BEG17 v Minister for Immigration
[2018] FCCA 216
•31 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEG17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 216 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – review of decisions – judicial review – procedural matters – applications – time for lodging and extension – long delay – arguable grounds – no prejudice to respondent. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(3), 36(4)(b), 417, 477(1) |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 DNH16 v Minister for Immigration and Border Protection [2017] FCCA 2630 Falzon v Minister for Immigration & Border Protection [2017] HCATrans 84 |
| First Applicant: | BEG17 |
| Second Applicant: | BET17 |
| Third Applicant: | BEU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 257 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 November 2017 |
| Date of Last Submission: | 23 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 31 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the First Respondent: | Mr Byrnes |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entering a submitting appearance |
ORDERS
The application filed 21 March, 2017 seeking an extension of time pursuant to s.477(1) of the Migration Act 1958 (Cth) is allowed;
The application for review be adjourned to 15 June 2018 at 2:15pm for final hearing in the Federal Circuit Court of Australia sitting at Brisbane.
No later than 4:00pm on 25 May, 2018 the applicant shall file and serve upon the respondent an outline of argument.
No later than 4:00pm on 1 June, 2018 the respondent shall file and serve upon the applicant an outline of argument.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 257 of 2017
| BEG17 |
First Applicant
| BET17 |
Second Applicant
| BEU17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By their application filed on 21 March, 2017 the applicants seek an extension of time within which to apply to the Court for judicial review of a decision of a refugee review tribunal made on 22 October, 2014 which affirmed a decision of a delegate of the first respondent not to grant them Protection (Class XA) visas.
The first applicant was the primary visa applicant. The second applicant is his wife. The third applicant is their infant son. Only the first applicant advanced claims for protection. The second and third applicants relied upon being part of the first applicant’s family unit to secure the visas for which they applied.
The first respondent opposes both applications. The second respondent entered a submitting appearance.
On 14 August, 2017 the Court made orders that permitted the applicant to file an amended application if he wished to do so and to serve written submissions 14 days prior to the hearing date for the application. Despite the applicant being legally represented, nothing was filed and served by that date. However, the applicant (by his solicitor) did file written submissions and an affidavit on 21 November, 2017. The first respondent filed written submissions on 16 November, 2017 in accordance with the Court’s directions.
Section 477 of the Migration Act 1958 (Cth) provides the time limit which applies to proceedings for judicial review of tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
…
(b) in the case of a written migration decision made by the Migration Review tribunal or the refugee review tribunal—the date of the written statement under subsection 368(1) or 430(1); …
Because the tribunal’s decision was dated 22 October, 2014, the applicant had until 26 November, 2014 to commence this proceeding. The application was not filed until 21 March, 2017 and so it was brought 846 days out of time.
Some brief background is presently necessary, although I have set out a more fulsome recitation of the background to the present application later in these reasons.
The first and second applicants are citizens of India. The second applicant has been in Australia since 11 March, 2007. The first applicant has been in Australia since 14 June, 2008. On 14 August, 2013 the first and second applicants applied for Protection (Class XA) visas. On 9 February, 2014 the third applicant was born in Australia. On 24 February, 2014 an application was made on his behalf as a member of the first applicant’s family unit.
On 28 February, 2014 a delegate of the first respondent refused to grant the applicants the visas. On 17 March, 2014 the applicants applied to a refugee review tribunal for a review of the delegate’s decision.
The tribunal appears to have accepted that the applicants had a well-founded fear of persecution for a convention reason if they were to be returned to India. That fear was based upon threats of harm they had received from members of the second applicant’s family and made by them because the first and second applicants were of different castes and their inter-caste marriage was frowned upon. However, the tribunal concluded that the applicants had a right to settle in Nepal and they would not face the same risks there as those they would face in India. Accordingly, the tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under the Refugee Convention and therefore not within s.36(2)(a) or s.36(2)(aa) of the Migration Act.
