BRE15 v Minister for Immigration
[2019] FCCA 1680
•20 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRE15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1680 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time – whether affidavit explaining delay necessary – whether non-compliance may be waived – factors for consideration – compliance waived. WORDS AND PHRASES – “interests of justice” – “interests of the administration of justice” – “administration”. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05 Federal Court Rules 1976 (Cth), O.1, r.8, O.54B, r.2 Federal Court Rules 2011 (Cth), r.1.34 Migration Act 1958 (Cth), Pt.7, ss.36, 91X, 256, 421, 430, 476, 477 |
| Cases cited: 1315946 (Refugee) [2015] AATA 3139 ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 BHP Billiton Ltd v Schultz & Ors [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 2 DDCR 78; (2004) 211 ALR 523; (2004) Aust Torts Report 81-776 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 Concise Oxford Dictionary, 7th Edn (Oxford: Oxford University Press, 1984) |
| Applicant: | BRE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 378 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 June 2016 |
| Date of Last Submission: | 30 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 20 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Barns (by video-link from Hobart) |
| Solicitors for the Applicant: | Corser & Corser |
| Counsel for the First Respondent: For the Second Respondent: | Ms E Tattersall Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.1.06 of the Federal Circuit Court Rules 2001 (Cth) compliance with the requirement for the applicant to file an affidavit under r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) be waived.
Pursuant to s.477(2) of the Migration Act 1958 (Cth) time in which to file the Originating Application be extended to the time of actual filing on 17 August 2015.
That a writ of certiorari issue quashing the decision of the second respondent made on 10 July 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 7 May 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 378 of 2015
| BRE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time (“Extension of Time Application”) in which to file an application for judicial review (“Proposed Judicial Review Application”) under s.476 of the Migration Act of a decision of the second respondent, the Administrative Appeals Tribunal (“BRE15 – Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant. The BRE15 – Tribunal Decision is at Court Book (“CB”) 194-214.
With the Proposed Judicial Review Application the applicant filed an affidavit sworn 30 July 2015 (“Applicant’s Affidavit”), annexing thereto a copy of the BRE15 – Tribunal Decision.
Amended Proposed Judicial Review Application
Pursuant to orders made by a Registrar of the Court on 28 October 2015 (“Registrar’s Orders”) the applicant filed an amended Proposed Judicial Review Application (“Amended Proposed Judicial Review Application”) on 25 November 2015. Given the Registrar’s Orders it is unnecessary for the applicant to seek leave to otherwise amend the Proposed Judicial Review Application. The Amended Proposed Judicial Review Application:
a)was filed by lawyers now acting for the applicant;
b)contained exactly the same grounds in support of the Extension of Time Application as were in the Proposed Judicial Review Application: see [5] below for those grounds;
c)annexed no further affidavit on behalf of the applicant; and
d)substituted five proposed grounds of review, of which only two (Grounds 4 and 5) were sought to be relied upon by the applicant at hearing.
Given the issues to be determined in these proceedings it is convenient to set out the grounds of the Extension of Time Application, the grounds of the Amended Proposed Judicial Review Application relied upon, and the parties’ submissions (both written and oral), before dealing with the various issues that arise.
The Extension of Time Application
The grounds in support of the Extension of Time Application are as follows (transcribed verbatim):
1.My case manager was sick. She didn’t tell me I need to apply to Federal Circuit Court in within 35 days. I can see her on 11/8/2015 but it too close to the due date. She helped me to fixed some claim, which wasn’t correct. In the morning 14/8/15. I have a fixed claim letter from her. I tried to fax my application to the fax number 08 9268 7208 or 08 9221 3261 But the fax machine wasn’t work properly. I have contact to FCC to report this problem.
Annexed to the Proposed Judicial Review Application as filed is a letter (“Applicant’s Letter”) in the following terms (again transcribed verbatim):
Federal Circuit Court
Letter request for an extension of time
Hi Sir/Madam
My name is [applicant’s name]. Dob: [date]. I am currently a detainee in Yongah Hill Immigration Detention Centre. The Administrative Appeals Tribunal has refused my application for Protection visa on 10/7/2015 but I only have this refusal letter on 13/7/2015. My understand in English are very little and I didn't know what I need to do correctly. My case manager who look after my case been sick for many days and hasn't told me I need to apply for Federal Circuit Court in within 35 days. I only know about requirement to apply this application when other detainee told me on 30/7/2015. However to get thing done in detention wasn't easy. Each process I need to book and take a time. On the 12 and 13 August 15, I have seen my case manager and she helped me to fixed some of claim wasn't correct. Morning on 14/8/2015 I've had this fixed claim letter from her and tried to fax to Federal Circuit Court on the fax number 08 9268 7208 or 08 9221 3261. All the faxing process need to be done by detention officer and took time because the officer was busy. Some thing was wrong with the system or the faxing machine was faulty, I don't know. It has tried to fax it couple of time but wasn't come through. I am sorry for this problem. My friend did ring to Federal Circuit Court to check and report this matter to Sharon. Dear Sir/Madam please consider this problem and give me an extension of time if possible.
Thank You for your Kindness !
Your sincerely
[applicant’s name]
Consistent with the intent of s.91X of the Migration Act the Applicant’s Letter has been anonymised to exclude the applicant’s actual name and date of birth.
Grounds relied upon
Grounds 4 and 5 of the Amended Proposed Judicial Review Application, which are the only grounds now relied upon by the applicant, are as follows:
4. The Tribunal failed to discharge its statutory task by failing to consider the Applicants' claims cumulatively as a whole.
Particulars
a) The Tribunal dealt with each integer of the applicants' claims individually and separately.
b) The Tribunal failed to consider whether the cumulative effect of those integers created a profile of persons with a well-founded fear of persecution on the basis of religion or imputed political opinion, or of person who face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia.
5. There was a constructive failure by the Tribunal to perform its function on review.
Particulars
a) The Tribunal … referred in paragraph 127 of its Decision to the applicant's circumstances in Sri Lanka and the consequences of his return to Sri Lanka.
b) The Tribunal … published an identically worded paragraph in 1315946 (Refugee) [2015] AATA 3139 (6 July 2015) paragraph 108.
c) The wording of paragraphs 127, 128 and 129 is identical to that publicised in paragraphs 109,110 and 111 of 1315946 (Refugee) [2015] AATA 3139 (6 July 2015).
d) The content of copied passages comprised an evaluation of the individual circumstances of the Applicant.
For the purposes of Ground 5 of the Amended Proposed Judicial Review Application it is relevant to observe that the member of the Tribunal making the BRE15 – Tribunal Decision and the decision of the Tribunal referred to in Particular (b) of Ground 5 (“Other Tribunal Decision”) is the same member of the Tribunal.
Applicant’s submissions
The applicant submitted that:
a)although he completed and signed the Proposed Judicial Review Application on 30 July 2015, it was not filed until 18 August 2015 (the Court notes, however, that the Proposed Judicial Review Application was in fact filed on 17 August 2015);
b)his explanation as to why the Proposed Judicial Review Application was filed four days after the expiry of 35 days (whereas in fact the delay is only three days: see [10(a)] above) is that:
i)he speaks little English;
ii)his case manager was ill;
iii)his case manager did not advise him of the time limit; and
iv)he relied on officials at the Yongah Hill Immigration Detention Centre (“Detention Centre”) to fax the Proposed Judicial Review Application to the Court,
and that this is an adequate explanation for the delay;
c)as the Proposed Judicial Review Application was only three days late being filed there is no prejudice to the Minister;
d)the Tribunal failed to discharge its statutory task by failing to consider the applicant’s claims cumulatively as a whole, and that there was a constructive failure by the Tribunal to perform its function on review;
e)the Tribunal referred in the BRE15 – Tribunal Decision to the applicant’s circumstances in “Sri Lanka” and the consequences of his return to “Sri Lanka”: CB 214 at [126] (the Court notes, and there is no dispute that, the applicant is a citizen of Vietnam);
f)in the BRE15 – Tribunal Decision the paragraphs at CB 214 at [120]-[125] inclusive, and the paragraphs at CB 214 at [127]-[129] inclusive, are, along with CB 214 at [126], identically worded to the Other Tribunal Decision, being 1315946 (Refugee) [2015] AATA 3139 (6 July 2015), at [99] and [102]-[111];
g)the copied paragraphs in the BRE15 – Tribunal Decision can be correlated with the Other Tribunal Decision as follows:
Other Tribunal Decision paragraph no.
BRE15 – Tribunal Decision paragraph no.
99 117
102 120
103 121
104 122
105 123
106 124
107 125
108 126
109 127
110 128
111 129
h)the Other Tribunal Decision at [100] and [101] is similar in phrasing to CB 213-214 at [118] and [119] of the BRE15 – Tribunal Decision and deals with the same subject matter, namely circumstances of detention and penalty;
i)the question in cases where there has been copying of phrases and paragraphs from another Tribunal decision is whether it can be said that the Tribunal brought an independent mind to consideration of an applicant’s claims: MZZZW v Minister for Immigration & Border Protection & Anor [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433 (“MZZZW”) at [31] and [66] per Tracey, Murphy and Mortimer JJ;
j)the enquiry that the Court has to make is to examine not only the extent of the copying but also its nature, context and degree; MZZZW at [31] per Tracey, Murphy and Mortimer JJ;
k)in this case there is copying of 11 paragraphs – that is 11 of 130 paragraphs – in the BRE15 – Tribunal Decision;
l)the paragraphs that are copied go, however, to cumulative consideration and conclusions about key issues of determination, such as the question of whether or not the criteria for significant harm under s.36(2A) of the Migration Act are met by the applicant and whether Australia has protection obligations under s.36(2)(aa) of the Migration Act;
m)the Tribunal has, by referring to Sri Lanka at CB 214 at [126], not determined whether or not the applicant faces a real risk of significant harm if returned to Vietnam;
n)this case is similar to that with which the Federal Court dealt in Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 (“Huluba”). In Huluba at 530 per Beazley J the Federal Court observed that:
It is obvious from the passages set out above that the second decision-maker used substantial portions of the report of the first decision-maker. The coincidence of the language makes any other conclusion improbable. Those passages contain critical findings. The question arises, therefore, whether this coincidence of language demonstrates a failure by the second decision-maker to bring an independent mind to the determination of the application.
