SZUWE v Minister for Immigration

[2015] FCCA 2201

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2201

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

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Applicant: SZUWE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2167 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 July 2015

Delivered at: Sydney

Delivered on: 18 August 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application made 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 2167 of 2014

SZUWE

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. To obtain the order the applicant seeks, he must satisfy the Court that it is necessary in the interests of the administration of justice that the time for filing the application be extended. At the very least that requires the applicant to present evidence that adequately explains the delay, and to demonstrate that the application the applicant proposes to make, if an order extending time is made, has merit.

3. The applicant, who is not legally represented, submitted that he did not file the application with this Court within the required time because his lawyer did not advise him. Ms Blake, who represented the Minister, informed me that the Minister accepted the applicant’s explanation. In my opinion, therefore, the applicant has provided a reasonable explanation for his delay. The principal question I must consider, therefore, is whether the application for judicial review would have merit if I were to grant the applicant an extension of time.

4. To determine that question, it will be necessary to set out the applicant’s claims for a Protection visa, and the Tribunal’s reasons for not accepting the applicant’s claims.

Applicant’s claims for protection

1. In his application for a Protection visa, the applicant, who is a citizen of Lebanon, claimed he provided aid to Syrians engaged in civil war against the Syrian government. He was “actively assisting the Syrian people since the start of the Syrian uprising” and had provided assistance to “Syrian refugees and also the Syrian rebels by entering into Syrian territory and providing them with medical aid and other forms of humanitarian aid”.  The applicant claimed that in the “past 18 months” he had entered Syrian territory on 6 occasions, most recently 3 months before he came to Australia.

2. The applicant also claimed that the Syrian authorities are aware of the applicant’s identity and role in supporting Syrian refugees and rebels. On a previous trip to Syria one of the applicant’s three colleagues was captured. The applicant returned to Lebanon “despite also fearing that my captured colleague may have divulged information under duress about me and others”. Syrian agents attempted to abduct him from his home. He was also shot at while driving, and nearly abducted. The applicant escaped and sought refuge in a different city with Christian friends. He “then maintained a low profile” until his “departure out of Lebanon”. The applicant continued to fear abduction until his departure to Australia. He claimed that he did not travel until his departure, and he obtained assistance from a member of parliament who “assigned body-guards to escort [the applicant] to the Beirut airport”.

3. Before the Tribunal, the applicant said he feared the Syrian regime or Hezbollah would kill him if he returned to Lebanon because he had helped the Syrian people and the Free Syrian Army (FSA). He said that he went from Lebanon to Syria with supplies for the opposition via Wadi Khadid. The applicant said that he and a number of young people like him collected donations and used the money to buy blankets, canned food, milk, and medications. The goods were stored in a warehouse that belonged to a friend, and were moved in a medium-sized removal van. The FSA met the applicant and three others on the other side of Wadi Khadid. The supplies were moved on to an FSA vehicle. The applicant and the three others then travelled the 40-50 minutes trip to Homs with the FSA. Once in Homs the applicant and the three others unloaded the goods, left them there, asked the next order the FSA needed, and then returned to Lebanon. The FSA gave the applicant and the three others a lift back to Wadi Khadid. During the applicant’s sixth visit to Homs, one of his three colleagues was captured after all three were attacked. That occurred when the applicant and his three colleagues were returning to Lebanon.

4. The applicant also gave evidence of the circumstances in which he was shot at in Lebanon after he had returned from his sixth trip to Syria. He said that just before entering a roundabout that was just short of the way to an on-ramp to the highway that led to Beirut, he was shot at by a person in a car behind the applicant’s car.

The Tribunal’s reasons for decision

1. The Tribunal accepted the applicant is a Sunni Muslim from Lebanon. It found, however, that the applicant’s evidence “lacks credibility”. The Tribunal did not find the applicant to be “a reliable, credible or truthful witness” and “that he fabricated his entire claim in order to be granted a protection visa”.[1] The Tribunal made those findings because it found the applicant’s evidence to be implausible.

   [1] CB125, [34]

2. First, the applicant could not recall any dates on which he entered Syria other than to say he began to do it at the end of 2010. The applicant could not even remember the months in which he had taken supplies onto Syria. The Tribunal did not accept the applicant’s explanation for his inability to remember these dates that he was not good with dates

3. Second, the Tribunal found there was no practical reason for the applicant and the three others to expose themselves to the risk of travel into Homs city simply to assist the FSA unload the supplies which the applicant and the three others helped to load onto an FSA vehicle at Wadi Khadid. The supplies could have been unloaded by the FSA themselves in Homs. The Tribunal did not accept the applicant’s evidence about why he and his friends simply did not hand over the supplies at Wadi Khadid without also going into Homs and simply accepting a request for further supplies there.