On 22 October 2014, the tribunal affirmed the decision of the delegate not to grant the applicants Protection (Class XA) visas.
Grounds of application for an extension of time
The applicants set out two grounds for an extension of time. They appear as follows:
1. The applicants applied for Ministerial Intervention under the Migration Act on the basis of a referral and recommendation by the refugee review tribunal and the first respondent only made a decision in March 2017.
2. Given the guidelines for Ministerial Intervention it was inappropriate to commence judicial review proceedings.
In its reasons for decision, the tribunal said:
74. Having regard to the applicants’ circumstances, in particular the fact that the applicants have been living in Australia for some seven years, that the applicant child is only some eight months old, and that the applicants have no support network, accommodation or source of income of any kind in Nepal, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in PAM3 ‘Minister’s guidelines on · ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
On 23 October, 2014 the tribunal wrote to the first respondent’s Ministerial Intervention Unit asking the first respondent to consider the case under the Ministerial Intervention guidelines. Nothing in the material before me indicates that the application was made by the applicants or at their request.
After the tribunal’s hearing the first applicant consulted a registered migration agent who told him that there were reasonable prospects of success in the Ministerial Intervention process. The first applicant swears that he did not want to take the Minister to court while he (the Minister) was reviewing the Ministerial Intervention application.
In 2016 the first applicant contacted his present solicitor to help him with his Ministerial Intervention application. The solicitor was appointed the applicants’ representative for the purposes of that application.
On 14 March, 2017 the first applicant was told by an officer of the first respondent’s department that the Ministerial Intervention application had been refused on 13 March, 2017. The applicants’ solicitor received notification of that decision on 20 March, 2017. Soon thereafter counsel was engaged and the present application was filed on 21 March, 2017.
The applicants submit that it was reasonable to await the decision of the Minister before commencing judicial review proceedings. They submit that commencing judicial review proceedings against the Minister may have prejudiced their case for ministerial intervention.
The applicants rely on Falzon v Minister for Immigration & Border Protection [2017] HCATrans 84 where Keane J said at page 5:
I am satisfied that it is in the interests of the administration of justice to order the extension sought. It appears that the time between the cancellation decision and the commencement of the current proceeding was taken up with Mr Falzon pursuing his attempt to have that decision revoked. In this regard, he acted promptly and the Minister took more than nine months to decide whether to revoke the cancellation decision.
It does not appear that there would be any prejudice to the defendant if the extension were granted. Mr Falzon’s challenge to the non-revocation decision was brought within time and similar issues in relation to the validity of section 501(3A) would arise on the challenge to the cancellation decision as would be agitated in the challenge to the non-revocation decision. The defendant does not oppose the extension of time.
Whilst Keane J’s remarks are not statements of principle, nonetheless the analogy with the present case is obvious. Here, however, the first respondent submits that:
a)there was significant delay in bringing the application for review;
b)it would be against public interest to grant the extension of time; and
c)in any event the substantive application has no merit.
In relation to the first point, the first respondent relies on the analysis undertaken by Judge Lucev in WZAWB v Minister for Immigration and Border Protection (2016) 309 FLR 398 in relation to extensive delay in commencing proceedings for judicial review. That analysis appears at [76] – [77]:
76. The law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, must have regard to the judgments of the High Court in Marks and in Brisbane South Regional Health Authority. The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a) a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b) the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c) where a significant period of time has elapsed, in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d) the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority at 553 per McHugh J.
77. The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 at [35] per Gilmour J (dismissing application to extend time to appeal where two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”); Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”) at [29] per Spender, Buchanan and Perram JJ. The summary demonstrates the error in the observations made in cases such as DZAFG, SZTDM and SZOLM, where, as the applicant’s submissions suggest, this Court (or its predecessor the Federal Magistrates Court) has made observations that time might be extended notwithstanding extensive delay merely because the application for judicial review had arguable merit. That is not the law, and as Marks observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated, and so, as Tran observes, delay alone may defeat some claims.
