Ben18 v Minister for Home Affairs
[2018] FCCA 2172
•8 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEN18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2172 |
| Catchwords: MIGRATION – Extension of time – whether the Administrative Appeals Tribunal failed to take into account a relevant consideration – Refugee Review Tribunal – RRT – complementary protection – fear of harm – extension granted. |
| Legislation: Migration Act 1958 (Cth), ss.91R (repealed), 417, 477 |
| Cases cited: MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration (No 2) [2016] FCAFC 138 SZTES v Minister for Immigration [2015] FCA 719 |
| First Applicant: | BEN18 |
| Second Applicant: | BET18 |
| Third Applicant: | BES18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 650 of 2018 |
| Judgment of: | Judge Baird |
| Hearing dates: | 7 August 2018 8 August 2018 |
| Date of Last Submission: | 8 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Solicitors for the Respondent: | Ms C Hillary of DLA Piper |
THE COURT:
Pursuant to s.477(2) of the Migration Act 1968 (Cth), ORDERS the time for making the application provided by s.477(1) of the Act, be extended to up to and including 13 March 2018.
ORDERS that costs of this application be the First and Second Applicants’ costs in the cause.
ORDERS that the Applicants file and serve a further amended application giving complete particulars of each ground of review relied upon by 22 August 2018.
ORDERS that Applicants file and serve, by way of affidavit, all additional evidence to be relied upon, if any, by 29 August 2018.
ORDERS the First Respondent to file and serve, by way of affidavit, all additional evidence to be relied upon, if any, by 5 September 2018.
ORDERS that other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit.
DIRECTS that the Applicants file and serve written submissions and their list of authorities with hyperlinks 14 days before the hearing, and to provide copies by email in Microsoft Word format to the Associate to Judge Baird at the time of filing.
DIRECTS that the First Respondent file and serve written submissions and his list of authorities with hyperlinks 7 days before the hearing, and to provide copies of these documents by email in Microsoft Word format to the Associate to Judge Baird at the time of filing.
STANDS OVER the matter for callover to obtain a date for final hearing on 13 November 2018 at 10:15am before a Registrar.
GRANTS liberty to apply on 5 days notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 650 of 2018
| BEN18 |
First Applicant
| BET18 |
Second Applicant
| BES18 |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
This is an application pursuant to s.477 of the Migration Act 1958 (Cth) seeking an extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal (then the Refugee Review Tribunal (RRT)) made on 29 September 2015, over 2 ½ years ago. That decision affirmed a decision of the Delegate of the First Respondent made on 21 December 2012 to refuse to grant the Applicants a Protection (class XA) Visa.
Background
The Applicants are a wife and husband and younger son. They are citizens of Fiji.
The couple applied for the Visa on 5 June 2012, together with their five children and grandchild. The First Applicant (wife) was listed as the main applicant, and the second applicant (husband) was named as a member of the family unit, as were several of the children and the grandchild. Pursuant to leave granted at the commencement of the hearing before me on 7 August 2018, the couple’s youngest son, aged 9 years old, is the Third Applicant. On the wife’s oral application by her solicitor, being satisfied that she consented, is aware of the costs consequences, and that she does not have any interests adverse to those of her son, I appointed her litigation guardian of the third applicant. The other children and grandchildren are not party to this proceeding.
The wife arrived in Australia in early 2002 as a dependent spouse on her husband’s Temporary Business Skills visa (subclass 457). As I have said, they applied for the protection Visa on 5 June 2012. The Visa was refused by the Delegate on 21 December 2012. The Applicants then applied to the RRT. The couple attended a hearing and the RRT affirmed the Delegate’s decision on 10 December 2013.
The Applicants then applied to this Court for judicial review of that decision. By orders dated 18 March 2015, Judge Manousaridis remitted the matter to the Tribunal. His Honour found that the RRT was in breach of s.425 of the Act for failing to put the wife on notice of a dispositive issue, that it was not in the wife’s nature to express her political opinion. His Honour also found that the RRT failed to consider the wife’s claim that she would express her political opinion in private.
