FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATB20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1176 |
| Catchwords: MIGRATION – Fast track reviewable decision – legal unreasonableness – Extension of time in which to seek judicial review – where applicant departs Lebanon – introduces claim before delegate of fear to harm from family and clerics on account of his abandonment of a belief in Sunni Islam – where applicant invited to lodge Safe Haven Enterprise visa – where applicant appoints agent to act on his behalf – where agent notifies Department of his appointment – where delegate interviews applicant – where application refused – where Authority reviews decision – where no further submissions made – where applicant claims he had moved address and not been aware of decision – whether adequate explanation for significant delay – no prejudice – whether merits of claim are such as to warrant extension of time – whether decision not to invite applicant to provide information upon issue raised by him before delegate was legally unreasonable – whether decision was within zone of decisional freedom – whether decision was arbitrary, unjust, capricious or lacking in common sense – ground not reasonably arguable – application for an extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 473DA, 473 DB, 473DC, 473DD, 473FA, 473GB, 477, Pt.7AA |
| Applicant: | ATB20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 573 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr C.E.A. Hibbard |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The application for an extension of time within which to seek judicial review of a decision of the second respondent made on 22 August 2018 be dismissed.
The amended application dated 4 May 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 573 of 2020
| ATB20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 4 May 2020, the applicant seeks an extension of time within which to seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 August 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Safe Haven Enterprise (subclass 790) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, I consider that the application for an extension of time should be dismissed. In summary, I have concluded that in the combined circumstances of marked delay, the inadequacy of the proffered explanation and upon the impressionistic view which I have formed of the merits of the proposed ground of review, it is not in the interests of the administration of justice to grant an extension.
Background
The background to the application is common ground.
The applicant, a single male Lebanese citizen aged 37 years, came to Australia on 7 July 2013, landing on Christmas Island as an “Irregular Maritime Arrival”. It appears the applicant travelled to Australia via Tripoli, Beirut, Abu Dhabi, Kuala Lumpur, Jakarta and then Bali. The applicant then held a valid Lebanese passport issued in June 2013.
When participating in his irregular maritime arrival interview, the applicant stated that he had done so on account of the duration of the war in Lebanon but said he had no other reasons for doing so. When asked whether anything specifically had happened to make him leave Lebanon, he replied that he had worked in grocery trading and was often confronted by battles when he went to collect fruit and vegetables.
In the course of this interview, the applicant also advised that he was not a member of any particular social or religious group. Further, he added that in 2004, he had been detained overnight by military police for failure to present for military service. The applicant further stated that in 2005 compulsory military service was abolished.
Claims to protection
On 22 July 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) or Safe Haven Enterprise (subclass 790) visa.
On 6 September 2016, the applicant’s lawyers lodged a notice of their appointment to act as his migration agent.
On 15 March 2017, the applicant’s lawyers lodged an application for a Safe Haven Enterprise Visa.
The applicant made the following claims in his application for protection:
a)The constant battles and instability in northern Lebanon (namely Tripoli). However, since I became mature enough to understand my families religion (Muslim-Sunni) I had started to have doubts about our religion and the existence of god. I personally was a non-believer and was only practicing Islam to satisfy my parents and social circle. Freedom of religion as a Muslim in Lebanon is unspoken. It was impossible for me from a devout Sunni Muslim family to not practice my religion. The only way I could be free from this burden was to go to a country such as Australia where freedom of religion is allowed.
b)As an atheist I wish to live my life freely. In other words I want to drink and date and potentially marry a non-Muslim girl. I do not want to attend the mosque and I especially do not want to fast during Ramadan. My parent have come to know of my disbelief and how I am living my life freely in Australia and as such I have apparently brought shame and dishonour to them. I refuse to speak to any of my family in Lebanon because my family has told me that if I do not change my beliefs I will not be able to go back to Lebanon ever again. As my family are devout Muslims with links to high religious clergy I do believe that my turning my back on Islam would be an act of betrayal which will ultimately mean my death if I return to Lebanon.
c)On several occasions when I did not want to go to Friday prayers I would get a beating from my dad. This also included having to pray 5 times a day especially in the early hours - of the morning. If I did not wake up I would get beaten by my dad.
d)There is no alternative option in Lebanon for those who go against their religious beliefs, family honour is important in Lebanon and I have brought dishonour to my family.
e)For a Sunni Muslim to go against their own kind is a big thing in Lebanon. Even if I moved to Beirut or a Christian area I would be hunted down by religious clergy or affiliates of their religion.
f)There are a lot of Muslim extremists in Lebanon. My nonbelief in Islam as a former Muslim is like me convert ng to Christianity, especially for Sunnis. I personally feel that my family will exact revenge on me for dishonouring my families name and the generations of their family. My parents are well known in Tripoli and I will be viewed as a public enemy of Sunni’s.
g)The Lebanese government does not get involved in matters of honour for families. Furthermore, in Lebanon it is not what you know but who you know. If I am killed by my family he will government officials to get what they want.
h)My parents will hunt me wherever I am in Lebanon.
By his agent’s appointment and SHEV application, the applicant’s stated residential address was 127 John Street, Glenroy, Victoria.
On 24 March 2017, in a letter addressed to the applicant at his Glenroy residence, the Minister requested that the applicant provide documentary evidence of identity, nationality or citizenship.
On 5 April 2017, the applicant submitted a ‘Statement of Persecution’ whereby he expanded on the claims made in his application for protection. In particular, the applicant stated that as a teenager he began to doubt Islam and secretly read other religions (mainly Christianity), visiting a church in Tripoli where he asked a priest for a Bible, stating “I did not want to convert to Christianity but I was just curious to compare Islam with Christianity. The only time I would read the Bible was at night and I had a good hiding place for it.” It was in this context the applicant explained that he received beatings from his father when he did not pray and that, some months later, a cleric had visited his home condemning him as a traitor for failure to follow his faith as a Sunni Muslim. The applicant further stated that, following his father’s death in 2012, he decided to leave Lebanon and that when he arrived in Australia he stopped practising Islam.
