SZVZA v Minister for Immigration

[2016] FCCA 1396

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1396

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.36(2)(a), 36(2)(aa), 476, 477(1), 477(2)

SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: SZVZA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 47 of 2015

Judgment of: Judge Manousaridis

Hearing date: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the First Respondent: Mr A Keevers 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 time period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416.

3. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 47 of 2015

SZSVA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

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).[1] By that decision, the Tribunal affirmed a decision made by the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). 

   [1] The applicant did not complete that part of the form that must be completed if an applicant seeks to apply for an order under s.477(2) of the Act. The applicant, however, gave an explanation for his delay in an affidavit he filed on 29 April 2015. The Minister was prepared to accept that affidavit as an application. The applicant confirmed he wished it to be treated as such. I am satisfied that it is open to me to find that the affidavit constitutes an application in writing for the purpose of s.477(2) of the Act, and I will so treat it.

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 3 December 2014 but the applicant did not file his application with this Court until 8 January 2015. That is one day outside the 35 day period prescribed by s.477(1) of the Act. I will first briefly set out or identify the principles that must guide me in determining this application for an extension of time.

3. Under s.477(2) of the Act, the Court may order the extension of the 35 day period if two things are satisfied. 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 must be satisfied it is necessary in the interests of the administration of justice to make such order.

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

   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 paragraph 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 (section 477, subsection (2), paragraph (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.

   [2] [2013] FCA 1284 at [47]-[48]

5. 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, 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”. [3] What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.

   [3] [2012] FCA 177; (2012) 125 ALD 449 at [29]

6. I first turn to the explanation for delay. The applicant’s explanation for delay is set out in his affidavit of 29 April 2015.  The applicant there says:

   When I failed the RRT application, after then my case manager told me, “Going to Legal Aid for apply.  They can help you.”  I apply Legal Aid.  I call 4/5 five times but they no answer.  I don’t know they apply or no.  That times Christmas holiday coming.  That’s so I apply myself, that’s so I late one day.

7. This explains why the applicant delayed in making an application.  It does not explain why the application was not made within the 35 day period. Given, however, that the applicant filed his application only one day outside of the specified time, I give very little weight to the applicant having filed his application out of time. The more important issue is whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time. The assessment of that question requires me to set out the claims for protection the applicant advanced before the Tribunal.

8. The applicant is a citizen of Bangladesh.  He arrived in Australia on 20 July 2012 as an irregular maritime arrival. The applicant was first interviewed by an officer of the Department of Immigration and Citizenship on 16 August 2012, and he lodged an application for a Protection visa on 12 November 2012.  In a statement that formed part of his application for a Protection visa, the applicant claimed to fear harm in connection with his support of the Bangladesh Nationalist Party (BNP).  The applicant claimed that after becoming a supporter of the BNP in 2001, he attended meetings every three to six months and assisted BNP elders in party business. 

9. In September 2006, following the imposition of an interim government, the applicant began receiving phone calls from an unknown member of the Bangladesh Awami League, in which the caller threatened the applicant that once the interim government came into power he would be killed. Later that month, two of the applicant’s friends received similar threats. Around 10 to 12 days later, the applicant received another phone call from the same person who again told the applicant he would be killed. Three days later the applicant received another telephone call “warning if he loved his life he should flee the country.”

10. The applicant also claimed that, earlier in 2006, a friend of the applicant, who was also a BNP supporter, was “beaten up severely” by members of the Awami League after receiving a similar threatening phone call. The applicant believed on the basis of what had happened to his friend that the threats he had received were credible. Fearing for his life, the applicant decided to leave Bangladesh and travel to Malaysia in March 2007, where he stayed until travelling by boat to Australia.

11. The Tribunal accepted the applicant is a citizen of Bangladesh and that his identity is as he claims it to be. It found, however, that the applicant’s claims lacked credibility. The Tribunal considered the applicant’s account of receiving anonymous death threats because of his support of the BNP to be “unsubstantiated from any source and consist of no more than a number of simple and notable vague assertions”, and concluded it was not satisfied as to the credibility of the applicant’s claims.

