SZUAZ v Minister for Immigration and Border Protection

Federal Court of Australia|2016-05-24|Before: Farrell J

An extension of time is refused.
The application is dismissed.
The applicant pay the first respondent's costs fixed in the amount of $2,900. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 This is an application for an extension of time to appeal a judgment and orders of the Federal Circuit Court of Australia ("FCCA") delivered on 12 February 2016: see SZUAZ v Minister for Immigration and Border Protection [2016] FCCA 393 ("FCCA Judgment"). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 18 February 2014. The Tribunal had affirmed a decision of a delegate of the Minister made on 14 November 2012 to refuse the applicant a Protection (Class XA) visa. 2 The application was filed on 10 March 2016. The applicant filed three affidavits in support of his application, two affirmed on 8 March 2016 and one sworn on 3 May 2016. One of the affidavits affirmed on 8 March 2016 attached a draft notice of appeal setting out 20 proposed grounds of appeal. The applicant appeared in person. 3 The Minister filed written submissions dated 17 May 2016 and appeared by his representative at the hearing. 4 The hearing was conducted with the assistance of an interpreter.

BACKGROUND 5 The applicant is a citizen of Pakistan. He arrived in Australia on a Business Visa on 23 June 2012. The claims made by the applicant in his protection visa application lodged on 20 July 2012, before the Tribunal at the hearing on 23 January 2014 and in response to a letter issued by the Tribunal pursuant to s 424A of the Migration Act 1958 (Cth) were summarised accurately by the primary judge at [5]-[7] of the FCCA Judgment: 5 The applicant made the following claims in statement attached to his protection visa application: a) after completing his studies, he lived in Karachi and owned a business there. One night while he was out with friends a group of people started shooting at them. One of his friends who worked for the Awami National Party ("ANP") was shot dead. He later found out that the people who attacked them were members of MQM, a political party; b) after the attack members of MQM tried to hit him. He complained to the police but they told him they could do nothing so in 2008 he moved to [town]; c) while in [town] he was followed. One night he visited a vendor to pick up some goods and when he left to return home he heard some gun shots. He was later told the vendor had been killed. He believed that he had been the intended target of the attack; and d) he owned a property near [town] which people knew belonged to him. His tenants who lived there had been attacked and killed. 6 The applicant made the following additional claims at a Tribunal hearing on 23 January 2014: a) he started living in Karachi in 1995; b) the attack in Karachi during which his friend was killed occurred in June 2008. He and his friend were riding a bike and when someone pulled out a gun they stopped and he managed to run away. His friend was targeted because of his connections to the ANP; c) no-one was arrested over the attack and he had last spoken to the police about the matter in 2009. However, the MQM members who had attacked them sought to harm him because he had seen them and he had lodged a report with the police; d) three months after the attack he was hit by a big vehicle. He was also shot at while leaving his business but managed to run away; e) after the attack he moved his family to [town] while he stayed in Karachi to close his business before joining them in 2009, eight or nine months after the June 2008 attack; f) he was safe in [town] for two and a half years until the end of 2011 when he saw someone he recognised. After that he started being followed; and g) his tenants had been killed in July 2012 after he had left for Australia. 7 Following the hearing, the Tribunal wrote to the applicant seeking his comments on inconsistent evidence he had given about when he moved to [town] and on information in his business visa application which indicated that his address had always been in [town]. The Tribunal also sought the applicant's comments or response to information indicating that he had been granted a business visa to travel to Australia in January 2012 but had only left Pakistan in July [recte: June] 2012. In a response dated 17 February 2014 the applicant's representatives submitted that the applicant had instructed them that: a) his family had moved to [town] in 2008 while he remained in Karachi to close down his business. He had registered his business in [town] because his business partner had lived there but he, the applicant, had not always lived there; and b) he had remained in Pakistan after being granted his business visa in the hope that the situation would improve. It was only after his business partner was killed in May 2012 that he left Pakistan, in June 2012. 6 In paragraphs [10]-[11] of its Statement of Decision and Reasons dated 18 February 2014 ("Decision Record" or "DR"), the Tribunal summarised its findings in relation to the applicant's claims as follows: 10. The Tribunal finds that it does not accept that the applicant has suffered the alleged harm in the past. That is because the Tribunal does not accept that the applicant has provided a convincing account of his alleged past harm. The Tribunal does not accept the applicant provided a credible account of when his friend was killed in June 2008 in Karachi, that is he was unable to explain how his friend was able to stop their bike and the applicant was able to run away at a time when persons who were later identified by the police as MQM (although the applicant was unable to explain how the Police knew they were MQM) were shooting at them. The applicant also failed to provide a plausible explanation as to why the same persons would still be after him some three years later even though he had never identified them and he claimed no one had been arrested in relation to the June 2008 incident. In reaching this conclusion, the Tribunal has also considered the applicant's business visa application that has documents including a statement by the applicant that says he has been living in [town] at the same address since birth as well as work documents dated 1 July 2007 and April 2008 as well as his passport dated June 2003 that all suggest his residential address has always been [town] and not Karachi where he claimed he was forced to flee after June 2008 when persons tried to kill him. Whilst the Tribunal has considered the applicant's response dated 17 February 2014 it does not accept that someone not living in [town] since his marriage in 1995 up until after 2008 would say he had been living in [town] at the same address since birth as well as identify [town] as his address in his passport dated June 2003. In addition, the Tribunal has considered records that indicate that the applicant's business visa was granted on 16 January 2012 but he did not leave Pakistan until 23 July 2012 which was some six months after his visa was granted and after the persons allegedly tried to kill him but killed the shop keeper instead. The Tribunal finds the applicant delayed his departure even though he had his business visa some six months before. Whilst the applicant has stated in his response dated 17 January 2014 that he remained in Pakistan hoping conditions would improve and that his business partner was killed in May 2012, the Tribunal finds the applicant's delay is not consistent with his alleged fear of persecution. 11. In sum, the Tribunal is not satisfied that the applicant has been telling the truth about the alleged attack in Karachi in June 2008. Neither is the Tribunal satisfied that his friend has died as a result, or that the applicant went to the police station. The Tribunal is not satisfied that the applicant was subsequently forced to flee Karachi, or that he was followed in [town] some years later or that a shop keeper connected to him was murdered or that persons went to his house in order to kill him. Given the applicant's lack of credibility, the Tribunal does not accept that the applicant remained in Pakistan hoping conditions would improve or that his business partner was killed in May 2012. 7 As the Tribunal was not satisfied that the applicant had suffered persecution in the past or that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group if he returns to Pakistan in the foreseeable future, the Tribunal was not satisfied that he was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act: DR at [12]-[13]. The Tribunal was also not satisfied that the applicant satisfied the complementary protection criterion under s 36(2)(aa) of the Migration Act as it was not persuaded that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out or that he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment: DR at [15].