By letters dated 17 July 2017 and 8 August 2017 respectively, the applicant was invited to attend an interview with a delegate. Each of those letters was addressed to the applicant at his Glenroy residence, however, it appears these letters were sent to his lawyers. In any event, the applicant attended an interview with the delegate.
Delegate’s decision
On 6 July 2018, the delegate made a decision to refuse to grant the visa. In the decisional record of the delegate, the applicant’s claims were set out both as provided at his initial interview and by his Statement of Persecution as set out above. After consideration of the applicant’s claims and describing the matters disclosed by the applicant during an interview on 18 August 2017, the delegate noted concern that the main person who had an issue with his rebellion had been his father who had passed in 2012. The delegate paid regard to DFAT country information which identified Beirut as an area where the applicant could relocate by reason that it was “home to mixed ethnic and religious communities and offers opportunities for employment, access to services and a greater degree of State protection than any other area of Lebanon.”
The decisional record identified the delegate’s concern at the applicant’s inability to present his claims in a coherent and consistent manner and that this gave rise to a reason for questioning the veracity of his claims. The delegate found that the applicant could be considered a failed asylum seeker if he was to return to Lebanon. In particular, the delegate rejected the claim to having a well-founded fear of persecution on the basis of his atheism in light of the passing of his father and that he had resumed communications with his mother. The delegate observed that insofar as sheikhs were said to pose a risk of harm, it was possible for the applicant to relocate. The delegate found that the applicant’s complaints did not correlate to his being unsafe in Lebanon. Upon considering DFAT country information the delegate identified there was no evidence suggesting asylum seekers returning to Lebanon were distinguishable from the broader community or susceptible to any form of discrimination or violence for having sought asylum abroad.
The delegate was not satisfied that the applicant had a well-founded fear of persecution by reason of any of his claims or that he was otherwise entitled to complementary protection. A copy of the decisional record was transmitted to the applicant’s agent by email.
Referral to the Authority
On 11 July 2018, the Authority wrote to the applicant advising that the decision refusing his visa application had been referred to it for review. The Authority provided a copy of a practice direction respecting, amongst other things, the making of submissions.
On 22 August 2018, the Authority affirmed the delegate’s decision and provided the applicant a statement of reasons for doing so (Reasons).
Having regard to the ground of review raised by the amended application, it may be noted the Authority recognised that no further information had been obtained or received from the applicant or his agent: [5]. It does not appear that the Authority’s letters dated 11 July or 22 August 2018 respectively were transmitted to the applicant’s agent but were only addressed to the applicant at his Glenroy residence.
Procedural history
On 5 February 2020, the Authority responded to a request from the applicant’s lawyers made under the Freedom of Information Act 1982, for access to the documents relating to the review.
On 19 February 2020, the applicant filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by the applicant’s lawyer deposing that, in substance, the applicant believed his agent had continued to represent him in the review by the Authority “and as a result was not aware he had no [sic] matter outstanding”. The deponent stated that the first time her client became aware he did not hold a visa was in January 2020 upon being taken into detention after an identification check was undertaken by NSW police. In addition, the deponent stated that, since February 2019, the applicant had suffered from stress-related alopecia affecting his entire body. Exhibited to this affidavit were copies of the delegate’s decisional record together with the Authority’s Reasons. Also exhibited to the affidavit were two letters appearing to be from a skin specialist addressed to the applicant’s general practitioner dated 18 February and 11 April 2019 respectively advising as to the diagnosis and treatment for his alopecia. Notably, each of those letters recorded the applicant’s address as being his Glenroy residence. By contrast, a health summary, medication summary and progress sheet forming part of this exhibit each recorded the applicant’s address as being at Jacana.
In a further affidavit made by another lawyer acting for the applicant, it was deposed that, after having lodged the SHEV application, the applicant was informed by his agent that “it would be better for his visa application to move to a country area” and that he was told “the process for a SHEV would take several years, and not to expect a decision until 2022.” The deponent further stated that on the basis of his advice the applicant had vacated his residence in Glenroy, first staying with friends and relatives before finding new accommodation in Jacana. It was further stated that the applicant had obtained a post office box address, advised his migration agent of that PO Box address and that:
The applicant did not return to his Glenroy address to check his mail, after 2017, as he had no reason to think anyone would send mail there. He did not contact [his agent] further as he did not think anything further would be happening on his visa application for several years. He did not know [his agent] had not provided his PO Box address to the Department, was no longer representing him, or that his application had been refused and referred to the Authority.
Notwithstanding the FOI request above, the assertion that the applicant’s agent had not informed the Department of the applicant’s new PO Box and had not been in communication with him was not expanded upon.
The applicant’s lawyers also furnished a further affidavit to which was exhibited a transcript of the Departmental interview conducted on 18 August 2017 and which is addressed in further detail below.
While the applicant relied upon these affidavits in support of his application for an extension of time, counsel for the Minister observed that the applicant had not made any affidavit himself.
By a Response filed on 16 March 2020, the Minister opposed the application on the stated basis that the application had not been made within 35 days of the date of the Authority’s decision.
On 3 April 2020, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions.
By his amended application filed on 4 May 2020, the applicant sought an extension of time. The original grounds of review were abandoned and substituted with a single ground of review.
Extension of time – applicable principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application.[1]
[1] Act, s 477(2).
The power to extend time is subject to two conditions: (1) an application has been made in writing for such an extension, in which the applicant specifies why it is necessary in the interests of administration of justice for an extension to be granted; (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.[2]
[2]The 35 day time limit commences from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to extend time for the commencement of proceedings is a deliberately broad one.[3] It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.[4]
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.[5] Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real. Counsel for the applicant properly emphasised that, although an alternative route of review might be available, the refusal of an application for an extension of time foreclosed a right of appeal.
[5] Hunter Valley Developments (1984) 3 FCR 344, 348.
Length of delay & explanation.
The Authority’s written statement was made on 22 August 2018.
The applicant accepted that the application was made nearly 17 months out of time. Counsel also accepted that the delay was lengthy but contended the explanation for the delay was satisfactory, relying upon the affidavits set out above.
