AZAFP v Minister for Immigration
[2016] FCCA 398
•29 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFP v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 398 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Refugee Review Tribunal – jurisdictional error – application for extension of time – explanation for delay – prospects of success – application for adjournment on basis of ill health – application supported by a medical certificate – matters to be considered – explanation for delay was that the applicant sought intervention of minister – otherwise no explanation for delay proffered – prospect of success – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36; 48B; 65; 417; 474; 476(1); 477(1); 477(2) |
| Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 |
| Applicant: | AZAFP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 439 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 11 December 2015 |
| Date of Last Submission: | 11 December 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 29 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr d’Assumpcao |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application for an extension of time, in which to file the application for judicial review of a migration decision, pursuant to section 477(2) of the Migration Act 1958, is dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6,825.00.
The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 439 of 2014
| AZAFP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Refugee Review Tribunal “the Tribunal”, as the Administrative Appeals Tribunal was formally known, made on 19 December 2012.
In that decision, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration & Boarder Protection that the applicant did not meet the criteria for the grant of a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
The applicant is of Hazara ethnicity and a Shi’a Muslim. He is aged in his late thirties. He was born in Tarenkut, in Uruzgan province, Afghanistan.
He claims that his father and brother were killed by the Taliban, when he was aged around 10 years of age, so that members of the Taliban could seize his family’s land. As a consequence, he and his remaining family fled to Kabul, where the applicant married.
Whilst in Kabul, the applicant claims to have been informed that members of the Taliban were looking for and killing people, who had resisted the appropriation of their family’s land, as his father and brother had done. As a consequence, he and his family fled to Quetta, in Pakistan. He further claims that, because Hazaras were being attacked in Pakistan, he came to Australia, by boat, arriving on 22 February 2012.
It is the applicant’s case that he is afraid to return to Afghanistan because he believes he will be killed or harmed by the Taliban because he is both a Hazara and a Shi’a. The basis of his fear is that he believes that either the Taliban or other Pashtuns will harm him because they will assume that he has returned to Afghanistan to reclaim his family’s land.
As individuals in Afghanistan are identified by the name of their father, the applicant claims that he will be readily identifiable as the son of the person from whom the Taliban seized land. As such, the applicant is afraid that he will be easily identified, in Afghanistan, and killed.
The applicant acknowledged that he had lived in Kabul for a significant period of time. However, it is his position that the Afghani government only controls Kabul during the day and, at night, the Taliban takeover. As such, he does not believe that the civil Afghani authorities will be able to protect him from coming to harm, particularly as his identity would be readily ascertainable from his taskera or identity document.
Pursuant to section 65 of the Act the Minister may grant a Protection visa if satisfied that the criteria, applicable to the Visa, have been satisfied. The relevant criteria, in respect of the Visa in question, are set out in section 36 of the Act.
Essentially, an applicant for protection in Australia must satisfy the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”), which provides that a “refugee” is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
On 10 August 2012, a delegate refused to grant the relevant protection visa. The delegate was not satisfied that the applicant could not live safely in Kabul, where he had lived for some 12 or 13 years previously.
As a consequence of this decision, the applicant applied to the Tribunal for a review of the decision, which was held on 1 November 2012. The applicant was invited to give evidence before the Tribunal, which he accepted. At the hearing, the applicant was represented, with the representative concerned providing extensive written submissions.
As previously indicated, on 19 December 2012, the Tribunal affirmed the delegate’s decision. On 18 November 2014, approaching two years after the Tribunal decision was made, the applicant commenced proceedings, in this court, seeking to review the decision of the Tribunal.
Pursuant to section 476 (1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.
However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions, made under the Act, which are of an administrative nature are to be categorised as “privative clause decisions”.
Pursuant to the provisions of section 474 a privative clause decisions is to be regarded as final and conclusive. As such, it cannot be subject to challenge, review or appeal. The decision of the Tribunal, which the applicant seeks to review, in this case, is such a privative clause decision as defined by section 474 of the Act.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
Pursuant to section 477(1) of the Act, any application to this court, in relation to a migration decision, must be made within 35 days of the date of the decision concerned. As indicated above, in the case of the current matter, the application is significantly out of time, in respect of the time prescribed.
