BDA16 v Minister for Immigration
[2018] FCCA 2370
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDA16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2370 |
| Catchwords: MIGRATION – Application for an extension of time within which to make a competent application to the Court – consideration of factors – considerable delay in making application – no reasonable explanation for the delay – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91N, 91P, 91Q, 424A, 424AA, 425, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 |
| First Applicant: | BDA16 |
| Second Applicant: | BDB16 |
| Third Applicant: | BDC16 |
| Fourth Applicant: | BDD16 |
| Fifth Applicant: | BPJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1181 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 February 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Mr J Hutton of Australian Government Solicitor |
ORDERS
The application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 12 May 2016, amended on 18 May 2016 and further amended on 11 August 2016, is refused.
The first and second applicants pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1181 of 2016
| BDA16 |
First Applicant
| BDB16 |
Second Applicant
| BDC16 |
Third Applicant
| BDD16 |
Fourth Applicant
| BJP16 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2016, amended on 18 May 2016 and further amended on 11 August 2016, seeking an extension of time within which to make a competent application to the Court pursuant to s.476, of the Act for review the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 19 August 2013, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is the following.
a)A bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The front page of the Tribunal’s decision record was tendered by the Minister and marked as “RE2” (this page had been excluded from the Court Book).
c)The affidavit of the second applicant, made on 30 January 2018 (no objections).
d)The affidavit of Mary Elinor Corkhill, Transcription Specialist, made on 11 August 2016, annexing a transcript (“T”) of the hearing before the Tribunal (no objections).
The application for an extension of time
The first and second applicants are husband and wife. The third, fourth and fifth applicants are their children (CB 5). All are Jordanian nationals (CB 17, CB 32, CB 39, CB 46, and CB 53). They arrived in Australia on 19 September 2011 as the holders of visitor visas.
The applicants applied for protection visas on 28 October 2011 (CB 1 to CB 134). The first applicant made claims to fear harm. The other applicants applied as members of the first applicant’s family unit.
The second applicant’s application was found to be invalid as she was a dual Iraqi/Jordanian citizen (pursuant to s.91N and s.91P of the Act) (CB 143 to CB 147). Nonetheless, the Minister exercised his power pursuant to s.91Q of the Act to allow the second applicant to make a protection visa application (CB 178).
The applicants were assisted by a registered migration agent in making their protection visa applications (CB 59). The delegate refused their applications on 26 July 2012 (CB 179 to CB 201). The applicants applied for review to the Tribunal on 1 August 2012 (CB 203 to CB 209). They were assisted by the same registered migration agent (CB 206). The applicants appointed a new representative on 3 October 2012 (CB 215 to CB 216). This representative was a migration agent and a solicitor.
The applicants were invited to attend a hearing before the Tribunal on 26 July 2013 (CB 217 to CB 219). The first and second applicants attended with their representative (CB 290 to CB 292). The Tribunal’s decision to affirm the delegate’s decision to refuse the applicants protection visas was made on 19 August 2013 (CB 309 to CB 323 and RE2).
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
At the hearing before the Court, the parties were represented by solicitors.
It is to be remembered that the exercise of the Court’s discretion in s.477(2) of the Act is not dependent simply on one factor. While an arguable case of legal error on the part of the Tribunal may provide a powerful, if not primary, element in exercising the discretion in an applicant’s favour, the other factors presented by the circumstances of each case cannot be ignored.
In the current case, the factors that emerge for consideration are the length of the delay, whether any reasonable or satisfactory explanation has been proffered for the delay, and whether the proposed substantive application has such merit as to argue for the extension of time in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The delay in this case is of great length. The application to the Court was made approximately 33 months out of time. Such a lengthy delay must be considered in the context of s.477(1) of the Act. The Australian Parliament has said a reasonable period for the making of applications pursuant to s.476 of the Act, is a period of 35 days. This statutory intention must be viewed in the context of the “finality of litigation”. I note again that this is not a case where the delay is simply a matter of days, or even weeks. It is nearly 3 years out of time.
It is the case, as the Minister submitted, that the “unwarrantable delay” of such length is a basis, of itself, on which the extension of time may be refused (Re Refugee Tribunal Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 62 ALD 285 at [56] – [57], SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 83 ALD 545 at [80], Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 at [30] and AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57]).
In the current case, the applicants have not provided a satisfactory explanation for such a lengthy delay.
The second applicant’s affidavit evidence was essentially that the applicants acted on legal advice provided to them on, or around, 23 August 2013, to pursue Ministerial intervention pursuant to s.417 of the Act, instead of making an application to this Court. They sought Ministerial intervention on 10 September 2013. They were notified that that request was unsuccessful on 31 March 2016. They then applied to this Court on 10 May 2016 (see the second applicant’s affidavit
at [3] – [8]).
The applicants therefore knew of the option of seeking judicial review of the Tribunal’s decision on, or about, 23 August 2013. That is, within the 35 day period provided for in s.477(1) of Act. Their decision not to pursue judicial review in this Court at that time, was informed by legal advice.
Pursuing Ministerial intervention may, in certain circumstances, be a satisfactory explanation for the delay (SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration & Anor [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at
[58] – [72] per Barnes FM (as she then was) and MZYII v Minister for Immigration & Anor [2011] FMCA 193 at [21] per Riley FM (as she then was)).
However, this case is not such a case. The applicants elected, with legal advice, to pursue Ministerial intervention, rather than pursue judicial review.
Before the Court, the applicants sought to transfer responsibility for the delay to the Minister, given that it took some time for the Ministerial intervention request to be concluded.