The Tribunal, differently constituted from the RRT, conducted a hearing on 20 May 2015. The couple attended and gave evidence and on 29 September 2015, the Tribunal affirmed the Delegate’s decision.
On 29 October 2015 the three Applicants applied for Ministerial intervention pursuant to s.417 of the Act. On or about 5 February 2018 the Minister declined to exercise his power to intervene.
On 12 March 2018 the Applicants filed the present application in this Court.
Grounds for extension of time
In their amended application, the Applicants rely on the following grounds as to why the Court should grant an extension of time:
1.The Second Respondent advised the Wife to apply to the First Respondent (Minister) under the Migration Act 1958 s.417.
2.The Applicants applied to the Minister shortly after 30 September 2015.
3.The Minister refused to exercise his power on or about 5 February 2018.
Ground of review
In relation to the substantive grounds of their application, the Applicants rely on the following sole ground of review:
1.The Tribunal misapplied the law
(a)The Tribunal misapplied the terms of the Migration Act 1958 s.91R.
At the time, s.91R of the Act (now repealed) specified the circumstances in which Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol applied under the Act and the Regulations in relation to persecution for one or more reasons mentioned in the Article. Where the persecution involved “serious harm to the person”, s.91R(2) specified instances of “serious harm”: for the terms of s.91R, see schedule at the end of these reasons.
Clarification of the ground of review
In written submissions, the Applicants’ solicitor particularised the ground by setting out the instances of serious harm specified in section 91R(2). He then submitted:
The Applicant explained to the Tribunal member that she fears serious harm and ill-treatment if she returns back to Fiji from the government, individuals in her community and her relatives. The Applicant stated that unemployment was high, there was a lack of freedom of speech and she feared for her children's future because of the state of the economy. The Applicant fears harm in Fiji on the basis of her political opinion and her religion.
Each of the Applicant's claims relate to the instances of 'serious harm' as set out in s.91R(2). The Tribunal has failed to consider each of the Applicant's claims in relation to the Act and as such, there is a constructive failure to apply the terms of s.91R of the Act. Thus, there has been a jurisdictional error and this application should warrant an extension of time.
It might be assumed from the above that the Applicants’ ground of review is that the Tribunal did not address the Applicants’ claim for protection based on the “refugee” criterion under s.36(2)(a) of the Act (as the Tribunal member referred to it at [7]-[9]).
In oral submissions, however, the Applicants’ solicitor clarified that the jurisdictional error asserted was that the Tribunal, at [62]-[63], inadequately dealt with the wife’s claims to fear harm if returned to Fiji under the “complementary protection criterion” of s.36(2)(aa) (referred to by the Tribunal at [7], and [10]). The Applicants’ solicitor submitted that, in the circumstances of the present case, it was inadequate for the Tribunal to determine the wife’s claim for protection under the complementary protection criterion by saying at [62]:
The primary applicant has made no other claims to fear apart from those which I have rejected as set out above. I have also considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons as detailed above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Fiji, there is a real risk that she will suffer significant harm: s.36(2)(aa).
He says that the Tribunal needed to go on and consider each of the instances in s.91R(2).
As the Applicants’ oral submissions further developed, it transpires that the crux of the case now intended to be put to the Court on the Applicants’ application for judicial review (should the extension of time be granted), is that whilst the Tribunal did consider the wife’s claim to fear harm from the government, the Tribunal did not address her claim to fear harm from “community and relatives”, and specifically in relation to her fear of harm from those persons, the Tribunal did not address her claim under the complementary protection criterion.
In reply submissions the Applicants’ solicitor drew attention to the fact that there is a difference between a decision-maker saying that they don’t believe an applicant’s account of what happened, and the present case where the Tribunal member, so the Applicants’ solicitor submits, accepted the account of what happened but did not believe that it amounted to persecution. I understand the Applicants’ solicitor to be saying that the Tribunal did address the question of the Applicants’ claims under the refugee criterion, namely, s.36(2)(a), but that the Tribunal did not sufficiently address the terms of complementary protection.
