AEY18 v Minister for Home Affairs
[2018] FCCA 2500
•11 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEY18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2500 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – visa – protection visa – refusal – application for extension of time to bring proceedings – application filed 19 days out of time – reasonable explanation for delay – no prejudice to Minister or general public – Originating Application has no reasonable prospects of success as no jurisdictional error of any sort seen in the approach taken by the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2)(a), 476, 477(1), 477(2) |
| Cases cited: ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816 Appellant S395/2002 v Minister of Immigration and Multicultural Affairs [2003] HCA 71 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | AEY18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 26 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Perth |
| Delivered on: | 11 September 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms E. Tattersall |
| The Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s application for an extension of time is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 26 of 2018
| AEY18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 15 January 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 22 November 2017. The Tribunal’s decision affirmed a decision of a Ministerial delegate dated 7 October 2015 that refused to grant the applicant a Protection (Class XA) visa.
The applicant in these proceedings is a lesbian woman and mother of two. She is originally from Botswana but has lived in Australia for almost 12 years. She fears returning to Botswana because of the harm she says she will face as an “out” lesbian woman.
To succeed in relation to her Originating Application, the applicant must show that the Tribunal engaged in jurisdictional error. Unfortunately, the applicant’s application was filed 19 days outside the 35 day period prescribed in s.477(1) of the Migration Act 1958 (the “Act”).
Before the Court can review the applicant’s Originating Application, it must first determine whether to grant the applicant an extension of time within which to file that application. Section 477(2) of the Act provides that the Court may, in certain circumstances, order that the 35 day period be extended.
To the extent that that an extension of time is not granted here, the Court will not address the applicant’s substantive application other than for the purposes of determining whether there are “merits” or an “arguable case” as relevant to an extension of time request.
The Minister opposes the request for an extension of time primarily on the basis that no sufficient explanation has been provided for the delay in filing the Originating Application and, significantly, because the Originating Application is completely without merit and has no prospects of success.
Judicial Review Application – Extension of time
Section 477(1) of the Act provides that an application to the Court for a remedy to be granted under s.476 of the Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
Section 477(2) of the Act provides that the Court may, by order, extend that 35 day period as the Court considers appropriate if:
a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this case, the applicant’s application for an extension of time was made in writing. The following grounds supported her request for the extension of time:
1.Applicant requires information to submit a completed application to the court from Home Affairs under the freedom of Information Act which can take up to 30 days to be received
2.Applicant requested information directly from Home Affairs and was told to apply via Freedom of Information
3.Applicant for Freedom of Information will be submitted within 1 week of court application submission
4.Applicant has applied to received legal assistance from legal aid to assist with the court application
Unfortunately, there were also no grounds of review or particulars provided in the Originating Application. This is discussed further below.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 the Federal Court of Australia (per Wilcox J at [348]-[350]) provided a non-exhaustive list of factors relevant to whether an extension of time ought to be granted. These include:
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice a respondent might suffer because of the delay; and
d)the merits of the proposed application.
In the current case, the Minister opposes the extension of time for 2 reasons:
a)Inadequate explanation for the delay; and
b)Lack of merit in relation to the proposed substantive application.
Prejudice
At paragraph 23 in his written submissions, the Minister concedes that no specific prejudice to the Minister, other than the public interest in the finality of administrative decision making, will arise if an extension of time is granted.
The Court is also not persuaded that the public interest will be undermined, particularly given the relatively short delay in filing the substantive application (19 days), if an extension of time is granted.
Having regard to the above, this consideration weighs in favour of granting the extension of time.
Length of delay
The applicant’s substantive application was filed 19 days out of time. The Minister conceded at paragraph 23 in his written submission that this time period is not lengthy but that it was also not significant given the 35 day statutory context.
The Court finds that the length of delay here is insubstantial, particularly in this factual context, where no prejudice will result to the Minister or the public should the extension of time be granted.
While the Court accepts that the mere absence of prejudice can never of itself justify the exercise of the discretion to extend time, the Court finds that the fact that the extension of time is for a period of only 19 days goes towards granting the extension of time.