4. Because the Tribunal did not accept the applicant’s evidence that he ever entered Syria, or that he provided support to the FA, the Tribunal did not accept the applicant’s evidence that he and his three friends were attacked by the Syrian army during the sixth trip, and that one of his friends was captured. The Tribunal also did not accept the applicant’s evidence that Syrian agents sought the applicant at his parents’ house or that they shot at him. In addition to relying on its not accepting the applicant entered Syria, the Tribunal considered this part of the applicant’s evidence to lack credibility. The Tribunal found it was not credible that Syrian agents would take the risk of infiltrating Lebanon simply to search for the applicant and to try to find the applicant by knocking at his parents’ door.

Grounds of application

1. The application contains two grounds of review. The first ground is:

   The Tribunal failed to specify at paragraph 45 of the decision record which evidentiary test it has applied in assessing real risk of significant harm.

2. In paragraph 45 of its reasons for decision, the Tribunal said:

   . . . I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

3. I had the first ground interpreted to the applicant, and I invited him to make submissions in relation to the ground. Perhaps not surprisingly, the applicant made no submissions in relation to that ground.

4. It is unclear what the first ground is intended to claim. The expression “evidentiary test” is particularly obscure. The Minister, in his written submissions, interprets this ground as relying on the decision of the Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33. In SZQRB the Full Federal Court held that the expression “real risk” in s.36(2)(aa) of the Act imported the same standard of assessment of harm as the “real chance” test that is applied when assessing whether a person has a well-founded fear of persecution for the purposes of the Refugees Convention.[2]

   [2] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

5. Accepting that ground 1 intends to claim the Tribunal did not apply the correct test for assessing the risk of harm for the purposes of s.36(2)(aa) of the Act, there is nothing in the Tribunal’s reasons to indicate it applied the incorrect test. In any event, whether or not the Tribunal applied the correct test would have made no difference to the decision the Tribunal made. The Tribunal rejected the applicant’s claims because it did not accept the applicant’s evidence of the facts on which his claims were based.

6. For these reasons, there would be no merit in ground 1 of the application if I were to order an extension of time.

7. The second ground specified in the application is as follows:

   The Applicant has been denied procedural fairness in the making of the decision by the Tribunal with respect to the operation of Section 36(2)(aa) of the Migration Act and in so doing offends the application of Section 420(2)(b). Application of this provision includes the duty of the Tribunal to identify to the Applicant issues which may be of determinative significance, which were not apparent from the terms of the Protected Visa Application completed, nor the Departmental or Tribunal interviews conducted. Such duty also exists independently of statutory obligation.

8. I also had this ground interpreted to the applicant, and I invited him to make submissions in relation to the ground. As with the first ground, the applicant made no submissions.

9. The ground appears to be that there was an issue in relation to the operation of s.36(2)(aa) of the Act of which the Tribunal was required to give the applicant notice. The ground, however, does not identify the issue it is claimed arose in relation to s.36(2)(aa) of the Act. For that reason alone, the ground would have no merit if I made an order extending time.

10. From the material that is before me, the only issue that arose in relation to the application of s.36(2)(aa) of the Act was whether, if the applicant’s evidence were accepted, there would be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk the applicant will suffer significant harm. The Tribunal was not obliged to inform the applicant that this was the issue the Tribunal had to determine; it was for the applicant to make out his case for a Protection visa. In any event, the Tribunal, at the beginning of the hearing, did inform the applicant that this was one of the matters the Tribunal was required to consider. For these additional reasons, ground 2 of the application would have no merit if I were to make an order extending time.

Applicant’s submissions at hearing

1. Although he made no submissions before me in support of the grounds stated in the application for review, the applicant made submissions about four matters which are not stated in the application. All four matters relate to what occurred at the hearing before the Tribunal. The first relates to the following statement the Tribunal member made shortly after the hearing commenced:[3]

   Ok before we start this is a hearing between yourself and the tribunal. So it’s important that you maintain eye contact with me. Ok, just ignore the interpreter. It’s very natural to speak to them or listen to them but just don’t look at them at all.