Pursuant to section 477(2) of the Act, the court may extend the 35 day period if it considers appropriate to do so. This discretion is subject to two factors: firstly, there is an application in writing to this effect; and secondly the court is satisfied that it is necessary in the interests of the administration of justice, to make such an order.
In the present case, the applicant has made the necessary application, in writing, for the extension of time. In his application, the applicant indicates that his review application was delayed because he applied to the Minister to exercise his discretion, under sections 417 and 48B of the Act, to use his (the Minister’s) personal powers to substitute a more favourable decision for the one made by the Tribunal.
In addition, he alludes to the merits of his application, asserting that the decision under challenge affected by jurisdictional error. By necessary implication, he asserts that it would not be in the interests of the administration of justice to allow an otherwise meritorious application for review not to proceed because it was out of time. The applicant also asserts that the respondent will suffer no prejudice, if an extension is granted.
Section 417(1) of the Act grants the Minister to substitute a more favourable decision, to the applicant concerned, than that earlier provided by the Tribunal. In order to exercise this discretion, the Minister must be satisfied that it is in the public interest so to do.
In an affidavit filed in support of this application, the applicant deposes as follows:
“It is in the interests of the public at large that the extension be granted. The first Hazara to recently be forcefully deported back to Afghanistan based on a similarly flawed decision of the Second Respondent was captured and tortured shortly after his arrival. This has sparked public outrage. To allow the flawed decision of the second respondent to stand would ultimately lead to my deportation and Australia violating its International obligation of non-refoulement. It is in the interests of the public at large that Australia does not violate its International obligations.”[1]
[1] See affidavit of the applicant filed 18 November 2014 at paragraph 4
No specific evidence has been provided to support the assertions regarding the treatment received by the person said to have been deported as a consequence of the allegedly flawed decision of the Tribunal. I take the statements contained in the affidavit to be a vigorous restatement of the applicant’s position that he has a meritorious case for review.
On 20 June 2013, the Minister determined that it was not in the public interest for him to intervene. Accordingly, he declined to substitute a more favourable decision, so far as the applicant was concerned, than that contained in the Tribunal decision of 19 December 2012.
When he commenced the current proceedings, the applicant was legally represented. In addition to an extension of time, the applicant seeks an order that the decision of the Tribunal be quashed and it be directed to re-determine the matter. The grounds for the application can be summarised as follows:
·The Tribunal failed to give proper weight to country information, in respect of Afghanistan, which had been provided by the applicant; and
·Tribunal did not provide the applicant with a proper hearing because its mind was closed to his case. As such, it did not discharge the jurisdiction conferred upon.
The application first came on for directions on 19 December 2014. On this day, the matter was listed for hearing at 2:15pm on 12 October 2015. The applicant was directed to file any further material, including any relevant transcript of proceedings before the Tribunal, on or before 20 March 2015. In addition, he was directed to file and serve an outline of submissions ten days prior to the hearing. At this stage, the applicant continued to be represented by his solicitor.
The applicant did not comply with any of the aforementioned directions. On 29 September 2015 the applicant’s solicitor withdrew from the proceedings.
The hearing scheduled for 12 October 2015 did not proceed. On that date, the applicant appeared in person but, due to the withdrawal of his solicitor, no interpreter had been arranged for him. On this basis, the proceedings were adjourned until 11 December 2015.
On this date, the applicant sought an adjournment of the proceedings. In support of this application, he relied on a letter dated 7 December 2015, from Dr Somasundaram, a psychiatrist who had examined him on 2 November 2015. Dr Somasundaram applied that the applicant was suffering from post-traumatic stress disorder, with depressive and anxiety related symptoms. In this context, he wrote as follows:
“There is recent aggravation of [the applicant’s] symptoms with current visa status issues and the ongoing appeal process. On the 2nd November 2015, I prescribed the anti-depressant sertraline and temazepam and he is currently experiencing side effects commonly associated with these medications. I am writing to request an adjournment of [the applicant’s] case at the Federal Court in relation to his Judicial Review.”