Explanation for the delay
The applicant was given an opportunity to file further affidavit evidence and written submissions in relation to her extension of time request. Although the applicant did file further affidavit evidence and submissions (discussed below), her submissions did not specifically address in any meaningful way why her application was 19 days late.
In relation to this issue the Minister contended that the applicant’s:
… explanation that the delay was due to the process of requesting information from the Department of Home Affairs and awaiting the grant of legal aid is inadequate in circumstances where the applicant has not provided any evidence to support those claims.
The applicant was asked in Court to explain why she did not file her substantive application on time. She indicated that she was not aware that she had to file an application for judicial review in this Court and within a set time period.
In response, counsel for the Minister drew the Court’s attention to the Information Sheet provided by the Tribunal to unsuccessful applicants (Information about decisions – MR Division) and, in particular, the paragraph that reads:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
Although this document did not appear in the Court Book, there was no evidence before the Court that the applicant did not receive it.
The Court notes that, in her affidavit dated 20 April 2018, the applicant provides a written submission numbering 35 paragraphs that details an interaction with a representative of the Department of Home Affairs. It appears from the dates outlined and the course of action taken that the applicant was under the impression that her appeal rights could be dealt with via the Department directly if she was seeking Ministerial intervention (see applicant’s submission at paragraphs 20-31).
Whether an applicant’s explanation for the delay can be said to justify that delay depends on the circumstances of each individual case: ALG17 & Ors v Minister for Immigration & Anor [2017] FCCA 2816 at [20] per Nicholls J.
While the Court accepts that the applicant was specifically advised by the Tribunal that she needed to file an application for judicial review in this Court within 35 days from the date of the Tribunal decision, the Court accepts that there is some confusion on the part of the applicant resulting from her interaction with the Department about who could and would deal with her appeal rights. Ultimately, when she was advised by the Department that she needed to apply to this Court, the applicant did so immediately, albeit 19 days late.
In the circumstances of this case, the Court finds that the applicant was late in filing her Originating Application in this Court because of confusion on her part about what she could and could not do and who could do what to assist her. The Court finds that this is an adequate explanation for the 19 day delay in filing the Originating Application.
This weighs in favour of the extension of time.
Merits of the Substantive Application
Before considering the Minister’s and the applicant’s submissions on whether the substantive application has “merit”, it is useful to put the applicant’s case in context by providing a brief background to the matter.
This will assist the Court in determining whether the substantive application has merit and if there is at least an arguable case in relation to whether the Tribunal has engaged in jurisdictional error.
Background Facts
The Court adopts the factual background provided in the Minister’s submissions at paragraphs 4 to 7 as follows. These facts were not in dispute and provide as follows.
The applicant is a citizen of Botswana (CB 60-74). She arrived in Australia on 18 July 2002, the holder of a Student TU 573 visa. She remained in Australia on student visas until 12 March 2008. On 15 July 2008, the applicant was granted an Interdependency (same sex) Partner Temporary UK-826 visa. On 12 August 2010, her application for a Partner (Residence) (Class BS) visa was refused.
On 11 September 2013, the Applicant applied for the visa the subject of these proceedings (CB 6-31).
The applicant claimed to fear harm from her family, society and the Botswana authorities by reason of belonging to a particular social group of homosexual women in Botswana (CB 55-59).
