SZUWX v Minister for Immigration & Anor

[2015] FCCA 2151

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUWX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2151

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause application filed out of time – refusal of an extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

SZTCV v Minister for Immigration & Anor [2015] FCCA 1677
SZTMD v Minister for Immigration [2015] FCA 150
SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552
SZUSH v Minister for Immigration [2015] FCCA 1013
Vu v Minister for Immigration [2008] FCAFC 59

Applicant: SZUWX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2202 of 2014

Judgment of: Judge Driver

Hearing date: 10 August 2015

Delivered at: Sydney

Delivered on: 10 August 2015

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Russell Byrnes Solicitors

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Clayton Utz

INTERLOCUTORY ORDERS

1. The name of the applicant is not to appear on the transcript of proceedings.

2. The name of the second respondent is amended to the Administrative Appeals Tribunal.

3. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2202 of 2014

SZUWX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As corrected)

1. I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 7 March 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Libya.  Background facts relating to his claims for protection and the decision of the Tribunal on them are conveniently summarised in the Minister’s outline of written submissions filed on 3 August 2015.

2. The applicant is a 34 year old male from Libya[1], who arrived in Australia on 21 June 2010 at the age of 29 on a student visa[2]. On 24 January 2013, he applied for a protection visa[3] .

   [1]  Court book (CB) 2.

   [2]  CB 4.

   [3]  CB 1-59.

3. The applicant claimed to fear persecution in Libya based upon on his imputed support of the former Gaddafi regime arising from his academic scholarship and his membership of the Alashrafa tribe located in Waddan, which supported Gaddafi and his political objections to tribal rule and militias[4]. On the same basis he also made claims under the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). The applicant was interviewed by a delegate of the Minister on 18 June 2013[5].

   [4]  CB 56-59.

   [5]  CB 68, 101. 

4. On 23 August 2013, the delegate refused to grant the applicant a protection visa[6].  The delegate did not accept that the applicant would be imputed with a political opinion of support for the former Gaddafi regime because:

   a)tertiary education was state-sponsored in Libya and therefore all students were recipients of government funds; post-Gaddafi authorities have continued to fund the government scholarship program[7]; and there was no information that the scholarship students who have returned were being systematically targeted[8]; and

   b)there was no information to indicate that residents of Waddan had been subject to reprisal attacks[9] nor that the applicant’s tribe was being targeted[10].

   [6]  CB 93-113. 

   [7]  CB 104.5.

   [8]  CB 105.3.

   [9]  CB 105.5.

   [10] CB 106.5.

5. Further, the delegate did not accept that the applicant would be targeted because of his political objections to tribal rule and militias because his claims in that regard were vague and unpersuasive[11].  The delegate also considered that a number of new claims raised by the applicant during the interview, including working in “civil defence” for the government and the problems for his family were also not credible because they were raised so late and were, again, very vague[12]. Finally, the delegate rejected the complementary protection claims for the same reasons and also added that the general anarchy in Libya would not satisfy s.36(2B)(c) of the Migration Act given it is not a risk faced by the applicant personally[13].

   [11] CB 107.3. 

   [12] CB 107.6-109. 

   [13] CB 110-112.

6. On 4 September 2013, the applicant applied to the Tribunal for a review of the delegate’s decision[14]. On 19 November 2013, the applicant was invited to attend a hearing before the Tribunal to be held on 27 February 2014[15].  On 27 February 2014, the applicant and his migration agent attended the hearing before the Tribunal[16].

   [14]  CB 114-120. 

   [15]  CB 126. 

   [16]  CB 131, 137 at [3]-[4]. 

7. On 7 March 2014, the Tribunal made its decision affirming the decision of the delegate[17].  The Tribunal noted that the central issue was the applicant’s credibility[18].  The Tribunal did not accept that the applicant was a credible witness as his claims were inconsistent with the available country information and were internally inconsistent.  Accordingly, the Tribunal found that Australia did not owe the applicant any protection obligations.

   [17]  CB 136-144. 

   [18] CB 139 at [20].

8. The application filed in this Court on 7 August 2014 was filed approximately three months outside the time prescribed in s.477(1) of the Migration Act. The applicant accordingly requires an extension of time. The Court was, in recent days, presented with a proposed amended application for which the applicant would require leave. I have proceeded on the basis that, if I was minded to grant an extension of time, I would also be minded to grant that leave, notwithstanding the objections of the Minister. The proposed grounds in the amended application are:

   Ground 1: Procedural Fairness

   1. The second respondent failed to make a finding on a substantial, clearly articulated argument replying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   Particulars

   a) From [21]-[23] of the Decision Record, the applicant claimed that he is a member of the Alashrafa tribe from Wadden, Al Jufra, Southern Libya, which was pro-Gaddafi and is now targeted by anti Gaddafi militias.

   b) At [26], the Second Respondent claimed to have taken into account reports of NATO airstrikes on Waddan in September 2011 and one report that referred to Waddan as a Gaddafi loyalist stronghold, which support the Applicant’s claims.

