BFH15 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 561
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFH15 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 561
File number(s): MLG 1485 of 2015 Judgment of: JUDGE LUCEV Date of judgment: 14 July 2022 Catchwords: MIGRATION – Proposed grounds of judicial review –decision of Administrative Appeals Tribunal – citizen of Turkey – claims of religious conversion – claims of religious discrimination on basis of conversion if returned to Turkey – allegations concerning conduct of Tribunal – whether bias – where findings of inconsistency and implausibility in evidence to Tribunal – challenge to credibility findings – whether proposed grounds of review reasonably arguable
PRACTICE AND PROCEDURE – Extension of time – factors – whether substantial delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of judicial review reasonably arguable
Legislation: Migration Act 1958 (Cth) ss 36, 438, 476, 477
Federal Circuit Court Rules 2001 (Cth) r 13.03C
Migration Regulations 1994 (Cth) Sch 2, cl 866.411
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
CAF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1527
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CEV15 v Minister for Immigration and Border Protection [2017] FCA 976
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CQZ15 v Minister for Immigration and Border Protection [2019] FCCA 2239
EMT18 v Minister for Home Affairs [2019] FCA 1501
EMT18 v Minister for Home Affairs [2019] FCCA 660
GEQ18 v Minister for Home Affairs [2019] FCCA 3338
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Jiang v Minister for Immigration and Citizenship [2007] FCA 907
Jiang v Minister for Immigration and Anor [2007] FMCA 215
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590
Minister for Immigration and Border Protectionv SZMTA& Anor [2019] HCA 3; (2013) 264 CLR 421; (2013) 93 ALJR 252; (2013) 75 AAR 75; (2013) 363 ALR 599; (2013) 163 ALD 38
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2012) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZAPC v Minister for Immigration and Border Protection [2012] HCA 17; (2021) 95 ALJR 441
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZZW v Minister for Immigration and Border Protection and Another [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433
Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Re Refugee Review Tribunal and Anor; ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
WZANW v Minister for Immigration & Anor [2009] FMCA 1075
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 7 July 2022 Date of hearing: 27 July 2021 Place: Perth Applicant: In person (with the assistance of an interpreter) via Microsoft Teams Counsel for the First Respondent: Mr T Creedon via Microsoft Teams Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1485 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFH15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
14 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
3.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) filed on 30 June 2015 for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, BFH15, filed in the Melbourne Registry of this Court on 30 June 2015 for an order for an extension of time (“Extension of Time Application”) within which to make an application for judicial review (“Proposed Judicial Review Application”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Second Tribunal Decision” and “Tribunal” respectively”) of 31 March 2015 to affirm a 31 January 2013 decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant BFH15 a Subclass 866 Class XA Protection visa (“Protection Visa”).
Before the Second Tribunal Decision the Tribunal had made a previous decision (“First Tribunal Decision”) which was quashed by a consent order of the Court and remitted to the Tribunal for re-hearing.
BFH15 filed an affidavit on 30 June 2015 signed by him on 12 May 2015 (“First BFH15 Affidavit”) in support of the Extension of Time Application. The First BFH15 Affidavit annexes a copy of the Second Tribunal Decision and a four page submission (“First BFH15 Submission”). A further affidavit was filed by BFH15 on 8 December 2015 (“Second BFH15 Affidavit”) in support of an Application in a Case to reinstate the Extension of Time Application, which had been dismissed by a Registrar in the Melbourne Registry of the Court for non-appearance.
The Court Book (“CB”) was marked as Exhibit 1.
THE FIRST TRIBUNAL DECISION
The background to the First Tribunal Decision is as follows:
(a)BFH15 is a citizen of Turkey: CB 25;
(b)in about July 2011 BFH15 went guarantor for a friend and when the friend could not repay the debt, he was charged with breach of a debtor’s payment condition. BFH15 was sentenced to three months’ in prison: CB 66]-[67;
(c)BFH15 arrived in Australia as the holder of a Subclass 456 business visa on 23 October 2011: CB 313 at [1];
(d)on 17 July 2012 BFH15 applied for the Protection Visa: CB 14-50;
(e)BFH15 claimed that:
(i)if he had not left Turkey he would have been subject to harm, violence and torture: CB 31;
(ii)he feared psychological and bodily harm if he returned to Turkey: CB 31;
(iii)if he returned to Turkey his family would also be subject to violence and harm as a means of torture, which stops him from returning: CB 31;
(iv)a court judgment in Turkey requires him to go to prison where he will be subject to heavy torture: CB 31;
(v)psychological pressure had been imposed on him and his family and police officers came and continue to come to his family home in Turkey continually harassing his family and friends, damaging his business reputation and his family’s reputation irreversibly: CB 32;
(vi)he was currently under immense psychological pressure by the governing authorities in Turkey: CB 32;
(vii)he would never leave prison in Turkey alive and if he did he would be heavily impacted psychologically and his business credibility would be destroyed, leaving him unable to find work and look after his family: CB 32;
(viii)his children would be mistreated at school if he returned to Turkey and will not have a healthy upbringing: CB 32; and
(ix)he was wanted by law enforcement due to his political beliefs, his business and his cultural beliefs: CB 33;
(f)on 12 December 2012 the Delegate from the then Department of Immigration and Citizenship (“Department”) contacted BFH15 by phone to indicate that the Department did not have country information to show that BFH15 would face degrading punishment in Turkish prison. BFH15 suggested to the Delegate that this information is not collected because other countries do not wish to damage their diplomatic and commercial relationships with Turkey and that the Department obtain this information from other sources. BFH15 said that he would email the Department with the contact details of the organisations BFH15 suggested the Department contact: CB 243;
(g)on 17 January 2013 a Delegate from the Department contacted BFH15 by email inviting him to comment on some concerns the Delegate had about BFH15’s credibility including BFH15’s attendance at a local church following his conversion from Islam to Christianity and his fear of prison conditions in Turkey: CB 257-259;
(h)on 31 January 2013 the Delegate issued three certificates under s 438 of the Migration Act: CB 284-286;
(i)on 31 January 2013 the Delegate’s Decision refusing the Protection Visa was made: CB 260-283;
(j)on 28 March 2013 BFH15 applied to the Tribunal for review of the Delegate’s Decision: CB 287-291;
(k)on 20 August 2013 the Tribunal invited BFH15 to attend a hearing before the Tribunal (“First Tribunal Hearing”) on 19 September 2013: CB 307-309;
(l)on 19 September 2013 the First Tribunal Hearing went ahead without BFH15 appearing before it: BFH15 had made no request for an adjournment and provided no explanation for his non-appearance; and
(m)on 26 September 2013 the First Tribunal Decision affirmed the Delegate’s Decision: CB 310-321.
