SZVLE v Minister for Immigration

[2016] FCCA 2509

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLE & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2509

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – 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:

Federal Court of Australia Act 1976, s.24

Migration Act 1958 (Cth), ss.476, 476(1), 476A(3)(a), 477, 477(1), 477(2), 486A, 486A(1), 486A(2)

Migration Legislation Amendment Act (No.1) 2009 (Cth)
Judiciary Act 1903 (Cth), s.39B

Cases cited:
AZAFX v Federal Circuit Court of Australia [2016] FCA 1139
NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321
MZABP v Minister for Immigration and Border Protection [2015] FCA 1392
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Wei v Minister for Immigration and Border Protection [2015] HCA 51
Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

First Applicant: SZVLE

Second Applicant: SZVLF

Third Applicant: SZVLG

Fourth Applicant: SZVLH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3077 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 June 2016, 14 September 2016

Delivered at: Sydney

Delivered on: 30 September 2016

REPRESENTATION

The first applicant appeared in person and on behalf of the second to fourth applicant assisted by an interpreter

Solicitors for the Respondents: Ms C Saunders of DLA Piper Australia

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 is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3077 of 2014

SZVLE

First Applicant

SZVLF

Second Applicant

SZVLG

Third Applicant

SZVLH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period 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).  By that decision the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visas).

2. There are four applicants. The first and second applicants are husband and wife, and the third and fourth applicants are their sons. The applicants are citizens of Lebanon. The substantive claim for protection was made by the first applicant (applicant), and the other three applicants put forward no independent claims for protection before the delegate or the Tribunal.

3. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 14 February 2014, but the applicants did not file their application with this Court until 5 November 2014. I will first set out the principles that must guide me in determining this application for an extension of time.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) if two things are satisfied. First, an 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 must be 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 at [47]-[48]

   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.

   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. As his Honour noted in this passage, the factors his Honour identified are not prescribed by s.477(2) of the Act, and they do not exhaust all potentially relevant factors. That was said in 2013. Matters, however, have moved on; and judges of the Federal Court have recently articulated what appear to be two inflexible rules about how the discretion conferred by s.477(2) of the Act must be exercised or, more specifically, must not be exercised.

4. The first rule is that this Court cannot, when considering whether it is necessary in the interests of the administration of justice to extend time, inquire into the substantive merits of the application for judicial review. The Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level…into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63]

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

5. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1392 at [63]

   [5] [2015] FCA 1391 at [62]

6. The second rule, which is related to the first, is that an application for an order under s.477(2) of the Act must be heard and determined separately from, and before, the Court hears and considers the substantive merits of the application for substantive relief. Wigney J stated that rule in SZTES v Minister for Immigration and Border Protection:[6]

   Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discretely from the issues that arise in relation to the substantive application. That will avoid the sort of confusion that arose in this matter. Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis. That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application.

   [6] [2015] FCA 719 at [102]

7. Mortimer J agreed with his Honour in MZABP v Minister for Immigration and Border Protection:[7]

   Second at [102] Wigney J refers to the Federal Circuit Court practice of listing both an application for extension of time and the final hearing at the same time, noting that practice may encourage an undue focus on determination of the merits of the proposed grounds of review raised by an application for an extension of time and resulting in an artificial approach to the extension of time application. I agree with those observations. In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.

   [7] MZABP v Minister for Immigration and Border Protection [2015] FCA 719 at [66]

8. The Federal Court’s approach to how the discretion conferred by s.477(2) of the Act must be exercised is illustrated and explained in the recent judgment of Charlesworth J in AZAFX v Federal Circuit Court of Australia.[8] In that case, a matter was listed before a Judge of this Court for the hearing of an application for an extension of time and, if time were extended, for the substantive application for judicial review of a migration decision. The Minister consented to the hearing being conducted “‘as though an extension of time were granted’, with the question of whether to allow the extension to be deferred until the Court forms a view as to the merits of the application”.[9] The Minister submitted to the Judge that the relevant question the Judge had to consider was the “merits in a strict sense”, by which the Minister meant: “[a]re there grounds for the court to make the orders sought?”[10] In a written submission filed after the hearing, the Minister submitted:[11]

   The Court was invited to consider the applicants’ case ‘as though on a final hearing’. The Court did so, hearing full argument on the substantive questions. If the Court reaches the position where it is satisfied that the applicants have not made out their case for jurisdictional error, no matter the intellectual effort required to reach that position, there is no basis on which the Court could be satisfied that it is in the interests of the administration of justice to extend time ...