Extension of time – legal principles
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period in which an application for judicial review may be made as the 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.
The factors that the Court will take into account when considering whether an extension of time should be granted include:
(a)the extent of the delay and the explanation for the delay;
(b)any prejudice the Minister might suffer because of the delay; and
(c)the merits of the proposed application or, as it may otherwise be put, the prospects of success on the substantive application.
The principles have been considered by the Courts. I refer to the consideration by Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585. At [62]-[63] her Honour adverted to the interests of the administration of justice, and cautioned that it is not for the Court, when exercising its discretion in an extension of time application, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic” level into a full consideration of the arguments for and against each ground of review. At [63] her Honour said:
[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 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.
Her Honour’s consideration at [58]-[63] in MZABP was approved by the Full Court of the Federal Court in MZABP v Minister for Immigration (No 2) [2016] FCAFC 138; see also SZSZW v Minister for Immigration [2017] FCCA 1710, and, earlier, the observations of Wigney J in SZTES v Minister for Immigration [2015] FCA 719 at [48]. In SZTES, his Honour distinguished between grounds that are hopeless and destined to fail, and those which are properly described as weak. His Honour observed, that, in the latter case, it is seldom appropriate to refuse to extend time.
Extent and explanation for delay
The application is more than 2 years out of time. That delay is significant.
The grounds of the application for extension of time set out a chronology of acts, and nothing more (see above at [9]). The Applicants have not filed any affidavit material which explains the delay. However, the Applicants’ request for Ministerial intervention is in evidence, as is the Minister’s refusal.
The Applicants’ solicitor submits in effect, that it is apparent from the chronology that the Applicants were awaiting the Minister’s decision as to whether he would exercise his discretion to intervene to grant the Applicants visas.
He also says that the Tribunal at [74] advised the Applicants to make a request to the Minister. He points out that the application in this Court was brought within 35 days of the Minister making his decision. He submits that the prompt filing of the application after notification of the Minister’s refusal to intervene should go to vitiating the delay.
The Minister’s solicitor submits that the delay in filing the application is excessive. She drew the Court’s attention to the decision in Vella v Minister for Immigration [2015] HCA 42; (2015) 98 ALR 89 in which Gageler J said that given the delay (there some 16 months), he would only reach the state of satisfaction required were he to be persuaded that the applicant’s case was exceptional. The Minister submits that there is nothing exceptional in the Applicants’ case.
Further, the Minister’s solicitor says that the Applicants, by seeking Ministerial intervention, accepted the Tribunal decision as correct. She says, similarly to the facts before the High Court in Vella and in WZAWB v Minister for Immigration [2016] FCCA 1345; (2016) 309 FLR 398 in this Court, that the Applicants could have also applied, for judicial review, and so would have been within time.
The Minister’s solicitor submits that awaiting the outcome of a Ministerial intervention request is not an acceptable explanation for delay, but rather, indicates that the Applicants chose to pursue Ministerial intervention instead of seeking judicial review, and having taken that course and awaited the time, they should not now be granted an extension of time.
I note that the explanation for the delay is limited to the request for intervention and the letter from the Minister refusing to intervene.
I note that the Applicants were unrepresented, but that, according to the letter of request for intervention, they had the assistance of the Fiji Australian Community Council, the president of whom prepared the request for intervention.
Contrary to ground 1 of the application for extension of time, I am not persuaded that the Tribunal member advised the wife to apply to the Minister for Ministerial intervention. Paragraphs 73 to 74 of the Tribunal’s decision first set out the consideration the Tribunal gave to the matters put by the wife regarding a possibility of her having cancer, and the letter from a doctor, Dr Liam in response to those matters, and the conclusion that the Tribunal declined to refer the matter to the Minister. At [74] the Tribunal said as follows:
My decision in this respect does not prevent [the wife] making her own application for Ministerial intervention at the appropriate time. She should obtain advice about this.
