AZAFL v Minister for Immigration

[2016] FCCA 234

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 234

Catchwords:
MIGRATION – Application for extension of time within which to bring proceedings – significant delay – no reasonable explanation for delay – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 65, 92R(2), 417, 425, 476, 477(1) & (2)

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252
SZSRY v Minister for Immigration and Border Protection [2013] FCCA 1284
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Kirk v Industrial Relations Commission of NSW & Anor (2010) 239 CLR 531
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Re: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZATV v Minister for Immigration and Citizenship (2000) 233 CLR 18

Applicant: AZAFL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 370 of 2014

Judgment of: Judge Heffernan

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Adelaide

Delivered on: 18 February 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 25 September 2014 is dismissed.

2. The name of the second respondent be amended to read, ‘The Administrative Appeals Tribunal’.

3. The applicant do pay the first respondent’s costs fixed in the amount of THREE THOUSAND, FOUR HUNDRED AND SIXTEEN DOLLARS ($3,416).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 370 of 2014

AZAFL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time. The applicant seeks judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’), dated 28 June 2013, to affirm the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa under s.65 of the Act. His application to this Court was not made until 25 September 2014, approximately 15 months outside the 35 day time limit stipulated in the Act, and accordingly he requires an order extending the time in which to make the proposed substantive application. The application to extend time is opposed by the first respondent.

2. The applicant is an ethnic Hazara male who was born in Pato, Jhehori in Gajzni Province, Afghanistan on 31 December 1972.  He is a Shia Muslim.[1]

   [1]     Case Book (‘CB’) p 326.

3. The applicant arrived in Australia by boat on 7 May 2012.  He applied for a protection visa on 2 September 2012.  This was refused by a delegate of the Minister on 31 October 2012.  He applied to the Tribunal for a review of this decision on 8 November 2012.

4. The applicant claimed that if he were to return to Afghanistan he would be subjected to persecution on the basis of his ethnicity and religion as a Hazari Shia.  He claimed that he would also specifically be targeted for persecution by the Taliban because they mistakenly believed that he had betrayed the whereabouts of a senior member of the Taliban to the police.  He also claimed that there was a real chance he would face persecution by virtue of being a failed asylum seeker or returnee from the West. It was, he claimed, untenable for him to relocate to another part of the country as he had no family connections elsewhere, the Taliban had a presence in all areas of Afghanistan and they would eventually find him and kill him.

Tribunal decision

1. The Tribunal hearing took place on 10 May 2013.  The applicant was represented by a registered migration agent and had the assistance of an interpreter at that hearing.  Detailed written submissions were provided to the Tribunal prior to and after the hearing.  Materials were also submitted by the applicant at the beginning of the hearing.[2] 

   [2]     CB p 329.

2. The Tribunal accepted many of the claims made by the applicant. It found that if the applicant were to return to his village in Pato there was a real chance that he would face persecution by the Taliban as envisaged by s.92R(2) of the Act, because of an imputed political opinion and that accordingly he would be at risk of his life or serious physical harm or ill treatment in a manner that would be systematic, discriminatory, deliberate and selective. The Tribunal was not convinced that his fear of persecution was well founded throughout Afghanistan. The Tribunal found that there was not a real chance that the applicant would face persecution for a Convention reason if he were to move to Kabul, and found that it was reasonable that he should do so as there was no appreciable risk of the feared persecution in that city.

3. Consistent with the findings above, when considering the Complimentary Protection obligations, the Tribunal found that there were substantial grounds for believing that if the applicant returned to Pato there is a real risk that he would suffer significant harm as defined in subs.36(2A) of the Act. However it found that that real risk would not exist if he were to relocate to an area outside Pato, such as Kabul, that it was reasonable that he should do so and that the significant harm feared did not extend to all areas of the country.

Extension of time

1. Pursuant to s.477(1) of the Act, an application to this Court for a remedy pursuant to s.476 of the Act must be made within 35 days of the date of the migration decision. Pursuant to s.477(2) an extension of time may be granted in the following circumstances:

   “(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

2. Accordingly there are two matters of which I must be satisfied as preconditions to making of an order to extend time.  The first relates to the need for a written application that specifies why the applicant believes it is necessary in the interests of justice to make the order.  The applicant has filed a written application seeking an extension of time and explaining his reasons.  He has satisfied the first pre-condition.

3. The second pre-condition is that I must be satisfied that it is necessary in the interests of the administration of justice that the order be made.  I am not confined in the matters to which I can have regard in considering this question but they must have a logical and sensible connection to the interests of the administration of justice.[3]

   [3]     SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 at [46].

