BGN16 v Minister for Immigration
[2018] FCCA 2567
•14 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGN16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2567 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant Protection visa – Tribunal proceeded with review after applicant through her legal representative informed the Tribunal the applicant did not wish to appear to give evidence and present arguments – whether the Tribunal ought to have made inquiries of the applicant before it proceeded with the review about the genuineness of the consent she had given – whether there was before the Tribunal a distinct claim the Tribunal failed to consider – whether the Tribunal acted unreasonably when, in relying on the applicant’s not having reported matters to the police, it failed to consider that the applicant may not have done so because she feared reprisals – whether there was any evidence to support applicant’s assertion that the applicant’s legal representative acted recklessly and without concern for the welfare of the applicant – whether there was any material before the Tribunal that ought reasonably to have suggested to the Tribunal that the applicant’s legal representative acted recklessly and without concern for the welfare of the applicant – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 427, 428, 476, 477 Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 |
| Applicant: | BGN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1313 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 August 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva (Direct Access) |
| Solicitor for the First Respondent: | Mr L Leerdam of DLA Piper Australia |
ORDERS
Pursuant to s.477(2) of the Migration Act (Cth) (Act) the 35 period provided by s.477(1) of the Act for making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Federal Circuit Court’s jurisdiction under s.476 of the Act in relation to the decision of the second respondent made on 1 March 2016 is extended to 25 May 2016.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1313 of 2016
| BGN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 25 May 2016 the applicant filed an application for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The Tribunal made its decision on 1 March 2016, which means the applicant applied to this Court outside the 35 period provided for by s.477(1) of the Act for the making of an application to this Court for a remedy under s.476. That, in turn, means that the applicant requires the Court to make an order under s.477(2) of the Act to extend the 35 day period provided for by s.477(1) before the Court can consider whether the applicant is entitled to a remedy under s.476 of the Act.
On 20 July 2016 I made consent orders in chambers. One of the orders was that a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with, and that the matter be set down for hearing before me on 3 August 2017. The orders do not refer to or otherwise suggest that in the application filed on 25 May 2016 the applicant was seeking an order under s.477(2).
At the commencement of the hearing before me counsel for the applicant submitted that the effect of the consent orders I made was that an order under s.477(2) of the Act had been made because the matter had been listed for hearing. After hearing brief submissions I indicated to counsel for the applicant that I considered that the applicant had to apply for an order under s.477(2) of the Act. An order dispensing with a show cause hearing is incapable of being construed as an order under s.477(2) of the Act.
With the agreement of the parties I heard submissions both on whether an order under s.477(2) of the Act should be made and on the substantive merits of the applicant’s claims, indicating that, in my reasons for judgment, I will consider separately the application for an order under s.477(2) and, if I were to be satisfied that such order should be made, the substantive merits of the applicant’s claims.
These reasons, therefore, are arranged as follows. First, I set out the principles relevant to the exercise of the power conferred by s.477(2) of the Act. Second, I set out the history of the application for review, including the Tribunal’s reasons for affirming the delegate’s decision. Third, I set out the evidence relevant to the applicant’s delay in making her application to this Court, and consider whether the explanation the applicant gives based on that evidence is reasonable or adequate. Fourth, I consider whether the grounds on which the applicant intends to rely if I were to make an order under s.477(2) of the Act are reasonably or sufficiently arguable. The grounds are contained in a document titled “Second Amended Application”. Fifth, I consider whether, in light of my conclusions about whether the applicant has given a reasonable explanation for her delay, and the apparent merits of the grounds stated in the Second Amended Application, I should make an order under s.477(2) of the Act. As will appear, I am satisfied that an order should be made. The final part of my judgment, therefore, is devoted to considering the substantive merits of the grounds of application set out in the Second Amended Application.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
[1] [2013] FCA 1284, [47]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case”, because they “are simply sensible guidelines developed by the courts which have utility in most cases”.[2]
[2] [2013] FCA 1284, [48]
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[3] Further:[4]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[3] [2015] FCA 1391 at [63] (cases cited omitted)
[4] [2015] FCA 1391 at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[5] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[6]
[5] [2015] FCA 1391 at [63] (cases cited omitted)
[6] [2015] FCA 1391 at [62] (cases cited omitted)
Course of proceeding of application for Protection visa
The applicant is a citizen of Jordan. She applied for a Protection visa on 15 April 2014, and stated her claims for protection in a statement that formed part of her application (Statement).[7] In the Statement the applicant claimed as follows:
[7] CB50-53
a)The applicant is single, born in 1952, and is a Christian Catholic. The applicant lived in a small town (Town N) that had a mixed Christian-Muslim population.