On 1 September 2014 a Judge in the Melbourne Registry of this Court made orders by consent (“Consent Orders”), first, extending the time under s 477(2) of the Migration Act for BFH15 to make an application for judicial review in relation to the First Tribunal Decision, and, second, quashing the First Tribunal Decision and remitting the matter to the Tribunal to be determined according to law: CB 323-324. The First Tribunal Decision was quashed by the Consent Orders on the basis that the Tribunal asked itself the wrong question in considering whether the harm feared by BFH15 was for reason of political opinion: CB 322.
SECOND TRIBUNAL DECISION
The background to the Second Tribunal Decision is as follows:
(a)on 9 September 2014 the Tribunal wrote to BFH15 to confirm that the matter had been remitted back to the Tribunal: CB 325-327;
(b)on 12 December 2014 BFH15 appeared before the Tribunal (“Second Tribunal Hearing”) differently constituted to the First Tribunal Hearing. The Second Tribunal Hearing lasted for almost two hours and BFH15 attended with a witness and had the assistance of an interpreter: CB 374-376;
(c)on 16 January 2015 BFH15 emailed the Tribunal with multiple untranslated Turkish documents and a written submission: CB 377-386, and again on 18 February 2015: CB 387; and
(d)on 31 March 2015 the Tribunal made the Second Tribunal Decision affirming the Delegate’s Decision not to grant BFH15 a Protection Visa: CB 394-403.
In the Second Tribunal Decision the Tribunal:
(a)set out discussions it had with BFH15 concerning whether he had been truthful about his circumstances in Turkey, his reasons for leaving and his fear of harm were he to return: CB 397 at [15];
(b)put to BFH15 its concerns that he applied for a Subclass 456 business visa (“Business Visa”) before the Turkish authorities declared that he owed money, noting that BFH15’s explanation that he planned to come to Australia for business purposes was inconsistent with his evidence to the Department that he obtained the Business Visa as an escape option and that when BFH15 thought that his appeal against the sentence would not be fair, he decided to flee Turkey: CB 397 at [16];
(c)explained that BFH15 applying for the Business Visa to come to Australia before the Turkish authorities declared he owed money, and before he was sentenced to a prison term, together with other inconsistencies in his evidence led the Tribunal to doubt that BFH15 had been truthful about his claimed circumstances in Turkey and his claimed reasons for leaving. This also lead the Tribunal to doubt that BFH15’s claim to fear harm if he were to return to Turkey was genuine: CB 397 at [17];
(d)noted its concerns that over 10 months had elapsed between BFH15 being granted a Business Visa on 13 January 2011 and his departure from Turkey on 21 October 2011, finding this was inconsistent with BFH15’s claimed circumstances in Turkey and claimed reasons for leaving: CB 397-398 at [18]-[19];
(e)put to BFH15 that it was concerned that when BFH15 applied for a Subclass 600 Visitor visa (“Visitor Visa”) on 19 January 2012 he did not declare his claimed circumstances in Turkey, and did not indicate he had a fear of harm if he were to return to Turkey. The Tribunal was particularly concerned that BFH15 did not declare that on 8 September 2011 he had been sentenced to three months’ prison for breaching a debtor’s payment condition, having answered “no” to the question “[h]ave you … ever: been convicted of a crime or offence in any country …” in his Visitor Visa application on 19 January 2012: CB 398 at [20];
(f)noted at the Second Tribunal Hearing that BFH15 said that at the time he applied for the Visitor Visa he had not been convicted of any offence, and that he had answered “yes” to similar questions in both his Protection Visa application and in the personal particulars for character assessment Form 80 completed on 24 July 2012. BFH15 claimed his Visitor Visa application was completed by an agency representative, and that he had just signed the Visitor Visa application: CB 398 at [21]-[22];
(g)did not accept that BFH15 had satisfactorily explained why he did not declare his circumstances in the Visitor Visa application, in particular that he had been sentenced to three months’ prison, and noted that it had discussed with BFH15 that he gave a completely different reason for wishing to remain in Australia. The Tribunal was also concerned that BFH15’s response indicated a preparedness to provide false or incorrect information or at best not to ensure that the information he submitted to the Department was correct: CB 398 at [23];
(h)found applying for the Visitor Visa to remain in Australia, rather than a Protection Visa, was inconsistent with his claim to fear harm in Turkey: CB 398 at [24];
(i)found that there was a significant delay of eight months between BFH15 arriving in Australia, and applying for a Protection Visa: CB 399 at [25]-[26], and that the delay was inconsistent with his claim that police had visited his family home in Turkey to arrest him just one week after he first arrived in Australia: CB 399 at [25];
(j)noted that BFH15’s wife, who had travelled to Australia with BFH15, returned to Turkey a few weeks after they arrived in Australia and the Tribunal considered that BFH15’s wife would not have returned to Turkey if BFH15 genuinely believed she would be at risk of harm as he had claimed: CB 399 at [27];
(k)noted BFH15’s daughter had remained in Turkey, which was inconsistent with BFH15’s claims that he fled Turkey because authorities would harm him and his family: CB 399 at [27]-[29];
(l)indicated that DFAT had noted a range of concerns with the documents submitted by BFH15 for verification, noting that DFAT could not make a definite assessment of the documents as this could have compromised the confidentiality of the Protection Visa application, noting DFAT’s observations about a document dated 16 November 2012 which included different fonts, incorrect information, typographical errors and missing information that should have been included: CB 399-400 at [30];
(m)found that documents relied upon to corroborate BFH15’s claim to have been sentenced to prison were not genuine: CB 399-401 at [30]-[35], and that the provision of these documents was an additional matter undermining BFH15’s credibility: CB 401 at [35];
(n)noted that BFH15’s evidence about his religion was inconsistent, that BFH15 had conceded during the Department interview that he did not know much about Christianity, and that these factors, along with his delay in applying for protection in Australia, led the Tribunal to doubt he ever attended church or developed an interest in Christianity, and to not accept BFH15’s claim that he had abandoned Islam and developed an interest in Christianity: CB 401-402 at [37]-[39] and [41];
(o)noted BFH15 had stated his religion was “Islam” in answer to question 14 in his Protection Visa application: CB 402 at [40];
(p)did not accept any of BFH15’s claims, and therefore concluded that BFH15 did not meet the criteria for a Protection Visa in ss 36(2)(a) or (aa) of the Migration Act, and was therefore not a person to whom Australia owed protection obligations: CB 403 at [45]-[48]; and
(q)affirmed the Delegate’s Decision not to grant BFH15 a Protection Visa: CB 403 at [50].
