FEDERAL CIRCUIT COURT OF AUSTRALIA
SZSVN v MINISTER FOR IMMIGRATION & ANOR	[2013] FCCA 1904	

Catchwords: 
MIGRATION – Refusal of an extension of time for application to review a decision of the Refugee Review Tribunal.	

Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 477	

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282
SZATV v Minister for Immigration (2007) 237 ALR 634 
SZKDY v Minister for Immigration [2007] FCA 1667
SZSHK v Minister for Immigration [2013] FCAFC 125	

Applicant:	SZSVN	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 1010 of 2013	

Judgment of:	Judge Driver	

Hearing date:	19 November 2013	

Delivered at:	Sydney	

Delivered on:	19 November 2013	

REPRESENTATION
Counsel for the Applicant:	Mr Williams	

Solicitors for the Applicant:	Adrian Joel & Co	

Solicitors for the Respondents:	Mr R White
Sparke Helmore	

INTERLOCUTORY ORDERS
(1)	The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
(2)	The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), is refused.
(3)	The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 1010 of 2013
SZSVN	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(revised from transcript)
1.	The applicant in this matter seeks an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (Migration Act) in respect of a purported application to review a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 4 March 2013.  The Tribunal affirmed a decision of a delegate not to grant the applicant the protection visa.  The application to the Court was filed on 10 May 2013.  That was some 32 days after the period prescribed by s.477(1).  I adopt the following background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them from the Minister’s outline of legal submissions filed on 7 November 2013.  
2.	The applicant is a citizen of Lebanon who arrived in Australia on a subclass 572 student visa on 17 September 2007 and applied for a protection visa on 17 August 2011. He appointed a migration agent and lawyer to assist him in the visa application process conducted before Minister’s Department.
3.	In an extensive written statement, the applicant claimed to fear harm in Lebanon for reasons of his religion and political opinion. He claimed he was a Sunni Muslim and that Sunni Muslims were targeted in Lebanon by militants associated with Shia Muslim militias such as Hezbollah and Amal.
4.	The applicant claimed that his father was a businessman and a strong supporter and prominent member of the Future Movement (FM) party. The applicant also attended rallies and meetings and actively campaigned on behalf of FM party candidates. He claimed that he and his father were well known as FM party supporters and, as a result, Hezbollah subjected him and his family to violence. He witnessed serious political violence at rallies and meetings and claimed his family home was shot at, painted with slogans and had windows broken. He claimed that political violence reached a peak in February 2005 following the assassination of Rafik Hariri. The applicant and his family allegedly received death threats, property damage and were in fear of their lives. In 2007, the applicant’s father made arrangements for the applicant to study in Australia and he left Lebanon in September 2007.  The applicant’s statement cited general country information reporting political violence in Lebanon.  He claimed further that since the political uprising in Syria erupted, Hezbollah militia units crossed the border and targeted Hariri and FM party supporters.
The delegate 
5.	The applicant was invited to and attended an interview before the delegate and a transcript of that interview was included on the Tribunal’s file.
6.	At the interview, the applicant advanced two new claims namely, his cousin was shot in the previous week by Syrian authorities in his home village and his brother was arrested and detained for two months by the Syrian authorities as a warning and a threat against his entire family. The applicant also submitted that the Baarinini family and other Shi’a neighbours were the source of the threats in his village. 
7.	In a decision dated 6 October 2011, the delegate refused to grant the applicant a Protection visa. The delegate had “serious concerns” about the applicant’s claimed involvement with the FM party and political profile. He found the applicant’s claims were “generalised, vague and without any supporting evidence” and did not accept that as a “supporter” of the FM party and Rafik Hariri the applicant had a profile that distinguished him from the general Sunni population. Whilst prepared to accept that he and his family were FM party supporters, the applicant attended rallies and his father provided financial assistance to the FM party, the delegate did not accept this “would imbue a political profile on the applicant or his family”. 
8.	The delegate found the applicant’s claims “were uniformly generalised, based on vague assertions … that would be withdrawn or shown as unsubstantiated following subsequent questioning”. The delegate considered it “implausible” that someone at the age of 20-21 organised up to 10,000 people from his home village to attend protests in Beirut in 2007, given the complete lack of supporting documentary evidence of this role. The delegate did not accept the applicant or his family held a political profile in Lebanon and found the severity and immediacy of his claims to fear abuse or localised conflict from local supporters of Hezbollah and Amal was undermined by the fact that the applicant’s entire family remained in their home village.  Accordingly, he also did not accept that they were threatened by Hezbollah or Amal and found further that the applicant’s failure to provide a reasonable explanation for his delay in raising serious claims undermined their credibility. The delegate also found that the applicant’s two year delay in applying for protection after arriving in Australia undermined his claimed subjective fear of harm.
