SZUWG v Minister for Immigration & Border Protection

[2014] FCCA 2702

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWG & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2702

Catchwords:

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether an extension of time should be granted pursuant to s.477 of the Migration Act 1958 (Cth) – whether it is necessary in the interests of justice to extend time in light of delay of 174 days in seeking judicial review of decision of Refugee Review Tribunal – whether grounds of the applicants’ application have raised an arguable case – unsatisfactory explanation for delay – insufficient prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth) ss.36, 477

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

First Applicant: SZUWG

Second Applicant: SZUWH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2169 of 2014

Judgment of: Judge Emmett

Hearing date: 18 November 2014

Date of Last Submission: 18 November 2014

Delivered at: Sydney

Delivered on: 18 November 2014

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter.

Solicitors for the Respondent: Mr Liam Dennis (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2169 of 2014

SZUWG

First Applicant

SZUWH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the first applicant that time be extended to him, and to the second applicant, his wife, to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 7 January 2014. Pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”), the Court has power to extend time to the applicants to seek judicial review of a decision of the RRT if the Court is satisfied that it is necessary in the interests of justice to do so.

2. Pursuant to s.477(1) of the Act an application for judicial review of a decision of the RRT must be made within 35 days of the date of the RRT’s decision. In the present case, the RRT’s decision was 7 January 2014, and the application seeking judicial review was filed on 4 August 2014. In the circumstances, the application is some 174 days out of time.

3. The applicants were unrepresented before the court this morning, although had the assistance of an Arabic interpreter.

4. I explained to the applicants that this Court has no power to interfere with the decision of the RRT unless the Court is satisfied that the decision is affected by a mistake that goes to its jurisdiction. I further explained to the applicants that, operative on the mind of the Court in considering this application would be the applicants’ explanation for the delay, and the prospects of success of the substantial application for judicial review. I also explained to the applicants the costs consequences that may flow to them if they pursued their application and were unsuccessful. I also explained to the applicants that it would presently appear on the face of the RRT’s decision record that the decision was not affected by an error that went to the RRT’s jurisdiction.

5. The applicants confirmed that they wished to continue with their application for an extension of time. For that reason, the applicants were invited to say whatever they wished by way of explanation for their delay.

6. The first applicant confirmed the matters identified in the grounds of application for an extension of time, as well as the substantive grounds of the application, as follows:

   “Grounds of Application for an Extension of Time

   1. I just received a copy of the Refugee Review Tribunal decision which I requested from the lawyer. I just became aware that my application was refused on 7 January 2014.

   2. The lawyer made my claim for a protection visa contrary to my wishes that my wife and I would be considered as meeting the criteria for family as all our children are in Australia. I just became aware that my lawyer made an application under protection visa contrary to my instructions.

   3. I am not responsible for the delay in lodging this application. I find that this is the only option available to me after I was told by Compliance Section that I should depart Australia. I was interviewed by Compliance Officers and have at all times told my Case Manager that I have no problem back in Lebanon and I never experienced harm in Lebanon but I wish to stay with my children and grandchildren as I have no children in Lebanon.

   The Grounds of the Application Are:

   1. The lawyer fabricated my claim without my knowledge and intentionally deprived me from attending an interview with the Department of Immigration as well as another interview with the Refugee Review Tribunal.

   2. The lawyer misled me as well as other authorities and lodged a fraudulent claim.”

7. At the heart of the first applicant’s complaint appears to be a complaint that the migration agent who acted for him lodged a protection visa application contrary to his wishes and did not tell him that he had been invited to an interview either before a delegate of the first respondent, or to a hearing before the RRT.

8. The first applicant confirmed that he did not give instructions to his lawyer to seek a protection visa for himself or his wife; that he has no problems in Lebanon, where he never experienced any harm; but that he wished to stay with his children and grandchildren in Australia as he has no children in Lebanon.

9. Even if the Court was to accept that explanation as reasonable, the Court must consider whether the applicants’ application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time to the applicants.

10. At the time of lodging their application for judicial review of the RRT’s decision, the first applicant filed an affidavit, sworn/affirmed by him on 3 August 2014, in support of his application. For completeness, I set out the matters referred to in the affidavit as follows:

    “1. I am the applicant.

