BSK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 794
Federal Circuit and Family Court of Australia
(DIVISION 2)
BSK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 794
File number(s): MLG 1324 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 28 September 2022 Catchwords: MIGRATION LAW – application for extension of time – decision of the Administrative Appeals Tribunal – protection (subclass 866) visa – where the applicant was granted a protection visa in 2013 – visa subsequently cancelled in 2018 – where Tribunal affirmed decision to cancel the applicant’s visa – where application for judicial review was filed some 2.5 years out of time – delay due to inability to obtain legal representation and COVID-19 pandemic – finding that no proper explanation provided as to delay – where grounds of review have no reasonable prospects of success – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 101, 107, 109, 477 Cases cited: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 26 April 2022 Date of hearing: 26 April 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms K Chan Solicitor for the Respondent: Clayton Utz ORDERS
MLG 1324 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSK21
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
28 September 2022
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs in the scale sum of $3,930.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for an extension of time in which to bring an application for judicial review pursuant to section 477 of the Migration Act 1958 (Cth) (‘the Act’). The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), opposes that application.
Background
The applicant arrived at Christmas Island in September 2009.[1] He is of Kurdish ethnicity and was born in Tehran.[2]
[1] Court book at page 16.
[2] Court book at page 67.
Application for protection visa on 3 October 2009
The applicant applied for a protection (subclass 866) visa on 3 October 2009.[3]
[3] Court book at pages 38 to 48.
In information collected upon arrival, the applicant stated that he was born in Iran but was stateless. He said that when his parents first arrived in Iran, they were given a ‘green card’ but they lost it at some point before he was born and the government would not re-issue the card. Consequently, the applicant says he was stateless and could not study or get a proper job.[4] The applicant also says that he participated in some anti-government protests and he was targeted because he was Kurdish.[5] The applicant also claimed that as he did not have any Iranian ID he could be killed or sent back to Iraq and he does not have Iraqi ID either.[6]
[4] Court book at page 26.
[5] Court book at pages 27 and 28.
[6] Court book at page 34.
The basis of the applicant’s fear of harm was his Kurdish ethnicity. The applicant said that his father was killed in 2005 because he was a Kurd and he fears the same will happen to him.[7] The applicant’s parents were born in Iraq, also of Kurdish ethnicity, and were expelled by the Saddam Hussein Ba’ath regime.[8] The applicant also stated that he had left Iran on a forged Iranian passport with the assistance of a people smuggler.[9]
[7] Court book at page 67.
[8] Court book at page 76.
[9] Court book at page 85.
The applicant was ultimately granted a protection visa on 30 March 2010, having been found to have been a stateless Faili Kurd who ‘has no claim to Iranian citizenship’.[10]
[10] Court book at pages 69 to 72 and 75 to 88.
On 5 April 2012, the applicant was issued a ‘Titre De Voyage’ (‘TDV’), being a document permitting him to travel internationally.[11] Between 3 February 2013 and 28 March 2013, the applicant travelled to Iran. However, as his TDV did not contain any entry or exit stamps, his identity was then questioned.[12]
[11] Court book at page 103.
[12] Court book at page 107.
Application for citizenship by conferral on 8 April 2014
On 8 April 2014, the applicant applied for citizenship by conferral.[13]
[13] Court book at page 123.
At his interview with the Department of Immigration and Border Protection (‘the Department’) on 20 November 2014, the applicant stated that he had travelled to Iran in 2013 using a false Iraqi passport which he subsequently destroyed at Dubai Airport on his return to Australia.[14] He also said that Iraqi passport holders do not require a visa to enter Iran. Department officials from the Australian Embassy advised that whilst Iranian citizens do not need a visa to enter Iran, Iraqi passport holders are required to hold a visa to enter Iran.
[14] Court book at page 193.
Ultimately, his application for Australian citizenship was refused by letter dated 15 September 2016.[15]
[15] Court book at pages 121 to 135.
