SZVMA v Minister for Immigration
[2016] FCCA 727
•4 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 727 |
| Catchwords: MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of protection visas – refusal of an extension of time for show cause application. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 91R, 477 |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 SZUWX v Minister for Immigration & Anor [2015] FCCA 2151 |
| First Applicant: | SZVMA |
| Second Applicant: | SZVMB |
| Third Applicant: | SZVMC |
| Fourth Applicant: | SZVMD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3126 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Russell C Byrnes, Solicitor |
| Solicitors for the Respondents: | Ms K Hooper of DLA Piper |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The first and second applicants are 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 3126 of 2014
| SZVMA |
First Applicant
| SZVMB |
Second Applicant
| SZVMC |
Third Applicant
| SZVMD |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
I have before me an application seeking judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 24 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are four applicants who are a father, a mother and their two children. Subsequent to the Tribunal decision, I am told a third child has been born, and I am also told that the second applicant is pregnant currently with a fourth child.
Background facts relating to the matter are otherwise dealt with in the submissions of the parties.
The applicants are citizens of Libya. The applicants applied for protection visas on 19 March 2013.[1] The first named applicant (applicant) advanced claims to be owed protection obligations. His factual claims were recited by the Tribunal.[2]
[1] CB 2
[2] at [2]
The applicants claim protection in the Australia due to a well-founded fear of persecution based on their actual or imputed political opinion and their membership of a social group, including death, torture, inhuman or degrading treatment. In particular:
a)the applicant claims to fear returning to Libya because he travelled to Australia with his wife and family so that his wife could study on a Masters of Public and Nutritional Health Ghadaffi government sponsored scholarship;
b)the family returned to Libya in August 2011 for the birth of their second child. They returned to Australia in November 2012, after waiting for the grant of a visa for their newborn baby;
c)while in Libya the applicant's cousin was killed. The applicant was stopped by militia who beat him and confiscated his vehicle. The family is from Benghazi which has been infiltrated by radical Islamists who are extremely violent and supported by Al Quaeda networks;
d)the applicant opposes the militia which will bring him to the adverse attention of the militia;
e)the second named applicant (mother) is an academic and women who engage in academia or the workforce are suppressed under such fundamentalist regimes;
f)at the Tribunal hearing the applicant raised two significant new claims - that his brother had served in the Gaddafi military and the applicant's family were imputed with a pro-Gaddafi profile as a result of this; and that the Ansar al-Sharia militia had attempted to forcibly recruit the applicant in Libya and would harm him if he returned and refused to join them. The applicant claimed that his business in Libya had been forced to close because of his refusal to join the militia.
On 13 September 2013, a delegate of the Minister refused the applicants' visa application.[3] The applicants sought review by the Tribunal on 10 October 2013.[4] The applicant attended hearings before the Tribunal on 14 May 2014[5] and 17 June 2014,[6] at which dispositive issues were traversed.
[3] CB 111
[4] CB 123
[5] CB 158
[6] CB 179
The Tribunal affirmed the decision under review.[7] It found that the applicant was not a credible witness and had fabricated his evidence in relation to his core claims.[8] In summary, the Tribunal:
a)was not satisfied that the applicant's brother served in the Gaddafi military or that the applicant's family had a pro-Gaddafi profile. Consequently, the Tribunal found there was no real chance or real risk of the applicant being harmed as a result of his family's real or imputed political opinions;[9]
b)was not satisfied that the group called Ansar al-Sharia attempted to forcibly recruit the applicant or his cousin, or that the Ansar al-Sharia targeted males who did not agree to join them. The Tribunal did not accept that the applicant was harmed or threatened by Ansar al-Sharia, and found there was no real chance or real risk of the applicant being harmed as a result of any refusal to join;[10]
c)did not accept that the applicant had any interest in expressing in politics or expressing his political views if he was to return to Libya, and did not accept that the applicant had any kind of political profile which would bring him to adverse attention;[11]
d)was not satisfied there was a real chance or real risk the applicant would be harmed because he was a member of the Al Hassy tribe;[12]
e)was not satisfied, based on independent country information, that there was a real chance or real risk of either the applicant or the second applicant being targeted or imputed with a pro-Gaddafi political opinion because of the second applicant's Gaddafi government sponsored scholarship to study in Australia;[13]
f)was not satisfied, based on independent country information, that there was a real chance or real risk that the second applicant would be harmed as a female academic in Benghazi. While the Tribunal accepted that there was some discrimination against women and that the second applicant may be prevented from driving a car, the Tribunal did not accept that the type of harm women in Libya faced constituted serious or significant harm;[14]
g)considered reports concerning generalised violence, however did not consider that the applicants would be targeted for harm for a Convention reason, and found that any risk of harm they would face was as a result of random violence. Therefore, the applicants did not satisfy s.91R(1)(a) of the Migration Act 1958 (Cth) (Migration Act), as a Convention reason or reasons did not constitute an essential and significant motivation for the harm feared.[15]
[7] CB 228
[8] see [8] and [32]
[9] at [33]
[10] at [34]
[11] at [36]
[12] at [39]
[13] at [44]-[45]
[14] at [54]
[15] at [63]
With respect to the complementary protection criterion, the Tribunal was not satisfied that the risk to the applicants was such that the applicants personally faced a real risk of significant harm. The Tribunal noted s.36(2B)(c) of the Migration Act, which provides that there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and not by the applicant personally. The Tribunal applied this provision to find there was no real risk of harm to the applicants as a result of generalised violence in Libya, at [54].