EXTENSION OF TIME APPLICATION
Procedural History
On 30 June 2015 BFH15 filed the Extension of Time Application in the Melbourne Registry of this Court: CB 1-6. BFH15 filed the First BFH15 Affidavit and the First BFH15 Submission along with the Extension of Time Application: CB 7-13.
On 11 November 2015 the matter came on for a First Court Date, and a Registrar of this Court made an order pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) that the Extension of Time Application be dismissed for non-appearance by BFH15 (“Registrar’s Orders”).
On 8 December 2015 BFH15 filed an application in a case seeking reinstatement of the Extension of Time Application (“Reinstatement Application”). The Second BFH15 Affidavit was filed in support of the Reinstatement Application.
On 25 July 2016 the Reinstatement Application was heard before a Judge in the Melbourne Registry of this Court. That Judge made orders dismissing the Reinstatement Application (“Reinstatement Dismissal Orders”) and ordering that BFH15 pay costs. There is nothing to indicate that either written or oral Reasons for Judgment were delivered in relation to the Reinstatement Dismissal Orders.
On 2 August 2017 (more than two years after the issuance of the Reinstatement Dismissal Orders) the Full Court of the Federal Court handed down judgment in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590 (“BJC16”) in which it was held, at [63]-[64] per Kenny, Griffiths and Mortimer JJ, that only the Court constituted by a Judge or the Chief Judge (and not a Registrar) had power under r 13.03C(1)(c) of the FCC Rules to dismiss an application at a First Court Date for non-appearance by an applicant.
15A search of the Court’s electronic court file has revealed no record of any orders made on 6 November 2019. There is an unsigned document in the usual form for orders headed “Order NOT Entered” (original emphasis) and dated 6 November 2019, but the body of that document contains no orders. The Minister’s Written Submissions filed on 22 July 2021 at [9] indicate that on 6 November 2019 the Court made orders setting aside the Registrar’s Orders and the Reinstatement Dismissal Orders, and providing a timetable for the filing of a Court Book and submissions by both BFH15 and the Minister (“Court’s Further Orders”), and that does not appear to be in dispute.
It does not appear that the Extension of Time Application was ever listed for hearing before a Judge in the Melbourne Registry. As was observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court has a large backlog”. The position was seemingly much the same in November 2019, at or about the time of the Court’s Further Orders, when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “[d]elays in the Melbourne Registry of this Court … would mean that it would be likely that the application would not be heard for some two to three years if transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy.
Because of the delay in listing migration judicial review applications before a Judge in the Melbourne Registry, this matter was re-allocated to the Perth Registry in June 2021. On 16 June 2021, a notice of listing was emailed to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for final hearing on 27 July 2021 before the Court as presently constituted sitting in the Perth Registry with a videolink to the Melbourne Registry.
On 15 July 2021 BFH15 emailed to the Chambers of Judge Kendall and Judge Lucev the following:
(a)an email from the Department dated 23 August 2016 containing details of an interview to discuss BFH15 no longer holding a valid visa as the Bridging E visa (subclass WE050) which he had held had ceased to be in effect as of 22 August 2016; and
(b)an undated written submission addressing his concerns with the Australian legal system and the upcoming hearing, the harassment he claims to have endured from Australian immigration officials, and an assault he claims to have been a victim of upon return to Turkey (“Second BFH15 Submission”),
and requested an adjournment of the 27 July 2021 hearing on the basis that he was located in Turkey and could not attend (“Adjournment Request”).
On 16 July 2021 BFH15 was advised by way of email from the Chambers of Judge Lucev that in response to the Adjournment Request leave had been granted for BFH15 to attend the hearing on 27 July 2021 by videolink.
On 27 July 2021 the matter was heard before Judge Lucev in the Perth Registry via videolink, with BFH15 appearing from Turkey and the Minister’s lawyer from Melbourne.
Minister’s Affidavits and Submissions
Affidavits affirmed by Thomas Patrick Creedon on 1 November 2019 (“First Creedon Affidavit”), 22 July 2021 (“Second Creedon Affidavit”) (five paragraphs”) and again on 22 July 2021 (“Third Creedon Affidavit”) (12 paragraphs) were relied upon by the Minister.
The First Creedon Affidavit indicates that BFH15:
(a)had departed Australia on 31 October 2016 and the Bridging visa (subclass WE-050) (“Bridging Visa”) previously held by BFH15, ceased on 31 October 2016: First Creedon Affidavit at [2]; and
(b)has not been granted any further visa and he is not currently the holder of a visa which would allow him to return lawfully to Australia. The Department regards him as “offshore”: First Creedon Affidavit at [3] and TPC-01.
The Second Creedon Affidavit confirmed BFH15’s offshore status, his having departed Australia on 31 October 2016 and that his Bridging Visa ceased on 31 October 2016.
The Third Creedon Affidavit detailed the contents of three certificates issued under s 438 of the Migration Act (“438 Certificates”).
Prescribed period for filing, delay and requirements
BFH15 had 35 days from the date of the Second Tribunal Decision, 31 March 2015, within which to file an application for judicial review: Migration Act s 477(1). The prescribed period within which BFH15 could apply for judicial review ended on 5 May 2015. The Extension of Time Application was filed on 30 June 2015, and so was made 55 days outside of the time limit prescribed by s 477(1) of the Migration Act.
