Baa23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1162
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAA23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1162
File number(s): SYG 664 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 6 December 2023 Catchwords: MIGRATION – Extension of time application – where application for judicial review of decision to affirm refusal of protection visa filed 1,162 days late – where Applicant received legal advice including about his right to seek review within time, considerable and extraordinary delay not adequately explained – consideration of prejudice –grounds of substantive review application assessed as not reasonably arguable – application for extension of the time for filing refused with costs. Legislation: Migration Act 1958 (Cth) ss. 5, 36, 65, 189, 474, 476, 477, 501. Cases cited: Applicant WAEE V Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 Ald 630
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483
Craig v South Australia (1995) 184 CLR 163, 175
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 610
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration & Border Protection and Anor [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 2 August 2023 Date of hearing: 16 August 2023 Place: Parramatta Counsel for the Applicant: Mr B Kaplan Solicitor for the Applicant: Alison Battisson Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: Sparke Helmore ORDERS
SYG 664 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAA23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time as made on 21 April 2023 is refused.
2.The Applicant is to pay the First Respondent’s costs in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
INTRODUCTION
The Applicant has applied for judicial review of a migration decision made by the Administrative Appeals Tribunal (Tribunal).
Being filed 1,162 days (3 years, 2 months and 7 days) days outside the statutory timeframe, the Applicant first sought an extension of the time for filing so that his substantive application could be considered by this Court.
Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is refused. The reasons for this decision follow.
CONTEXT
The following factual context is uncontentious and constitutes findings I have made.
The Applicant is a citizen of Iraq who arrived in Australia on 4 March 1996 on a subclass BA200 (Refugee and Humanitarian (Migrant)) visa.
On 22 May 2018, the Applicant’s visa was cancelled on character grounds pursuant to s.501(3A) of the Migration Act 1958 (Cth) (Act) (which requires the Minister to cancel a visa because the person has a substantial criminal record as defined at paragraph (6)(a) or sexually based offences involving a child at paragraph (6)(e) where the person is serving a sentence of imprisonment or custodial sentence for an offence against the law of the Commonwealth or State). At the time of the hearing of the present application, the Applicant was making representations to the Department of Home Affairs (as it is now known, herein after referred to as the Department) about revocation of that cancellation decision.
On 8 November 2018, the Applicant was released from criminal detention. As he no longer held a visa and was considered an unlawful non-citizen, the Applicant was sent to immigration detention under s.189 of the Act where he has been ever since.
On 18 January 2019, the Applicant lodged an application for a protection visa.
On 27 August 2019, the delegate refused to grant the Applicant a protection visa.
The Applicant subsequently applied to the Tribunal for a review of the delegate’s decision. In the course of the Tribunal’s review procedure:
(a)On 6 November 2019, Legal Aid NSW was appointed as the Applicant’s representative and subsequently sent pre-hearing submissions to the Tribunal on 14 November 2019.
(b)On 18 November 2019, the Applicant and his then legal representative attended a hearing before the Tribunal.
(c)On 3 December 2019, the Applicant’s then legal representative provided the Tribunal with post-hearing submissions and a supplementary report of Dr Sathish Dayalan (forensic psychologist).
(d)On 13 December 2019, the Tribunal invited the Applicant to comment or respond to information given at the hearing.
(e)On 20 December 2019, the Applicant’s then legal representative provided a written response to the Tribunal’s invitation to comment.
On 13 January 2020, the Tribunal notified the Applicant of its decision to dismiss the application for review and provided a copy of its written reasons (Reasons).
