel appeared for the first respondent.
The applicant has filed an affidavit made by him on 30 June 2014, which accompanied his application to extend time filed on 2 July 2014. However, that affidavit does not contain any evidence in relation to his application for an extension of time. As such, the applicant has not filed any evidence by way of affidavit to explain the delay, or to support the proposition that it is in the interests of the administration of justice to extend time. The Rules of this Court require such an affidavit (see r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth)).
Subsequently orders were made by the Court on 27 August 2014 which, amongst other things, gave the applicant the opportunity to file any evidence by way of affidavit in support of his application to extend time. As set out above, no such evidence was filed in the time available under the relevant order. No attempt was made to seek leave to file any affidavit in the subsequent two years available to the applicant for that purpose.
When given the opportunity to make submissions before the Court, the applicant referred to matters more properly the subject of evidence or at the very least, that required some evidentiary basis. Despite the applicant’s failure to provide evidence by way of affidavit, and given that he was not legally represented, I gave him the opportunity to give his evidence orally.
Parts of the applicant’s evidence were not clear. As best as it could be understood, his evidence was as follows.
The application to the Court to extend time and the affidavit that accompanied it, were drafted by a “Mr Bala” to whom the applicant was introduced by a “friend”. He also said “another lady was involved”, although he was unclear as to what “document” she had “prepared”.
The ground of the application to extend time as set out above at [4], asserts that the applicant was “unaware” of legal processes in Australia, he had little knowledge of English, and he wanted to find a lawyer. I agree with the Minister that that explanation is not compelling. All these elements of the applicant’s claimed situation are indistinguishable from the situation faced by many other applicants before the Court in matters of this type.
When giving evidence to the Court however, the applicant did not give this explanation. In fact, the applicant’s evidence was that he knew at the time of the Tribunal’s decision (22 April 2014) that he could seek judicial review, and that such an application had to be made within 28 days. [I note that the time limit is actually 35 days].
It is to be remembered that while the actual delay in making his application to the Court was 36 days, the applicant had, prior to that, a period of 35 days in which to make his application for review to the Court. As the Minister submitted, the delay is not an insignificant period.
The applicant’s explanation for the delay is not satisfactory. Despite knowing of the time limitation, indeed he thought it was shorter than what is provided in s.477(1) of the Act, he did not see Mr Bala for some “20 or 25 days” after the Tribunal’s decision.
The reason given by the applicant for this period was that he was “trying to see a free lawyer”. No details were provided. That is, despite knowing of the time limitation in which to make an application to the Court, he spent approximately 3 weeks looking for a lawyer before seeing Mr Bala and other “people”.
This is not a satisfactory explanation for that 3 week period that ultimately led to the delay in making his application. His evidence was also that he “anticipated that they would then lodge” his application to the Court. The reason for this remained unexplained, particularly as there was no claim that Mr Bala or the other “people” were lawyers, or even migration agents.
Notwithstanding this, the applicant saw Mr Bala again one to two weeks later and then lodged his application to the Court. Even at best for the applicant, this still leaves a large part of the period of the delay without any explanation. The period from the Tribunal’s decision to the lodging of the application to the Court is 71 days. Even if it took the applicant at best, on his evidence, 25 days to see Mr Bala, and then 14 days to receive the documents from him, this still leaves over a month unexplained.
In all therefore, the extent of the delay is not insignificant. The explanation for the delay is not satisfactory. Even in circumstances where it cannot be said that the Minister would suffer prejudice if time were to be extended, the delay weighs against the exercise of the discretion in the applicant’s favour.
The Proposed Substantive Application
Nor do the grounds of the proposed substantive application have any merit such that they argue in favour of the exercise of the discretion to extend time. The grounds of the proposed substantive application are in the following terms:
“1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
2. More details will be provided by the legal representative in my amended application.”
Ground one is absent any particularity whatsoever. The applicant made no reference to it in his submissions. Ground two must be seen in light of the two years that the applicant has had to obtain legal representation and/or to file any amended proposed substantive application.