The application for adjournment was opposed by the Minister’s representative. I declined to grant the adjournment, for reasons which I provided at the time and upon which I now expand.
It is impossible not to feel sympathetic to the applicant. He is unrepresented and speaks little or no English. It is extremely difficult for a well-educated lay-person, with English fluency, to understand the concept of jurisdictional error, let alone present a case in this context. For the applicant, it the present case, it is very difficult indeed.
However, the letter provided by Dr Somasundaram, did not specifically indicate why the applicant could not take part in the proceedings because of his illness. What is the nature of the side effects said to be suffered by the applicant is not specified. There is no indication as to when these side effects will resolve, if at all and how long a period of adjournment is sought.
In these circumstances, it seemed to me that the applicant’s greater difficulties related to his lack of representation and the requirement to make submissions via an interpreter, which were not likely to be ameliorated at any time in the foreseeable future, rather than difficulties to do with his medical condition.
Mr d’Assumpcao, counsel for the Minister, in opposing the adjournment application, relied upon what was said by Gleeson CJ in Minister for Immigration v SGLB[2]:
“Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this court, suffer from psychological disorders or psychiatric disorders. That may affect their capacity to do justice to their case.”
[2] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 16 [19]
On the basis of this statement, Mr d’Assumpcao submitted that the illness of the applicant was not the sole determinative factor as to whether or not an adjournment should be granted. Rather, it was necessary for the court to consider both the nature of the illness asserted and its specific implications in respect of any implications for how the applicant concerned was likely to be able to present his case.
In this context, I had regard to the statement of Davies J in MZZGY v Minister for Immigration & Border Protection[3] where Her Honour said as follows, in respect of an application to adjourn a migration review application, on the basis of the tender of a medical certificate:
“These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellants condition nor explain why it would prevent the appellant from attending and participating effectively in the court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refuse the adjournment application and proceeded to hear the appeal on its merits.”
[3] MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [13]
Although Dr Somasundaram’s letter did provide a diagnosis, the doctor did not indicate why, in his opinion, the applicant’s symptoms prevented him participating in the proceedings before this court. In particular, Dr Somasundaram did not detail what those symptoms specifically were. In these circumstances, particularly given the applicant’s pre-existing difficulties, which an adjournment would not alleviate, I reached the conclusion that the adjournment should not be granted.
The applicant had an interpreter in the proceedings before me. During the course of the hearing I asked the applicant the basis on which the hearing before the Tribunal had been procedurally unfair or otherwise affected by jurisdictional error. In this context, the applicant asserted that he had been provided with a Tajik speaking interpreter rather than a Hazara one and, if he was returned to Afghanistan, he and his family would be killed.
Mr d’Assumpcao submitted that the applicant had made no complaint, regarded the adequacy of his interpreter at the time of the hearing, when he had the assistance of a representative. In addition, Mr d’Assumpcao further submitted that the applicant had not provided any evidence as to the adequacy or otherwise of the translations provided to the Tribunal.
The Tribunal Decision
The decision of the Tribunal is 125 paragraphs, which occupies some 19 pages. In its decision, the Tribunal comprehensively outlines the applicants background and the basis on which he claims to be at risk of suffering death or significant harm, if returned to Afghanistan, because of his ethnicity, religious affiliations and because of the possibility that he will be targeted by members of the Taliban, if he attempts to re-claim the land appropriated from his father.
The Tribunal accepted the applicant’s evidence that his father and brother had been killed, as a consequence of a dispute over family land. In its decision, the Tribunal also made reference to country information, in respect of Afghanistan, which was available to it.
This information indicated that the situation for Hazaras, in Afghanistan, particularly in its capital Kabul, had improved and the country, as a whole, had stabilised. As such, the Tribunal did not accept that Hazara’s were specifically targeted, by the Taliban, in Kabul, where a cohesive and large Hazara community existed.
