FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOO16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1334 |
| Catchwords: PRACTICE AND PROCEDURE – Application to further amend grounds of review – consideration of factors in relation to proposed amendments – explanation for delay and reason for amendments – late filing of new material by respondents – model litigant obligations – nature and merit of the proposed amendments – whether any prejudice caused can be overcome – interests of justice. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.7.01, 7.03 |
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Details
- Case
- [2019] FCCA 1334
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia concerning a judicial review of a decision by the Administrative Appeals Tribunal. The applicant, a national of Zimbabwe, had her application for a Protection (Class XA) visa refused by the Tribunal, which had found she did not hold a genuine fear of persecution based on her sexual orientation. The applicant sought to further amend the grounds of her judicial review application.
The court was required to determine whether to grant the applicant leave to further amend her grounds for review. This involved considering the proposed amendments, the explanation for the delay in filing them, the reasons for seeking the amendments, and the late filing of new material by the respondent. The court also had to assess the nature and merit of the proposed amendments, whether any prejudice caused to the respondent could be overcome, and ultimately, what the interests of justice required.
In his reasoning, Judge Lucev considered the principles governing applications to amend pleadings, particularly in the context of judicial review of migration decisions. He noted that while amendments are generally permitted to ensure all relevant issues are ventilated, the court must balance this with the need for finality and the avoidance of prejudice. The judge examined each proposed amendment, weighing the applicant's explanation for the delay against the potential impact on the respondent and the overall fairness of the proceedings. The court's ultimate decision on the amendments would depend on whether they raised arguable grounds and whether any resulting prejudice could be adequately managed.
The court was required to determine whether to grant the applicant leave to further amend her grounds for review. This involved considering the proposed amendments, the explanation for the delay in filing them, the reasons for seeking the amendments, and the late filing of new material by the respondent. The court also had to assess the nature and merit of the proposed amendments, whether any prejudice caused to the respondent could be overcome, and ultimately, what the interests of justice required.
In his reasoning, Judge Lucev considered the principles governing applications to amend pleadings, particularly in the context of judicial review of migration decisions. He noted that while amendments are generally permitted to ensure all relevant issues are ventilated, the court must balance this with the need for finality and the avoidance of prejudice. The judge examined each proposed amendment, weighing the applicant's explanation for the delay against the potential impact on the respondent and the overall fairness of the proceedings. The court's ultimate decision on the amendments would depend on whether they raised arguable grounds and whether any resulting prejudice could be adequately managed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Proposed Further Amended Judicial Review Application is in the following terms, with the proposed further amendments underlined:1. The tribunal member failed to afford the applicant procedural fairness: a. Failed to disclose to the Applicant documents in the Second Respondent’s possession for which no disclosure certificate or notification was issued by the Department of Immigration and Border Protection (Documents). b. The Second Respondent failed to disclose to the Applicant folio 69, being “an email between the Tribunal and the Department of Immigration” (Email).c. Failing to give the Applicant notice that the Second Respondent would consider issues other than issues arising in relation to the decision under review. d. The Second Respondent failed to make enquiries with respect to the Memorandum of Agreement of Cession with respect to the sale of the Applicant’s parent’s property at … [address deleted], Harare (Property). e. The Second Respondent failed to put to the Applicant adverse findings that:i. the Applicant’s description of her claimed one and only relationship was “unusual and vague” [40]; ii. the Applicant did not have a genuine relationship with her partner … [name deleted] and it was just “more of a friendship in that they travelled together on a bus each day and saw each other on weekends” [40]; iii. the Applicant was not harmed in August and November 2012 [55];iv. the Applicant was not a lesbian [54] or that she would genuinely seek to be a lesbian in Zimbabwe [54] and [57];v. the Applicant joined the ROHR Zimbabwe for the sole purpose of obtaining her visa. f. Making adverse credibility findings based on the following assumptions or incorrect factual findings:i. that … [name deleted], the person whom the Applicant attempted to have a relationship with was a member of the Zanu-PF [28] and [54];ii. failure to bring her brother to attend the Tribunal to give evidence [44] or any other witnesses [35]; iii. the intelligence authorities in Zimbabwe were interested in the Applicant