4. The considerations commonly relevant to the exercise of the discretion to grant an extension of time pursuant to s.477(2) are well established.[4]  An extension of time should only be granted where in all the circumstances it is proper to do so.  In considering this question, the time limit stipulated by the legislature cannot be ignored.  The Court must consider the length of the delay and whether there is any acceptable explanation for it.  Whether there is any prejudice to the respondent caused by the delay is a relevant factor, however the mere absence of prejudice is not enough of itself to justify the grant of an extension.  In considering any application for an extension of time, the merits of the substantive application must also be considered, the interests of the public are relevant and the impact of a refusal for an extension of time on the applicant should be taken into account.  It is also relevant that there is no automatic right of appeal against a refusal to extend time under s.477(2).

   [4]     SZSRY v Minister for Immigration and Border Protection [2013] FCCA 1284 at [47]; SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14].

5. The considerations I have just mentioned are not set out in s.477(2)(b) of the Act. There remains the possibility that other factors might also be relevant to the question of an extension of time.[5]

Explanation for delay

[5] SZRIQ at [48].

1. The applicant has summarised his reasons for the delay in an affidavit dated 25 September 2014 accompanying his application.  He claims that:

   “I did not had any money to appeal the decision, at the time, when the time is over and I got some money then I contacted a migrant agent know as Marion Le consultancy she took over my case.”

2. He claims that he was advised by the migration agent that she would take his case to the Minister but that she failed to do so.  She advised him that the, “the situation is not good at the moment” and that if he went to Court at that time he would lose his case but that he would have a strong case if he waited to go to the Minister.  He claims his application to the court for an extension of time, apparently made some four days before his bridging visa was due to expire, was prompted by the authorities contacting him and telling him that if he did not lodge an application before the Court he would be returned to a detention centre.

3. Clearly, the application for judicial review in this matter was filed after a very substantial delay.  There is no evidence as to how long after the Tribunal decision the applicant first spoke with the migration agent about the availability of any remedy.  Whatever period of time elapsed between the Tribunal decision and receiving the advice from the migration agent, it seems he accepted the advice of his migration agent to, “go to the Minister” rather than pursue a remedy in this Court.  

4. The reference to the Minister seems logically to be a reference to the power in s.417 of the Act for the Minister to substitute the decision of the Tribunal with a determination in the applicant’s favour. Whether the applicant was aware of the specific statutory power or not, his affidavit indicates that he understood that he was making an election.

5. The applicant claims that no approach was made to the Minister on his behalf. This aspect of his submission is not challenged by the first respondent, who is not aware of any application having been made. There is no evidence as to how long the applicant waited before he ascertained that no s.417 application had been made, or the circumstances in which he became aware of this.

6. In effect, the applicant says that as a result of the negligent conduct of the migration agent, he took a course which caused him to be out of time with respect to a review in this Court, without having had the benefit of any representations made to the Minister.

7. In opposing the application the first respondent submits that the delay is so long that the issue of prejudice to it assumes less importance.  The first respondent did not point to any specific prejudice that it would experience if the application to extend time was to be granted.  It contends that irrespective of any prejudice, a delay as substantial as this, means that public considerations of the type identified in, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [349] become relevant. The Act requires any applications for judicial review to be brought within 35 days of the decision, and inordinate delay, of which this matter is an example, can only have the tendency to interfere with the expeditious and proper administration of justice anticipated by the Act.

8. The first respondent also submits that the explanation provided for the delay is an unsatisfactory basis upon which to grant an extension of time. It submits that on the applicant’s own affidavit, the only inference that can be drawn is that having considered the advice of his migration agent, the applicant elected not to pursue his right of review to this Court in favour of a proposed submission requesting a s.417 intervention. For this reason, the first respondent says that the conduct of the applicant was analogous to that identified in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198, namely, “indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act, or otherwise at law …”.[6]  In other words, through his own conduct, the applicant has signalled his acceptance of the Tribunal’s decision.  Implicit in the submission of the first respondent was that if I were to accept this aspect of its argument, the length of the delay in this case is even more difficult to excuse.

   [6]     Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [14].

9. What is clear is that the applicant was aware that he had two options by which he could seek redress against the decision of the Tribunal. He accepted the advice of the migration agent that he should opt for the s.417 approach rather than pursue a remedy in this Court. The inevitable consequence of that was that the time in which he had a right to apply for review in this Court would lapse.