b)Before 1999 when she retired the applicant worked in hospitals. She lived in the hospitals during the week, and returned to Town N on the weekends. Between 1985 and 1999 the applicant’s home was not liveable, so the applicant stayed with either her sister or her late brother.
c)The applicant has siblings in Australia, and she had visited Australia five times before the last occasion she entered Australia holding a visitor visa.
d)Before the Arab spring, and especially the events in Syria and Egypt, there was religious tolerance, although not completely. In the past three years, however, following the civil war in Syria, the tolerance started to decrease rapidly, and the applicant could feel that change in Town N. The “fundamentalists and lack of tolerance education have contributed to acts of harassments, threats and vilifications against the Christian minority in my town including myself”.[8]
e)The applicant’s being a single woman living on her own in a small town in a Middle Eastern society has added to the applicant’s plight.[9]
f)On many occasions stones were thrown at the applicant’s house by some young men who appeared to be fundamentalists because the applicant does not wear a veil; and on one occasion unidentified bearded men tried to invade the applicant’s home, but the applicant’s neighbour “heard the commotion and came out and started to shoot in . . . the air to scare off the intruders”.[10] The applicant used to, but then stopped wearing a cross because she was subjected to ridicule and harassment.
g)Because of “heightened fundamentalist aggression”, police are stationed in churches to protect Christians from being attacked; and walking in the streets has become a daunting experience for the applicant, particularly because she does not wear a veil.
h)There is strong discrimination in employment with Christians always coming second or not being interviewed; Islamic fundamentalists are building mosques everywhere, especially in Christian areas to make Christians feel unwelcome; “[b]earded men harass Christian everywhere and they warn Christians that they have to convert to Islam or will be bashed and even killed if they don’t obey their orders”;[11] threatening graffiti against Christian is written on church walls, and “some congregations were threatened”;[12] and sections of the Jordanian private media sometimes use provocative language against Christians and other minorities.
i)There were some incidents in which Christian women in Jordan were bashed and “water fire thrown at them because they don’t wear veil or because they wear the cross”.[13]
j)As Christians are being killed and churches destroyed in Syria, Iraq, and Egypt, the applicant is “sincerely fearful that it is only a matter of time before the same happens to us in Jordan”.[14]
[8] CB51, [14]
[9] CB51, [15]
[10] CB51, [17]
[11] CB52, [24]
[12] CB52, [25]
[13] CB53, [28]
[14] CB53, [32]
The applicant supported her application with a psychological report.[15] The report concluded the applicant “has limited understanding and social skills that increase her vulnerability”, that her “presentation and the simplicity of her comprehension also suggest that to gain a clearer picture of her situation will require also interviewing her brother”, and that it “was clear in their interactions in the interview that she trusts him and looks to him”.
[15] CB64-66
By letter dated 11 September 2014 the Department of Immigration and Border Protection (Department) invited the applicant to attend an interview to discuss her application for a Protection visa.[16] The applicant responded by an email sent by her legal representative on 13 October 2014.[17] The applicant’s legal representative referred to his having spoken “face to face” when he attended the Department’s Sydney City Office on that day, and states the applicant “wishes her application to be assessed based on her written claims which she has submitted with her application”, and that the applicant “asks of this due to her health condition”. The email refers to the legal representative having provided medical certificates relating to the applicant’s health conditions, noting that the applicant’s examining doctor advised the applicant “is not fit to go through an interview process”.
