SZUFY v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant has made an application for time to be extended for him to file a Notice of Appeal. The applicant desires to appeal the judgment of a judge of the Federal Circuit Court of Australia (primary judge) published as SZUFY v Minister for Immigration and Border Protection [2014] FCCA 1682. The primary judge dismissed the applicant's application for judicial review of the decision of the second respondent (Tribunal) to affirm a decision refusing the applicant a Protection (Class XA) Visa (the visa). 2 The application was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (FCC Rules). The order made dismissing the application was interlocutory (see r 44.12(2) of the FCC Rules). Should the extension of time be granted, the applicant also requires leave to file an appeal from an interlocutory decision of the Federal Circuit Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth); Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17] (Moore, Bennett and Buchanan JJ). No application for leave to appeal has been made or foreshadowed by the applicant. 3 The applicant's background and a summary of the decision of the Tribunal are helpfully set out in the outline of submissions of the first respondent (Minister): Background • The applicant is a citizen of Lebanon who was born and lived in Tripoli. He first arrived in Australia on a student visa on 6 October 2009 and returned twice to Lebanon after that time. • On 19 December 2012, the applicant applied for the visa. On 14 August 2013, a delegate of the Minister refused his application and, on 22 August 2013, the applicant applied to the Tribunal for review of that decision. • On 28 February 2014, the applicant and his representative attended a hearing before the Tribunal. • The applicant claimed to fear harm in Lebanon because he was bisexual. He claimed that he was from a strict Muslim Family and began to realise he was attracted to men in high school. He claimed that he had been a practising bisexual since his arrival in Australia. He claimed that in Tripoli, gays are attacked and denied jobs. He feared that his father or Islamists may kill him if he returns. The applicant claimed he had his first gay relationship in Australia, and had had other relationships with men and women since his arrival. Tribunal Decision • On 10 March 2014, the Tribunal affirmed the delegate's decision. • The Tribunal found that the applicant's claims lacked credibility and he fabricated his claims to be granted the visa. It therefore did not accept that the applicant was either bisexual or homosexual. • Due to the applicant's inability to provide any evidence of the relationship (such as witnesses, clear photographs, details, dates), the Tribunal did not accept that his gay partner existed. Nor did it accept that the applicant's father was controlling, as the applicant had travelled freely and his father financially supported him. • The Tribunal also found that the fact that the applicant did not apply for the visa until December 2012, despite being in Australia since 2009 indicated that he did not fear serious harm. • As the Tribunal did not accept that the applicant was bisexual or would be imputed with being bisexual or that he has a controlling father who would harm him, it also found he did not satisfy the complementary protection criterion. 4 The applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court. That application was some eight days outside of the statutory time limit. However, the primary judge granted the applicant an extension of time. On the application of the Minister, the primary judge dismissed the application pursuant to r 44.12(1)(a) of the FCC Rules on the basis that the application did not raise an arguable case for the relief that it claimed. 5 Before the primary judge, the substantive grounds of the applicant's application were as follows: The migration agent misled me and ripped me off with $10,000 and made up a story and encouraged me to go along with it. I regret listening to him and doing this. The Tribunal is correct with the decision made but I decided to take it to Court because I want my lawyer who advised me to be penalised. I contacted the lawyer and demanded my money back and he threatened me that he will report me to Immigration. I want to give evidence in the Court to provide that my story was fabricated by my lawyer not me. I will also provide an affidavit to support this. 6 As the primary judge noted at [14]-[15] of his Honour's reasons for judgment, the applicant made oral submissions complaining about the conduct of a migration agent previously engaged to assist him. He asserted that his migration agent had encouraged him to fabricate claims and apply for the visa. He stated that his former migration agent had told him to fabricate a claim that he was bisexual to support his visa application. The applicant stated that he was very unsure about that course of action but felt he had no choice but to go along with it. 7 The primary judge found the only allegation in the grounds raised by the applicant which could purport to substantiate jurisdictional error on the part of the Tribunal was an allegation of fraud on the Tribunal. However, the primary judge concluded that the application did not raise an arguable case. The primary judge did so including by accepting the Minister's submission that because the applicant had actively participated in a deception of the Tribunal, the deception could not vitiate the Tribunal's decision. 