Counsel for the Minister submitted that the delay was significant and that it was preferable for “emphasis [to be] placed on the explanation for the delay”[6], criticising the adequacy of the explanation given. Counsel identified a number of authorities supporting a submission that a delay of 17 months was “excessive”,[7] and that where such a delay had occurred, the applicant must show his or her case was “exceptional” before the court may be satisfied that it is necessary in the interests of justice to extend time. It was submitted that “it would require something very persuasive indeed to justify a grant of leave after, for example, a year” and that the longer the delay, the more persuasive the explanation required.[8] Counsel for the applicant accepted that those principles had been stated but maintained the adequacy of the explanation which was provided by the affidavits relied upon.
[6]Citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [56], [62] (Mortimer J).
[7]Citing Tran v Minister for Immigration and Border Protection [2014] FCA 533, [38] (Wigney J) (delay of 18 months); EQJ17 v Minister for Home Affairs [2020] FCA 33, [38] (Perry J) (delay of 18 months); AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037, [12] (Perry J) (delay of 17 months); Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3] (Gageler J) (delay of 16 months).
[8]Citing Jess v Scott (1986) 12 FCR 187, 197 (Lockhart, Sheppard and Burchett JJ); BBU15 v Minister for Home Affairs [2019] FCA 1324, [7] (Jackson J); AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291, [56] (Bromwich J); Tran v Minister for Immigration and Border Protection [2014] FCA 533, [38] (Wigney J).
Counsel for the Minister submitted that the applicant’s case was not exceptional and that his explanation was not sufficiently persuasive. It was also said that reliance on hearsay evidence necessarily bore upon the weight of that evidence.[9] As noted above, the applicant had not offered his own explanation for the delay, instead relying upon the affidavits made on information and belief by his solicitors setting out various excuses on his behalf. To the extent that this criticism was made it is to be considered in the context that the applicant is now in detention. A distinction can be made from cases in which reliance upon hearsay evidence may properly be regarded as being strategically opportunistic and those where resort to hearsay evidence is understandable.
[9] Citing Ashby v Commonwealth (No 3) (2012) 206 FCR 444, [11] (Rares J).
Attention was drawn to the following matters in the evidence:
a)the applicant claimed that he was advised by his agent to move to a country area. Instead, the applicant had left his home in Glenroy in 2017 and simply moved to Jacana (an adjacent suburb); he had not moved to a country area, as he had been advised to do;
b)the applicant claimed that, after 2017, he had not checked for mail at his Glenroy residence, being the address that was provided to the Department and the Authority. By contrast, in and after 2017, the applicant, and his agent, had been notified of the appointment scheduled for him to attend an interview with the delegate and he had done so;
c)further, it was deposed that “[the agent] also told the applicant that the process for a SHEV would take several years, and not to expect a decision until 2022”. However, the applicant stated that he had advised his agent of his new PO Box address and assumed he would receive any correspondence through that address. His agent, who had been provided with a copy of the delegate’s decision, had not filed any affidavit respecting any contact with the applicant;
d)at the time of the Authority’s decision (August 2018), the applicant believed his former representative “continued to represent him and continued to handle his matter and as a result was not aware he had no matter outstanding”;
e)the applicant had been diagnosed with stress-related alopecia in February 2019. Attention was drawn to the letters addressed by the applicant’s skin specialist to his general practitioner which recorded his Glenroy address, as at February 2019, this being consistent with the applicant having advised that specialist of the Glenroy address at his first consultation in 2019.
When the cumulative weight of those considerations are considered, the applicant’s suggested explanation of his situation and of the delay in making application for judicial review is somewhat implausible.
Looking at the matter more broadly, the court is invited to accept the adequacy of the applicant’s explanation in the context that:
a)the applicant has apparently had no contact with his representative since his delegate’s interview on 10 August 2017;
b)despite not following his representative’s advice about moving to the country, he apparently assumed the accuracy of all other aspects of the agent’s purported advice about the timing of his visa; and
c)the applicant’s representative (an accredited migration agent, who could be assumed to undertake and discharge that role to an appropriate professional standard), had apparently not informed the applicant of the outcome of the delegate’s decision, or provided him with advice concerning the process before the Authority, the outcome of that review or his right to seek judicial review.
I accept that to the extent the applicant relies on his diagnosis in 2019 of alopecia as a reason for the delay, he does not specify how that excuses the delay from August 2018 to February 2019 (ie before that diagnosis). The Minister submitted that in any event, an explanation will not be satisfactory if it explains only part of the period of the delay.[10]
[10]See eg, QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] (Tamberlin, Kiefel and Weinberg JJ).
Counsel for the Minister sought to undermine the explanation for delay, on an assumption that the applicant had in fact received the decisions of the delegate and Authority, criticism was directed at him for the failure to provide any explanation for his failure to take any action in response to receiving those documents and for his failure to contact his representative at any other time between July 2018 and February 2020. One might question the validity of such an attack in circumstances where the applicant’s evidence was that he was unaware he did not hold a visa until apprehended by NSW police in early 2020.
Counsel for the Minister also observed with some force that there was no evidence of any steps taken to seek or adduce evidence from the migration agent who had been retained to act on the visa application and of any communications which he may or may not have had with the applicant in the period July 2018 to May 2020.
Counsel of the Minister accepted that the court should not adopt some “box ticking” approach to the issue or to treat the period of delay or any explanation as being of determinative significance. Instead, it was submitted to be preferable to evaluate whether an extension was necessary in the interests of the administration of justice by, in effect, locating the particular case at a point along a sliding scale where, the greater the period of delay, the stronger should be the impression that the merits of the case warranted an extension of time.
Taking account of those matters I am less than satisfied that an adequate explanation had been provided for a seventeen month delay in seeking an extension of time to seek judicial review of this decision. Nor am I satisfied that the explanation was sufficiently persuasive as to characterise this as a case which should be considered to be exceptional.
Prejudice
Counsel for the applicant submitted that there was no prejudice to any party or to the public interest in a grant of the extension of time, stating that no additional judicial resources would be consumed by the need for an extension of time, as this matter would (as it did) conclude within ½ day on all issues. Counsel made the submission on the express basis that the application could be heard instanter.
