SZUYI v Minister for Immigration

[2015] FCCA 2642

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2642

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 476, 477(1), 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05(2)(c)

M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 82 ALD 24
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252
SZQGO v Minister for Immigration and Citizenship & Anor [2012] FCA 177; (2012) 125 ALD 449

Applicant: SZUYI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2349 of 2014

Judgment of: Judge Manousaridis

Hearing date: 23 September 2015

Delivered at: Sydney

Delivered on: 14 October 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

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 Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2349 of 2014

SZUYI

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. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 1 April 2014, and the applicant filed his application for judicial review on 22 August 2014. The applicant, therefore, is some 108 days out of time.

Principles for extending time under s.477(2)

1. Under s.477(2) of the Act, the Court may order the extension of the 35 day time period if satisfied of two things. First, the application for such order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   [1] [2013] FCA 1284; (2013) 139 ALD 252 at [47])

   [47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b) Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

3. In most cases, the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship & Anor in the context of extending time for making an appeal, the “Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2]

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

Explanation for delay

1. In the section headed “Grounds of application for time” the application states: “I was not aware that I have good grounds to appeal”. At the hearing, when I drew this ground to his attention, the applicant, who is not legally represented, said that the application was prepared by a solicitor. The applicant was otherwise unable to say anything about the ground for seeking an extension of time stated in the application. The ground for extension of time stated in the application, unadorned by any additional information, does not constitute a reasonable or adequate explanation for the applicant’s delay.

2. I did ask the applicant why he did not file his application within the 35 day period. The applicant said his solicitor did not advise him of any time limit. Assuming that is so, it does not constitute an adequate explanation for delay. It is not unreasonable to expect lay persons to make inquiries of their lawyers about legal avenues that may be open to them after they become aware of an adverse decision by the Tribunal and by when such legal avenues are available to be pursued.

3. Notwithstanding the absence of any adequate explanation for the delay, I would place no weight on the applicant’s delay if I were to be satisfied the application the applicant filed would have merit if I were to make an order under s.477(2) of the Act. To determine that question, will be necessary to set out the applicant’s claims and the Tribunal’s reasons for not accepting those claims.

Applicant’s claims for protection

1. The applicant is a citizen of Lebanon. In his application for a Protection visa, the applicant claimed he is a non-practising Sunni Muslim, and a homosexual. [3] He claimed that when he was 14 years of age he was sexually harassed by his employer. Since that day “the feeling towards male started with me”.[4] The applicant was unable to speak about these feelings to anyone, not even his parents. After the age of 17, the applicant accepted his situation and his attraction towards males. He secretly had three relationships with males and lived a lie. The applicant left Lebanon when his parents started planning for his marriage and started choosing the nominees to marry him. The applicant wanted to come to Australia to live his life as he wanted without fear of being harmed or killed if his situation were to be discovered.

   [3] CB28

   [4] CB28

2. Before the Tribunal, the applicant gave evidence of the relationships he claimed he had beginning when he was 17 years of age. He claimed that his first relationship was with a classmate. He said they had sex in the toilets during recess every week or every two weeks for the whole school year which was about nine months. The applicant’s friends informed him that the person had been caught and that the applicant should stay away from him because he was gay. The second person with whom the applicant claimed he had a homosexual relationship with was a customer he met in 2009 at the barber shop where the applicant worked. The applicant maintained contact with the second person until he left Lebanon for Australia in 2012. The applicant and the second person visited a gay nightclub in Beirut “three to four times” together, and would return home at “12 or 1.30 am in the morning”.[5] The third person with whom the applicant claimed he had a relationship with was introduced to the applicant by the second person. All three of them went out together. The applicant claimed that he kept these relationships and his sexuality a secret from his family and also from the broader Tripoli society as he feared “being harmed or killed”.[6]

   [5] CB114, [15]

   [6] CB28

3. Before the Tribunal, the applicant claimed that since his arrival in Australia he has had further homosexual relationships and has been open with others in the Lebanese community about his sexuality. The applicant asserted this newfound freedom has put him in further danger, as his family and community in Lebanon have been informed about his sexuality and relationships and continue to threaten him.

Tribunal’s decision

1. The Tribunal found the applicant’s claims “lacked credibility”, that he was not a “reliable, credible or truthful witness”, and that “he fabricated his entire claim in order to be granted a protection visa”.[7]

   [7] CB117, [36]

2. The Tribunal did not accept the applicant’s account of his first relationship in Lebanon. The Tribunal found it “implausible” that no one would have noticed two classmates having sex in the school toilets during recess on a “weekly or fortnightly” basis;[8]  the applicant claimed the relationship with the first person was secret, yet before the Tribunal the applicant said the applicant’s friends warned him to stay away from the first person because he was gay; the applicant showed no concern for the first person after he was informed the first person was caught for being gay; and the applicant was confused about “when the relationship ended and how it related to the end of the school year”.[9]

   [8] CB117, [37]

   [9] CB114, [13]

3. The Tribunal also did not accept the applicant had a relationship with the second person. The “chance encounter” with a customer of his barber shop “was coincidental”;[10]  despite claiming to face death if his sexuality was discovered the applicant visited gay nightclubs, attended bathhouses and went for coffee with his second partner even though the applicant claimed the second person was “obviously gay from the way that he looked and talked”.[11] The Tribunal also did not accept the applicant had a homosexual relationship with the third person because the applicant claimed the third person was introduced to the applicant by the second person, and the Tribunal did not accept the applicant had a relationship with the second person. The Tribunal considered its conclusions strengthened by the absence of any photographic evidence of the applicant together with the three people he claimed to have had a homosexual relationship, or of any emails or other correspondence.