Before the Court, the Minister, fairly, raised one matter that requires consideration now. At [32] of its decision record (at CB 269), the Tribunal stated:
“I do not accept that there is a particular social group of western asylum seekers or failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear, that is arrest and detention. There is no evidence that the migration laws of Sri Lanka, any period of detention and possible fine, or the condition of detention, are being applied in a discriminatory manner.”
The Minister submitted that the manner in which the Tribunal considered whether in fact there was a particular social group of Western asylum seekers or failed asylum seekers may be open to doubt (see DZADC v Minister for Immigration & Anor (No.2) [2012] FMCA 778 (“DZADC”) at [20]). However, the Minister submitted that even if the Tribunal was wrong in making this finding, it was not relevant to the ultimate disposition of the applicant’s application for review (see further below).
Background
The following background, of assistance in assessing whether it is in the interests of the administration of justice to extend time, can be ascertained from the bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant is a citizen of Sri Lanka, who arrived in Australia as an “Irregular Maritime Arrival” (CB 1 to CB 19). He applied for a protection (Class XA) visa, which was received by the Minister’s department on 15 November 2012. He was assisted by a registered migration agent (CB 21 to CB 99).
Included with his application was a Statutory Declaration outlining his claims to protection (CB 58 to CB 61). Essentially, the applicant claimed to fear harm from the Sri Lankan authorities, in particular the Sri Lankan Army (“SLA”), due to his imputed political opinion and membership of certain particular social groups. The applicant claimed that his step-brothers had been members of the Liberation Tigers of Tamil Eelam (“LTTE”), and that one had “disappeared” and the other had been killed. The applicant claimed that he and his family had left Sri Lanka when he was “very young” due to fears of harm, and that they had lived in India in refugee camps where they were “treated badly as slaves” (CB 59).
Further, before the delegate, the applicant claimed that he would be harmed because he had lived for most of his life outside of Sri Lanka and had fled the country seeking asylum (CB 116).
The delegate refused the application on 9 July 2013 (CB 107 to CB 131). The applicant applied for review to the Tribunal on 16 July 2013 and was again assisted by a registered migration agent as his representative (CB 132 to CB 139).
The applicant’s representative provided submissions to the Tribunal on 25 November 2013 (CB 167 to CB 238). The submissions included a number of assertions including, relevantly, that he would face harm on return to Sri Lanka due to his ethnicity, imputed political opinion and membership of a particular social group, in particular, being a failed asylum seeker and a Sri Lankan Tamil who had lived as a long-term refugee in India.
The applicant attended a hearing before the Tribunal on 28 November 2013 (CB 239), and submitted a number of documents to the Tribunal, including documents relating to his time in India (CB 242 to CB 254).
The Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant on 22 April 2014 (CB 260 to CB 270). The Tribunal found that while the applicant’s claims had “generally been consistent” there were some aspects that it did not “accept as reasonable” ([24] at CB 267). It did not accept his claims, made at the hearing before it, that the Sri Lankan authorities had asked his sister about his whereabouts, his claim to fear harm because he is a Roman Catholic, or that he would face harm because he only speaks Tamil.
Further, the Tribunal did not accept that the applicant’s lack of familiarity with Sri Lanka, since he had left when he was small, would cause “him anything other than a few months of a learning curve to overcome” (CB 267). It considered that his claims to fear harm because of his step-brothers involvement with the LTTE 20 years prior, would not bring the applicant to the adverse attention of the Sri Lankan authorities.
The Tribunal also found that the applicant was not a credible witness in certain aspects of his claims, and that he had “fabricated some aspects of his claims and exaggerated others so as to enhance his claims for a protection visa” ([25] at CB 268). It accepted as true “most of the rest of the history as given by him” ([26] at CB 268). However, it did not accept that his profile would cause him any ongoing concern or adverse interest to the Sri Lankan authorities on return to Sri Lanka ([27] at CB 268).
