SZVZY v Minister for Immigration and Border Protection

[2015] FCCA 1731

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1731

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Migration Act 1958 (Cth), s.477

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: SZVZY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 125 of 2015

Judgment of: Judge Emmett

Hearing date: 23 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 23 June 2015

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitor for the Respondents: Ms Nayomi Senanayake
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 125 of 2015

SZVZY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 19 January 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 2 April 2015, the applicant attended a directions hearing before a Registrar of this Court at which time he was directed to file and serve any further evidence and submissions in support of her application for an extension of time for her to seek judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 24 March 2014.

3. Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) requires that any application for judicial review of a decision of the RRT be filed within 35 days of the date of that decision. The application was not filed until 19 January 2015, some 9 months out of time.

4. On 18 June 2015, the applicant filed a document headed ‘Applicant’s Submissions’, which is as follows:

   “1. I am the applicant and I am medically unfit especially depressed as I included in my application before the Court.

   2.   I feel that because I am now baptised some Muslims in Australia are chasing me.

   3.   I am very scared to come to the Court on 23 June 2015 and I hope that the Honourable Court will look at my application for extension of time without my presence because 1 am unable to attend and I have been hiding and seeing doctors because of my fear.

   4.   My application before the Court includes Refugee Review Tribunal decision on 24 March 2014. I repeat to the Honourable Court what 1 said in my application and I believe that the Tribunal's decision is not correct because I will be persecuted if I return back to my country, Egypt and I also rely on a letter addressed to the Honourable Minister for Immigration dated 10/9/2014 which is also attached to my Submissions.

   5.   The Member of the Tribunal has some issues with my psychological assessment report by Dr John Jacmon. I strongly feel that this is an issue between Dr Jacmon and the Tribunal and I became a victim because the Tribunal has given little weight to the report without discussing the report with the doctor.

   6.   The Tribunal is wrong and made error in concluding that I am not a person in respect of whom Australia has protection obligations and that there is no risk I will suffer significant harm because of my psychological health and because of what happened to me in Egypt.

   7.   I ask the Honourable Court to look at my documents and see again that my claims, in my protection visa application as well as Refugee Review Tribunal , are genuine and that the persecution I suffered is genuine and I continue to have a subjective fear of persecution and I believe that the Refugee Review Tribunal misunderstood my situation.

   8.   I implore the Honourable Court to look at my case with care and that everything I said to the Department and to the Tribunal was correct including my kidnapping in February 2012.

   9.   All the documents and photographs about injuries and medical certificates were genuine and the Tribunal did not have any adverse information or unclear evidence to refuse my case.

   10.    I hope and pray to Almighty Jesus as I was baptised to assist the Court to make a decision in my favour and accept me as refugee.

   11.    I strongly hope that the Honourable Court will excuse me if I do not attend on 23 June because I am very disturbed and unfit to attend the Court.”

5. In considering whether to dismiss the application this morning pursuant to r.13.03C(1) of the Rules, I also have regard to the submissions filed by the first respondent. Those submissions are as follows:

   “Background

   2. The applicant is a male citizen of Egypt who applied for a Protection (Class XA) visa on 11 September 2012.[1]  His claims were set out in a statement submitted after his visa application was lodged.[2] The applicant claimed to fear harm in Egypt for reason of his refusal to practise Islam.  He also claimed that his wife and children were the subject of harm in Egypt because of their religious beliefs. 

   [1] CB 1 - 33

   [2] CB 37

   3. A delegate of the first respondent refused the applicant's visa application on 30 January 2013.[3]

   [3] CB 44 - 55

   4. The applicant applied to the RRT for review of the delegate's decision on 19 February 2013.[4]  The applicant gave oral evidence and presented arguments on determinative issues, at a hearing before the RRT on 18 October 2013.  The applicant submitted to the RRT an untranslated document,[5] an X-ray report,[6] a Psychological Assessment report of Dr John Jacmon[7] and photographs.[8]

   [4] CB 57 - 78

   [5] CB 90

   [6] CB 91

   [7] CB 92

   [8] CB 101

   5. The RRT made its decision on 24 March 2014.[9]

   [9] CB 125 - 135

   The RRT's reasons

   6. The RRT found that the applicant's claims were not made out and that he was not a credible witness.

   7. The RRT:

   7.1 accepted that the applicant faced conflict with his family due to his marriage and his religious beliefs but concluded that this did not amount to serious harm (see [14]); 

