BAT15 v Minister for Immigration
[2019] FCCA 2789
•3 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAT15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2789 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file application for judicial review – consideration of factors. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Federal Circuit Court Rules (Cth), r.44.05 Migration Act 1958 (Cth), ss.65, 476, 477 |
| Cases cited: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1983) 47 ALR 517; (1984) 7 ALD 315 Kaur v Minister for Immigration & Border Protection [2015] FCA 1 |
| Applicant: | BAT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 256 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 16 May and 14 December 2016 |
| Date of Last Submission: | 28 February 2017 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 3 October 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| For the Applicant: | In person (16 May 2016) and Mr R Lindsay (pro bono) (14 December 2016) |
| Solicitors for the Applicant: | I Law Barristers and Solicitors |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 256 of 2015
| BAT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant lodged an application for an extension of time (“Extension of Time Application”) under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file an application for judicial review (“Proposed Judicial Review Application”) pursuant to s.476 of the Migration Act of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 22 April 2015 (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate dated 10 December 2013 (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Extension of Time Application and the Proposed Judicial Review Application filed on 16 June 2015, and the Amended Proposed Judicial Review Application filed by leave on 8 September 2016 and the Further Amended Proposed Judicial Review Application filed by leave on 31 January 2017;
b)the affidavits filed on behalf of the applicant: on 16 June 2015 and 8 September 2016 by the applicant (“Applicant’s 2016 Affidavit”), and on 8 September 2016 by Sina Ezzat Manesh (“Manesh Affidavit”), a freelance translator, annexing transcripts of the Tribunal hearing (“Tribunal Transcript”), the Delegates interview and what is described as Part 2 of the applicant’s entry interview (“Entry Interview Transcript”);
c)outlines of submissions filed by the applicant on 8 September 2016 and 31 January 2017, and by the Minister on 22 April and 23 November 2016 and 28 February 2017; and
d)the Court Book (“CB”), in which appears the Tribunal Decision dated 22 April 2015: CB 221-231.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background to the matter (largely taken from a chronology filed by the applicant) is as follows:
a)the applicant was born on 5 December 1983, and is a citizen of Iran: CB 9, 67 and 70;
b)from 1990 to 2004 the applicant attended school: CB 86;
c)in approximately 1995 the applicant was raped by four Basij: CB 17 and 61-62;
d)on 13 June 2002 the applicant was issued with an Industrial electrician certificate: CB 67;
e)in 2005-2006 the applicant completed his military service: Tribunal Transcript page 2;
f)in June 2009 elections were held: CB 62;
g)on 10 June 2009 demonstrations were held following disputed election: Tribunal Transcript page 5 line 143;
h)in late 2009 or early 2010 or September 2009 the applicant rented a house because of harassment: Delegate’s Transcript, page 3, line 131, Annexure HH6;
i)in September 2010 the applicant first received phone calls and SMS from Monireh: Delegate’s Decision, page 3, line 140;
j)in early March 2011 the applicant saw a video clip, and two to three weeks later he was taken by the Basij and held in Evin Prison, with two others for four days: Tribunal Transcript page 9, line 251, Entry Interview, page 3, Delegate’s Transcript page 11, line 559; CB 62, Delegate’s Transcript page 12, line 631, Tribunal Transcript page 8, line 229;
k)in early May 2012 the Monireh relationship was discovered by the Basij and the applicant fled Iran: Delegate’s Decision, page 4, line 195;
l)6-7 days later, in May 2012, the applicant fled Iran: Tribunal Transcript 4 line 101;
m)the applicant arrived in Australia as an unauthorised maritime arrival on 18 July 2012: CB 43;
n)on 19 July 2012 the applicant participated in a Biodata interview: CB 1;
o)on 8 August 2012 the applicant participated in an entry interview: CB 7-8, 12 and 17-18;
p)on 2 January 2013 the applicant completed a Protection Visa Application and a Statutory Declaration: CB 41-65 and 95-106;
q)on 4 January 2013 the applicant made the Protection Visa Application: CB 27-60;
r)on 21 October 2013 the applicant was interviewed by the Delegate: CB 115;
s)on 10 December 2013 the Delegate refused to grant the applicant the Protection Visa: CB 118-138;
t)on 10 December 2013 the applicant was notified of refusal by the Delegate: CB 119;
u)on 17 December 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 139-145;
v)on 12 March 2014 the applicant’s solicitor’s (BMA Lawyers) made lengthy written submissions to the Tribunal: CB 151-193;
w)on 6 January 2015 the applicant was notified of the Tribunal Hearing date, being 20 February 2015, and the Tribunal invited the applicant to the Tribunal hearing to give evidence and present arguments: CB 194-198;
x)on 6 February 2015 BMA Lawyers requested a video link because the Tribunal was in Melbourne and the applicant in Perth: CB 199;
y)on 20 February 2015 the Tribunal wrote to the applicant notifying him that the Tribunal hearing was being relisted to 1 April 2015 by video link: CB 204;
z)on 1 April 2015 the Tribunal Hearing was held, and the applicant was represented at the Tribunal Hearing by his registered migration agent, and was assisted by an interpreter: CB 222 at [6] and [7]: CB 213;
aa)on 22 April 2015 Tribunal Decision affirmed the Delegate’s Decision: CB 221-231; and
bb)on 16 June 2015 the applicant filed the Extension of Time Application and the Proposed Judicial Review Application.