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act. Under s 477(2) of the Migration Act the Court may order an extension of the prescribed 35-day period to seek judicial review if:
(a)an extension of time application is made in writing specifying why it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(a); and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to extend time: Migration Act s 477(2)(b).
Grounds
The Extension of Time Application has three grounds as follows (reproduced unaltered):
1.I sent mistakenly documents to Circuit Court Of Melbourne. In this case just lost me some time.
2. I couldn't get documents in time.
3. I got delayed bank information.
The Extension of Time Application constitutes an application for an order made in writing, and the grounds specify why it is said, by BFH15, to be necessary in the interests of the administration of justice to make the order. Thus the requirements of s 477(2)(a) of the Migration Act have been met.
Whether in the interests of the administration of justice
Law
In considering the law with respect to extending time in which to make an application for judicial review under the Migration Act regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide 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, and 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 CLR at 553 per McHugh J.
With the statements of principle above in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act are well established, but not closed, and can be summarised as follows:
(a)the extent of the delay
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)the merits of the Proposed Judicial Review Application,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Delay
This Court has said that a delay of 54 days is likely to be fatal to an application for an extension of time where there is no reasonable explanation for the delay: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 (“WZANW”) at [28] per Lucev FM. In EMT18 v Minister for Home Affairs [2019] FCA 1501 (“EMT18) at [29] per Rares J the Federal Court summarily dismissed an application for review of this Court’s judgment in EMT18 v Minister for Home Affairs [2019] FCCA 660 at [3] per Judge Street, where a delay of 41 days was held to be “not insignificant” in circumstances where the explanation proffered was not satisfactory. In CAF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1527 (“CAF20”) at [17] per Judge Lucev this Court found that a 55 day delay was substantial and weighed significantly against an extension of time being granted.
In this case the Court finds the 55 day delay to be substantial, and that alone weighs significantly against an extension of time being granted. As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and “[i]n all but very exceptional cases”, the limitation period should be “rigidly applied”. In the Court’s view, for reasons set out below in relation to both the explanation for the delay and whether the merits of the Proposed Judicial Review Application are reasonably arguable there is, on the evidence, nothing “exceptional”, or obviously exceptional, in the circumstances of BFH15’s case.
This is a case in which the delay in bringing the Proposed Judicial Review Application is sufficiently substantial to weigh against granting the Extension of Time Application.
Explanation for the delay
Generally, “the longer the delay, the more persuasive the explanation needs to be”: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J; see also, Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ. In this case the delay, although sufficiently substantial to weigh against granting the Extension of Time Application: see [33] above, is not such that persuasive explanation might not be capable of mitigating the delay.
BFH15’s explanation for the delay appears to be contained in:
(a)the grounds of the Extension of Time Application; and
(b)BFH15’s oral submissions at hearing.
There is nothing which goes to explain the delay in the First or Second BFH15 Affidavits or the First or Second BFH15 Submission, save that the Second BFH15 Submission refers to contact from the Department which was also the subject of oral submissions as set out below in essentially the same terms.
In the grounds of the Extension of Time Application BFH15 contends that he:
(a)“mistakenly sent documents” to the Court in Melbourne and this “just lost me some time”;
(b)“couldn’t get documents in time”; and
(c)“got delayed bank information”.
BFH15’s oral submissions included the following:
(a)after the matter was finalised the Department called him and advised him that he had to depart immediately, and they were calling him every second day and telling him that he needed to make arrangements and depart but they did not let him pursue any of his legal rights: Transcript p 5;
(b)the Department were constantly calling him. They threatened him with coming to his house and putting him into custody, and that this was contrary to the migration laws, specifically the “law 1951”, and they threatened to remove him forcefully: Transcript p 5;
(c)he still had all of the records and documents from the Department and these were very unpleasant: Transcript p 5; and
(d)after the hearing, which he says lasted fifteen minutes, was finalised the Department contacted him immediately and were prepared to act straightaway to deport him: Transcript pp 4 and 5.
There are several reasons why BFH15’s explanation of the delay is not satisfactory.
Insofar as BFH15’s explanation for the delay contained in the grounds of the Extension of Time Application is that he mistakenly sent documents to the Court, that he could not get documents in time and that he got delayed bank information, in the absence of any evidence, or proper explanation, as to what these matters relate to, it is unclear how these matters affected BFH15’s ability to lodge the Proposed Judicial Review Application, and they do not amount to a satisfactory explanation for BFH15’s delay.
The matters relied upon on in BFH15’s oral submissions, and to a limited extent in the Second BHF15 Submissions, to explain the delay do not do so. That is because the events of which BFH15 complains to explain the delay post-date the filing of the Extension of Time Application. The events complained of appear to relate to the hearing at which this Court made the Reinstatement Dismissal Orders on 25 July 2016, and the subsequent actions by the Department in seeking to deport BFH15, which resulted in his leaving Australia on 31 October 2016, being forcibly deported. Those matters post-date by more than a year the filing of the Extension of Time Application on 30 June 2015, and are incapable of, and do not, explain the delay in the filing of that application.
BFH15 also sought to rely upon an email sent to him by the Department on 23 August 2016 as an example of the harassment that he said he suffered at the Department’s behest. The substantive three paragraphs of the email are as follows:
…
Our records show that you last held a Bridging E visa (subclass WE050) which has ceased to be in effect as of 22 August 2016.
As you no longer hold a valid visa, you are currently an “unlawful non-citizen”. Should you remain in Australia without a visa you may be liable for detention and removal from Australia.
Please attend this office soon as possible to discuss your situation and regularise your immigration status.
…
Once again, the alleged harassment does not explain the delay, because the email was sent almost 14 months after the filing of the Extension of Time Application. Furthermore, as is evident from its terms, it is a standard email forwarded to BFH15 the day after the expiry of his then existing Bridging visa E, which points out that he may be liable for detention and removal from Australia as an unlawful non-citizen (a statement of fact), but which then goes on to invite him to attend one of the Department’s offices to discuss his situation and regularise his immigration status. Without more, this email does not constitute the harassment complained of by BFH15, and, therefore, in any event, would not explain the delay even if it were more proximate to the timing of the filing of the Extension of Time Application.