The Tribunal also accepted that the applicant had lived in Kabul for some years. On this basis, the Tribunal concluded that the applicant had ties in Kabul, to which he could return and live in Afghanistan.
On this basis, the Tribunal found that there was not a real chance that the applicant would suffer serious harm, if he returned to live in Kabul, as a consequence of his Hazara ethnicity or Shi’a religious affiliations.[4]
[4] See Casebook at [79]
The Tribunal also made reference to country information, which the applicant’s representative had advanced, which indicated that there was a level of insurgency in areas surrounding Kabul, which indicated that the security situation in the area was deteriorating. The Tribunal categorised this information and the claim made by the applicant’s representative based on them to be highly speculative.
In addition, the Tribunal did not accept other country information, advanced by the applicant’s representative, which indicated that Hazaras were at a greater risk of violence, than other ethnic groups in Afghanistan. In this context, the Tribunal concluded as follows:
“The Tribunal has carefully considered those submissions but they do not convey a completely accurate picture with respect to this issue. The Tribunal has referred above to country information which says that Hazaras participate in political life, there is a growing middle class and Hazara students undertake education.
The Tribunal is willing to accept that, nevertheless, they may be adversely regarded by other ethnic groups and they may suffer discrimination but looking at the totality of the country information on this matter there is not a real chance the applicant will suffer serious harm because he is Hazara and Shi’a”[5]
[5] See Casebook at [100]-[101]
The Tribunal is not bound to accept uncritically country information provided by an applicant. Rather, its responsibility is to assess, on the basis of all the evidence available to it, whether there is a real chance that something of an adverse nature, within the terms delineated by the Refugees Convention, will occur to the applicant in question. This requires an estimation of the likelihood that such an occurrence will occur. It is acceptable for the Tribunal look to past occurrences in the country in question.[6]
[6] See Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191CLR 599 at 575
In this case, the Tribunal made reference to all the country information, in respect of Afghanistan, including that which had been tabulated by the Tribunal itself and that prepared by the applicant’s advisor. It preferred its own country information in making its assessment of what the future was likely to hold for the applicant, if he returned to Afghanistan. In my view, the conclusion reached by the Tribunal was open to it on the basis of the material available to it.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[7] the Full Court said as follows:
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[7] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlain & Lander JJ
As the Full Court pointed out in NAHI, the weight that the Tribunal gives to country information is a matter for the Tribunal itself, as part of its fact-finding function. The question of the accuracy of this country information is for the Tribunal, not for the court. If this court were to engage in such an exercise, it would turn these proceedings into a merits review, which is clearly beyond its power.
During the course of his submissions to the court, on 11 December 2015, the applicant asserted that the interpreter, who had assisted him before the Tribunal, was a Tajik. As a consequence, the applicant submitted that he was unable to put his case adequately before the Tribunal. Apart from this assertion, made on the day of the review, there is no evidence to support the claim.
In addition, I have not been provided with any transcript of the proceedings before the Tribunal. In these circumstances, in my view, the applicant’s submission that the Tribunal did not approach his case with an open mind and therefore did not provide him with a fair hearing must be categorised as a generic assertion, which is otherwise unsupported by any evidence.
Considerations Relevant to the Extension of Time
As previously indicated, section 477(1) requires an application for judicial review of a migration decision to be made within 35 days of the date of the decision. The date of the decision is when the written statement issues, which in this case was 19 December 2012. Accordingly, the 35 day period expired on 23 January 2013.
The present application was filed on 18 November 2014, which is just short of 21 months after the date specified in section 477(1) of the Act. Accordingly, the applicant requires a significant extension of time.
As a starting point, applications for extension of time are not to be routinely granted.[8] It must be proper to grant such an extension, as legislatively specified time limits are not to be ignored. The determinative for whether an extension should be granted is the interests of the administration of justice.