On 21 April 2023, the Applicant through his new legal representatives filed this application for an extension of time and judicial review along with an affidavit of the Applicant and the Applicant’s lawyer. By those affidavits, the Court received the following documents as annexures:
(a)a letter from Ms Nicola Cannon to the Applicant dated 10 January 2020;
(b)a International Health and Medical Services (IHMS) Health Summary Report for Commonwealth Ombudsman by nurse Jocelyn Saunders dated 23 March 2022;
(c)a IHMS Health Summary Report for Commonwealth Ombudsman by nurse Georgia Clarke dated 23 September 2021;
(d)a IHMS Health Summary Report for Commonwealth Ombudsman by nurse Miluse Luba dated 17 March 2021;
(e)a IHMS Health Summary Report for Commonwealth Ombudsman by nurse Miluse Luba dated 28 October 2020;
(f)a progress note by IHMS General Practitioner Simon Howell dated 27 August 2020;
(g)a progress note by IHMS psychiatrist Dr David Lienery dated 12 September 2019;
(h)a progress note by IHMS counsellor Barin Popal dated 23 August 2019;
(i)a progress note by IHMS Psychiatrist Dr David Lienert dated 16 May 2019;
(j)a progress note by IHMS General Practitioner Cameron Nik dated 19 November 2018;
(k)A letter from the First Respondent’s Department (Department) dated 25 January 2023;
(l)An email from the Applicant’s solicitor to Ms Cannon dated 27 January 2023;
(m)An automatic response from the email address of Ms Cannon dated 27 January 2023;
(n)An email from the Applicant’s solicitor to Ms Kate Bones dated 27 January 2023; and
(o)An email from Mr Michael Mosley to the Applicant’s solicitor dated 27 January 2023.
On 10 May 2023, the First Respondent filed a response.
Procedural orders were made for the filing of materials and setting the matter down for hearing and a court book was filed on 30 May 2023.
On 16 August 2023, the matter proceeded to hearing before the Court as presently constituted. The Applicant was represented by counsel and attended the hearing by video link from immigration detention. The First Respondent was represented by counsel.
STATUTORY FRAMEWORK
Protection visa application
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
The grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, at s.36(2)(a) and (aa), the Act provides that “a” criterion for a protection visa is that the applicant for the visa is:
·a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”: s.36(2)(a), see also ss.5H and 5J for the meaning of “refugee” and meaning of “well-founded fear of persecution”; or
·a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm”: s.36(2)(aa). See also s.36(2A) for the meaning of “significant harm”.
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
Time limitation for judicial review application
Pursuant to s.477(1) of the Act, an application to this Court for review is to be made within 35 days of the date of the migration decision.
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made as considered appropriate and if an application has been made and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]; BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17].
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
SHOULD AN EXTENSION OF TIME BE ALLOWED?
It is not controversial that the present application was made late.
The Tribunal’s decision subject of this application for review being made on 10 January 2020, an application for judicial review in this Court was due to be made by 14 February 2020.
This application for judicial review was not made until it was electronically lodged on 21 April 2023.
Accordingly, the application was made 1,162 days or 3 years and 2 months and 7 days after the expiry of the statutory timeframe.
I turn now to consider whether to grant an extension of time having regard to the established principles.
Delay and explanation
The Applicant accepted that his delay in filing the present application was lengthy but sought to persuade the Court of a satisfactory explanation. He did so by reference to the following factors:
(a)Until 12 February 2020, the Applicant was represented by a lawyer.
(b)From at least 12 February 2020, the Applicant’s medical conditions prevented him from taking steps to secure alternate legal representation.
(c)It was not until 25 January 2023 that the Applicant’s current legal representation became aware of the Tribunal’s decision to affirm the refusal to grant him a protection visa.
(d)Since so becoming aware, the Applicant’s current legal representation acted as expeditiously as possible to file this application for judicial review and any delay in that period is explicable by the time it took to brief counsel and the existing commitments of the Applicant’s solicitors and counsel.
The First Respondent urged the Court to find the explanation for such “extreme” and “excessive” delay to be inadequate.
The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v Minister for Immigration & Border Protection and Anor [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].
The delay in the present case is considerable.
On the Applicant’s own evidence, the following things occurred before the statutory timeframe for filing this application had expired on 14 February 2020:
(a)On 10 January 2020, the Applicant received the Tribunal’s decision.
(b)The Applicant asked Legal Aid NSW what he should do next and was made aware of his option to “appeal” the Tribunal’s decision.
(c)On 12 February 2020, the Applicant received a letter from Legal Aid NSW which stated that Legal Aid NSW could not help him to file an appeal and the Applicant understood that letter to say that he had a very low chance in appealing the Tribunal decision.