In particular, the applicant claimed:
a)She identified as a lesbian and feared harm from authorities and private individuals because she was a lesbian (CB 55);
b)When she was living in Gaborone, she visited South Africa often because it was much easier for gay and lesbian people to socialise and meet each other there. She met a South African woman and had a relationship with her (CB 55);
c)It was not possible to live openly as a gay or lesbian person in Botswana because it was illegal to have a same-sex relationship there. Other people, such as friends and family members, who knew that a person was having a same-sex relationship, were also liable to be prosecuted (CB 56);
d)Before she came to Australia to study in 2002, she told her parents that she was a lesbian. They were very active and committed Catholics so they did not approve or understand. They considered that being gay was a sinful choice that people make. When she first told them, they thought it was a phase she was going through and that she would stop when she matured (CB 56);
e)When she came to Australia she met a woman. They fell in love and began a long-term committed relationship. This woman, her de facto partner, was an Australian citizen and after they had been together for about three years, the applicant applied for an Interdependent Visa. She was granted the first stage temporary Subclass 826 visa (CB 56);
f)The applicant applied for a permanent partner visa but that visa was refused because the relationship had ended (CB 57);
g)Her father wrote her a letter stating that he considered that his relationship with his daughter had been severed (CB 57);
h)Homosexuality was not accepted by people in Botswana. People could not live openly; they were forced to live a double-life. They had to act and behave as straight. The lack of acceptance was reflected in the law which criminalised same sex activity between consenting adults. She had never heard of anyone being charged under Botswana's anti-gay laws because whenever people came out, they moved to South Africa (CB 57);
i)She was unable to rely on the government in Botswana for protection because they would arrest and imprison her if her orientation came to their attention (CB 58);
j)She was unable to relocate to another area of Botswana because her risk of harm extended throughout the country. Both the risk of imprisonment and social ostracism and condemnation would follow her wherever she went (CB 58); and
k)She feared harm including detention and social ostracism at the hands of the authorities. The authorities would prosecute and imprison her and her family, or other members of the community would ostracise her in a way that amounted to degrading treatment or punishment. She could not rely on the protection of the state and she could not relocate anywhere within Botswana (CB 58).
On 7 October 2015, a Ministerial delegate refused to grant the visa on the basis that the applicant did not meet the criteria of s.36(2)(a) of the Act (CB 94-111). The delegate was not satisfied that the applicant would face a real chance of being persecuted as a result of her sexual orientation.
On 3 November 2015, the applicant applied to the Tribunal for review of the delegate’s decision (CB 112-113).
The Tribunal Decision
The Court notes the Minister’s summary of the Tribunal’s decisions at paragraphs 8 to 18 in his written submissions. That summary is an accurate overview of the Tribunal’s decision and the Tribunal adopts it as its own, adding further detail where necessary as follows.
The applicant appeared before the Tribunal on 17 August 2017 to give evidence and provided arguments.
The Tribunal outlined, in considerable detail, the applicant’s background as provided by the applicant to both the Department and the Tribunal (CB 195 at [7]).
The Tribunal recognised that it is often difficult for lesbian, gay, bisexual, transgender and/or intersex (“LGBTI”) people to talk about private matters concerning their sexuality. In the circumstances the Tribunal utilised the Department's guidelines for assessing claims related to sexual orientation and gender identity in determining the applicant’s case (CB 199 at [15]).
The Tribunal was satisfied, based on the applicant’s evidence that she was a lesbian, had had a number of relationships with women and that her parents, devout Christians, and brother, did not approve of her sexual orientation, although her sister had supported her (CB 199-200 at [18]-[19]).
The Tribunal concluded that the applicant was a member of the particular social group of “lesbians in Botswana” (CB 200 at [23]).
The Tribunal then considered in detail the country information before it relating to the treatment of lesbians in Botswana. On the available evidence, the Tribunal was not satisfied that the applicant faced a real chance of persecution in the reasonably foreseeable future. Overall, the Tribunal was not satisfied that the chance of harm to the applicant were she to return was more than remote or insubstantial (CB 201 at [26]).
