SZVDC v Minister for Immigration
[2015] FCCA 2304
•3 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVDC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2304 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.466, 477(1), 477(2) |
| SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 |
| Applicant: | SZVDC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2629 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2015 |
REPRESENTATION
The applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
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.
The applicant pay the first respondent’s costs.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2629 of 2014
| SZVDC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application 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). That application is necessary because the Tribunal made its decision on 20 January 2014, but the applicant did not file his application with this Court until 23 September 2014.
Principles governing exercise of power under s.477(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.
Explanation for delay
The applicant, who is not legally represented, gave evidence of the matters he says explains the delay. The applicant said that the lawyer he retained to represent him before the Tribunal informed the applicant of the Tribunal’s decision affirming the decision of the delegate of the first respondent (Minister) not to grant the applicant a Protection visa. In response to the applicant’s question about what needed to be done, the applicant’s lawyer told the applicant “Don’t worry. Don’t worry. I will fix it up for you”. The applicant was first advised to apply to this Court when he was placed in detention. The applicant’s lawyer offered to make the application for the applicant provided the applicant paid him $5,000. The applicant raised the money, and the applicant’s lawyer filed the application.
The application that was filed on behalf of the applicant states that “[m]y affidavit provides an explanation for the Applicant’s delay in making this application for the Federal Circuit Court”. That appears to be intended to be a reference to an affidavit made by the applicant’s lawyer. The applicant informed me he did not wish to rely on that affidavit because, the applicant said, the lawyer did not tell the applicant anything about the affidavit.
In short, the explanation for the applicant’s delay is that he relied on his lawyer to advise him, but his lawyer failed to advise him that the applicant needed to apply to the Court within 35 days of the day on which the Tribunal made its decision. In my opinion, that is not an acceptable explanation for delay. Retaining a lawyer does not relieve an applicant from responsibility from asking particular questions from the lawyer about the applicant’s rights, and how those rights are to be advanced. It is not an acceptable explanation of delay that a person relied on assurances from a lawyer that matters will be “fixed up” without making any effort to ascertain further information from the lawyer.
That the applicant has not provided an adequate explanation for the delay will not carry great weight against my making an order under s.477(2) of the Act if I were to be satisfied the applicant would have a meritorious case if an order were made. It is to that question I now turn.
Claims for protection
In his application for a Protection visa, the applicant, who is a citizen of Egypt, claimed he will be shot and killed like his father and brother.[1] The applicant said he fears harm and mistreatment from people that are against the President of Egypt. He fears this because his family are followers of the President. The applicant’s father served as Secretary for the National Party and was shot and killed. The applicant’s brother was also shot in the arm.[2] The applicant does not believe the police in Egypt will be able to protect him because they do not have the resources to provide protection and have no control over the discrimination against the applicant due to his political opinion.[3]
[1] CB8
[2] CB9
[3] CB10
Tribunal’s reasons for decision
Although the applicant attended an interview with the delegate, he did not attend a hearing before the Tribunal. The applicant instead informed the Tribunal he did not wish to give oral evidence, and requested the Tribunal to make a decision on the papers.[4]
[4] CB213; CB221, [23]
In its reasons for decision, the Tribunal referred to information received by the Department of Immigration and Border Protection (Department) that indicated the applicant’s father was not deceased.[5] The Department’s post in Egypt contacted a person they believed to be the applicant’s father who confirmed he had a son in Australia who had gone there to study, and who had been in Australia for four years. The delegate wrote to the applicant advising the applicant of the information the Department had received. The applicant responded in writing that the person the Department had spoken to was his uncle and not his father.
[5] CB223, [27]
The Tribunal noted the applicant had not availed himself of the opportunity to attend a hearing before it, and that the Tribunal was, therefore, unable to discuss with the applicant the credibility issues raised by the delegate, the applicant’s claim that the Department spoke to his uncle and not his father, and the evidence that indicates the applicant’s father is still alive.[6]
[6] CB224, [32]
The Tribunal was not satisfied on the evidence before it that the applicant’s father was dead, or that the applicant’s brother was shot in the arm.[7] Further, the Tribunal could not be satisfied the applicant’s father was killed because of his political activities, that the applicant’s brother was shot because of the father’s political activities, or that the applicant’s family follows the National Party or the NDP (National Democratic Party).[8] In those circumstances the Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Convention reason or that the applicant is at risk of significant harm if returned to Egypt.[9]
[7] CB224, [33]
[8] CB224, [33]
[9] CB224, [33]-[36]
Grounds of application
The application raises one ground of review:
1.The Tribunal denied the Applicant procedural fairness by failing to the Applicant [sic] adverse evidence which led the Tribunal to make an adverse credibility finding.