The Tribunal considered the applicant’s claims that he would face harm as a young Tamil male, but was “not reasonably satisfied that Sri Lankans who are Tamil now face serious harm because of their ethnicity”, or that factors such as being a young male otherwise put him at risk ([28] at CB 268 to [31] at CB 269).
Finally, it did not accept that “there is a particular social group of Western asylum seekers or failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear” being “arrest or detention” ([32] at CB 269). The Tribunal found that although the applicant may be questioned on return to Sri Lanka it would be, in context, appropriately about his identity, where he had been living since departing Sri Lanka in 1990, and the arrangements in departing from India for Australia. It did not accept he would be arrested or detained ([33] – [34] at CB 269). Further, the Tribunal did not accept “that his overall situation of having lived in India from 1990 to 2012 as a refugee, his step-brothers’ history and death, or any other family situation is of any adverse consequence for him now” ([35] at CB 269).
It is to be remembered that the issue currently before the Court, is whether the exercise of the discretion to extend time is in the interests of the administration of justice. As the authorities referred to above (at [6]) make clear, the merits or otherwise of the grounds of the proposed substantive application, are part of the factors to be weighed by the Court in the exercise of its jurisdiction. The view can be taken that the matter raised by the Minister now, may be seen as a “particular” that may have attached to ground one of the proposed substantive application.
In addition to those authorities mentioned above at [6], the matter of the exercise of this Court’s discretion pursuant to s.477(2) of the Act was also considered by the Federal Court in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 (“SZUWX”) (per Griffiths J).
That matter had previously been before this Court, in its consideration of an application pursuant to s.477(2) of the Act. This Court held that while the proposed grounds of judicial review were “arguable”, nonetheless the Court was not persuaded that it was in the interests of the administration of justice to extend time (see SZUWX at [17]).
Justice Griffiths provides relevant direction to the exercise of this Court’s discretion in this regard. After considering a number of relevant authorities His Honour stated (SZUWX at [57]):
“Having regard to all these authorities, I accept the Minister’s submission that the Court should reject the applicant’s contention that the primary judge fell into jurisdictional error by not taking into account relevant considerations. The applicant’s contention fails to give effect to the breadth of the discretion conferred upon the FCCA under s 477(2) and also fails to grapple with the important fact that it was a Judge and not an executive officer who had to determine whether or not time should be extended. It was essentially a matter for the primary judge to determine and assess what were the relevant considerations to be weighed in determining whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. In determining which matters were relevant or not it might be expected that the primary judge would have regard not only to the subject matter, scope and purpose of the legislation, but also to the parties’ submissions. That is not to say, however, that a consideration becomes a mandatory relevant consideration merely because one of the parties has raised it. Furthermore, as the passage from [15] of Craig indicates (as set out at [49] above), a failure by an inferior court to take into account a mandatory relevant consideration in determining a question within jurisdiction does not ordinarily involve jurisdictional error. The applicant has not pointed to any particular feature of his circumstances which would mean that, if in fact the primary judge failed to take into account the lack of prejudice to the Minister, this would amount to jurisdictional error.”
His Honour further stated (SZUWX at [60] – [61]):
“[60] Turning now to consider the applicant’s second ground of judicial review, which relates to the alleged ‘error of law’ in the primary judge’s finding that the proposed grounds of judicial review below were ‘arguable’, yet time was not extended. As noted above in [27], in the written submissions counsel for the applicant relied on an extract from [20] of Flick J’s reasons for judgment in AAV15 in support of this ground. That extract omitted the following important additional observations which were made by his Honour:
Much will depend upon the circumstances of each particular case. In some cases it may be sufficient simply to dismiss an application to extend time. Such may be the case where there has been considerable delay in commencing a proceeding, no satisfactory explanation for the delay, and prejudice to a respondent. In other cases, it may be an appropriate exercise of discretion to grant an extension of time even if the proceeding is ultimately dismissed.
