APP17 v Minister for Immigration
[2018] FCCA 3571
•12 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3571 |
| Catchwords: MIGRATION – Protection visa application – application for an extension of time – extensive delay in filing application – inadequate explanation for delay – merits of substantive application – whether Tribunal failed to give particulars of information to applicants – whether Tribunal acted unreasonably – whether Tribunal denied applicants procedural fairness – insufficient merit to allow order extending period of time to file application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 424A, 425, 477 |
| Cases cited: Chan v Minister for Immigration & Ethnic Affairs (1989) 63 ALJR 561 |
| First Applicant: | APP17 |
| Second Applicant: | APQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 433 of 2017 |
| Judgment of: | Judge Smith |
| Hearing dates: | 2 July 2018 and 12 November 2018 |
| Date of Last Submission: | 12 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2018 |
REPRESENTATION
| The applicants appeared in person on 2 July 2018. |
| Solicitors for the Applicants (12 November 2018): | Mr R Turner, Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Mr T Galvin, Minter Ellison |
ORDERS
The applicants have leave to rely on the further amended application filed on 25 October 2018.
An application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is otherwise dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 433 of 2017
| APP17 |
First Applicant
| APQ17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicants are citizens of Colombia who arrived in Australia in 2009 and lodged an application for a protection visa on 28 May 2014. The application was based upon claims expressed by the first named applicant who I will refer to as the applicant for present purposes. A delegate of the Minister made a decision on 4 December 2014 to refuse to grant the applicants a protection visa.
The applicants applied to the Administrative Appeals Tribunal for review of that decision. After a hearing which was conducted on 20 April 2016, the Tribunal affirmed the decision of the delegate on 26 April 2016.
The applicants lodged an application for judicial review of the Tribunal’s decision, however an application to this Court must be made within 35 days of the date of the decision and the applicants’ application is out of time. The Court may, however, in the circumstances set out in s.477(2) of the Migration Act 1958 (Cth) extend that time. The issue today is whether or not I ought to make such an order.
The circumstances which must be satisfied before I can make such an order are first, that an application for the 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 secondly, the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In the application originally filed by the applicant there was an application in writing for an extension of time which was supported by an affidavit in which the applicant explained why it was in the interests of the administration of justice for such an order to be made. In those circumstances the first condition in sub-s.477(2)(a) has been met.
The question then is whether I am satisfied it is necessary in the interests of the administration of justice to make the order. In determining that question the Court will ordinarily have regard to a number of factors including the length of and the reasons for the delay, the merits of the grounds proposed to be raised in the application and any prejudice to the Minister.
In this case the Minister has not put forward any prejudice but submits that the absence of prejudice is not necessarily a matter to be taken into account in favour of the grant of an extension of time.
The delay in this case is 259 days. That is, on any view, a considerable delay and means that there must be exceptional circumstances before I am satisfied that it is necessary in the interests of the administration of justice to extend the period: Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89 at [3].
In his affidavits in support of the application for an extension of time, the applicant explains that after receiving the Tribunal’s decision he obtained advice to the effect that he could make an application for a protection visa for his daughter and that he and his wife[1] could apply as family members in that application. He explains that it was not for some significant period of time before the Department determined that the application by the applicant and his wife was invalid on the basis that they had previously made an application for a protection visa.
[1] The second applicant in these proceedings.
It was submitted that the fact that acting on what turned out to be poor advice provided a reasonable excuse for the delay. What was not explained in the affidavits was whether or not there was any advice about the availability of judicial review, whether there was any consideration given to the prospects of that and whether there was a choice made on the basis of that advice.
The evidence before the Court establishes, in my view, that the applicants were aware of the availability of judicial review and, more importantly, that there was a time limit within which to apply for such review. When the applicants were sent a notification of the Tribunal’s decision by letter dated 26 April 2016, there was a leaflet entitled “Information about decisions - MR Division” and reference is made there to the availability of judicial review. It states that if applicants wished to apply for review they must do so within 35 days of the date of the decision and there is also a reference to an extension of time.
Properly characterised, in light of that information the applicants’ decision not to seek judicial review but rather, to seek to stay in Australia by means of an application for a protection visa by the daughter, was their pursuing other avenues on the basis of an acceptance that the Tribunal’s decision was a valid one. In my view, in light of the length of time, the reasons for the delay given by the applicant are not reasonable in the circumstances. They made their decision and now wish to turn back and make a different decision having learnt that the first decision was poorly based.
That leaves the Court with an extensive delay with no reasonable excuse. As I have said, I consider that I need to be satisfied that there are exceptional reasons for such a significant delay and I am not so satisfied.
Nevertheless, I will continue to consider the merits of the application accepting the possibility that if there were significant merits it might justify the extension in spite of the lack of reasonable excuse for the significant delay. I assess the merits on the basis that I am not finally determining the issues that might arise on a substantive matter but determining, on a fairly broad brush approach, whether there are reasonable prospects on the basis of the arguments put before me and the evidence.
There are three grounds raised in a further amended application. Before dealing with those grounds, it is necessary to outline the applicants’ claims upon which the protection visa application was based and the Tribunal’s reasons for decision.