FCCA DECISION 8 The grounds of the applicant's application for judicial review by the FCCA were (as written): 1. The Refugee Review Tribunal did not take into consideration my evidence. 2. The Refugee Review Tribunal did not take into consideration facts presented by me. 9 The primary judge found that the applicant did not particularise these allegations and instead "focused his arguments on remaking his case for a protection visa", the applicant's concern being that the Tribunal's failure to grant a protection visa "betokened a failure to have regard to all the matters he pressed on it": FCCA Judgment at [10]. 10 The primary judge was not persuaded that the Tribunal did not consider all the material before it. His Honour noted that the Tribunal set out in full the applicant's claims, it outlined the applicant's oral evidence at the hearing and it set out the relevant portions of the applicant's written response to the Tribunal's letter sent in accordance with its obligations under s 424A of the Migration Act: FCCA Judgment at [11]. The primary judge found that the matter before the Tribunal had "a narrow factual compass" and, while the Tribunal's reasons were "correspondingly compact", there was no reason to conclude that the Tribunal did not have regard to all of the applicant's factual claims when reaching its decision: FCCA Judgment at [12]. The primary judge found that jurisdictional error on the part of the Tribunal had not been established and dismissed the application: FCCA Judgment at [13]-[14].

PRINCIPLES 11 The principles which guide the Court in determining an application for an extension of time are well established; although not exhaustive of the matters which the Court may consider, the Court must have regard to the length of the applicant's delay in lodging the application and the reasons for the delay; any prejudice to the respondent if the extension were granted; and perhaps most importantly, the merits of the appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J.

DELAY AND EXPLANATION 12 Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that a notice of appeal in this Court must be filed within 21 days after the date on which the judgment was pronounced or the order was made. The applicant was therefore required to file his notice of appeal by 4 March 2016. Pursuant to r 31.23, the applicant filed an application for an extension of time on 10 March 2016; six days out of time. 13 There are 13 grounds in the applicant's application for an extension of time; only the first two are relevant to the applicant's explanation for the delay (as written): 1. That the applicant is self represented, the applicant has no legal assistance. The applicant had no idea about the limitation which is applicable in lodgement of appeal before the Federal Court of Australia. 2. That when the applicant went to the office of the federal circuit court to get his judgement the applicant/appellant was told that his appeal before the Federal Court of Australia is out of time, the officer gave the applicant forms for lodgement of appeal before the Federal Court of Australia. The applicant went on this last Friday. 14 These matters are reiterated in one of the applicant's affidavits affirmed on 8 March 2016 filed in support of his application in which he stated that the delay was not intentional, that his case was arguable and that he will be exposed to irreparable loss if the extension of time is not granted. 15 Although the Minister claims no prejudice from the "relatively brief" delay of six days he submits that the application should be refused because the proposed grounds of appeal "lack substance" and that granting the application would only expose the applicant to increased costs in circumstances where the substantive grounds are "legally unmeritorious" and not capable of succeeding. 16 This Court does not in general recognise the fact that a person is unrepresented as an adequate reason for any delay in initiating an appeal, however, the period of the delay is brief and the Minister suffers no prejudice by it. On that basis, the significant issue is whether the proposed grounds of appeal have merit in the sense of having any reasonable prospect of success.