And at [104]:
Having regard to:
a) the extraordinary length of the delay in making the application;
b) the very lengthy period between the time of the Law Access refusal and the making of the application;
c) the fact that the applicant knew from about mid-March 2013, at which time he was still within the time limitation period, that he had some form of right of review against the tribunal Decision, and knew that the tribunal Decision was not to grant him a Protection Visa;
d) the fact that having no legal representation and no legal advice, being non-English speaking and being ignorant of the time limits, is not a satisfactory explanation for the delay;
e) the necessity for the finality of litigation in relation to administrative decision-making; and
f) the time limitation period itself,
the Court does not consider that the extraordinary delay in this case has been satisfactorily explained by the applicant. Indeed, having regard in particular to the High Court’s judgment in Marks cited above, the delay in this case must almost be insuperable, or at the very least, require the most powerfully arguable merits case, together with some support from other factors, in order for an extension of time to be granted.
The Minister submits that the extent of the delay, being 846 days (said erroneously in submissions to be 880 days), is almost insuperable. I agree. It is almost insuperable.
Here, unlike WZAWB, there is an explanation for the delay. The applicants were awaiting the outcome of the Ministerial Intervention reference. That was a reference instigated by the tribunal. The only delay in this case is the delay that has come about by reason of the applicants waiting for the first respondent to make a decision on the reference. There is some irony attending the first respondent’s argument that the delay is insuperable when the reason for the delay is a process instigated by the tribunal and not completed by the first respondent for more than two years.
The first respondent submits that applying for Ministerial Intervention under s.417 of the Act is not generally accepted as an adequate explanation for delay. That is plainly correct. The authorities were reviewed by Judge Lucev in Singh v Minister for Immigration and Border Protection [2017] FCCA 275 at [27] to [28]:
26.In the Judicial Review Application, Mr Singh contends that another reason for the delay was that he had applied for Ministerial intervention. Ministerial Intervention does not provide an explanation for the delay in making an application to the Court: M211 of 2003 v refugee review tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 (“M211 of 2003”); SZNYE at [9] per Katzmann J; WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [82]-[84] per Judge Lucev (“WZAWB”). The relevant law was summarised by the Full Court of the Federal Court in M211 of 2003 at [22]-[24] per Black CJ, Sackville and Sundberg JJ. as follows:
22. In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:
In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT’s decision, for Ministerial Intervention pursuant to s 48B and s 417 of the Act. …
In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.
23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:
It was submitted on behalf of the respondent that the applicant’s request under s 417 should be viewed as an indication that he was prepared to accept the RRT’s decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court … .
In Applicant A2 of 2002, von Doussa J said of the applicant that:
having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.
This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.
It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:
As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.
24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant’s course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the tribunal’s decision was not to be the subject of challenge.
27.The law as set out at M211 of 2003, and the cases there cited in the above extract, has been applied by this Court. For example:
a)in Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929 at [8] per Judge Emmett it was observed that:
… it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the … [tribunal] on grounds that may have otherwise been available to him …
b)in Wei v Minister for Immigration & Anor [2013] FCCA 262 at [22] per Judge Nicholls it was said that:
On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial Intervention with respect to a protection visa instead of coming to the Court …
c)in Borra v Minister for Immigration & Anor [2013] FCCA 1216 at [38] per Judge Burchardt it was said that:
… even if I accept the applicant’s version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the tribunal’s decision …
d)in WZAWB at [84] per Judge Lucev it was said that:
It is plain from the above authorities that a request for Ministerial Intervention is not merely an alternative course, but an inconsistent course which accepts the decision of the tribunal as correct, or an inconsistent course which abandons any challenge to a decision of the tribunal, or, at the very least, not a course which prevents the filing of a protection visa application.