8 The draft Notice of Appeal filed with the applicant's application for an extension of time contained one ground as follows: My claim should merit the Federal Circuit Court of Australia because of the reasons outlined in my current proceedings before the Federal Circuit Court of Australia. 9 No written submissions were filed by the applicant. The applicant appeared before me this afternoon. In his oral submissions, he made similar allegations about the conduct of his former migration agent that he made to the primary judge. He stated further that the migration agent had been caught and that as a result, his licence had been cancelled. 10 The applicant filed an affidavit in support of his application for an extension of time which relevantly said: I appeared before Judge Lloyd-Jones on 18 July 2014 and I just received the judgment which was posted by the Federal Circuit Court of Australia. I now understand that I had to lodge a review within fourteen days. I ask the Honourable Court to accept my appeal as the delay is beyond my own control. 11 The applicant was required to file an appeal from the primary judge's judgment by 1 August 2014: see r 35.13 of the FCC Rules. The application for extension of time was filed on 25 August 2014. The applicant's affidavit does not provide any explanation as to why his application for leave to appeal was not filed within time. Whilst the applicant says the delay was beyond his control, no basis for that assertion is given. In his oral submissions this afternoon, the only basis that the applicant could give for his lateness is that he had not understood the time limits involved. 12 It is well established that the considerations relevant to the Court's discretion to extend time include the length of the delay and whether the applicant has provided an adequate explanation for the delay. The delay in question in this case is relatively short and the Minister does not contend that any prejudice has been suffered. Nevertheless, an extension of time should ordinarily be refused where an adequate explanation for the delay has not been given: SZQEH v Minister for Immigration and Citizenship [2012] FCA 127 at [16] and [17]. I do not regard the explanation provided as adequate but there is another more significant matter which has persuaded me to reject this application. 13 A further consideration referred to in SZQEH at [16] and [17] is whether an applicant has demonstrated that there is a prospect of success on the substantive appeal. The applicant's first difficulty on the question of whether he has any prospects of success on the substantive appeal is that he requires that leave to appeal be granted to pursue the appeal. If such an application were made, the applicant would be required to establish that the judgment in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal. 14 For the reasons which follow, I am not satisfied that leave to appeal would be granted if any such application was made. That conclusion supports the view I hold that the applicant does not have any prospect of success on the substantive appeal. 15 The applicant has not identified any appealable error in the judgment or order of the primary judge. I can discern no error in the primary judge's conclusion that the applicant raised no arguable case for the relief that he claimed. 16 As the Minister correctly contended, the applicant accepted before the primary judge that he actively participated in the deception of the Tribunal including by giving false evidence about his sexuality. Even if it were accepted that the applicant's deception of the Tribunal occurred at the encouragement of his former migration agent, that deception cannot be a basis for vitiating the decision of the Tribunal. 17 Whilst a fraud on a tribunal is capable of vitiating its decision (see for example SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189), as Branson J observed in SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 at [12]: The appellant's submission is too broad to be accepted. It would, as the appellant both recognised and intended, allow a person successfully to contend that by reason only of the person's own fraudulent conduct the jurisdiction of the Tribunal remained constructively unexercised. Such an approach is inconsistent with the long established principle that courts do not allow a person to maintain an advantage obtained by the person's own fraud (Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713). It would also significantly undermine the legislative restraint on a person making more than one application for a protection visa (see s 48A of the Migration Act 1958 (Cth)). See further Branson J at [18] and Graham J at [93]. 18 For those reasons, the applicant's application for an extension of time should be refused and the applicant should pay the Minister's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.