The letter from Legal Aid NSW of 12 February 2020 is illuminating as to the events in the period after delivery of the Tribunal’s decision and before the expiry of the statutory timeframe for filing this application. The Applicant did not dispute the accuracy of its contents, indeed it was annexed to his affidavit without correction or clarification. That letter relevantly provided:
Your AAT appeal
1 Outcome of your appeal: protection visa refused
In September last year I helped you to lodge an appeal to the Administrative Appeals Tribunal of the Department of Home Affairs’ decision to refuse to grant you a protection visa.
As you know, unfortunately on 10 January 2020 the Tribunal refused your appeal. Enclosed is a copy of the Tribunal’s decision.
2 Appealing the Tribunal’s decision to the Court
As my colleague [name] explained to you on 15 January 2020, you have the option to appeal the Tribunal’s decision to the Federal Circuit Court. If you would like to appeal you must do it by this Friday (14 February 2020).
[Name] sent you instructions about how to file an appeal by email on 15 January 2020. Legal Aid cannot help you to file this appeal because I do not think you are likely to win if you do appeal. The reason for this is that the Court only has the power to decide whether the Tribunal made an ‘error of law’ when they decided your appeal. Appeals to the Court are not about the facts of your case but about whether the Tribunal did its job properly in deciding your appeal.
It is important to know that if you decide to appeal to the Court and you lose, you will have to pay the costs of the Minister’s lawyers, which will be thousands of dollars.
3 I will now close your Legal Aid file for your AAT appeal
Now that the Tribunal decided your appeal, I will close your Legal Aid file. I am sorry that the outcome of your case was not positive.
Legal Aid will keep your file for 7 years, as required by the law, and then we will destroy it. I confirm that I do not hold any original documents on file for you.
As you know, Legal Aid is still representing you in a different appeal to the Federal Circuit Court about the Minister’s decision to cancel your refugee visa. This appeal is listed for hearing on 16 September 2020.
If you have any questions, please call me on [number].
The Applicant deposed that he could not find any pro bono legal representation to assist him after Legal Aid NSW closed his file until he connected with his current lawyer in around July 2022. The Applicant could not recall how he had been connected with his current lawyer. For their part, the Applicant’s current lawyer deposed that he was given the Applicant’s mobile telephone number by a member of the community (who the lawyer did not identify) in around June 2022 and he contacted the Applicant shortly afterwards.
The Applicant also deposed that he was unable to find any other lawyers willing to help him because he did not know of any other services that could assist, and because he was then (as he is now) troubled mentally and was then (as he is now) spending a lot of time either sleeping or crying. In elaboration of the reason(s) for his delay, there was evidence of:
(a)The Applicant’s history of mental health issues. Namely, his diagnoses of post-traumatic stress disorder, chronic schizophrenia, depression and anxiety. The Applicant annexed to his affidavit extracts of health records over the period 19 November 2018 to 23 September 2021. Those records suggested that the Applicant had been diagnosed with PTSD, anxiety, and panic attacks by 19 November 2018 and was on medication for paranoia by 16 May 2019. And, on account of these conditions, the Applicant is rarely able to think clearly or do things on time, often misses medical appointments because he forgets about them and for a number of years have made it difficult for him to become motivated to do anything and be organised; and
(b)The Applicant’s exposure to stressors in immigration detention including that he has had flashbacks of his experiences in Iraq, two friends made in immigration detention who committed suicide in 2021 and 2022 (respectively) and a third friend made in immigration detention who died in January 2023. The Applicant’s evidence was that these experiences have deeply affected and disturbed him.
Following their initial discussion in around June or July 2022, the Applicant’s current lawyer was engaged to assist him with his application for the revocation of his mandatory visa application.
On 25 January 2023, the Applicant’s current lawyer received a letter from the Department which invited comments on new information that it had received (referred to as a “natural justice letter”). It was by this letter that the Applicant’s current lawyer was notified of the Tribunal’s decision subject of this application for review. The Applicant’s current lawyer deposed to being otherwise unaware that the Applicant had made an application for a protection visa.
On or about 27 January 2023, the Applicant’s current lawyer commenced taking steps to access Legal Aid NSW’s file.
On 30 January 2023, the Applicant’s current lawyer sought to brief counsel who responded that same day that they were available to accept the brief.