The Tribunal
9.	On 31 October 2011, the applicant lodged an application with the Tribunal to review the delegate’s decision.  He appointed the same representative as his migration agent and authorised recipient.
10.	On 17 April 2012, the applicant was invited to attend a hearing before the Tribunal scheduled for 12 June 2012. The applicant accepted the invitation and provided a medical certificate to support his request for frequent breaks because he suffered back pain.  The Tribunal took this as an adjournment request and on 15 June 2012 notified the applicant that the hearing was re-scheduled to 7 August 2012.  The applicant accepted the further invitation and renewed his request for frequent breaks.
11.	The Tribunal received further medical evidence from the applicant and contacted the applicant’s doctor about his condition.  The Tribunal invited the applicant to provide further information about his condition and his ability to attend the hearing.  The applicant submitted further medical evidence and the Tribunal postponed the hearing to 4 October 2012.  The applicant accepted that invitation and on 10 September 2012 provided a written submission, documents supporting his claims that members of his family were monitored or apprehended by the Syrian security forces, media reports on Lebanon, a medical report verifying that he could now attend a hearing and education certificates. 
12.	On 4 October 2012, the applicant attended the hearing with his adviser. 
13.	On 30 October 2012, the Tribunal invited the applicant to attend a resumed hearing scheduled for 14 November 2012, which he accepted with a request that his brothers attend as witnesses. 
14.	On 8 November 2012, the Tribunal contacted the applicant’s adviser about the availability of the brothers to attend the hearing. On 13 November 2012, the applicant’s adviser ceased to represent the applicant and the Tribunal confirmed his withdrawal.
15.	The applicant failed to attend the hearing on 14 November 2012 and on 3 December 2012, the Tribunal received his change of contact details. 
16.	On 12 December 2012, the Tribunal again invited the applicant to attend a resumed hearing scheduled for 14 January 2013.  He accepted the invitation  and attended the resumed hearing with his two brothers as witnesses.  At the resumed hearing, the applicant provided further education documents and a map.  He also provided a written statement of claims that supporters of Hezbollah and Syria sought to take over his family’s farm and that the applicant and his father were in charge of the office in Halba.  The Tribunal considered these documents.
17.	On 31 January 2013, the applicant submitted three translated documents and a written statement re-asserting his claims for protection.  The Tribunal considered these documents.
18.	In a decision dated 4 March 2013, the Tribunal affirmed the delegate’s decision.  The Tribunal:
a)	had “significant doubts” about the credibility of the applicant’s claimed involvement with the FM party and the profile of his family as FM party members and supporters; 
b)	found as “unconvincing” the applicant’s explanations for the length of time between his arrival in Australia, when he stopped his studies, when his most recent student visa expired and when he applied for protection; 
c)	found the applicant’s delays undermined his claimed subjective fear of harm and that he had “exaggerated his and his family’s involvement with the FM party”; 
d)	despite its concerns, accepted that the applicant’s father was an active supporter of, and held a local leadership role in, the FM party; 
e)	gave “very little weight” to the applicant’s other documents because of concerns that as the applicant’s father was prominent in the FM party, other members of the FM party provided letters to assist the applicant obtain a particular immigration outcome and country information indicated that documentary fraud in Lebanon was prevalent; 
f)	in assessing the applicant’s credibility generally, gave “significant weight” to its finding that the applicant had provided a fraudulent document; 
g)	gave “some weight” to the evidence given by the applicant’s brothers but found their evidence was “generalised and lacking in specific detail”; 
h)	accepted various factual claims advanced by the applicant but did not accept that:
i)	the applicant was the chairman or had any position with any charity;
ii)	any member of the applicant’s family was suspected of encouraging or instigating violence against opponents of the FM party at any time;
iii)	the applicant or his family suffered any past harm by Hezbollah, Amal or any other Shia militant group;
iv)	the arrest and detention of the applicant’s brother or the shooting of his cousin were in any way connected with or resulted from any political profile of the applicant or his family, and
v)	the applicant’s family were denied access to their land because of their support for the FM party.
i)	found on the basis of the available country information that Hezbollah and other Shia militant groups targeted individuals who were actively and prominently opposed to them, and did not accept that all Sunnis were targeted or that the applicant faced a real chance of persecution because he was a Sunni Muslim; 
j)	found on the basis of the available country information that only the most prominent FM Party members and supporters were targeted by opposing political parties and their related militia and did not accept that the applicant or his family faced a real chance of persecution in Lebanon at the hands of Hezbollah and other Shia militant groups; 