The country and other information canvassed by the Tribunal included information about anti-LGBT violence and LGBTI rights generally and included:
a)The most recent United States Department of State Report on Human Rights (United States Department of State, Country Report on Human Rights Practices for 2016, 2017, Lesbian, Gays and Bisexuals of Botswana Association website ( report from 2011 suggesting that prosecution of LGBTI people had been minimal (Mmegionline, 2011, Rights Watch, "Victory for gender identity in Botswana", October 2017 ( "Anti-gay pastor arrested and deported from Botswana" (
f)Numerous website searches in relation to whether lesbians were specifically targeted. These searches included google searches for news reports, United States Department of State, Country Report on Human Rights Practices for 2016; Amnesty International, and Freedom House
The applicant was asked about some of this information. Her responses and the analysis that followed was outlined by the Tribunal as follows:
31.These reports were put to the applicant for comment, in particular, that the reports did not suggest that there was use of the Botswana Penal Code provisions to prosecute lesbians. Further, the reports state that police did not target people suspected of same-sex activity, and the LGBTI advocacy group has been able to register and participate in government sponsored events. The Tribunal put to the applicant that these factors may indicate that although there is some violence and societal harassment of lesbians in Botswana, there is not a real chance of serious harm from the authorities. She said that regardless of the fact that LeGaBiBo has been able to register, this is at the end of a long journey, and LGBTI people still face challenges. She said religion and culture have a big impact on the law. She said that there is a lot that happens where there are no reports to police, at the risk of being ridiculed. People in Botswana fear shame. For example rape does not get reported often, as women fear police questioning their character. She claimed that while there is not information readily at hand to show that anyone had been imprisoned for simply identifying as LGBTI, it is "inaccurate to assume that it has not happened and it will not happen. Bearing in mind that Botswana is a third world country and such information would not be readily available." She referred to the case of Utijwa Kanane, who was caught in bed with a man and accused of engaging in unnatural acts.
32.The Tribunal accepts that there may be incidents where reports are not made to the police, and that religion and culture have an impact on people's views towards LGBTI people. However, notwithstanding this, there do appear to be major developments in societal attitudes towards LGBTI issues, as recognised by the LGBTI organisation, LeGaBiBo, itself. LeGaBiBo is hosting a conference of LGBTI organisations from Africa in 2018 and states on its website:
The PAI conference will host over 200 delegates from across Africa and the world. It will be an opportunity for the world to see how Botswana is quickly becoming a progressive nation and an example in Africa and the world where LGBTI human rights are concerned. It is also a chance for the LGBTI community, the key population coalition and partner organisations to be in the forefront, leading and showcasing best practices in the protection and promotion of LGBTI human rights. Additionally, the conference will be a major boost for Botswana's tourism industry and contribute to the blossoming economy as well as show-case the best of our diverse culture.
33.It was put to the applicant that the LeGaBiBo site suggests that Botswana is quickly becoming a progressive nation, and a model for the furtherance of LGBTI rights in Africa, reflected in the fact that the African LGBTI conference is being held in Botswana in 2018. The LeGaBiBo website also refers to various LGBTI events held in Botswana including a film night, a bar/club night and a Pride night. Further the "Frequently Asked Questions" section of the website, refers to lack of constitutional protection for LGBTI people, but questions whether there have been any convictions under the "unnatural act" provisions. It also refers to protections for LGBTI people from discrimination in employment.
34.The applicant responded to this information by suggesting that while there has been progress, it has taken some time to get there. The fact that there is a conference is good, but there are other issues which could arise between now and then. She referred to a boy who has had a sex change, and is seeking the High Court to recognise him as a woman. She said that one commentator put information about this on his Facebook page, and there were many negative comments. She still fears that harm would take place if she returned. The Tribunal accepts that there may be some negative attitudes to LGBTI people. In regard to the case referred to by her, a recent article discusses how a transgender man in Botswana has won the right to have his status reflected on official papers. According to Human Rights Watch, the applicant was born female but self-identified as a man, and was "overjoyed" at the result.
35.It was also put to the applicant at the Tribunal hearing that recently an anti-gay pastor was deported from Botswana after saying that gay and lesbians should be killed. President Khama said, in relation to this pastor, that "we don't want hate speech in this country". The applicant responded that this is not a sign of progress. She does not feel as if this was done in protection of LGBTI people, but more as a sign of power.