Extension of Time Application
Under the Extension of Time Application the applicant seeks an order that the time for making the application be extended pursuant to s.477 of the Migration Act. In order for the application for judicial review to have been filed within 35 days of the date of the Tribunal Decision as required by s.477(1) of the Migration Act, it was required to be filed by 27 May 2015. In this case, the application was filed on 16 June 2015 and was therefore lodged 20 days outside of the statutory time limit.
The application is incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act. An extension of time may, by order, be granted if:
a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court considers it necessary, in the interests of the administration of justice, to make the order.
The applicant relies on the following grounds in support of his application to extend time:
Hi. I have had no one to help me, I moved from Melbourne C. Pert, I had no money & no mood & I did not know where is even Court I been waiting for government help
(Copied from the original without amendment).
The factors the Court takes into account when determining this are well established, and can be summarised as follows:
a)the extent of and explanation for the delay;
b)any prejudice that may be suffered; and
c)the merits of the Proposed Judicial Review Application.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”)).
The Applicant’s 2016 Affidavit contains material in support of his application for an extension of time at [1]-[14].
The applicant contends that:
a)he had no one to assist him in understanding and appealing the Tribunal decision; and
b)he could not afford legal assistance; and
c)his material was not, at first, accepted for filing by the Court.
The Minister contends that the grant of an extension of time is not in the interests of the administration of justice, for the following reasons:
a)there is no adequate explanation before the Court for the applicant's delay in commencing proceedings. The fact that an applicant is unrepresented does not justify an extension of time being granted: SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 at [9] per Katzmann J, and nor does the applicant outline the steps he took, if any, to obtain legal representation. It is noted that an applicant does not require legal representation to file the application, as this applicant has ultimately done;
b)the length of the delay, being 20 days, is not insignificant; and
c)the applicant's substantive application enjoys no reasonable prospects of success: MZABP v Minister for Immigration & Border Protection & Ors [2015] FCA 1391; (2015) 242 FCR 585;
Extent of and explanation for the delay
The applicant has failed to provide any reasons for the delay or an explanation as to why the extension of time should be granted in a supporting affidavit as required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
The Proposed Judicial Review Application was filed 20 days outside of the statutory time limit. While the Court does not consider this excessive, it is not insignificant. It should not be overlooked that a statutory limitation period represents the legislature’s judgment as to how the welfare of society is best served by specifying a particular period in which causes of action should be litigated: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1, CLR at 553 per McHugh J. While acknowledging the importance of the finality of administrative decisions, the Court does not consider the delay of 20 days weighs heavily against granting an extension of time.
The applicant’s failure to make an application for judicial review to this Court earlier is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, the Extension of Time Application proceeds on a false premise which is again inconsistent with previous authority of the High Court, the Federal Court and this Court.
In Marks at [17] per McHugh J the High Court observed as follows:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that there is no right to legal representation in migration judicial review proceedings in this Court.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J.
The Court notes that the applicant, is non-English speaking and some regard ought to be had to that fact, at least where there is not a gross or excessive delay: MZZIV at [1] and [5] per Mortimer J; ADN15 at [29]-[30] per Charlesworth J
Having regard to such evidence as there in in relation to the explanation for the delay, the Court considers that the explanation for the delay weighs neither in favour nor against the grant of an extension of time.
Prejudice
It is conceded that the Minister would suffer no prejudice if the extension of time was allowed, however, the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion sought by the applicant: Hunter Valley Developments; FCR at 349 per Wilcox J. The finality of administrative decision-making also requires some consideration, particularly where s.477(1) of the Migration Act endows a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation: Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Ex Parte Marks”) at [17] per McHugh J.
In the circumstances, the issue of prejudice, is a factor which is neutral in determining whether an extension of time should be granted.
Merits of the Proposed Judicial Review Application for the purposes of the Extension of Time Application
When determining the merits of the Proposed Judicial Review Application the Court must bear in mind that on judicial review the consideration of the Tribunal Decision is restricted to determining if the Tribunal has fallen into jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225.
When determining, for the purposes of the Extension of Time Application, whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, the applicant need not positively establish that the application will succeed: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J (from which an appeal was dismissed; SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158). However the grounds must have at least a reasonable prospect of success as it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success, the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner and without the full consideration of all the arguments which would be necessary upon a consideration of the merits of each of the grounds of review. The issue is not whether the applicants would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveal that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their merit: SZTES at [48] Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J.
Having considered the merits of the Proposed Judicial Review Application the purposes of the Extension of Time Application the Court, having examined the grounds in the manner set out in the preceding paragraph, has come to the view that the grounds have no, or no reasonable, prospect of success because:
a)in respect of grounds 1 and 2 there was no factual error as alleged, and even if there was it was a mere factual error and did not constitute jurisdictional error;
b)in relation to grounds 3 and 6 these grounds both seek impermissible merits review, and in addition the finding in relation to ground 6 was not illogical or irrational;
c)in relation to grounds 4 and 5 the Tribunal was correct to find that there were inconsistencies in the applicant’s account (compared to that given to the Delegate), and even if there was an error it was an error of fact and not a jurisdictional error; and
d)there was no denial in procedural fairness in that the applicant had put to him the various issues with respect to his credibility, claims and evidence, and the Tribunal took these into account in making the Tribunal Decision. It follows that because there is no, or no reasonable prospect of success in relation to the merits of the grounds of the Proposed Judicial Review Application, that the Extension of Time Application ought not be granted: MZZIV at [6] per Mortimer J.