[16] CB81
[17] CB87
The medical certificates to which the email refers appears to include a letter dated 11 October 2014 from what appears to be a general practitioner.[18] The letter states the applicant suffers from “multiple medical conditions”, including diabetes, hypertension, shoulder and back pain, as well as major depression and anxiety disorder. The letter also stated the applicant’s “memory would fail her”, and that the doctor was “investigating her for possible dementia”. The doctor then expressed the opinion that the applicant “is unable to stand any interview with the Department of Immigration”.
[18] CB89
The delegate assessed the applicant’s application for a Protection visa “on the papers only as per your instructions”.[19] By a decision made on 21 October 2014 the delegate refused to grant the applicant a Protection visa;[20] and on 31 October 2014 the applicant applied to the Tribunal for review of the delegate’s decision.[21]
[19] CB94.
[20] CB101-114
[21] CB115
By letter dated 2 February 2016 addressed to the applicant’s legal representative,[22] the Tribunal informed the applicant the Tribunal had reviewed the material before it, but was unable to make a favourable decision on that information. The letter, therefore, invited the applicant to appear before the Tribunal on 29 February 2016 to give evidence and present arguments. I find the letter constituted the Tribunal’s giving to the applicant notice under s.425A of the Act of an invitation made pursuant to s.425 of the Act to appear before the Tribunal to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. The Tribunal stated that if the applicant does not attend the scheduled hearing, it “may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss the application for review without any further consideration of the application or the information before us”.
[22] CB147
On 19 February 2016 the Tribunal received by fax a completed pro forma document titled “Response to hearing invitation – MR Division” (Response to Hearing Invitation Form) together with two other documents.[23] The Response to Hearing Invitation Form is apparently signed by the applicant, and contains ticks in boxes which conveyed that neither the applicant nor her representative intended to take part in the hearing, and that the applicant did not request the Tribunal to take oral evidence from another person. The first of the two other documents that accompanied the pro forma document is titled “Appointment of Representative”.[24] It is signed by the applicant appointing a legal representative. The second of the two documents is a document signed by the applicant (Consent not to Appear Document) in which she acknowledges as follows:[25]
[23] CB152-156
[24] CB155
[25] CB156
I . . . do not wish to attend the Tribunal Hearing scheduled to take place on the 29th of February 2016, at 1:30pm.
I would like to kindly ask the Tribunal to assess my case on the documents submitted alone.
The Tribunal proceeded to review the applicant’s case. After setting out the claims the applicant made in her application for a Protection visa, and noting that the applicant did not attend an interview with the delegate and declined to attend the hearing before the Tribunal, the Tribunal considered the applicant’s claims as follows:
a)The information contained in the applicant’s written claims for protection was not sufficiently detailed to enable the Tribunal to be satisfied the applicant faces a real chance of persecution for a “Convention reason”[26] in Jordan, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk the applicant will suffer significant harm.[27]
b)The Tribunal did not accept the applicant has been harassed, or verbally abused in the streets, or had stones thrown at her house, or that bearded men tried to invade her home and the neighbour had to shoot in the air to scare them away. The Tribunal found that given the seriousness of the incident it is reasonable to expect the applicant would have reported this to the police, but there is no indication the applicant approached the Jordanian security authorities.[28]
c)Although there might be isolated incidents involving Christians in Jordan, country information indicates the Jordanian government places security officers outside churches of some Christian denominations which indicates a willingness to provide protection if required.[29]
d)Country information does not support the applicant’s claims of harassment of Christians.[30]
e)There is no country information to support the claim that Christians suffer discrimination in employment. In any event the applicant was employed throughout her working life as a nurse, and now is retired.[31]
f)Despite arriving in Australia on 30 June 2013 the applicant did not submit a Protection visa application until 15 April 2014; and this was not indicative of someone who fears serious harm in Jordan.[32]
[26] “Convention” being a reference to the Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to Refugees.