   7.2 found that the applicant's evidence was vague, confused and did not indicate that he suffered any serious consequences from not conforming to his family's values (see [13]);

   7.3 did not accept that the applicant faced a real chance of serious harm for not succumbing to his uncle's pressure to join the Muslim Brotherhood (see [19]);

   7.4 did not accept that the applicant's family had been involved in his claimed kidnapping and assault in February 2012  (see [16]);

   7.5 rejected the applicant's evidence that he was attacked in February 2012 due to his employment with the National Navigation Company (at [18]);

   7.6 accepted that the applicant's immediate family suffered at the hands of his extended family and that members of the applicant's extended family assaulted his wife (see [20]), but was not satisfied that the harm suffered by the applicant's immediate family due his extended family amounted to serious harm for a Convention reason (see [20]);

   7.7 accepted that the applicant's son was kidnapped by his extended family, but was not satisfied that the impact of this incident on the applicant amounted to serious harm for a Convention reason (see [21]); and

   7.8 accepted that the applicant's son had been the victim of a shooting, but concluded that he was not targeted by the applicant's extended family (at [22]). 

   8. The RRT rejected all of the applicant's claims relating to his extended family (at [23]).

   9. The RRT considered the applicant's claims relating to discrimination from members of the community due to his and his wife's religious practices.  It found that there was no persuasive information before it to suggest that women who adopt more Western practices or male relatives of such women face serious harm or mistreatment (see [25] - [26], [28]). 

   10. The RRT also found that the applicant's evidence relating to his claim of an attack on his house suggested that he was involved in a neighbourhood dispute which escalated, and found he would not suffer serious harm from his neighbour if he returned to Egypt (see [30]).

   11. The RRT accepted that there was some instability in Egypt but found that this did not expose the applicant to a real chance of persecution for a Convention reason (see [34]). 

   12. With respect to complementary protection, the RRT:

   12.1 found that there was no real risk that the applicant would be subjected to significant harm at the hands of his extended family (see [24]);

   12.2 found that the applicant would not face a real risk of significant harm for reason of his or his wife's religious practise (see [32]); and

   12.3 found that given that any instability in Egypt is faced by the population generally and not the applicant personally, this did not amount to significant harm (see [34]).

   13.    The RRT considered the Psychological Assessment Report of Dr John Jacmon submitted by the applicant.  The RRT did not consider the applicant's account of his experiences as reflected in the report of Dr Jacmon to be accurate or reliable (see [35]).  The RRT decided to give little weight to the report but did not draw any adverse credibility inferences on the basis of inconsistencies between the report and the applicant's evidence in the proceedings (see [35]).  Further the RRT concluded that the applicant was not hampered by his mental health to give evidence in the proceedings, noting that Dr Jacmon's report had not been submitted as evidence of any such difficulties (see [36]).

   Ministerial intervention request post - RRT decision

   14.    On 7 May 2014 the applicant applied to the first respondent for Ministerial intervention pursuant to section 417 of the Act. On 18 June 2014 the applicant's request for Ministerial intervention was refused.

   15.     On 12 September 2014 the applicant applied to the first respondent for consideration pursuant to section 48B of the Act. This application was refused on 18 December 2014.

   Application before the Court

   16.    The present application filed on 19 January 2015 seeks an extension of time to apply for judicial review of the decision of the RRT.

   17.    Pursuant to section 477(1) of the Act an application to this Honourable Court for review of a decision of the RRT needs be filed within 35 days of the date of the RRT decision. In the present case this fell on 28 April 2014 and the application filed on 19 January 2015 is approximately eight months out of time.

   18.    Pursuant to section 477(2) of the Act, the Court may order that the time period under section 477(1) be extended if it is satisfied that it is necessary in the interests of the administration of justice to make the order.

   Consideration

   Extension of time application

   19.    The application for an extension of time pleads three grounds.  The first ground is as follows:

   1. I suffer serious medical condition. I am under the care of Dr John Jacmon. Friends assisted me and the Church to write to the Minister. I have a serious fear to return back. I was asked recently to depart Australia. I know if I go back I will die and be killed as per the evidence on file.  I was not aware that I could lodge a Federal Court until the Church members made enquiries and was told that an application can be lodged. Time factor is very important and even though I was born Muslim I am now baptised and Jesus is helping me to persevere and accept my destiny.

   20.    The following factors are relevant when considering whether to grant an extension of time:

   20.1 The length of the delay and the reason for the delay, including whether there is an acceptable explanation for the delay;

   20.2. The merits of the substantive application and

   20.3 Any prejudice to the respondents.

   21.    The first respondent accepts that it will not be prejudiced by time being extended in this case however he submits that time ought not to be extended on the basis that the applicant's delay is not sufficiently explained and the application lacks merit.