The Court notes that, in any event, because the grounds were fully argued by the parties at hearing, the Court has go on below to consider the merits of the Proposed Judicial Review Application in full, and found that none of the grounds are made out on a full examination of their merits.
Consideration of Proposed Judicial Review Application
Applicant’s claims
In a statutory declaration submitted with his Protection Visa application: CB 61-65, the applicant claimed to fear harm from the authorities, the Basij and Sepah, if he returned to Iran because he had an affair with a married woman and was now subject to the death penalty: CB 64. The applicant further claimed that:
a)when he was around 12 years old he was raped by Basij officers and when the pro Green Movement in Iran started he attended the demonstrations to vent his hatred of them, and was identified at the demonstrations, and in early 2009 started being harassed by the Basij: CB 62;
b)in 2010 he started receiving telephone calls from a woman (“Woman A”) whom he befriended. He did not know she was married: CB 62;
c)he was shown a video of (former President) Rafsanjani's daughter and Saeed Tajik, a Basij leader, who was insulting her. In March 2011 the Basij came and took the applicant (and his friend (“Friend”)) from his shop, he was blindfolded and detained for four days at Evan Prison. He was threatened and questioned about how he knew a person, who was his uncle, the Friend and Saeed Tajik and why he distributed the video: CB 62-63;
d)following his release from detention he was served with a summons to report to a Sepah base every week. After a few weeks of reporting he was no longer required to report: CB 63; and
e)one day he was kissing and cuddling Woman A in a car parked near a motorway. Officers in a car pulled up beside them, ordered them out of the vehicle and shouted at them. When Woman A showed the officers documents relating to ownership of the car, he realised she was married to a Basij officer and the car was his. The applicant then ran across the motorway and hid at his brother's house until he left Iran. He was terrified because if he was caught with a married woman the penalty is death: CB 63-64.
In submissions made to the Tribunal on the applicant's behalf, the applicant advanced further claims that he was a member of the particular social groups of 'returnee from a Western country', 'failed asylum seeker' and 'persons who have committed adultery against Iran's Sharia law and Islamic rules': CB 151-193.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)did not accept that the applicant had an adulterous relationship with Woman A, or that Woman A was married to a Sepah or Basij officer, because of the inconsistencies in the applicant's evidence with respect to the timing, duration and course of his relationship with Woman A as well as the circumstances of their claimed arrest. It also did not accept that the applicant was arrested having sex with Woman A in a car or that the arresting officer recognised Woman A as a person married to a Sepah or Basij officer: CB 225 at [19];
b)given this finding, it did not accept that the applicant will be targeted by Woman A or other members of the Sepah or Basij, or will be charged or convicted or otherwise punished for having sex outside of marriage or for being in an adulterous relationship: CB 225 at [20];
c)further, did not accept that the applicant has an actual or imputed political opinion against the Iranian regime as a result of his relationship with Woman A or that he will be perceived to be a member of the particular social group of 'persons who have committed adultery against Iran's Sharia law and Islamic rules': CB 225 at [22];
d)did not accept that the applicant was detained for viewing the video of Saeed Tajik, relying on country information that the video was widely circulated and inconsistencies in the applicant's evidence as to the events leading up to being detained in the Evan Prison and the circumstances of his detention: CB 226 at [24]-[26]. It further did not accept that he has an actual or imputed political opinion against the Iranian regime for this reason: CB 226 at [27];
e)did not accept that the applicant regularly attended Green Movement protests after the 2009 presidential election or that the Basij had seen him at the protests and harassed him, causing his mother to move the family to another part of Tehran for a year. This claim made at the hearing was inconsistent with his written claims and country information;
f)also did not accept that the applicant had an actual or imputed political opinion against the Iranian regime for this reason: CB 227 at [29]-[30];
g)accepted that the applicant may have been sexually assaulted as a child by the Basij, however it did not accept that the past assault was predictive of future harm: CB 228 at [35];
h)accepted that the applicant may be identified by Iranian authorities as a person who unsuccessfully sought asylum in a western country if he returns to Iran: CB 228 at [36]. However, relying on country information, it did not accept that he will be subjected to serious harm by the authorities on the basis of his profile as a person who has unsuccessfully sought asylum in Australia: CB 229 at [39];
i)relying on its earlier findings, it did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, that there is a real risk he will suffer significant harm: CB 229 at [44]; and
j)accordingly, found that the applicant did not satisfy the criteria in s.36(2)(a) or (aa) of the Migration Act and affirmed the Delegate’s Decision not to grant the applicant the Protection Visa. CB 230 at [46]-[49].
Proposed Judicial Review Application
Grounds of review
On 21 July 2016 the Court made orders that by 8 September 2016 the applicant file and serve any amended Proposed Judicial Review Application and affidavits to be relied upon, and consequential orders were made for the Minister to respond, and for the filing of written submissions.
On 8 September 2016 the applicant filed amended grounds of review, which were lengthy and not in the usual form.
On 14 December 2016 the Court made orders in the following terms:
1. The applicant file and serve any:
a. further amended grounds of review; and
b. further outline of submissions,
by 31 January 2017.
2. The respondent file and serve a further outline of submissions in reply by 28 February 2017.
3. That the further outline of submissions in orders 1 and 2 be restricted to no more than four pages.
4. There be liberty to either the applicant or the first respondent with respect to a further oral hearing in relation to further grounds of review filed by the applicant.