Notice of Intention to Consider Cancellation on 16 November 2017
On 1 September 2017, the applicant was charged with certain offences which were alleged to have occurred on 11 August 2017.[16] On 6 September 2017, the applicant was released on bail conditions, including that he reside at a nominated address and that he observe a curfew at that nominated address between 10:00pm and 8:00am daily.[17]
[16] Court book at page 204.
[17] Court book at page 185.
A Notice of Intention to Consider Cancellation (‘NOICC’) of the applicant’s visa was issued to the applicant by registered post on 16 November 2017.[18] That notice set out the evidence and circumstances suggesting that the applicant had provided incorrect information in his protection visa application in 2009.
[18] Court book at pages 189 to 200.
The NOICC also noted that in his application for a protection visa, the applicant had stated that he had departed Iran in 2009 using a false Iranian passport and gave particulars of the applicant’s possible non-compliance with his obligations under section 101(b) of the Act.
In particular, the NOICC contained the following:
On 08 April 2014 you lodged an application for Australian Citizenship. …
On 20 November 2014 you attended the interview with an officer from the Department’s Identity Assessment team. In that interview you were questioned about your status as a ‘stateless Faili Kurd’ and your departure from Iran [in] 2009 as well as your travel from Australia in 2013.
In relation to your travel, departmental records show that you departed Australia on Emirates flight EK423 on 3 February 2013 and re-entered Australia on Emirates flight…on 3 February 2013 and re-entered Australia on Emirates flight…on 28 March 2013; … you flew from Australia to Dubai … and from Dubai to Australia … using an Australian issued travel document – a Titre de Voyage. During an interview conducted on 30 July 2014 for the purposes of your Citizenship application, you were asked about your travel from Australia, and you indicated that you had spent five days in Dubai and 30 days in Iran. In your Citizenship application form signed and dated on 2 April 2014, you stated that you had spent 53 days in Tehran, Iran.
However your Australian issued Titre de Voyage contains no entry or departure stamps for the United Arab Emirates. During your interview by the Department’s Identity Assessment team on 20 November 2014, you stated that you travelled to Iran using a false Iraqi passport which you claim to have destroyed at Dubai Airport (on your return to Australia). You also stated that Iraqi passport holders do not require a visa to enter Iran.
Officials at the Australian Embassy in Tehran (Iran) have advised that an Iranian citizen does not require a visa to enter Iran; however, Iraqi passport holders are required to hold a visa in order to enter Iran.
Departmental information advises that a visa is required for non-Iranians to enter Iran.
…
Therefore, the fact that you did not have a visa for your return travel to Iran in 2013, yet you were able to retain your Titre de Voyage, indicates you did not use your Titre de Voyage to travel to Iran. Therefore, I consider that you obtained an Iranian passport prior to your travel to Iran in 2013.
…
The claim that you entered Iran on a false Iraqi passport without a visa is inconsistent with country information provided by the Australian Embassy in Tehran …
…
On the basis of your own admissions together with the information outlined above, I consider that you did indeed travel to Iran in 2013. I also consider that your explanations of your method of entry into Iran are not supported and indicates that you entered Iran using a genuinely issued Iranian passport.
In relation to your departure from Iran in 2009, you stated that you departed from Iran as a seventeen year old using a false Iranian passport. The Department has received country information from its officials at the Australian Embassy in Tehran which indicates that the processes at the Iranian border are secure. …
…
Your claim in relation to your use of a false Iranian passport to depart Iran in 2009 is inconsistent with country information which shows that the entry and exist (sic) processes conducted at the Iranian border are secure. I therefore consider that you departed Iran in 2009 by using a genuinely issued Iranian travel document or passport.
…
I therefore consider that you did depart Iran in 2009 on a genuinely issued Iranian travel document or passport and as such, you did not hold the adverse profile as claimed at the time of lodging your application for a Protection visa. … I consider the above information supports that you are an Iranian citizen and were so at time of lodging your Protection visa application.
…
On the basis of the above information, I therefore consider that you have not complied with section 101(b) of the Act because in support of your application and in order to satisfy the legislative requirements for grant of a visa, you provided incorrect information to the Department.[19]
[19] Court book at pages 166 to 169.