o)in Huluba at 530 per Beazley J the Federal Court concluded that the use of the same language on “critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process”;
p)the same conclusion can be drawn with respect to the BRE15 – Tribunal Decision where the use of the same language taken from the Other Tribunal Decision on critical aspects of the BRE15 – Tribunal Decision is evident;
q)it is conceded that at a general level there is no legal error in using template or standard paragraphs: LVR (WA) Pty Ltd & Anor v Administrative Appeals Tribunal & Anor [2012] FCAFC 90; (2012) 203 FCR 166; (2012) 90 ATR 37; (2012) 57 AAR 374; (2012) 289 ALR 244; (2012) 128 ALD 489 (“LVR”) at [90] per North, Logan and Robertson JJ, however, where the paragraphs in question relate to the individual circumstances of the applicant, then closer scrutiny to determine if the Tribunal has approached its statutory function and exercised its jurisdiction to review the BRE15 – Tribunal Decision is required: LVR at [90] per North, Logan and Robertson JJ;
r)here:
i)the Tribunal has used paragraphs from the Other Tribunal Decision published four days before the BRE15 – Tribunal Decision;
ii)the subject matter is very similar;
iii)there was no acknowledgement of the copied material; and
iv)the material used deals with the individual circumstances of the applicant;
s)this case is distinguishable from cases where there is simply one incorrect reference to a country: see, for example, SZTGE v Minister for Immigration & Anor [2014] FCCA 1458 (“SZTGE-FCCA”); and
t)in this case the paragraphs go to conclusions and “cumulative consideration” and refer to Sri Lanka instead of Vietnam. It is a case where the country error coupled with the copied paragraphs, as noted in SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63; (2007) 238 ALR 611; (2007) 94 ALD 298 (“SZIFI”) at [33] per Greenwood J:
… suggest that the deliberative process going to the merits of the Appellant’s case was infused with notions which are erroneous and thus irrelevant to the Appellant’s case and suggest that the Tribunal member may have had in mind facts, circumstances and considerations referable to other cases. An inference is open either having regard to the workload before the Tribunal or perhaps because of the proximity of determination of other cases involving nationals from Indonesia and the People’s Republic of China [the countries mistaken in that case] that the required immediacy of focus and deliberation of the specific claims of the Appellant and the justice and merits of the case were influenced by erroneous considerations.
At hearing the Court raised with the applicant the issue as to whether or not the otherwise mandatory requirement under r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to file an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant the extension had been complied with, or whether the requirement to file such an affidavit ought to be waived, and whether because of the failure to put on further affidavit evidence it might be difficult for an extension of time to be granted, particularly given that the applicant was now represented by lawyers: Transcript, page 4. In response, the applicant indicated that:
a)there were grounds of application for an extension of time in the Applicant’s Letter, albeit that there was no affidavit and that the Applicant’s Letter was not in affidavit form;
b)the delay was “marginal” as to the number of days that the Proposed Judicial Review Application was out of time;
c)at the time the Proposed Judicial Review Application was filed the applicant did not have lawyers, and from the description given the Court understands that the briefing of Counsel (who appeared by video-link from Hobart) and lawyers for the applicant appears to be on a pro bono basis; and
d)there is no prejudice to the Minister by reason of the failure to file an affidavit for the purposes of r.44.05(2)(c) of the FCC Rules: Transcript, page 4.
Minister’s submissions
The Minister submitted that:
a)no evidence has been submitted to corroborate the applicant's claims, and, in the circumstances, there is no adequate explanation of the applicant's delay in commencing the proceedings;
b)the applicant has failed, pursuant to r.44.05(2)(c) of the FCC Rules to file an affidavit explaining the delay and showing why it is necessary, in the interests of the administration of justice for the Court to grant the extension. The Court should not dispense with that prescribed criteria, and waive compliance with r.44.05(2)(c) of the FCC Rules under r.1.06(1) of the FCC Rules, and the Extension of Time Application must therefore fail on the basis of non-compliance with r.44.05(2)(c) of the FCC Rules: AWS15 v Minister for Immigration & Anor [2016] FCCA 971;
c)it has not been established that the Tribunal failed to bring an independent mind to the assessment of the applicant’s claims;
d)it is accepted that a number of paragraphs from the BRE15 – Tribunal Decision are similar or identical to paragraphs in the Other Tribunal Decision;
e)the use of “template” reasons by an administrative decision-maker does not, of itself, indicate error: Minister for Immigration & Citizenship v SZQHH& Anor [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 (“SZQHH”);
f)when the BRE15 – Tribunal Decision is viewed as a whole and the nature, context and degree of the copying is reviewed no jurisdictional error is evident;
g)it is not contended by the applicant that the Tribunal failed to consider the applicant's specific claims, and the applicant cavils with the BRE15 – Tribunal Decision at CB 213-214 at [117]-[129] which relate to the applicant's chance of significant harm as a consequence of his illegal departure from Vietnam;
h)this matter is distinguishable from MZZZW and Huluba because the reproduced paragraphs:
i)were not substantial or substantive;
ii)do not relate to findings in relation to the applicant's credibility;
iii)do not copy findings and conclusions from an earlier Tribunal decision relating to the same applicant, and thus do not contain critical findings;
iv)CB 214 at [122] merely recites the content of s.36(2A) of the Migration Act; and
v)CB 214 at [127]-[129] do no more than provide final conclusions based on the Tribunal’s previous findings;
i)when viewed in context, the applicant’s claims in relation to his illegal departure were based on him being “a failed asylum seeker who is known to authorities because of the data breach that occurred in February 2014”: CB 197 at [21]. These issues, and the country information relevant to those claims were considered by the Tribunal at CB 211-213 at [104]-[115];
j)it was this country information that formed the basis of the Tribunal’s findings at CB 213-214 at [117]-[126]. Accordingly, the paragraphs complained of simply recite the Tribunal’s findings and relevant legal principles in relation to the Tribunal’s previous consideration of the applicant's claims rather than constitute findings about the applicant's claims at a specific level: CB 203 at [61];
k)furthermore, having regard to the BRE15 – Tribunal Decision as a whole, it is apparent that the typographical error made at CB 214 at [126] did not affect the exercise of power by the Tribunal: SZIFI at [45] per Greenwood J;
l)although the Tribunal erroneously referred to Sri Lanka rather than Vietnam at CB 214 at [126], the erroneous reference to Sri Lanka in this single paragraph was not a “central matter in the review of the decision of the Minister's Delegate”: SZIFI at [45] per Greenwood J, and did not suggest that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases”: SZIFI at [33] per Greenwood J. The Tribunal’s detailed assessment of the factual matters, which were relevant to both the applicant's refugee claims and his complementary protection claims, suggests the very opposite;
m)a number of features of the BRE15 – Tribunal Decision should be noted in this regard:
i)first, the Tribunal accepted, under the heading “Findings and Reasons” that the applicant is a citizen of Vietnam, his country of nationality is Vietnam and the country of reference is Vietnam: CB 204-205 at [76]-[78];
ii)second, the applicant advanced claims that he feared persecution and significant harm in Vietnam: CB 52-55, and it is apparent from the way in which the Tribunal dealt with those claims: CB 204-213 at [75]-[116] that the Tribunal understood that the country of reference was Vietnam; and
iii)third, the Tribunal concluded that the applicant did not have a well-founded fear that he would suffer persecution should he return to Vietnam: CB 213 at [115];
n)the Tribunal, at various points throughout the BRE15 – Tribunal Decision, made findings concerning the complementary protection criteria in relation to the applicant's risk of harm in Vietnam: CB 211 at [103] and 213 at [115]. The Tribunal's findings in relation to complementary protection were consequent upon the Tribunal's Convention-related findings (this is apparent from the Tribunal's use of the words “for the same reasons” and “nor does the Tribunal accept”: CB 213 at [114]) which involved an analysis of events the applicant claimed had occurred in Vietnam coupled with an assessment of country information about the present situation in Vietnam; and
o)accordingly, in the circumstances of this matter, the reference to Sri Lanka instead of Vietnam can be seen to be merely a typographical error: AZAEA v Minister for Immigration & Anor [2014] FCCA 1083 (“AZAEA”) at [16] per Judge Raphael.
Issues requiring determination
The issues which require determination in these proceedings are as follows:
a)should compliance with r.44.05(2)(c) of the FCC Rules, requiring that an affidavit be filed by the applicant explaining the delay in filing the Extension of Time Application be waived pursuant to r.1.06(1) of the FCC Rules?
b)should time be extended for the filing of the Proposed Judicial Review Application on the grounds set out in the Extension of Time Application, pursuant to s.477(2) of the Migration Act? and
c)is any jurisdictional error in the BRE15 – Tribunal Decision established by the grounds of the Amended Proposed Judicial Review Application that are still pressed, assuming that the time for the filing of the Proposed Judicial Review Application is extended pursuant to s.477(2) of the Migration Act?
Statutory framework
Section 477 of the Migration Act relevantly provides as follows:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” means:
(a) …
(b) …
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(d) …
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Section 430(2) of the Migration Act provides as follows:
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Rule 44.05 of the FCC Rules provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Rule 1.06(1) of the FCC Rules provided as follows:
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
Section 256 of the Migration Act provides as follows:
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
Extension of time generally
The Tribunal Decision was made on 10 July 2015: Migration Act, s.430(2). Under s.477(1) of the Migration Act the applicant had 35 days to file the Judicial Review Application. The final day on which to file was therefore 14 August 2015. The Proposed Judicial Review Application was filed on 17 August 2015. It was, therefore, three days out of time. The Proposed Judicial Review Application is therefore incompetent unless the Court grants an extension of time under s.477(2) of the Migration Act.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
There was no affidavit filed in support of the Extension of Time Application. It is a mandatory requirement pursuant to r.44.05(2)(c) of the FCC Rules that an affidavit explaining the delay be filed in support of an application for an extension of time in which to file an application under s.476 of the Migration Act, although compliance can be waived under r.1.06(1) of the FCC Rules, if it is in the interests of justice to do so: Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”) at [24] per Judge Lucev.
Whether compliance ought to be waived
The question which arises is whether it is in the interests of justice for the Court to waive compliance with the requirement for the applicant to file an affidavit explaining the delay.