   [8] [2016] FCA 1139

   [9] [2016] FCA 1139 at [16]

   [10] [2016] FCA 1139 at 17

   [11] [2016] FCA 1139 at [18]

9. In his reasons for judgment, the Judge noted that the Minister had invited the Court to examine each of the applicants’ grounds for review “before turning to the extension of time aspect of the case”.[12] The Minister relied on the approach taken by the High Court in Wei v Minister for Immigration and Border Protection,[13] a case to which I will return later in these reasons. And that is what the Judge did. In the words of Charlesworth J, the Judge “proceeded to give detailed consideration to each of the three proposed grounds for judicial review concluding…that the Tribunal had “properly acquitted the jurisdiction conferred upon it””. [14] The Judge then turned to consider the application for extension of time. The Judge concluded that, although the applicants had provided an adequate explanation for the delay in instituting the proceeding for judicial review, the application for extension of time should be dismissed because the applicants had not “demonstrated jurisdictional error in the decision of the Tribunal”.[15]

   [12] [2016] FCA 1139 at [25]

   [13] [2015] HCA 51

   [15] [2016] FCA 1139 at [27]

10. Charlesworth J, on an application for constitutional writs under s.39B of the Judiciary Act 1903 (Cth), held the Judge made an error of law; and the error consisted in the Judge not considering whether the applicants had a reasonably arguable case for the relief, but instead considering the merits of the application for judicial review that was before him. Her Honour described the error the Judge made as follows (emphasis added):[16]

    I am satisfied that the learned FCC judge erred by conflating the issue of the substantive merits of the proposed application for judicial review with the appropriate test for granting an extension of time under s 477 of the Act in which to make the application pursuant to s 476 of the Act, and so committed an error of law.

    [16] [2016] FCA 1139 at [42]. I have emphasised the words “the appropriate test” in this passage to illustrate that, for Charlesworth J at least, the manner in which the discretion to make an order under s.477(2) of the Act is to be exercised is subject to an “appropriate test” which the definite article “the” suggests must be applied in every case.

11. Her Honour also found that the error of law the Judge made was jurisdictional in nature, thus rending the orders the Judge made liable to be quashed.

12. Her Honour considered the rationale for “the principle that underlies and explains the authorities requiring that, on an extension application, the merits of the proposed application for judicial review be assessed only for the purpose of determining whether the grounds are reasonably arguable”.[17] The rationale is to be found in the availability of a right of appeal under s.24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to the Federal Court against a decision made by this Court in the exercise of its jurisdiction under s.476 of the Act, and, because of s.476A(3)(a) of the Act, the unavailability of an appeal from a judgment of this Court “that makes an order or refuses to make an order under subsection 477(2)” of the Act. In that regard, her Honour said:[18]

    The absence of a right of appeal is…not a mere procedural consequence of a refusal to extend time, but a mandatory consideration to be taken into account in the formation of the FCC’s satisfaction as to what is “necessary in the administration of justice” within the meaning of s 477(2)(b) of the Act at least in cases where the proposed grounds of review are arguable and the other criteria for the grant of the extension are satisfied.

    [17] [2016] FCA 1139 at [49]

    [18] [2016] FCA 1139 at [48]

13. Charlesworth J’s judgment in AZAFX may need to be considered in the light of the High Court’s decision in Wei v Minister for Immigration and Border Protection.[19] There, the plaintiff applied to the High Court for a remedy in the High Court’s original jurisdiction in relation to a migration decision. Under s.486A(1) of the Act, which, in substance, is the same as s.477(1) of the Act, such application had to be made within 35 days of the date of the migration decision. The application to the High Court was made more than 35 days after the day on which the relevant migration decision was made. The High Court, however, had power to extend the period; and that power was to be found in s.486A(2) of the Act, which is materially indistinguishable from s.477(2) of the Act.