A show cause application was filed on 11 November 2014, approximately two and a half months outside the period prescribed in s.477(1) of the Migration Act. The applicants seek an extension of time in the exercise of the Court’s discretion pursuant to s.477(2). The Minister opposes any extension of time.
On the question of the extension of time, the applicant relies upon his affidavit made on 31 March 2016 in which he explains the reasons for the delay.
I also have before me as evidence for the purpose of considering the extension of time request the court book, filed on 5 January 2015, and an affidavit from the applicant’s solicitor with a bundle of country information, which has been referred to by the Tribunal, which became exhibit A1.
The applicants also rely upon a further amended application which I received by leave today for the purposes of considering the extension of time request. The Minister did not oppose that leave, subject to the applicants paying the Minister’s costs thrown away by reason of the amendments to the application. I did not at that point make any order in relation to costs and ruled that the issue of costs would be dealt with at the end of the hearing.[16]
[16] The costs order ultimately made was made after hearing further submissions from the parties and without objection
As is noted in the parties’ submissions, the Court’s discretion to extend time is a broad one, although considerations including the length of the delay, the explanation for the delay, any issue of prejudice and the merits of the grounds of review (all bearing upon the interests of the administration of justice) are generally considered by the Court pursuant to s.477(2).
In the present case, the delay is a not insignificant delay, and the explanation for it proffered by the applicant is not, to my mind, a convincing one. In essence, the applicant was represented before the Tribunal by a solicitor with whom the applicant had some difficulty. He consulted a migration agent who recommended a course pursuant to which the family’s third child, who had by then been born, made his own protection visa application in preference to the present applicants seeking judicial review of the decision made by the Tribunal.
More recently, the applicants have received different advice, which has brought us to the present proceeding. The advice from the migration agent, while not necessarily wrong, faced an obstacle in s.48A of the Migration Act in circumstances where the applicants who had previously made protection visa applications sought to be included as members of the family group of the new child applicant.
The circumstances are, to my mind, somewhat similar to those that I dealt with in SZUWX v Minister for Immigration & Anor.[17] The Federal Court did not disturb that decision on judicial review.[18] Counsel for the applicant has indicated that the Federal Court’s decision is under appeal to the Full Court of the Federal Court.
[17] [2015] FCCA 2151
[18] see SZUWX v Minister for Immigration [2015] FCA 1389
In my opinion, as in SZUWX, the applicants have made a considered decision to pursue a particular course rather than pursue an application for judicial review. It is not necessary to reflect upon the quality of the advice they received. The pursuit of a second application on behalf of a newly born child may well be an appropriate course to follow, although the attempted inclusion in that application of applicants who had previously made applications may have been unwise.
Having made a choice on a particular course of action, it is not to my mind a persuasive explanation to say now that different advice has been received and a different course is being followed. The conclusion I draw is that a satisfactory explanation for the delay in coming to Court has not been advanced.
There will be cases where the interests of the administration of justice will nevertheless compel the granting of an extension of time. Such cases may include circumstances in which there is an obvious or apparent issue of jurisdictional error by the decision maker under review.
The applicants advance two arguments in the present proceedings concerning the claims for protection by the second applicant, the applicant mother. The grounds advanced, while, in my opinion, arguable, are by no means compelling. They turn first on the proposition that the Tribunal erred in its consideration of relevant and available country information. Counsel for the applicants took me in some detail to that country information, which was tendered in evidence.
It is certainly possible that the Tribunal put a gloss on that country information in order to arrive at the conclusion reached. It is possible that a different Tribunal might reach a different view on the same information. In my view, however, the argument that the Tribunal overlooked relevant material or a relevant consideration is not strong. The information available was considered by the Tribunal and an assessment made on it. It was the Tribunal’s choice what country information it had regard to in circumstances where a report from the Department of Foreign Affairs and Trade was unavailable, and, as is submitted by the Minister, the conclusions reached by the Tribunal, while perhaps debateable, were open to it.
The second proposition advanced on behalf of the second applicant is that the Tribunal fell into the error identified by the High Court in Appellant S395/2002 v Minister for Immigration.[19] This involves consideration of her wearing of the hijab or headscarf. The Tribunal reasoned that because the second applicant already wore the hijab, she could achieve a level of safety by continuing to do so. It is, of course, one thing to wear the hijab by choice. It is another thing to be compelled to do so.
[19] (2003) 216 CLR 473
There was also information available to the Tribunal concerning discrimination in Libya against females in general and professional females in particular and the conservative nature of Libyan society. The society is, of course, highly fractured at present and armed groups are in a position to enforce, should they wish to do so, an extreme interpretation of Sharia law in particular areas of the country. The circumstances are fluid. It is certainly possible that the Tribunal was wrong in its interpretation of the material in terms of the risk faced by the second applicant. A different Tribunal may have reached a different conclusion.
In fact, in the consideration of the claims by the first and second applicant’s third child (and potentially their fourth child), an opportunity will be presented to revisit those claims, having regard to the fact that the Minister will need to consider the claims of the applicant mother in relation to her children.
There is an element of speculation about circumstances in Libya in the absence of a country report from DFAT. As I observed in SZUWX, the Tribunal was to some extent grappling in the dark. I am not aware of any significant improvement in circumstances in Libya. These are matters for consideration by relevant decision makers, but they do not compel a conclusion by the Court that an extension of time should be granted so that the arguments can be further considered on this application.
I will order that the application for an extension of time is refused.
I will order that the first and second applicants are 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
Date: 5 April 2016
2
3
2