The first respondent submits that the same approach should be applied notwithstanding that the applicants did not initiate the application for ministerial review. In that respect he points to me DNH16 v Minister for Immigration and Border Protection [2017] FCCA 2630. In that case, Judge Emmett was faced with factual circumstances similar to this case. A refugee review tribunal had refused the applicant’s visa application and had referred the application for ministerial intervention. Some four years later the application was refused. Her Honour rejected the application for the extension of time within which to commence judicial review proceedings. In doing so her Honour recorded:
16. I asked the applicant if there was anything further he wished to say by way of explanation for his delay or in support of his application generally. The explanation for the delay was that all The Applicants sought Ministerial Intervention in respect of which they were not informed of the outcome until 13 July 2017.
17. It is well established that an applicant’s conduct in seeking Ministerial Intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the tribunal on grounds that may otherwise have been available under the Act (see M211of 2003 v refugee review tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).
18. However, it was open to the applicant to seek judicial review of the tribunal’s decision record at the same time. In the circumstances, the seeking of Ministerial Intervention is not a satisfactory explanation for the inordinate delay in excess of 1,300 days.
Her Honour’s reasons tend to suggest that no significance should be attached to the fact that the application for Ministerial Intervention was instigated by the tribunal. The reasons tend to suggest that the approach to the present question is unaffected by the identity of the instigator of the application for ministerial intervention. The applicant in DNH16 did not have the benefit of an advocate and her Honour did not have the benefit of argument on the point. She was not referred to Keane J’s remarks in Falzon.
Here, the position is different to that described in the above cases and the facts upon which Judge Emmett appears to have proceeded in DNH16. Here, the Ministerial Intervention was instigated by the tribunal, not by the applicant. The applicant did not choose between inconsistent rights. Nor, in my view, can it be said that by awaiting the outcome of the process instigated by the tribunal to deal with the perceived injustice of the tribunal’s own decision, the applicant’s adopted an inconsistent course which abandoned any challenge to the tribunal’s decision. Nor is it to the point to be critical of the applicants for not “pursuing” their Ministerial Intervention application. It was not their application. The applicant did not make a tactical decision to apply for Ministerial Intervention rather than to apply for judicial review.
The first respondent submits that it is in the public interest for migration proceedings to be finalised in a timely manner. I agree. But here, the delay was not of the applicants making.
The proposed application for review sets out nine grounds of review. Only four are now pressed. They appear as follows:
1. The second respondent misinterpreted s 36(2), s 36(2A), s 36(3) and s 36(4) of the Migration Act 1958.
2. The decision of the second respondent was unreasonable;
3. The second respondent did not conduct a proper review in accordance with Division 3 and 4 of Part 7 of the Migration Act
…
8. The second respondent did not conduct a proper review in accordance with the Migration Act.
The grounds are so devoid of particulars as to be meaningless. The written submissions relied upon by the applicants provide some clues to the actual issues the applicants wish to agitate. To understand them, some further background is necessary. I have adapted the factual recitation that follows from the written submissions delivered by the first respondent. Those submissions contain an accurate summary of the factual background to the proceedings.
The tribunal noted that first applicant’s claims related to harm facing him in India as a result of his relationship with the second applicant, a divorcee and a member of a different caste from the first applicant. The second applicant also claimed the need for protection as a result of their relationship.
Both applicants claimed that they feared being harmed by two aunts and an uncle of the second applicant. They thought that they might be physically harmed or killed because of their inter-caste marriage. Part of the applicants’ claims were that if they returned to India, the second applicant’s family would lodge a complaint against the first respondent with the police, which would mean that he would be arrested on arrival at any airport in the country because his name would be recorded on a computer system.
At the hearing convened by the tribunal to hear evidence and submissions from the applicants the tribunal explored the prospect that the applicants could reside in Nepal, rather than India. The tribunal recorded the following in its reasons for decision about this matter at [39] and [41]:
I told the applicant that I may also have to consider whether he had an existing right to enter and reside in Nepal, as the evidence suggested he did, and where he had not claimed to fear being harmed. He said that in fact [the second applicant’s uncle] had gone to Nepal for two days from India after being released by the police, although he had returned to India because his wife and child were in hiding in Chandigarh.