The NOICC then set out the process that would be undertaken to consider whether to cancel the applicant’s visa.[20] The NOICC was emailed and sent by registered post to the applicant.[21]
[20] Court book at pages 171 to 173.
[21] Court book at pages 181 to 182.
Cancellation of applicant’s visa on 12 March 2018
On 12 March 2018, a delegate of the Minister cancelled the applicant’s visa under section 109(1) of the Act.[22] The letter notifying the applicant of this decision indicates that no response was provided to the NOICC issued on 16 November 2017.
[22] Court book at pages 216 to 283.
Application for review at the Tribunal on 12 April 2018
The applicant lodged an application for review of the cancellation decision on 12 April 2018 at the Administrative Appeals Tribunal (‘the Tribunal’).[23] At that time, the applicant was in immigration detention at the Yongah Hill Immigration Detention Centre, Western Australia.[24] The application for review was lodged on the applicant’s behalf by a registered migration agent.
[23] Court book at pages 244 to 245.
[24] Court book at page 244.
On 25 June 2018, the applicant was invited to attend a hearing before the Tribunal.[25] A further invitation to attend a hearing was sent on 2 July 2018 after the applicant was moved to a different detention centre.[26]
[25] Court book at pages 283 to 284.
[26] Court book at pages 297 to 304.
On 2 July 2018, an email was sent from the applicant’s representative which stated:
…
We have received instructions from (the applicant) in Villawood Immigration Detention Centre that he no longer wants Putt Legal to act in relation to this matter.
We have sent a form to (the applicant) in Villawood requesting confirmation of these instructions, and that we will undertake to forward to the Tribunal if received.
I request that notice and all future correspondence be sent to Mr Hussein directly.[27]
…
[27] Court book at page 305.
A hearing was conducted by the Tribunal on 25 July 2018 which the applicant attended in person with the assistance of a Persian interpreter.[28]
[28] Court book at pages 320 to 322.
By letter dated 30 August 2018, the applicant was invited to comment on or respond to certain information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review.[29] This letter was hand delivered to the applicant on 31 August 2018.[30]
[29] Court book at pages 326 to 330.
[30] Court book at page 358.
The information put to the applicant for comment or response in the 30 August 2018 letter consisted of:
(a)information that cast doubt on the applicant’s claim to be stateless and not an Iranian citizen;[31] and
(b)information which would be relevant to the exercise of the discretion under section 109, including that the applicant had been fined and subject to charges against him, including for serious matters.[32]
[31] Court book at pages 326 to 328.
[32] Court book at pages 328 to 342.
By letter dated 5 October 2018, the applicant was advised of the Tribunal’s decision to affirm the decision under review.[33] That letter was delivered to the applicant whilst in prison.[34]
[33] Court book at page 371.
[34] Court book at page 392.
Tribunal decision
The Tribunal decision record dated 4 October 2018 is at pages 372 to 388 of the court book.
The decision record notes that the applicant appeared before the Tribunal by video link on 25 July 2018 to give evidence and present arguments and was assisted by an interpreter in the Persian and English languages.[35]
[35] Tribunal decision record dated 4 October 2018 at paragraph [3].
At paragraph [7] of the decision record, the Tribunal records the fact that the applicant stated that he had not received the NOICC having moved address. The Tribunal was satisfied that the NOICC complied with the necessary statutory requirements and that the delegate had reached the necessary state of mind required by section 107 of the Act.[36]
[36] Tribunal decision record dated 4 October 2018 at paragraph [8].
