SZUUP v Minister for Immigration

[2016] FCCA 3455

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3455

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – application for extension of time to bring proceedings.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 417, 474, 477

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUUP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2058 of 2014

Judgment of: Judge Cameron

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Sydney

Delivered on: 23 November 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application for an extension of time within which to bring this proceeding be dismissed. 

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.00. 

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2058 of 2014

SZUUP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Pakistan who arrived in Australia on 7 May 2011.  On 30 March 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Pakistan because of his ethnicity, religion and political opinion.  On 12 September 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. 

2. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015. However, the application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and the applicant has applied for an extension of the time within which to bring this proceeding.  For the reasons which follow, that application will be dismissed.

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:

   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:

   …

   (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); …

2. Because the Tribunal’s decision was dated 14 March 2014, the applicant had until 18 April 2014 to commence this proceeding.  The application was not filed until 23 July 2014 and so it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time. The application commencing these proceedings contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for the delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial.

Satisfactory explanation for delay

1. In his application commencing this proceeding the applicant stated that he did not know what to do after he received “the letter from immigration on 23^rd of June”, presumably a reference to the Department’s letter of 17 June 2014 advising the applicant that the Minister had declined to intervene in his case pursuant to s.417 of the Act. The applicant stated that he consulted an asylum seeker centre and decided to contact a solicitor to discuss his case further. However, because of the solicitor’s busy schedule, it took him some time to make an appointment. It appears that the solicitor in question was the late Mr Bitel of Parish Patience.

2. The applicant showed to the Court, having first shown to Counsel for the Minister, a copy of a letter of advice received from Mr Bitel.  Some portions of the letter were read by me onto the record, but it is not necessary to say anything more at this point other than that, in his advice, Mr Bitel adverted to the fact that the application had been filed out of time. 

3. At the hearing of this application, the applicant conceded that he had been represented before the Tribunal by a solicitor employed at the Legal Aid Commission of New South Wales. His evidence was that after the Tribunal decision had been delivered, the solicitor who had been acting for him said that she would take the next step in the matter and that this turned out to be an application for Ministerial intervention under s.417 of the Act. The applicant’s evidence was that he did not know that he had an option to start the Court proceedings or that he had only 35 days from the date of the Tribunal decision to do so.

4. His evidence was that his solicitor had not told him that he had two options as to how to proceed.  It is difficult to accept that a solicitor would not have advised his or her client of their options and taken instructions on which course to take.

5. The evidence the applicant gave concerning the actions of his legal aid solicitor was not contained in his application commencing this proceeding or in his affidavit in support.  It is not good enough to come to Court approximately two and a half years after commencing a proceeding and articulate a case not foreshadowed earlier than the day of the hearing.  Such conduct makes it impossible for the new version of events to be tested effectively which, in turn, affects the weight to be given to the evidence in question.  In the absence of any reasonable possibility that the Minister could test the applicant’s evidence concerning the conduct of his legal aid solicitor, the evidence on that subject must be given reduced weight. 

6. Weighing that evidence against the likelihood that a solicitor would take one of two, arguably inconsistent, courses of action without taking instructions, I find I do not accept the applicant’s evidence that he was unaware at the time the s.417 request was made that he also had only 35 days to seek review of the Tribunal’s decision. I conclude that the applicant would have been properly advised and that he made an informed decision to pursue one course of action over another.

7. In the circumstances, I am not persuaded that the applicant has provided a satisfactory explanation for his delay in commencing the proceeding. 

Merits of the substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. I have concluded that the present applicant has not done that.

Protection visa claims

1. The facts alleged in support of the applicant’s claim for a protection visa were reproduced by the Tribunal in its decision record.  Relevantly, the applicant made the following claims:

   a)he was born in Parachinar and was a Pashtun of the Turi tribe.  He was also a Shia Muslim;

   b)in 2006 he became involved in a charitable non-government organisation called Tareek-e-Hussaini, which was founded by Shias in Parachinar;

   c)he was living in Peshawar when civil war broke out in the Kurram Agency in 2007.  This led to the closure of Parachinar Road, which meant that the residents of the Kurram Agency had to travel to Peshawar via Afghanistan and so risk attack by the Taliban; 

   d)in March 2008 he and other members of Tareek-e-Hussaini protested against the political agents of the Kurram Agency over the closure of Parachinar Road.  He assisted in organising this protest;

   e)on 7 April 2008 he received a letter from the Taliban threatening to kill him if he did not stop his activities.  Despite this threat, he continued to organise protests for the next two years until May 2010;

   f)on 28 June 2008, in recognition of his work, he was offered membership into Tareek-e-Hussaini, which he accepted;

   g)he received two further threatening letters from the Taliban on 13 September 2009 and 1 March 2010;

   h)on 17 July 2010 the Taliban attacked and looted a convoy going from Parachinar to Peshawar.  Angry at the government’s negligence and apathy, he led a group of people to the political agent’s office in Parachinar where he openly accused the Inter-Services Intelligence (“ISI”) (according to the applicant, Pakistan’s “premier intelligence agency”) of colluding with the Taliban.  He also accused the ISI and the Pakistani Army of being responsible for the attack.  Later that day, after realising the seriousness of his actions, he fled to Zeran;