because she was a lesbian [49] and [54]; iv. the Applicant researching places where she would be free to be homosexual and that she was unaware she would be free to be a lesbian in South Africa [52] [line 39 page 12 of the Transcript] ;.v. the purpose of the ROHR Zimbabwe Letter dated 25 October 2015 (ROHR Letter) was obtained “solely because the applicant felt she needed evidence to support claims” [46] when it was obtained in the Applicant’s own words: 1. “but mainly to establish if – well, establish how I could live with my sexual orientation if I were to go back to…..to find out what the current situation in Zimbabwe towards people of my orientation were at present” [Transcript P13 L31 to 34]; and 2. “if I go back to Zimbabwe would I be safe and, therefore if I go back to Zimbabwe would I thrive and be able to get on with my life or would I pretty much be facing a bleak situation, such as, my death if I went back” [Transcript P14 L35 to 38]. vi. the letter from … [name of Church minister deleted] from the … [name of Church deleted] in Zimbabwe was a letter of support [47], when it was evidence of her marriage, her work as a pastor and the termination of same at the time she separated from her husband. vii. The workplace and her community were separate [48]. g. Failed to consider the potential social group of persons who are perceived by the community at large to be lesbian/homosexual.i. meant that the Applicant would no longer be employed and be able to support her minor daughter; and/or ii. with regards to how easy/difficult it would be for the applicant to find alternative accommodation and/or employment elsewhere in rural Zimbabwe and whether any form of unemployment benefits were offered by the Zimbabwean government. 2. The tribunal member failed to take into account relevant considerations: a) Memorandum of Agreement of Cession [P 105 to 109 of the Court Book]. b) The Applicant belonged to a particular social group of “persons perceived to be lesbian/homosexual”. c) The Applicant has been forced to be separated from her minor daughter (at the time 16 years of age) who is living with her parents in Zimbabwe who the Applicant has not seen since she left Zimbabwe. d) Moving to another part of Zimbabwe: e) The Applicant obtained the RHOR Letter for the purposes of: i. “but mainly to establish if – well, establish how I could live with my sexual orientation if I were to go back to…..to find out what the current situation in Zimbabwe towards people of my orientation were at present” [Transcript P13 L31 to 34]; andii. “if I go back to Zimbabwe would I be safe and, therefore if I go back to Zimbabwe would I thrive and be able to get on with my life or would I pretty much be facing a bleak situation, such as, my death if I went back” [Transcript P14 L35 to 38]. 3. The tribunal member took into account irrelevant considerations: a) Whether the Applicant’s relationship with … [name deleted] was a genuine relationship or not, as a genuine relationship is not conclusive evidence of a person’s sexual orientation.b) The Applicant’s current relationship status [33] [page 18 Transcript] as this is not conclusive evidence of a person’s sexual orientation. 4. Apprehended Bias a. Arriving at conclusions without evidence or a reasonable basis with respect to: i. there being no evidence of her parents selling their Property [22]; ii. the purpose of the RHOR Letter as the applicant never stated “She thought how best to get her visa and thought she should join them” [34] and [46]; iii. time which passed between the first contact with RHOR Zimbabwe and the RHOR Letter; iv. the Applicant’s evidence of the verification process undertaken by RHOR; v. failure to follow through with fact finding in relation to the RHOR letter; vi. the purpose of the Church Letter [47]; vii. separation between work and the community [48]; viii. the conclusion the Applicant’s relationship with … [name deleted] was unusual and vague; ix. the Applicant was unaware she could call witnesses [42] contrary to the Applicant’s evidence that she did not know how she would be able to bring someone from Zimbabwe to be a witness [Transcript P16 Line 22 to 23];x. failure to call her brother as a witness when her brother giving evidence would not serve any useful purpose since any evidence would be of no probative value [44] [45];xi. that intelligence authorities in Zimbabwe kept her under surveillance [49] when the Applicant never stated that the intelligence authorities in Zimbabwe kept her under surveillance; and xii. the applicant was not a lesbian or would genuinely seek to live in Zimbabwe as a lesbian [57]; b. The conclusions were reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly:i. Agreement of Cession; ii. RHOR Letter; and iii. Church Letter. 5. Improper Exercise of Power a. Significant factual errors prevented the Second Respondent from making a proper, genuine and realistic consideration to the merits of the Applicant’s claim.b. Significant factual errors caused the Second Respondent not to have properly understood the merits of the Applicant’s case.c. The Second Respondent’s consideration of the RHOR letter was not a proper genuine and realistic interpretation and is indicative of a perfunctory and cursory consideration of what processes were followed by RHOR Zimbabwe to grant the Applicant membership.d. There was no proper, genuine and realistic consideration of the correlation of the anti-homosexual propaganda and the attacks on the Applicant.
Ratio Decidendi
Legal Principle Established
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