The second applicant’s evidence is that the request for Ministerial intervention was made on 10 September 2013 (the second applicant’s affidavit at [6]). The applicants received notification that this was unsuccessful on 31 March 2016 (the second applicant’s affidavit at [7]).
In this light, the applicants submitted that the Minister should take responsibility for the delay. The applicants referred to the following from Re Commonwealth; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Ex Parte Marks”) per McHugh J at [16] (see [4] of the applicants’ written submissions filed on 23 February 2018):
“The High Court in Re Commonwealth; Ex Parte Marks (2000) 177 ACR 491. McHugh J at [16] found:
‘unless some conduct of the respondent as public body or official has brought about the delay’ was relevant to the issue of delay.
In this case it was the First Respondent who delayed making a decision for 31 months which was the major cause of bringing this matter to this court.”
[Errors in original.]
There is nothing in the evidence before the Court to say that the delay in making the application to the Court was caused by the Minister’s conduct, or anyone acting on his behalf. Having made the request for Ministerial intervention, the applicants were still, at the same time, able to revisit their election and seek judicial review at an earlier time.
There is nothing in the evidence before the Court to say that there was any inducement or representation made by the Minister, or his officers, that may have misled the applicants as to their ability to apply for judicial review, or even an application to extend time pursuant to s.477(2) of the Act at an earlier time.
The second applicant’s evidence that her lawyers advised her that there was a “good chance” of success regarding the Ministerial intervention request, and that it was less expensive, was part of the advice which the applicants chose to accept (see the second applicant’s affidavit at [4]). It was not any conduct by the Minister or his officers that led to this state of affairs.
The applicants’ reference to Ex Parte Marks is misconceived and, it must be said, selective, in the circumstances presented. If anything, I respectfully understood the Court in that case to seek to emphasise the importance of not delaying any such application for judicial review once the relevant persons are notified, and have knowledge of, the administrative decision.
That, in my respectful view, is from with the context in which the applicants’ selective reference was taken as follows (Ex Parte Marks at [16] and see [23] of the Minister’s second written submissions filed on 9 March 2018):
“Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay…”
Before the Court, the applicants also referred to SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [102]:
“It should again be emphasised that the outcome of this application should not be taken as condoning, let alone encouraging, the Federal Circuit Court to hear and determine extension applications in the manner it did in this matter. Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discretely from the issues that arise in relation to the substantive application. That will avoid the sort of confusion that arose in this matter. Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis. That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application.”
It is difficult to see how this assists the applicants in the current circumstances. In the current case, taking into account that the relevant factors to be considered in relation to whether it is in the interests of the administration of justice to extend time are non-exhaustive, the “only issue” is not limited to the merits of the substantive application.
The applicants also relied on MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 per Mortimer J at [13] and [14]:
“[13] In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious there may be substantial injustice to a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings, including exposure to detention and removal. When, as here, the application is for a protection visa and the claim made is based on a fear of persecution, in my opinion especially careful consideration should be given to the question of an extension of time, because the claimed consequences for an applicant on refoulement to the country against which the claim for protection is made are of a fundamentally serious kind. That is not to suggest a different standard is applied: rather, it is to acknowledge the nature of the decision for which judicial review was sought and the possible consequences for an applicant if, indeed, that decision was not made in accordance with Australian law and in a procedurally fair manner.
[14] The length of the delay and any explanation for it is also a significant factor but the weight of these factors in any given case is likely to vary considerably.”
[Emphasis added.]
I do not respectfully understand the Court there to have said that a delay of nearly three years can be ignored, which it must be said, was the thrust of the applicants’ submissions in the current case. Rather, I respectfully understood the Court to note there that, relevantly, the length of delay and any explanation for it, is a “significant factor”.
The caution directed to this Court is not to ignore, in the appropriate weighing of the relevant factors, the great importance of giving careful consideration to the question of the extension of time, given the consequences for a person who has applied for a protection visa. That is the approach taken in the current case.
Further, in the current case, the applicants did not seek to explain the further delay from the time they were notified of the outcome of their request for Ministerial intervention (31 March 2016) to the filing of their application in this Court (12 May 2016). The second applicant’s evidence is that the applicants were notified of the outcome of the request for Ministerial intervention on 31 March 2016 (see the second applicant’s affidavit at [7]). This was also in circumstances where the applicants already knew, because of legal advice, of the possibility of seeking judicial review.
However, on the second applicant’s evidence, the applicants did not seek further legal advice to initiate such proceedings until 10 May 2016 (see the second applicant’s affidavit at [8]). That is a further delay of five and a half weeks, which went unexplained.
In all, the delay in this case is of great length. It has also not been satisfactorily explained.
The proposed substantive application
The grounds of the proposed further amended substantive application do not contain such merit as to argue for the extension of time. The grounds are in the following terms:
“1. The Tribunal failed to carry out its statutory duty
Particulars
a. The Tribunal relied upon the interview which the First Applicant had with the Department of Immigration & Citizenship (as it then was) and did not:
(i) give the Applicant clear particulars of the information;
(ii) explain why it was relevant; and
(iii) give the Applicant an opportunity to comment upon that information
b. The Tribunal misapplied the provisions of the Migration Act 1958 s.36 (3)(5) and (5A) in respect of the Second and Third Applicants.
2. The Tribunal failed to consider all aspects of the First, Second and Third Applicants’ claims.
Particulars
a. The Tribunal failed to consider (give no weight to) the opinion and findings of the First Applicant’s psychiatrist because ‘...this has simply been described to him by the applicant himself’ and dismissed his depression because he ‘was able to participate in the hearing.’
b. (i) The Second Applicant raised specific claims about her fear of being sent to Iraq.