Merits

1. The applicant has raised two grounds in the substantive application:

   a)Ground one - Denial of procedural fairness;

   b)Ground two – Error of law in decision.

2. The first respondent submits that there is no merit in the substantive application, and for that reason even if I were to be satisfied by the explanation for the delay it would be a futile exercise for me to grant an extension of time.  For that reason it submits, it would not be in the interests of the administration of justice for me to grant the application to extend time.

3. When considering the merits of the substantive application for judicial review, I must consider whether it has reasonable prospects of success.[7]  For the purpose of considering the application for an extension of time, I am not considering whether the applicant has positively established jurisdictional error on the part of the Tribunal.  An assessment of the merits is simply one factor to be weighed against others when determining if an extension of time is necessary in the interests of the administration of justice.  The applicant needs to satisfy the Court that the substantive application is not hopeless or doomed to fail.[8]  It has been noted that, “it is difficult to imagine any case which merely appeared weak, but not hopeless, in which it would be proper to refuse an extension on that account”.[9]

   [7]     SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [67].

   [8] Ibid at [84].

   [9] Ibid.

4. Prior to the hearing of this matter the applicant filed a second affidavit dated 25 August 2015.  I received this document without objection from the first respondent.  The affidavit purports to raise further factual matters not raised or in existence at the time of the Tribunal hearing.  To the extent that it seeks to introduce matters not before the Tribunal, I will ignore this document.  The affidavit also serves to provide some greater particularity to the grounds raised by the applicant and to some extent is an outline of submissions.  I have had regard to this document for that purpose.

5. The applicant appeared at the hearing of this matter unrepresented with the assistance of an interpreter.  In his oral submission, he argued in effect that the Tribunal was in error as to its’ findings, or failed to give sufficient weight to the significance of his race and religion.  He submitted that everyone knows how persecuted Hazari Shia’s are.  He raised this same argument in his second affidavit where he criticised the finding of the Tribunal that there was no evidence of the Taliban targeting Hazari’s and Shia’s. 

6. To the extent that this criticism is about the weight given to the significance of his race and religion, that is clearly a matter for the Tribunal and it is not for this Court to substitute its own view as to the appropriate degree of weight to be accorded to these issues.[10]  As to the argument that the Tribunal made an error of fact about the degree of persecution towards Hazari Shia’s, and whether they are targeted by the Taliban, the Tribunal took into account extensive country information and it is not apparent that the conclusion it reached is illogical, irrational or unreasonable.  To the extent that it made an error on this matter, if that be the case, then it was an error within jurisdiction.[11]

   [10]    Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7].

   [11]    Kirk v Industrial Relations Commission of NSW and Anor (2010) 239 CLR 531 at 569.

7. In his oral submission, the applicant argued that he was not able to prepare his submissions properly prior to the Tribunal hearing as he was unable to have sufficient discussions with his lawyer. This argument would potentially be relevant to his proposed first ground that he had been in some way denied procedural fairness. For this reason, he argues that the two main aspects of his application based on race and religion were not properly presented to the Tribunal. The applicant complains that there were certain documents that should have been sent to the Tribunal on his behalf in advance of the hearing, but he acknowledged in submissions that they were provided to the Tribunal on the day of the hearing. I note that substantial written submissions prepared by his solicitor were provided to the Tribunal both before and after the hearing. These submissions dated 12 February 2013 and 24 May 2013 dealt extensively with both country issues and the personal circumstances of the applicant. I am not satisfied that it is reasonably arguable there was anything about the quality of the representation he received that would render the hearing itself procedurally unfair. I note that in all other respects, the hearing appears to have complied with s.425 of the Act and the principles of procedural fairness.

8. The applicant submitted in his second affidavit that he gave a mistaken answer to the Tribunal on a relevant matter.  This related to a letter that the Tribunal accepted had been sent to him by the Taliban.  The Tribunal noted, apparently correctly, that when it asked the applicant about the letter, and in particular whether the Taliban threatened to do anything to him, the applicant, “stated that he did not think there was any particular threat towards him”.[12]  The applicant claims in the second affidavit that he does not know why he gave that answer to the Tribunal, but that it was mistaken and he knows that the Taliban threatened to kill him in that letter.  The applicant does not complain that the error on his part came about as a result of a mistranslation or a non-translation.  He simply got his evidence wrong.  It is not reasonably arguable that such an error on his part caused the Tribunal to fall into jurisdictional error.

   [12]    CB p 331.