[27] CB164, [14]
[28] CB164, [15]
[29] CB164, [16]
[30] CB164, [17]
[31] CB164, [18]
[32] CB165, [19]
For these reasons the Tribunal was not satisfied the applicant satisfied the criteria provided for by s.36(2)(a) of the Act or s.36(2)(aa) of the Act.
Explanation for delay
The evidence on which the applicant relies for not having applied to this Court within the 35-day period provided for by s.477(1) of the Act is contained in two affidavits the applicant made, one on 25 May 2016, and the other on 10 July 2017.
In her affidavit of 25 May 2016 the applicant deposes she read the Tribunal’s statement of decision and reasons and then sought Ministerial intervention that was unsuccessful. Other evidence corroborates what the applicant deposes in her affidavit. There is a letter dated 11 March 2016 from the applicant’s legal representative to the Minister requesting that the Minister intervene;[33] and a letter dated 6 May 2016 from the Department informing the applicant that the applicant’s request for Ministerial intervention had been assessed against the “Minister’s guidelines on ministerial powers (s351, s417, s501J)”, but that the Department assessed that the applicant’s request did not represent the types of circumstances that may be referred to the Minister.[34]
[33] CB167
[34] CB187
In her affidavit of 10 July 2017 the applicant says she does not “even remember whether or when a copy of the decision” of the Tribunal was given to her; that she did not understand what was going on; that all she knew was that she is was afraid to go back to Jordan, and that the applicant was “suffering mentally and I could not decide what to do”.
In the application as originally filed with the Court the applicant states in that section of the form of application headed “Grounds for extension of time” that the applicant had to apply for judicial review because, due to her medical condition, is unable to return to her country, and due to the worsening situation in her home country the applicant would like her case considered and natural justice applied.
Counsel for the applicant submitted that the explanation for the applicant’s delay in applying to this Court is that the applicant did not know of the 35-day period. I am not prepared to accept that explanation. It is true that in her affidavit made on 10 July 2017 the applicant deposed she was “suffering mentally and I could not decide what to do”. That does not necessarily imply the applicant was not informed, and thus came to understand, that she had the option of making an application to this Court, and that she had 35 days within to make such application. In any event, what the applicant deposed must be assessed with other evidence.
a)First, there is what she deposed in her affidavit of 15 May 2016. She says she read the Tribunal’s decision, and she decided to seek Ministerial intervention. The applicant does not there depose she could not decide what to do.
b)Second, the applicant had legal representation. In those circumstances I am not prepared to find the applicant was not made aware of the option of her applying to this Court within 35 days.
c)Third, the psychological report to which I have referred records that the applicant did not like to talk, but preferred her brother to talk. There is no evidence that the applicant’s brother was not involved in assisting the applicant and acting as her spokesperson in the applicant’s dealings with her legal adviser.
In short, I am not satisfied the applicant has given a reasonable or adequate explanation for not having applied to this Court within the 35-day period prescribed by s.477(2). On the material before me the inference is available to be drawn, and I find, that the applicant received advice about the options available to her, and she elected to apply for Ministerial intervention. As was stated by Jessup J in Vu v Minister for Immigration and Citizenship:[35]
I do not think that the applicant’s approach to the Minister under s 351 of the Act [being equivalent to s.417 of the Act] provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.
[35] [2008] FCAFC 59 at [29] (Gyles and Besanko JJ agreeing)
The parties made other submissions relevant to the applicant’s delay and the circumstances of the delay. It is not necessary, however, to refer to these submissions because, given the relatively short period of the delay, the matter that would be decisive in my making an order under s.477(2) of the Act is whether any one or more of the grounds on which the applicant proposes to rely if an order were made is reasonably or sufficiently arguable.