In broad outline, the claim was that the applicant would be harmed by guerrillas who had extorted money from his stepfather. The Tribunal rejected the applicant’s claims as fabricated based upon inconsistencies in his evidence as well as the delays in his application for a protection visa: see [37] and [40] of the Tribunal decision. On the basis of country information, the Tribunal accepted that there was a risk of harm to civilians and, in particular, to certain categories of people in Colombia on the basis of the military conflict taking place in Colombia at the time but it found that the applicant did not come within any of those categories and while the risk remained, given the size of the population in Colombia, the risk of harm was remote: [45]. For those reasons, the Tribunal was not satisfied that either of the criteria in sub-ss.36(2)(a) or 36(2)(aa) of the Act were satisfied and so affirmed the decision of the delegate.
The first ground is that the Tribunal failed to comply with its obligation under s.424A of the Act. In general, that provision requires that the Tribunal give to the applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review. The applicant says that the Tribunal relied upon information, being the evidence given by the applicant at the delegate’s hearing, and rejected it, thereby supporting its conclusion that the applicant was not credible and so rejecting his claims. He says that because that evidence was given at the delegate’s hearing it was not covered by any exclusion to the obligation under s.424A(1) found in s.424A(3) of the Act.
The difficulty, however, with the submission is that it is inconsistent with the judgment of the plurality in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17] where their Honours stated:
Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
In short, the evidence given by the applicant at the hearing, which is referred to at [19] of the Tribunal’s decision, would, if accepted, in fact have supported his claim to be owed protection obligations. It was not, in the terms of the High Court’s decision in SZBYR, in and of itself “…a rejection, denial or undermining of the appellants’ claims”. I do not accept the argument that the fact that the Tribunal found that the evidence was incongruous thereby constituted it as information. The finding by the Tribunal that the evidence was incongruous was irrelevant to the question of whether s.424A applied to the information which is something that must be done on an a priori basis, that is, before actual findings about the evidence or information are made and that is the point of [17] of SZBYR.
Given its direct inconsistency with longstanding and binding authority I am not satisfied that there is any real prospect that the first ground will succeed.
The second ground is that the Tribunal’s decision was unreasonable. There are two particulars of this ground. The first concerns the fact that the Tribunal, unlike the delegate before it, did not accept the applicant’s claims about his stepfather and that during the hearing it did not give the applicant a proper opportunity to address its concerns about that claim. In reality this is not an unreasonableness argument but an argument that the Tribunal denied the applicant procedural fairness or failed to comply with s.425 of the Act.
The problem with the ground is that at the commencement of the hearing, as the Tribunal explained at [37] of its decision, the Tribunal explained in plain terms to the applicant that although the delegate found aspects of his evidence to be credible, it was “the Tribunal’s task to assess his credibility and determine for itself whether or not he was telling the truth”. In my view that put the applicant clearly on notice that everything that he said was an issue in the review thus giving rise to the opportunity required by s.425 to give evidence about that issue and to make submissions if he so wished.
Ultimately, towards the end of the hearing the Tribunal did ask questions that went to the applicant’s credibility and particular specific aspects of his evidence given about his claim concerning his stepfather. In doing so, the Tribunal gave the applicant further opportunity to give evidence about those matters, matters which ultimately were important to the Tribunal’s decision. In substance it appears that what the applicant is arguing is that he ought to have been given further opportunity, such as to be told that these were important matters, and thereby to seek an adjournment to have further time to think about what evidence he might give.
I do not accept, however, on the evidence before me, that it is reasonably arguable that that gives rise either to unreasonableness or to a denial of procedural fairness. What the Tribunal did, simply put, was to identify the issues and then to ask questions about those issues. If the applicant did not understand what was said at the beginning of the hearing, then when the Tribunal came to ask questions about the claims concerning the stepfather he could only reasonably have apprehended that it wanted to find out further information, or give him an opportunity to give further information and evidence, about that issue because perhaps, unlike the delegate at that point of the proceedings, the Tribunal might not be minded to accept the claims.
For those reasons, the first aspect of the second ground has no reasonable prospects of success.
The second aspect concerns documents which the applicant had earlier said he might be able to produce in support of his protection visa claims but did not. This was discussed at [39]–[40] of the Tribunal’s decision:
39. In his Protection visa application form the applicant said that he would provide a government ‘registration of displacement’, a government document excusing him from military service and a statement from his parents. The applicant did not submit any of those documents. At his interview with the delegate, the applicant indicated that he could obtain from Colombia a document related to the welfare assistance he says his family received in 2002 after leaving town one and going to live in town two. The delegate said that she accepted the family had gone to live in town two and received assistance so there was no need for him to produce documents about that.
40. The applicant did not produce any documents to the Tribunal nor would that have been necessary for the Tribunal to find his evidence credible, were the Tribunal to make such a finding. Even if the applicant had produced documents relating to the family having to live in town two, including the need to receive assistance, that would not overcome the Tribunal’s concerns about his credibility given that he gave inconsistent evidence about fundamental aspects of the account on which his protection claims are based in addition to those aspects of his account that are highly improbable as well as the delay on his part in seeking protection and his willingness to return to Colombia in late 2012.