   22.    The applicant's explanation for the delay is that he suffers a 'serious medical condition' and that he wrote to the first respondent. To the extent that the applicant asserts that he was medically unable to make an application to the Court, there is no evidence to support this assertion.  It is apparent that the applicant was able to make requests for. Ministerial intervention pursuant to section 417 and Ministerial consideration pursuant to section 48B of the Act.15 This indicates the applicant has made a decision to seek Ministerial intervention rather judicial review which is not a sufficient explanation for the delay.16

   23.    The second and third grounds of the application for an extension of time are as follows:

   2. I ask the Honourable Court to understand my situation and accept my case because the Tribunal misunderstood the seriousness of my psychological situation.

   3. Please accept these reasons for extension of time.

   24.    Grounds 2 and 3 do not provide any explanation for the applicant's delay.

   25.    In any event the first respondent submits that an extension of time should not be granted in the proceedings because the substantive application lacks any sufficient prospects of success.

   Substantive application

   Ground One

   26.    The first ground of the application is as follows:

   1. The Refugee Review Tribunal failed to understand the psychological trauma and failed to accept the psychological harm and made a wrong statement that I presented oral evidence without any difficulties.

   27.    For the RRT to have breached section 425 of the Act by denying the applicant a meaningful opportunity to present his case at hearing due to his illness, the applicant's condition needs to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, and to understand and to respond to questions put to him.  In this case the RRT considered the applicant's ability to give oral evidence at the hearing and found, having regard to the report and the applicant's presentation at the hearing, that there was no evidence to suggest he was unable to participate in the hearing (see [36]).

   27.1 Having regard to the report of Dr Jacmon the first respondent submits that the RRT was correct to find that there was no suggestion that the applicant was unfit to participate in the hearing. While Dr Jacmon indicates that the applicant “had difficulty in maintaining composure and relating events consistently and in order of occurrence" during the consultation, the first respondent submits that it was not for the RRT to extrapolate this to a claim by that the applicant that he could not participate in the RRT hearing.  Further the RRT decision record indicates that the applicant was able to engage in questioning by the RRT and discuss the issues arising on review.

   27.2 There is no evidence before this Court demonstrating that, 'the [applicant's] psychological condition denied [the applicant] the opportunity to give such evidence and present such arguments in support of his [or her] application as he [or he] thought appropriate' or 'impaired in any substantial way [the applicant's] capacity for rational decision-making in his [or her] own interests so far as the presentation of his [or her] case was concerned' (Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, per Keane CJ at [15], also at [20], [22], and [36]-[37], and Emmett J at [48]-[49], and Perram J at [84] and [86]).

   28.    Therefore the first respondent submits that the RRT satisfied its obligations under section 425 of the Act by providing the applicant with a meaningful opportunity to present his case.

   29.    The first respondent contends that this ground in fact seeks to cavil with the merits of the RRT's credibility findings, by alleging that the applicant's evidence was affected by his medical condition contrary to the findings of the RRT.

   Ground Two

30.    Ground two of the application is as follows:

2. The Tribunal Member is not a psychologist and made an assessment that I was not hampered by my state of mental health to give evidence and make submissions. This is contrary to the psychological report which explains my mental health.

31.    The RRT considered the report of Dr Jacmon at [35] - [36] of its decision. The RRT had significant doubt as to whether the applicant could convey his evidence to Dr Jacmon without the assistance of an interpreter and therefore did not consider the applicant's account of his experiences as reflected in the report to be accurate (see [35]).  As such the RRT concluded it would give little weight to the report.

32.    The first respondent submits that it was open to the RRT to determine the weight to be given to Dr Jacmon's report in light of the circumstances in which his opinion was given.  The RRT's doubt as to whether Dr Jacmon received an accurate account of the applicant's evidence is not a matter itself calling for expert medical opinion.”

1. The applicant was plainly aware of today’s scheduled hearing. It is somewhat curious that the applicant states that he was scared to come to Court today in circumstances where he does not appear to have had any difficulty in attending both the directions hearing on 2 April 2015 before the Registrar, or attending the hearing before the RRT.

2. In the circumstances, I am satisfied that the orders sought by the first respondent are appropriate.

3. Accordingly, the proceeding before this Court, commenced by way of application filed on 19 January 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  13 July 2015