In BHP Billiton Ltd v Schultz & Ors [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 2 DDCR 78; (2004) 211 ALR 523; (2004) Aust Torts Report 81-776 (“BHP Billiton”) the High Court considered the phrase “interest of justice”, and at [15] per Gleeson CJ, McHugh and Heydon JJ observed as follows:
15. The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff’s lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff’s early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
In BHP Billiton at [100] per Gummow J it was observed that the interests of justice “are even handed”, while it was otherwise said that the interests of justice refer to the requirement to “do equal justice”: BHP Billiton at [258] per Callinan J.
A similar dispensation with compliance power to that contained in r.1.06 of the FCC Rules is contained in r.1.34 of the Federal Court Rules 2011 (Cth) (“FC Rules 2011”), save that, in particular, there is no reference in the FC Rules 2011 to the “interests of justice” as appears in r.1.06 of the FCC Rules. The discretion inherent in such compliance dispensation provisions is usually regarded as a wide one: Lazar v Taito (Australia) Pty Ltd & Anor (1985) 5 FCR 395; (1985) 67 ALR 652, FCR at 414 per Neaves J, subject to the text of the relevant discretionary provision: Hua Wang Bank Berhad v Federal Commissioner of Taxation [2013] FCAFC 28; (2013) 92 ATR 809; (2013) 296 ALR 479 at [13] per Logan, Jagot and Robertson JJ.
In Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 (“Rishmawi”) Ms Rishmawi wrote to the Federal Court, identifying the file which had been before the then Refugee Review Tribunal (“RRT”), advised what the Tribunal had decided and that she had been advised of her appeal rights, and went on to state that she was making a formal application to the Federal Court for a review of the RRT decision: Rishmawi at [2] per Kiefel J. The “application” was in the form of a letter and did not contain grounds for the application, but Ms Rishmawi, who lived in north Queensland, asked that any relevant form be sent to her for completion: Rishmawi at [2] per Kiefel J. This was all done after the time for the filing of an application had passed: Rishmawi at [2] per Kiefel J. At that time the then Federal Court Rules 1976 (Cth) (“FC Rules 1976”) provided, in O.54B, r.2 that an application to review a judicially reviewable decision under the Migration Act had to be in accordance with a particular form which provided for the grounds for the application to be specified, the respondent to be named, and the claim for relief made: Rishmawi at [5] per Kiefel J. Having adverted to the power to dispense with compliance with any requirement of the then FC Rules 1976 contained in O.1 r.8 of the FC Rules 1976 the Federal Court went on to observe at [7] per Kiefel J that:
7. There is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require.
The Federal Court went on to observe that although the requirement for an application to be made in accordance with a particular form was cast in mandatory language, the power to dispense with compliance was “expressed in wide discretionary terms allowing waiver where there has been no compliance at all”: Rishmawi at [8] per Kiefel J. The Federal Court, having observed that it was plain that Ms Rishmawi was seeking to appeal the RRT decision, concluded that her letter ought to be regarded as the application filed: Rishmawi at [7] and [9] per Kiefel J.
In SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367; (2002) 121 FCR 185; (2002) 191 ALR 663 (“SAAK”) the Full Court of the Federal Court made obiter observations concerning the validity of an application which, contrary to the FC Rules was completed not in English, but in Farsi. Having referred to Rishmawi: SAAK at [48] per North, Goldberg and Hely JJ, the Full Court of the Federal Court went on to observe as follows at [49] per North, Goldberg and Hely JJ:
49 Where an applicant does not speak English and has no, or limited, access to translator services, it will generally be appropriate for the Court to dispense with any requirement that Form 56 be completed in English. The essential concern of the Court must be to adopt a process for communication which allows for an exchange between the Court and the litigants, and between the litigants themselves. In fact, this is the course which the primary judge adopted when he had the documents translated.
In SAAK the Full Court of the Federal Court then dealt with cases concerning translators, and the necessity to remove barriers to prevent understanding or communication: SAAK at [50]-[54] per North, Goldberg and Hely JJ, before concluding as follows at [55] per North, Goldberg and Hely JJ:
55 Applying the approach taken in these cases to the discretion to allow a witness to give evidence in a person's native language, especially in asylum cases, leads to the conclusion that ordinarily a person unable to speak English and without access to translation services (for instance, by reasons of being in detention) would be permitted to file a Form 56 filled out in a language other than English. Whether the person seeking to file the document is ultimately given leave to do so is a question to be determined by the Court. The application is not invalid by being in another language. It must be accepted for filing by the Court.
In SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 (“SZTKB”) the Federal Court was dealing with an application seeking leave to appeal from a decision of this Court in circumstances where the application for leave to appeal did not comply in a number of respects with the relevant rules under the FC Rules 2011. In the course of dismissing that application the Federal Court observed that:
a)the fact that an applicant is unrepresented is not, in itself, sufficient reason for non-compliance: SZTKB at [14] per Flick J (and cases there cited); and
b)the rules of a court should not be used as instruments of oppression: SZTKB at [14] per Flick J (and cases there cited).
The requirement that any compliance be in “the interests of justice” under r.1.06 of the FCC Rules is a test which is not significantly different to that implied under the FC Rules which require that there ought to be done “what justice appears to require”: Rishmawi at [7] per Kiefel J.
In Sandan at [26]-[27] per Judge Lucev this Court dealt with the issue of waiver in the context of the interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules, and said as follows:
26 The interaction between s 477(2) of the Migration Act and r 44.05(2)(c) of the FCC Rules appears to work in the following manner:
“a) if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r 44.05(2)(c) of the FCC Rules may be dispensed with;
b) any waiver under r 1.06(1) of the FCC Rules of compliance with r 44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; …
With respect to s.256 of the Migration Act in Le v Minister for Immigration & Ethnic Affairs & Ors (1994) 53 FCR 27 (“Le”) the Federal Court had before it an application to direct the Minister to bring two children in custody at the Port Hedland Immigration Detention Centre to a suitable place in Sydney and provide them with reasonable facilities to enable them to meet their next friend and legal advisers and prepare for a hearing in the Federal Court in relation to a review of the Minister’s decision to refuse to accord them refugee status. In the course of delivering a judgment which directed the transfer of the two children concerned the Federal Court, having referred to the relevant Second Reading Speech, went on to observe: Le at 33 per Sheppard J, that:
Those remarks establish that the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. That is how the section should be construed.
In NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99; (2002) 72 ALD 405 (“NAFC”) the Federal Court observed at [53] per Beaumont J that s.256 of the Migration Act “is a free-standing guarantee which must be given its own effect, wherever the detainee is held”. NAFC was appealed but nothing said on the appeal affects the view expressed at first instance: see NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 22.
In SZSPI v Minister for Immigration & Border Protection & Anor [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 (“SZSPI”) the Full Court of the Federal Court dealt with a question of whether an applicant had reasonable time and reasonable access to obtain legal advice prior to his removal from Australia. In SZSPI at [16] per Allsop CJ, Mansfield and Besanko JJ the Full Court of the Federal Court observed that:
16 It was accepted by the Minister, correctly in our view, that the affording of “all reasonable facilities” in s 256 incorporated having a reasonable time for doing the things referred to in that section. The statutory duty in s 256 thus effectively amounts to an entitlement of a detainee such as the applicant to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation.
and later observed that what is a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal from Australia will always depend on the circumstances: SZSPI at [49] per Allsop CJ, Mansfield and Besanko JJ.
The requirement, or free-standing guarantee as it was described in NAFC, that the applicant be afforded “all reasonable facilities” in relation to the taking of legal proceedings in relation to the applicant’s immigration detention, is in mandatory terms – “shall” – and is all-encompassing in relation to the provision of reasonable facilities – “all reasonable facilities”. It would not be in the interests of justice if the acts of the Minister’s employees or agents responsible for the supervision of the applicant in detention acted, advertently or inadvertently, in a manner which may have prevented, contributed to, or resulted in, the applicant not filing the Proposed Judicial Review Application on time in circumstances where there may be reason to doubt that the applicant has been afforded “all reasonable facilities” in relation to the taking of legal proceedings whilst in immigration detention. In light of the meaning accorded to s.256 of the Migration Act the interests of justice require that everything should be done by those responsible for an applicant whilst in detention to enable an applicant to utilise all reasonable facilities to make an application on time.
In the Court’s view there are several circumstances which, in the interests of justice, justify the waiver of the requirement to file an affidavit for the purposes prescribed in r.44.05(2)(c) of the FCC Rules, including the following:
a)the Applicant’s Letter provides his account, in some, and for the Court’s purposes, sufficient, detail as to the matters upon which the applicant could rely for the purposes of explaining the delay in filing the Proposed Judicial Review Application: Rishmawi at [7] and [9] per Kiefel J, and in that regard the Court notes that its central concern must be a proper exchange between the Court and litigant: SAAK at [49] per North, Goldberg and Hely JJ;
b)it is evident from the Applicant’s Letter that there were, and it may otherwise be inferred in the circumstances of this case, that the applicant may not have been afforded all reasonable facilities in relation to the taking of these proceedings whilst in immigration detention. In that regard the Court notes that the applicant’s case manager was said to be on sick leave for some time, and not to have informed the applicant of the relevant time deadline, which he only became aware of from another detainee when some 20 of the 35 days had already elapsed, and it might be inferred from the Applicant’s Letter that there was no acting or substitute case manager appointed to assist the applicant in relation to the Proposed Judicial Review Application, or otherwise. Furthermore, it would appear that the facilities for transmission of documents to this Court were not all that they could have been, and that the assistance afforded the applicant on the day upon which the applicant originally sought to facsimile file the Proposed Judicial Review Application was not all that it could have been, and as a consequence of that, together with the fact that the actual transmission needed to be facilitated by an otherwise busy detention officer, meant that the Proposed Judicial Review Application was not filed within time on 14 August 2015;
c)that it would be unjust, in the circumstances, particularly as to the applicant’s immigration detention and what appears to have occurred (and not occurred) in immigration detention, to deny the applicant the opportunity to explain the delay by reference to the Applicant’s Letter, and in that regard the Court notes that, at least from the applicant’s point of view, the outcomes of this process might ultimately be significant in relation to the applicant’s life or liberty were he to be returned to Vietnam;
d)that, for reasons otherwise set out below, the applicant has a plainly arguable case for an extension of time, and it would be unjust to deny the applicant an opportunity to explain the delay, when the applicant has endeavoured, seemingly in good faith, by means of the Applicant’s Letter, to explain the delay to the Court; and
e)whilst it is the case that an applicant in migration proceedings, whether in immigration detention or not, is not entitled as of right to the services of a lawyer: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time period: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J.