k)	despite holding significant credibility concerns about aspects of his claims, accepted that the applicant faced a serious risk of harm from a rival family in his home area due to his and his father’s FM party involvement and support and a long-standing dispute between the families; 
l)	accepted the harm had a Convention nexus and that country information indicated the applicant might not receive adequate state protection in his home area; 
m)	found on the basis of the accepted ICI that it was reasonable for the applicant to relocate to Beirut to avoid the accepted harm he faced in his home area because of his support for the FM Party and from rival family members; 
n)	in accepting that it was reasonable in all the circumstances for the applicant to relocate to Beirut, had regard to the extended support that his family provided, his ability to obtain medical treatment in Beirut, his ability to work and study in Australia for a considerable period away from his family, and
o)	accepted it was reasonable for the applicant to relocate to Beirut to avoid the accepted significant risk of harm he faced from members of the rival family in his home area.
19.	The applicant makes no challenge to the Tribunal’s relocation findings and had regard to a number of relevant factors in finding that it was reasonable for him to relocate to Beirut.  The Tribunal also considered, but did not accept, the objections raised by the applicant or his two witnesses to the proposed relocation.  Accordingly, it was open to the Tribunal to find that the applicant did not face a real chance of serious harm for the Convention reasons that he claimed. 
20.	The applicant now relies upon an amended application filed upon 12 July 2013.  There are three grounds in that application:
	1. 	The First Respondent failed to address the correct question before it, namely whether the applicant was entitled to be granted a protection visa according to law.
	Particulars
	a. 	The First Respondent concluded at paragraph 170 that considering the Applicant could not meet the refugee criterion in accordance with section 36(2)(a), this meant he could not meet the [complementary] protection criterion referable to the application of 36(2)(aa).
	2.	The Applicant has been denied procedural fairness in the making of the decision by the First Respondent with respect to the operation of Section 36(2)(aa) of the Migration Act and in so doing offends the application of Section 420(2)(b).  Application of this provision includes the duty of the First Respondent to identify to the Applicant issues which may be of determinative significance, which were not apparent from the terms and nature of the Protection Visa Application completed, nor the Departmental or Tribunal interviews conducted.  Such duty also exists independently of statutory obligation.
	PARTICULARS
	a) 	Section 36(2)(a) provides for consideration of Convention based persecutory grounds while section 36(2)(aa) provides for consideration of claims with respect to complementary protection.
	b) 	The First Respondent either did not apply any procedure, or any satisfactory procedure, to identify issues distinct from Convention based persecutory claims which could be relevant and determinative when considering claims based on harm, and to inform the Applicant as to the character of such issues.
	c) 	The Applicant assumed the reasons provided by the Minister’s Departmental Decision Maker for refusing the Protection Visa identified the totality of issues that arose in relation to that decision, and proceeded with his request for review and attendance at the interview with the Tribunal on such basis.
	d) 	Had the Respondents discharged the notification obligations as to unresolved complementary issues (which at least [may] have been inferred by virtue of the nature of the persecutory claims presented) the Applicant would have been provided with an opportunity to particularise such claims, which could include discrimination, socioeconomic deprivation and failure of Police to provide protection and other harm not falling within a Convention ground.
	e) 	As at the time of completion of the application of a Protection Visa Class XA on Form 866A and the time of Departmental and Tribunal hearing, the Applicant remained ignorant of the evidentiary ambit of Complementary claims, in contrast to the knowledge of the Respondents as to the ambit of such claims.
	f) 	The Decision Record of the Respondent limits complementary consideration to a set of factual circumstances or mosaic, as conveyed with respect to persecutory  claims, the effect of which has been to curtail and/or intermix the ambit of analysis contemplated with respect to the operation of section 36(2)(aa), and deprive effective consideration thereof.
	g) 	Further, by virtue of the conclusion drawn as to the Applicant being found to have suffered serious harm in the Convention context, (the remedy being relocation) such view has been extended to the unresolved context of complementary harm and/or also sustained the evidentiary foundation in dismissing claims of a real risk of significant harm.
	3. 	Error of law.
	PARTICULARS
	a) 	There is no evidence that the Respondent adopted the correct evidentiary test when considering Complementary claims, namely a real chance of real risk.
21.	Only the first ground is pressed.  The applicant relies upon his own affidavit filed on 12 July 2013 in support of the extension of time application and also the affidavit of his solicitor, Adrian Joel, filed on 5 November 2013.  