Apparent merits of proposed grounds
As I have already noted the grounds on which the applicant proposes to rely if I were to make an order under s.477(2) are set out in a document titled “Second Amended Application”. There are four grounds.
Ground 1
The first ground is as follows:
The Tribunal made jurisdictional error in that the Tribunal breached s425, s427 and s428 by not providing (a) a meaningful invitation to the hearing; and/or (b) a meaningful hearing to the applicant
Particulars
(a)The Tribunal had knowledge of the health, memory and potential dementia problems faced by the applicant;
(b)The Tribunal was aware that the applicant did not attend the Department hearing because of health issue;
(c)The Tribunal was aware that the applicant had serious issues with regards to attending interview;
(d)The applicant informed the Tribunal that “Please do not hesitate to contact me if you have any questions or concerns”
(e)The Tribunal failed to communicate that without oral evidence at the hearing the application was bound to fail; and
(f)The Tribunal failed to consider exercising the power under s428(1)(b), s427(1)(b), s427(1)(d) and s427(3)(a).
In his oral address counsel for the applicant took me to the psychological report and medical certificate to which I have already referred. Counsel also relied on Minister for Immigration and Multicultural and Indigenous Affairs v SZFML.[36] In that case the review applicant, through her agent, responded to an invitation from the Tribunal to appear before it to give evidence and present arguments that she wished to appear. The Tribunal notified the agent that it rescheduled the hearing. The agent responded by providing to the Tribunal a completed “Response to Hearing Invitation” form which indicated the review applicant did not want to come to the hearing. Scarlett FM found the review applicant did not consent to the applicant’s agent informing the Tribunal that she did not intend to appear at the hearing, and that that vitiated the Tribunal’s decision.[37] The Full Federal Court agreed.
[36] [2006] FCAFC 152
[37] SZFML v Minister for Immigration & Anor (No.2) [2005] FMCA 1947
Counsel also submitted that the applicant’s former legal adviser was “reckless in dealing with the applicant’s case”, and that the consent manifested by the applicant’s signing the Hearing Invitation Form and the Consent not to Appear Document was not an “informed consent”. This submission was not based on evidence of the circumstances in which the applicant signed the documents, for there is no such evidence. The submission is based on the proposition that an applicant’s deciding not to attend a hearing in response to a Tribunal’s invitation means there would have been a 100% chance of the applicant not succeeding.[38]
[38] T13.10
Ground 1 is not arguable or sufficiently arguable. First, it is not suggested the applicant did not sign the Response to Hearing Invitation Form and the Consent not to Appear Document.
Second, there is no evidence either from the applicant or from any other person (for example, the applicant’s brother) about the circumstances in which the applicant signed the Response to Hearing Invitation Form and the Consent not to Appear Document. In particular, there is no evidence about the advice, if any, the applicant was given about attending or not attending the hearing before the Tribunal; what the applicant understood by the advice she was given; what the applicant understood she signed when she signed the Hearing Invitation Form and the Consent not to Appear Document; or why the applicant signed these documents.
In these circumstances there can be no arguable basis for inferring, only from the fact that the applicant’s not appearing before the Tribunal might mean there would be a near certainty the Tribunal would affirm the delegate’s decision, that the applicant was not advised about the likely consequences of her not appearing before the Tribunal, or that she did not understand any advice that she may have received about the consequences of her electing not to attend the hearing before the Tribunal, or that the applicant did not understand that nature of the Response to Hearing Invitation Form and the Consent not to Appear Document which she signed, or that the applicant did not understand that the consequences of her signing the Response to Hearing Invitation Form and the Consent not to Appear Document was she would not appear at a hearing before the Tribunal. The applicant’s deciding not to attend the hearing before the Tribunal is consistent with the applicant’s having been properly advised, and her understanding such advice, of her right to appear before the Tribunal, and of the consequences of her deciding not to appear before the Tribunal.