On 27 February 2023, the Applicant’s current lawyer was of capacity to conduct an in-depth review of the Applicant’s case and relevant materials and completed and sent the brief to Counsel who by then was on leave or had other obligations.
On 21 March 2023, Counsel provided an advice in the matter.
In the period inclusive of 21 April 2023, there was various activity by the Applicant’s new legal team in terms of drafting affidavits and the application to commence this review application.
The Court did not have direct evidence of any medical expert or treating practitioner. Accepting the contents of the records annexed to the Applicant’s affidavit at its highest, the Applicant suffers (and at the relevant times for the purposes of assessing the explanation for his delay, suffered) from a range of medical conditions. Additionally, on the Applicant’s evidence taken at its highest it may be accepted that from around one year after the application was first due to be filed and from then throughout the period of delay, the Applicant suffered traumatic experiences whilst in immigration detention. These matters affected his ability to act with any urgency or promptly progress matters but do not adequately explain such a considerable and extraordinary delay.
The evidence also established that the Applicant was aware of his option to appeal the Tribunal’s decision and not only was able to but did take legal advice as to his prospects of such appeal within the proscribed time for seeking judicial review of that decision. The letter from Legal Aid NSW was written in plain and clear terms and clearly emphasised the time limitation of an application for judicial review and the specific date by which such application was to be made.
The Applicant did not misunderstand his then lawyer’s advice about his prospects of success in applying for judicial review of the Tribunal’s Reasons. The Applicant was in possession of the necessary and relevant information about making an application for judicial review and the urgency with which such application was required to be made. He did not actively search for a second opinion as to the prospects of succeeding in such application. The Applicant simply did not elect to make this application for judicial review until he stumbled upon a second opinion when a lawyer approached him some years later.
In all of the circumstances, I am not persuaded that there is a reasonable explanation for the delay in the present case. The length and explanation for the delay weigh strongly against the grant of an extension of the time for filing in this matter.
For completeness, without necessarily accepting as reasonable the explanation as it related to that part of the delay from the time when the matter came to the attention of the Applicant’s new legal team, it would not have altered my above conclusion as to this factor. As such, that part of the delay from 25 January 2023 was not taken into account as to weigh against the grant of an extension of time.
Prejudice to the First Respondent
The First Respondent properly contended that it will not suffer any particular prejudice if the Applicant was granted an order allowing an extension of the time for filing. However, the mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
The First Respondent also asked the Court to find that there would be prejudice in relation to the orderly and proper administration of the Act, which goes to the public interest in the finality of administrative decision-making: citing WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [40]-[44] per Derrington J.
There is also a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds of review, which are considered further below. However I accept, as has been recognised in the established authorities, that there is a public interest in the finality of administrative decisions and in my view that is a strong consideration in the present case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
Merit of the substantive application
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant are reasonably arguable.
The 3 grounds of the substantive application are as follows (particulars omitted):
1.The Second Respondent (Tribunal) constructively failed to exercise its jurisdiction by failing to consider the Applicant’s claim that he would not be able to access essential services such as medical treatment in Iraq, as he did not hold any Iraqi identity documents which prevented him from obtaining a Civil Status ID card.
2.The Tribunal constructively failed to exercise its jurisdiction by failing to consider the Applicant’s claim that he feared persecution on the basis of his imputed or actual Shia religious beliefs.
3.In determining the Applicant’s claim to fear harm on the basis of an imputed anti-government political opinion due to his father’s political activities, the Tribunal failed to consider or misunderstood the Applicant’s evidence and/or made a finding that was irrational, illogical or unreasonable.
A failure to consider an applicant’s claims and their component integers may constitute a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42].
The Tribunal is not bound to refer to every item of evidence and a failure to refer to an item of evidence does not, of itself, necessarily mean the claim has not been considered. The onus rests with the party who contends that there has been a failure to so consider. A conclusion of failure to consider may be available where there is no reference to evidence in the administrative decision and the evidence is established as important and critical to the disposition of the claim: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [43]-[44].
In Applicant WAEE V Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 Ald 630 at [47] it was held that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issues has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests that has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to dealt with it in the published reasons may raise a strong inference that it has been overlooked.