…
He also asked what might happen if his wife’s relatives in India found out they were in Nepal. He said that they might be able to find out through his wife’s aunt’s husband who lived in Australia. He did not dispute that the relatives in Punjab had no influence over police in Nepal and no contacts in the Nepalese police force.
When summarising the second applicant’s evidence at the hearing, the tribunal said at [51]:
I told the applicant that I may also have to consider whether the applicants had an existing right to enter and reside in Nepal, as the evidence suggested they did, and where they had not claimed to fear being harmed. She agreed that the applicants could go to Nepal but said they would always be living in fear and could not live there openly. They couldn’t escape from the relatives and would always have doubt in their minds. She said her relatives were capable of anything, and that she could not take this risk, particularly with a little baby.
The tribunal’s reasons show that the tribunal accepted that:
a)the adult applicants were nationals of India;
b)“honour killings” continue to occur in India, especially in Punjab and Haryana, including reports of “honour killings” involving couples from different castes in Punjab;
c)the adult applicants were genuinely frightened about the intentions of the two aunts and uncle and their accounts were consistent in important respects; and
d)threats had been made towards both adult applicants, initially through the contact with the applicant’s wife and, in 2010, via her uncle during his trip to India.
The applicants expressed a fear that their family members in Punjab have used their influence or money to ensure the applicants are identified as soon as they re-enter India. However, as to that matter, the tribunal was unable to establish with any confidence whether this had occurred, but noted the high prevalence of corruption at India’s international ports, including airports, and accepted it was possible.
Although the tribunal does not appear to have said so in terms, by implication the tribunal must have been satisfied that the applicants had demonstrated that they had a well-founded fear of persecution should they return to India by reason of the fears they had expressed arising from their marriage. Were it otherwise, the need to consider relocation to Nepal would not have arisen.
The tribunal analysed whether the applicants had protection elsewhere, including in Nepal. In essence, and relevantly, the tribunal considered that nationals of India had the same privileges as nationals of Nepal in the matters of residence, ownership of property, participation in trading, movement and other privileges of a similar nature. The tribunal was satisfied that the applicants had an existing right to enter and reside in Nepal, and that they could enter Nepal through the international airport regardless of the departure point (such as Australia). The tribunal found that the applicants had an existing right to enter and reside in Nepal which had not been withdrawn. The tribunal considered that the chance that the applicants’ relatives would harm them in Nepal was remote. It said
69. The adult applicants have expressed a fear that the relatives in Punjab will find out through the husband of one of them in Australia that the applicants have gone to Nepal, and that the relatives will be able to harm them there. I consider the chance remote that this will happen. It requires firstly that the husband here manages to obtain and pass on that information, then that the relatives in Punjab will have the ability to locate the applicants in Nepal and then that they will either harm them directly or have contacts in the police force in Nepal willing to harm the applicants on their behalf. It is only in circumstances where all these steps were implemented that the applicants might be said to have a well-founded fear of being persecuted or facing a real risk of suffering significant harm in Nepal.
70. I do not accept that all the necessary elements will exist. The chance is remote that they will and therefore I find that the adult applicants do not have a well-founded fear of Convention related persecution in Nepal. For the same reason I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of availing themselves of the right to enter and reside in Nepal, there is a real risk either will suffer significant harm.
The tribunal considered that neither adult applicant had a well-founded fear of refoulement from Nepal to India. The tribunal considered that none of the exceptions contained in s.36(3) of the Act applied and, therefore, Australia did not owe protection obligations to the applicants.
The tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under the Refugees Convention and they therefore did not satisfy that criterion set out in s.36(2)(a) of the Act. Similarly, the tribunal was not satisfied that the alternative criterion at s.36(2)(aa) of the Act had been met. The tribunal affirmed the decision to not grant the applicants the visa.
