Apd17 v Minister for Immigration
[2020] FCCA 2050
•6 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APD17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2050 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicants Protection (Class XA) (Subclass 866) visas – Applicants needed an extension of time under s.477(2) of nearly three years to make their application to this Court – primary applicant for Protection visa now deceased – Applicants claim that the Tribunal failed to take into account relevant considerations, was unreasonable and denied their legitimate expectations – no reasonable explanation for delay of almost three years in commencing proceeding – no reasonable prospects of success for proposed substantive grounds – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424A, 477 Migration Regulations 1994 (Cth) |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Bechara v Bates [2018] FCA 460 |
| First Applicant: | APD17 |
| Second Applicant: | APE17 |
| Third Applicant: | APF17 |
| Fourth Applicant: | APG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 425 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 20 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr R. Chaudhry |
| Solicitors for the Applicants: | Chaudhry Legal |
| Counsel for the First Respondent: | Ms A. Davyskib |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Applicants’ application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 425 of 2017
| APD17 |
First Applicant
| APE17 |
Second Applicant
| APF17 |
Third Applicant
| APG17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a female citizen of Fiji aged 43 years;
b)the Second Applicant is a female citizen of Fiji aged 20 years and is the daughter of the First Applicant;
c)the Third Applicant is a female citizen of Fiji aged 16 years and is the daughter of the First Applicant; and
d)the Fourth Applicant is a male citizen of Fiji born in Australia, aged 9 years and is the son of the First Applicant.
(collectively the Applicants)
By Amended Application filed in this Court on 8 May 2017 they seek:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 1039 days, or nearly 3 years, outside the 35 day time limit prescribed by s.477(1) to make their substantive application to this Court; and
b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (then the Refugee Review Tribunal) (Tribunal), dated 6 March 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 July 2013 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)) as members of the family (and who did not make their own claims to protection) of the primary applicant for the Protection visas, namely the husband of the First Applicant and the father of the other Applicants, Mr Shannon (i.e. a pseudonym and the primary applicant).
I note that the primary applicant is not a party to this proceeding because he unfortunately died in a motor car accident on 28 September 2015, some 17 months before the filing of the original Application in this Court on 14 February 2017.
Background
The primary applicant first arrived in Australia on 10 October 2003 as the holder of a Visitor (Subclass 676) visa, which allowed for stay in Australia until 7 November 2003. He returned to Australia on four other occasions during 2006 to 2009 on further Visitor visas. He last arrived in Australia on 3 May 2009 with the First and Third Applicants and with the Second Applicant last arriving in Australia on 15 July 2009.
The primary applicant on 14 August 2009 requested a waiver of Condition 8503 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) (which is known as the “no further stay” condition) imposed upon his Visitor visa, which was refused on 17 August 2009. He subsequently requested a waiver of Condition 8503 on 24 October 2012, which was likewise refused on 13 November 2012.
The primary applicant then applied for the Protection visa on 6 December 2012, with the Applicants included as secondary applicants to that Protection visa application as part of his family unit.
Claims to Protection
In their Protection visa application forms the primary applicant and the First Applicant stated that they could speak, read and write the Fijian and English languages. They had married in Suva on 28 April 2000 and the primary applicant had worked as a clerk for the Fiji Electricity Authority for 10 years from 1999 to 2009. The First Applicant obtained a Diploma in Nursing in 1998 and worked thereafter as a Registered Nurse in Fiji before coming to Australia. In response to questions 43 to 48 of his Protection visa application form, the primary applicant advanced the following claims to protection:
a)he left Fiji fearing for his safety from the reigning military regime;
b)he was taken to an army camp for questioning for his association with Ratu Inoke Takiveikata (Ratu Inoke), who is the patron of Soqosoqo Duavatani Lewenivanua (SDL Party) and is also the First Applicant’s uncle;
c)the military regime forced him to run around the ground, threatened to kill him and verbally abused him so that he would tell them about the supposedly secret meetings of his uncle in law and the SDL Party;
d)when he returned to Fiji in 2009 he learned that he was on the ‘Travel Banned List’;
e)he was stopped at the airport and was coerced by the military to complete an undertaking that he would return to Fiji and because he did not his family was harassed;
f)his involvement with the Fiji Pro-Democracy Movement (FDFM) in Australia has lifted his profile to the status of ‘wanted person’ in Fiji;
g)he will be harmed by the military regime if he were to return to Fiji; and
h)he fears that both he and his family will be targeted by the military regime and will be shown no mercy.