BFH15’s delay of 55 days is not insubstantial and has not been satisfactorily explained, and the failure to satisfactorily explain weighs against the grant of the Extension of Time Application.
Prejudice
The Minister’s written submissions did not assert any prejudice if BFH15 is granted an extension of time. At hearing the Minister accepted there was no prejudice that cannot be ameliorated by an order for costs: Transcript p 7. In the course of oral submissions the Minister observed, correctly, that an absence of prejudice is insufficient in itself to justify extending time: Hunter Valley Developments, FCR at 349 per Wilcox J.
In the circumstances the Court will treat prejudice as a neutral factor in relation to a grant of an extension of time.
Whether Proposed Judicial Review Application reasonably arguable
Grounds
The Proposed Judicial Review Application has two grounds, as follows (reproduced unaltered):
1.I DO NOT ACCEPT IMAGINARY,NON-REALISTIC 50-ARTICLE DECISION GIVEN BY THE RRT REPORTER ON ME.
2.I REQUEST THAT THE WRITTEN DOCUMENTS WHICH I SUBMITTED TO RRT COURT SHOULD BE EXAMINED AND ANALYZED BY INDEPENDET PANEL OF EXPERTS.
BFH15’s submissions
The First BFH15 Submission expands on the grounds of his Proposed Judicial Review Application:
(a)by claiming that the presiding Tribunal Member was “extremely angry and nervous” in the Second Tribunal Hearing and that she was not calm, and that it was “obvious that good results could not be obtained from a [hearing] conducted in such a negative environment and it happened accordingly”;
(b)by claiming that the Tribunal process was not conducted properly and that Second Tribunal Decision was written through copying without investigating and inquiring and that the First and Second Tribunal Decisions are “exactly the same”; and
(c)by raising particular paragraphs of the Second Tribunal Decision which BFH15 contested, specifically [16]-[18], [20], [27]-[28], [30], [33] and [35] of the Second Tribunal Decision, the contentions in relation thereto being set out hereunder.
As to [16] of the Second Tribunal Decision where the Tribunal found an inconsistency in BFH15’s evidence BFH15 asserts there was no inconsistency, and that the evidence of the reporter [scil. Member] was insufficient and false. BFH15 submitted that he got the Business Visa on 13 January 2011, and then waited for the Turkish court decision. On 2 February 2011 the other party’s lawyer applied to the court to punish him. On 29 July 2011 that same court sentenced him to three months’ imprisonment and he waited again because there was an appeal stage. He objected but a higher court approved the decision to jail him without waiting and immediately on 8 September 2011. BFH15 got on the plane destined for Australia on 21 October 2011 before he got that order from the higher Turkish court. After he entered Australia his lawyer gave him clear information and told him “do not ever return” to Turkey. BFH15 says he presented all related documents and all court decisions as evidence and cannot understand the inconsistencies and faults the Tribunal identified.
As to [17] of the Second Tribunal Decision where the Tribunal identified BFH15’s behaviours as insincere and evaluated him as not being frank, BFH15 says that this was not the place of the Tribunal and that the Tribunal Member ought not “put herself in the place of a psychologist [b]ecause there is no way that she could understand [his] situation” and that such assessments are “not the job of the [Tribunal]”.
As to [18] of the Second Tribunal Decision where the Tribunal identified BFH15’s lapse between his being granted the Business Visa on 13 January 2011 and his departure from Turkey on 21 October 2011, BFH15 submitted that the Turkish court decision was expected for a period of 10 months and that the opposite side also waited, as “[they] [have] a responsibility of a legal basis”. BFH15 said the Tribunal’s suspicions about the situation were on the “wrong path” and submitted that he did not leave Turkey until six weeks after his penalty had been finalised because he knew that the decision to arrest him would not reach him within two months. BFH15 “accelerated” his procedures in the last six weeks and went abroad and submitted that the Tribunal “could not understand this process well” and that “if [BFH15] had thought like [the Tribunal]” he would not have exited Turkey but that “[f]ortunately [he] did not think like her”.
As to [20] of the Second Tribunal Decision where the Tribunal questioned BFH15’s reasons for applying for the Tourist Visa, BFH15 submitted that he had applied for his Tourist Visa to “gain time” and that there was no “malicious intention and mysterious side of this behaviour” and that he was “already going to leave the country before the [six] month visa [the Business Visa] expired if all of [his] legal remedies came to an end” and that he had already explained this all to the Tribunal at [22] of the Second Tribunal Decision.
As to [27] of the Second Tribunal Decision where the Tribunal noted BFH15’s wife had returned to Turkey where their daughter had been residing in her parents’ time overseas whilst she was 16 years of age, BFH15 submitted that his daughter was “living alone defenselessly” and that his wife’s decision to return to Turkey whilst BFH15 was outside of Turkey was “completely her thought”, his wife having “instinctively decided that “[she] SHOULD BE WITH [their daughter]” (original emphasis). BFH15 submitted that he “condemned” the Tribunal’s misinterpretation of this behaviour.
As to [28] of the Second Tribunal Decision where the Tribunal questioned the date BFH15’s wife had attended a clinic for treatment for her psychological condition alleged to have been caused by police harassment in the context of the date BFH15 claimed it was declared he owed money and was sentenced to three months’ imprisonment, BFH15 submitted “[w]hy is it not accepted that the disease [i.e. his wife’s psychological condition] may be progressed after the police harass?! I clearly understood what this report means but I do not approve to explain it, do not reproach it myself”.
As to [30] of the Second Tribunal Decision where the Tribunal detailed its doubts as to the genuineness of BFH15’s documents, BFH15 submitted that the Tribunal was “completely in prejudice and thinks that all the documents are forged”, questioning “[i]s there not a single true one?”, claiming that the Tribunal was “looking for a fault of deficiency, dealing with details”. BFH15 submitted that he had explained the issue of the inconsistencies in the documents to the Tribunal: see Second Tribunal Decision at [32] and submitted that the Tribunal contacted the “Ministry” [scil. Department] “in order to determine the verification of the documents” but that the Department had been “unable to assess definitely because of violation of [BFH15’s] privacy”. BFH15 questioned how the Tribunal could claim that the documents were fake if the “Ministry [scil. Department] did not?”