The Tribunal considered whether there was a real chance of serious harm to the applicant due to laws in Botswana that prohibit same sex relationships. The Tribunal was not satisfied based on the country sources that the applicant would face serious harm from the authorities in Botswana because of these laws. The Tribunal recorded that provisions did exist in the Botswana Penal Code outlawing “carnal knowledge against the order of nature” but that these provisions had only been used very rarely against homosexuals, and not recently. Further, the evidence revealed that these provisions had not been used to prosecute lesbians and there were no reports of police targeting lesbians. The Tribunal accepted that there may be some incidents which are not reported but did not accept that if there was significant use of the provisions by the authorities against lesbians that there would have been some reporting of this violence. Furthermore, the Tribunal was not satisfied that there was a real chance of the provisions being utilised in the future to prosecute lesbians, given that there had been no (or few) prosecutions in the past and there had been, on the evidence, significant developments in societal and government attitudes towards LGBTI people: CB 203 at [36].
The Tribunal then assessed the generally conservative nature of Botswanian society and discrimination against lesbians generally:
37.The Tribunal is satisfied that there is general social conservatism within the country in relation to lesbians, and that this may be reflected in incidents of violence, social ostracism and discrimination by community members, as suggested by LGBTI groups.
38.In regards to the violence by members of the community against lesbians, the country reports do not suggest that this is widespread. Numerous website searches were conducted but the Tribunal was unable to locate specific reports of violence against lesbians. The applicant has said that she is physically recognised as a lesbian. However she did not suffer any physical violence in the past for this reason, including on her visits back to Botswana. As set out above, recently Botswana has become more progressive in relation to LGBTI rights, with the President expelling an anti-gay pastor, the High Court determining that an LGBTI - organisation must be registered, the holding of LGBTI public events and the planning of an LGBTI conference in 2018. While there may be some cases of violence from members of the community which remain undetected and unreported, the reports do not suggest this is a serious problem. Considering all of this information, the Tribunal is not satisfied there is a real chance of violence (more than a remote or insubstantial chance) from community members against the applicant were she to return to Botswana in the reasonably foreseeable future. Asked about a statement made in her papers that "LBGTI individuals are targeted in crimes such as corrective rape", the applicant that she had heard about this in South Africa, which is closely related to Botswana and people think similarly. While there may be instances of corrective rape taking place, the Tribunal is not satisfied there is a real chance of corrective rape, as country sources consulted do not indicate that this is a problem.
40.The applicant told the Tribunal that one Member of Parliament has categorised same-sex people as prostitutes, who were HIV positive, and therefore the government should not pay money for treatment of same sex people. She feels that there could be denial of access to health services which would affect her ability to get a job. She also referred to an incident in which the Botswana government refused to issue an exemption certificate for the adopted child of a gay American diplomat. A government official had stated that they did not wish to be seen condoning homosexual activity. She quoted articles which suggested homosexuality was anti-Christian and contrary to Botswana culture. The Tribunal is satisfied that there may be instances in which community members, including public officials, may make negative comments about LGBTI people. There may also be instances of discrimination, although the country reports do not suggest that this is widespread. However, the Tribunal is not satisfied that the applicant would be denied health services or that social ostracism or discrimination which the applicant may experience in Botswana would reach the level of serious harm envisaged by the legislation, involving, for example, serious psychological harm or denial of access to services, or any other level of serious harm not referred to in the legislative indicative examples.
41.Some reports suggest that Botswana is a socially conservative society generally, and that it is for this reason that homosexuality is not overt. The former US envoy is quoted in one article stating:
In general, although gays in Botswana do not disclose their sexual orientation publicly, Nolan writes that it is not out of fear of the public or the law but simply because Botswana is a conservative society where it is very rare to see public displays of affection, even between heterosexual couples.
"Therefore, it is hard to say if gays are suppressed from expressing their feelings or if lack of homosexual expression fits within the cultural context of keeping displays of affection and sexuality a private matter".
In general, Nolan stated that it seems as though one could classify Botswana as a "don't ask, don't tell" society when it comes to homosexuality.
"The citizens of Botswana know it exists and seem to turn a blind eye as long as the issue is not forced upon them", he stated in his cable.