While the Minister accepted that no prejudice would be suffered in responding to the application if the court were to grant an extension of time, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that it is necessary and in the interests of the administration of justice to grant an extension.[11]
[11]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349; SZSQL v Minister for
Immigration and Border Protection [2015] FCA 294, [15]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6].
Contrastingly, and as noted, it should be recognised that the question of prejudice falls for consideration in the context that by s 476A(3)(b) of the Act, no appeal lies from an order of this court either granting or refusing an application for an extension of time under s 477(2).[12]
[12]However, it appears that an alternative route may be open via s 39B of the Judiciary Act 1903 (Cth): AZAFJ v Minister for Immigration and Border Protection, [2016] FCA 291 [3]-[4] and cases cited (Bromwich J).
Merits of proposed application
Consideration of whether it is necessary in the interests of the administration of justice to grant the extension thus requires the evaluation of the merits of the proposed ground[s] of review.
As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so.[13] Whether an extension of time should be granted will depend upon the particular circumstances of each case.[14]
[13]SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ); MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
[14]Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP v Minister for Immigration and Border Protection, the Full Court endorsed statements by Mortimer J in the decision under appeal, that the approach to be taken in a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[15]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[16]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court’s endorsement of her Honour’s use of the criterion ‘reasonable prospects of success’ is apparent. It is akin to that employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[17] It is a criterion which is long accepted as posing a lower threshold than that which is applied on the final determination of the issues in a proceeding. If the other requirements for an extension of time are satisfied and the proposed grounds of review are shown to be reasonably or sufficiently arguable, the time within which to lodge an application for judicial review should be extended.
[15][2015] FCA 1391, [62]-[63].
[16](1998) 195 CLR 516, [7]-[9].
[17] CfSpencer v Commonwealth (2010) 241 CLR 118.
The trend of authority favours an approach to the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time that the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the decision-maker and consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[18] and on appeal;[19] Kio v Minister for Home Affairs.[20] Those authorities also confirm that the discretion is deliberately broad.
[18][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[19] [2018] FCAFC 82, [26]-[27].
[20] [2019] FCA 579, [4], [10].
Counsel for the Minister accepted that the merits of an application ought to be considered on a “reasonably impressionistic level”.
Consideration
As set out above at [13], the applicant had introduced a claim that his fear of persecution was grounded in part upon his having formed a relationship with a Christian orthodox priest. This issue, which was designated as the “priest issue” on review, is examined below.
The sole proposed ground of review in the amended application reads:
The decision of the IAA is affected by legal unreasonableness because the IAA did not consider inviting, nor did it invite, the applicant to provide new information in relation to the “priest issue” addressed at paragraphs 13-15 of its reasons.
In substance, it was said that the decision, made under Pt 7AA of the Act, was tainted by legal unreasonableness in that the reviewer had failed to consider inviting, or inviting, the applicant to provide information in relation to this “priest issue.” Counsel for the applicant submitted that the ground was meritorious, on the basis that, as was said, a critical aspect of the Authority’s reasoning for rejecting the applicant's central claim that he had fallen out with local sheikhs was that it was thought to be implausible that the applicant could have continued to act as driver for a Christian Orthodox priest in the village whilst at the same time being at odds with the local sheikhs and for that matter, his father and family.
The applicant submitted that, even if the Authority had been prepared to consider new information, the failure to seek out new information from the applicant on the topic of his work with the priest was legally unreasonable in that:
a)it was a critical issue in the Authority review, relevant to the applicant's central claim;
b)neither the applicant nor any competent person representing him could realistically have been expected to know or foresee that the Authority might reason in that way;
c)it would have been easy for the Authority to request new information of the applicant, and any new information would have been probative of the issues in the review.
For all of those reasons it was submitted that the court should find that the decision was affected by legal unreasonableness in not considering to invite, or inviting, new information from the applicant.
The Minister opposed the application on the substantive basis that there was insufficient merit in the proposed grounds of review to warrant an extension of time. Expressed in positive terms, if the court concluded that there was no sufficiently arguable merit to the substantive application, it was not be necessary in the interests of the administration of justice to exercise the power to grant an extension of time.
The challenge based upon a failure consider inviting, or inviting, new information from the applicant was thus presented on two bases.
As to the first, counsel for the applicant accepted that, having regard to the content of the Reasons at [5], insofar as the proposed ground sought to contend that the Authority’s decision was tainted by jurisdictional error for not considering whether to invite the applicant to provide new information, it was presently foreclosed by Full Court authority. It is settled that an applicant bears the onus of proof on whether the Authority has failed to consider whether to exercise its discretion under s 473DC.[21] In ASB17 v Minister for Home Affairs, the Full Court held that, absent positive evidence to that effect, wording substantially identical to that in [5] of these Reasons provided a sufficient basis to conclude that the applicant has failed to discharge that onus.[22] It was also accepted that this court is bound to apply ASB17 where “the circumstances of the instant case ‘are not reasonably distinguishable from those which gave rise to the decision’”.[23] A formal submission was made that the failure to consider whether to invite the applicant to provide new information constituted error. The submission must be rejected.
[21]ASB17 v Minister for Home Affairs (2019) 268 FCR 271, [46] (Griffiths, Mortimer and Steward JJ).
[22] (2019) 268 FCR 271, [49].
[23] Re Tyler; Ex parte Foley (1994) 181 CLR 18, 37-38 (McHugh J).
As to the alternative basis on which legal unreasonableness was advanced, it was submitted that, if the Authority had considered inviting the applicant to provide new information, in deciding not to invite the applicant to provide new information, this was legally unreasonable.
Legal unreasonableness
The applicable principles were not in dispute. A decision may be legally unreasonable if it falls outside the scope of statutory authority conferred on the decision-maker. In Minister for Immigration and Border Protection v Stretton,[24] Allsop CJ (Griffiths and Wigney JJ agreeing) stated as follows:
The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose . . . The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.
[24] (2016) 237 FCR 1, [11].