I do not read that paragraph as providing any advice or suggestion that the wife should make an application to the Minister for intervention. Rather, it merely identifies the fact that the Tribunal – having declined to refer the matter – does not prevent the wife from taking her own course as she may be advised.
On the other hand, I am not persuaded that the decision in Vella governs the present case. In my view it is distinguishable, at least for the following reasons. First, at [3], in Vella, the plaintiff’s counsel properly conceded that, given the length of the extension sought in the circumstances, his Honour needed to be persuaded that the case was quite exceptional. It is clear from [10], and [15]-[16] in Vella that Mr Vella had pursued a case through the Federal Court, to the Full Court of the Federal Court, and then to the High Court on special leave, and that the High Court dismissed that application for special leave.
Further, Mr Vella was represented, and it is clear that his former legal representatives took made a forensic judgment to pursue a litigious course. Mr Vella can be assumed to have been aware of the particular holdings of the High Court that would need to be overcome, and that the course they chose not to pursue until the application before the High Court was one that was done with legal representation, and an acute consciousness of the issues in that case. The facts and consequences of the course pursued on Mr Vella’s behalf were logically premised on an acceptance of the validity of the cancellation decision, for the reasons set out at [17] of the High Court’s reasons. At [18] the Court referred to University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 where a new argument of constitutional invalidity was sought to be raised after the hearing of a special case in which validity had been assumed.
At [7], the Court in Metwally unanimously stated that:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In the present case, in contradistinction to the facts of Vella, this application for an extension of time is the first opportunity for a Court to undertake judicial review from the Tribunal decision of 29 September 2015. This case is not analogous with either Vella or Metwally, and I do not consider that the Applicants must show that there is an exceptional case before an extension of time be granted.
There is no prejudice to the Minister
Given the extent of the delay, the matter should be examined by reference to any prejudice, and the merits of the substantive application.
The Minister concedes that he does not suffer any prejudice. The absence of prejudice alone, however, does not warrant the granting of an extension of time: MZZRO v Minister for Immigration [2014] FCCA 882; SZQCZ v Minister for Immigration [2012] FCA 91 at [91].
Merits of the substantive application
Turning, then, to the merits of the substantive application In the circumstances of this matter, the decision whether or not to extend time in the exercise of my discretion essentially comes down to the merits of the proposed substantive application, taking into account the factors identified in s.477(2) and being guided by the authorities. I refer to the principles I’ve already outlined, the consideration of Mortimer J in MZABP, and the caution expressed by Wigney J in SZTES.
Claims for protection
At [14] of its decision the Tribunal sets out the wife’s claims for protection under subheadings. At the hearing yesterday I summarised those claims to the Applicants’ solicitor:
Have you experienced harm in Fiji?
(a)her son was abused in Fiji. This had negatively affected her and her family;
What do you fear may happen to you if you go back to that country?
(b)she fears that her family will suffer if returned to Fiji as employment opportunities are limited;
(c)her children have become accustomed to the Australian way of life and Australian values and will find it difficult to integrate themselves in Fiji. She fears they will become the victims of verbal and physical abuse because of their difference to culture in Fiji;
Who do you think may harm/mistreat you if you go back?
(d)she fears mistreatment from the Fijian government, some individuals in the community, and even some relatives;
Why do you think this will happen to you if you go back?
(e)she perceives systemic problems in Fiji such as the lack of equality for men and women, the government is unstable and cannot guarantee her future, and her prospects of employment are low;
(f)she does not feel that the authorities can protect her if she returns to Fiji.
The Applicants’ solicitor confirmed that the above recitation accurately reflected the claims for protection set out in [14] of the Tribunal’s decision.
I note the structure of the Tribunal’s decision. At [15]-[35] the Tribunal explored in some detail the claims set out at [14], which the Tribunal member discussed with the wife and husband when they attended the hearing.