The applicants submit that the tribunal misinterpreted and misapplied s.36(4)(b) of the Act by finding that the applicants could easily go to Nepal and that the persons who sought to harm the applicants would not be able to go to Nepal and harm them. Subsections 36(3) and (4) are as follows (as at the time of the tribunal’s decision):
(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.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
The applicants argue that in its findings and reasons on [69] – [70] the tribunal, in effect, found that the persons who sought to harm the applicants would not be able to go to Nepal and harm them. In doing so, it was argued, it misinterpreted and misapplied s.36(4)(b) of the Act.
The applicants in their submissions draw my attention to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [36] where McHugh J noted that it was not acceptable to find there was no real chance of persecution when the possible victim would have to live in a way incompatible with his beliefs and usual way of living. They submit that in relocating to Nepal, the applicants would be required to live as if they were in hiding; keep their location a secret, have minimal and possibly no contact with relatives or friends in India, never visit India, not reveal the ordinary aspects of life on any social media and generally take great care not to accidentally reveal where they lived.
Having acknowledged that the border between India and Nepal was “porous” and that Indian citizens could easily and freely access Nepal, the applicants argue that no proper consideration was given to the prospect that “agents” of the second applicant’s family or her family themselves could enter Nepal and harm the applicants. To prevent that, the applicants argue that they would effectively have to live in hiding. That, they argue, is incompatible with the finding of the tribunal that there was no real risk of serious or significant harm should they return to live in Nepal. That demonstrates, they argue, that the tribunal has misapplied the requirements of s.36(4)(b) of the Act.
The tribunal in its reasons acknowledged the applicants’ fear that the second applicant’s relatives might find out about their relocation to Nepal. However, it found that the only way in which that could reasonably occur was through an uncle of the second respondent who lived in Australia. The tribunal considered that chance remote. Even more remote was the likelihood of the second applicant’s relatives then being able to track down the applicants and either harm them directly or have contacts in the police force in Nepal willing to harm the applicants on their behalf. In any case, it was something about which the tribunal gave consideration.
In relation to the second ground the applicants submit that the tribunal’s finding that the applicants could relocate to Nepal was unreasonable. They submit that such relocation would require the applicants to keep their existence in Nepal a secret, not contact friends or relatives in India lest they might inadvertently reveal the whereabouts of the applicants and always be looking over their shoulders. They submit that the tribunal failed to consider that once the existence of the applicants in Nepal became known, the border between Nepal and India would allow those wanting to harm the applicants to send someone to Nepal to carry out that harm or engage someone in Nepal to carry out that harm.
The applicants further submit that the tribunal’s decision about this matter was not based upon any proper findings of fact, but rather was a finding based on a “gut feeling”. The applicants’ counsel took me to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 where Lee and Moore JJ said:
21. Failure of the tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law the tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at CLR 366-367). That is to say, the tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”.
The tribunal clearly considered the possibility that the second applicant’s relatives might find and harm the applicants in Nepal but considered that the chance of that happening was remote. Such is evident at paragraph 69 and 70 of its reasons. Further, the tribunal in making its finding that the applicants could relocate to Nepal had regard to the 1950 Treaty of Peace and Friendship between Nepal and India, the Nepal Immigration government website and articles in the Asia Times and The Hindu.