1. The applicant also submitted in his second affidavit that certain matters he mentioned before the Tribunal for the first time were not accepted.  Those matters were as follows:

   a)The claim that his business partner, Mohammad Ali, had been shot at whilst driving the truck that both of them operated.[13]  The Tribunal was not satisfied that this incident occurred or if it did that it involved the Taliban.  In making this finding it placed weight on the fact that the claim had been raised for the first time before the Tribunal.  It also noted that the applicant himself admitted he could not be certain that the incident had involved the Taliban as opposed to being a random attack by thieves;

   b)That the Taliban had come to his home creating trouble for his family and demanding money.  The Tribunal did not accept his evidence that this had occurred; and

   c)That his partner, Mohammad Ali, had been arrested and tortured by the Taliban.  The Tribunal did not accept this claim. 

   In so far as the applicant complains about the findings of the Tribunal on the above matters, this amounts to nothing more than complaints on the merits of the matter and the findings of credit made by the Tribunal. This Court has no role to play in reviewing the merits or findings of fact made by the Tribunal,[14] and findings of credit are entirely a matter for the Tribunal.[15]  The above findings were all clearly open to it.  I find that is it not reasonably arguable that the Tribunal fell into jurisdictional error in relation to these matters.

   [13]    CB p 331-332 at [37]-[38].

   [14]    NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38].

   [15]    Re: Minister for Immigration and Multicultural Affairs; Ex-parte Durairajasingham (2000) 74 ALJR 405.

2. The final matter raised by the applicant in his second affidavit relates to the reasoning of the Tribunal when considering whether there was a real chance that he would face persecution for a Convention reason if he were to move to another area of Afghanistan. 

3. Given his ethnic and religious attributes in addition to his accepted past history with the Taliban, the applicant submits that the Tribunal was in error in finding that it was reasonable in the sense of being “practicable” that he should move to Kabul.[16]  The applicant contends that he has a well-founded fear that he would not be safe in Kabul and that he would not be safe anywhere in Afghanistan.  The applicant points to the decision of McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs[17] where his Honour cited with approval an observation of the Supreme Court of the United States that the assessment of whether a ‘real chance’ exists is not to be determined simply by mathematical probabilities, and that even a 10% chance of persecution may be a ‘real chance’ on which a well-founded fear can be based.

   [16]    See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

   [17]    Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429.

4. The Tribunal correctly approached the question on the basis that the Convention definition is not based on the protection that a country may be able to give in a specific region, but rather on the general availability of protection country wide.[18]  It assessed the question of relocation on an objective consideration of whether it was reasonable in the sense of being practicable to expect the applicant to seek refuge in another part of the country.[19]  It noted that it was not to judge the question by considering the question of living conditions in the broader sense.

   [18]    CB p 333.

   [19]    CB p 334.

5. The Tribunal took into account a considerable amount of country information as well as the history provided by the applicant.  It placed weight on the fact that the applicant had lived and worked for about 18 months in Kabul and travelling from there to Herat and Mazar-e-Sharif without any problems arising with the Taliban.  Whilst the Tribunal accepted that there was some risk of terrorist attack to all residents of Kabul it was not satisfied that the applicant would face a real chance of persecution for any convention reason in the reasonably foreseeable future in Kabul.[20]

   [20]    CB p 336.

6. It is not reasonably arguable the approach taken by the Tribunal with respect to relocation involved an error of law; that it asked itself the wrong question; that it took into account irrelevant considerations; failed to take into account relevant material; or that the conclusion it reached was irrational illogical or unreasonable in the relevant sense.  I am not satisfied that it is reasonably arguable that the Tribunal fell into jurisdictional error in considering the question of relocation.

7. For the above reasons, I am not satisfied that the applicant has demonstrated that the grounds he seeks to raise have a reasonable prospect of success.

Conclusion

1. I am not satisfied that the explanation provided for the delay in this matter is reasonable. The applicant made an election to pursue a course of action that effectively meant abandoning any recourse to this Court. Only now, under threat of being returned to a detention centre has he made an application to extent time. In large part his complaint is that his preferred course of action, of an approach to the Minister under s. 417 of the Act, was apparently not done. He is not now prevented from making this approach if he chose to do so. Whilst the Minister has appropriately conceded that it cannot point to any specific prejudice if time were to be extended, it is correct to submit that the length and circumstances of the delay militate against granting an extension of time.

2. As I have already noted, I am not satisfied that the proposed grounds have a reasonable prospect of success.

3. I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the period in which the applicant may make his application for judicial review.  Accordingly, I dismiss the application.

4. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty (4) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 18 February 2016