   c) At [33], the Second Respondent claimed to have taken into account the claim by the applicant that ‘two of his cousins were killed in Misrata because they were from the Alashrafa tribe and were considered to support the Gaddafi regime.’ The Second Respondent found ‘[g]iven the reports of violence in that city, the Tribunal accepts that they were killed.’

   d) At [37], the Second Respondent accepted that there are some Islamist militias among the many militias in Libya.’

   e) At [38], the Second Respondent accepted that ‘there is a lack of central control dysfunctional administration, endemic corruption and tribunal factional influences.’ Moreover, the Second Respondent observed ‘the country is unstable, the society is fragments, divided along tribal, political, cultural and religious lines with political retribution’

   f) However, the Second Respondent erroneously found tat [38] that the ‘Tribunal does not accept that the applicant will suffer harm if he returns for any of those reasons.’

   g) To fail to respond to a substantial, clearly articulated argument relying upon established facts was as least to fail to accord natural justice to the Applicant by the Second Respondent.

   Ground 2: Jurisdictional Error

   2. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an interger of his claims. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.

   Particulars

   20. At [25]; [27 and [31] of the decision record, the second respondent found that ‘there is no country information that supports the applicant’s claims.’

   21. However, there was an abundance of country information before the second respondent supporting the claims of the applicant, including:

   a)      28 April 2013 report “Gunmen surround foreign ministry in Libya capital”;

   b)      29 April 2013”Gunmen keep Libyan foreign ministry under siege”;

   c)      7 May 2013 “Libya gunmen keep up siege on ministries”;

   d)      10 June 2013 “Deadly clashes in Libya as protesters demand disbanding of militias” about the Libya Shield militia, Benghazi (an umbrella group of brigades based inBenghazi);

   e)      19 September 2012 “Militia Rule in Libya” (re assault on the American diplomatic mission in Benghazi on the anniversary of9/11);

   f)      5 July 2012 “Libya: Rule of Law or Rule of Militias?”

   g)      13 March 2013 “Libyan militias promise wealth in unstable nation”;

   h)      17 February 2012 “Libya 1 year later: militias rule”;

   i)      4 July 2012 Libya: “Militia stranglehold co 1rnsive for rule of law”;

   k)      September 2012 “Militias Become Power Centers in Libya”.

   Ground 3: Relevant Considerations

   3. The second respondent failed to take into account relevant considerations, when exercising power.

   Particulars

   a) The Second Respondent failed to take into account relevant considerations, when exercising power.

   Particulars

   a) The Second Respondent failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958 (Cth).

   b) The Second Respondent failed to take into account the matters identified in PAM 3 Refugee and Humanitarian Complementary Guidelines.

   c) The Applicant was denied the benefit of a DFAT Country Information Assessment Report for Libya and was therefore denied the opportunity to present arguments and submissions in that regard.

   d) The Second Respondent did not have the benefit of a DFAT Country Information Assessment Report for Libya when it made its decision and as a result, did not base the decision on probative evidence.

   e) The Second Respondent failed to take into account, relevantly the country information provided by the Applicant at [24] of the Decision Record. (errors in original)

9. Apart from the court book, I have before me as evidence an affidavit by the applicant in which he seeks to explain his reasons for delaying coming to this Court.  There are documents annexed to that affidavit being correspondence from the applicant’s former solicitor Mr Sam Issa. Counsel for the Minister pursued notices to produce additional documentation concerning correspondence or dealings with Mr Sam Issa, but no documents were produced other than those annexed to his affidavit.  The applicant was cross-examined on his affidavit.

10. I was taken by counsel for the applicant to the considerations relevant to a decision on an application for an extension of time, such as the present.  Those considerations are well known.[19]  In general terms, I have directed my attention to the extent of the delay which, as I have said, is approximately three months, the explanation for that delay and the interests of the administration of justice.

    [19] See for example SZUSH v Minister for Immigration [2015] FCCA 1013 at [15].

11. In my view, the applicant’s explanation for the delay, which was significant, are not satisfactory.  It is plain from the information in the court book and the applicant’s cross-examination that he is a well-educated and intelligent man, having obtained tertiary qualifications in Australia following a course of study in the English language.  He had the benefit in these proceedings of an interpreter in the Arabic language, and I accept that he is more comfortable in that language, given that it is his first language. 

12. The applicant says in his affidavit that he had 35 days to file a judicial review application from the date of the Tribunal decision.  Plainly, then, he was aware at the time he made his affidavit of that qualification on his right of review.  The applicant explains the delay by saying that he was originally represented by Mr Issa, who advised him to seek advice from a barrister regarding his prospects for success on judicial review.  He says he was suffering from financial hardship at the time and could not afford to pay a barrister.  Mr Issa advised the applicant that he could seek Ministerial intervention.  That was done, but the request was denied. 