In relation to the third and eighth grounds the applicants rely on Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 and in particular paragraphs [31] to [36] of that decision. In particular, at [32] onwards, and referring to particular paragraphs of the tribunal’s decision:
[32] …
Those paragraphs, moreover:
· are expressed more in terms of a conclusion rather than a finding of fact which may be found to be supported by a reference to the evidence, presumably evidence to be found in the information obtained by, but not disclosed to, the parties; and
· …
It may also be finally noted that:
· the requirement imposed by s 368(1)(c) of the Migration Act to make “findings on any material questions of fact” is not met by a statement as to an ultimate conclusion founded upon a series of primary facts without a statement as to what those primary fact are, those being the facts which are “material” to the conclusion reached; and
· although there is no necessary difficulty with an administrative decision-maker making a statement such as that contained in para [55] that consideration has been given to “the evidence overall”, such a statement does not shield from scrutiny such consideration as was in fact given to the evidence and (in particular) evidence going to a centrally relevant submission. A statement that a Minister for example has “considered all relevant matters” and “all other evidence” may be said to fall short of an adequate reference to the evidence and falls short of putting a party in a position whereby they can “connect” in any meaningful manner the “findings” to the evidence (cf. King v Minister for Immigration and Border Protection [2014] FCA 766 at [37], (2014) 142 ALD 305 at 320 per Flick J. See also: Salahuddinv Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J. It is “not only prudent but also desirable” to explicitly deal with such matters:[2013] FCAFC 141 at [31], (2013) 229 FCR 290 at 299 per Katzmann J. Wigney J agreed:[2013] FCAFC 141 at [34], (2013) 229 FCR 290 at 300). It is necessary ”to explain what evidence [the tribunal] has accepted or rejected”: cf. TelePacificPty Ltd v Federal Commissioner of Taxation [2005] FCA 158 at [50] to [53], (2005) 218 ALR 85 at 95 to 96 per Sackville J. The reference in para [49] of the tribunal’s reasons to the “web addresses” is, it is respectfully considered, not a sufficient reference to the evidence for the purposes of s 368(1)(d) of the Migration Act. That which is demanded by that provision is not a reference to the sources from which the evidence may be independently discerned. Rather, what is required is a reference to that part of the information to be apparently found at one or other (or possibly all) of the “web addresses” from which evidence may be found to base a finding made on a “material question of fact”. There remains no necessity to refer to every piece of evidence (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to [47], (2003) 236 FCR 593 at 604 to 605 per French, Sackville and Hely JJ), but there remains a necessity to refer to “the evidence” which founds facts “material” to a decision reached.
[33] …
[34]…
Generalised statements made by an administrative decision-maker, with respect, fail to properly disclose to a Court undertaking a process of judicial review the manner in which and the basis upon which a decision has been made. It is to address such deficiencies that provisions such as ss 430 and 368 of the Migration Act are directed.
The applicants submit that the tribunal made the same type of error here at [69] extracted above. The tribunal’s finding that the chance that the second applicants’ relatives will be able to harm the applicants in Nepal was remote was a conclusion reached on the basis of other unstated facts. Further, it is argued that the conclusions are reached on the basis of some assumptions that are not borne out by the evidence, such as the assumption that harm will only befall the applicants if:
a)the husband here manages to obtain information that the applicants have left Australia and gone to Nepal;
b)he passes on that information to the second applicant’s relatives in Punjab;
c)they have the ability to locate the applicants in Nepal;
d)they will either harm them directly or have contacts in the police force in Nepal willing to harm the applicants on their behalf.
The tribunal concludes that “It is only in circumstances where all these steps were implemented that the applicants might be said to have a well-founded fear of being persecuted or facing a real risk of suffering significant harm in Nepal”.
The first respondent submits that the tribunal’s reasoning is unimpeachable and that it considered all of the relevant matters and made the appropriate findings of fact.
Conclusion
As the first respondent argues, it is generally inappropriate to fully investigate the merits of the substantive case an applicant wishes to pursue if an extension of time is granted, although obvious strengths or weaknesses are factors for or against extending time. Instead, it is appropriate to consider whether a ground is arguable, reasonably arguable, sufficiently arguable or has reasonable prospects of success. These matters are to be considered at a generally impressionistic level:
62. … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
per Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 affirmed on appeal in MZABP v Minister for Immigration and Border Protection (2016) 112 ALD 478.
I am satisfied that the applicants’ proposed grounds of appeal have some merit. Ground three in particular is plainly arguable, although on a detailed consideration, may well be found to be wanting.
The applicants are entitled to the relief they seek. I will hear the parties in due course on the question of costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 31 January, 2018.
Date: 31 January, 2018
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