[61] These additional observations by Flick J serve to underline the importance of the relevant circumstances in any particular case. His Honour was not purporting to lay down a rule or principle to the effect that, if proposed grounds of review are assessed as ‘arguable’, time must necessarily be extended. It was open to the primary judge here to bring into the weighing exercise his assessment that the proposed grounds were ‘arguable’ but nevertheless dismiss the application in circumstances where the applicant had not provided a satisfactory explanation for the delay. I also accept the Minister’s submission that, fairly read, the primary judge viewed the proposed grounds as arguable, but as not being particularly compelling. For these reasons, ground 2 is rejected.”
On appeal from Griffiths J, in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, Bromwich J with whom Allsop CJ and Flick J agreed, stated (at [4]):
“The primary judge interpreted the Federal Circuit Court judge as regarding the case that the appellant sought to bring as arguable, but not particularly compelling. I agree with that interpretation by the primary judge. In any event, it could not be said to have been found to be a case devoid of merit.”
In this context, and in the current case, there is some arguable point arising from the Tribunal’s finding at [32] (at CB 269) of its decision record. However, for the reasons that follow, it is not of such character, let alone compulsion, that it weighs in favour of the exercise of the discretion to extend time.
At [32] (at CB 269), the Tribunal did not accept that there were particular social groups as advanced by the applicant’s representative, because those claimed groups were said to be “defined by the harm they fear”.
I note that while the Act currently provides for a definition of “particular social group” (see s.5L of the Act), the application for review to the Tribunal predates the introduction of the current provisions. It is therefore to the law as it stood prior to 16 December 2014, the date of the introduction of the current provision, to which regard must be had.
It is the case, as the Tribunal intimates, that a fear of persecution is not normally a characteristic which can be said to constitute or provide a basis for the determination of a particular social group. In short “persecutory conduct” cannot define a particular social group (see Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) per Dawson J at [42] and McHugh J at [102]).
However, as Raphael FM correctly, in my respectful view, stated in DZADC at [20]:
“for example it is now well accepted that there is a particular social group of unsuccessful asylum seeker returnees”.
It is the case that, as explained in Applicant A per McHugh J, the conduct of persecutors may be the catalyst to cause the creation of a particular social group. His Honour explained as follows (Applicant A at [264]):
“Nevertheless while persecutory conduct cannot define the social group the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But if they were persecuted because they were left-handed they would no doubt quickly become recognisable in their society as a particular social group. Their persecution of being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.”
The High Court in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 further explained (per Gleeson CJ, Gummow and Kirby JJ at [31]):
“…if the community’s ruling authority were to legislate in such a way that resulted in discrimination against left-handed men over time the discriminatory treatment of this group might be absorbed into the social consciousness of the community. In these circumstances it might be correct to conclude that the combination of legal and social factors (or norms) prevalent in the community indicate that left-handed men form a particular social group distinguishable from the rest of the community.”
It appears at first glance that the Tribunal in the current case (at [32] at CB 269), may have failed to recognise that whether or not Western asylum seekers or failed asylum seekers on return to Sri Lanka share a unifying characteristic that distinguishes them from others in Sri Lanka, this must be considered separately to the question as to whether members of such groups share persecution in common.
What the Tribunal may have failed to address, in this case, is whether there exists something separate to persecution, for example, that the conduct of the Sri Lankan authorities (the claimed persecutors), may of itself identify Western asylum seekers or failed asylum seekers as a group in Sri Lanka, recognisable as a particular social group. Or whether their conduct in fleeing to a Western country in the first place has the same effect.
As set out above, the issue for current purposes is not whether the Tribunal has fallen into jurisdictional error, but the assessment of how strong an argument is raised by the Tribunal’s reference at [32] (at CB 269) that it may have fallen into jurisdictional error. The weakness or strength of such a point is then a factor to be weighed in the exercise of the discretion as to whether or not to extend time.