22.	The application is opposed by the Minister, who relies upon the court book filed on 11 June 2013 and the affidavit of Arunima Lal filed on 30 July 2013.  
23.	There is no dispute between the parties as to the principals guiding the Court in considering an application for an extension of time.  Those include the length of the delay in coming to Court, the reasons for that delay and the interests of the administration of justice which incorporates a consideration of the legal merits of the proposed judicial review application.  
24.	The period of 32 days is not a lengthy period of delay but it is also not insignificant.  The period prescribed in s.477 by Parliament should be generally adhered to.  The explanation proffered for the delay is contained in the affidavit of Mr Joel with some support from the applicant himself.  The applicant was represented before the Tribunal by a migration agent who is also a legal practitioner.  It appears that it was not apparent to that practitioner that the applicant was entitled to pursue complementary protection claims before the Tribunal and he was not alive to any legal issues that might have flowed from the Tribunal’s consideration of the complementary protection issue.  
25.	The review application before the Tribunal was filed before the introduction of the complementary protection criterion but the Tribunal’s decision followed that introduction and so needed to deal with it.  The affidavit of Ms Lal establishes that the Tribunal sought to explain to the applicant at one of the hearings conducted by it what the introduction of the complementary protection criterion meant.  I reject any contention, should it be made, that the applicant was entirely ignorant of the complementary protection issue while his case was before the Tribunal.  It is possible that his then representative did not understand the full significance of it and it is also possible that in the circumstances he was not well assisted in order to put his best case to the Tribunal.  
26.	That is not a matter that need concern me in considering whether to extend time.  If the applicant is dissatisfied with the quality of his legal representation, he has remedies available.  If the applicant thinks that a more persuasive case for protection can now be mounted than the one put to the Tribunal, he can put that to the Minister for any consideration the Minister is willing to give to it.  
27.	I accept as plausible that the applicant may have received advice from his former representative following the Tribunal decision which deterred him from seeking judicial review within time.  I also accept from the affidavit of Mr Joel that he formed a different view and communicated that to the applicant’s former representative.  The Court file discloses that the applicant’s former representative withdrew from the record in these proceedings on 21 August 2013.  Mr Joel then took over and has assisted the applicant from that point.  
28.	The essence of the argument advanced in support of the extension of time is that there are legal issues of substance meriting a final hearing that there is little, if any, prejudice to the Minister from permitting those arguments to be advanced and that the applicant would suffer real prejudice if he is not permitted to advance those arguments.  I accept that the applicant will suffer disadvantage if he is not permitted to continue with his judicial review application.  
29.	If the legal arguments now sought to be agitated had real substance to them, I would have been minded to grant the extension of time sought, having regard also to the relatively short delay.  However, for the reasons which follow, I do not think that an arguable case for the relief sought has been advanced.  
30.	The applicant contends in the amended application that the Tribunal fell into error in dealing with the complementary protection criterion.  In particular, the applicant asserts that the Tribunal failed to address the correct question before it.  
31.	The amended application refers to [170] of the Tribunal’s reasons but I understand from the course of argument this morning that reference is also made to [171].  At [170]-[172], the Tribunal dealt with the application of the complementary protection criterion:
	The Tribunal has considered whether, in light of its findings in relation to the applicant’s claims set out above, there are substantial grounds for believing that, as a necessary and foreseeable consequence  of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
	In light of its findings set out above as to the risk of harm the applicant faces because of his religion, actual and imputed political opinion and membership of a particular social group, the Tribunal accepts there is a real risk that the applicant will suffer significant harm at the hands of the rival family if he returns to this home area of Fneidek in Lebanon.  However, in lights of its findings set out above, the Tribunal is satisfied that it is reasonable for the applicant to relocate to an area of Lebanon where there would not be a real risk that the applicant will suffer significant harm at the hands of the rival family, being Beirut, or a real risk that he would suffer significant harm at the hands of any other person or individual, and so finds that there is taken not to be a real risk that the applicant will suffer significant harm in Lebanon following s 36(2B)(a) of the Act.
	As a result, having considered the applicant’s claims and individually and cumulatively in light of the available country information before it, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
32.	The applicant complains that in referring in [170] to the Tribunal’s earlier findings in relation to this claims, and the similar reference in [171], the Tribunal has conflated considerations bearing upon the assessment of refugee claims with considerations bearing upon claims to complementary protection.  