In forming the above views the Court has not overlooked the fact that by reason of the Registrar’s Orders the applicant was given the opportunity to file and serve any amended application giving complete particulars of each ground of review, and to file and serve any affidavit containing additional evidence, by 25 November 2015. The applicant, by this time represented by lawyers, did file an amended application (being the Amended Proposed Judicial Review Application), but did not file any further affidavit material. There is no evidence or explanation as to why there was a failure to file further affidavit material in accordance with the Registrar’s Orders, but it may be because the Registrar’s Orders did not go so far as to refer to, or provide that, affidavit material might be filed in relation to Extension of Time Application (albeit that an affidavit for the purposes of r.44.05(2)(c) of the FCC Rules is not the subject of a time limitation, and it would appear that an affidavit for these purposes might have been filed at any time prior to the hearing in this Court). Otherwise, from the failure to file such an affidavit, it can be inferred that the necessity to do so was overlooked by the applicant’s lawyers. An error or oversight by an applicant’s lawyer, particularly having regard to the applicant’s circumstances, ought not be treated as if it were a default by the applicant: Christie v Harvey (1900) 2 WALR 146 at 150 per Hensman J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), FCR at 351 per Wilcox J; Doyle v Gillespie [2010] ACTSC 21; (2010) 4 ACTLR 188; (2010) 173 ACTR 66 at [53] per Refshauge J; Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327; (2011) 246 FLR 430; (2011) 63 AILR 101-314 at [58]-[67] per Lucev FM. Thus, and notwithstanding the Minister’s properly put submission to the contrary: see [12(a) and (b)] above, the Registrar’s Orders are not an impediment to the waiver of the requirement to file an affidavit for the purposes of r.44.05(2)(c) of the FCC Rules.
Conclusion on waiver
In all of the above circumstances the Court has concluded it is in the interests of justice to exercise the discretion pursuant to r.1.06 of the FCC Rules to waive the requirement to file an affidavit for the purposes of r.44.05(2)(c) of the FCC Rules. There will be an order accordingly.
Extension of Time Application – factors
Factors for consideration
The factors relevant to whether time should be extended are generally taken to be those set out in Hunter Valley Developments, FCR at 348-349 per Wilcox J as follows:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the other party or parties; and
d)the merits of the proposed application.
Delay – extent and explanation
In considering the law with respect to delay in making an application, and in particular a judicial review application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard 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; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, 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.
In this case the delay is minimal, being only three days, and the Court notes that two of those days were weekend days (that is, Saturday and Sunday). It follows that a significant period of time has not elapsed, and that this may mean (subject to consideration of the other factors) that the limitation period should not be rigidly applied: Marks at [16] per McHugh J. Where there is a short delay, and an otherwise arguably good case on the merits of a proposed application, the shortness of the delay will not weigh against an extension of time: MZZIV at [5] per Mortimer J. In the circumstances, the delay here is sufficiently short of itself for it not to weigh significantly against the exercise of the discretion to extend time.
As was observed in SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J. In this case there is certainly no failure to provide an explanation, and the issue is whether or not the explanation which is given is adequate. In this case, there were reasons specifically posited by the applicant (particularly in the Applicant’s Letter), but there were also reasons not expressly articulated which arose out of the materials before the Court. All of those reasons are dealt with below.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J. This, however, is not a case of ignorance of time limits as the applicant was aware from on or about 30 July 2015 that he had 35 days from the date of the BRE15 – Tribunal Decision to file an application for judicial review of BRE15 – Tribunal Decision. By the time that the applicant became aware of the time limit he had however lost 20 of the 35 days of the time limitation.
Insofar as the applicant complains that he has limited English, that is not uncommon, and indeed probably more common than not, in applications to this Court for judicial review of decisions of the Tribunal concerning protection visa applications. In relation to the applicant’s English language skills there is no evidence that the applicant is in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. Notwithstanding the fact that the applicant does not understand English, and did not initially have the services of a lawyer, these are matters which require some consideration: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J, but of themselves, do not explain the delay. The Court, in any event, needs to be cautious in placing too much reliance on matters like these lest too ready an acceptance of them makes an extension of time the rule and not the exception on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority CLR at 553 per McHugh J. Further, it needs to be remembered that upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of the Tribunal Decision: Marks at [17] per McHugh J, although too much ought not be made of that fact in circumstances where the delay is just three days, and only one working day. In this case, the applicant’s limited English skills would not have assisted him in understanding and completing the relevant forms on which to make the application, or in his communication to and from his case manager and those officers at the immigration detention centre who might have assisted him in making the Proposed Judicial Review Application.
There are number of matters raised by the applicant which warrant consideration by reason of s.256 of the Migration Act, and the obligations arising thereunder, which are set out above at [33]-[36]. In essence, it is fair to observe that the applicant has not, in the Court’s view, been afforded a level of assistance whilst in immigration detention consistent with the requirements and guarantees imposed by the statutory duty in s.256 of the Migration Act, and the requirements of proper public administration. In that regard, the Court notes that:
a)the applicant’s case manager appears to have been on sick leave during part of the relevant 35 day time period, and there is no indication that there was a substitute case manager with whom the applicant was able to deal during that period;
b)the applicant, with his limited command of English, was not told by those by whom he was detained of the relevant time period, or the time at which that period expired, for the making of the Proposed Judicial Review Application;
c)as a consequence of (a) and (b) above the applicant lost 20 of the 35 days of the limitation period, and would have lost more of that period had he not been made aware by another detainee of the limitation period; and
d)on the day on which the applicant endeavoured to facsimile file the Proposed Judicial Review Application, being the last day of the limitation period, it does not appear that any particular efforts were made by the officers responsible for endeavouring to assist the applicant, to ensure that the Proposed Judicial Review Application was filed on time, and particularly so in circumstances where the applicant was obliged to book a time for the sending of the facsimile, it might be expected that when the facsimile did not transmit, the officers concerned would, consistent with the requirements of s.256 of the Migration Act, then take all reasonable steps to endeavour to ascertain the reason for the transmission failure, and what steps might be taken to ensure a successful transmission before the end of the limitation period. It does not appear that they did so.
Setting aside the nature of the requirements under s.256 of the Migration Act, the Court also bears in mind that at a practical level:
a)there were plainly difficulties in transmitting the facsimile, and having to book a time at which to send the facsimile, which was not then sent at that time as a result of the transmission failure; and
b)in detention the applicant would have more limited access to advice, or proper advice, or relevant assistance, than the applicant would have if the applicant were not in detention.
The Court also notes that it appears that:
a)the applicant made an effort to ensure that the Proposed Judicial Review Application was filed on time, and in that regard can be said to have used his best endeavours to ensure that outcome; and
b)if the facsimile transmission had been successful on 14 August 2015 the Proposed Judicial Review Application would have been filed within time.
Having regard to the foregoing matters, the Court is of the view that there is a more than adequate explanation for the delay in filing the Proposed Judicial Review Application.
Prejudice
Although the Minister does not contend that he would be prejudiced by reason of the delay, the mere absence of prejudice to the Minister cannot of itself justify the exercise of the discretion to extend time: Hunter Valley Developments FCR at 349 per Wilcox J; SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett.
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue the Amended Proposed Judicial Review Application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end, and the Minister had a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation under s.477(1) of the Migration Act: Marks at [17] per McHugh J. That degree of prejudice must, however, remain absolutely minimal in the context of proceedings where it is also necessary to give consideration to:
a)the shortness of the delay, being just three days and only one working day; and
b)the merit of the Amended Proposed Judicial Review Application,
as factors in determining whether to extend time.
Merits of the Amended Proposed Judicial Review Application
Grounds 4 and 5 of the Amended Proposed Judicial Review Application, which are the only grounds now relied upon by the applicant, are set out at [8] above.
In determining whether the merits of the Amended Proposed Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: Actew AGL Distribution v Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J, 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 at [6] per Mortimer J. Determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court 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 the applicant 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, reveal 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 merit: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. In an extension of time context, an assessment of the merit of the case is therefore relatively broad. It is nevertheless, these being proceedings seeking prerogative relief, necessary to bear in mind the effect of a limitation period, like that under s.477(1) of the Migration Act, is that it may often result in a good cause of action being defeated: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
The Court has, therefore, at [55]-[57] below, independently considered grounds 4 and 5 of the Proposed Amended Judicial Review Application for the purposes of the Extension of Time Application on the bases set out at [53] above.
In relation to ground 4 there can be no doubt that whilst a Tribunal is entitled to deal separately with each element of an applicant’s claim, it still has to engage in the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [7] per Merkel J, cited with approval in MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 (“MZZUG”) at [47] per Murphy J, provided that where all of the individual bases of a claim have been rejected by a Tribunal there is no obligation to consider a cumulative, or some other cumulative, basis for an applicant’s claim: SZNKO v Minister for Immigration & Citizenship [2013] FCA 123; (2013) 140 ALD 78 at [135] per Barker J; MZZUG at [51]-[53] per Murphy J. In this case it is plain that the Tribunal considered each of the claims or bases for the claim raised by the applicant, and in each case, found that the applicant’s claims were not made out. It follows that there was not, on the face of it, a necessity for a cumulative consideration of the applicant’s claims by the Tribunal, and on this basis ground 4 is, for the purposes of consideration of the Extension of Time Application, is not arguable and nor does it have a reasonable prospect of success.
In relation to ground 5, for the Tribunal to copy a number of paragraphs constituting the majority of its consideration on the question of complementary protection from the Other Tribunal Decision, which concerned an applicant for a Protection Visa from Sri Lanka for the purposes of determining that issue in relation to an applicant for a Protection Visa from Vietnam, but to leave in the reference to Sri Lanka and omit any reference to Vietnam, not once, but twice, in the course of the BRE15-Tribunal Decision, must leave open the possibility that the Tribunal’s mind was infused with circumstances pertaining to Sri Lanka rather than Vietnam when the Tribunal purported to exercise its powers, and that those errors affected the exercise of that power, and that the errors affecting the exercise of the power were jurisdictional errors: SZIFI at [44]-[45] per Greenwood J, and, further or alternatively, that the Tribunal did not consider the matter afresh or with an independent mind: MZZZW at [60] and [66] per Tracey, Murphy and Mortimer JJ (both of those cases are discussed in more detail at [66]-[67] and [79]-[86] below respectively).