Relevant Law and Criteria Applicable to the Grant of a Protection visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visas in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The primary applicant attended an interview with the Delegate on 13 February 2013.
In her Decision Record the Delegate set out the primary applicant’s claims to protection and, with reference to independent country information, considered those claims under the following headings of:
a)SDL Party;
b)Treatment of Members and Supporters of the SDL Party;
c)Travel Watchlist; and
d)Fiji Democracy and Freedom Movement – Australia.
In the result the Delegate was not satisfied that the primary applicant was a person to whom Australia owed protection obligations under the Refugees Convention criterion or the complementary protection criterion and refused to grant a Protection visa to him, which meant that the Delegate necessarily had to refuse the dependent applications for Protection visas of the Applicants.
Decision of Tribunal
The primary applicant and the Applicants lodged an application for merits review of the Delegate’s decision with the Tribunal on 20 August 2013 and provided a copy of the Decision Record of the Delegate to the Tribunal at that time. In a Response to Hearing Invitation dated 2 December 2013 it was indicated that the primary applicant and two witnesses would take part and give evidence at the Tribunal hearing but that the Applicants would not. The hearing took place before the Tribunal on 6 December 2013, when the primary applicant gave evidence and presented arguments and oral evidence was received from one witness, with the Applicants being in attendance but not giving evidence.
At [1] – [20] of its Decision Record the Tribunal noted the background and relevant statutory framework to the review application. From [21] – [59] it recorded its consideration of the primary applicant’s claims and the evidence before it.
At [23] the Tribunal summarised the primary applicant’s claims to protection, as follows:
[23]In summary, the applicant claimed that he left his country as he feared for his safety from the military regime. He claimed he was taken up to the military camp for questioning about his association with Ratu Inoke Takiveikata who is the Patron of the Soqosoqo Duaatani Lewenivanua (SDL) Party and who is also the applicant wife's uncle. The applicant claimed he was made to run around the ground, was threatened, verbally abused, kicked and spat at by the military officers who wanted to know about the meetings of the SDL Party. He also claimed that while returning to Fiji in May 2009 he found out that his name was on the "Travel Banned List". He claimed he was stopped at the airport with the reason that they had to check with the military camp. The applicant claimed he went to the military camp with a friend who is a lawyer and saw a high ranking officer and made an undertaking that he would return. He claimed that when he did not return they started harassing his family. The applicant claimed that his involvement with the Fiji Pro-democracy Movement in Australia has lifted his profile as one of the wanted people in Fiji.
At [30] of its Decision Record the Tribunal accepted that the First Applicant and Ratu Inoke were cousins, but at [31] did not accept that the primary applicant had any political association with Ratu Inoke. At [33] it did not accept that the primary applicant was a member of the SDL Party because as recorded at [32] his “evidence regarding his alleged activities in support of the SDL over the period of seven or more years [was] somewhat vague and lacking in detail, especially in light of the substantial number of years he purportedly actively supported the party”. The Tribunal also at [32] noted the disparity between his apparent very little knowledge of the SDL Party before the Delegate compared to his subsequent evidence at the Tribunal hearing.
Also at [33] of its Decision Record the Tribunal noted the letter of 24 October 2013 from a former president of Fiji, but recorded that it placed little weight on the letter because it was inconsistent with the primary applicant’s own evidence recorded at [32] about his claimed level of involvement with the SDL Party which amounted to support by fundraising activities selling food and raffle tickets, support during elections and attending SDL Party meetings twice a year.
At [34] – [37] and [42] of its Decision Record the Tribunal considered, but rejected, the primary applicant’s claim of a close association with Ratu Inoke for the reasons there stated, which led to the Tribunal rejecting the primary applicant’s claim that he was harassed and assaulted by the Fijian military because of his claimed association with Ratu Inoke.
At [39] – [41] of its Decision Record the Tribunal considered, but rejected, the primary applicant’s claim that he was on some form of travel ban list, based primarily on inconsistencies in his evidence and country information.
At [45] – [48] of its Decision Record the Tribunal considered the primary applicant’s claim that he and the First Applicant were involved in Australia with the FDFM. It accepted that the primary applicant and the First Applicant were members of the FDFM in Australia, but found that this membership was actuated for the sole purpose of strengthening their claims for protection and was to be disregarded under s.91R(3) of the Act.
At [49] of its Decision Record the Tribunal recorded that it had regard to the three year delay in the primary applicant’s seeking protection as indicating that his claims in that regard were not credible.