Third, the medical and other evidence before the Tribunal could not reasonably have suggested to it that the applicant’s deciding not to attend the hearing was due to some medical or mental impairment, rather than to a genuine and informed consent, that ought to have led the Tribunal to consider exercising powers available to it to make inquiries of the applicant or of her lawyer about the genuineness of the applicant’s consent.
a)First, the psychological report, although noting the applicant has limited understanding and social skills, also noted that the applicant trusted and looked to her brother, and preferred her brother to talk on her behalf. The report could not reasonably be taken to have suggested the applicant lacked capacity to understand, and give a fully informed consent to matters relevant to her application for a Protection visa and her application for review of the delegate’s decision.
b)Although the medical certificate said the applicant suffers from “multiple medical conditions”, including diabetes, hypertension, shoulder and back pain, as well as major depression and anxiety disorder, it is not arguable that any of these conditions could reasonably be taken to have suggested to the Tribunal that they affected the applicant’s capacity to understand and give a fully informed consent to the matters to which she did consent. It is true the certificate referred to dementia, but that was put at the level of possibility, being a matter that was being or was to be investigated.
c)The applicant was legally represented; and the psychological report indicated that the applicant could speak with others through her brother whom she trusted. An available inference is that the applicant, with the assistance of her brother, signed the Hearing Invitation Form and the Consent not to Appear Document after seeking, obtaining, and understanding legal advice; and it is not arguable there was material before the Tribunal that could reasonably have suggested to it that this is not what in fact occurred.
The applicant’s having stated in the Consent not to Appear Document that the Tribunal should not to “hesitate to contact me if you have any questions or concerns”, whether considered alone or with all the other evidence, could not reasonably have suggested to the Tribunal that the applicant’s consent was not a genuine consent. In any event, the invitation was for the Tribunal to contact the applicant if it had any questions or concerns. By not contacting the applicant the inference is available that the Tribunal did not have any questions or concerns; and for the reasons I have already given, it is not arguable that there was any material before the Tribunal that could ought to have caused the Tribunal to doubt that the consent the applicant manifested by signing the Response to Hearing Invitation Form and the Consent not to Appear Document was anything but a genuine and fully informed consent.
Finally, I need to refer to the claim made in paragraph (e) of the particulars that the Tribunal failed to communicate that without oral evidence at the hearing the application was bound to fail. It is true the Tribunal did not specifically make that statement. The Tribunal, however, did state that on the material before it could not make a decision favourable to the applicant; and that was the reason she was invited to attend a hearing for the purpose of giving evidence and presenting arguments.[39]
[39] CB147
In these circumstances there is no reasonably or sufficiently arguable case that, on the material before it, the Tribunal ought to have considered whether it should exercise any of the powers conferred by s.427 or s.428 of the Act to determine whether the applicant’s consent manifested in the Response to Hearing Invitation Form and the Consent not to Appear Document was a genuine or fully informed consent before it could proceed with the review; and, therefore, there is no arguable or sufficiently arguable case that the Tribunal failed to comply with s.425 of the Act, or otherwise failed to provide the applicant with a meaningful opportunity to appear before it to give evidence and present arguments.
Ground 1, therefore, is not reasonably or sufficiently arguable.
Ground 2
Ground 2 of in the Second Amended Application is as follows (emphasis in original):
The Tribunal made jurisdictional error in that it failed to consider if the applicant has well founded fear of persecution as a member of a particular social group
Particulars
On Page CB 107.5 the Tribunal [sic] stated that:
I accept the applicant’s claim that she has never married. The applicant claimed that she fears for her safety being a single woman and living alone in a small town in a middle Eastern society.
However the Tribunal failed to make a finding whether she was a member of a particular social group consisting of “single women and living alone in a small town in a middle Eastern society” in order for it to further consider if she had well-founded fear based on membership of a particular social group
Although the ground refers to Tribunal having stated the applicant claimed that applicant fears for her safety being a single woman and living alone in a small town in a Middle Eastern society, that is intended to be a reference to the delegate having found the applicant made such a claim. The effect of ground 2 is that there was before the Tribunal a distinct claim based on the applicant fearing for her safety because she is single woman and living alone in a small town in a Middle Eastern society.