    [19] [2015] HCA 51

14. After noting that the “timing of the filing of the application for an order to show cause” meant “that the operation of s 486A will need to be addressed”, Gageler and Keane JJ said that the “operation of s 486A is most conveniently addressed after consideration of the merits of the plaintiff’s argument that the decision was affected by jurisdictional error”.[20] Their Honours then considered whether the decision in question was affected by jurisdictional error, and concluded that it was. It was only after their Honours concluded the decision was affected by jurisdictional error that they considered whether it was necessary in the interests of the administration of justice to make an order under s.486A(2) of the Act. Their Honours concluded it was necessary; and one reason on which they relied for so concluding was their Honours having “already concluded that the decision of the Minister was affected by jurisdictional error”.[21]

    [20] [2015] HCA 51 at [4] (Gageler and Keane JJ) (emphasis added)

    [21] [2015] HCA 51 at [39] (Gageler and Keane JJ)

15. Nettle J, who delivered separate reasons for judgment, devoted all but the last paragraph of his Honour’s reasons to the substantive question of whether the delegate had made a jurisdictional error. His Honour, for reasons different from those given by Gageler and Keane JJ, concluded the delegate did make a jurisdictional error. The only reference his Honour made to s.486A of the Act was to express agreement with Gageler and Keane JJ’s “reasons and conclusions regarding the operation of s 486A of the” Act.[22]

    [22] [2015] HCA 51 at [52] (Nettle J).

16. Unless s.477 of the Act can be distinguished from s.486A of the Act, it will be apparent that what the High Court said and did in Wei is inconsistent with the two rules I have identified. It is inconsistent with the rule that the Court should not consider the substantive merits of the application for judicial review, and that the hearing of an application for an order under s.477(2) of the Act “should not be transformed into a de facto full hearing”. That is so because what occurred in Wei was a “full de facto hearing” of the merits of the application. For Gageler and Keane JJ (and, it may be inferred, for Nettle J as well), whether or not the Court ought to consider the full merits of the application before considering whether it was in the interests of the administration of justice to make an order extending time turns on nothing more than convenience.

17. Again, unless s.477 of the Act can be distinguished from s.486A of the Act, what the High Court said and did in Wei is also inconsistent with the second rule I have identified; and that is because the High Court in Wei concluded that the relevant decision maker made a jurisdictional error before the High Court considered whether an order extending time should be made under s.486A(2) of the Act, and relied on that conclusion for making an order under s.486A(2) extending time. Their Honours considered it was open to them to proceed in this way because they did not consider that satisfaction of s.486A(2) of the Act was a condition precedent to the High Court’s jurisdiction under s.75(v) of the Constitution over an application for constitutional writs in relation to a migration decision that was made after the 35 day period prescribed by s.486A(1) of the Act. As their Honours said, s.486A of the Act “does not, and could not, impose a condition precedent to the invocation of that jurisdiction”.[23]

    [23] [2015] HCA 51 at [41] (Gageler and Keane JJ)

18. In AZAFX Charlesworth J did not consider that the High Court’s approach in Wei to be inconsistent with the construction her Honour had placed on s.477 of the Act; and this is for two reasons. First:[24]

    [I]n each of those cases the High Court identified jurisdictional error on the part of the relevant administrative decision-maker and the question of whether the grounds for review were reasonably arguable (even if weak) therefore did not arise for determination on the extension applications.

    [24] [2016] FCA 1139 at [82]

19. The second reason is as follows:[25]

    Second, the legal context in which the power under s 486A(2) of the Act is to be exercised differs from the context in which the power of the FCC is to be exercised under s 477(2). Neither an applicant for an extension of time under s 486A of the Act nor a respondent to such an application is prejudiced by the determination of that application by reference to the substantive merits of the proposed application for judicial review. The practical result in that context is the same: an adverse result with no vested right of appeal in either party from a judgment of the High Court.