(ii) These claims were not considered by the Tribunal.
c. The Third Applicant had specific claims raised on her behalf by the Second Applicant in relation to her fear of returning to Jordan arising from the treatment she received prior to her departure.
3. The Second, Third, Fourth and Fifth Applicants were denied procedural fairness.
Particulars
a.(i) The Second. Third. Fourth and Fifth Applicants were all applicants to the Tribunal
(ii) The Tribunal denied them attendance at the hearing, and specifically, denied them the opportunity to hear the evidence of the First Applicant.”
[Errors in original.]
The first applicant claimed to fear harm if he were to be returned to Jordan. Specifically, he had two bases for this fear. First, that he feared being kidnapped, or tortured, and killed by Islamist groups because he worked for the Israeli Embassy. Second, he feared harm from certain members of the Jordanian security agency, acting in a private capacity, because of a “civil dispute” at his place of residence.
Ground one asserts a breach of “statutory duty” by the Tribunal. This was said to have occurred in two ways. The first was explained to be an assertion that the Tribunal breached s.424A and s.424AA of the Act. Particular (a) to the ground asserts that the Tribunal failed to give the [in context, first] applicant clear particulars of information it derived from an interview that the first applicant had with an officer of the Minister’s department.
Before the Court, the applicants’ submissions drew attention to the following parts of the Tribunal’s decision record.
One, the Tribunal’s decision record at [12] (at CB 310). Here, the Tribunal stated that the first applicant had been interviewed by the delegate on 15 March 2012 and that the Tribunal had listened to the audio recording of that interview.
Two, the Tribunal’s decision record at [33] (at CB 313) where the Tribunal stated:
“It was put to him that he had said in his statement that he had told people he worked in real estate and traded in international shares as his cover story. He claimed that his previous lawyer had told him to write that but that he would never say this himself. He was then advised about s 424AA of the Migration Act that required the Tribunal to present to the application (sic) the reason, or part of the reason for affirming the decision under review.”
Three, the Tribunal’s decision record at [47] (at CB 315), where it stated:
“The Tribunal has serious concerns about the credibility of the applicant. The applicant submitted a signed statutory declaration to the Tribunal dated 8 July 2013 in which he stated that he had never mentioned to his former migration agent that he had told people in Jordan that he worked in real estate or international shares as a cover story, but that it had been added by the agent to his protection visa application statement.”
I understood that these references were put by the applicants to establish that the Tribunal “identified” two pieces of “information”.
One, in a Statutory Declaration (dated 8 July 2013) the first applicant declared that he had never told his former migration agent the “cover story” (identified by the Tribunal at [47] at CB 315), but that the agent had added this to his protection visa application.
Two, in an interview with the delegate, the first applicant confirmed that he had given this “cover story” to people in Jordan instead of revealing that he worked at the Israeli Embassy.
Before the Court, the applicants argued that the Tribunal relied on this information to find adversely to the first applicant’s credit. The submission was that this engaged the obligation in s.424A(1) of the Act, and the Tribunal did not discharge its obligation by way of s.424AA of the Act. The applicants sought to make good this latter proposition by referring to the transcript of the Tribunal hearing, where the Tribunal purportedly sought to put information to the first applicant pursuant to s.424AA of the Act (see T34):
“[Tribunal Member]: Okay there is a section of the Migration Act called s.424AA which – I am about to tell you – which means that if I have information that I need to present to you, information that I consider would be the reason or a part of the reason for affirming the decision that is under review that information is in your statement – your protection visa application – you said that your work was not exposed to anyone and you…appearing in public as the owner of a commercial and real estate concern and as a broker in stock exchange selling international shares. And in this statement, the statutory declaration, so a legally binding document – you said – you signed on the 8th July – you said you never said you worked in real estate or shares and that it was simply added by your former agent and he became angry when you pointed the discrepancy out and told you to keep the statement as is.”
Ultimately, the description of legal error by the Tribunal was identified in that it (with reference to the transcript) did not advise the applicants that they could seek additional time to comment on, or respond to, the “information” (with reference to s.424AA(1)(b)(iii) of the Act).
The applicants’ ground 1(a) lacks merit such as to call for the extension of time. Section 424AA of the Act was not engaged because, in the circumstances, the obligation in s.424A(1) of the Act was not enlivened.
First, the applicants rely on the Tribunal’s decision record to make good the assertion that s.424A(1) of the Act was engaged. Their argument relied on what was said to be the inconsistency found by the Tribunal as between the first applicant’s two different accounts relating to the “cover story”.
As was made clear in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 (“SZBYR”) (at [17] – [18]) the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies is not “information” for the purposes of s.424A(1) of the Act.
Second, that inconsistency was found by the Tribunal to be between what the first applicant said at the Tribunal hearing, and what was written in his Statutory Declaration dated 8 July 2013.
At the Tribunal hearing, the first applicant said that his migration agent had added the “cover story”. This information was information given for the purposes of the review and therefore excluded from the operation of s.424A(1) of the Act by s.424A(3)(b) of the Act.
Third, the first applicant’s Statutory Declaration dated 8 July 2013 was also given to the Tribunal for the purposes of the review, and therefore is similarly excluded.
Fourth, the Tribunal’s reference to the delegate’s interview, at [48] (at CB 315) of its decision record, when read with [47] (at CB 315), was to note that the first applicant had told the delegate (“confirmed”) that he had told people of his “cover story”.
That information was recorded in the delegate’s decision (see CB 191.8, where the delegate states, “[t]he applicant also claimed that to family and associates in Jordan, he had represented himself as a share trader or real estate broker”).
The delegate’s decision record was given to the Tribunal by the applicant for the purposes of the review (see CB 209). The information contained in the delegate’s decision record also came within the exception in s.424A(3)(b) of the Act (Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 and SZTGV Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450).