At [50] of its Decision Record the Tribunal concluded as follows in relation to the Refugees Convention criterion:
[50]Considering the applicant's claims both individually and cumulatively, the Tribunal does not accept that the applicant faces a real chance of persecution now or in the reasonably foreseeable future for reasons of his political opinion, his membership of a particular social group comprising his wife's family or any other Convention reason, if he returns to Fiji.
From [52] – [58] of its Decision Record the Tribunal considered and rejected the primary applicant’s claims to protection under the complementary protection criterion, essentially for the same reasons that they had been rejected under the Refugees Convention criterion. In particular, at [57] the Tribunal did not accept that the primary applicant and his wife's involvement in the FDFM in Australia established them as high profile political activists or opponents of the Fijian regime and was not satisfied there was a real risk they would suffer significant harm as a result of their association with the FDFM in Australia.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant a Protection visa to the primary applicant, which necessarily meant that it affirmed the Delegate’s decision not to grant Protection visas to the Applicants as secondary applicants.
Grounds of Extension Application
The Grounds of the extension application are verbatim as follows:
1. An extension of time will allow the applicants to be able to file their appeal and have it heard [on] its merits.
2. The initial application was by another applicant and who is now deceased. The 1st named applicant herein seeks to have her claims heard afresh and determined according to law.
3. The applicants submit that they have strong grounds of appeal and seek to argue the same in Court.
4. There would be no prejudice to the respondents if time were extended to allow the applicants to file their appeal.
5. The prejudice to the applicants, if time were not extended, would be the prospect of return to Fiji and facing grave harm and persecution for the 1st applicant’s political opinion and family connections.
6. And on the grounds contained in the affidavit of the 1st named applicant, as filed in support of this application.
In considering whether or not it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.
Those factors include:
a) whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b) whether there is any prejudice to the Minister; and
c) whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.
In relation to the assessment of whether or not the substantive case of the Applicants is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive Grounds beyond “a reasonably impressionistic level”.
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
The Issue of Delay
The relevant facts in relation to the Applicants’ delay in making their application for judicial review to this Court are as follows:
a)the decision of the Tribunal was made on 6 March 2014;
b)by letter dated 5 April 2014 the primary applicant, on behalf of the Applicants and himself, made a request for Ministerial Intervention under s.417 of the Act, and attached to that letter a copy of the Decision Record of the Tribunal;
c)the Department of the Minister acknowledged the request for Ministerial Intervention by letter dated 8 May 2014;
d)the primary applicant died on 28 November 2015;
e)by letter dated 3 January 2017 the First Applicant was advised that the Assistant Minister for Immigration and Border Protection had personally considered the case and decided that it would not be in the public interest to intervene, and that the power under s.417 had not been exercised;
f)the First Applicant at [6] and [7] of her affidavit of 13 February 2017 deposed as follows:
[6]My husband was advised after the refusal by the Tribunal of his application to apply to court for a review but did not want to do so as he said that it was very costly at that time. As a subservient wife I had no say in the matter.
[7]The Ministerial Intervention decision was given on 3 January 2017, almost 3 years after the Tribunal delivered its decision on 7 March 2014 later and by which time any appeal to this court was out of time…; and
g)the First Applicant at [9] and [10] of her affidavit of 24 April 2017 deposed as follows:
[9]I knew my husband had applied for Ministerial Intervention. I remained hopeful and prayed daily in the hope that the Minister would decide in our favour.
[10]It was for this reason that I did not file court proceedings any earlier as a favourable Ministerial Intervention would have meant me saving a lot of money on legal fees - money which I did not have and would have to borrow from my friends and church.
The delay of nearly three years is grossly excessive, and whilst there may have been no real or actual direct prejudice to the Minister resulting from the delay, that fact does not in itself militate in favour of an extension.
In my view, the Applicants have not provided a reasonable or adequate explanation for the delay. The First Applicant is in a much better position than many applicants for judicial review in this Court who bring their applications in time, because she reads, speaks and writes the English language. Neither the fact that an application for Ministerial Intervention had been made nor the alleged lack of funds to retain a lawyer constitute a reasonable excuse for the delay. There has been no explanation why Chaudhry Legal or some other lawyer could not have been retained within the 35 day period allowed by s.477(1) of the Act, rather than nearly three years later on or just before 14 February 2017 when this case commenced. I infer on the evidence before me that at least the First Applicant made a deliberate decision to await the result of the Ministerial Intervention request and only after the adverse result notified to her in January 2017 did she then cause this proceeding to be commenced in February 2017. She claims to have been a “subservient wife”, but her husband, the primary applicant, died in November 2015 and any such source of subservience had then ceased, but she still did not commence a case in this Court until 15 months later.
In Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 McKerracher J had to consider an extension of time application filed two and a half years out of time, and stated as follows at [25] – [31]:
[25] On an extension of time application regard will usually be had to the length of the delay, the reasons for the delay, the merits of the proposed appeal, the interest of justice and prejudice, if any. The applicant was required to file his application for judicial review within 35 days of the date of the Tribunal’s decision pursuant to s 477A(1) of the Migration Act.
[26] The history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused is usually relevant as noted in Gallo v Dawson (1999) 64 ALJR 458 (at 459). Nonetheless, in Tran v Minister for Immigration and Border Protection [2014] FCA 533 (at [38]), Wigney J noted that the absence of any satisfactory, let alone persuasive, explanation for significant delay would itself be a sufficient basis to refuse the application for an extension of time. In that case the delay was only 18 months.
[27] Importantly, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (at 474), McHugh J noted that a case ‘would need to be exceptional’ before the time for commencing proceedings was enlarged by even many months. His Honour also emphasised in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553-554) that an applicant for an extension of time has the positive burden of demonstrating that the justice of the case requires that extension. It would require an exceptional case before an extension of time would be granted in a circumstances where a delay of 2 and a half years has occurred as against a limitation period selected by Parliament of 35 days.
[28] In my view, the length of the delay here is of such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay. Were a mere ‘arguable case’ sufficient to outweigh a significant and extensive delay, then limitation periods would be deprived of any meaningful effect. It was noted by McHugh J in Brisbane South where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’ (at 553).
[29] In considering these principles, it is clear that the fact that the applicant has been lawfully detained is not sufficient reason for a delay of such magnitude. It may explain a short delay in many cases but, in any event, detention did not prevent him from lodging an application for a protection visa and then pursuing both merits review and judicial review of that application. Detention alone clearly did not inhibit his ability to file judicial proceedings.
[30] Secondly, as has been observed in many cases, and as Mr Robertson accepts, lack of legal assistance without more is not a sufficient excuse for delay. In any event, in this case the applicant had legal assistance and followed advice. He pursued an alternative course.
[31] Thirdly, pursuing alternative pathways does not provide an acceptable explanation for delay in making an application for judicial review: see Tran (at [34] and [36]) and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 per Jessup J (at [29] with whom Gyles and Besanko JJ agreed). As noted in Vu (at [29]), exercising appeal or review rights should not be used as a ‘Plan B’.
In my view, the circumstances relating to the delay of nearly three years in commencing this proceeding militate against any extension of time being granted by the Court under s.477(2) of the Act.
However, I now turn to the issue of whether or not there is any arguable basis for the Applicants’ proposed substantive Grounds.
Proposed Substantive Grounds
At the hearing Mr Chaudhry appeared for the Applicants and Ms Davyskib appeared for the Minister. Mr Chaudhry abandoned what had been referred to as Grounds 4 and 5 and refinement and renumbering of the balance of the proposed substantive Grounds resulted in the following being pressed:
Failing to take into account relevant considerations
Ground 1. The 2nd respondent erred in paragraph 30 of its decision in failing to take into account the strong familial ties of the applicant to the Qaranivalu [i.e. Ratu Inoke] and how such relationship would affect her safety if she were to return to Fiji.
Ground 2. The 2nd respondent erred at paragraph 31 of its decision, when it failed to properly take into account all relevant considerations when it held that the 1st named applicant was not politically associated with Ratu Inoke Takiveikata (Ratu Inoke) despite finding at paragraph 30 of its decision that the applicant’s wife and Ratu Inoke were cousins.
Particulars
The 2nd respondent in arriving at its finding failed to take into account the following relevant considerations:
a) At the relevant time (5 December 2006 – March 2014), the SDL Party was the only indigenous Fijian party;
b) Ratu Inoke was a senior and influential member of the SDL Party till his jailing in 2010; and
c) Indigenous Fijian society structures are quite different to Australian Anglo Saxon structures in that there is much greater recognition of extended family relationships.
Ground 3. The 2nd respondent erred, at paragraph 32, 33 and 57 of its decision when it failed to properly take into account all relevant considerations when it held that the 1st named applicant was not a member of the SDL Party in 2001.