    [25] [2016] FCA 1139 at [82]

1. It will be seen, therefore, that, on the Federal Court’s construction of s.477(2) of the Act, as explained by Charlesworth J in AZAFX, two provisions of the Act – s.477(2) and s.486A(2) – which are materially indistinguishable in their language, which apply to the same subject matter, namely, the “jurisdiction in relation to migration decisions . . . the High Court has under paragraph 75(v) of the Constitution”,[26] and which were introduced into the Act at the same time,[27] nevertheless bear substantially different meanings, and are capable of being applied differently to the same set of circumstances, depending on whether those circumstances are considered by this Court under s.476(1) of the Act or by the High Court in the exercise of its original jurisdiction under s.75(v) of the Constitution. Stated another way, provisions in materially identical terms which regulate the one source of jurisdiction – “jurisdiction in relation to migration decisions . . . under paragraph 75(v) of the Constitution” – which is vested directly in the High Court by s.75(v) of the Constitution, and indirectly in this Court by s.476(1) of the Act, are to be construed and applied differently according to whether that jurisdiction is exercised by the High Court or by this Court. This result has been brought about, not because of the text of s.477(2) of the Act, but because Parliament excluded a right to appeal to the Federal Court from an order made under s.477(2) of the Act.

   [26] Section 476(1) of the Act

   [27] Migration Legislation Amendment Act (No. 1) 2009

2. Why the unavailability of a right to appeal to the Federal Court from an order under s.477(2) of the Act should result in s.477(2) being construed differently from s.486A(2) of the Act is not apparent. It is of course true that, unlike the jurisdiction conferred on the High Court by s.75(v) of the Constitution, Parliament may attach such conditions as it considers appropriate to the conferral on this Court of the jurisdiction the High Court has under s.75(v) of the Constitution in relation to migration decisions. The relevant question, perhaps, may be whether Parliament has manifested an intention that this Court should exercise the jurisdiction it has under s.476(1) of the Act differently from the manner in which the High Court may exercise the jurisdiction it has under s.75(v) of the Constitution in relation to migration decisions. Given the near identity of the language of s.486A(1) and (2) of the Act, on the one hand, and s.477(1) and (2), on the other, it is not obvious that, in relation to migration decisions, Parliament intended this Court to exercise its jurisdiction under s.476 differently from the manner in which the High Court exercises its jurisdiction under s.75(v) of the Constitution, only because Parliament has enacted that no appeal should lie to the Federal Court from an order made under s.477(2) of the Act.

3. There is no question, however, this Court is bound to apply the construction and application of s.477 of the Act favoured by the Federal Court, as explained by Charlesworth J; and that is what I propose to do in the application before me. In doing so, I will assume that Mortimer J’s observation that the question of whether the grounds of an application for judicial review is arguable is to be determined at “a reasonably impressionistic level”[28] is not to be read literally. That is, I will assume the Court, when determining whether grounds are reasonably arguable, must read carefully the material before it, and carefully attend to the submissions made to it,  must apply a process of reasoning that involves the Court identifying the reasons for which the relevant migration decision was made, the grounds on which the decision is challenged, and assessing whether the grounds disclose an arguable case of jurisdictional error, given the reasons for which the migration decision was made.

   [28] [2015] FCA 1391 at [62]

4. I first turn, then, to the applicants’ explanation for delay. 

Explanation for delay

1. The applicant filed with the Court a letter which purported to explain his delay in commencing the proceedings. At the hearing before me, the applicant gave evidence in which he said he did not wish to rely on the letter. The applicant said his migration agent prepared the letter and, although the applicant signed the letter, he did so without reading it. The applicant said his migration agent simply told the applicant he should sign the letter, because the letter was required by this Court. The applicant said he had no idea after the Tribunal gave its decision that he had the right to make an application to this Court, because his migration agent did not advise him until after the applicant, through his migration agent, had applied for, and was refused, Ministerial intervention. In short, the applicant’s explanation for the delay is that his agent failed to advise him.

2. The Minister does not dispute the applicant’s evidence, and accepts that the explanation the applicant gave is satisfactory. In those circumstances, I too accept the applicant’s evidence; and I will proceed on the assumption the applicant has given an adequate explanation for his delay.