It may well be that the Tribunal listened to the audio recording of the first applicant’s interview with the delegate. But the information was given by the first applicant for the purposes of the review, when he gave the delegate’s decision record to the Tribunal.
Fifth, before the Court, the applicants relied on the fact that the Tribunal (at [48] at CB 315) stated that it put “these inconsistencies” under s.424AA of the Act to the first applicant. Further, that the Tribunal said that it may be “central to an assessment” of his credibility.
Section 424AA of the Act is a means by which the Tribunal may discharge its obligation under s.424A of the Act orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)). As set out above, inconsistencies are not information for the purposes of s.424A(1) of the Act (SZBYR). Therefore, the Tribunal was not obliged to put the inconsistency to the applicants either in writing, or by utilising s.424AA of the Act. In any event, there is no indication of jurisdictional error in its having done so (SZMCD).
Further, the Tribunal’s apparent belief, or assumption, that it was required to put these inconsistencies, or even the material on which the inconsistencies arose, to the applicant for comment pursuant to s.424A(1) or s.424AA of the Act is immaterial (see SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 at [49] and the references there to SZTGV at [50] and SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 (“SZMDS”) at [14]).
In all, no arguable case arises from proposed ground 1(a).
Proposed ground 1(b) asserts that the Tribunal “misapplied” s.36(3), s.36(5) and s.36(5A) of the Act in relation to the second and third applicants. In submissions before the Court, the applicants confirmed that this particular was pressed in relation to the second applicant only.
As set out above, the second applicant initially relied on the claims raised by her husband (the first applicant). Before the Court, the submission was that at the Tribunal hearing, the second applicant raised claims relating to her return to Iraq.
It is of relevance to note the following from the Tribunal hearing. One, the Tribunal asked the second applicant whether she had any additional claims to those of her husband in relation to Jordan. She replied, “[n]o pretty much the same things” (see T39.9).
Two, the Tribunal then directed her attention to her request for Ministerial intervention. It stated (see T39.9):
“[Tribunal Member]: Now I know there is a separate – you sought Ministerial intervention to lodge a separate claim of your own.
Which is different to the one that your husband has [lodged].
So it is that claim that I would like to talk about now. Do you understand that?”
The Tribunal then specifically asked her (see T40.3):
“[Member]: Can you tell me what you fear in relation to Iraq?”
The Tribunal sought to explain the basis for its question. Ultimately, the second applicant stated (at T40.5):
“[Second Applicant]: Iraq is completely finished. Completely. I don’t have any link with Iraqi whatsoever.”
Before the Court, the applicants drew attention to [80] (at CB 320) of the Tribunal’s decision record:
“In relation to the second applicant’s claims that she is a person in respect of whom Australia has protection obligations because she will suffer persecution or significant harm in Iraq, the Tribunal finds that she is a Jordanian national. As such she has a lawfully given permission to enter and a permanent right to reside in Jordan and she has not taken all possible steps to avail herself of that right. For the reasons set out above the Tribunal finds that she does not have a well-founded fear of persecution for a Convention reason in relation to Jordan: s 36(4)(a). Nor does it have substantial grounds for believing that as a necessary and foreseeable consequence of her availing herself of her right to enter and reside in Jordan there would be a real risk that she will suffer significant harm in relation to Jordan: s36(4)(b).”
The complaint before the Court appeared to emanate from the Tribunal’s finding that the second applicant had “not taken all possible steps to avail herself” of the right to return to Jordan ([80] at CB 320).
The submission was that this was “factually incorrect” because she had lived in Jordan. She had come from Jordan to Australia. The submission was that the Tribunal had a “dual residence argument” before it, and it was therefore required to consider the claims to fear harm as against both countries. The applicants’ solicitor was unable to provide any authority to support this proposition, but also as it applied to the current circumstances.
The Minister’s submissions were that the second applicant made no claim to fear harm “expressly made or clearly arising” in relation to Iraq. Therefore, there was nothing for the Tribunal to consider in relation to Iraq.
The second applicant was pressed by the Tribunal at the hearing to articulate any claims she may have had about returning to Iraq. Her answers were that, in essence, she had left Iraq in 2001 and she had nothing to go back to in Iraq. She also made reference to the general situation of upheaval in Iraq.
The issue sought to be raised by the applicants now by proposed ground 1(b) is that the Tribunal failed to properly apply the statutory requirements, in particular s.36(3) of the Act.
Section 36(3) of the Act is in the following terms:
“36 Protection visas – criteria provided for by this Act
…
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the
non-citizen is a national.”The Tribunal’s reasoning in relation to the second applicant was as follows. She relied on her husband’s claims to fear harm as to the reason she could not safely return to Jordan.
The Tribunal found that the first applicant’s claims in relation to Jordan (and therefore this applied also to the second applicant), did not rise to a well-founded fear of serious or significant harm (in relation to the first applicant, see [74] – [75] at CB 319 and [79] at CB 320. In relation to the second applicant, see [76] at CB 319 and [79] at CB 320).
The second applicant had previously raised the matter of Iraq. It had been the subject of the Ministerial decision pursuant to s.91Q of the Act which had enabled her to make an application for a protection visa (see CB 171 to CB 178).
The Tribunal’s reasoning at [80] (at CB 320) must be read fairly in the context of what precedes it. The Tribunal found that the second applicant could return to Jordan. In relation to Iraq, its reasoning was that she was a Jordanian national, and therefore had “a lawfully given permission to enter and a permanent right to reside in Jordan” ([80] at CB 320).