12. The Tribunal relied on a number of matters. First, the Tribunal found that even if it accepted that the applicant had the claimed level of involvement with the BNP it was not plausible that such involvement would have led to anyone seeking to harm the applicant. On the applicant’s evidence he was not a leader of the BNP.  His involvement was limited to attending large public meetings which were also attended by Awami League members or supporters, canvassing votes during elections and informing others about the meetings. Before the Tribunal, the applicant referred to elections held from 2001 to 2006.  He claimed, however, to have only played a role in the national parliamentary election held in 2001.  He said that during that election the applicant, with a group of other BNP supporters, approached people to convince them of the virtues of the BNP.  At that time, however, the applicant was only 17 years of age. The Tribunal saw the applicant’s age as a circumstance that might reasonably be seen as limiting the influence he could bring to bear in favour of the BNP.

13. Second, the Tribunal did not find credible the applicant’s claim that he would tell people of forthcoming BNP meetings because the applicant’s evidence was that the BNP meetings were “very large public events”. The Tribunal found it difficult to accept that the organisers would rely on word of mouth as a means of publicising them. 

14. Third, the applicant’s evidence concerning the telephone threats was vague and in some respects implausible. The Tribunal referred to the applicant claiming that beginning September 2006 the same person had called him on three occasions, and in his statutory declaration claiming the person or persons who did call him (the Tribunal noted the applicant in the statutory declaration implied a different person called him on each occasion) was or were a member or members of the Awami League yet the applicant did not know that but only assumed it to be so. The Tribunal also found implausible the applicant’s claim that after being told that two of his friends had received similar threatening telephone calls the applicant did not confer with these friends about the calls to see whether the same caller had been involved, nor did the applicant have a clear understanding about what had happened to his two friends claiming that he “believed” they had both left Bangladesh. 

15. Fourth, the applicant remained in Bangladesh for six months before leaving for Malaysia despite claiming the calls that he received left him fearful for his life. The Tribunal considered the applicant’s evidence that he remained at his home during this period noting that it was possible that anyone who was motivated to harm the applicant would likely have known where he lived.  The Tribunal put this concern to the applicant who in response asserted that in Bangladeshi culture no one would break into another person’s home to kill him, and that he had been “lucky”.  The Tribunal did not accept this explanation and found the applicant’s conduct was inconsistent with his claim that he felt such a threat as to force him to flee Bangladesh. 

16. The Tribunal also considered the submissions made by the applicant’s advisor about the significant level of political violence in Bangladesh, in particular the history of rivalry between the BNP and the Awami League.  The Tribunal accepted there is a significant level of political violence in Bangladesh, much of it revolving around the rivalry between the BNP and the Awami League.  The Tribunal also accepted that the distinction between formal membership and support for these parties is not clear, and the risk of violence is not limited only to leaders or members but that supporters can also be targeted particularly in the context of public events. The Tribunal did not accept, however, that everyone who has a political opinion in favour of the BNP and who has supported the party in some way is at risk of harm given that both parties have millions of followers. 

17. A matter perhaps bearing separate consideration is the Tribunal’s treatment of a submission made by the applicant’s representative on 3 November 2014 that the applicant “was a BNP supporter who regularly attended meetings and demonstrations and informed the community of them”. The Tribunal said it was not satisfied the applicant had ever claimed that he participated in or helped publicise BNP-led demonstrations “to the extent that these might have been distinguished from routine large-scale meetings”. The Tribunal accepted that the applicant held a political opinion in favour of the BNP and that he attended public meetings. The Tribunal did not, however, accept on the basis of the applicant’s alleged role in the 2001 election or any elections held subsequently, that he participated in demonstrations or that he was involved in publicising BNP elections.

18. The Tribunal was therefore not satisfied the applicant’s BNP activities were such as to give him a profile as an active BNP supporter or that he would be identifiable as a person who had more than a passive role in the party or that he had expressed his political opinions in a way or at a level that would expose him to harm from members of the Awami League or any other person, or that the applicant’s friends received similar threats or that he had left Bangladesh for the claimed reasons. Based on these findings, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations pursuant to s.36(2)(a) of the Act and was also not satisfied that the applicant met the criteria specified in s.36(2)(aa) of the Act.