Merits of substantive claim

1. The next matter I consider is the substantive merits of the applicant’s proposed claim. I do so to determine whether they disclose sufficiently arguable grounds to warrant an extension of time. To be in a position to do that, it will be necessary to set out the applicant’s claims for protection, and the Tribunal’s reasons for rejecting those claims.

Claims for protection

1. In a statement dated 10 March 2013 that formed part of their application for Protection visas,[29] the applicant claimed he was an active member of the Future Movement (FM) and participated in the Lebanese parliament elections in 2005, 2009, and 2010. The applicant claimed he suffered persecution and received threats from the Lebanese Army Intelligence (LAI) and two individuals, Mr K, and Mr M.

   [29] CB1-2

2. The LAI is “Pro Hizbollah” and “[pro] the Syrian regime”, and its main task is to scare opponents of Hezbollah and President Assad. The LIA also covers and facilitates criminal acts and targets active members of the FM and their allies be sending threats or by detaining and torturing them for being terrorists.

3. Mr K is also “Pro Hizbollah” and “[pro] the Syrian regime”, and “very much the man of the Syrian regime” in al-Mineh. In 2010 Mr K tried to win the seat of al-Mineh by providing services, giving bribes, and threatening the electors. Mr K failed, however, because the applicant, his brother, his father, and the “rest [of] the free people” in al-Mineh “stood up and refused to fear him or the criminals behind him”.

4. Mr M, on the other hand, was a follower of the (then) Prime Minister, Najib Mikatti, and was the head of one of the strongest armed militia in Bab Tabbaneh. He was killed in 2011, but Mr M’s brother, Mr S is the head of the militia and the unofficial right hand of Najib Mikatti. Mr M and Mr S, hated the applicant and his family because they failed to force the applicant and his family to support Najib Mikatti.

5. After the applicant arrived in Australia in 2006 as a student, he travelled back to Lebanon five times to participate in elections and sub-elections. The applicant was in Lebanon in 2011 at the time Mr M was killed. The applicant said he was “lucky to be alive”, and he decided not to return to Lebanon again due to the political instability and the risk it poses to the applicant’s life.

Hearing before the Tribunal

1. Before the Tribunal the applicant claimed that if he returned to Lebanon he would be killed by his cousin, Mr S, who had threatened to kill him in July 2011. The applicant also claimed Syrian and Hezbollah supporters in al-Minieh threatened him because he supported the FM. In response to the Tribunal’s request for more specific information about the threats, the applicant claimed the Syrian and Hezbollah supporters had threatened FM supporters since 2005, that each time he travelled to Lebanon he would have fights with them during the election campaign, that he was a well-known personality in Lebanon because a former member of Parliament was his neighbour, that he feared being killed or kidnapped, and he first had this fear in 2009 during the election. The applicant said his cousin, Mr S, led a group of Salafists who knew the applicant belonged to the FM.

2. The applicant also made the following claims:

   a)When he was in Lebanon in 2011, Mr S’s brother was shot and killed during fighting. Three weeks after that occurred, Mr S asked the applicant to join his group because the applicant had previously been in the military, and had some relation with the Alawite member for Parliament who lived in Jabal Mohsen. The applicant said he was not keen to join Mr S’s group, and Mr S threatened to kill the applicant if the applicant did not join. After the applicant left for Australia, Mr S thought the applicant had run away.

   b)FM people were being targeted after the assassination of Saad Hariri’s main adviser, and the international court trial into Rafiq Hariri’s killing.

   c)People from Bab Tabbaneh circulated a video showing them threatening to burn down all FM offices, and Mr S contacted the applicant’s father stating that if his son came back to Lebanon he would kill him and his family.