Particulars
The 2nd respondent in arriving at its finding failed to take into account the following relevant considerations:
a) Post 2000 coup the SDL Party was the only mainstream political party for Fijians;
b) Fijian political parties do not have the same structures as Australian political parties and membership is largely by association rather than paid political party membership;
c) Many Fijians and other races who are civil servants, for example, cannot be seen to be members of political parties and can support their political parties by association;
d) The letter by Laisenia Qarase confirmed the 1st named applicant’s membership of the SDL; and
e) Laisenia Qarase was a senior member of the SDL and former Prime Minister, who would not issue a letter to the 1st named applicant which was not factually correct.
Ground 4. The 2nd respondent failed at paragraphs 31 – 37 (inclusive) and paragraph 47 to correctly apply a clear line of reasoning and / or misapplied the facts to arrive at its conclusions.
Particulars
a) Gave undue weight to evidence which was not relevant such as SDL membership;
b) Failing to take into account that Ratu Inoke was seen as a political threat to Bainimarama;
c) Failing to take into account that Ratu Inoke’s original case was presided over by Justice Anthony Gates who was subsequently found to have been biased and whose judgment and sentence was set aside by the Court of Appeal and a retrial ordered; and
d) Finding that the applicant and her deceased husband joined FDFM and accepted official appointment at FDFM Robinvale to strengthen their claims for a Protection visa.
Ground 5. The 2nd respondent, at paragraph 57 of its decision failed to proceed to the natural conclusion of harm to the applicant/s after finding that country reports did report ordinary citizens being subjected to harm.
Unreasonableness
Ground 6. The 2nd respondent, at paragraphs 44 – 48 (inclusive) of its decision made findings that were unreasonable and not cogent.
Particulars
The 2nd respondent acted unreasonably in:
a) Dismissing the 1st applicant’s claim on his affiliation and activism with Australia democracy movements; and
b) Did not apply a cogent line of reasoning when assessing the applicant’s claim as it related to his affiliation, association and activism with the Australia based Fiji Democracy Movement.
Denial of legitimate expectation/s
Ground 7. The 2nd respondent failed to act fairly and in accordance with the requirements of Migration Act 1958 and in doing so defeated the legitimate expectations of the applicant, particulars of which are stated in the particulars accompanying paragraphs 1 – 4 (inclusive) of these submissions.
Consideration
Proposed Substantive Ground 1
This Ground appears to complain that the Tribunal did not take into account the First Applicant’s safety if she were to return to Fiji with respect to [30] of the Decision Record of the Tribunal, which merely stated as follows:
[30]The Tribunal accepts the applicant wife is related to Ratu Inoke Takiveikata (Ratu Inoke), the founding president of the SDL and patron. According to the applicant's evidence in the hearing, the applicant wife's mother and Ratu Inoke are cousins.
However, the simple fact of the matter is that neither the First Applicant nor any of the other Applicants made any claims in their own right to protection (as was also indeed conceded by Mr Chaudhry at [5] of his Outline of Submissions filed on 22 September 2017), but rather their claims were wholly dependent upon those of the primary applicant. Notwithstanding this fact the Tribunal in its Decision Record did, apparently for completeness, consider the First Applicant’s position, stating at [43] as follows:
[43]Similarly, the Tribunal does not accept for the same reasons as above, that the applicant wife's familial relationship to Ratu Inoke would result in her facing a real chance of persecution, now or in the reasonably foreseeable future, if she returns to Fiji.
In other words, the Tribunal did take upon itself to consider the First Applicant’s position in this family connection were she to return to Fiji, and the Applicants have failed to establish that the Tribunal failed to take into account relevant considerations as contended by this Ground.
Proposed substantive Ground 1 has no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 2
This Ground is factually incorrect. At [31] of its Decision Record the Tribunal recorded that it did not accept that the primary applicant had any political association with Ratu Inoke, despite its acceptance of the familial connection at [30]. Paragraph [31] does not record any finding in connection with the First Applicant at all.
In my view this proposed substantive Ground would fail to establish that the Tribunal did not take into account relevant considerations in relation to its finding at [31] of its Decision Record that the primary applicant did not have any political association with Ratu Inoke, and in this regard it is pertinent to note that as Flick J said in SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13]:
[13]The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.