5. Costs reserved.
Timing, duration and cause of relationship between applicant & Monireh
1.1 The Refugee Review Tribunal member (the RRT Member) said that given inconsistencies as to the timing, the duration, and the cause of the claimed relationship, she did not accept the Applicant had an adulterous relationship with a woman called …[name deleted: hereafter “Woman A”] or that she was married to a Sepah or Basij officer, and therefore she does not accept that the Sepah or Basij will try to harm or kill him if he is returned to Iran (Reasons: paragraphs 19 & 20).
1.2 The RRT Member said that whilst the Applicant had told the Tribunal that "his relationship with …[Woman A] commenced about a year before he departed Iran in May 2012", in his "written statement" the Applicant claims that "he formed a relationship with a woman called …[Woman A] about 18 months after his family moved house in early 2009 (mid 2010) and that the relationship continued until shortly before his departure from Iran in May 2012" (Reasons: paragraph 14).
1.3 The Applicant said that he had initially received persistent and continuing calls from …[Woman A]. He told the RRT Member that …[Woman A] "called me and we went on a date and our friendship started from there" (SM1 page 3 line 70). In the written statement (Court Book 62) the Applicant did say it was about 18 months after his mother moved house in early 2009 (though he did also say it was following the elections which occurred in mid-2009 not "early 2009"); that the Applicant "started receiving telephone calls from …[Woman A]" (which would be the end of 2010). Therefore it could properly be sometime in 2011 when the Applicant would have "formed a relationship" with …[Woman A] (i.e. the relationship itself started). So too, the Applicant told the delegate it was only after she tried persistently to call him that "I started having friendship with her". (Whilst the Applicant did mention "early 2009" as the date his family was harassed and had to move house (Court Book 62) he told the delegate correctly the move as happening "mid or end of 1388" (late 2009 or early 2010)).
1.4 The Applicant's account was also consistent with what he told the Minister's delegate that he had first contact with …[Woman A] at the end of the Summer of the year 1389 (i.e. September 2010), and dating and a following physical relationship came later on. He said at the entry interview of 1 September 2012 that he started receiving telephone calls from …[Woman A] around end of Summer or "end of Autumn 1389" (i.e. early 2011).
1.5 The Tribunal was wrong in taking the time at which the Applicant had the initial contact by telephone as being the time the Applicant was saying the relationship occurred. His prior evidence was consistent with the relationship itself commencing, "roughly one year" before his departure from Iran in May 2012.
1.6 In misunderstanding and misconstruing the nature of the Applicant's claim to the Tribunal and basing its finding in part upon that misunderstanding the Tribunal thereby committed jurisdictional error.
Misconstruing and misstatement of evidence about relationship between applicant & …[Woman A]
2.1 In paragraphs 15 and 16 of the Reasons the RRT Member said it had difficulty in accepting the Applicant's account of the commencement of the relationship. The Applicant told the RRT that …[Woman A] noticed him as they lived in the same area and got his telephone number off his friends. Earlier evidence before the delegate records that he learnt she got the number off a mobile shop keeper who he knew (SM1 page 4 line 169 - 171); that …[Woman A] had tried to call him all the time and he did not answer; but he realised she wanted to be his friend and started having a friendship (SM3 page 1 lines 44 & 45). The Applicant's evidence to the delegate was that when …[Woman A] called she asked him to send a message about a birthday (SM2 page 1 line 40) not as recorded at paragraph 15 of the Reasons "I need to send you an SMS regarding the birthday").
2.2 The Applicant has been consistent as to how he was told …[Woman A] was able to contact him and, more generally, as to the timing and manner of the commencement of his relationship.
2.3 The RRT Member said the Applicant told her the Sepah officer approached the Applicant and …[Woman A] in the car, that the Sepah officer recognised …[Woman A] and asked if she was married to …[name deleted], and said that he had not previously suggested that the Sepah officer recognised …[Woman A] because he knew her husband (Reasons: paragraph 18).
2.4 At the hearing before the delegate the Applicant said that when the Basij approached the car "they asked for the car ID, that's the routine over there, they asked who does the car belong to then? She said, my husband. Because her husband was well known in the area as he had a shop and that he was a member of the Basij they recognised from the details (SM2 page 6 lines 289 - 292).... one of them asked …[Woman A], are you …[name deleted] wife? And they said, shame on you/ go to hell, and that is when I was sure she was married and escaped" (SM2 page 6 lines 305 - 307). He had also said in his entry interview that when the Basij approached she said the car belonged to her husband and that was when the Applicant realised she was married (SM3 page 3 lines 122 -123).
2.5 The Tribunal erred in stating in paragraph 18 that the Applicant's written claims did not reflect the account he gave to the RRT which account was that the Sepah officer recognised …[Woman A] and asked if she was married to another officer, …[name deleted]. In fact the Applicant told the RRT Member that the Basij asked for the car rego documents, which she supplied, and from that he became aware the car was not hers and that she had a husband (SM1 page 4 line 90). This was consistent with his account to the delegate. Further, the Tribunal failed to consider that since the penalties for adulterous relationships are so severe this would furnish a logical reason why …[Woman A] would not have previously disclosed to the Applicant that she was married and married to a Basij.
2.6 The RRT Member erred in relation to the findings made in paragraph 2.3 and 2.5 above and through misunderstanding and consequently misstating the nature of the evidence advanced by the Applicant in support of his claim committed jurisdictional error.
Erroneous findings that no adulterous relationship occurred
The Tribunal member did not accept that the Applicant had an adulterous relationship with a woman called …[Woman A] or that she was married to a Sepah or Basij officer who the Applicant contended was called …[name deleted].