[8] See Re Commonwealth of Australia; Ex parte Marks(2000) 177 ALR 491 at [13] per McHugh J,
In Re Ruddock; Ex parte LX Heery J said as follows:
“The grant of an extension of time is not automatic. The object of the rule extending time is to ensure that the rules that fix time do not themselves become instruments of injustice. This discretion to extend time is given for the sole purpose of doing justice between the parties. In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. The prospects of success in the substantive proposed proceeding is relevant.” [9]
[9] Re Ruddock; Ex parte LX [2003] FCA 561 at [41]
As previously indicated, it is the applicant’s position that he has a meritorious case for review and, if it is not entertained, there will be very serious consequences, for him personally, if an extension is not granted.
In this context, I acknowledge that all cases arising under the Refugees Convention necessarily raise questions relating to the health and safety of the applicant concerned. To be accepted as a refugee and so entitled to protection in this country, the person concerned must establish that he or she is at risk of suffering significant harm as a consequence of persecution arising from a Convention reason.
As was recognised by the Full Court in AZAEY v Minister for Immigration and Border Protection[10]claimants, who seek a protection visa, are sometimes “engaged in an often desperate battle for freedom, if not life itself”.[11] In his affidavit, the applicant has placed his situation in such a context.
[10] AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [47]
[11] See Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ
In SZRIQ v Federal Magistrates Court of Australia[12] Foster J considered that the following factors, should ordinarily be taken into account by the court, in considering whether the interests of the administration of justice justified an extension of time being granted:
·Whether there was a reasonable and adequate explanation for the applicants delay;
·Whether there is any prejudice to the Minister; and
·Whether the applicant’s substantive case for judicial review was sufficiently arguable to justify the extension of time.
[12] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 at 261 [47]
The only operational explanation for the delay, in this matter, was that the applicant sought that the Minister exercise his personal discretion to substitute a more favourable decision. In this regard, it should be noted that the Minister informed the applicant of his decision not to intervene on 20 June 2013. There is no explanation as to the delay between that date and the date on which the applicant instituted these proceedings, which was 18 November 2014.
In Vu v Minister for Immigration & Citizenship, the Full Court considered an application to extend time, to appeal was explained on the basis of an approach to the Minister pursuant to section 351 of the Act, which is in similar terms to section 417. In the case, Jessop J said as follows:
“I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.
This is not a case in which the applicant intended to appeal, but misunderstood the nature of his obligations, or in which there was a slip-up or oversight in the office of his solicitors. The applicant was legally represented throughout, and it could hardly be doubted that the very nature of the proceedings before the Federal Magistrate would have made him, or at least his representatives, keenly aware of the significance of time limits. Be that as it may, the fact is that there is no evidence before the court which would make inappropriate the inference, which I draw, that the applicant and his advisors, being fully conscious of the time limit provided by the Rules of Court, chose not to appeal within that time.”
In my view, the comments are apposite to the present matter. The applicant’s then advisor sought to appeal directly to the Minister. It is to be inferred that this representative was aware of the time limits, which applied in respect of an application for judicial review to this court, but chose to take an alternative course. There is no evidence that the failure to lodge the appeal was the result of a mistake or inadvertence, on the part either of the adviser or the applicant himself.
In addition, as I have already pointed out, there is no explanation whatsoever provided for the delay between 20 June 2013 and 18 November 2014. The applicant was legally advised, when he brought the judicial review application. However, his then solicitor chose not to explain the delay, other than by reference to the application to the Minister.
Whilst acknowledging the moment of the applicant’s claim for protection, the fact remains that he exercised an election to appeal directly to the Minister, rather than pursue an application, in this court, within the stipulated time frame. He did so advisedly, notwithstanding his position now that the Tribunal’s decision was vitiated by a clear error. I do not consider that the explanation for the delay is an adequate one, particularly given the extent of the delay in question.
As previously indicated, the purpose of section 477(2) is to ameliorate any potential injustice arising to an applicant because of a harsh or officious application of time limits. In this context, it is necessary to examine the nature of the proceedings in question; the potential consequence for any applicant concerned; and the merits or prospects of success.
In this case, I acknowledge that all cases concerning refugee status are, by their nature, very significant proceedings. However, as the Full Court recognised in SZTES v Minister for Immigration & Border Protection[13] “[e]ven in refugee cases, there is a public interest in the finality of litigation.” It is in this context, that I must examine the prospects of success of the application for review in question.