19. I then turn to the grounds of review stated in the application. The applicant did not have legal representation, but he was, of course, assisted by an interpreter.  The applicant indicated to me he did not wish to make any submissions in relation to any part of the issues I have to consider. Accordingly, I am left to determine whether the applicant has a sufficiently arguable case for judicial review of the Tribunal’s decision by reference to the grounds stated in the application and in an affidavit he filed with the application on 8 January 2016.  I first turn to the grounds stated in the application. 

20. The first ground is:

    The tribunal made an error in saying that, “I am not satisfied that the applicant was a member or activist when he lived in Bangladesh.”

21. Although not stated, I read this ground as relating to the applicant’s being a member or activist of or in relation to the BNP.  Even if it is so read, the ground does not disclose any arguable case the Tribunal made a jurisdictional error. The ground does not identify the error it is claimed the Tribunal made or the nature of the error.  As my summary of the Tribunal’s reasons indicate, the Tribunal considered the applicant’s claims and gave reasons for not accepting that the applicant’s BNP activities were such as to give him a profile as an active BNP member or that he would be identified as a person who had more than a passive role in the party or that he had expressed his political opinions in a way or at a level that would expose him to harm from members of the Awami League or any other person or that the applicant’s friends received similar threats or that he had left Bangladesh for the claimed reasons. There can be no doubt in my mind that it was reasonably open to the Tribunal not to accept any of these matters for the reasons it gave. 

22. The second ground is:

    The tribunal made an error not considering the current situation in Bangladesh.

23. This, too, does not disclose any arguable jurisdictional error. It does not disclose the error the Tribunal is claimed to have made or the nature of any such error. The ground does not identify the current situation in Bangladesh in relation to which it is claimed the Tribunal made an error. In any event, as I have already noted, the Tribunal considered the political situation in Bangladesh and in particular the rivalry between BNP and the Awami League and the exposure to violence created by that rivalry not only of members of each party, but also of supporters.

24. The third ground is:

    The tribunal failed to consider the totality of this case.

25. This ground is not particularised. The only reasonable interpretation that can be given to it is that the Tribunal did not consider all of the applicant’s claims and all the material evidence and other matters that it was obliged to consider.  There is no arguable basis for any such claim.  As my summary of the Tribunal’s reasons indicate, the Tribunal appears to have considered all of the applicant’s claims and rejected those claims for reasons it gave. There can be no doubt in my mind that it was reasonably open to the Tribunal to reach the conclusions it has reached and for the reasons it gave.

26. I now turn to the grounds stated in the affidavit, and there are two. The first is:

    The tribunal failed to assess my credibility in terms of the Migration Act.

27. It is not clear what is intended to be conveyed by this ground. I will read it as simply a claim that the Tribunal did not make its credibility findings according to law. There is nothing in the Tribunal’s reasons for decision or in any other material that is before me that could arguably indicate the Tribunal arrived at its credibility findings as a result of any jurisdictional error.  The Tribunal identifies the reasons on which it relied for making those findings. It was reasonably open to the Tribunal to rely on those reasons for arriving at its credibility findings. 

28. The second ground stated in the affidavit is:

    The tribunal accepted that I was in favour of BNP.  However, the tribunal failed to assess my claims that as my involvement with the BNP, I may face adverse situation on my return to Bangladesh.

29. The essence of this ground is that the Tribunal failed to consider whether the applicant’s involvement with the BNP was such as to give rise to the risk of persecution or significant harm. So understood, the ground is not arguable. Again, as my summary of the Tribunal’s reasons demonstrates, the Tribunal did consider that issue but concluded the applicant’s activities in relation to the BNP were not such as to give him a profile as an active BNP supporter or that he would be identified as a person who had more than a passive role in the party or that he had expressed his political opinions in a way or at a level that would expose him to harm from members of the Awami League or any other person or that the applicant’s friends received similar threats. 

30. For these reasons, therefore, I am not satisfied that it is in the interests of the administration of justice that I should make an order under s.477(2) of the Act to extend the time by which the applicant may make an application for relief under s.476 of the Act in relation to the Tribunal’s decision. I therefore propose to make an order dismissing the application for an extension of time.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 14 June 2016