The Tribunal’s reference to the second applicant not having taken reasonable steps to avail herself of that right, was made with obvious reference to s.36(3) of the Act (see [81] at CB 320).
The applicants now say that this was a “factual” error, because the second applicant had travelled from Jordan to Australia. However, the Tribunal’s task was to consider the situation as at the time of decision. In that light, on a fair reading, the Tribunal reasoned that it was always open to the second applicant to have availed herself of that right since her arrival in Australia. There was no evidence before the Tribunal to indicate that she had taken any such steps during that time. The applicants’ assertion of factual error on the part of the Tribunal has no merit. Even if the Tribunal had made any such “factual error” (which it did not), before the Tribunal, the second applicant did not press any claim to fear harm in relation to Iraq.
For the sake of completeness, I note that the Tribunal also considered s.36(4)(a) and (b), s.36(5) and s.36(5A) of the Act, although these were not argued in submissions as being part of the applicants’ proposed ground 1(b).
Again, proposed ground 1(b) lacks such merit as to argue for the extension of time.
Ground 2 of the proposed further amended substantive application asserts that the Tribunal failed to consider all aspects of the first, second and third applicants’ claims. Before the Court, the applicants did not press the complaint in relation to the third applicant.
The particulars to the proposed ground directed attention to the reports of the first applicant’s psychiatrist (see the first of the reports at CB 283 to CB 285 and the second of the reports at CB 287 to CB 289) (“the psychiatric reports”).
The applicants’ written submissions identified the legal error as follows. The Tribunal gave no weight to the psychiatric reports which stated that the first applicant suffered from a major depressive disorder. The Tribunal “unfairly” dismissed the evidence of a qualified expert. In considering the complementary protection criterion, the Tribunal should have considered what treatment was available for this disorder in Jordan (see [24] – [25] of the applicant’s written submissions of 30 January 2018).
The Tribunal’s impugned findings are at [44] (at CB 314):
“I have taken into account the psychiatrist’s report from the NAS Advanced Medical Centre in Auburn. I lend no weight to his claim about the applicant’s life in Jordan as this has simply been described to him by the applicant himself. While I accept that the applicant may be suffering from depression, I also note that the report says that the applicant was able to participate in the hearing.”
Before the Court, the oral explanation of this part of the proposed ground was that the psychiatrist’s reports stated that the first applicant suffered from “major depression” (see CB 285.7 and CB 288.8).
The Tribunal’s error was said to be that it assigned “no weight” to that “claim”, and therefore the Tribunal failed to deal with that claim.
It must be said it was difficult to reconcile the applicants’ oral submissions to the actual terms of proposed ground 2. In relation to the first applicant, the ground asserts that the Tribunal failed to consider an aspect of his claims, which, with reference to particular (a), was that he was suffering from major depression.
Before the Court, the submission was that there was a “reasonable inference” to be drawn that the first applicant’s major depression arose out of events in Jordan. The Tribunal “simply” dismissed it because the diagnosis, or opinion, was based on what the first applicant told the psychiatrist.
It is the case that jurisdictional error may be revealed if the Tribunal fails to deal with a claim to fear harm, as presented in evidence or submissions, which is expressly made or clearly arising, or a substantial, clearly articulated argument relying upon established facts (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
On a fair reading, it cannot be said that the Tribunal ignored the psychiatric reports. Rather, it gave no weight to them. This was in circumstances where the Tribunal accepted that the first applicant may have been suffering from depression.
There is of course a difference in the concepts of “failed to consider” and “give no weight to”. To the extent that the particular, as also explained in submissions, seeks to equate these terms, that must be rejected.
The Tribunal did not fail to consider the psychiatric reports. It simply, after considering them, placed no weight on their contents, in so far as that related to the psychiatrist’s opinion that the first applicant should not return to Jordan. The Tribunal engaged with the psychiatric reports in an intellectual sense. While the applicants may not agree with the Tribunal’s reason for not giving weight to the psychiatric reports, this does not reveal a failure on the part of the Tribunal to consider a claim to fear harm.
What it does reveal is that the applicants’ ground, to the extent that it relates to the first applicant, seeks impermissible merits review. On that basis, no arguable case justifying the extension of time is indicated.
Ultimately, weight to be accorded to evidence is a matter for the Tribunal (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [151], Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5], Lee v Minister for Immigration [2005] FCA 464 at [27], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] and MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [19]).
During the course of the hearing I did raise with the parties whether what was said in CSO15 v Minister for Immigration [2018] FCAFC 14; (2018) 353 ALR 666 (“CSO15”) (which had only recently been handed down) may be of assistance in this matter.
The parties were given the opportunity to make supplementary written submissions. The applicants filed written submissions on 23 February 2018 (“the applicants’ supplementary written submissions”). The Minister filed written submissions on 9 March 2018 (“the Minister’s supplementary written submissions”).
In their supplementary written submissions, the applicants stated that CSO15 is of “limited application” to this case. That is said to be because in that case, a psychologist’s report was put forward to explain inconsistencies in the applicant’s evidence, whereas in the current case, the applicants argue that the first applicant’s “major depressive disorder” arising from the incidents in Jordan, “was capable of leading to a complementary protection claim” ([7] of the applicants’ supplementary written submissions).
In CSO15, a psychologist’s report was provided to the Tribunal. However, there was nothing put to the Tribunal in submissions, or in the psychologist’s report itself, that addressed “any specific factual issue” (CSO15 at [63]).
The applicants and the Minister in the current case, directed attention to the contents of the psychiatric reports and the circumstances in which they were provided to the Tribunal.