Tribunal’s decision

1. The Tribunal was not satisfied the applicant was a reliable, credible, or truthful witness and found that the applicant had fabricated the entirety of his claims to fear harm in Lebanon for the purpose of obtaining a Protection visa.[30]

   [30] CB264, [34]

2. First, the Tribunal did not find credible the applicant’s claim that he was approached to join a militia led by his cousin Mr S and was threatened with death for refusing to do so, and left the country. The Tribunal relied on the following matters:

   a)The Tribunal accepted Mr S is a field commander of a Salafist militia group that operates against pro-Syrian forces, and that his brother was shot and killed in Tripoli.[31] The Tribunal however did not accept Mr S was the applicant’s cousin because, although they shared the same family name, that name was common in North Lebanon. Given the other credibility concerns it had about the applicant, the Tribunal concluded the applicant had attempted to establish a familial link when no such link existed.

   b)The Tribunal did not accept Mr S sought to enlist the applicant and later threatened to kill him and his family when he refused to do so. The Tribunal noted that the applicant did not include his attempted recruitment in his statement, instead, he claimed that Mr S “hated him and his family for failing to support” the Prime Minister.[32] The Tribunal did not accept the applicant’s explanation for not including this in his Protection visa application because he “wanted to keep the letter short” and “that he was concerned that the letter could fall into the wrong hands”.[33] The Tribunal noted the applicant was unable to explain how the statement could have fallen into the wrong hands.

   c)The applicant’s claim of being approached by Mr S lacked credibility, because the applicant claimed to be a non-observant Muslim, and yet the group he claimed to have been asked by Mr S to join was a radical Salafist militia.

   d)In his application for a Protection visa, the applicant claimed Mr S hated the applicant and his family because of their political differences. The Tribunal did not accept that Mr S would seek to recruit a secular third cousin whom he hated to revenge the death of his Salafist brother, Mr K.

   [31] CB264, [35]

   [32] CB264, [37]

   [33] CB264, [37]

3. Second, while the Tribunal accepted the applicant supports the FM and is an active voter, it did not accept the applicant holds any formal or informal position within the organisation, that he organised rallies for them, handed out leaflets, or attempted to encourage others to vote for the FM, or that he had any political profile. The Tribunal relied on the following matters:

   a)The Tribunal found the applicant was inconsistent in his explanation of his duties and his level of activities.

   b)In his Protection visa statement, the applicant claimed he travelled back to Lebanon five times mostly to participate in the elections and sub-elections; yet on three of those occasions there were no parliamentary elections or by-elections, or municipal elections during the periods he was there.

   c)The applicant gave inconsistent evidence about the role of his father in the FM. Before the Tribunal the applicant claimed his father was not active politically but just voted for the FM. In his Protection visa application, on the other hand, the applicant claimed that he, his father and brothers stood up to and refused to fear a pro-Syrian political figure. The Tribunal considered this involvement would indicate a greater level of activity on the part of the applicant’s father than “just that of a voter”.[34]

   d)The applicant claimed the FM candidate Hisham Alameddine received 81,000 votes in the 2009 election though country information indicates he received just over 36,000. The Tribunal considered it was reasonable to assume that a party activist or somebody very interested in politics would know the correct vote if they were confident enough to offer one to the Tribunal.

   e)The applicant’s account of his role in the election was vague. The Tribunal gave no weight to a letter issued by an official of the FM which stated the applicant was an active member of FM because it did not mention any specific tasks the applicant carried out other than that the applicant “participated” in the 2009 parliamentary elections. The Tribunal also gave no weight to a letter the applicant claimed came from a council member of the FM in Australia because it, too, was vague and pointed to no significant role by the applicant.

   [34] CB265, [41]

4. Third, regardless of whether the applicant would be known as a political activist, there was no independent country information that supported the claim that FM supporters were targeted. Given that FM is by far the strongest political grouping in al-Mineh, the Tribunal did not accept that opposition groups with far less political appeal would target FM members. The Tribunal found this conclusion was reinforced by the applicant’s returning to al-Mineh for two and half months in 2010 and for over five months in 2011, and that the applicant did not make an application for protection until March 2013.

5. Fourth, the Tribunal did not accept the applicant’s claim that the situation “was much worse now”. The Tribunal found the applicant was vague as to why that was, other than to say that there was the trial of Rafiq Hariri’s killers, there were explosions and looting, and his friends were having their cars smashed, their homes attacked, and their persons assaulted. The Tribunal noted the court hearing to which the applicant referred was being conducted at the Hague, and that the alleged killers were being tried in absentia. The Tribunal also found there was no country information to support these claims.