42.When this information was put to the applicant, she agreed that Botswana is a conservative society, and the majority of people have never left the country. She said that she has seen the other side and does not feel that she could live under the radar.
Overall, having assessed all of the above, the Tribunal was not satisfied that if the applicant lived “openly” as a lesbian person, she would suffer harm amounting to serious harm. The Tribunal noted that the applicant had returned to Botswana on a number of occasions without suffering harm. While the applicant told the Tribunal that she hid her sexuality on these visits, she also told the Tribunal that she was visibly identifiable as a lesbian. The Tribunal found that on the evidence although the applicant might now live more publicly as a lesbian if she returned to Botswana than in the past, the fact that she had been able to visit without harm as a visibly identified lesbian woman indicated that there would not be a real chance of serious harm if she returned in the reasonably foreseeable future (CB 205 at [43]).
The Tribunal considered that while there may have been some instances of social ostracism or social discrimination, it was not satisfied that this would reach the level of harm envisaged by the legislation. The Tribunal was sympathetic to the fact that the applicant or her children may be subject to some negative comments and attitudes, particularly as the applicant had lived in Australia since 2002, where attitudes were more progressive. However, it considered that the information before it indicated that attitudes were changing significantly in Botswana. In regards to employment, for example, legislation prohibited discrimination based on sexual orientation. Further, there were many indications in the information before the Tribunal that social attitudes had progressed significantly (CB 206 at [47]).
While the Tribunal was sympathetic to the wish of the applicant to remain in Australia, it was not satisfied that the applicant had a well-founded fear of persecution for reasons of her membership of a particular social group, “lesbians in Botswana”, or any similar group, were she to return to Botswana in the reasonably foreseeable future (CB 206-207 at [48]).
For those reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore did not satisfy s.36(2)(a) of the Act (CB 209 at [59]).
The Tribunal then considered whether the applicant satisfied the criteria for complementary protection. It was not satisfied, based on country information, that there was a real risk that the applicant would be arbitrarily deprived of her life, that the death penalty would be carried out, or that she would be subject to torture. The Tribunal was also not satisfied, based on this information that there was a real risk that the applicant would be subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment from the authorities in Botswana or members of the community (CB 207 at [53]–[54]).
The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligation under s 36(2)(aa) of the Act (CB 209 at [60]).
Accordingly, the Tribunal affirmed the delegate’s decision (CB 209 at [62]).
Does the Originating Application Have Merit?
In relation to whether the applicant’s substantive application has merit the Court is guided by the comments of Murphy J in MZZLD v Minister for Immigration & Border Protection [2016] FCA 1201(“MZZLD”) (at [19]) that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”.
The Court further notes the comments of the Federal Court in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 (at [49], per Wigney J) that, in the context of an application for an extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time.
As noted above, the applicant’s Originating Application contained no review grounds.
Orders were made by a Registrar of this Court on 2 March 2018 giving the applicant an opportunity to file any amended application, any affidavit containing any additional evidence and any written submissions.
No amended application was filed. This is unfortunate because the application as it stands contains no grounds of review and no particulars. What the Court did receive were two affidavits dated 20 April 2018 and 9 August 2018.
The affidavit dated 20 April 2018 included a statutory declaration (or statement/submissions) from the applicant and various attachments. The attachments are arguably relevant to the situation of LGBT persons in Botswana. They also detail correspondence between the Department and the applicant relevant to the issue of a bridging visa and a complaint made about the Department’s handling of her file.
The affidavit of 9 August 2018 included numerous character references, all of which speak highly of the applicant. As noted above, the applicant’s good character and credibility has never been doubted.
In relation to these affidavits and the evidence contained therein, the Minister contended as follows in his written submissions:
Applicant’s affidavit dated 20 April 2018
25.The applicant filed an affidavit on 20 April 2018. It contains the applicant’s statutory declaration in the form of submissions and other evidentiary material.