Both psychiatric reports are authored by the same doctor. The Tribunal was entitled to treat them as “one” report, as the second report confirmed the first report. They were provided to the Tribunal by the applicants’ then representatives as enclosures to the lengthy written submissions (see CB 223 and CB 284 to CB 289). These submissions also enclosed the Statutory Declarations made by the first and second applicants (see CB 223 and CB 239 to CB 258).
The written submissions and Statutory Declarations were lengthy. There is no reference in the written submissions to the psychiatric reports, let alone their contents.
While the first and second applicants made reference to the first applicant having consulted the doctor who provided the reports, there is nothing in the Statutory Declarations to say that the first applicant (or for that matter, the second applicant), feared significant harm (that is, as is relevant to the complementary protection criterion in s.36(2)(aa) of the Act), because he suffered from a major depressive illness.
At its highest, and again noting there was no reference whatsoever in the written submissions to the Tribunal, the purpose of the provision of the psychiatric reports was to support the first applicant’s claims of what he said had occurred in Jordan. That is, the events were so serious and traumatic that he had developed a major depressive disorder as a result.
The Tribunal’s relevant reasoning was that the first applicant’s evidence regarding his claims lacked credibility. The Tribunal found, for the extensive reasons given in its decision record, that the first applicant was not a “reliable, credible or truthful witness”, and that he had “fabricated much of his claim in order to be granted a protection visa” ([45] at CB 315).
The Tribunal’s ultimate conclusion on the first applicant’s lack of credibility was based on a number of antecedent findings which were all reasonably open to it and for which the Tribunal gave intelligible and cogent reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413; (2016) 253 FCR 496).
In this light, the Tribunal relevantly reasoned that, given that the basis for the opinions in the psychiatric reports were derived from what the first applicant had told the psychiatrist, no weight could be given to the psychiatric reports about the first applicant’s life in Jordan. The Tribunal did not reject the psychiatrist’s diagnosis that the first applicant suffered from depression. Simply, it took the view that the diagnosis did not overcome the Tribunal’s concerns about the credibility of the first applicant’s claims about events in Jordan, and his claim to fear harm on return for this reason.
For the sake of completeness, I note that it was also reasonably open to the Tribunal to find that the first applicant could participate at the hearing, given that this was one of the matters specifically addressed in the second psychiatric report (CB 288.9).
The applicants submitted that the psychiatrist made a diagnosis that the first applicant suffered from a major depressive disorder. The applicants submitted that this disorder arose from incidents in Jordan. Therefore, it was “capable” of satisfying the complementary protection criterion for the grant of the protection visa (s.36(2)(aa) of the Act). This submission must be rejected as indicating an arguable case of legal error on the part of the Tribunal.
No such claim was expressly made to the Tribunal, nor can it be said to be clearly arising from the circumstances presented. There was also no substantial clearly articulated argument to that effect. In any event, the Tribunal did consider the psychiatric reports in the context, and for the purpose, for which they were apparently provided to the Tribunal. No arguable error on the part of the Tribunal arises from particular (a) to proposed ground 2.
Particular (b) to proposed ground 2 asserts that the second applicant “raised specific claims” about her fear of going to Iraq, and that the Tribunal did not consider these claims.
Before the Court, the applicants did not press particular (b) to the proposed ground 2 (“they’re not pushed”). In any event, given the Tribunal’s finding that the second applicant could return to Jordan, there was no need for the Tribunal to consider the situation in Iraq.
Particular (c) to proposed ground 2 asserts that the second applicant raised specific claims on behalf of the third applicant, in relation to Jordan, and in light of the “treatment” she had received before departing Jordan.
In their first written submissions (at [21] – [22]), the applicants assert that the particular to the ground also relates to the fourth and fifth applicants. Further, in part, the reference to the transcript in the applicants’ written submissions (at [21] – [22]) in relation to the particular, refers to evidence given by the first, and not the second, applicant.
Ultimately before the Court in oral submissions, the complaint in particular (c) was expressed with reference only to the third applicant. The submission was that claims were raised on her behalf by the second applicant.
This directed attention to the following from the Tribunal hearing (at T42.4):
“[Second applicant]: The child was talking to me, she told me everybody hates me, my friends hate me, my teachers hate me. They say that the Israelis and what does Israel represent for children… the children at school are talking about things that were beyond their age. Because I know that children their brain doesn’t allow them to talk about these things but because they were raised this way and they were – these things were set in their minds from people from above…”
[Errors in original.]
The complaint was that the Tribunal did not deal with this “claim”. No further submissions were proffered in explanation of this.
As the Minister submitted, this issue must be understood in context as follows (see the Minister’s supplementary written submissions at
[4] – [5]):
“[4] The first applicant claimed that his wife worked at the same school as the third applicant (CB 244 at [34]). He claimed that he attended school events, and he was recognised from his work at the embassy. Students at the school identified the first applicant as a person who helped their family get visas to Jerusalem (CB 244 at [35]). The third applicant knew about the first applicant’s job and had to be told not to tell anyone about his work (CB 244 at [35]). The third applicant considered that the first applicant was doing something wrong and accused him of lying (CB 244 at [37]). The first applicant was accused of being a traitor by teachers at the school (CB 244 at [38]). This information was corroborated by the second applicant in written evidence which she gave to the Tribunal (CB 253 at [9] to [11]).
[5] The second applicant also gave evidence that the third applicant was denied a prize for winning a spelling bee (CB 254 at [16] to [18]). As a result of being denied the prize, the third applicant became very upset and said she thought everyone hated her including the teachers (CB 254 at [18]).”
The “claim” made on behalf of the third applicant was said to be that “everyone” at school “hated” her because of her father's “connection” to the Israelis. Further, that the third applicant was denied a school prize because this “hatred” was part of the harassment of her at school.