6. Fifth, the Tribunal did not accept the applicant received threats from the Lebanese Army. The claim was made in his Protection visa application without any explanation of how the Lebanese Army claim applied to the applicant; and, in any event, the applicant did not repeat the claim before the Tribunal. The Tribunal also relied on its finding that the applicant had no profile within the FM.

Grounds of application

1. The grounds of application identify a number of distinct complaints. The applicant also made oral submissions. I propose to first consider the grounds as set out in the application and then identify submissions the applicant made orally.

2. The first complaint concerns the Tribunal’s rejection of the applicant’s claim that Mr S was the applicant’s cousin.[35] The applicant claims the Tribunal did not “provide any clear, indisputable or concrete evidence that [Mr S] is not my cousin, to contradict my claim that [Mr S] and I share the same hometown and that our respective grandfathers were first cousins”, and that the “sole basis” on which the Tribunal rejected the applicant’s claim that Mr S was the applicant’s cousin. This raises no arguable case of jurisdictional error. First, although the “[u]ncritical rejection of evidence” by the Tribunal may constitute one means of demonstrating that the Tribunal has not properly undertaken a review,[36] the Tribunal “is not required to accept what an applicant says”.[37] Nor must the Tribunal “have rebutting evidence available before [it] can lawfully hold that a particular factual assertion by an applicant is not made out”.[38] Second, the Tribunal did not only rely on searches of the Internet in not accepting Mr S was the applicant’s cousin. The Tribunal also relied on “the applicant’s credibility issues identified throughout this finding”.[39]

   [35] Applicant’s grounds of application, [3]

   [36] NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 at [7] (Hill J)

   [37] NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 at [6] (Hill J)

   [38] Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7] (Heerey J)

   [39] CB264, [36]

3. The second claim the applicant makes relates to the Tribunal’s not accepting the applicant’s claim that Mr S sought to recruit the applicant. The applicant submits the Tribunal’s not being so satisfied was based “solely on failing to mention this information in my visa application”.[40] The applicant further submits that he explained to the Tribunal that he believed it necessary to keep his application short.

   [40] Applicant’s grounds of application, [4]-[5]

4. This raises no arguable jurisdictional error. It goes no further than expressing disagreement with the Tribunal’s not accepting the applicant’s explanation for not including information on which he relied before the Tribunal in his application for a Protection visa. The Tribunal did not accept that explanation because the applicant did not explain how he thought his application would fall into the wrong hands. It is beyond argument it was reasonably open to the Tribunal not to accept the applicant’s explanation for the reasons the Tribunal gave.

5. The third claim relates to the Tribunal’s not accepting Mr S had threatened the applicant. The applicant submits that “[n]o concrete proof is adduced by the Member to reach this conclusion”.[41] Again, this discloses no arguable case of jurisdictional error because it incorrectly assumes the Tribunal requires positive evidence not to accept a claim. In any event, the Tribunal gave reasons for not accepting the applicant had been threatened by Mr S, and it is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons the Tribunal gave.

   [41] Applicant’s grounds of application, [6]

6. The fourth claim relates to the Tribunal’s not accepting the applicant would be targeted as a FM activist and that the situation much worse now in al-Mineh.[42] The applicant submits there is abundant country information that verifies the applicant’s claims. The applicant then identifies country information which he submits verifies his claim. This discloses no arguable case of jurisdictional error. It seeks to traverse findings that are unquestionably within the jurisdiction of the Tribunal by reference to material that does not appear to have been before the Tribunal.

   [42] Applicant’s grounds of application, [7] –[13]

7. The fifth claim relates to the Tribunal’s not accepting that Salafists had expressed violent hatred of the FM.[43] This raises no arguable case of jurisdictional error. There is no arguable case the Tribunal did not accept that Salafists had expressed violent hatred of the FM. The Tribunal referred to a video without making a finding one way or the other about whether Salafists had expressed violent hatred towards the FM. The Tribunal, however, considered that the claim the applicant made in his Protection visa that Mr S hated the applicant and his family because Mr S’s militia failed to force the applicant to support Mikatti was inconsistent with the claim the applicant made before the Tribunal that Mr S would seek to enlist the applicant.