Under subheadings “Type of harm feared” and “DFAT Country Report”, the Tribunal explored with the wife, first, the type of harm feared, and secondly, explained the DFAT country report for Fiji, reading certain sections, as set out at [35], and invited the wife to comment.
At [37] the Tribunal recorded that at the conclusion of the hearing it allowed the wife additional time in which to provide written submissions in relation to the DFAT report. She and her husband indicated that they did not wish to provide any further submissions or responses after the hearing.
I note that, in this part of the Tribunal’s exploration of the Applicants’ evidence and their fears, there is no assertion of particular fears in relation to harm, be it serious harm or significant harm, from individuals in the communities, and relatives. There is, however, a statement in response to the Tribunal’s question in relation to fear of harm or persecution if the wife returned to Fiji because of her religion, at [21], which elicited the response: “She explained that her entire family [were] Methodist, but she was Pentecostal.”
At [22], when pressed in relation to fear of harm in Fiji because of her Pentecostal religion: “She [the wife] said she did not know, and could not answer because she had been away from Fiji for 15 years.”
Commencing at [38] the Tribunal set out its consideration and findings. At [40] the Tribunal directed itself to, first, make findings of fact on the claims made. Commencing at [41] it then made findings. At [45], the Tribunal summarised the wife’s fears if returned to Fiji as follows:
(a)as she states on application, her “greatest fear” is that she would not be able to find employment; associated with this it appears is a claim of low living standards;
(b)a lack of freedom of speech; she would not be able to voice her opinion publicly or to other individuals, and she would suffer cruel treatment and punishment if she did so;
(c)she and her family will be discriminated against and even harassed because they have been away from Fiji for so long;
(d)she and her children will not fit into Fiji having lived in Australia for so long, and having become adapted to Australian values and the Australian way of life. In particular, they have become used to freedom in Australia and it would be very hard for her, as their parent, to control them in Fiji;
(e)her children will not have access to adequate education.
At [46]-[47] the Tribunal noted other claims that had been made earlier, but which the Tribunal identified had not been pursued, first, in relation to the abuse she said her son suffered in 2011 (at [46]), and secondly, in relation to the practice of her Pentecostal religion (at [47]).
I note specifically [47]:
[The wife] did not pursue a claim of harm based on the practice of her Pentecostalist religion at the hearing. While I consider that this claim has now been abandoned by [the wife], I shall also consider it for the purposes of her application.
The Tribunal then proceeded to make certain findings of fact within [49]-[58]. The Minister’s solicitor submitted, and I accept, that the Tribunal made factual findings which it subsequently relied on, first, for what I will call convention related protection claims under s.36(2)(a), and which findings the Tribunal also relied on in relation to complementary protection.
These findings may be summarised as findings in relation to the following:
(a)difficulty in finding employment: [49]-[50];
(b)in relation to lack of freedom of speech: the DFAT country report material is set out at [51]. At [52] the Tribunal made the finding that there was no evidence before the Tribunal to suggest the wife was a “high profile public figure” and she only attended one protest meeting in Australia. The Tribunal found “therefore that she has no political profile”.