Counsel for the parties proceeded upon the basis that it was not necessary to rehearse the scheme of Pt 7AA of the Act or to examine in particular detail the authorities which have considered it. Suffice to say that this Part of the Act deals proscriptively with a fast track review process which obliges the Minister to review a fast track reviewable decision as soon as is reasonably practicable. In particular, within Sub-div C of Div 3 of Pt 7AA, which deals with Additional Information, ss 473DC controls the circumstances in which the Authority may get any documents or new information that was not before the Minister when the decision was made under s 65 of the Act and which it considers may be relevant. By s 473DD, the Authority may not consider any new information unless certain conditions are satisfied, including that it is satisfied exceptional circumstances justify it in doing so.
It is settled that the powers to get new information contained in ss 473DC and 473DD are conferred on an implied condition that they are to be exercised within the bounds of legal reasonableness[25] but that the test of legal unreasonableness is necessarily stringent.[26] That is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The evaluative task of deciding whether a decision not to invite new information from the applicant begins by recognising that the statutory source of power lies in Part 7AA of the Act, which provides a “limited form of review”.[27] Demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”.[28] In exercising the discretion conferred by s 473DC, the “zone of decisional freedom in which the Authority may lawfully determine not to seek ‘new information’ is particularly broad”. [29]
[25]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ), [78], [86] (Gordon and Edelman JJ agreeing); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34.
[26]Minister for Immigration and Border Protection v SZFFW (2018) 357 ALR 40, [11] (Kiefel CJ).
[27]Act s 473BA. See also M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, [1] (Gageler, Keane and Nettle JJ).
[28]DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91, [110] (Beach, O’Callaghan and Anastassiou JJ).
[29]BNB17 v Minister for Immigration and Border Protection [2020] FCA 304, [53] (Anderson J).
The ‘lens’ of procedural fairness
In the course of oral submissions there was some debate whether, contrary to recent authority, the applicant was seeking to advance a ground of judicial review through a ‘lens’ of procedural fairness.
The applicant drew attention to the reasoning in DPI17 v Minister for Home Affairs.[30] There, Griffiths and Steward JJ identified four matters which their Honours considered particular emphasis:[31]
a)first, “legal unreasonableness is ‘invariably fact dependent and requires evaluation of the evidence’”;
b)secondly, “the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC”.
c)thirdly, “having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a ‘natural justice lens’”;
d)fourthly, “merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.”
It is the third of those propositions which arises in this matter.
[30][2019] FCAFC 43; 366 ALR 665.
[31] [2019] FCAFC 43; 366 ALR 665, [37] (citations omitted).
By contrast, Mortimer J considered whether it was appropriate to acknowledge a connection or relationship between principles of legal unreasonableness and procedural fairness.[32] Her Honour recognised that while some authorities cautioned against the adoption of a course which involved looking at legal unreasonableness through a natural justice lens, in others it was possible to discern such a connection.[33] Mortimer J further considered that in the context of the exercise or failure to exercise procedural powers and functions conferred for the purposes of a merits review, such powers and functions formed part of the framework of determining what a reasonable decision-maker would (or might not) do in a particular situation and for that reason:
. . . a supervising Court will also need to bear steadily in mind how procedural fairness obligations attach, or do not attach, to those procedural powers and functions.
[32] [2019] FCAFC 43; 366 ALR 665, [78]-[95].
[33]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [14], [26] (French CJ), [60], [74], [85] (Hayne, Kiefel and Bell JJ), [92], [94], [99], [103] (Gageler J); Plaintiff M174/2016 (2018) 353 ALR 600, [21], [26].
Mortimer J held that within Pt 7AA, s 473DC conferred power reflecting an obligation to afford procedural fairness and that in this context, the connection between legal unreasonableness and procedural fairness was undeniable, concluding that:
The jurisdictional error, if one is identified, may not be described as a denial of procedural fairness, although as the judgments in Li make clear, there may be nothing precluding that characterisation. Rather, the jurisdictional error will be a failure, in the circumstances of a particular review, to observe a condition on a power which is inherently a procedural fairness power – the condition being that it be exercised reasonably, and further, that consideration of its exercise be approached in the way required of a reasonable decision-maker in the same circumstances.
This reasoning serves to reinforce the statement in Stretton above that a decision upon legal unreasonableness is not definitional, but evaluative.
Again, in CWS16 v Minister for Immigration and Border Protection,[34] Mortimer J restated her view as to the proper approach to be taken to the question of legal unreasonableness where s 473DC was in issue. While adhering to the views in DPI17 above, her Honour held:
I reject the proposition that no decision-maker, acting reasonably, could have approached the exercise, or the consideration of the exercise, of the discretionary power in s 473DC(1) in the way the IAA did. Its approach was within the range of lawful choices open to, in the factual circumstances as they were at the relevant time.
[34] [2019] FCA 1414, [24]-[29].
The narrow scope for the operation of procedural fairness was identified in BVD17 v Minister for Immigration & Border Protection.[35] The plurality, approving Full Court authority,[36] confirmed that “there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness and that a procedural fairness analysis is not the correct perspective”. BVD17 was concerned to address a distinct issue of special importance; namely, whether the giving of a notice under s 473GB of the Act triggered an obligation of procedural fairness. It was in this distinct context that the Court held it did not because such a result was foreclosed by s 473DA.[37] While BVD17 did not concern legal unreasonableness in the context of s 473DC- 437DD, it does not dilute the force of the above statements.
[35] [2019] HCA 34, [34].
[36]Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475, [67]; Minister for Immigration and Border Protection v DZU17 (2018) 253 FCR 526, [99].
[37] [2019] HCA 34, [1]-[2].
Again, in CNY16 v Minister for Immigration and Border Protection,[38] Kiefel CJ and Gageler J accepted that common law principles of statutory interpretation required the observance of procedural fairness as an implied condition of the exercise of jurisdiction by everyone who decides anything pursuant to statute unless and to the extent that procedural fairness is clearly excluded by statute. In this context, their Honours, with reference to BVD17, held that, under the scheme of Pt 7AA of the Act, the hearing rule:
. . . must be taken to be exhausted by those provisions within Pt 7AA that are expressed to make exhaustive provision as to the natural justice hearing rule in the conduct of the review.
[38] [2019] HCA 50, [16].