Particulars
i)The Tribunal made a number of adverse credibility finding [sic] without properly putting its concerns to the Applicant or properly putting to the Applicant the implications of such concerns.
ii)Although the Applicant elected not to attend the oral hearing, the Tribunal failed in its duty to put the adverse evidence referred to in paragraph 25 of [the] decision record for comment.
iii)The Tribunal applied the same reasonings [sic] and findings of the Delegate of the Minister without making further enquiries or making its own findings.
I had this ground interpreted to the applicant. The applicant could not understand particular (ii). The applicant otherwise made no submissions in relation to any part of the ground.
The first particular claims the Tribunal made a number of adverse credibility findings about the applicant without properly putting its concerns to the applicant. There is no merit to that particular. The Tribunal made no adverse credibility findings. The Tribunal said that because the applicant did not avail himself of the opportunity to attend the hearing before the Tribunal, the Tribunal was “unable to discuss with him the significant credibility issues raised by the delegate”.[10] Because of the Tribunal’s inability to discuss these credibility issues, and its inability to discuss other issues, such as the reasons why the applicant claimed that the person to whom government officials spoke was his uncle, not his father, the Tribunal could not be satisfied that the applicant’s father and brother had been targeted for the applicant’s father’s political activities.[11] Further, given the delegate raised a number of matters relevant to the credibility of the applicant’s claims, the applicant was on notice that the credibility of his claims was an issue before the Tribunal, and the Tribunal was not obliged to give the applicant any notice of those matters.[12]
[10] CB224, [32]
[11] CB224, [33]
[12] “The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”” - SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]
The second particular also lacks merit. It asserts the Tribunal had a duty to put to the applicant the adverse evidence referred to in paragraph 25 of the Tribunal’s reasons. The particular, however, appears to intend to refer to the adverse evidence that is identified in paragraph 26 of the Tribunal’s reasons. That paragraph sets out part of the delegate’s reasons which identify a number of matters relating to three documents the applicant submitted in support of his claim that his father had been killed and his brother injured. That the delegate identified these matters in his reasons was sufficient notice to the applicant that they would be matters in issue before the Tribunal.[13] The applicant, therefore, had an opportunity to address those issues with the Tribunal had he so elected. Further, the applicant elected not to accept the Tribunal’s invitation to attend a hearing before the Tribunal to give evidence. By making that election, the applicant “is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them”.[14]
[13] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]
[14] S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25] (Ryan, Merkel, Conti JJ)
The third particular in effect claims the Tribunal failed to exercise its own mind on the application that was before it, and simply adopted the conclusions of the delegate. There is no merit in that claim. The Tribunal identified the matters relevant to the applicant’s claims the Tribunal would have discussed with the applicant, had the applicant attended a hearing before the Tribunal, and indicated that in the absence of the Tribunal’s being able to discuss those matters with the applicant, the Tribunal could not be satisfied that the applicant’s father was killed or the applicant’s brother was injured, because of the applicant’s father’s political activities.
There is also no merit to the extent particular (iii) claims the Tribunal was obliged to make its own inquiries. The Tribunal does not have a general duty to make inquiries. At most, the Tribunal has a duty to enquire about critical facts, the existence of which may be easily ascertained.[15] Particular (iii) identifies no such critical facts and no matters on the basis of which it could arguably be said their existence could easily have been ascertained.
[15] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]- [29]
Other matters
At the hearing before me, the applicant complained that his lawyer “destroyed my case”.[16] The applicant complained that his lawyer failed to advise him about what evidence he should give to the Tribunal,[17] and he failed to inform the applicant of any hearing before the Tribunal.[18] The applicant, however, acknowledged he signed a document which authorised his lawyer to request the Tribunal to decide the applicant’s application for review “on the papers before the Tribunal”.[19]
[16] T15.15
[17] T12.25
[18] T12.30
[19] CB213
The matters the applicant stated before me raise no arguable case of any fraud by the applicant’s lawyer; the matters, therefore, raise no arguable case of jurisdictional error.[20] Further, given the issues the delegate identified in relation to the applicant’s claims, and the applicant’s not identifying to me any documents or information which the applicant believes could have been put to the Tribunal to address those issues, the applicant’s lawyer’s advice that the applicant authorise the lawyer to request the Tribunal deal with the application “on the papers” may well fall within the range of reasonable advice that could have been given to the applicant.
[20] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Conclusion and disposition
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 also propose to order that the applicant pay the Minister’s costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 September 2015