Further and in any event, at [56] of its Decision Record the Tribunal further considered the First Applicant’s familial relationship to Ratu Inoke in the following terms:
[56]The Tribunal does accept that the applicant wife is related to Ratu Inoke. However, the Tribunal refers to the country information discussed above which indicates that only two of his family members have been subjected to mistreatment and there were no reports indicating other family members of Ratu Inoke had been mistreated or harmed. Taking into consideration the fact the Tribunal does not accept the applicant experienced any problems prior to his last departure from Fiji in May 2009 and the independent information referred to above, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the review applicant being removed from Australia to Fiji, there is a real risk that the applicant or applicant wife will suffer significant harm as a result of their familial connection to Ratu Inoke.
(emphasis added)
This proposed substantive Ground has no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 3
This proposed substantive Ground complains that the Tribunal in certain paragraphs of its Decision Record found that the First Applicant “was not a member of the SDL Party in 2001”. However, [32] and [33] do not refer to the First Applicant at all and [57] makes no finding in connection with the First Applicant being a member of the SDL Party, which is not surprising because she had never claimed to be a member of the SDL Party, in either 2001 or at all.
At [47] of its Decision Record the Tribunal had accepted, on the basis of documentary evidence, that the primary applicant and the First Applicant had joined the FDFM in Australia, but at [48] found that the motivation for them joining the FDFM was for the sole purpose of strengthening their claims to be refugees. At [57] it did not accept that the engagement of the primary applicant or the First Applicant with the FDFM in Australia established them as high profile activists or vocal political opponents of the Fijian regime, or that there was a real risk that the First Applicant would suffer significant harm as a result of her association with the FDFM and her activities in Australia.
Proposed substantive Ground 3 has no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 4
This proposed substantive Ground merely invites merits review of findings of the Tribunal which were open to it and which do not appear to lack an intelligible justification and which do not evince legal unreasonableness.
This proposed substantive Ground has no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 5
This proposed substantive Ground argues with the findings and reasoning of the Tribunal on a merits review basis, and has no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 6
This proposed substantive Ground again seeks to argue with the findings and reasoning of the Tribunal on a merits review basis and would have no reasonable prospects for success in establishing jurisdictional error.
Proposed Substantive Ground 7
The first thing to be said concerning this proposed substantive Ground is that the concept of “legitimate expectation”, in the context of the procedural fairness obligations of an administrative decision-maker, is distracting and unhelpful. Rather, the real question in such a context is whether the relevant decision has been made fairly in the applicable statutory and legal framework: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.
Second, there has not been shown, nor can I discern, any failure by the Tribunal to comply with its procedural fairness obligations under Division 4 of Part 7 of the Act, which is an exhaustive statement of the natural justice hearing rule: s.422B of the Act.
The primary applicant and the Applicants were invited to a hearing before the Tribunal which they attended with the assistance of a Fijian interpreter, with the Tribunal hearing extending over a period of three and a half hours. The reasons of the Delegate for not granting Protection visas were similar to the findings of the Tribunal, and the primary applicant and the Applicants were aware of the Delegate’s findings and reasoning at the time of the Tribunal hearing on 6 December 2013. In my view, the Tribunal afforded the primary applicant and the Applicants a real and meaningful hearing.
This proposed substantive Ground has no reasonable prospects for success in establishing jurisdictional error.
Mr Chaudhry’s Complaint at Hearing
For completeness I note that at the hearing Mr Chaudhry in his submissions also complained that the Tribunal did not under s.424A of the Act put its concern about inconsistencies in the evidence to the primary applicant before making its decision. However, there is nothing in this point because the Tribunal was under no obligation to do this. In SZOBC v Minister for Immigration & Citizenship (2010) 116 ALD 147 Nicholas J said at 155 [30]:
[30]I agree with the federal magistrate that the appellant’s inconsistent evidence did not itself constitute a separate “issue” of which the appellant was required to be notified for the purposes of s 425 of the Act. That section does not require the tribunal to identify the significance of the questions put to the appellant, or the ultimate issue or matter to which the tribunal’s questions were directed. Any such requirement would constitute an attempt to import the requirements of s 424A(1) into s 425: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; 98 ALD 246; [2007] FCAFC 162 at [88]. In effect, what the appellant seeks is a running commentary from the tribunal regarding the evidence being given. The tribunal is under no such obligation: SZBEL at [48].
More recently, Wigney J in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53] said as follows:
[53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
Conclusion
The Applicants have failed to establish any adequate, proper or reasonable excuse for taking nearly three years to commence their proceeding in this Court, and the proposed substantive Grounds which would be relied upon by them are not reasonably arguable and do not have reasonable prospects of success and would not provide a basis for a finding of jurisdictional error by the Tribunal.
Accordingly, I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding and the application to do so will be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 6 August 2020
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