The Court is therefore of the view that, for the purposes of consideration of the Extension of Time Application, ground 5 of the Amended Proposed Judicial Review Application is arguable and has reasonable prospects of success.
In assessing the “interests of the administration of justice” similar considerations to those in BHP Billiton apply, noting, however, that the interests concerned relate to the “administration of” justice, and not just the interests of justice. Administration means “management”: Concise Oxford Dictionary, 7th Edn, Oxford, Oxford University Press, 1984) at page 13, and thus in s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules the Court’s attention is directed to the narrower consideration of the interests of the management of justice, that is the management by the Court of the proceedings pending before the Court, and not the more broadly based “interests of justice” as appears in the compliance waiver provision in r.1.06 of the FCC Rules.
The interests of the administration or management of justice is served by ensuring that a case, in which there was only a short delay in filing, where that delay was caused or contributed to by a failure to comply with the requirements of a statutory guarantee and by a failure of proper public administration on the part of those responsible for the applicant as a detainee, is not dismissed because of the consequences of such a failure or failures. That is further reinforced by the fact that this Court has treated the Applicant’s Letter as a document which meets the requirements of r.44.05(2)(c) of the FCC Rules in an alternative manner, and it does not therefore require any further impost on the management of the case by the Court than would otherwise be the case. Also, where, as here, the case raises a seriously arguable issue, consideration as to how the case is managed by the Court ought not, in the specific circumstances of this case, prohibit the Amended Proposed Judicial Review Application from proceeding. It follows that the Court considers that it is in the interests of the administration of justice for the purposes of s.477(2) of the FCC Rules that time be extended for the filing of the Amended Proposed Judicial Review Application.
Conclusion on Extension of Time Application
In the Court’s view the exercise of the discretion to extend time in this case weighs heavily in favour of extending time to file the Amended Proposed Judicial Review Application in circumstances where:
a)the delay in filing is very short, and in practical terms almost as short as it could be;
b)there is a more than adequate reason for the delay in filing of the Proposed Judicial Review Application;
c)the degree of prejudice to the Minister is absolutely minimal;
d)one of the two grounds of the Amended Proposed Judicial Review Application sought to be argued is arguable, and has reasonable prospects of success; and
e)it is in the interests of the administration of justice to extend time for filing of the Proposed Judicial Review Application.
The Court has therefore concluded that it is in the interests of the administration of justice to exercise the discretion in s.477(2) of the Migration Act to grant the Extension of Time Application. There will be an order accordingly.
The Amended Proposed Judicial Review Application
Background and applicant’s claims
Turning to the Amended Proposed Judicial Review Application, the background and applicant’s claims are as follows:
a)the applicant, a citizen of Vietnam, arrived in Australia in April 2013 as an irregular maritime arrival, and lodged a Protection Visa application on 30 June 2014: CB 22-93;
b)the applicant claimed to fear harm as a result of his religion, political opinion, illegal departure, the data breach and return to Vietnam as a failed asylum seeker;
c)the applicant specifically claimed that:
i)on 1 July 2012 a Catholic priest and two nuns were attacked and assaulted in an incident involving Vietnamese police officers and some gangsters: CB 52 at [5];
ii)on 3 July 2012 the applicant organised a protest in his village against what happened to the priest and nuns on 1 July 2012, and along with almost 60 other Catholics drove two buses to the church in the place where the attack against the priest and nuns occurred: CB 53 at [6];
iii)police officers stopped the buses, searched them, and confiscated the applicant’s camera, as well as recording the names and addresses of all those on the bus, and requesting them to return home, but as all of the protesters resisted this, the police let them go to the church: CB 53 at [7];
iv)on 5 July 2012 the applicant received a summons asking him to attend the police station. The applicant was arrested, detained for six days and beaten: CB 53 at [8];
v)from 10 July 2012 to 13 August 2012 the applicant received a summons every week and was harassed, intimidated and monitored by the police: CB 53 at [9];
vi)on 13 August 2012 the applicant received a summons to attend the police station but failed to attend: CB 53 at [10];
vii)on 14 August 2012 the applicant attended the police station as a result of a further summons and was beaten: CB 53 at [10];
viii)in early 2013 the applicant attended the police station late after being issued with a summons and was again beaten: CB 53 at [11];
ix)in early 2013 the applicant organised a second protest: CB 53 at [12]; and
x)since the applicant’s departure from Vietnam his family have been harassed and his father had died suddenly: CB 25;
(The Court notes that in the applicant’s claims at CB 53 at [8] and [9] the applicant refers to 5 and 10 July 2013, but this is obviously a typographical error and is meant to be 5 and 10 July 2012: the Tribunal has in setting out the applicant’s claims verbatim made the same error: CB 198-199 at [25]);
d)on 1 May 2015 the Delegate refused the grant of the Protection Visa: CB 146-168. The Delegate found that as a result of legislative changes, the Protection Visa application had been converted into an application for a Temporary Protection (Class XD) visa: CB 47;
e)the applicant lodged an application for review by the Tribunal on 7 May 2015: CB 169-176; and
f)on 10 July 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 194.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found the applicant's overall testimony unconvincing: CB 205 at [84], and found that the applicant was not a credible witness: CB 210 at [98]. In reaching that finding the Tribunal:
i)found that there were inconsistencies in the applicant's oral evidence: CB 206 at [86]-[87] and CB 208-209 at [90]-[94];
ii)found that it was implausible that the police would allow the bus to continue to the protest after originally stating that it was required to turn around: CB 206 at [88];
iii)found that it was doubtful that the applicant would not know that many people were detained, summonsed or injured by the authorities at the 1 July 2012 incident given his “claimed history of police confrontation and a strong awareness that would flow from that of the repercussions of opposing local authorities”, and in arriving at that conclusion had regard to country information presented in a report made by a United Nations Special Rapporteur for Religious Freedom in relation to the events in and around July 2012 referred to in the applicant’s claim: CB 206 at [89];
iv)had regard to the applicant’s claims and evidence at the Tribunal Hearing concerning the summonses said to have been received by the applicant, and noted that at the Tribunal Hearing the applicant said that there were no summonses between the one for 5 July 2012 and 13 August 2012, but that there were many after 13 August 2012, and the Tribunal observed that that was “the precise opposite of the account in his statement of claims”: CB 208 at [92], and went on to note that the applicant’s migration agent in a submission made on 30 June 2014 submitted that the applicant had only been summonsed three times in total, and that the applicant did not provide documentary evidence of either past summonses or of any medical treatment for injuries claimed to have been sustained: CB 208 at [92];
v)having attempted to distinguish between when a summons was delivered to the applicant’s home and when the applicant was asked to report, noted that there were certain changes in relation to the timeline made by the applicant, and that the 5 July 2012 summons was said to be 4 July 2012 requiring the applicant to report on 5 July 2012, and that in relation to the summonses of 13 and 14 August 2012 that it was not entirely clear when they required the applicant to report, but the Tribunal found it questionable that merely because summonses had been delivered to the applicant’s home at a time when he was not home, that one of his family members would not have telephoned him to advise him of the summonses (particularly given the consequences of any tardiness in reporting): CB 208-209 at [93]-[94];
vi)found that it was implausible that the applicant would have been unaware and uninvolved with the 15 July 2012 prayer vigils given the scope of the event, and in so finding had regard to reports of the prayer vigils in the Vietnamese Redemptorists’ News and the Independent Catholic News in Vietnam which indicated that the prayer vigils involved all churches in the diocese concerned and at least three major masses were celebrated and attended by approximately 35,000 people in total: CB 209 at [95]; and
vii)found that it was improbable that the priest would have asked the applicant to organise the 2013 visit in circumstances where the applicant was being monitored by the police: CB 210 at [96];
b)did not accept that the applicant was ever involved in incidents with the police where he was arrested and beaten or organised visits or protests to the local chapel, and found that the applicant had exaggerated his role with his local church for the purposes of the Protection Visa application, particularly with a view to enhancing his position such that he could be considered to be a leader within the church or at least a reasonably high profile activist: CB 210 at [98];
c)considered independent country information, and whilst it accepted that the applicant would continue to practice his religion upon return to Vietnam and that there is a level of restriction on religious freedom in Vietnam, it did not consider that the applicant's practice of his religion would be impeded: CB 210-211 at [101];
d)found that the applicant's chance of being arrested or targeted for some other harm, as an ordinary Catholic amongst a large congregation and a large Catholic population of six million in Vietnam, and as a person who does not have a profile as a leader or activist, was too remote to amount to a real chance: CB 211 at [102]-[103];
e)acknowledged that the applicant's personal information may have been released in the data breach, noting that the information was not downloaded in Vietnam, but found that the information released (that is, that he was detained because he arrived in Australia without a visa) would be known to the Vietnamese authorities should he be removed to Vietnam in the future: CB 211 at [105];
f)acknowledged that the applicant may be questioned and interviewed as a failed asylum seeker who departed illegally: CB 212 at [109], but that the applicant did not have a profile that would bring him to the adverse attention of authorities: CB 213 at [113]-[114];
g)at CB 213 at [115] found that:
Based on the evidence provided, the Tribunal finds that the applicant will not be harmed if he returns to Vietnam now or in the reasonably foreseeable future by the Vietnamese authorities because he is a failed asylum seeker, departed illegally or was unlawful in Australia or as a result of any data breach or because he was held in detention or because he applied for asylum. Having regard to the non-exhaustive list in s 91R(2) of the type and level of harm that will constitute 'serious harm' for the purposes of s 91R(1)(b), the Tribunal does not accept that being questioned and interviewed on his return to his country as a failed asylum seeker from Australia involves serious harm. Nor does the Tribunal accept that being questioned and interviewed on his return as a failed asylum seeker involves significant harm as envisaged in s.36(2A). The Tribunal finds that the applicant does not face a real chance of serious harm, or a real risk of significant harm if he was to return to Vietnam now or in the reasonably foreseeable future.
h)in relation to complementary protection:
i)found that having left illegally, the applicant may be charged and fined for departing illegally in breach of a law of general application: CB 213 at [118];
ii)noted that the applicant may be detained on remand in association with the offence of departing illegally: CB 214 at [119]; and
iii)that the applicant was not at risk of being deprived of life, suffering torture or subjected to either cruel or inhuman treatment, or degrading treatment or punishment, as a result of any brief period of detention on remand, and that that period of detention was solely for the purpose of administering a law of general application, without intent to harm and without any disproportionate penalty, and that the period on remand was not such as to constitute significant harm: CB 214 at [120]-[125];
i)significantly, in the context of ground 5 of the Amended Proposed Judicial Review Application, the Tribunal says as follows at CB 214 at [126]:
Having considered all aspects of the applicant's circumstances in Sri Lanka I find there are not substantial grounds for me to believe that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka as the receiving country there is a real risk of significant harm.
j)concludes by finding that the applicant is not owed protection obligations under the Refugees Convention, or on the basis of complementary protection, and therefore does not satisfy the criterion in s.36(2) of the Migration Act, and therefore affirms the Delegate’s Decision not to grant the applicant the Protection Visa: CB 214 at [127]-[130].