The Tribunal addressed the claim of the family’s harassment at school at [70] (at CB 319) of its decision record. It found that it did not “accept that [the first applicant’s] family suffered any forms of harassment at school” ([70] at CB 319). This was, as the Tribunal previously explained, because of its adverse credibility finding relating to the first applicant.
Specifically, in relation to what the second applicant said at the Tribunal hearing, her evidence was that the third applicant said she was “hated”, in context, because of the father’s “connection” (his work) to the Israelis.
The Minister submitted that this also must be seen in context. At the hearing, the Tribunal asked the second applicant whether she had any claims in relation to Jordan beyond those advanced by the first applicant. She answered “no pretty much the same things”. The third applicant, a child, did not give evidence (nor did her parents propose that she do so).
The Tribunal’s relevant reasoning was that, in light of the second applicant’s evidence, and in light of the submissions and evidence before it, it found that none of the “secondary applicants” (which in context, included the third applicant) ,”have protection claims in their own right” ([76] at CB 319). In context, the Tribunal’s reasoning can be fairly understood as being in relation to the third applicant, that is, what the second applicant said about the third applicant’s claimed circumstances.
Contrary to the applicants’ submissions now, the situation of the children (the third, fourth and fifth applicants) was considered by the Tribunal. It was reasonably open to the Tribunal to find that no separate claims had been advanced on their behalf, notwithstanding the evidence given by the second applicant.
The applicants’ ground 2(c), in the absence of submissions to explain it, appears not to recognise that a “claim”, such as to engage the Tribunal's obligation to consider it, must be a claim (expressly made or clearly arising) to fear serious, or significant, harm on return to the home country.
The second applicant’s evidence that her daughter said she was “hated” at school, in the context in which that evidence was given, does not give rise to a claim to fear serious (persecution) or significant (with reference to s.36(2A) and s.5 of the Act) harm.
Proposed ground 2(c) also does not raise an argument of sufficient character such as to warrant an extension of time.
Ground 3 of the proposed substantive application asserts that the second, third, fourth and fifth applicants were denied procedural fairness because the Tribunal denied their “attendance at the hearing”. In particular, they were denied the opportunity to “hear” the evidence of the first applicant.
The applicants’ first written submissions explain the complaint as follows. In relation to the first and second applicants, each was denied the opportunity to be present when the other one was giving evidence at the Tribunal hearing because they were each asked to wait outside the hearing room ([26] – [28] of the applicants’ first written submissions).
In relation to the third, fourth and fifth applicants, they were “represented” by the first and second applicants ([29] of the applicants’ first written submissions). Their “representatives”, who were denied the opportunity to give evidence on their behalf in circumstances, were respectively “excluded” from the hearing. Therefore, the children were denied procedural fairness ([30] of the applicants’ first written submissions).
It is to be noted that the attempt in the applicants’ written submissions to include the first applicant in this complaint, is contrary to what is set out in the particular to ground 3.
Before the Court, the applicants described this as “a typo”. I proceeded to consider the strength of the proposed ground on that basis.
The applicants’ submissions before the Court in relation to the first applicant were as follows. When the second applicant gave evidence, the first applicant was “excluded” from the hearing.
The applicants’ argument was that the first applicant was entitled to be present at the hearing when his wife was giving evidence, particularly when she gave evidence about the third applicant (as referred to above), which arose as a result of “the family’s connection with Israel”.
The applicants were unable to provide any reference to any authority to support the proposition that the first applicant was entitled to be present while the second applicant gave evidence. They submitted that it was simply just “what the law says”. However, they could not point to any part of the Act, or any authorities to support this proposition. Nor was there any evidence before the Court as to what is “usual”, or conventional, during such circumstances in hearings before the Tribunal.
The proposed ground raised the matter of procedural fairness. In that context, the applicants were unable to satisfactorily explain how, in the circumstances of this case, the Tribunal’s decision to hear evidence from the applicants separately, was procedurally unfair.
The Tribunal’s relevant procedural fairness obligation arises from s.425 of the Act. This requires the Tribunal to invite an applicant to a hearing, and to give an applicant a meaningful opportunity to give evidence and present arguments relating to the issues determinative of the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494).
The first applicant was given such an invitation. He attended the Tribunal hearing. He gave his evidence, and made his arguments in relation to the issues in the review.
The first applicant was “excluded” from the hearing while his wife, the second applicant, gave evidence, because the Tribunal had determined that the second applicant had made an application for protection on a separate basis. She had no claims beyond those made by her husband in relation to Jordan, which was confirmed at the hearing. However, she had previously made claims which concerned only Iraq.
The Tribunal told the first applicant at the hearing that his wife had a “separate claim” (T39.5). That was subsequently explained to the second applicant as, “I know you have a separate claim of your own relating to your nationality as an Iraqi” (T39.7).
Given that this was a separate claim, which initially had been made by way of a separate application, it was reasonably open to the Tribunal to proceed in this fashion given its obligation to conduct hearings in private (see s.429 of the Act).
The first applicant was given a meaningful opportunity to give evidence in relation to the issues in the review. The transcript of the Tribunal hearing reveals that this occurred in relation to his claims that arose from events in Jordan.
The second applicant’s evidence about what the third applicant had told her was evidence about the issue of the situation for the third applicant, and for that matter fourth and fifth applicants. That is, the first and second applicants’ children. The first applicant was also given the opportunity to give evidence in relation to the issue of the children’s situation in Jordan.
During the Tribunal hearing, the following exchange occurred (see T31.5):
“[Tribunal member]: Is there anything else you would like to raise at the moment?