An illogical or irrational finding may also constitute a jurisdictional error. However, mere disagreement with the decision-maker’s findings is not enough. The decision must be affected by extreme illogicality or irrationality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 610 at [131]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].
The merits of the Applicant’s substantive application were not, on my view, reasonably arguable for the following reasons.
First ground
The first ground sought to rely on an alleged failure to deal with the Applicant’s claim that he would not be able to access essential services such as medical treatment on account of not holding any Iraqi identity documents.
In the Applicant’s submissions of 14 November 2019, it was squarely put to the Tribunal that the Applicant claimed, in summary and relevantly (among other specific claims), a risk of serious harm if returned to Iraq on account of his membership of a particular social group of persons with a mental illness and/or cognitive impairment and his membership of a particular social group of persons without Iraqi identity documents. The claim was articulated in more detail at paragraphs 3 and 4 of those submissions as follows:
3. [the Applicant] does not hold Iraqi identity documents which means he will be unable to obtain a Civil Status ID (CSID) care in Iraq which is essential to accessing services such as financial assistance, employment, housing and medical treatment.
4. Without access to these basic services, [the Applicant]’s capacity to subsist in Iraq will be severely threatened. Without access to medical treatment for his mental or physical health conditions, his health will deteriorate and his psychotic symptoms will increase. In our submission, given the stigma attached to mental health conditions in Iraq, [the Applicant]’s symptoms which include psychotic delusions will place him at risk of persecution.
The Reasons record that, at the Tribunal hearing (on 18 November 2019), the Applicant was asked about what medical conditions he had that could not be treated in Iraq and in response he claimed that they could not treat his mental health and there were no medications for his heart condition, there was no proper treatment and no mental health hospital there: Reasons at [45].
Relevant to this and the other grounds, in commencing its consideration of the claims and evidence, the Tribunal properly acknowledged that undue weight ought not be placed on a confusion or omission to conclude that a person was not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation. Further, that the Applicant claimed to suffer from memory loss and presented a psychiatrist’s report which noted impaired memory but was given little weight as it was based on events related by the Applicant that were found to be completely fabricated. These were plainly considerations the Tribunal weighed in making overarching findings that the Applicant’s evidence regarding his claims lacked credibility and was not a reliable, credible or truthful witness: at [54] to [57] of the Reasons.
Of particular contextual relevance to consideration of the first ground, the Tribunal did not accept that the Applicant was “stateless” as claimed: in introducing the claim at [2] and in commencing the consideration at [52] of the Reasons.
The Reasons disclose that the Tribunal engaged with the Applicant’s alleged inability to access medical requirements in relation to each of his claimed medical conditions, at [73] to [84]. There is no express reference to the inability to access medical treatment for his mental or physical health conditions by reason of the claim to hold no Iraqi identity documents or a CSID on the face of the Reasons. However, the Tribunal rejected each of the claimed conditions or otherwise found that he would be able to access appropriate treatment or medication in relation to them. Most pertinently, the Tribunal made findings including that:
(a)The Applicant is and always has been an Iraqi citizen so would therefore have access to the Iraqi public health system as a result: at [73].
(b)Whilst noting the Applicant’s propensity to fabricate evidence regarding his life experience to medical staff and the associated difficulty in placing much weight on his medical prognosis, the Tribunal was satisfied on the evidence that was before it that the Applicant is not psychotic or schizophrenic nor does he suffer from PTSD. Further, that the Iraqi mental health system would be able to service whatever mental health support requirements that the Applicant may require for his depressive illness: at [80].
(c)Noting there was no evidence to support this claim, the Tribunal did not accept that the Applicant would be unable to access appropriate medication for his heart condition in Iraq. In doing so, the Tribunal may be understood to have accepted that the Applicant does however have a heart condition: at [82].
(d)The Applicant is a native fluent speaker of Arabic, is an Iraqi citizen and has family member(s) there which means that he has the ability to access the health system (as well as a familial support system). And, by reference to country information accepting that the standard of the Iraqi health system was not the same as in Australia, the Applicant would be able to access the normal medical system to deal with his heart complaint: [at 84].