Consideration of the Amended Proposed Judicial Review Application
Ground 5
It is convenient to commence with consideration of ground 5 of the Amended Proposed Judicial Review Application.
The law
In Huluba there were two delegate’s decisions, the second delegate having to reconsider the first delegate’s decision on an application for internal review of the first delegate’s decision. Both delegates gave reasons for their decisions and the second delegate repeated, almost word-for-word, substantial portions of the reasons of the first delegate, using the same, sometimes florid, language on critical aspects of the decision-making process specific to the applicant: see the passages extracted in Huluba at 525-528 per Beazley J. Furthermore, there was new material before the second delegate, and the Federal Court found that the second delegate’s task was to consider the matter afresh, and not merely to subject the first delegate’s decision to review: Huluba at 529 per Beazley J. It was in that context, and having made the observations set out in the applicant’s submissions at [10(n)] above, that the Federal Court in Huluba at 530 per Beazley J concluded as follows:
I do not agree that, as was submitted by counsel for the respondent, that it was sufficient for the second decision-maker to consider the new material.
Accepting that the new material was considered, there could still be a breach of procedural fairness. If a decision-maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred. In the present case, I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process. It follows that the applicant was denied procedural fairness by the second decision-maker.
In SZIFI the Federal Court was dealing with an appeal from the then Federal Magistrates Court where it was found that the Refugee Review Tribunal had made a factual error in referring to Indonesia and the People’s Republic of China in the RRT’s decision, but found that the RRT’s error did not amount to jurisdictional error because the RRT understood the appellant’s claims and assessed those claims despite referring to the wrong country on two occasions. It was argued by the Minister that the RRT decision showed that the RRT took into account the relevant substratum of facts and determined that it was unable to be satisfied that the appellant was in danger of being implicated in false cases, declared a terrorist and executed at the hands of the authorities in his country of nationality, and that therefore it had to be said that the RRT directed its mind to all relevant matters and engaged in a proper analysis of factual matters in an attempt to exercise statutory power, and that to the extent that there was an error, it was an error within jurisdiction: SZIFI at [21]-[22] per Greenwood J. The Federal Court observed that:
a)“[c]entral to the exercise of the jurisdiction is an analytical process that focuses upon a fair, just, economical, informal and quick assessment of the facts and contentions of the applicant so as to ensure that the applicant for a protection visa is afforded substantial justice in the context of the merits of … [the] case”: SZIFI at [33] per Greenwood J;
b)the errors in relation to the mis-description of the applicant as an Indonesian, and the reference to a well-founded fear of persecution in the People’s Republic of China:
i)suggested that the “deliberative process … was infused with notions which are erroneous and thus irrelevant … and suggest that the … [RRT] may have had in mind facts, circumstances and considerations referable to other cases”: SZIFI at [33] per Greenwood J; and
ii)“the required immediacy of focus and deliberation of the specific claims … and the justice and merits of the case were influenced by the erroneous considerations”: SZIFI at [33] per Greenwood J;
c)a jurisdictional limitation upon the decision-making power includes a failure to act fairly and the taking into account of erroneous matters in the course of the analytical process of considering the facts, circumstances and conditions appropriate to a claim: SZIFI at [30] per Greenwood J;
d)“[t]he obligation to undertake an un-distracted, focused and deliberative assessment of only those facts and circumstances referable to the case of the applicant is an essential element of the discharge of the review function”: SZIFI at [44] per Greenwood J; and
e)erroneously referring to the applicant’s nationality, and the notion of a well-founded fear of persecution by reference to the wrong country, “can only lead to the conclusion that the errors have affected the exercise of the power. The references to these matters are neither merely typographical errors nor errors or fact at the margin of the … review … [but] go to the nationality of the Appellant and the source of nation state conduct or nation state tolerance of conduct by others giving rise to a claim of a well-founded fear of persecution, … [and as such] the errors affect the exercise of the power … [with] the identified errors going to jurisdiction … [because they] influenced the mind of the decision-maker in purporting to exercise the power”: SZIFI at [45] per Greenwood J.
In SZIFI the appeal was allowed, it being held that the Federal Magistrates Court had erred by failing to find jurisdictional error in the RRT decision, and by failing to find that the RRT decision was a nullity: SZIFI at [46] per Greenwood J.
SZQHH is often cited as authority for the proposition that the use of template paragraphs by an administrative decision-maker does not, of itself, indicate error, and SZQHH was cited in this case by the Minister for that proposition. It is necessary to examine SZQHH with some care. In SZQHH the independent merits reviewer, being the administrative decision-maker concerned, was dealing with 10 applications made by Hazara Shia asylum seekers from Afghanistan each of whom claimed to fear persecution in Afghanistan because of their ethnicity and religion, and who made common or generic claims in that respect. Each of the applicants also advanced, distinctly and separately, individual circumstances relating to their own cases: SZQHH at [7] per Rares and Jagot JJ. In SZQHH the majority of the Full Court of the Federal Court observed at [44]-[45] per Rares and Jagot JJ that:
44. If claims or applications made by a number of persons involve common features, a decision-maker who must determine all of those individuals' claims or applications at about the same time ordinarily will work out his or her findings about the common aspects and apply those consistently in each individual case. For example, claims for refugee status based on conditions prevailing in a claimant's country of nationality relating to persons of a particular race or religion require a decision-maker to analyse country information in order to form a conclusion as to the facts. Assume that 100 persons arrive at the same time in Australia and claim that they are citizens of country A, adherents of religion B and that country A persecutes anyone who adheres to religion B. Each of those 100 claims will raise at least two individual issues and one common issue. First, the individual issues will be whether each of 100 is, in fact, a citizen of country A, and an adherent of religion B. Secondly, the common issue is whether country A does persecute adherents of religion B. The decision-maker in this situation must decide each of the individual issues based on the particular facts put before him or her by each of the 100 claimants.
45 Next, the decision-maker must ascertain what the position is for adherents of religion B in country A. This aspect of the process involves the decision-maker forming a view about a generic or common issue affecting every one of the 100 claimants on the most recent, up-to-date information available about that issue: Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24 at 44-45 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue); see too SZJTQ v Minister for Immigration and Citizenship(2008) 172 FCR 563; [2008] FCA 1938 at 571 [27]-[29] per Rares J. Once he or she reaches that view and decides that issue in the first of the 100 claims, it is difficult to imagine that he or she would decide any of the other 99 differently or for different, or differently expressed, reasons on the same point.
In SZQHH the majority went on to observe that:
a)a fair-minded observer would expect a reviewer to evaluate each of the generic claims and country information for all of the persons and decide those generic claims generically, that is, consistently and fairly: SZQHH at [47] per Rares and Jagot JJ;
b)the fair-minded observer would expect that if a particular individual did not put anything new to the reviewer on the generic claims, then consistent with the reviewer’s earlier decisions, the reviewer would come to the same conclusion for the same reasons on the same materials, and in those circumstances, the reviewer was entitled to use and repeat those earlier decisions because he had no more material to consider: SZQHH at [51] per Rares and Jagot JJ;
c)“[i]t is a syllogism to say that because a decision-maker used the same words to reject two identical claims, he or she was apparently biased”: SZQHH at [51] per Rares and Jagot JJ; and
d)it is difficult to see why the reviewer, being an administrative decision-maker, had to deal differently and individually with generic claims when there was nothing to distinguish them one from the other and where they were put and decided on the same material: SZQHH at [53] per Rares and Jagot JJ.
SZQHH is of limited assistance to the Court because of the particular circumstances of SZQHH when compared to the particular circumstances of this case. SZQHH involved multiple identical generic claims by persons of the same nationality, same ethnicity, and who were claiming the same bases for fear of harm and a well-founded fear of persecution if returned to the country of their nationality. In those circumstances the use of one template to determine the generic claims is hardly surprising, and is unexceptional, as found by the majority of the Full Court of the Federal Court in SZQHH at [44]-[54] per Rares and Jagot JJ. By contrast, in this case, the comparison is between separate decisions: the BRE15-Tribunal Decision and the Other Tribunal Decision, about two people, in two separate countries, thousands of kilometres apart, in different parts of Asia, with different political systems and different religious systems and beliefs.
The applicant submitted that this case was distinguishable from cases where there is simply one incorrect reference to a country, such as in SZTGE-FCCA. The Court notes that an appeal from SZTGE-FCCA was dismissed in SZTGE v Minister for Immigration & Border Protection [2014] FCA 1205, but not on the merits, but rather because the appellant did not attend. The Court also notes that SZTGE-FCCA is an extempore judgment.