    2. My daughter-in-law, read the Refugee Review Tribunal’s decision to me which I attach.

    3. I became aware that the Tribunal’s decision includes that I personally declined the opportunity to be interviewed about my application by an Officer of the Department of Immigration in August 2013 and that I also declined an invitation to give evidence and present arguments scheduled to take place on 7 January 2014. My lawyer, Sam Issa, failed to inform me about the two abovementioned interviews and I confirm that I was told that he will attend on my behalf personally and argue my case and I was not aware that he lodged an application for protection visa on my behalf.

    4. I ask that the Honourable Court accept my late application which I became aware of only recently.”

11. Annexed to the applicant’s affidavit was a copy of the RRT’s decision record.

12. The RRT’s decision record notes that, in a protection visa application lodged in the name of the first applicant, he claimed to fear persecution in Lebanon because of his religion, and his implied political opinion. The RRT noted the applicants are Sunni Muslims and that they claim to have left Lebanon because of rising sectarian tension between Sunnis and Shiites. The RRT further noted that the applicants had declined to be interviewed about their applications by an officer of the Department and, accordingly, their visa applications were refused on 9 August 2013.

13. The RRT noted that the delegate found that the first applicant had provided insufficient information about his own circumstances in Lebanon to establish that he had a well-founded fear of persecution, or that there was a real risk that he would suffer significant harm if he was to return to Lebanon. The RRT also noted that the applicants sought review of the delegate’s decision in an application lodged with the RRT on 19 August 2013.

14. The RRT determined that it had jurisdiction to hear the application and noted that the applicants provided no additional information in support of their application for review, and declined an invitation to give evidence and present arguments at a hearing before the RRT on 7 January 2014. The RRT noted that, by letter dated 6 January 2014, the applicants requested that a decision be made on the papers.

15. The RRT found the applicants’ claims to be too vague and lacking in detail to establish whether the first applicant had a well-founded fear of persecution in Lebanon, or that there was a real risk that he would suffer significant harm if returned to Lebanon. The RRT accepted that country information before it supported the increasing sectarian tensions in Lebanon, but found that the applicants had not provided sufficient information about their own circumstances to support a conclusion that the first applicant personally, or the applicants as  members of a group, were at risk of serious or significant harm as a result of such tensions or violence.

16. The RRT noted that although the first applicant he may be persecuted because of an imputed political opinion, he did not specify what that opinion may be, and provided no information about the basis upon which an adverse political opinion might be attributed to him. The RRT found that without the opportunity to test the applicants’ claims at a hearing, or to obtain additional information about basis for the claims, it was unable to be satisfied that the first applicant had a well-founded fear or persecution because of an imputed political opinion.

17. The RRT noted that the first applicant did not make specific claims that he had been imputed with a political opinion in the past, or that he had ever been harmed as a consequence. The RRT also noted that, in fact, the first applicant stated that he had not been harmed in the past. The RRT further noted that available country information did not support a contention that Sunni Muslims were generally at risk of persecution or significant harm in Lebanon because they are imputed to hold certain political views. The RRT found that there was no credible information before it to suggest that Sunni Muslims faced serious harm amounting to persecution, or significant harm, merely by reason of their religion.

18. The RRT was not satisfied that the first applicant had any profile that would put him at risk for any of the reasons identified in country information. Ultimately, on the information before it, the RRT concluded that the applicants did not meet the criteria for protection, either under ss.36(2)(a) or under 36(2)(aa) of the Act and, accordingly, affirmed the decision under review.

19. There is nothing on the face of the RRT’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before it, and for the reasons it gave. There is no evidence before this Court to suggest that the applicants’ failure to participate in either of the hearings, or in their protection visa application, was caused by more than mere negligence (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35).

20. If the applicant is correct that their application for a protection visa was made without any authority or instruction from them, then it may be that the protection visa application was invalid, in which case this Court would have no jurisdiction to consider judicial review of decisions arising from that protection visa application.

21. However, there is no supporting evidence before this Court to support the first applicant’s bare assertion that the protection visa application was made without his instruction. The claims have been dealt with, both by the Department and the RRT. In the circumstances, I do not accept that the first applicant’s explanation for his failure to seek judicial review of the RRT’s decision to be reasonable.

22. However, of greater significance, it would appear that the applicants’ application for judicial review of the RRT decision, which is based on the grounds to which I refer above, does not have any prospect of success. In such circumstances, it would not be necessary in the interests of justice to extend time to the applicants to seek judicial review of the RRT’s decision.

23. In the circumstances, there is no utility in the Court granting an extension of time to the applicants.

24. Accordingly, the applicant’s the application for an extension of time should be refused, with costs.

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

Associate:

Date: 20 November 2014