In his written submissions, counsel for the applicant submits the Tribunal failed to take the first step stated in a passage from the judgment of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs,[40] namely, to “determine whether the group or class within which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention”.[41] Counsel also submits, in effect, that the Tribunal’s identifying the applicant as claiming she fears for her safety being a single woman and living alone in a small town in a Middle Eastern society raised a material issue on the evidence.[42]
[40] [2003] HCA 26, at [26]
[41] An Outline of the Final Submissions of the Applicant, [19-20]
[42] An Outline of the Final Submissions of the Applicant, [21]
In my opinion, it is reasonably arguable the applicant raised a distinct ground based on her being a single woman and living alone in a small town in a Middle Eastern society, and that the Tribunal did not deal with such distinct claim.
Ground 3
Ground 3 is as follows:
The Tribunal made jurisdictional error in that the Tribunal was unreasonable or irrational in making a finding that the events claimed by the applicant didn’t take place because she didn’t report to police.
Particulars
See [14] AB [sic] 164. The Tribunal failed to consider that as a single woman living alone if the applicant reported any incidents to police she will be subjected to revenge attacks and her situation will only become worse.
In his written submissions counsel for the applicant referred to the Tribunal having referred to Jordanian authorities placing security officers outside churches of some Christian denominations. Counsel submitted that this “shows the level of threats faced by the Christians”, and that, therefore, under “this environment it would have been unreasonable to expect a woman living alone to make complaint that would bring definite reprisals”.[43] Counsel relies[44] on the passage from the judgment of Wigney J in Minister for Immigration and Border Protection v SZUXN[45] which the Full Federal Court set out in CQG15 v Minister for Immigration and Border Protection.[46] Counsel accepted that only “extreme” illogicality or irrationality will suffice to “make out an unreasonableness ground”, and that “[s]uch ground should not be used as a means of concealing what is in fact an attack on the merits of the case”.[47] Counsel submits that the proposition that “a single woman living alone without close relative would face retribution if she complains to the authorities” was a “basic proposition any reasonable Tribunal would have considered”.[48]
[43] An Outline of the Final Submissions of the Applicant, [24]
[44] An Outline of the Final Submissions of the Applicant, [25]
[45] [2016] FCA 516, at [54-56]
[46] [2016] FCAFC 146 at [60]
[47] An Outline of the Final Submissions of the Applicant, [26]
[48] An Outline of the Final Submissions of the Applicant, [30]
This ground is not arguable. There is nothing in the material that was before the Tribunal that could reasonably have suggested that the applicant would have faced retribution had she sought the protection of the authorities; and it is not arguable that such proposition is necessarily or self-evidently true in the absence of any evidence to support its truth.
Ground 4
Ground 4 is as follows:
Tribunal made jurisdictional error in that due to reckless behaviour on the part of the agent with no regard for the welfare of the applicant combined with at least partial knowledge by the Tribunal about the reckless behaviour stultified critically important natural justice provisions of the Div 4 of Part 7 of the Act.
Particulars
(a)The Agent’s conduct is reckless and without concern for the welfare and positive outcome for the applicant.
(b)The agent failed to get effective consent from the client;
(c)The agent failed to file submissions as required by the Tribunal;
(d)The agent failed to put a new statutory declaration with more evidence from the applicant to satisfy the Tribunal even if the applicant does not attend the Tribunal;
(e)The agent failed to put any relevant country information favourable to the applicant; and
(f)The Tribunal was aware of all these reckless behaviour and still went ahead with the decision.