3.2 The Applicant has the following evidence which shows the Tribunal was mistaken:
(a)A letter from …[Woman A] sent through …[Woman A] mother to the Applicant after his arrival in Australia;
(b)Citizenship documents for …[name deleted] showing that she is married to a man called …[name deleted] and for …[name deleted] showing that he is married to …[name deleted].
3.3 The Applicant told the Tribunal that if he has to return to Iran he has a well-founded fear of persecution because he had an adulterous relationship with a married woman, and, further, that he is at risk from the Sepah and Basij on account of …[Woman A] being married to one.
3.4 In light of the evidence advanced by the Applicant as well as the registration documents and …[Woman A] letter, it can be proved he had a relationship with …[Woman A], and that she is married to …[name deleted]. The Tribunal ought to have considered that the existence of such a relationship provided the Applicant with a well-founded fear of persecution arising from both the legal penalties and the social and political status of …[name deleted] as a Basij, and the likelihood of consequent retaliatory action.
3.5 In misunderstanding the evidence advanced in relation to the claim, drawing erroneous adverse inferences, and ignoring both the Applicant's contentions and country information, which showed that such a relationship exited and gave rise to a well-founded fear of persecution, the Tribunal committed jurisdictional error.
Ignoring, misconstruing, and misstating evidence in relation to the Evin Prison arrest
4.1 The Tribunal said the Applicant had been inconsistent at the RRT hearing in saying he and his business partner, …[name deleted, hereafter “Business Partner”], were driven straight to Evin Prison from his shop where he found the Basij had detained …[name deleted, hereafter “Mr M”] and his maternal uncle before them. In his written claim the Applicant had said the Basij came to his shop, blindfolded him and …[Business Partner], and took them to [Mr M’s] uncle's house where they arrested him as well, and all three were taken to Evin Prison (Reasons: paragraphs 23 and 24).
4.2 In fact at the RRT hearing the Applicant said he and Mehdi were arrested first and blindfolded and went straight to Evin Prison, though on the way they stopped at …[Mr M’s] uncle's house and arrested him taking all three to Evin. The Applicant did not tell the Tribunal that …[Mr M's] uncle was arrested before him and Mehdi. He said he became aware …[Mr M] himself was arrested before them as he could hear him in the hallway at the Evin Prison (SM1 page 8 lines 231 - 233).
4.3 In misstating the nature of the Applicant's claim and evidence, and in wrongly attributing to the Applicant inconsistency, there was a constructive denial of jurisdiction and thereby jurisdictional error.
5.1 At paragraph 24 of the RRT Reasons it was said that before the delegate the Applicant had said he was not harmed or mistreated at Evin Prison whereas he had told the Tribunal that he had been taken before a "judge" and hit around the head.
5.2 The Applicant did not say to the delegate that he was not harmed nor mistreated. He told the delegate "....I was not tortured but the way "the judge".... spoke with me and treated me was very harsh" (SM2 page 12 line 646 - 647) and when asked further by the delegate the Applicant said that the "judge" told him "threatening and saying I will make your life hell; I know what to do with you" (SM2 page 12 line 651). Further, he had mentioned the slapping and threatening both at his earlier entry interview at page 18.1 of the Court Book and in the statutory declaration at page 63 of the Court Book.
5.3 The Tribunal erred in finding there was inconsistency between the evidence given to the RRT and that given to the delegate which was consistent with the earlier evidence as referred to in paragraph 5.2. The Tribunal ignored and or misconstrued the previous evidence the Applicant had given and thereby committed jurisdictional error.
Misconstruing and ignoring relevant evidence relating to the Applicant's participation in demonstrations
The Tribunal Member said she did not accept:
(a)That the Applicant's mother moved the family to another part of Tehran for a year before the family returned to their home following harassment because of his participation in the Green Movement demonstrations; or
(b)That the Applicant took part in those demonstrations. (Reasons: paragraphs 29-35).
As to 6.1:
(a)The Tribunal Member said in his written claims and before the Tribunal the Applicant said his family moved in early 2009, but the presidential elections only occurred in June 2009, and the evidence was the demonstrations occurred after the elections. Further, the Applicants address history provided had no change of address.
As to:
(b)Having found that the Applicant was raped by the pro-government Basij as a child, it was illogical for Tribunal to find that the Applicant would not participate in the anti-government demonstrations attended by millions. Further, the Tribunal did not accept the Applicant's explanation that the Basij would not detain him because he could say he was at the demonstration by chance and walking past.
6.3 As to 6.2(a) the Applicant did explain to the delegate that the family address changed for one year when they rented and that it was "around mid or end of the year 1388 (August 2009 to January/March 2010)" (SM2 page 3 line 131). The Applicant's own address did not change throughout this period because he still retained it.
The Applicant told the RRT Member that he refers to the Persian calendar and does not know and gets confused by the Gregorian calendar and "I still don't know the months". He said the house move was in 1388 (SM1 page 7 line 190). The Applicant's evidence was translated as moving to another area in Tehran in 2009. The elections occurred in the middle of 2009 and the Applicant said the harassment compelled his family to move though he retained the …[location deleted] address. The Applicant had told the delegate that the move was in mid or end of 1388 (SM2 page 3 line 140), which is September to December 2009 which is after the elections in June 2009. The lease now obtained shows it is for one year from 24 August 2009.