   [43] Applicant’s grounds of application, [14]

1. The applicant said a number of oral submissions. First, the applicant submitted the Tribunal incorrectly said his uncle threatened the applicant, whereas the applicant’s claim was that he was threatened by his cousin. There is no arguable basis for this submission. The Tribunal made no finding that the applicant claimed his uncle threatened him. There is no question that the Tribunal correctly understood the applicant claimed he feared harm from his cousin. It is true that the delegate understood the applicant to claim he feared harm from the uncle.[44] That the delegate may have misunderstood the applicant to claim fear of harm from his uncle affords no arguable case that the Tribunal made a jurisdictional error.

   [44] CB176

2. Second, the applicant submitted that Mr S was related to the applicant. That repeats the claim the applicant made in his application. This raises no arguable case of jurisdictional error; it only manifests disagreement with the Tribunal’s findings. It is beyond argument that it was reasonably open to the Tribunal, for the reasons it gave, that Mr S was not the applicant’s cousin. The applicant also submitted that the Tribunal could have looked into the history of Mr S. That, too, does not raise an arguable case of jurisdictional error, because it is not arguable the Tribunal was under a duty to make any such inquiry.

3. Third, the applicant submits the Tribunal did not believe the applicant was a member of the FM. The applicant submitted he was an activist, although not a member. Again, this discloses no arguable case of jurisdictional error; it only expresses disagreement with the Tribunal’s findings. As I have already indicated, the Tribunal accepted the applicant supports the FM and is an active voter. It did not accept, however, that the applicant holds any formal or informal position within the organisation, or that he organised rallies for them, handed out leaflets, or attempted to encourage others to vote for the FM, or that he had any political profile. It is beyond argument that it was reasonably open to the Tribunal to make that finding on the material before it and for the reasons it gave.

4. Fourth, the applicant submitted that in answering the Tribunal’s question about the number of votes Hisham Alameddine received, the applicant said he misunderstood the interpreter to have asked him about the 2005 election, rather than the 2009 election, and he therefore gave an answer which the Tribunal considered to be incorrect. This too raises no arguable case of jurisdictional error. There is nothing that could arguably suggest the Tribunal was informed by the applicant that he had misunderstood the interpreter, or that the Tribunal ought reasonably to have been aware of the error.

5. Fifth, the applicant submits the Tribunal did not accept the letter issued by an official of the FM which stated the applicant was an active member of FM, or the letter issued by the a council member of the FM in Australia. This raises no arguable case of jurisdictional error. As I have already noted, the Tribunal referred to the letters, but gave them no weight. The Tribunal found that the letter from the FM did not mention any specific tasks the applicant carried out other than that the applicant “participated” in the 2009 parliamentary elections; and the Tribunal found the letter from the council member of the FM in Australia to be vague and pointing to no significant role held by the applicant in FM. It is beyond argument that it was reasonably open to the Tribunal not to give any weight to the letter for the reasons it gave.

6. Finally, the applicant submitted the Tribunal member said if the applicant and his family moved to Beirut they would be safe. It is not apparent from the Tribunal’s reasons that it made any such comment to the applicant; the option of the applicant and his family moving to Beirut is not a matter on which the Tribunal relied for not accepting the applicant’s claims. There is no arguable case of jurisdictional error, therefore, only because the Tribunal may have said or suggested to the applicant that he and his family would be safe in Beirut.

7. The applicant also claimed he and his family would face danger if he and his family returned to Lebanon. That raises no arguable case of jurisdictional error.

Conclusion

1. Even though I have assumed the applicant has given an adequate explanation for his delay in applying to the Court, I am not satisfied that it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act; and I am not so satisfied because I am satisfied the application raises no arguable case for relief and, thus, there is no merit in the application that would justify the Court making an order under s.477(2) of the Act.

2. I propose, therefore, to dismiss the application for an extension of time.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 30 September 2016