Later authority confirms that the natural justice lens is not the ‘lens’ through which the content of procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA: BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[39] FPU17 v Minister for Home Affairs;[40] DQX16 v Minister for Home Affairs.[41] In BJK17, Middleton, Bromberg and Snaden JJ emphasised that legal unreasonableness could only be found outside the legitimate area of decisional freedom of the reviewer,[42] stating:
The issue, in the present case, is whether the Authority’s failure to get, or consider getting, “new information” was outside of its “decisional freedom”: Minister for Immigration and Border Protection v Eden.[43] If the only course reasonably available to the Authority in the circumstances that confronted it was to get or consider getting new information from the Father, then its failure to do so will bespeak legal unreasonableness and its ultimate decision might be impugned as the product of jurisdictional error. The task, as Thawley J put it in CCQ17 (at [51]), is to:
. . . evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
[39] [2019] FCAFC 1717, [41]-[44] (Middleton, Bromberg and Snaden JJ).
[40] [2019] FCA 1727, [48], [55] (Stewart J).
[41] [2019] FCA 1705, [45] (Moshinsky J).
[42] [2019] FCAFC 1717, [44].
[43] (2016) 240 FCR 158, 171 [62], (Allsop CJ, Griffiths and Wigney JJ).
Counsel for the applicant made plain that he eschewed any suggestion that the proposed challenge was pressed through the lens of procedural fairness and I accept that submission. I also accept the submission of counsel for the applicant that it is inherent in the nature of the proposed ground of review that the question was presented in the context that the claim of legal unreasonableness arose from a suggested failure to exercise statutory discretion; that is either, in not considering whether to invite, or not inviting, the applicant to provide new information before the process of fast track review was completed.
The authorities considered above make plain that a failure to consider the exercise of a discretionary power (including here the alleged failure to consider inviting or to invite an applicant to give new information), does not necessarily constitute jurisdictional error. Determining a claim of legal unreasonableness is a case and fact specific task.[44] It requires the application of principles to particular factual circumstances, not “an analysis which merely involves identifying particular factual similarities or differences between individual cases”.[45]
[44]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 451, [84] (Nettle and Gordon JJ).
[45]DPI17 v Minister for Home Affairs [2019] FCAFC 43, [37] (Griffiths and Steward JJ).
A series of more recent authorities confirm that three essential steps are to be undertaken in the determination of whether an established or alleged failure to consider the exercise of a discretionary power was legally unreasonable.[46] First is to identify with precision, the alleged failure. Secondly, to examine the scope and purpose of the statutory power which it is said the decision-maker has failed to consider. Thirdly, to evaluate the failure to see whether it has the character of being legally unreasonable such as, for example, whether it is lacking a rational foundation, an evident or intelligible justification or is plainly unjust, arbitrary, capricious or lacking in common sense. In DIN16 v Minister for Home Affairs,[47] Markovic J observed that “Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.”
[46]CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [51] (Thawley J); DPI17v Minister for Home Affairs (2019) 366 ALR 665, [49] (Griffiths and Steward JJ); Singh v Minister for Home Affairs [2019] FCA 1790, [135] (McKerracher J); CCR18 v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 20, [44] (Jackson J); GVP18v Minister for Home Affairs [2019] FCA 393, [47] (Wigney J); DIN16v Minister for Home Affairs [2020] FCA 406, [49] (Markovic J); BCV20 v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 565, [87] (Wigney J).
[47] [2020] FCA 406, [49].
Resolution
First, the precise alleged failure here was in not inviting the applicant, and thereby affording him an opportunity, to furnish new information. More precisely, the substantive basis for the complaint arose from the circumstances in which, it was said, the “priest issue” had been dealt with by the delegate, and in turn, the Authority on a fast track review.
As to the second step, the alleged failure turns on the failure to exercise the discretion conferred by s 473DC of the Act to get new information. I have examined the scope and purpose of the statutory powers which underlie the proposed ground of legal unreasonableness, including that the discretionary power conferred is located within Pt 7AA of the Act, a Part which addresses the manner in which a fast track reviewable decision is to be undertaken. As stated, the demonstration of legal unreasonableness in the context of Pt 7AA carries a demanding standard. The test is stringent by reason that the court should not lightly interfere in the making of an administrative decision, the exercise of which involves the exercise of a discretionary statutory power. Put another way, those authorities confirm that decision-makers called upon to exercise a discretionary power are entitled to discharge their function within a zone of decisional freedom such that legal unreasonableness can only be found outside of that permissible zone.
It is within the framework of Pt 7AA, having regard to the terms, scope and purpose of this Part of the Act that the question whether a failure to invite the applicant to provide new information on the ‘priest issue’ falls for evaluation. The characterisation of the failure to invite him to do so as being legally unreasonable may be tested by asking whether it was lacking a rational foundation, an evident or intelligible justification or was plainly unjust, arbitrary, capricious or lacking in common sense.
Further, where the question is whether it was legally unreasonable for the Authority to exercise its discretion by deciding not to seek new information, and no reasons are given for that decision, in evaluating whether it is legally unreasonable the court must “focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law”.[48]
[48]Minister for Immigration and Border Protection v Singh (2014) 231 FCR 347, [45] (Allsop CJ, Robertson and Mortimer JJ).
Having regard to the way in which the proposed ground was framed, it is convenient to address aspects of the transcript of the interview by the delegate and then to consider the Reasons of the Authority.
It was submitted that the delegate had raised the issue of the applicant having worked with the priest but not ‘challenged’ him on the issue. For this reason, it was submitted that at no point had the applicant been put on notice of what was said to become the decisive question before the Authority; whether it was plausible that he could work with an Orthodox priest and be at odds with sheikhs at the same time. I have considered that transcript.[49]
[49] Transcript at pp 17-21.
After being asked to describe his work (on a village farm and in a coffee shop), the applicant volunteered that he also worked, assisting a Christian Orthodox priest “like driving him around and helping him around.” The applicant described that he had known him for a long time and that the priest, who had diabetes, had later suffered the amputation of a leg; this apparently being the reason why the applicant had assisted as a driver.
The delegate asked whether the applicant, as a Sunni Muslim, had been driving the priest around. The applicant confirmed he had done so for about eighteen months until, as he claimed, his family discovered this activity and put a stop to it.