MERITS OF THE PROPOSED GROUNDS OF APPEAL 17 The applicant's draft notice of appeal raises the following 20 grounds of appeal (as written): 1. That the applicant has fulfilled all four key elementary requirements as required by the statue of the migration regulations laid down in this behalf and has fulfilled the definition of the refugee as laid down in the UNHCR hand book. 2. The applicant has also met the definition laid down by the Honourable High Court of Australia regarding the fulfilment of the requirement of being a refugee. 3. In Saliba V MIMA it was held by the honourable court that a claimant's opinion need not be expressed outright. It may be enough that an opinion can be perceived from the claimant's action. 4. The elements of serious harm caused to the applicant were submitted with evidence by way of a claim oral and written to the DIBP and to the AAT as well. 5. The applicants case is a case where there are legal errors coupled with the jurisdictional error by not giving a full consideration as required under the refugee law, hence the principle of natural justice were totally ignored in this case. 6. After completion of the applicants studies, while the applicant was with friends one of the applicant friends who was working for Awami National Party was attacked and shot dead. 7. After that the killers who were from MQM come after the applicant and wanted him silence. 8. The MQM has no tolerance and is involved in the killing of the innocent people in all over Pakistan. The MQM is very strong and us backed by the Federal Government. 9. MQM apart from the above has its own private Army, this militia of the MQM is widely known to be ruthless and cruel. In many countries like Canada MQM is held to be a terrorist organisation. 10. The acts of the violence are so strong by the MQM, The applicant was attacked many times, the applicant was bashed, beaten, and was subjected to inhuman behaviour, the applicant escaped many times by the hands of the MQM. 11. The applicant has undergone lot of stress and trauma, the applicant was not given the protection.The system has failed to give the applicant any proper protection. The applicant was deprived off his living and was also denied the right to have a free life under the law. I was made a target many a times. 12. Applicant moved to a safer state of Pakistan called Punjab, but after 2 years Applicant was located by MQM. Applicant left and came to Australia. 13. Applicant's tenant were shot by people from MQM, as they believed the applicant was in the house. 14. Applicant have explained all this to DIBP and to the AAT but their response has been met by deaf ears. 15. Applicant feared harm in Pakistan as the applicant witnessed a murder by a very strong Political party MQM. 16. The findings of delegate of Minister are that they did not give regard to any evidence given to them by the applicant and the applicant's claim was disregarded. 17. Applicant's claim was not given real consideration keeping in view the applicants fear. 18. The applicant seeks this honourable court's intervention in this matter. 19. Again in NAEU OF 2002 vs. MIMIA it was held that it was not sufficient to establish for the applicant to establish that there was a fear of harm and convention a reason (in that case, his political opinion) to qualify for a refugee, rather he must establish that his persecutors had a actual or imputed knowledge of his political opinion and would exact punishment at least partly because of that political opinion. 20. In W321/OIA VS Minister for immigration and Multicultural ffairs(2002)FCA210(11March LEE J observed at page 30 that the tribunal cannot exclude an applicant's account from the material ,the Tribunal is obliged to consider, by relying upon a bare assertions that the applicant accounts is implausible there must be fact found that are inconsistent with claimed events, are the claim event must be beyond with human experience of possibilities that they be said to be inherently unlikely. In the present case the applicant says that he is avoiding injury in these circumstances does not go beyond the human experience of possibilities. This calls for the judicial interference in the present case. 18 As I explained to the applicant at the hearing and as the Minister correctly points out, this Court has no jurisdiction to revisit the applicant's factual claims or to review the decision of the delegate. The applicant offered no particulars of grounds 1 and 2. Grounds 1, 2, 6-13 and 15 all in essence repeat the applicant's factual claims and therefore have no prospect of success. Grounds 4 and 14 must fail insofar as they relate to a decision of the delegate and ground 16 must fail for the same reason. Ground 18 is a simple plea for assistance but discloses no ground of appellable error by the primary judge. 19 In relation to ground 3, the Minister correctly submits that in Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38; [1998] FCA 1461, Sackville J found that the Tribunal erred in finding that the harm faced by an applicant was excluded under the Refugee Convention as it was for reasons of personal vengeance; the Tribunal was obliged to consider whether the harm arose by reference to an imputed political opinion. In this case, the applicant's claim to fear harm is on the basis that he was an eye-witness to the murder of his friend and the police said that it was a political murder. The applicant submitted that he had no documents to support his claims because he could not get them from Pakistan and that although he was not directly involved in politics, his friend was and that his life was in danger because he was an eye-witness to his friend's murder. The applicant further submitted that MQM was in power in Pakistan at the time and its power was well publicised in the international press. 