This ground is not arguable. First, there is no evidence to support it. As I have already noted when considering ground 1, there is no evidence either from the applicant or from any other person (for example, the applicant’s brother) about the advice, if any, the applicant was given about attending or not attending the hearing before the Tribunal; what the applicant understood by the advice she was given; what the applicant understood she signed when she signed the Hearing Invitation Form and the Consent not to Appear Document; or why the applicant signed these documents. As I have also already noted, the applicant’s deciding not to attend the hearing before the Tribunal is consistent with the applicant’s having been properly advised, and her understanding such advice, of her right to appear before the Tribunal, and of the consequences of her deciding not to appear before the Tribunal.
Second, even if it be assumed, in the absence of evidence, that the applicant’s legal representative acted recklessly and without concern for the welfare and positive outcome for the applicant, it is not arguable there was anything before the Tribunal that could reasonably have alerted the Tribunal to the possibility that the applicant’s agent acted recklessly or without concern for the welfare and positive outcome for the applicant.
Should an order under s.477(2) be made?
I have found that one of the four grounds stated in the Second Amended Application is arguable. Although I am not satisfied the applicant has given an adequate explanation for her delay in applying to the Court, the delay, although not minimal, is also not exorbitant. Balancing all these matters I am satisfied that it is necessary in the interests of the administration of justice that I make an order under s.477(2) of the Act, and I will make such order at the time I publish these reasons.
Grounds of application
I have concluded that grounds 1, 3, and 4 of the Second Amended application are not reasonably or sufficiently arguable. For the reasons I have so concluded, I conclude that grounds 1, 3, and 4 fail. That, then, leaves me to consider ground 2.
I accept the applicant’s submission that the Tribunal did not consider that the applicant had made a distinct claim that she fears for her safety because she is a single woman and living alone in a small town in a Middle Eastern society (Asserted Claim). The question that arises is whether such claim was before the Tribunal.
The principles relevant to determining whether a claim is before a Tribunal are well established; and it will be sufficient if I only refer to two authorities. The first is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[49] where the Full Federal Court said:
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.
b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”. On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.
[49] [2004] FCAFC 263
The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[50] where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[50] [2004] FCAFC 160
The only basis on which it could conceivably be said the applicant raised the Asserted Claim is the statement contained in paragraph 15 of the Statement that “[b]eing a single and living alone in a small town in a Middle eastern Society has also added to my plight”. There are two things to note. The first is the context in which the statement appears, namely, the growing intolerance by fundamentalists of Christians, and such intolerance being manifested against the person and property of the applicant by stones being thrown at her home, by unidentified bearded men invading the applicant’s home, by fundamentalists swearing at the applicant, and the applicant’s being the subject of ridicule and harassment because she wore a cross. The second thing to note is that the statement refers to the applicant’s being single and living alone in a small town in a Middle Eastern Society as something that “added to” her plight.
When these two matters are considered, the applicant’s stating that she was a single woman living in a small town in a Middle Eastern Society could reasonably have suggested no more to the Tribunal than that the applicant claimed that her being a single woman living in a small town in a Middle Eastern Society exposed her to greater risk of harm that arose from her being a Christian than to which she would otherwise have been exposed had she been a single woman not living in a small town in a Middle Eastern Society. That claim, however, is necessarily predicated on the applicant’s claim that she suffered past harm, and feared future harm, because she is a Christian. It could not reasonably have been viewed by the Tribunal as raising a separate claim based on the applicant’s being a single woman living in a small town in a Middle Eastern Society, divorced from the claim that she has a well-founded feared harm because she is a Christian. The Tribunal considered but did not accept the applicant’s claim that she had a well-founded fear of harm because she was a Christian. Having not accepted that claim, the Tribunal necessarily did not accept the applicant’s claim that her plight, which could only be taken to have been a plight based on her claim she was a Christian, was added to because she is a single woman living in a small town in a Middle Eastern Society.
Ground 2, therefore, fails.
Disposition
I propose to make an order pursuant to s.477(2) of the Act extending to 25 May 2016 the time by which the applicant may make an application to this Court for a remedy under s.476 of the Act and then make an order dismissing the proceeding.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 14 September 2018
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