As highlighted by the above summary, the Tribunal comprehensively dealt with the Applicant’s claim to be unable to access treatment and medication necessary to deal with his claimed medical conditions by addressing each claimed condition. To the extent the Tribunal did not accept the fact or existence of a particular claimed medical condition, that was a rejection of a fundamental factual premise which did not warrant further engagement with the contention. To the extent that the Tribunal accepted that the Applicant had a heart condition or may have required mental health support, it considered that the Applicant is an Iraqi citizen (or put another way, is not “stateless”) and therefore considered the necessary medication and support was available which is a finding of greater generality and I find sufficient to demonstrate consideration of the claim. In making those findings, the Tribunal had regard to relevant country information and otherwise considered that the Applicant’s contentions to the contrary could not be accepted in the absence of evidence in support.
Were this conclusion not available, I would in any event be prepared to accept that the failure to consider this specific integer of the claim were immaterial in the context of the Tribunal’s findings as outlined above.
Second ground
The second ground sought to allege that the Tribunal failed to consider the Applicant’s claim to fear persecution on account of his imputed or actual Shia religious beliefs.
In the Applicant’s submissions of 14 November 2019, the Applicant’s claims to fear serious harm on return to Iraq on account of the Applicant’s Catholic religion and his imputed Shia Muslim religion were squarely put before the Tribunal. In elaborating on these claims, the submissions put the position as follows:
..irrespective of the delegate’s finding as to [the Applicant]’s religious identity, he is at risk of persecution on the basis of religion in Iraq. It is either the case that he is Catholic and is at risk of persecution on that basis. Or he is Shia but, perhaps as a result of his serious mental health conditions, considers he is Catholic and will continue to hold himself out as such. In our view, [the Applicant]’s inability to present a clear account of his religious background and his continued references to himself as ‘Chaldanean’ make him susceptible to persecution from Sunni, Shia and Catholic religious groups in Iraq.
The Tribunal found that the Applicant is, and always has been, a Shia: Reasons at [66]. In so finding, the Tribunal rejected the Applicant’s claim to fear serious harm on account of Catholic religion or Christianity and noted inconsistencies in his evidence in this respect: at [65]-[66].
There is no express reference to or consideration of the Applicant’s claim to fear harm on account of his actual or imputed status as a Shia Muslim.
In this respect, the Court was taken to the DFAT country information that was before the Tribunal (and which it expressly took into account, see Reasons at [8], and referenced in parts, for example at [64]). The DFAT country information established that anti-Shia violence had reduced in 2018 following the defeat of ISIL. Notwithstanding that the country information concluded some isolated incidents of violence can occur in Shia dominated areas of Iraq as claimed by ISIL, and as between opposing Shia militias or intra-Shia in certain circumstances and a moderate risk of violence during Shia festivals, the country information also concluded that Shias do not face official discrimination and do not face societal discrimination in Shia areas.
When the country information that was before the Tribunal is considered against the context of the Applicant’s own claim that he does not consistently present or practice as Shia and rather considers he is and will continue to hold himself out as Catholic, I conclude that the Tribunal’s failure in this respect was entirely immaterial.
Third ground
The third ground alleged that the Tribunal failed to consider or misunderstood the Applicant’s evidence regarding his claim to fear harm on the basis of an imputed anti-government political opinion on account of his father’s political activities. And, or in the alternative, that its finding in this respect was irrational, illogical or unreasonable.
The Applicant claimed in his original entry interview as part of his refugee application (dated 15 November 1995) that he was arrested because his father was executed for political involvement. Also in those materials, the Applicant recorded that his father was deceased and his mother was alive and still living in Iraq.
The Tribunal’s Reasons record that, at the hearing before the Tribunal (on 18 November 2019), the Applicant elaborated on this claim. He was recorded there as having said that:
(a)He was arrested at school in around 1989 for a few days and was tortured because they wanted to know what details his father had left him. The Tribunal noted that the claim was that the Applicant’s father was executed in 1974, and asked the Applicant why the authorities would still have been interested some 15 years later to which he claimed that the authorities may have wondered whether his father left him any information or told him some information but he told them that his father had not told him anything: Reasons at [18].