33.	Counsel for the applicant also took me in argument to a number of decisions of this Court and the Federal Court in which errors in the assessment of complementary protection have been identified.  I accept that it would be an error for the Tribunal to fail to apply the real chance test in relation to complementary protection.  It is plain, however, that the Tribunal in this case did not fall into that error.  I also accept that the Tribunal would fall into error if it confused considerations relevant only to the assessment of protection claims with considerations bearing upon a claimed complementary protection.  
34.	The risk of that occurring may be apparent where the Tribunal refers in unqualified terms to earlier reasoning in dealing with a claim to complementary protection.  In this present case, however, I do not accept that it is arguable that the Tribunal fell into that error.  The Tribunal’s references at [170] and [171] of its reasons are to earlier findings.  That must be, in my view, a reference to earlier factual findings rather than to the reasoning in relation to the various applicable criteria.  
35.	The Tribunal clearly identifies at [158] and [159] its factual findings bearing upon its consideration of both the applicant’s claims under the Refugees Convention and the applicant’s claims to complementary protection.  There is no doubt in my mind that those factual findings properly bore on both considerations.  There was no conflation of considerations relevant only to one criterion or the other.  
36.	The Tribunal decision turned on the issue of relocation.  The Tribunal reached the same conclusion on that issue both in respect of the claims to refugee protection and to the complementary protection claims.  The Tribunal correctly identified at [171] the relevant provision of the Migration Act in relation to the test for relocation for complementary protection.  It is not entirely clear whether the relocation consideration under the Migration Act for complementary protection is in all respects identical to that bearing upon the internal relocation option in relation to refugee claims.  However, the applicant makes no complaint about the Tribunal’s relocation finding in respect of his refugee claims.  
37.	If an error in the relocation assessment were apparent it would be likely, in my view, to affect both the refugee claim assessment and the complementary protection assessment.  The Tribunal’s reasoning was that the harm feared by the applicant was local, based upon the hostility of another family which appeared to have some political or particular social group component to it.  The harm being local, the Tribunal reasoned that the applicant could avoid that harm by moving to Beirut.
38.	These findings were open to the Tribunal on the available evidence and the Court cannot review the merits of the Tribunal’s decision. The reasonable possibility of an applicant undertaking relocation is relevant to the task of determining whether their claimed fear of persecution is “well-founded”.  The Tribunal correctly recognised in its decision that the test to be applied in these circumstances is whether it is reasonable, in the sense of being practicable, for the applicant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. What is reasonable in the sense of “practicable” must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. 
39.	Similarly, it was open to the Tribunal to find that it would be reasonable for the applicant to relocate to Beirut where he would not face a real risk of significant harm.  Subsection 36(2B)(a) of the Migration Act expressly provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. No error is either identified or apparent in the Tribunal’s application of s.36(2B)(a).
40.	On the facts of this case I see no arguable case for error in the Tribunal’s assessment either in relation to the refugee’s criterion or the complementary protection criterion.  As the Full Federal Court made clear in SZSHK v Minister for Immigration, each case depends on its facts.  
41.	On the facts of this case I am persuaded that the Tribunal’s decision fell squarely within the boundaries of lawful decision making.  I will therefore order that the application for an extension of time, pursuant to s.477(2) of the Migration Act be refused.  It follows that the purported judicial review application is incompetent.  
42.	As a consequence of the rejection of the application for an extension of time, the Minister seeks an order for costs fixed in the amount of $5,400.  The scale amount for a show cause hearing conducted pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) would be $3,326.  The scale amount for a final hearing would be $6,646.  
43.	The amount sought by the Minister falls between those two amounts.  Counsel for the applicant submitted that the Court should not award costs in excess of the amount prescribed for a show cause hearing.  The Minister contends that costs in a larger amount are justified because the issue of the extension of time sought turned essentially on the legal merits of the arguments advanced in the amended application which required preparation not dissimilar to the preparation for a final hearing.  There is substance in that submission having regard to the extensive written submissions prepared and the authorities presented to the Court.  
44.	I am persuaded that an amount in excess of an amount usually awarded for an interlocutory hearing is justified in this case.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:  

Date:  26 November 2013