   i)on the night of 17 July, representatives of the ISI came to his parents’ house and enquired about his whereabouts;

   j)he fled to Peshawar but moved from place to place to avoid being captured by the ISI.  With the aim of fleeing Pakistan, he started the process for a student visa for Australia in February 2011;

   k)he was granted a student visa in April 2011 and arrived in Australia in May 2011.  He paid an officer at Islamabad airport to clear him through security;

   l)he feared harm in Pakistan from the ISI and the Taliban.  As the ISI were agents of the government, the authorities would not protect him;

   m)he also faced harm as a Shia Muslim, and in particular a Shia Muslim from Parachinar; and

   n)he also feared persecution on the basis of his real and imputed political opinion as an active member of the Shia-run charitable and social organisation Tareek-e-Hussaini and his involvement in protests against the government.

Tribunal’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found it difficult to accept that the applicant had received threatening letters from the Taliban given that:

   i)the independent evidence before the Tribunal concerning attacks on Shias and/or Turis in Peshawar did not suggest that protestors had been targeted;

   ii)the applicant stated that he dropped out of university in April 2009 because of the Taliban threats but the threats he allegedly received (in April 2008, September 2009 and March 2010) did not coincide with his study at the university.  The applicant’s evidence on this point was also very evasive;

   iii)the distribution of the threatening letters over such a long period of time without any action by the Taliban did not suggest to the Tribunal that the applicant was of serious interest to them; and

   iv)the distribution of the threatening letters did not cause the applicant any serious harm prior to his departure.  In this regard, the applicant continued to protest in the two year period after receipt of the first letter and was able to continue his studies and sit for exams;

   b)given the Tribunal’s finding that the applicant had not been harmed in the past by the Taliban, it did not accept that there was a real chance that he would be persecuted by the Taliban for reasons of his membership of Tareek-e-Hussaini or because of his real or imputed political opinion;

   c)the Tribunal did not accept that there was a real chance that the applicant would be persecuted in Pakistan because he was a Shia Muslim, a Pashtun/Shia, a Pashtun of the Turi tribe or because he was a member of a minority within the Pashtun ethnic group in the context of the sectarian violence in Peshawar.  The Tribunal noted in this regard that the number of Shias injured or killed in attacks was low given their population size in Pakistan; and

   d)the Tribunal did not accept that the applicant had been targeted by the ISI or that he was wanted by the Pakistani government, noting that:

   i)according to information before the Tribunal there was a prevalent view among Shias in Pakistan that the ISI was actively supporting Sunni militants, the Taliban and other militant groups.  Consequently, even if the applicant did protest in July 2010, the Tribunal was not convinced that anything he said would have been of sufficient interest to the authorities or the ISI such that they would have continued to try to find him up until his departure from Pakistan in May 2011 some ten months later;

   ii)the applicant remained in Pakistan for nearly one year after the protest and departed in what seemed to be an orderly manner.  In the Tribunal’s view, it was unlikely that the applicant would have been able to remain in Pakistan undetected for such a long period or obtain a passport and then leave via the airport if he had indeed been of interest to the ISI; and

   iii)the applicant’s delay in applying for protection was not consistent with someone who came to Australia because he feared persecution.

Grounds for judicial review

1. In his application commencing this proceeding the applicant alleged:

   1.The Member failed to comply with the natural justice rules in the conduct of the hearing.

   2.The Tribunal failed to determine the ground realities and dangers applicant is facing in real life.

   3.The Tribunal made irrelevant and unrealistic assumptions in the decision.

   4.The member displayed actual or apprehended bias.

   5.The member identified the wrong issues or asked wrong questions.

   6.The member ignored relevant evidence, or relied on irrelevant material.

2. None of the allegations made in the substantive portion of the initiating application was particularised, neither was any evidence adduced by the applicant which would clarify them.  Finally, the applicant did not, in his submissions to the Court, expand on the allegations he wished to raise against the Tribunal.  As they stand, the allegations appearing in the application lack meaningful substance.  Some grounds give the appearance of raising questions of relevant error on the Tribunal’s part but, on a closer examination, they are the sort of generic allegations made in matters such as this which do not really raise anything with which the Court can engage. 

3. At the hearing of this application, the applicant submitted that the Tribunal had erred by concluding that although he came originally from Parachinar, Peshawar was also a home region for him.  Notwithstanding opportunities provided in conversation with the Bench, the applicant was unable to identify any jurisdictional error in the Tribunal’s conclusion that Peshawar was at least one of the applicant’s home areas.  The evidence before the Tribunal, which was summarised in annexure 1 to its reasons, provided a sufficient and logical basis for that conclusion.

4. Before concluding these reasons, I should also state, having regard to the inadequacy of pleading, that it is not apparent to me that any other matters might have been raised in connection with the Tribunal’s decision which would have demonstrated jurisdictional error on the Tribunal’s part. 

5. I therefore find that there is insufficient merit in the substantive part of the applicant’s application to warrant it being considered at a trial. 

CONCLUSION

1. For these reasons, I conclude that it is not in the interests of the administration of justice for time for the commencement of this proceeding to be extended. 

2. Consequently, the application for an extension of time will be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 10 February 2017