The Tribunal also made a finding it did not accept that she would not be able to voice her opinion, even to some individuals, or faced a well-founded fear of serious harm if she did;
(c)as to discrimination and harassment: whilst the Tribunal accepted that the wife fears that she and her children will face discrimination and even harassment if they return to Fiji, in part because they have grown up with “Australian values”, and they will not now fit in with the Fijian way of life, the Tribunal continued to make the finding at [53] that there is no evidence before the Tribunal to suggest that this fear is well‑founded; there is no country information proffered or anything appearing in the DFAT report to support such a fear. In the circumstances, the Tribunal did not accept, and did not find, that the wife has a well‑founded fear of serious harm on the basis of discrimination or harassment as she had claimed;
(d)lack of access to adequate education was addressed by the Tribunal at [54] and [55]. In the circumstances, and in the absence of any other country information, the Tribunal did not accept, and did not find, that the children would be unable to access education in Fiji;
(e)as to abuse of the son, I note that this claim was not pressed at the Tribunal hearing and, expressly, was not pressed before me;
(f)lastly, in relation to the Pentecostal religion: this claim was noted as not being pressed before the Tribunal, however, the Tribunal also noted that there was no country information before it and there was nothing in the DFAT country report to suggest that the wife would face serious harm if she returned to Fiji on account of her religion, and there was no evidence to suggest that she faced a real chance of serious harm. The Tribunal found the following facts:
The DFAT Country Report at [3.35] states that Fiji is religiously diverse, and that the 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution is non-discriminatory on the grounds of religion and provides specifically for protection from religious discrimination. The Report also states that religious freedom is observed in practice.
At [59] the Tribunal concluded that it was not satisfied that any of the Applicants are a person in respect of whom Australia has protection obligations, and therefore that the Applicants do not satisfy the criterion set out in s.36(2)(a) or s.36(2)(aa) for a protection visa.
The Tribunal concluded at [60] in relation to the Applicants’ circumstances, individually and cumulatively, that it was not satisfied that the wife has a well‑founded fear of harm for a Convention reason should she return to Fiji now or in the reasonably foreseeable future.
The Tribunal then turned to complementary protection at [62] and [63]:
[62] The primary applicant has made no other claims to fear apart from those which I have rejected as set out above. I have also considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons as detailed above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Fiji, there is a real risk that she will suffer significant harm: s.36(2)(aa).
[63] Accordingly, I am not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). As the primary applicant does not satisfy the criteria for a protection visa she cannot be granted the visa.
The Tribunal then concluded that the other Applicants’ claims would also fail since they made no separate claims.
It is true that in the consideration by the Tribunal there is no mention of a specific fear of harm from community or individuals, except what I have already referred to. The claim at [14] of fear of harm in relation to individuals in the community and family is extremely vague and general. It is not linked to one of the protection claim grounds and there is no explanation given, or for what reason, that fear of harm might likely be. In relation to the most likely discrimination and harassment, there are factual findings at [53] which rule out the possibility of the Tribunal reaching a state of satisfaction as to the complementary protection ground.
The other possible reason why the Applicants might fear harm from an individual or community, canvassed at the hearing yesterday, was a possibility arising from the wife’s exercise of her Pentecostal religion. The Tribunal made a finding that the DFAT country report stated that religious freedom was observed in practice, as I have said, referring back to [57]. That factual basis would appear to support the conclusion at [62] that the Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the wife being removed from Australia to Fiji, there was a real risk that she will suffer significant harm and thus she does not satisfy the complementary protection criteria.
Conclusion
I have had some difficulty in deciding this case. Without going into detail, it is in my opinion, an extremely weak case. However, it is true that there is no reference to a consideration of the wife’s claims that some individuals in the communities, and even some relatives, may harm or mistreat her should she go back to Fiji.
The Minister’s solicitor submits that there were the factual findings to which I have adverted, and that in any event the claims are subsumed by findings of greater generality which, whilst not specifically expressly referring to individuals or communities, nonetheless address them.
There is much force in what the Minister’s solicitor puts. However, I remain guided by the principles as expressed by Mortimer J in MZABP and the caution expressed by Wigney J in SZTES. Distinguishing between grounds that are hopeless and destined to fail, and those which are properly described as weak, I have concluded that the Applicants’ proposed ground of judicial review falls on the side of weak, but not hopeless.
The application for an extension of time should be granted. I do so on the basis that the Applicants file and serve a further amended application for judicial review articulating the ground pressed orally, as it is that ground which I have accepted as weak, but not hopeless. In relation to the grounds as set out in the Applicants’ written submissions, I do not consider that they have a reasonable prospect of success. I will make orders accordingly.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 4 September 2018
SCHEDULE
91R Persecution
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
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10
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