(b)In response to a question about why he would be targeted by the then present government on the basis that his father was executed for opposing the Saddam Hussein regime, he claimed that it was happening to a lot of people not just him and the authorities might think he may be against the present regime as well. Also, that he thought the authorities may believe that he was sent from Australia to agitate against them and would not believe he had been returned for some crimes in Australia and would think he wanted to start a movement against them: Reasons at [36].
After the Tribunal hearing (on 13 December 2019), the Tribunal invited the Applicant to comment on or respond to information that it considered would, subject to the Applicant’s response, be a reason or part of a reason for affirming the delegate’s decision to refuse the protection visa. The particulars of that invitation to comment were put to the Applicant as follows:
You advised the Tribunal during the hearing that your father was executed in 1974, and previously that he and your mother were executed a few years after you were born. yet in your 1995 refugee application you claimed that your father was imprisoned in 1976 and no mention was made of him being executed. The Tribunal is concerned that this inconsistency may mean that you have falsely claimed that he was executed and may well have died of natural causes.
The Applicant via his then legal representative (on 20 December 2019) provided a written response to the Tribunal’s invitation. By that response, the Applicant maintained that his father was executed in 1974 and acknowledged this was not mentioned in the 1995 refugee application but was not a question specifically posed as to elicit such information. Further, that the date in the application was 1975 not 1976 and accepting that this is an inconsistency still maintained that the Applicant was very young when his father was executed and this was a factor that warranted some leniency in the Tribunal’s assessment of whether adverse inferences were to be drawn from the inconsistency. By that response, the Applicant emphasised the previously submitted health records which contained multiple references to the Applicant’s parents having been executed, including in entries which dated back to May 2014.
The Tribunal’s consideration of the Applicant’s claim to fear harm on return to Iraq on account of his family political profile appears at [67] to [72] of the Reasons. There, the Tribunal did not accept that the Applicant’s mother and father were executed for political reasons or that the Iraqi government may think the Applicant would agitate against the present regime (among other evidence that was not accepted but is not relevant to this ground). The Tribunal detailed its reasons for having reached this conclusion by reference to a number of identified inconsistencies in the Applicant’s account given during his 1996 application (presumed to be a reference to the 1995 refugee application) and that given in 2019 in support of his protection visa application. The identified inconsistencies included his account of his parents as well as in relation to his siblings (differing accounts are detailed above).
The Tribunal ultimately preferred and accepted the account the Applicant had given of his family composition in his 1995 refugee application. The Tribunal reasoned it preferred that account because the various stories he had given made the truth hard to discern.
The Tribunal expressly accepted that the Applicant’s father was deceased but not that he was executed because the claim of execution relied solely on the Applicant’s oral evidence which the Tribunal had found lacked credibility. The Applicant’s criticism of the use of the term “solely” is unwarranted to the extent that there was no evidence (given in relation to either application) other than the Applicant’s account to support a finding that his father was executed.
The Tribunal properly characterised the identified inconsistencies at [68] to [69] as such and was entitled to find them relevant to its consideration of the Applicant’s claim to fear harm on return on account of the political profile or opinions of his family members. Having rejected the Applicant’s more recent claim that his father was executed (which he said was for political reasons), the Tribunal had made more general findings relevant to this claim and resolved a contention on which it was based. There was no need for it to go further in this respect.
There is no specific reference in the Tribunal’s Reasons to the Applicant’s response to the invitation to comment given on 20 December 2019. In my view, such reference was not required because the Tribunal preferred the Applicant’s more contemporaneous account of his family composition given in his 1995 refugee application for reasons that did not include those particularised in the invitation to comment. The Tribunal had also made adverse findings as to the Applicant’s credit overall and, in doing so, had paid proper regard to the Applicant’s claimed memory loss and the effluxion of time which are explanations the Applicant sought to give for the inconsistency in his 20 December 2019 response. Accordingly, any failure to expressly reference or failure to consider that response was immaterial to the outcome.
The threshold for establishing illogicality or irrationality on the part of an administrative decision maker is a high hurdle for an applicant. That reasonable minds may differ is beside the point. In its Reasons, the Tribunal gave logical and rational reasons for its findings in this respect and it was entitled to come to the conclusion that it did.
Conclusions as to extension of time application
The application in this case being made 1,162 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application for an extension of time will be refused with costs in the scale amount of $8,371.30.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 6 December 2023
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