[13] SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158
The applicant is self-represented. As I have already observed, it is daunting, to say the least, for the applicant to present an application for judicial review in a court such as this. He was however represented before the Tribunal and his grounds for review have been professionally drawn.
The two grounds of appeal assert firstly, that the Tribunal failed to consider country information provided on the applicant’s behalf; and secondly, he was not provided with a fair hearing because the Tribunal did not bring an open mind to his case.
More recently again, in oral submissions to the court, the applicant has asserted that the interpreter provided to him, at the Tribunal hearing was either biased or inadequate and that therefore, in practical terms, he had not been able to participate in the hearing before the Tribunal.
I do not consider that the applicant has any realistic prospects of pursing either the professionally articulated grounds of appeal or the more recently formulated oral ground. In my view, each of the grounds is an inchoate plea that the proceedings before the Tribunal were unfair.
In respect of the first ground, the applicant was able to present country information, of his selection, relevant to the situation of Hazaras in Afghanistan, to the Tribunal. The Tribunal considered this information but ultimately preferred other country information available to it. This was its prerogative and was central to the exercise of the jurisdiction conferred upon it.
The assertion that the Tribunal did not bring an open mind to the hearing of the applicant’s application is a serious allegation. As previously indicated, it is unsupported by any direct reference to what occurred in the proceedings themselves. Rather, in effect, the applicant asserts that, because he disagrees with the conclusions reached by the Tribunal, it must be the case that it did not engage properly with his case and this has resulted in some species of procedural unfairness to him. In my view, there are no grounds to establish this complaint.
There same difficulties arise in respect of the applicant’s more recently articulated claim that the interpreter provided to him, at hearing, was inadequate. In SZRMQ v Minister for Immigration & Border Protection[14] the Full Court (Allsop CJ) emphasised that when issues arose as to the adequacy or otherwise of the interpretation provided, at the Tribunal hearing stage, it was necessary for a court, such as this one, at a judicial review stage, to carry out an examination of whether the hearing concerned was procedurally fair, in terms of the process of interpretation provided.
[14] SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212
This in turn involved an examination of whether the applicant concerned had been given an effective mechanism through which to communicate, in both an oral and written form, with the relevant decision-maker in the case. If an applicant was not provided with a mechanism, which was inadequate in these terms, he or she had not been given an opportunity to take a proper part in the proceedings and therefore had not been provided with an adequate hearing, as required by the relevant statutory provisions.
In this context, Allsop CJ indicated that it was necessary for an applicant relying on a breach of procedural fairness, relating to an alleged failure in interpretation to establish that “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”.[15]
[15] See Soltanyzand v Minister for Immigration & Multicultural Affairs[2001] FCA 1168 at [18]
In this context, the onus is on the applicant complaining of such procedural errors to provide material evidence in respect of them. In this case, once again, the applicant has merely asserted that the interpretation was inadequate. He has not provided any concrete examples as to how he was not able to convey his position properly to the Tribunal or give any actual example as to how something he has said, via the interpreter in question, has been misconstrued or misunderstood by the Tribunal so that, in effect, he has not been able to take part in the process of the hearing.
Quite properly, Mr d’Assumpcao concedes that there is no significant prejudice arising to the Minister, if the extension of time is granted. However, the absence of prejudice alone is not a sufficient basis, of itself, to grant such an extension.[16]
[16] See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349
Accordingly, I have come to the conclusion that the applicant’s explanation for the delay is insufficient. In addition, I do not consider that his application for judicial review has any realistic prospect of being successful as he has not, in the material placed before the court, demonstrated any reasonably arguable ground to establish any form of jurisdictional error on the part of the Tribunal.
In these circumstances, in my view, it would not be in the interests of the administration of justice to grant the applicant an extension of time in which to bring the application.
The application will be dismissed. I will make an order that the applicant pay the first respondent’s cost fixed in the sum of $6,825.00. I will also make an order that the name of the second respondent be substituted with Administrative Appeals Tribunal.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 29 February 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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