From the exchange with the delegate it appears the applicant had first met the priest when, at age fourteen or fifteen, he had been working on an olive farm; they began to talk and the priest had bought him clothes. Later, “after five years”, the applicant had been visiting his father in hospital and he discovered the priest had become unwell “and I started then visiting him and staying at his place” and that this was “how we started this communication”. Against this background the applicant stated that he developed some interest in religion “because I used to go with him to the church and I watched him how he cleaned the church and watered the plants” and that he was interested and listened to what the priest told him about religious principles. He stated that when his family discovered that he was visiting the priest, they tried to stop him.
As the transcript confirms, the delegate explored various aspects of the applicant’s claims at length at the interview. By contrast, in CRY16, the delegate explored issues relating to the applicant’s claims but did not go on to explore the possibility of relocation; the Authority undertook this independently of the delegate. In the present case, each of the applicant’s claims, as well as the potential for him to relocate, was explored in detail at the interview. The Authority simply applied a different analysis from the delegate to that same material.
The Authority did not disagree with some views of the delegate. The reviewer recognised that the delegate had observed that the “priest issue” had not been raised at the time of the original interview and that this had been an issue of concern: [3].
The impugned passages of the Reasons at [13]-[15] are set out below:
It is difficult to accept that the applicant could have spent 18 months assisting a Christian Orthodox priest without it coming to the notice of his family earlier, especially considering the applicant sometimes stayed with the priest and acted as a driver for him, a role that necessitated some public exposure.
Later in his interview with the delegate, the applicant was asked why he could not just relocate somewhere else in Lebanon on his return, away from his family and the clerics who he claims had constantly pressured him. The applicant stated that the sheikhs will know he has returned because they have connections all over Lebanon. As noted above, it is hard to accept that the applicant could maintain a close relationship with a Christian priest for 18 months without detection and against the wishes of his family and religious community. Similarly, I consider it difficult to accept that these clerics could remain unaware of this relatively public relationship for well over a year but would apparently root use their networks to locate him anywhere in Lebanon on his return.
The applicant also indicates that the sheikhs told him that upon the death of his father, he would need to ‘replace’ him within the congregation, becoming more active within the mosque and assuming duties such as making the call to prayer. I accept that in a close-knit religious community, a person who sought to reject his faith may come under pressure to conform and even be punished for not doing so. However, I do not find it plausible that someone who openly questioned his faith and had conducted a decade-long rebellion against the religious strictures of his father would be seen as a suitable choice to take a leadership role within his local congregation.
The applicant submitted that on any view, this reasoning was fairly ‘thin’ and that the delegate had not reasoned in that way (whose reasons turned on relocation and implicitly accepted the proposition that the applicant had fallen out with the local sheikhs, although the delegate did accept the seriousness of the claimed retribution the applicant had asserted to be waiting for him upon any return).
Having regard to the submissions made on the merits of the application, it is convenient to recognise the following aspects of the reasoning of the Authority. At the outset, the reviewer recognised that the delegate had not accepted the applicant’s claims, noting inconsistencies in his narrative and “his failure to raise his central claim at the entry interview” and that the delegate had found it unlikely the applicant would still be a target (having been out of Lebanon on for so long), and that relocation had been considered a viable option: [3].
In addressing the question whether the applicant had a well-founded fear of persecution, the reviewer addressed the following topics: harm from family and religious figures due to rejection of his faith: [9]-[25]; conversion to Christianity or atheism: [26]-[30]; returning asylum seeker: [31]-[34]; generalised security situation in Lebanon: [35]-[40]. The reviewer was not satisfied the applicant had a well-founded fear of persecution on any basis or that he was entitled to protection on the basis of a complementary protection assessment.
In addressing a suggested fear of harm from family and religious figures due to the rejection of his Sunni faith, the reviewer first noted the applicant’s claim that he lived in an isolated village which contained many Islamic extremists, that he began rebelling against his faith in his teenage years and that this had included an incident where, as he claimed, he had been beaten to a state of unconsciousness by his father after questioning the views of a cleric who had visited their house: [9]-[10].
The reviewer then noted that his father had located him in Beirut where he had spent a period of two to three months when aged sixteen, and had forcibly removed him and brought back to the family village: [11]. The reviewer summarised the applicant’s claim of an association of about eighteen months duration, with a Christian Orthodox priest, noting that he had first met him when he was aged fourteen or fifteen. The reviewer recorded that after the applicant’s association with the priest had been discovered this had caused his family to become very angry and given rise to great tension: [12]. The reviewer had found it difficult to accept that in a small village, the applicant could have spent a period eighteen months assisting the priest without it coming to the notice of his family or clerics. Particularly was this so where he claimed to have stayed with the priest and acted as his driver – a role necessitating public exposure – in an isolated village containing, he said, many Islamic extremists: [13]-[14]. For similar reasons, the reviewer found it difficult to accept that clerics could have remained unaware of a relatively public relationship between a young Sunni Muslim and a Christian orthodox priest “for well over a year but would apparently use their networks to locate him anywhere in Lebanon on his return”: [14]. The reviewer also found it implausible that a person who had openly questioned his faith and “had conducted a decade-long rebellion against the religious strictures of his father would be seen as a suitable choice to take a leadership role within his local congregation”: [15].
The reviewer’s assessment of the implausibility of those claims was not made in isolation. In other respects the reviewer found the applicant’s responses respecting his claims to be estranged from his family, coupled with suggested threats of revenge from his family upon his return, to be vague and inconsistent, particularly as he had recanted and suggested other explanations, including after reversing course: [16]-[23].
The reviewer did not accept, having regard to inconsistencies and implausibilities in his testimony, the applicant’s claims to have fallen out with his family or religious leaders in his community or that he faced a real chance of serious harm on account of those issues: [24]-[25].
In addressing a suggested fear of harm from conversion to Christianity or atheism, the reviewer recognised that it was not uncommon in Lebanon for persons to convert to Christianity and that this practice had been widely reported amongst refugees “whether out of genuine belief or practical necessity”. After referring to DFAT country information which referred to the generally permissive environment in Lebanon, the reviewer was not satisfied the applicant faced a real chance of any harm for this reason: [26]-[30].