As to [33] of the Second Tribunal Decision where the Tribunal questioned BFH15’s reasons for applying for the Tourist Visa, BFH15 submitted that the Tribunal “did not liked the two documents in question, found deficiencies according to her view” and that is why “she wanted the new ones”. BFH15 submitted that after he procured documents with new dates and original signatures and showed her, the Tribunal “created a new trouble” by questioning why the document dated 29 December 2014 was written in capital letters. BFH15 submitted that the documents were sent without being translated but that the “Immigration Office person who translated the documents [BFH15] submitted … made [BFH15] regret for having translated documents”. BFH15 submitted that the documents should have been translated but that if he had had the documents translated and then sent these on, “they would absolutely find mistakes”.
As to [35] of the Second Tribunal Decision where the Tribunal considered the sentence of three months’ imprisonment, BFH15 submitted that there was “no need to pass and scrutinize other documents” and that he did “not want to make further explanations”.
In conclusion, BFH15 stated that:
(a)he did not accept the imaginary, non-realistic 50 article [scil. paragraph] decision given by the Tribunal; and
(b)after this stage, he did not believe the Tribunal made an accurate decision,
and he requested that the written documents which he submitted to the Tribunal be examined and analysed by an independent panel of experts, including a Turkish lawyer whose opinion should be taken.
At hearing BFH15 made oral submissions as follows:
(a)the behaviour and approach of the judge [scil. Member] at the First Tribunal Hearing was not appropriate, the judge [scil. Member] was quite harsh, angry and pursued the matter in this way. BFH15 understood that the outcome of the First Tribunal Hearing would be undesirable and not in his interest. He requested that the documents be reviewed by a Turkish-speaking lawyer or someone within the Turkish community: Transcript p 4;
(b)the First Tribunal Hearing was only for 15 minutes and the other party or legal representative [scil. Member] said some quite harsh words to him as well, and the judge [scil. Member] stood up and said that the matter was now finalised, and he was left on his own: Transcript p 4;
(c)he was very upset at the time – he had provided a number of different documents and witnesses at the time, there were reports and reporters for the Department and they were not investigated further or looked into: Transcript p 4;
(d)he requested for there to be some further investigation at the time but that was not allowed or pursued. He suggested that he cover the costs associated with that further investigation because of the Tribunal’s unreliability but that was turned down: Transcript p 4;
(e)there was no response to his requests or his submissions in the matter: Transcript p 5;
(f)he had not been heard and in all the cases and hearings he had been to he was not treated well by any of the reporters [scil. Judges and Members]. He was accused of lying or mistreated altogether. He posed the question of how it is proved or established that he was lying and he was very upset throughout the whole process. He strongly did not believe that it was a fair ruling and a fair judgment: Transcript p 4; and
(g)he had all four of the reports [scil. Tribunal Decision Records and Court’s orders] and it was almost like these were the same report and there was no different information that was conveyed in any of those reports, they were identical to each other: Transcript p 5.
Minister’s submissions
The Minister relied upon his written submissions, and for the most part, his Second Written Submissions, which were as follows:
(a)BFH15’s first ground simply complained that he did not accept the Second Tribunal Decision and that this ground does not reveal jurisdictional error;
(b)BFH15’s second ground of review asks the Court to have documents provided by BFH15 in support of his Protection Visa application examined by an independent panel. The credibility of his claims, including the genuineness of the documents said to corroborate those claims, were findings of fact by the Tribunal. It is not open to BFH15 to invite the Court on judicial review to substitute its own view for the findings of fact in the Second Tribunal Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(c)the First BFH15 Submission contains a more particularised complaint about the Second Tribunal Decision, but the Second Tribunal Decision’s findings on BFH15’s credibility were based on inconsistent and implausible evidence provided by BFH15, and based on evidence before the Tribunal, and open on those materials, such that there was a probative basis for the findings made: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [41(b)] per Kenny, Griffiths and Mortimer JJ (“AVQ15”); and
(d)BFH15’s complaints do not reveal any jurisdictional error in the Second Tribunal Decision.
The Minister’s submissions at hearing were as follows:
(a)it is unclear how mistakenly sending documents to the Court or being able to get documents or being delayed in receiving bank information relates to the Proposed Judicial Review Application for judicial review;
(b)it was necessary to clarify that the Tribunal decision in question was the Second Tribunal Decision (which it raised for the purposes of clarity because BFH15 had raised a number of different matters in the history of the Protection Visa application);
(c)that in response to BFH15’s submission that the Tribunal Member presented in an angry manner, which it addressed as a submission that there was bias in the Tribunal’s conduct, the Minister submitted there was an absence of evidence to demonstrate that there was either actual or apprehended bias that affected the Second Tribunal Decision; and
(d)that while BFH15 may disagree with the factual findings of the Second Tribunal Decision, the Second Tribunal Decision was based on a number of independent or separate credibility findings, based on BFH15’s timeline and subsequent conduct in making the Protection Visa application.
Consideration – whether Proposed Judicial Review Application reasonably arguable
Reasonably arguable
In determining whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for BFH15 to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether BFH15 would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ). Or, as it was put in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469 at [9] per Brennan CJ and McHugh J, the merits of the proposed grounds may be assessed “in a fairly rough and ready way”.
Requirement for jurisdictional error
The Second Tribunal Decision may be set aside on judicial review on the basis of a material jurisdictional error in relation to a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ, MZAPC v Minister for Immigration and Border Protection [2012] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. Jurisdictional error may also be established by:
(a)in certain circumstances a denial of procedural fairness: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(b)actual or apprehended bias: Minister for Immigration and Multicultural Affairs v Jiang Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal and Anor; ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ;
(c)legal unreasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2012) 87 ALJR 618; (2013) 297 ALR 367; (2013) 115 ALD 248 (“Li”).
The question to be considered for the purposes of the Extension of Time Application is therefore whether there is a reasonably arguable material jurisdictional error in the Second Tribunal Decision.