In SZTGE-FCCA the RRT had, in a paragraph setting out the nature of the task with which it was faced, referred not only to the fact that the applicant was from Fiji, when she was from China, but also to her being a “he” rather than a “she”: SZTGE-FCCA at [19]-[20] per Judge Driver. The Court observed that a similar issue had arisen twice previously in cases before the then Federal Magistrates Court in which it was observed that the erroneous country reference had no jurisdictional significance, as opposed to demonstrating the need for the RRT to employ a good proof reader: SZTGE-FCCA at [21] per Judge Driver. The first of the two cases before the Federal Magistrates Court was SZHMW v Minister for Immigration & Anor [2006] FMCA 321 (“SZHMW”), which it is unnecessary to examine in detail, but which was a case which preceded the Federal Court judgment in SZIFI. The second case was SZFUB v Minister for Immigration & Anor [2007] FMCA 2133 (“SZFUB”). In SZFUB at [29] per Scarlett FM the Federal Magistrates Court noted that the RRT referred to claims of persecution said to arise from the applicant living and working in Nepal, when the applicant was a Maronite Christian from Lebanon: SZFUB at [12]-[13] per Scarlett FM. Judicial review was sought on the grounds of illogicality, and the Federal Magistrates Court found that want of logic did not of itself constitute an error of law, but also found that the error was a factual error, which may well be typographical, and was not a jurisdictional error, and citing SZHMW was said to be irrelevant: SZFUB at [34]-[35] per Scarlett FM. Excluding citations that analysis by the Federal Magistrates Court took a mere eight lines. The Federal Magistrates Court did not refer to, and it is not apparent that it was referred to, SZIFI which had been handed down some 10 months earlier. SZIFI was binding on the Federal Magistrates Court in SZFUB, and directly on point in relation to the claim made concerning the failure to refer to the correct country in part of the RRT decision, and was binding on the Federal Magistrates Court and ought to have been followed, even if only to properly analyse the claim made with respect to the mistaken country reference, before making a determination about it: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
The reliance in SZTGE-FCCA on SZHMW and SZFUB is therefore misplaced.
In SZTGE-FCCA the Court went on the deal with the judgment of the Full Court of the Federal Court in SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81; (2014) 314 ALR 146; (2014) 142 ALD 211 (“SZRBA”) which had been handed down the day prior to the hearing in SZTGE-FCCA.
In SZRBA the Full Court of the Federal Court found that the process of cutting and pasting by an independent merits reviewer had caused that reviewer to overlook a substantial submission made by the applicant’s representative, and the Full Court of the Federal Court was therefore satisfied that there was a denial of procedural fairness of the kind described in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321: SZTGE-FCCA at [22] per Judge Driver referring to SZRBA at [21] per Siopis, Perram and Davies JJ.
In SZTGE-FCCA the Court also observed that there was nothing to suggest that any relevant material had been overlooked and that the reference to Fiji (rather than China) could simply be taken as a generic reference to the applicant’s country of origin. That, with respect, is not a conclusion that sits easily with the requirement to undertake an undistracted, focused and deliberative assessment of the relevant facts and circumstances: SZIFI at [44] per Greenwood J, particularly if the error occurs in those paragraphs of a Tribunal decision which are determinative of the issue whether or not an applicant fears harm or has a well-founded fear of persecution upon return to a particular country. The Court went on in SZTGE-FCCA to observe that the case was distinguishable from SZRBA because, amongst other things, there was nothing wrong in principle with an administrative decision-maker employing a template for at least part of their reasons for decision, citing SZQHH: SZTGE-FCCA at [25] per Judge Driver, although the Court went on to observe that that was subject to the proviso “that the template paragraphs are accurate”: SZTGE-FCCA at [26] per Judge Driver. The Court acknowledged that “[m]ore difficult questions arise when template paragraphs are employed in dealing with the claims of individual paragraphs”, which involve the risk of error, as in SZRBA, but in relation to which the Court simply said that that was not so in SZTGE-FCCA: SZTGE-FCCA at [26] per Judge Driver, without particularly analysing what had been said and assessing (otherwise, and by way of conclusion) that there was no error (by which it was presumably meant jurisdictional error) in that case.
In AZAEA this Court noted that the Tribunal decision there being considered in relation to complementary protection made reference to Pakistan rather than Afghanistan in one of the paragraphs: AZAEA at [15] per Judge Raphael, and proceeded to observe at [15]-[16] per Judge Raphael as follows:
15. … In his helpful written submissions he discusses at some length the decision in SZIFI v Minister for Immigration and Citizenship[2007] FCA 63, where Greenwood J was faced with a decision that made several of these geographical errors which led his Honour to take the view that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases” at [33].
16. The Court does not believe that this is such a case. The Court is of the view that the Tribunal made a typographical error only in inserting the word “Pakistan” instead of the word “Afghanistan” and is at fault only in not re-reading its decision record with a scrupulousness that one hopes for but rarely obtains.
AZAEA is a case of a single typographical error, and cannot be compared to the circumstances in these proceedings where in BRE15 – Tribunal Decision there is not one, but three references to the wrong country, in two separate paragraphs wide apart: CB 201 at [45] and 214 at [126], in combination with not insubstantial copying from the Other Tribunal Decision into the BRE15-Tribunal Decision. The references to “Sri Lanka” in BRE15 – Tribunal Decision cannot be considered to be mere typographical errors as, at the very least, the paragraphs copied into BRE15 – Tribunal Decision are indicative of a conscious decision by the Tribunal in BRE15 – Tribunal Decision to copy over those paragraphs from the Other Tribunal Decision. Conscious copying over does not constitute typographical error. AZAEA is plainly distinguishable on those bases.
In MZZZW the Full Court of the Federal Court was dealing with an appeal from this Court in relation to a Tribunal decision in which many passages in the Tribunal decision were identical, or identical but for syntactical modifications, to passages in an earlier Tribunal decision concerning the same matter (which had subsequently been remitted by this Court by consent to the Tribunal differently constituted): MZZZW at [1], [7]-[17] per Tracey, Murphy and Mortimer JJ. There was no dispute that the copied passages in the Tribunal decision the subject of the appeal included passages dealing with findings on credibility and whether the appellant’s claims ought to be accepted: MZZZW at [27] per Tracey, Murphy and Mortimer JJ.
The Full Court of the Federal Court in MZZZW undertook a comparison of the two Tribunal decisions concerned, and reviewed in its entirety the Tribunal decision in which the copying was said to have occurred. In response to a submission from the Minister in relation to a lengthy part of the Tribunal decision the subject of the appeal which had not been the subject of copying, the Full Court of the Federal Court in MZZZW at [32(10)] per Tracey, Murphy and Mortimer JJ said that:
… the remainder of this section is highly generalised. That is why it is not appropriate to conduct, as the Minister’s submissions invited us to, some kind of percentage analysis of the copying undertaken by Member Boddison. Even in the paragraphs containing findings as to why Member Boddison does not accept the appellant would face serious harm on return, or (in respect of complementary protection) a real risk of significant harm, the findings are expressed at a high level of generality. … Their high level of generality and their failure to descend into much detail about the appellant’s particular circumstances (outside what might be said to be boilerplate phrases such as “the applicant’s individual circumstances”) give us no confidence that Member Boddison brought an independent mind to this decision, with the requisite examination of the circumstances of the particular applicant before her and her own assessment of them.
In MZZZW at [34]-[37] per Tracey, Murphy and Mortimer JJ the Full Court of the Federal Court then quoted extensively from Huluba, noting the passages set out above in the applicant’s submissions at [10(n) and (o)], and also the passages cited by the Court at [65] above, and particularly noting that there was a requirement for the Tribunal to consider the matter “afresh” and “to make a new determination”: MZZZW at [34]-[35] per Tracey, Murphy and Mortimer JJ.
In MZZZW reference was also made to WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209; (2003) 79 ALD 421 (“WAFK”), noting in particular that:
a)it had been observed in WAFK that each case turns on its own circumstances: MZZZW at [43] per Tracey, Murphy and Mortimer JJ; and
b)in WAFK the Federal Court had indicated that the copying of credibility passages was of the most concern, but in MZZZW the Full Court of the Federal Court said that such copying could not merely be characterised as undesirable, but rather as “an abdication of the Tribunal’s task”: MZZZW at [43] per Tracey, Murphy and Mortimer JJ.
In MZZZW at [54] per Tracey, Murphy and Mortimer JJ the Full Court of the Federal Court set out factors which might be considered when determining whether copying resulted in a decision-maker exceeding jurisdiction, taken from LVR, as follows:
54. At [92] in LVR the Full Court set out some of the factors which might be considered in determining whether the copying resulted in the decision-maker exceeding her or his jurisdiction:
(i) the function of the decision-maker and the source of that function;
(ii) the source of the copied material;
(iii) the subject-matter of the copied material;
(iv) whether the copied material was controversial;
(v) the similarity of the claim to the claim from which the material was copied;
(vi) the extent of the copying;
(vii) whether the copied material was up to date;
(viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and
(ix) whether the fact of copying and the source of the copied material was acknowledged.
In MZZZW the Full Court of the Federal Court observed that the factors listed in LVR were designed to, and did, assist answering the question of whether or not the decision-maker brought an independent mind to all aspects of the task on review: MZZZW at [55] per Tracey, Murphy and Mortimer JJ. The Full Court of the Federal Court in MZZZW also observed that having regard to the nature of the task imposed on the Tribunal by Pt.7 of the Migration Act, and the terms of s.421 of the Migration Act, that it was plain that the statutory task was intended to be performed by a particular member to whom that task is allocated, was non-delegable, and was not to be performed by adopting the views of a differently constituted Tribunal about the same applicant: MZZZW at [57] per Tracey, Murphy and Mortimer JJ.
In MZZZW the alleged jurisdictional error was characterised as a failure to discharge the Tribunal’s statutory task: MZZZW at [53] per Tracey, Murphy and Mortimer JJ.
Ultimately, the Full Court of the Federal Court in MZZZW was “not satisfied Member Boddison brought an independent mind to the consideration of the appellant’s claims. She failed to discharge the statutory task imposed on the Tribunal to consider an applicant’s claims on review for itself, afresh …” and went on to observe that making a conclusion of this kind involved the “forming [of] an overall impression, and it is one on which it is possible reasonable judicial minds might differ”: MZZZW at [66] per Tracey, Murphy and Mortimer JJ.
Comparison of the BRE15 – Tribunal Decision and the Other Tribunal Decision
It is necessary to compare the BRE15-Tribunal Decision and the Other Tribunal Decision. The Court notes that the Other Tribunal Decision concerns an application for review to the Tribunal by a citizen of Sri Lanka in relation to the refusal of a delegate to grant a protection visa to that applicant.