6.4 As to paragraph 6.2(b) above the Tribunal ignored both the reasons why the Applicant would be minded to participate and the explanation the Applicant gave as to why he would not have been likely to be arrested. He explained to the Tribunal that the ones who got arrested were the ones caught up by the security police, but if the Applicant was on the fringe, the Basij would have difficulty in arresting persons like the Applicant because the people might attack them. Therefore they harassed the Applicant and his family instead.
6.5 In failing to consider the evidence given by the Applicant to the delegate which showed the family moved in late 2009 and not early 2009, and giving no credence and ignoring the Applicant's explanation as to how he became involved in the demonstrations the Tribunal committed jurisdictional error.
7.1(a) The delegate found that the Applicant was taken to Evin Prison and interrogated in relation to a video in 2011. Conversely, the Tribunal did not accept the Applicant was detained for viewing a video.
7.1(b) The delegate also found that the Applicant attended several demonstrations in Tehran during the 2009 elections. Conversely, the Tribunal did not accept that this was so.
7.1(c) The delegate referred to the Applicant’s evidence that he had been told that since his departure from Iran…[Woman A’s] husband attempted to kill her by burning down the house but the delegate did not say that he disbelieved that this occurred. Conversely, the Tribunal saw a contradiction between his written claim when he was on Christmas Island in which he said he heard that people who were looking for him and found ...[Woman A] was the wife of a Basij, in the Tribunal reasons it was said he had not previously suggested the Sepah officer recognised …[Woman A] because he knew her husband.
7.2 The Tribunal did not expressly put to the Applicant, either orally or in writing, for comment that it was an issue whether he was detained at Evin Prison. Nor was it put to him that it was an issue whether he attended the demonstrations in 2009. Nor was it put to him that his account on Christmas Island that he heard “that the people looking for him had found…[Woman A] was the wife of a Basij” needed to be explained to ascertain if it was reconcilable with what he said at the Tribunal hearing about the Sepah officer recognising…[Woman A] because he knew her husband.
7.3 The Tribunal erred in that it was incumbent upon the Tribunal to advise the Applicant the matters in [7.1] were in issue and to identify specifically what it perceived to be the inconsistencies or contradictions by reference to his previous evidence.
7.4 By reason of the matters in [7.1], [7.2] and [7.3] applying the principles in SZBEL v MIMIA [2006] HCA 63 and/or s.424A(1) of the Migration Act 1958 (Cth) the Tribunal committed jurisdictional error.
Affidavit evidence
For the purposes of consideration of the Judicial Review Application the Applicant:
a)relied on the Manesh Affidavit, to which there was no objection; and
b)sought to rely upon the Applicant’s 2016 Affidavit, in relation to which the Minister objected to [15]-[42] of that affidavit. Those paragraphs seek to take issue with factual findings of the Tribunal Decision, comment upon those factual findings, and submit new evidence which, notwithstanding the difficulties averted to by the Applicant in relation there to, was available prior to the Tribunal hearing, and ought to have been put to Tribunal and not this Court on judicial review. The Court will therefore read and admit it into evidence only [1]-[14] of the Applicant’s 2016 Affidavit, which are those parts going to the Extension of Time Application.
Grounds 1 and 2
In relation to grounds 1 and 2 the applicant submitted that:
a)the Tribunal misunderstood and misconstrued his evidence in relation to the timing, duration and cause of the relationship between the applicant and Woman A as well as his evidence about the relationship; and
b)the applicant claims that the Tribunal erred in finding that the applicant had given inconsistent evidence in relation to:
i)the timing of the relationship;
ii)the commencement of the relationship; and
iii)how the applicant came to know that Woman A was married and that her husband was in the Basij.
An error of fact is not a jurisdictional error or an error of law, and for present purposes no error of fact constitutes a jurisdictional error unless the error means that the Tribunal failed to consider claims made: Minister for Immigration v SZNPG [2010] FCAFC 51; [2010] 115 ALD 303 (“SZNPG”) at [28] per North and Lander JJ.
As to the timing of the relationship the Applicant’s direct evidence was that he first had contact with Woman A at the end of summer in the year 1389 (on the Persian calendar) July to August 2010: Manesh Affidavit, pages 14-15 and 30, and the submission now made by the Applicant that contact occurred in early 2011 requires that the Applicant’s direct evidence be disregarded. Thus, it was open to the Tribunal to find that the Applicant’s was inconsistent on the basis set out at CB 244 at [14].
In relation to the commencement of the relationship the Tribunal accurately recounted the Applicant’s evidence: CB 244 at [15]-[16], and had regard to the Applicant’s claims in relation to the alleged inconsistencies in the evidence, but remained concerned the inconsistent evidence had been provided, a finding which was open on the facts: see CB 17 and 62 and the Manesh Affidavit at pages 3, 14, 15 and 28. Essentially, what the Applicant seeks to have the Court do in relation to the timing of the commencement of the relationship is reinterpret the facts before the Tribunal in the Applicant’s favour. To do so would be to engage in an impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”),
In relation to the evidence concerning how the Applicant came to know that Woman A was married and that her husband was in the Basij there was an inconsistency between the Applicant’s written clams and what he told the Tribunal concerning what was occurring in the car between himself and Woman A at the time they were approached by the Sepah officer: CB 224-225 at [18], and the Applicant did not state that Woman A was recognised because vehicle registration documents mentioned her husband’s name. In the circumstances, the Tribunal neither misconstrued nor misstated the Applicant’s evidence concerning this issue.