Whether reasonably arguable jurisdictional error
BFH15’s first proposed ground of review simply complains that BFH15 does not accept the Second Tribunal Decision. Mere disagreement, and even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error, fact finding being a matter for the Tribunal, and the disagreement constituting, as here, no more than a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [61] per McKerracher, Griffiths and Rangiah JJ. The first proposed ground does not therefore reveal a reasonably arguable jurisdictional error.
BFH15’s second proposed ground of review asks the Court to have the documents provided by BFH15 in support of his visa application examined by an independent panel. The credibility of BFH15’s claims, including the genuineness of the documents said to corroborate those claims, were findings of fact for the Tribunal. It is not open to BFH15 to invite the Court on judicial review to substitute its own view for that of the Tribunal by having documents re-examined and reaching different conclusions on the subject matter of the documents: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Insofar as BFH15’s oral and written submissions make complaints about the First Tribunal Hearing and the hearing of this Court on 25 July 2016 which resulted in the Reinstatement Dismissal Orders those are not matters to which the Court can attend: the Court’s jurisdiction in relation to the Extension of Time Application is limited to a consideration of whether there is a reasonably arguably jurisdictional error in the Second Tribunal Decision.
BFH15 complains about the conduct of the Second Tribunal Hearing, and in particular that the presiding Tribunal Member was “extremely angry and nervous”. The Court notes that the Second Tribunal Hearing was conducted over a period of almost two hours, and that one witness was called, and as is evident from the Second Tribunal Decision the Tribunal “discussed” or “put” a number of matters to BFH15 at the Second Tribunal Hearing: see CB 397 at [15], [16], [18] and [19], CB 398 at [20] and [23], CB 399 at [25] and [30], CB 400 at [31] and CB 402 at [41]. There is nothing on the face of the Tribunal records (being the hearing record at CB 374-376 and the Second Tribunal Decision) which would indicate that the presiding Tribunal Member conducted herself in the manner alleged by BFH15. Importantly, BFH15 tendered no evidence to support this allegation, whether by way of a transcript or an audio recording of the Second Tribunal Hearing. In these circumstances, the allegation made by BFH15 in relation to the conduct of the Second Tribunal Hearing must fail as a matter of fact. Insofar as this allegation might constitute an allegation of bias, or to the extent that there is otherwise an allegation of bias raised generally in BFH15’s written and oral submissions, that allegation of bias cannot succeed for the same reasons, bearing in mind that it is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
BFH15 also makes an allegation that the First Tribunal Decision and the Second Tribunal Decision were in the same terms, which is, in essence, an allegation of jurisdictional error by reason of the Tribunal not considering the matter afresh or with an independent mind, it being a prerequisite to the exercise of the Tribunal’s powers under the Migration Act, that it bring to bear an independent mind to consideration of an applicant’s claims: MZZZW v Minister for Immigration and Border Protection and Another [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433 at [31] and [66] per Tracey, Murphy and Mortimer JJ. The allegation that the Second Tribunal Decision is exactly the same as the First Tribunal Decision does not withstand even cursory consideration.
The First Tribunal Decision dealt with three primary issues: jurisdiction, Refugee Convention claims and complementary protection claims. The Second Tribunal Decision did not deal with the jurisdictional issue (which related to an extension of time for the making of the application to the Tribunal) at all, and only dealt with two primary issues, namely the Refugee Convention claims and the complementary protection claims.
In relation to the Refugee Convention claims the First Tribunal Decision dealt with only two sets of claims related to BFH15’s religious beliefs and the corruption of judicial officers and imprisonment in Turkey, and did so in less than three pages and over 16 paragraphs at CB 316-319 at [23]-[38]. By contrast, in the Second Tribunal Decision the Tribunal dealt with the Refugee Convention claims (albeit not specifically under that heading) over almost six pages and 30 paragraphs from CB 397-403 at [16]-[45]. Importantly, BFH15’s credibility was not called into question at all in the First Tribunal Decision. By contrast, in the Second Tribunal Decision the Tribunal having set out BFH15’s claims under seven different headings (as opposed to two in the First Tribunal Decision), and having considered them, found that BFH15 had not provided truthful evidence of his claimed circumstances in Turkey or his fear of harm if he were to return: CB 402 at [43], and went on to specifically say that it did not accept any of the various claims that he made: CB 402-403 at [44].
In relation to complementary protection in the First Tribunal Decision the Tribunal dealt with that issue over almost three pages at CB 319-321 and 14 paragraphs: CB 319-321 at [39]-[52]. By contrast, in the Second Tribunal Decision complementary protection was dealt with in one paragraph: CB 403 at [46], and the claims were rejected in their entirety on the basis that the Tribunal had found that BFH15 was not a credible witness.
There were some paragraphs in both the First Tribunal Decision and the Second Tribunal Decision which were in the same or similar terms. Those paragraphs were either paragraphs setting out the relevant criteria and law which appear in almost every Tribunal decision in relation to Protection visa applicants, and also the concluding paragraphs as to the Tribunal’s lack of satisfaction and affirmation of the Delegate’s Decision, which are again paragraphs which are more or less identical in almost every Tribunal decision concerning Protection visas where the Tribunal decision is to affirm a delegate’s decision.
In the above circumstances no reasonably arguable jurisdictional error arises by reason of the allegation that the First and Second Tribunal Decisions are exactly the same.
In relation to the challenges to the various paragraphs (set out at [49]-[57] above) these essentially relate to disputed factual findings made by the Tribunal, and as such, constitute no more than a request for impermissible merits review contrary to long-standing principle, and in essence, requests the Court to substitute its own view for the findings of fact made in the Second Tribunal Decision, which the Court is not permitted to do: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Insofar as BFH15 seeks to challenge inconsistencies in the evidence referred to by the Tribunal, this again is part of the Tribunal’s fact-finding function, and there is nothing in the paragraphs complained about which would indicate that the Tribunal failed to have regard to relevant material, or had regard to irrelevant material, or made a finding that was affected by the degree of illogicality which is required, which must be extreme, to constitute jurisdictional error: SZMDS at [131] per Crennan and Bell JJ, and it cannot be said that the Tribunal’s factual determinations lack a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. As set out at [8] above, the Second Tribunal Decision demonstrates that the Tribunal engaged with the issues, considered the submissions made to it, engaged with relevant country information, and made factual findings which were open and available on the evidence, thereby fulfilling its statutory task.