   [10] CB117, [39]

   [11] CB114, [39]

4. The Tribunal also found that the applicant’s having visited in Australia in 2009 and 2010 to be inconsistent with his claim that since 2007 he lived in fear in Lebanon because of his homosexuality. The Tribunal did not accept the applicant’s explanation that he was unaware he could apply for protection. The applicant had been in Australia for periods of three months on each occasion which would have allowed him to seek information about his rights to protection.[12] The Tribunal also was not satisfied the applicant was the victim of any sexual assault.

   [12] CB118, [41]-[42]

5. The Tribunal did not accept the applicant had exhibited any evidence that he pursued a homosexual lifestyle in Australia, either during his present or previous two visits. The applicant had no record of interacting with, or trying to establish contacts with the gay community in Sydney.  The Tribunal referred to country information that indicates there is an active scene for Arabic-speaking gays in Sydney. For that reason, the Tribunal did not accept the applicant’s explanation for his lack of interaction, namely lack of English.

6. The Tribunal gave no weight to the evidence provided by friends of the applicant in support of his claims because they had no “direct knowledge” of the applicant’s homosexuality other than that he had told them he was gay.[13] The Tribunal also disregarded the submission made by the applicant’s representative that the applicant was merely “being cautious in Australia”.[14]

   [13] CB116, [31]

   [14] CB119, [47]

7. Ultimately, on consideration of the applicant’s claims, individually and cumulatively, the Tribunal was not satisfied that the applicant met the criterion under s.36(2)(a) of Act.[15] On this basis, the Tribunal was also not satisfied that there are substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Act.[16]

   [15] CB119, [48], [51]

   [16] CB119, [52]

Grounds of application

1. The application contains one ground of review:

   1. I do not agree with the RRT decision, on the basis that the Tribunal did not give me a fair and reasonable hearing.

2. By itself, there is no merit in this ground. It does not identify the matters which it is claimed rendered the hearing before the Tribunal not to be fair or reasonable.

3. At the hearing, the ground was translated to the applicant and I invited the applicant to make submissions in relation to this ground. The applicant submitted that the Tribunal did not believe anything the applicant said, and that the applicant had spoken the truth. The applicant said that his solicitor drafted the ground after the applicant told his solicitor he was not satisfied with the Tribunal’s decision. These matters do not raise any arguable case of jurisdictional error. Whether or not the Tribunal believed the applicant’s claims was a matter for the Tribunal. It is beyond argument that it was open to the Tribunal not to accept the applicant was a witness of truth for the reasons the Tribunal gave.

4. I also drew to the applicant’s attention the statement he made in paragraph 3 of his affidavit he filed with his application, namely, that he wished to have the Tribunal’s decision reviewed “on the basis of natural justice”. This paragraph was translated to the applicant and I invited him to make submissions in relation to it. The applicant said he left Lebanon because Lebanon is not fair, there is no justice there, and he wished to see justice here. When I asked the applicant whether he understood what the words “natural justice” meant, the applicant said “the truth”.

5. From the applicant’s submissions, it is apparent he did not understand paragraph 3 of his affidavit. In any event, paragraph 3 raises no arguable case that the Tribunal denied the applicant procedural fairness. Given the delegate did not accept the applicant’s claims, there can be no doubt that the applicant was on notice that his credibility would be in issue before the Tribunal. That it was in issue was made apparent by the questions the Tribunal asked the applicant. Thus, for example, the Tribunal asked the applicant how nobody noticed two boys having sex in the toilets during recess at a boys school, given the need for people to go to the toilet;[17] the Tribunal put to the applicant that it was reasonable to expect him to know what month and year he finished school;[18] the Tribunal put to the applicant that the applicant claimed he lived in fear of being gay in Lebanon since 2007, yet he had come to Australia in 2009 and 2010 yet did not apply for a Protection visa;[19] and the Tribunal said it had concerns the applicant had no record of interacting with the gay community in Australia.[20]

   [17] CB113-114, [10]

   [18] CB114, [12]

   [19] CB115, [14]

   [20] CB116, [27]

Other matters

1. At the hearing before me, the applicant submitted that he had been let down by lawyers whose only interest was to charge him fees. He submitted his lawyers did not give him the right guidance in his case before the Tribunal. They did not advise him how to prepare for the case. The applicant also submitted that he was affected by his mother’s illness and by the fact that he has been unable to work in Australia. None of these matters, however, raises any arguable case of jurisdictional error.

Conclusion and disposition

1. I am not satisfied it is necessary in the interests of the administration of justice that the time for filing the application be extended. I propose, therefore, to dismiss the application for an extension of time. I will hear the parties on the question of costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 October 2015