26.The first respondent submits that the statutory declaration merely cavils with the Tribunal’s findings on country information and its finding that the applicant had not experienced any problems during her six visits back to Botswana between 2002 and 2009. In doing so the applicant is inviting the Court to engage in impermissible merits review which is no function of the Court.
27.Insofar as the applicant invites the Court to review her request for Ministerial Intervention, the first respondent submits that the Court has no jurisdiction to do so under s. 474(7) and 476(2) of the Act. Insofar as the applicant invites the Court to review her refused application for work rights under her current bridging visa, the first respondent submits that this is not the subject of this application for judicial review.
28.With regard to the evidentiary material supplied, the first respondent submits that the Tribunal was not required to consider what was not before it. None of this material was before the Tribunal, and the first respondent objects to its admission into evidence.
Applicant’s submissions dated 9 August 2018
29. On 9 August 2018, the applicant filed an outline of submissions. The submissions comprise a collection of character references provided by the applicant’s friends. The first respondent submits that these are irrelevant to the question of whether the Tribunal fell into jurisdictional error and are inadmissible as they were not before the Tribunal. The first respondent objects to their admission into evidence.
In relation to the documents attached to both affidavits (other than the statutory declaration, which is discussed below), the Court agrees that those documents were either not documents before the Tribunal or are character references. Neither are admissible before this Court.
In relation to the documents that outline the experiences of LGBT persons in Botswana, the Court notes that these documents were not before the Tribunal. In the circumstances of this judicial review application, the Court can make no reference to them. As rightly stated by the Minister, the Tribunal cannot be expected to consider and assess documents that were not put to it.
In relation to the character references, character references are not of assistance in relation to a judicial review application as they do not in any way assist the Court in determining jurisdictional error.
For these reasons, the Court attaches no weight to the affidavit evidence provided by the applicant and filed on 20 April 2018 and 9 August 2018, other than as referenced below in relation to the applicant’s statutory declaration.
In relation to the statutory declaration, to the extent that these written submissions simply ask that Court to engage in merits review of the Tribunal’s decision, the Court attaches no weight to those paragraphs that do little more than disagree with the Tribunal’s findings. To the extent that parts of the statutory declaration can be seen as evidence of an unrepresented applicant attempting to articulate grounds of review for her Originating application, the Tribunal will consider these submission as such. This is discussed further below.
In assessing whether the Originating Applicant has “merit”, the Court is asked to determine, in effect, whether the grounds of review articulated by the applicant can be seen to point to some sort of jurisdictional error on the part of the Tribunal. The question the Court needs to assess is whether, in relation to jurisdictional error on the part of the Tribunal, the applicant has an arguable case.
In relation to this issue, the Minister contended:
23.Moreover and critically, the first respondent submits that the applicant proposes no substantive grounds of review whatsoever. Nor has the applicant availed herself of the opportunity given by the Registrar on 2 March 2018 to amend her application to include any proposed substantive grounds by 20 April 2018. In those circumstances, the first respondent submits that it cannot be in the interests of the administration of justice to grant the applicant an extension of time and the application should be refused.
In effect, what the Minister is contending here is that the applicant’s case, were it to go to a final hearing, would be dismissed because the Originating Application is vague and lacks particulars. Hence, it is contended, the Court should dismiss the extension of time application because the originating application is hopeless.
It is certainly the case that a general, vague and insufficiently clear application provides judicial justification for the dismissal of a proceeding: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760; WZATH v Minister for Immigration and Border Protection [2014] FCA 969. However, the Court does not believe that this is an appropriate case in which to dismiss a request for an extension of time simply because the grounds articulated in the Originating Application are lacking. While this might make sense within the context of an applicant who is legally represented, it would be most unfair to dismiss an application in circumstances where an applicant is not legally represented and where there is credible evidence that she was confused about what was required of her and that confusion arose from conversations with the Department. In this regard, the Court notes the recent decision of Justice Colvin in the Federal Court in the matter of DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9].
Accordingly, the Court asked the applicant to articulate what she believes the Tribunal “did wrong”. The Court also explained to her what jurisdictional error means and why the Court cannot engage in merits review.