In addressing a suggested fear of harm as a returning asylum seeker, the reviewer accepted the applicant may be considered a returning asylum seeker but after referring to country information which made clear the large numbers of persons who return to Lebanon from Western countries without incident, that the applicant did not face a real chance of serious harm on this account: [31]-[34].
In addressing a suggested fear of harm from the generalised security situation in Lebanon, the reviewer accepted the security situation in Lebanon was somewhat uncertain but was also not satisfied the applicant faced a real chance of harm on this account: [35]-[40].
Presented with those factors, it is not apparent that what the applicant had called the “priest issue” had the special status that made it legally unreasonable for the Authority not to seek further information from the applicant. Rather, I accept that it was one of a number of factors that led the Authority to the conclusion it reached. Contrary to the applicant’s submissions I do not accept the “priest issue” had the element of criticality of the kind shown to be present in DPI17. The Authority’s conclusions in this regard were the outcome of its appraisals and thought processes in respect of the same evidence that was before the delegate. The Authority, operating in a regime that requires decision-making to be “efficient” and “quick”, and “on the papers”, save in exceptional circumstances.[50] I accept the Minister’s submission that, in seeking an extension of time, the applicant sought to elevate the so-called ‘priest issue’ to a position of prominence in the reasoning of the Authority which it did not bear. On a fair reading of the reasons as a whole the reviewer identified a number of features of the case which, collectively, undermined a conclusion that the criteria for refugee status or complementary protection were satisfied in this case. I agree that the ‘priest issue’ was, in truth, treated in a manner consistently with the other issues which were raised. When regard is had to the manner in which the reviewer did treat those other issues, it can be seen that these were treated alike. In those circumstances, I do not accept that a failure to invite the applicant to provide information in relation to the “priest issue” bears the character of lacking a rational foundation, an evident or intelligible justification or as being plainly unjust, arbitrary, capricious or lacking in common sense. To the contrary, I conclude that a failure to invite the applicant was a matter which fell squarely within the decisional freedom of the reviewer in the circumstances of this case.
[50] Act, ss 473DB, 473FA.
The submission that neither the applicant nor any competent person representing him could realistically have been expected to know or foresee that the Authority might reason in that way bears scrutiny. The Authority was operating in a legislative context that excluded any obligation to notify the applicant that it is considering taking a different view, adverse to the applicant, of material that was before the delegate.[51] Where the Authority makes adverse credibility findings against an applicant it is not obliged to invite him or her to provide new information on that issue. A failure to invite an applicant so as to seek further information on a particular aspect of a matter, is not legally unreasonable per se.[52] This was a matter which the applicant could have been expected to anticipate before the delegate since it was he who had raised the issue, doing so after having consulted his migration agent and who had assisted him in completing his SHEV application and Statement of Persecution.[53] In those senses, the present case is to be distinguished from CRY16 and DZU16 in that here, the applicant knew of the claim which he had raised and so should be taken to have expected that it would receive consideration by the delegate and in turn, the Authority.
[51]DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, [69], [72] (Reeves, Robertson and Rangiah JJ).
[52]DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69, [74] (Collier, Middleton and Rangiah JJ).
[53] Cf FPU17 v Minister for Home Affairs [2019] FCA 1727, [44] (Stewart J).
Likewise, the submission that it would have been easy for the Authority to request new information of the applicant it to ignore the framework of Pt 7AA of the Act and in particular ss 473DB(1)(a)-(b), 473DC(2), 473DD(a) and 473FA(1). For like reasons, the further submission that, as was claimed, any new information would have been probative of the issues in the review ignored those provisions. As counsel for the Minister submitted, even if the information may have been probative, whether or not information is probative is not the test for exercise of the power under s 473DC. Whether the threshold of legal unreasonableness was breached for a failure to seek new information that may have been probative falls for evaluation within the framework of Pt 7AA and upon the principles stated above. In the circumstances of this case, I do not consider a failure to seek information about the ‘priest issue’ assuming it to be probative, lacked a rational foundation or an evident or intelligible justification. Nor was it plainly unjust, arbitrary, capricious or lacking in common sense. Contrary to the applicant’s proposed ground of review it was within the Authority’s zone of decisional freedom to the not to get new information upon this issue.
Conclusion
The determination of whether it is necessary in the interests of the administration of justice to grant an extension of time requires that the length of delay, explanation for delay, prejudice, the relative merits of the proposed grounds and the other matters that I have considered above be considered both individually and cumulatively. Adopting the lower threshold that is to be applied upon an application for an extension of time, I do not accept that the applicant’s proposed ground of review has sufficient or reasonable prospects of success.
I consider that the Authority undertook a proper examination of the matters which had been placed before it. I do not accept that it is sufficiently arguable that it had been legally unreasonable for the reviewer to have proceeded to complete a review of this matter “on the papers” without considering to invite, or in not inviting, the applicant to provide new information in relation to the “priest issue” before concluding that review.
In the present case, I am not satisfied that the proposed ground of review is of sufficient merit as to warrant the grant of an extension of time. Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice to grant the application for an extension of time. Nor, in my opinion, would it otherwise be appropriate to do so in the exercise of discretion.
For the foregoing reasons, the application should be refused.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 14 May 2020
- AGLC
- Atb20 v Minister for Immigration [2020] FCCA 1176
- Case
- [2020] FCCA 1176
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether ATB20 had provided an adequate explanation for a significant delay in seeking judicial review, and whether the merits of his claim warranted an extension of time. Specifically, the court considered whether the delegate's decision not to invite ATB20 to provide further information on an issue he had raised was legally unreasonable, falling outside the "zone of decisional freedom" and being arbitrary, unjust, capricious, or lacking in common sense.
Judge Kelly reasoned that the applicant's explanation for the delay, which centred on a change of address and alleged lack of awareness of the decision, was not adequate. The court found that the merits of the applicant's claim were not such as to warrant an extension of time, particularly in light of the perceived lack of a reasonably arguable ground for judicial review. The delegate's decision was considered to be within the bounds of lawful discretion.
Consequently, the application for an extension of time was refused.
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