13. The applicant then decided to seek an opinion from someone else and engaged his current solicitors on 23 July 2014, who apparently advised that he had reasonable prospects of success on a judicial review application. The applicant deposes that he did not at that time know that the limitation period was 35 days. That is corroborated by the annexed email from Mr Issa to the applicant on Thursday 13 March 2014 which refers to a limitation period of 28 days, both relating to Ministerial intervention and judicial review. That advice was wrong in relation to the limitation period for judicial review, but the effect of that error was simply to indicate to the applicant that he needed to make a decision within a shorter time than that prescribed under the Migration Act.

14. The email from Mr Issa, which the applicant could not specifically recall, makes clear that the applicant was promptly provided with a copy of the Tribunal decision and that Mr Issa had discussed it with him.  Mr Issa makes clear that the applicant at that point had two options:  Ministerial intervention or judicial review before this Court.  Mr Issa sought urgent instructions.  It is apparent that instructions were given to seek Ministerial intervention.  The second email from Mr Issa on Monday 16 June 2014 advises of the unsuccessful outcome of that request for Ministerial intervention.

15. In my view, and notwithstanding the submissions from the applicant’s counsel to the contrary, the applicant made a considered choice in March 2014 on the basis of consultations with his then solicitor to seek Ministerial intervention in preference to seeking judicial review.  There is authority that, in those circumstances, an approach to the Court following the unsuccessful outcome of a request for Ministerial intervention is not a satisfactory explanation for the delay in coming to Court.[20]  I adhere to that view and find that the applicant has not advanced a satisfactory explanation for the delay. 

    [20] See for example Vu v Minister for Immigration [2008] FCAFC 59 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed.

16. I have nevertheless considered whether the interests of the administration of justice require the grant of an extension of time.  I have concluded that they do not. 

17. The proposed grounds of judicial review in the amended application raise three grounds.  The first asserts a want of procedural fairness and the second asserts jurisdictional error in the Tribunal failing to engage properly with the grounds advanced by the applicant for the protection visa.  Grounds 1 and 2, in my view, are related. 

18. On a first reading, the Tribunal’s conclusions at [38], in relation to Convention protection, and [45], in relation to complementary protection, appear surprising.  Libya is a country with obvious problems.  According to publicly available information, there is a question about whether it has a functioning government, the extent of control of that government, if it is a functioning government, over the territory of the country and serious internal strife between rival militias and factions which control various parts of the country. 

19. Viewed in that light, it would seem that the applicant must face some degree of risk of harm if he returns to Libya.  His involuntary return would seem to present practical issues for the Australian government.  If he was to be returned, where would he be returned to and who would be in control of that place?  How would the applicant make his way from the point of return to his home district in the South of Libya?

20. Those were not matters, however, that needed to trouble the Tribunal.  The Tribunal was obliged to consider the grounds advanced by the applicant in his visa application and, as submitted by the Minister, it did so.  While it is arguable that there is a disconnection between the Tribunal’s findings, the available information and its reasoning process, the Minister cogently submits that the Tribunal properly reasoned that the applicant’s particular claims were not accepted and that the risk he faces is the same as that faced by the rest of the population in Libya.

21. The third ground in the proposed amended application relates to the Tribunal’s obligation to follow Ministerial Direction No.56 and PAM3 Refugee and Humanitarian Complementary Protection Guidelines (Guidelines) to the extent relevant. There is recent authority, including from me, on that issue[21].  As I have indicated previously, it is for the Tribunal to determine whether the Guidelines are relevant, although the Tribunal cannot avoid the need to consider such relevance in circumstances where such consideration can properly be expected.

    [21] SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 at [26]-[54]; SZTCV v Minister for Immigration & Anor [2015] FCCA 1677 at [68]-[72]; SZTMD v Minister for Immigration [2015] FCA 150 at [15]-[21].

22. The recent cases of SZUQZ and SZTCV dealt with circumstances in Sri Lankan prisons.  The present decision concerns lawlessness and general strife in Libya.  Obviously, the circumstances are different.  It is not clear to me what specific guidance the Guidelines might have provided to the Tribunal.  The Tribunal was clearly aware of the Guidelines because it refers to them in the introductory portion of its reasons.  However, there is no discussion of the Guidelines.  What is apparent is that the Tribunal was, to some extent, grappling in the dark because it did not have available to it a country report from the Department of Foreign Affairs and Trade.  Such a report would no doubt have been of assistance to the Tribunal if it had been available.

23. The Tribunal was reliant on the country information made available by the applicant and that which the Tribunal could discover itself.  The available information painted a picture of considerable uncertainty as to circumstances in Libya, but in those circumstances it is not necessarily apparent that the Tribunal erred by failing to discuss specifically the detail of the Guidelines.

24. I conclude that while the proposed grounds of review are arguable, they do not persuade me that the interests of the administration of justice require the granting of an extension of time. 

25. I will, accordingly, refuse the request for an extension of time.  The consequence is that the application is incompetent. 

26. I order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date:  17 August 2015

CORRECTIONS

1. Order 3 and paragraph 26 have been corrected by inserting the word “fixed” after “application” and inserting the word “$4,500” after “in the sum of”.

2. The words after “$4,500” have been deleted in order 3 and paragraph 26.