   [3] Annexure “A” to affidavit of T L Sarkis (Transcript), 16.01.2015, T3.4

2. The applicant submitted that this disturbed and confused him, and it affected his ability to give evidence. He said he needed to be able to look and talk to the interpreter. There is no merit in this submission.

3. The transcript shows that the applicant answered the questions asked of him in a manner that would leave the Court in no doubt that the applicant understood the questions. Further, if the applicant was in fact confused and disturbed, there is nothing in the answers he gave to the Tribunal that could reasonably have suggested to any Tribunal member that the applicant was confused and disturbed. This impression given by the transcript is confirmed by the audio recording of the hearing to which, in response to the applicant’s request, I have listened. The applicant promptly answered the questions the Tribunal member asked of him, and displayed no difficulty in understanding the questions asked of him.

4. Further, there was nothing inherently unfair or improper in the Tribunal member stating to the applicant that it was important for the applicant to maintain eye contact with the Tribunal member. The applicant did not inform the Tribunal member that he would have any difficulty in doing that. In those circumstances, the applicant’s complying with the Tribunal member’s request could only have enhanced the utility of the hearing. It is a matter of common experience that face-to-face verbal communication between two persons is enhanced if the persons maintain eye contact in the course of their verbal exchanges.

5. The second matter about which the applicant made a submission was the Tribunal member’s asking the applicant to draw a map to describe the incident in which the applicant claimed the Syrian army shot at the applicant and his three colleagues on their return from Syria, and a map to describe the incident in which the applicant claimed he was shot at on the road when going to visit his parents. The applicant submitted it was not appropriate that he be asked to draw a map because he was not a “professional architect”. There is no merit in this submission. The applicant did not inform the Tribunal member that he had any difficulty in drawing a map; and there is nothing in the transcript that could have suggested to the tribunal that the applicant had any difficulty in drawing maps.

6. The third matter about which the applicant made a submission relates to the Tribunal member asking the applicant what kind of weapon was used at the time the applicant was shot at on the road on his way to his parents.[4] The applicant submitted that he could not know what sort of weapon was used to shoot at him. There is also no merit in this submission. Whether or not the applicant could reasonably be expected to know the type of weapon that was used when he was shot at on the road, the transcript shows that the applicant did not say to the Tribunal he did not know; the applicant answered: “I think it was just a normal gun. Just a gun and they were putting it [out] of the car and shooting”. The applicant also submitted to me that, at the time of the incident, he was running away. That may be so. But this was not a mater the applicant put to the Tribunal and, if he did, it was a matter for the Tribunal, not this Court, to consider.

   [4] T18.9

7. The fourth matter about which the applicant made a submission was the Tribunal’s failure to treat him with respect. I have taken this submission to be a claim that the Tribunal adopted a tone that might reasonably lead an impartial observer to apprehend the Tribunal did not approach the applicant’s case with an open mind.

8. The applicant invited me to listen to the audio recording of the hearing before the Tribunal. The applicant said he did not have an audio recording of the hearing and, therefore, was not in a position to inform me which particular parts of the audio recording the applicant wanted me to listen to. Reluctantly, I directed the Minister to provide to me the audio recording of the hearing before the Tribunal; and I indicated to the parties that I would listen to the audio recording in my chambers.

9. I have listed to the audio recording. There is no merit in the applicant’s submission that the Tribunal member treated the applicant with disrespect. Nor would there be any merit in the submission that the Tribunal member conducted the hearing in a way that might lead an impartial observer to apprehend the Tribunal would not bring to bear an open mind to the determination of the applicant’s case. The Tribunal thoroughly examined the applicant on his account of what the applicant claimed occurred. The Tribunal member was entitled to do so; but he undertook his examination in a measured tone which he consistently maintained throughout the hearing.

Other matters

1. The applicant will not suffer any prejudice if I do not make an order under s.477(2) of the Act extending the time for making an application prescribed by s.477(1) of the Act. That is so because I have found the applicant would have no meritorious case for the relief the application seeks if I were to make an order.

Conclusion and disposition

1. For these reasons, I am not satisfied it would be in the interests of the administration of justice to make an order under s.477(2) of the Act to extend the time for the applicant to make an application for review of the Tribunal’s decision. I propose, therefore, to dismiss the application for extension of time, and order that the applicant pay the Minister’s costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 August 2015