I do not see anything unreasonable in the way in which the Tribunal dealt with the fact that the applicant had not produced the documents. What appears to be the basis of the argument is that the applicant had not produced documents to the delegate because the delegate did not require them because it accepted certain aspects of the applicant claims. Therefore if the Tribunal was not going to accept those claims, it ought to have given him further opportunity to produce the documents.
As I have already stated in respect of the first part of this ground, it was obvious, in my view, that there were issues before the Tribunal about the applicant’s credibility and there was no question that he did have an opportunity to produce documents or seek time to produce them if he so wished. In any event, as the Tribunal explained at [40], the documents as described by the applicant would have made no difference. That explanation at [40] provides an evident and logical basis for it not giving him a further opportunity to produce the documents. In other words, there was a rational basis for the Tribunal doing so and not one that could be described as unreasonable in the sense required by the authorities such as Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.
For that reason, I am not satisfied that there are sufficient merits in the second part of ground 2 to warrant an extension of time in the circumstances of the case.
The third ground is that the Tribunal failed to apply the real chance test. This argument is based upon [44]-[45] of the Tribunal’s decision:
44. According to available country information a military conflict takes place in Colombia between the government and guerrilla groups although a peace process is underway between the government and one of the guerrilla groups. Abuses are committed by security forces, guerrilla groups and paramilitary groups (which are also described as organised criminal groups). While country information broadly refers to civilians as having suffered abuses, it also makes reference to particular categories of people who have suffered harm ranging from harassment and intimidation to killings, those categories including human rights defenders, people suspected by guerrilla groups of collaborating with the government or rival drug trafficking groups, local officials, judges, prosecutors and witnesses, teachers and trade unionists, politicians, indigenous people, ‘afro descendants’ and peasant farmer communities (these latter groups being affected by the loss of land from the conflict).
45. The applicant does not come within any of those categories and while risk remains that he could suffer serious harm as a civilian at the hands of those responsible for human rights abuses, considering the population of Colombia is approximately 46 million people, the Tribunal infers that risk is remote. The Tribunal raised this country information with the applicant at the hearing and put that inference to him. In response the applicant did not dispute the position put to him by the Tribunal with respect to the situation in Colombia but he said he was at risk because of what had happened to his stepfather. He said that he would never live away from family and friends in Colombia if he was not at risk from the guerrillas who had been threatening his stepfather and then his mother. He said that the authorities could not help with that situation. For the reasons given above, the Tribunal disbelieves the applicant’s claims about any member of his family being threatened by guerrillas or anyone else in Colombia.
(Footnotes omitted)
Effectively it was argued that once the Tribunal accepted, as it did at [45], that there was a risk that the applicant could suffer serious harm as a civilian, then it was not on a proper understanding and application of the law open to dismiss that risk and find that he was not a refugee simply on the basis of the application of arithmetic having regard to the size of the population of Colombia. It was, the applicant argued, obliged at least to analyse in further depth the population and whether or not the applicants were in the categories referred to at [44], the number of people on either side of the military conflict and other particulars. I do not accept that argument. I consider that there was in fact nothing wrong with the Tribunal’s level of analysis and approach to the application of the real chance test which, in the first place, derived from Chan v Minister for Immigration & Ethnic Affairs (1989) 63 ALJR 561 and now is established in ss.5H and 5J of the Act.
While it may be that a purely mathematical approach might evince some error in the Tribunal’s decision (see DZADQ v Minister for Immigration & Border Protection [2014] FCA 754; MZAAD v Minister for Immigration & Border Protection [2015] FCA 1031) that is not what occurred here. While arithmetic did play a part in the Tribunal’s analysis, it firstly had regard to all of the country information available to it concerning the possibility or risk of harm coming to the civilians in general, and to certain people in particular. It is important to note that the country information did refer to the particularity of harm coming to certain categories because the next part of the Tribunal’s analysis was to assess whether or not the applicant fell within those categories. That was relevant because that might have heightened the risk of harm which the applicant faced upon return to Colombia.
The Tribunal did not stop there. It also went on, as noted in the balance of [45], to address whether there was anything else which the applicant himself said might give rise to a differentiated risk of harm. The Tribunal noted that his response was the claim based upon what had occurred to his stepfather. It was in the analysis of that fact and the Tribunal’s ultimate rejection of that claim together with the application of the country information and the arithmetic assessment of the probabilities of an individual being harmed in a country’s population of 46 million, that led to a conclusion that while there was a risk, that that risk was remote.
I am not satisfied for those reasons that there is any real prospect that the third ground will succeed.
Conclusion
Having regard to the prospects as I have found them in respect of the grounds of review and even though I cannot dismiss the possibility that they might succeed at a final hearing, given the extensive delay in bringing this application and the fact that I am not satisfied there is any reasonable basis for that delay I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the period for bringing the application and so I will reject that application.
As a consequence, the application itself was brought out of time and must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 10 December 2018
0
6
2