Unfortunately, the applicant’s response was not particularly helpful. It appeared, when asked, that the applicant believes the Tribunal ignored relevant evidence. In her own words, she believes the Tribunal did not adequately address the evidence before it in relation to the recent arrests of gay men in Botswana.
It is noted that the Tribunal does, in fact, address this issue at paragraphs 29 and 32 in its written decisions. The applicant seems to concede this in her statutory declaration:
7.It is documented in the Tribunal's report that as recent as August 31st 2016 [less than a year prior to the applicant's AAT hearing] a man was arrested and persecuted under the penal code partaking in unnatural acts (gay relationship).
8.The fact that he was pardoned as part of independence celebrations does not eliminate the fact that he was persecuted. It should also be noted that he was pardoned on the provision he did not commit a crime again, as if he did he would be returned to prison to complete his sentence.
On the evidence, it cannot be said that the Tribunal failed to look at this evidence (or, indeed, any other relevant evidence before it). Nor can it be said that the Tribunal applied irrelevant evidence. What the applicant really seeks here is for the Court to look at the evidence and come to a different conclusion than that reached by the Tribunal. This Court cannot do that as this crosses the line into impermissible merits review.
The Court also notes that in her statutory declaration the applicant writes:
14.The tribunal noted that I, the applicant visited Botswana on 6 occasions between 2002 to 2009 to visit my children, and there were no problems during these visits.
15.This is correct I left 2 young children in Botswana and as a mother it was difficult to do and still is very difficult thinking about what I have missed out on. I visited Botswana with no problems as I was forced to dress and act a certain way so I would not easily be identified a lesbian.
16. Not only did I do this socially but for many years I did the same with my parents, as it is culturally and socially unacceptable to be a lesbian in Botswana.
It appears from the above that the applicant is suggesting that the Tribunal failed to understand that members of the LGBT are only safe from harm in Botswana if they hide their sexuality and that “hiding” or being “discreet” is an “option”.
Were the Tribunal to suggest that “discretion” in relation to sexual expression is “an option” when assessing the risk of harm and persecution, such a conclusion certainly would constitute jurisdictional error. There is now ample legal authority in this county to the effect that it is unacceptable to assume that members of the LGBT community can avoid persecution and simply by acting “discreetly”: Appellant S395/2002 v Minister of Immigration and Multicultural Affairs [2003] HCA 71. This is as it should be. Indeed, given the nature of homophobia, what it does and what it says to those wanting to “come out” and “be out”, to suggest that someone can simply hide a central aspect of their identity is, frankly, offensive. Thankfully, we have moved on.
Fortunately, that is not what the Tribunal did here. The Tribunal did not say that a lesbian woman can avoid harm by acting more conservatively or discreetly. The Court did note that the applicant had acted more discreetly in the past and that Botswana was a conservative country. However, the Tribunal concluded on the information before it that the applicant could live openly as a lesbian and social attitudes towards LGBTI people was changing. This is a finding that was open to the Tribunal on the evidence. Having reviewed all of the country information before it, the Tribunal found that, although life for the applicant as an “out” lesbian woman would certainly be challenging, she would still be able to live openly as a lesbian.
Overall, no jurisdictional error, of any sort, can be found here. The Tribunal correctly applied the criteria contained in the Act. Taking into account the elaboration of the expression “a well-founded fear of persecution” contained in the Act and the criteria for complementary protection, the Tribunal considered each basis of the applicant’s claim for protection. Overall, the Tribunal’s decision had an intelligible and rational basis. The findings made were entirely open to it on the evidence and were legally sound. No jurisdictional error can found here.
In the circumstances, the applicant’s Originating Application has no prospects of success.
This weighs heavily against granting an extension of time.
Conclusion
As a consequence of finding that the merits of the applicant’s case do not meet the requisite standard, the Court is not satisfied that there is a basis on which to extend time in the interests of the administration of justice pursuant to s.477(2) of the Act.
Accordingly, the applicant’s application for an extension of time is refused.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 11 September 2018
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