20 I accept the Minister's submission that the Tribunal was not obliged to consider the applicant's unarticulated claim to fear harm by reason of his imputed political opinion. The Tribunal, on grounds open to it, found that the applicant never lived in Karachi and that the incident which the applicant claims to have witnessed and which forms the basis of his claim to fear harm did not occur. I also accept the Minister's submission that the applicant's claim was not a broadly based claim to fear harm on account of his political opinion, an opinion which was contrary to the prevailing government in Pakistan, to which the international press reports might have been relevant. Rather, it was a confined claim based on him having witnessed a particular incident. Further, as the applicant admits that he did not provide any of the international press reports to the Tribunal, the Tribunal could not err by failing to consider those reports; it is for the applicant to provide sufficient evidence to satisfy the Tribunal of his claims. In the present circumstances, the Tribunal had no obligation to seek out such reports as it was not an obvious enquiry about a critical fact which could be easily made. Ground three has no reasonable prospect of success. 21 In relation to grounds four, fourteen and seventeen, the applicant submitted that he told the Tribunal that he could not get documents to support his claims because he had no-one to get them for him. He reiterated his statement to the Tribunal (set out at DR [30]) that he had not brought documents to Australia because he had arrived on a business visa without any intention to make protection claims. He only made a protection claim when the situation worsened in Pakistan and he was prevailed upon not to return by his family in Pakistan. 22 Ground four is a simple statement that evidence was provided to the Tribunal. The applicant's submission that he was unable to obtain documents from Pakistan appears to have no relevance to this ground. The ground has no reasonable prospect of success. 23 Grounds fourteen and seventeen are ultimately a complaint about the Tribunal's decision not to accept his claims; there does not appear to be any reasonable prospect of success on those grounds. The Tribunal is entitled to make its decision about the merit of the applicant's claims on the basis of the materials before it and it is for the applicant to provide evidence which enables the Tribunal to be satisfied that it should grant a protection visa. As submitted by the Minister, the documents which the Tribunal had before it were inconsistent with the applicant's claims. The applicant's explanation of these grounds does not reveal error by the Tribunal in its approach or in the findings by the primary judge, particularly those in the FCCA Judgment at [11]-[12]. 24 In relation to ground five, the applicant submitted that he was not in a position to identify legal errors by the primary judge or jurisdictional errors by the Tribunal because the Court had not provided him with a lawyer as he requested. Without seeking to minimise the difficulties faced by unrepresented parties appearing in migration or other cases, it remains for the applicant to make out his claims. As this ground is without particulars, it has no reasonable prospect of success. 25 In relation to ground nineteen, NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 was a case which upheld a decision to dismiss an application for review of a Tribunal decision to refuse a protection visa made in the context of the Migration Act before the introduction of the complementary protection criterion. It has no obvious relevance to this matter. I am unable to discern a basis on which this ground would have a reasonable prospect of success. 26 In relation to ground twenty, in W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 Lee J found that the Tribunal erred in not taking into account the possibility that certain events had occurred for a Convention reason and that the Tribunal could not rely on the bare assertion that an account is "implausible"; it must identify inconsistencies or inherent improbability to found such a finding. Having regard to the Decision Record as a whole and particularly DR [10]-[11] set out at [6] above, it is plain that the Tribunal had regard to the required matters before rejecting the applicant's claims. This ground also has no reasonable prospect of success.

CONCLUSION 27 For the foregoing reasons I will refuse the applicant an extension of time and dismiss his application.

COSTS 28 The Minister relied on the affidavit of Natasha Simone Blake affirmed on 18 May 2016 in support of an application for costs fixed in the amount of $2,900. On the basis of information provided in the affidavit, I am satisfied that such an order should be made. I will order that the applicant pay the first respondent's costs in a lump sum amount of $2,900. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Federal Court Rules 2011(Cth)rr 31.23, 36.03

Migration Act 1958(Cth)ss 36(2), 424A

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