A comparison of the BRE15-Tribunal Decision and the Other Tribunal Decision shows that:
a)in the paragraphs setting out the nature of the application for review to the Tribunal, BRE15-Tribunal Decision at [1], [2] and [3] are exactly the same as the Other Tribunal Decision at [1], [2] and [4], save for relevant dates and reference to Vietnam in the former and Sri Lanka in the latter;
b)BRE15-Tribunal Decision at [5]-[19] dealing with the relevant law in relation to refugee and complementary protection criterion, and the relevant Ministerial Direction, are identical to the Other Tribunal Decision at [5]-[19];
c)under the heading “Consideration of Claims and Evidence” the claims made are individually considered by reference to the terms of each applicant’s Protection Visa and the Delegate’s Decision, but it is significant, in terms of ground 5 of the Amended Proposed Judicial Review Application, that in BRE15-Tribunal Decision at CB 201 at [45] the Tribunal sets out the ultimate finding in the Delegate’s Decision in the following terms:
On the basis of the findings in respect of s.36(2)(a) and finding no evidence to support the claim of serious harm on Convention grounds, the delegate further found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka as the receiving country that there was a real risk of significant harm.
d)CB 201 at [45] of the BRE15-Tribunal Decision is identical to the Other Tribunal Decision at [36], and consequently, it is not the case that there is only one paragraph in the BRE15-Tribunal Decision where there is an erroneous reference to Sri Lanka, but rather two such paragraphs;
e)the country information is obviously different in each case, and is differently dealt with: in the Other Tribunal Decision it is set out discretely at [56]-[72], whereas in the BRE15-Tribunal Decision the country information is incorporated into the Tribunal’s consideration of the applicant’s claims at [85]-[116];
f)under the heading “Findings and Reasons”:
i)the paragraphs dealing with country of reference are identical, save that the BRE15-Tribunal Decision refers to Vietnam: CB 204-205 at [76]-[78], while the Other Tribunal Decision refers to Sri Lanka: at [74]-[76];
ii)in the BRE15-Tribunal Decision there are separate credibility findings at CB 205 at [79]-[84], whereas in the Other Tribunal Decision the applicant’s credibility is not separately dealt with, but to the extent relevant dealt with as necessary in relation to specific claims: at [77]-[98]; and
iii)in the BRE15-Tribunal Decision the applicant’s claims are dealt with separate to the issue of credibility: at CB 205-213 at [85]-[116], with reference to the applicant’s credibility utilised in support of various findings: for example, CB 210 at [98] and 211 at [103]; and
g)in relation to the complementary protection criterion under the “Findings and Reasons”, and which forms the gist of ground 5:
i)the first paragraphs in both the BRE15-Tribunal Decision (CB 213 at [117]) and the Other Tribunal Decision (at [99]) are identical, the Tribunal asserting that having considered “the applicant’s claims in full as discussed above and, just as I find he does not face a real chance of serious harm as a consequence of illegal departure, neither do I find that there is a real risk of significant harm”;
ii)in each decision there then follows two paragraphs dealing very briefly with the issues of checks and charges upon return to the home country of each applicant, and the possibility of detention on remand in relation thereto: BRE15-Tribunal Decision at CB 213-214 at [118]-[119]; Other Tribunal Decision at [100]-[101];
iii)there then follows in both the BRE15-Tribunal Decision and the Other Tribunal Decision a paragraph, in identical terms save for reference to Vietnam in the former and Sri Lanka in the latter, in relation to the “situation of prisons” in each of those countries and the fact that they “will be less sanitary, more crowded and with less services than would be available in Australia”: BRE15-Tribunal Decision at CB 214 at [120]; Other Tribunal Decision at [102];
iv)the remaining paragraphs of the BRE15-Tribunal Decision at CB 214 at [121]-[130] and in the Other Tribunal Decision at [103]-[112] are identical, and are in the following terms (taken from the BRE15 – Tribunal Decision):
121. However, the evidence before me leads me to conclude that any hardship for that brief period is not as a result of intent or discrimination.
122. Section 36 (2A) of the Act describes significant harm as follows:
A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
123. The evidence before me leads me to find that he is not at risk of being deprived of his life, suffering torture or subjected to either cruel or inhuman treatment or subjected to degrading treatment or punishment.
124. I find that the purpose of the detention is solely for the purpose of administering a law of general application, without intent to harm and without any disproportionate penalty.
125. While it is possible that he could be held on remand for a period of time, having considered the evidence before me I am satisfied that the harm he faces as a consequence is not of such gravitas as to constitute significant harm.
126. Having considered all aspects of the applicant's circumstances in Sri Lanka I find there are not substantial grounds for me to believe that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka as the receiving country there is a real risk of significant harm.
127. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
128. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(aa), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
129. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
130. The Tribunal affirms the decision not to grant the applicant a Protection visa.
v)the reference in the BRE15-Tribunal Decision at CB 214 at [126] to “the applicant's circumstances in Sri Lanka” and “the applicant being returned to Sri Lanka” formed the focus for much of the applicant’s criticism and submissions in relation to ground 5.
In considering the nature, extent and context of the identical paragraphs (or near identical paragraphs) in the BRE15-Tribunal Decision and the Other Tribunal Decision the Court acknowledges that:
a)they are different decisions of the Tribunal constituted, however, by the same member, and in that regard some of the commentary in MZZZW might be distinguishable, and it might not be as easy to conclude that the Tribunal did not give independent consideration to each of its decisions, noting that it dealt with the issues of credibility and its findings and reasons in relation to the refugee criterion in different manners in each of the decisions; and
b)it is nevertheless a matter of overall impression as to whether the Tribunal in the BRE15-Tribunal Decision gave the application for review before it fresh and independent consideration: MZZZW at [60] and [66] per Tracey, Murphy and Mortimer JJ.
The Court also observes, however, that in the BRE15-Tribunal Decision:
a)ten of the thirteen paragraphs dealing with complementary protection, that is the substantial majority, are identical;
b)one paragraph is identical save for the reference to Sri Lanka and not Vietnam; and
c)the two paragraphs which are not identical deal with similar subject matter and have some similarities,
and that these paragraphs are in a part of the BRE15 – Tribunal Decision headed “Findings and Reasons” (underlining added).
In assessing whether or not an applicant is owed complementary protection obligations by Australia it is necessary to consider that issue distinctly in each case by reference to the facts found in each case, and not merely to set out what appear to be pro forma paragraphs dealing with complementary protection, or at the very least “highly generalised” paragraphs: MZZZW at [32(10)] per Tracey, Murphy and Mortimer JJ, and which do not engender confidence that in the BRE15-Tribunal Decision the matter has been considered afresh: MZZZW at [60] per Tracey, Murphy and Mortimer JJ; Huluba at 529 per Beazley J. It is also important to recognise that the assessment of “significant harm” is a significant question, and a critical aspect of the decision-making process which ought to be tailored in its conclusions to the individual circumstances of the case: Huluba at 529 per Beazley J; MZZZW at [43] per Tracey, Murphy and Mortimer JJ. Furthermore, the extent of the copying of the relevant paragraphs in relation to complementary protection (which is the relevant consideration here rather than the extent of the copying overall: MZZZW at [32(10)] per Tracey, Murphy and Mortimer JJ), the error made in relation to the two references to Sri Lanka at CB 214 at [126] instead of Vietnam, taken together with the fact that there is an earlier mistake of a similar kind in relation to the recounting of the outcome of the Delegate’s Decision: CB 201 at [45], and which means that that error has been made more than once, again does not engender confidence that the issue of complementary protection was given fresh and independent consideration by the Tribunal.
There is another aspect of the complementary protection findings and reasons which is of concern. In relation to the “situation of prisons”, the Tribunal concluded, in respect of both Vietnam and Sri Lanka, that the prisons “will be less sanitary, more crowded and with less services than would be available in Australia”: BRE15 – Tribunal Decision at CB 214 at [120]; Other Tribunal Decision at [102]. Whilst it is trite to observe that members of the Tribunal have certain knowledge in relation to country information in relation to countries with which they regularly deal, in this case there is no reference to any probative evidence, either in the form of country information or otherwise, which goes to prison conditions in either Vietnam or Sri Lanka in either the BRE15 – Tribunal Decision or the Other Tribunal Decision. It is of concern that a highly generalised conclusion in relation to prison conditions in two Asian nations which are distinct in terms of their geography, ethnicity, religions and form of government, might be made in both the BRE15 – Tribunal Decision and the Other Tribunal Decision without reference to any probative evidence and in exactly the same terms. It reinforces the Court’s concern that a fresh and independent mind might not have been applied in the BRE15 – Tribunal Decision, and that there may have been very different and irrelevant considerations, related to Sri Lanka rather than Vietnam, in the Tribunal’s mind at the time of actually making the complementary protection findings in the BRE15 – Tribunal Decision, and which may then have been made without regard to the individual circumstances relating to the applicant.
The Court is conscious of the fact that the Tribunal has given detailed consideration to its factual findings in relation to the refugee criterion, but notwithstanding that, the Court is left with the overall impression that there was not a fresh and independent consideration of the complementary protection findings and reasons by the Tribunal in the BRE15 – Tribunal Decision.
It follows from the above that the Tribunal did not therefore discharge its statutory task or function in relation to making its findings and reasons on complementary protection, and that there is therefore a jurisdictional error in that regard by the Tribunal. It follows that ground 5 is made out.
Ground 4
The Court has already found that ground 4 is not arguable and does not have a reasonable prospect of success, and in the circumstances it is unnecessary to consider it further.
Conclusions and orders
In summary, the Court has concluded:
a)there will be orders in relation to the issues dealt with at [3]-[61] above, namely, that:
i)compliance with the requirement for the applicant to file an affidavit under r.44.05(2)(c) of the FCC Rules be waived pursuant to r.1.06 of the FCC Rules; and
ii)the time in which to file the Proposed Judicial Review Application (the Originating Application) be extended to the time of actual filing on 17 August 2015 pursuant to s.477(2) of the Migration Act; and
b)that as claimed in ground 5 of the Amended Proposed Judicial Review Application the Tribunal Decision is affected by jurisdictional error. It follows that the applicant is entitled to prerogative relief by way of writs of certiorari and mandamus. Those writs will issue.
The Court will hear the parties as to costs.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 20 June 2019
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