[First applicant]: It is only about my fear to Jordan and I also fear for my wife and my daughters and we felt the difference between Australia and Jordan and with my daughters’ psychological state is much better and I hope that they permit me, that my application will be processed and I would be granted the right of refugee in Australia.”
[Emphasis added.]
It is clear from the above, that the first applicant’s fear emanated from his own circumstance of working for the Israeli Embassy. This was exactly the basis of what the second applicant told the Tribunal was the reason for the third applicant’s claimed experience at school in Jordan.
Before the Court, the applicants also submitted that the first applicant was denied procedural fairness because he was not given the opportunity to “support” what the second applicant had said about the third applicant.
I understood the submission to be that he was denied the opportunity to comment on, or even respond to, the second applicant’s evidence. If that was the purpose of the submission, then this invokes the language of s.424A, not s.425 of the Act.
In any event, the second applicant’s reference to the third applicant’s statements to her, is not, within its terms, a “rejection, denial or undermining” of the third applicant’s claims to be a person to whom Australia owes protection obligations (SZBYR at [17]). Therefore, it was not “information” for the purposes of s.424A(1) of the Act (SZBYR at [17] – [18]).
The second applicant was also invited to a hearing pursuant to s.425 of the Act. She did attend and was given a meaningful opportunity to give her evidence and present her arguments in relation to the issues determinative of the review.
There were two issues in relation to the second applicant. First, in relation to Jordan, she told the Tribunal that she had nothing to add to her husband’s claims. Second, the matter of her previous claims in relation to Iraq. In relation to Iraq, her evidence was that this was no longer an issue.
The complaint now is also that the second applicant was not present when the first applicant gave evidence. The Tribunal asked (T39.8):
“[Tribunal Member]:… First of all do you have any additional claims about the situation in Jordan that are different from your husband’s?
[Second applicant]: No pretty much the same things.”
The submission was that the second applicant was denied procedural fairness because she was asked whether she had “additional” claims, in circumstances where she could not have known what the first applicant had said.
Before the Court, the applicants were unable to indicate how this circumstance related to s.425 of the Act. As set out above, the Tribunal’s obligation is to give applicants the opportunity to give evidence and make arguments about the issues in the review that were not “live” issues as a result of the delegate’s decision (SZBEL).
It is to be remembered that, in relation to the second applicant, her claims to fear harm derived from the first applicant’s claims, in relation to Jordan, and her own situation, as it related to Iraq.
There is no question that she was given the opportunity to address the issue of her own situation as it related to Iraq.
In relation to Jordan, the Tribunal’s question to her at T39.8 (see above at [15f1]) must be seen in context. Given the delegate’s decision, and the Statutory Declaration subsequently submitted to the Tribunal by the applicants (see CB 252 to CB 258), the second applicant demonstrated that she knew not only the ambit of the first applicant’s claims, but as is demonstrated in the Statutory Declaration, a significant level of detail.
The distinction between “claims” and “issues” is important here. On the evidence, the second applicant plainly knew the claims advanced by the first applicant. That is the matter to which the Tribunal’s question directed her attention. She responded that she had no further claims.
In relation to “issues” in the review, as those issues related to Jordan, the second applicant would have known from the delegate’s decision, that the claims made by the first applicant regarding Jordan did not meet either of the criteria for the grant of the protection visa. The Tribunal’s question to her plainly invited comment on that issue.
As the Minister correctly submits, the Tribunal’s question, when plainly read, was not an invitation for her to comment on the first applicant’s evidence given at the hearing.
The Tribunal’s question was reasonably predicated on the fact (demonstrated by her Statutory Declaration), that she knew the ambit of the first applicant’s claims about Jordan. The Tribunal was asking the second applicant whether she had any “additional claims about the situation in Jordan”. That was the question that engaged the relevant issue in the review.
In relation to the third, fourth and fifth applicants, at the time of the Tribunal hearing (26 July 2013), they were ten and seven years of age (the fourth and fifth applicants were born on the same date).
The third, fourth and fifth applicants made no claims whatsoever on their own behalf. Other than the matter dealt with above (the second applicant’s reported statements made by the third applicant), there were no claims advanced on their behalf other than that they relied on the claims of the first applicant.
There was no indication now before the Court that any of the three children wanted to, or were the subject of, their parents’ request to the Tribunal, to take evidence from them. Their “exclusion” from the hearing during the first applicant’s evidence is therefore of no effect.
In any event, the complaint as ultimately put before the Court, appeared to be that it was the respective exclusion of the first and second applicants, from each other’s evidence at the hearing that denied the three children the opportunity to have their claims advanced by their respective parents.
In circumstances where they had no additional claims, it is difficult to see how this can be said to be a denial of procedural fairness. In any event, the one matter raised by the second applicant demonstrates they were not denied the opportunity for their evidence, or arguments, to be advanced on their behalf by their parents.
Ultimately, in relation to all of the applicants, the applicants have not even indicated to the Court how they suffered any practical injustice by not being present when the first and second applicants, respectively, gave evidence (MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87; (2017) 72 AAR 257 at [35]).
I should also note the Minister’s submission that the applicants’ migration agent who represented them before the Tribunal, and who now appeared before the Court as their solicitor, was present throughout the Tribunal hearing, and made no objection to the “exclusion” of the other applicants during the hearing of the evidence of the first and second applicants.
Conclusion
In this case, the delay is of some great and considerable length. No satisfactory reasonable explanation has been provided for such a delay. As set out above, the grounds of the proposed substantive application either lack any merit whatsoever, or are of such character that they do not call for the extension of time in the interests of the administration of justice. It is appropriate that the application for an extension of time be refused. I will make the appropriate order.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 30 August 2018
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