In summary, the Tribunal has not made a factual error in relation to the timing, commencement or nature of the relationship as is asserted in grounds 1 and 2 of the Judicial Review Application. Even if it had, it has considered those claims, and the errors are merely factual and do not give rise to jurisdictional error: SZNPG at [28] per North and Lander JJ.
Ground 3
In relation to ground 3 the applicant contends that the Tribunal's finding that the applicant and Woman A were not in a relationship was mistaken. The applicant contends that the applicant’s evidence, namely, the registration documents and Woman A's letter, prove he had a relationship with Woman A, and that she is married to named Basij officer, and that the Tribunal ought to have considered that the existence of such relationship provided the applicant with a well-founded fear of persecution.
The clarification that the applicant seeks to provide in relation to his evidence was not the subject of any submission to the Tribunal nor were the documents concerned before the Tribunal. The applicant appears to submit that the Court should find jurisdictional error in the Tribunal Decision on the basis of corroborating evidence annexed to the Applicant’s 2016 Affidavit, but the Court has ruled that that evidence is inadmissible: see [34(b)] above.
It is not permissible for this Court (on an application directed to the question of whether or not the Tribunal fell into jurisdictional error) to use fresh evidence that was not before the Tribunal for the purpose of finding that the Tribunal misconstrued the evidence before it, or came to an incorrect conclusion: VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186 at [17]-[20] per Gray, Moore and Emmett JJ; WZATI v Minister for Immigration and Border Protection [2015] FCA 923 at [79] per Barker J.
Ground 3 constitutes no more than a plea for impermissible merits review and does not establish jurisdictional error in the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In circumstances where the Tribunal had rejected the premise upon which the applicant claimed to fear harm, it was unnecessary for the Tribunal to make findings as to the applicant's future risk of harm in regard to the claim: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ. It could not, therefore, be said that the Tribunal failed to constructively exercise its jurisdiction by failing to make a finding on this point.
Grounds 4 and 5
In grounds 4 and 5 the applicant contends that the Tribunal ignored, misunderstood or misstated the applicant's evidence in relation to:
a)who he had been taken to Evin prison with; and
b)whether he had been harmed or mistreated in Evin prison.
The Tribunal's recount of the evidence provided in the applicant's written statement was accurate: CB 62-63. The Tribunal Decision confirms that the Tribunal considered that certain aspects of the applicant's evidence with respect to the circumstances in which he was taken to Evin prison and whether he had been mistreated there had been inconsistent: CB 225-226 at [23]-[24].
The applicant's oral evidence to the Tribunal was that Mr M and the applicant had been taken directly to Evin prison and that Mr M’s uncle had been taken before them: Manesh Affidavit, page 8. This evidence was clearly inconsistent with the evidence in the applicant's written statement that indicated that the Basij came to the applicant's shop and blindfolded Mr M and the applicant before taking them to Mr M’s uncle’s maternal uncle's house where they arrested Mr M’s uncle as well; following which they were taken to Evin prison: CB 62. The applicant only provided further oral evidence to the Tribunal in relation to stopping at Mr M’s uncle’s uncle's house and his being arrest on the way to the prison when the inconsistency was raised with the applicant: Manesh Affidavit, page 10. The Tribunal Decision demonstrates that it had regard to that evidence: CB 226 at [24]. Accordingly, it cannot be maintained that the Tribunal ignored the applicant's evidence;
In relation to the applicant's treatment while in prison, the Tribunal referred to the Delegate’s Decision which indicated that the applicant had said at the interview that he was not harmed or mistreated while in Evin Prison: CB 226 at [24]. It further noted that, contrary to this, the applicant's evidence at the Tribunal hearing was that he was “taken before some kind of judge and hit around the head” CB 226 at [24]. The Tribunal's reference to the Delegate’s Decision recording that the applicant had not been harmed or mistreated in prison should be taken to be a reference to physical harm or mistreatment. In the Court’s view it was therefore open for the Tribunal to find that the applicant's evidence to the Tribunal was inconsistent with that given to the Delegate. Furthermore, although the applicant did not give direct evidence that the uncle had been detained before them any such error constituted no more than an error of fact and did not prevent the Tribunal from considering the applicant's claims: SZNPG at [28] per North and Lander JJ;
No jurisdictional error in the Tribunal is revealed by grounds 4 and 5 .
Ground 6
In relation to ground 6 the applicant contends that the Tribunal misconstrued and ignored his evidence in relation to:
a)the applicant’s participation in demonstrations; and the
b)the move of the applicant’s family to another part of Tehran.
The Tribunal accurately recounted the evidence given by the applicant in his written statement: CB 226 at [28]. The applicant did not, in that statement, claim that the moving of the house was after the elections.
The Tribunal Decision demonstrates that it also had regard to the applicant's evidence at the Tribunal hearing that the applicant:
a)regularly attended protests after the 2009 election: CB 227 at [29];
b)experienced harassment as a result of his attendance at such protests that caused his family to move: CB 227 at [29];
c)may have confused the months in the Gregorian calendar: CB 227 at [32]; and
d)could not be detained as he was on the periphery of the demonstrations: CB 227-228 at [34];
The applicant was also provided with the opportunity to respond to the Tribunal's concerns in circumstances where it was put to the applicant: Manesh Affidavit, page 7:
The protests hadn't started in early 2009 they didn't start until after the presidential election which took place in the middle of 2009. So it doesn't appear to me that your mothers moving the family to another area could have anything to do with your protest activities in the Green Movement and any harassment you might have suffered.