The Minister’s submission was that there is case law (with reference to DZADC), that suggests there is a link between those who engage in conduct in fleeing Sri Lanka, that may make such a group a recognisable particular social group. This now raises what was said to be a “fine” question, of whether or not the Tribunal simply made a factual finding that such particular social groups did not exist for the purposes of the Refugees Convention, or an error in the sense that it misconstrued the concept of “conduct”, as opposed to whether or not the shared characteristic was a fear of persecution.
The Minister’s submission was that this question does not arise because the Tribunal considered the issue of whether or not the characteristic of having sought asylum, or having returned from a Western country where asylum was sought, may lead to harm. The Tribunal having considered this issue found that this would not lead to “serious harm”.
The Minister’s argument was that having made that separate factual finding meant that it was not necessary for the Tribunal to consider the question of whether or not people who had sought asylum in a Western country were a particular social group. That is, the Tribunal’s finding at [32] (at CB 269) was ultimately irrelevant to the reasons why it affirmed the delegate’s decision.
I agree with the Minister’s submissions. The applicant claimed to fear harm on return to Sri Lanka for a number of reasons. These included that he would face harm as a failed asylum seeker from a Western country. The Tribunal had regard to relevant country information, and found that with those characteristics, the applicant would be questioned by the authorities on return to Sri Lanka and that this may involve questions about his identity, where he had been since 1990, and arrangements for departing from India and the smugglers involved (see in particular [33] at CB 269).
The Tribunal found that on return, the applicant would not be questioned or detained, and even if questioned, this would not rise to the level of “serious harm”. The Tribunal found that the applicant did not have the “level of profile” that would cause him to be considered “suspect” by the Sri Lankan authorities ([34] – [35] at CB 269).
These findings were reasonably open to the Tribunal on what was before it. In this light, whatever the Tribunal stated at [32] (at CB 269) was not the basis on which it affirmed the delegate’s decision. Nor was it necessary for the Tribunal to consider the matter of particular social groups as, for the reasons given, in the applicant’s case the claimed characteristics of these groups would not lead to serious harm.
In my view, there is a further reason to support the conclusion that the Tribunal’s statement at [32] (at CB 269) is not “compelling” for current purposes.
The applicant was represented by a registered migration agent before the Tribunal. The agent made lengthy written representations (CB 167 to CB 238). Amongst the comprehensive list of matters raised in the submissions, was the assertion that the applicant feared “persecution” because he was a member of two particular social groups. These were identified as “failed asylum seekers from a Western country” and “Sri Lankan Tamils who have lived as long-term refugees in India” (CB 173 to CB 175).
In the current case, the Tribunal understood that the applicant’s claims to fear harm on return to Sri Lanka included that he was a returning asylum seeker from a Western country, and that he had lived in India as a refugee from many years.
As set out above, the Tribunal dealt with the first claim ([33] – [34] at CB 269). In relation to the second claim (having lived in India as a refugee), the Tribunal found: “I do not accept that his having lived in India for over 20 years is of any concern to the authorities on his return to Sri Lanka” ([27] at CB 268). Further, the Tribunal also found: “I do not accept that his overall situation of having lived in India from 1990 to 2012 as a refugee… is of any adverse consequence for him now” ([35] at CB 269).
On a fair reading, the Tribunal rejected that each of the elements or characteristics in the context of particular social groups, as advanced in the representative’s submissions, would lead to serious harm. On this basis, it was therefore not necessary for the Tribunal to continue to otherwise examine those characteristics.
In all therefore, while some embryonic argument may have been available to the applicant, I do not see it as compelling such as to weigh in support of the application to extend time. Particularly as no satisfactory explanation has been provided for the delay in applying to the Court. It is not in the interests of the administration of justice to extend time in circumstances where Parliament has imposed a clear time limit simply to dismiss the application. The application to extend time should be refused. I will make that order.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 February 2017
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