BFH15 also asserts that credibility findings made by the Tribunal were not findings that it could or should have made, asserting that “such assessments” … “are not the job of the [Tribunal]”: First BFH15 Submission at page 2. In making findings on BFH15’s credibility the Tribunal had regard to various inconsistencies and implausibilities that it identified on the evidence before it, and having regard to those inconsistencies and implausibilities, made adverse credibility findings in relation to BFH15. Those inconsistencies and implausibilities meant that it was open for the Tribunal to make the credibility findings that it made in relation to BFH15: AVQ15 at [41(b)] per Kenny, Griffiths and Mortimer JJ; CQG15 at [40]-[42] per McKerracher, Griffiths and Rangiah JJ.
In relation to the documents which the Tribunal found were not genuine, there was sufficient evidence concerning the manner and form of those documents (including issues in relation to different fonts, incorrect information, typographical errors and missing information that should have been included: CB 399-400 at [30]), to allow the Tribunal to make its own assessment of the genuineness of those documents (which was part of its task in determining the claims made by BFH15). The fact that DFAT had not made an assessment because it had not made enquiries in Turkey because that would have compromised the confidentiality of BFH15’s Protection Visa application did not preclude the Tribunal from making an assessment as to the genuineness of the documents that it had before it.
In the above circumstances, BFH15 has failed to identify any reasonably arguable material jurisdictional error in the Second Tribunal Decision.
Other matters
Applicant’s departure from Australia
According to records held by the first respondent, BFH15 departed Australia on
31 October 2016 First and Second Creedon Affidavits. At the time of his departure he was the holder of a subclass WE-050 visa (bridging visa E). There is no record of BFH15 re-entering Australia since that time, and the Court notes that BFH15 appeared at the hearing by video-link from Turkey.
The Protection Visa for which BFH15 has applied can only be granted to a person “in Australia”: Migration Act, s 36(2)(a); Migration Regulations 1994 (Cth), Sch 2, cl 866.411. Therefore, any relief sought to be granted in respect of the Proposed Judicial Review Application would likely “lack utility”: SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J or “be an exercise in futility”: Jiang v Minister for Immigration and Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration and Citizenship [2007] FCA 907 at [30] per Bennett J. Thus, even if a reasonably arguable case for material jurisdictional error were to be established, the lack of available relief because BFH15 does not meet the “in Australia” criterion, must weigh against the grant of the Extension of Time Application, on the basis that he cannot now be granted the Protection Visa, and it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J.
Non-disclosure Certificates
The 438 Certificates: CB 284-286, cover three documents:
(a)an internal Departmental request for country-specific information relating to Turkey;
(b)Departmental communications including a report prepared in relation to Turkish finance and debt laws and practices; and
(c)Departmental notes regarding BFH15’s judicial review application in relation to the First Tribunal Decision.
The existence of the three 438 Certificates was not disclosed to BFH15 by the Tribunal in relation to either the First or Second Tribunal Decisions. The failure to disclose the existence of the three 438 Certificates to BFH15 in relation to the Second Tribunal Decision by the Tribunal did not constitute jurisdictional error because the 438 Certificates were neither relevant to nor relied upon by the Tribunal in the Second Tribunal Decision. It can be inferred that the Tribunal paid no regard to the 438 Certificates or their associated information: Minister for Immigration and Border Protection v SZMTAand Anor [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599 (“SZMTA”) at [47] per Bell, Gageler and Keane JJ. The Court notes that the documents the subject of the 438 Certificates (which are before the Court): Third Creedon Affidavit, were not adverse to BFH15 and were not discussed by or considered by the Tribunal. The Tribunal’s failure to disclose the existence of the 438 Certificates, or the information covered by them, gave rise to no realistic possibility that the Second Tribunal Decision could have been different if the 438 Certificates and the information they covered had been disclosed so as to allow BFH15 a full opportunity to make submissions, and could have had no bearing on any determination made in the Second Tribunal Decision: SZMTA at [49] per Bell, Gageler and Keane JJ, and particularly so in circumstances where the onus was on BFH15 to prove that it would have made a material difference, and BFH15 did not do so: MZAPC at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ (affirming SZMTA).
One final submission
On 5 July 2022 the parties were advised that judgment in this matter would be delivered on 14 July 2022.
On 7 July 2022 BFH15 forwarded to the Court, by way of letter, a final submission annexing a medical report. This final submission asserts that upon BFH15 returning to Turkey:
(a)on 8 December 2017 BFH15 was assaulted in public, and consequently hospitalised;
(b)he was the subject of a criminal trial which lasted three years in relation to which he was acquitted; and
(c)another case was brought to a criminal court in 2020 in which he was acquitted,
and that he had heard that some parties were going to try to sue him again, that he was wronged when he left Australia, and that he wanted these injustices to end, and for the Court to establish justice in line with the information and documents that he has given to it.
The events alleged all post-date the Second Tribunal Decision, and cannot therefore establish a reasonably arguable material jurisdictional error in the Second Tribunal Decision.
Where applicant is self-represented
The Court has been cognisant that BFH15 is self-represented, and that the Court must therefore endeavour to remain independently alert to the possibility of a reasonably arguable material jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. The Court does not consider that there is an otherwise discernible reasonably arguable jurisdictional error in the Second Tribunal Decision.
CONCLUSION
In relation to the Extension of Time Application the Court has concluded that:
(a)the length of the delay (55 days) is not insubstantial;
(b)there is no adequate explanation for the delay;
(c)the proposed grounds of the Proposed Judicial Review Application are not reasonably arguable; and
(d)there is not otherwise any readily discernible reasonably arguable basis for alleging material jurisdictional error in the Second Tribunal Decision,
and it is therefore not in the interests of the administration of justice to extend time under s 477(2) of the Migration Act for the filing of the Proposed Judicial Review Application.
It follows that there will be an order that the Extension of Time Application be dismissed.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; CAF20 at [53] per Judge Lucev.
ORDERS
The Court orders that:
(a)the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”;
(b)the name of the second respondent be amended to read “Administrative Appeals Tribunal”; and
(c)the Extension of Time application filed on 30 June 2015 be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 July 2022
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