The Tribunal considered the applicant's evidence and found that the applicant and his family had not moved as claimed before the Delegate, or to other parts of Tehran, based on the inconsistencies between the evidence and the lack of reference to any such address in his address history contained in his Protection Visa application: CB 227 at [32].
It cannot therefore be maintained that the Tribunal ignored the applicant's evidence. The applicant's ground is a further request for this Court to review the merits of the Tribunal Decision based on the applicant's dissatisfaction with the Tribunal's findings: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The amendments to ground 6 further contend that it was illogical for the Tribunal to find that the Applicant would not participate in any government demonstrations having found that the Applicant had been raped by the pro-government Basij as a child. In circumstances where the Tribunal had found that the Applicant did not participate in Green Movement protests in 2009, and that the Applicant would not be imputed with a political opinion which was in government, and further that the Tribunal had concerns about the Applicant’s evidence: CB 226-228 at [28]-[34], and the finding that the Applicant would not participate in the anti-government demonstrations was made having considered the Applicant’s evidence as to why he said he did participate in such demonstrations: CB 226 at [28], if claimed that the finding made by the Tribunal was one that was open to it on the evidence. A differently constituted Tribunal may have made a different finding, or taken a different view of the evidence, but that is not the point: it was for this Tribunal to determine the merits on the facts having regard to its assessment of the facts and materials before the Tribunal (including its assessment of the Applicant’s credibility), and it is not for the Court to review those merits: Wu Shang Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. These were not circumstances in which the findings made by the Tribunal were so illogical, irrational or lacking a basis in findings or inferences supported by logical grounds such that no rational or logical or decision maker could arrive at the findings made by the Tribunal on the same evidence: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130]-[132] per Crennan and Bell JJ; SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [83] per Rares J.
In the above circumstances, ground 6 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 7
The Applicant contends that he was denied procedural by the Tribunal in so far as it failed to identify with particularity, and put to the Applicant, alleged inconsistencies or contradictions in the Applicant’s evidence.
Procedural fairness is in effect practical and the concern is to avoid practical injustice: Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ.
An exhaustive statement of the natural justice hearing rule is set out in s.422B of the Migration Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [56]-[58] per Hayne, Kiefel and Bell JJ.
The Court notes that:
a)section 424A(1) of the Migration Act requires the Tribunal to put clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review for comment; and
b)section 424A(3)(b) of the Migration Act provides that s.424A of the Migration Act does not apply to information where the applicant gave that information for the purposes of the application for review.
Any failure to comply with the terms in s.424A of the Migration Act may result in jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545 at [77] per McHugh J.
The Minister submitted that the inconsistencies, or “information”, identified by the Tribunal at CB 207 at [27] could be categorised as an exception to the concept of information under s.424A(3)(b) of the Migration Act. The High Court addressed what constitutes “information” for the purpose of s.424A of the Migration Act in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ as follows:
[18] Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
The Court notes that in Kaur v Minister for Immigration & Border Protection [2015] FCA 1 at [54] and [57]-[58] per Robertson J the Federal Court said that:
54. The Court is not concerned with good administration in itself nor simply with the merits of the decision. Whether or not findings were open to the Tribunal, the thrust of some of the submissions on behalf of the Minister, does not presently arise. Further, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [156] per Hayne, Crennan, Kiefel and Bell JJ.
57. As to the first applicant’s submission that the issues were not apparent, Alphaone and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J stand for the propositions that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”, the decision-maker “must also advise of any adverse conclusion which would not obviously be open on the known material” and “a decision-maker is not otherwise required to expose his or her thought processes or provisional views”.
58. It may be a matter of some difficulty to identify the level of abstraction, or particularity, at which the issues are to be identified: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [38]–[40]. Ultimately, in the present context, the matter is to be tested by reference to the fairness of the procedure: see SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; (2013) 140 ALD 11…
The Tribunal had doubts about the credibility of the claims made by the Applicant because of inconsistencies in the Applicant’s evidence, but there was no obligation on the Tribunal under s.424A of the Migration Act to put those inconsistencies or doubts to the Applicant, they not being “information” for the purposes of s.424A of the Migration Act: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. At hearing, the Tribunal put to the Applicant a number of inconsistencies in the material before the Tribunal: Manesh Affidavit at page 9, as well as its concerns about the Applicant’s claims concerning his relationship with Woman A, his detention at the Evin Prison, and the Applicant’s participation in the demonstrations: see Manesh Affidavit at pages 9-10 (as to how the Applicant came to know that Woman A’s husband was in the Basij), page 10 (in relation to the Applicant’s alleged detention in relation to the viewing of the video), and 6-7 (in relation to the Applicant’s participation in the protests).
In circumstances, the Tribunal put the Applicant on notice of determinative issues, particularly concerning the Applicant’s credibility, claims and evidence, and ask questions about those issues relevant to the decision ultimately made, as it was required to do: SZBEL at [33]-[35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In all the above circumstances, ground 7 does not establish jurisdictional error in the Tribunal Decision.
In follows from the above that even if the Court had agreed to extend time in which to file the Proposed Judicial Review Application, that application would not have succeeded as it does not establish jurisdictional error in the Tribunal Decision in relation to any of its 7 grounds.
Conclusion and orders
The Court has concluded that:
a)the Extension of Time Application should be dismissed; and
b)in any event, even if the Extension of Time Application had been successful, none of the 7 grounds of the Proposed Judicial Review Application establish jurisdictional error in the Tribunal Decision.
Where, as here, the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
The Court will also make an order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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