At paragraph [20] of the Tribunal’s decision record, the Tribunal states that it discussed the contents of the NOICC with the applicant. The applicant denied that he had lied to anyone or provided incorrect information. Relevantly, the Tribunal records the following:
20.… He said when he first came to Australia he came with an ‘illegal’ (Iranian) passport and when he returned to Iran in 2013 he did so with another ‘illegal’ (Iraqi) passport. In 2013 he left Australia on his TDV to Dubai and after that used a false Iraqi passport to enter Iran. When asked if he had to obtain a visa to enter Iran at that time, the applicant said the (false Iraqi) passport ‘they’ arranged for him had everything in it. He assumes it contained an Iranian visa because he had no problems entering Iran. The applicant said he used the false Iraqi passport to depart Iran in 2013 and then destroyed it: that is he tore it to pieces and flushed it down the toilet … He said he did not want to enter Iran on his Australian-issued TDV because he has a problem with the Basij as a result of having participated in demonstrations in Iran in the past. He went to Iran in 2013 because his mother was ill. He stayed for around 50 days in Tehran and Qom with distant relatives.
At paragraph [25], the Tribunal considered the fact that the applicant had returned to Iran in 2013 after his protection visa was granted. It said:
25.… the Tribunal is not satisfied the applicant’s return to Iran for 50 days in 2013 meant he did not hold a well-founded fear of persecution as a stateless Faili Kurd at the time of his visa application. Accordingly the Tribunal finds this ground for cancellations is not made out.
At paragraph [26], the Tribunal considered the delegate’s view that the applicant had returned to Iran in 2013 using an Iranian passport. The Tribunal set out its concerns about this issue at paragraphs [26] to [28]. At paragraph [29], the Tribunal then said:
29.Given the combination of these concerns the Tribunal is not satisfied the applicant returned to Iran in 2013 on a false Iraqi passport as claimed and considers he returned on an Iranian passport, particularly when taking into account other matters, discussed below.
The Tribunal then set out country information about the steps required to obtain an Iranian passport and stringent security checks at Tehran airport and concluded that leaving Iran by air using a fake passport would be difficult.[37] The Tribunal went on to say:
32.The country information as set out in the NOICC and decision record (and discussed at hearing) indicates that whilst it may be possible to leave through the airport illegally, it would require bribing a lot of airport personnel. It indicates that when a passenger enters and exists Khomeini Airport, the passport and personal information is checked on a computer screen which contains the data of the passport holder.[38]
[37] Tribunal decision record dated 4 October 2018 at paragraph [32].
[38] Tribunal decision record dated 4 October 2018 at paragraph [32].
Having regard to this country information and ‘other concerns with the applicant’s case’, the Tribunal was not satisfied the applicant departed Iran in 2009 on a false Iranian passport as claimed and considered that he departed on his own Iranian passport.[39]
[39] Tribunal decision record dated 4 October 2018 at paragraph [33].
The Tribunal then considered the marriage certificate provided which suggested that the applicant was, in fact, an Iranian citizen.[40] The Tribunal noted that the applicant was invited to comment on this certificate in the letter sent to him on 30 August 2018. It noted that he did not provide a response to that letter.
[40] Tribunal decision record dated 4 October 2018 at paragraphs [35] to [36].
At paragraph [36] of the decision record, the Tribunal said:
36.… The Tribunal places particular weight on the information contained in the religious marriage certificate that the applicant’s nationality is Iranian and the fact a citizenship or passport number has been provided in that certificate issued by the Iranian Embassy in Canberra. This indicates to the Tribunal that the applicant was issued with a genuine Iranian passport by the Iranian Embassy in Canberra since he has been in Australia.
The Tribunal then concluded at paragraph [39] that due to the combination of the concerns identified in its decision record, it ‘is satisfied that the applicant is an Iranian citizen, not stateless as claimed’. It further concluded that the applicant was an Iranian citizen in 2010 when he applied for a protection visa,[41] and that he did not answer a number of questions correctly and was therefore non-compliant with section 101(b) of the Act.[42]
[41] Tribunal decision record dated 4 October 2018 at paragraph [41].
[42] Tribunal decision record dated 4 October 2018 at paragraph [42].
At paragraphs [43] to [91], the Tribunal went on to consider whether it was appropriate to exercise the discretion to cancel under section 109(1) of the Act, having concluded that grounds for cancellation had been made out. It set out the various matters to which it had to have regard in determining whether to exercise its discretion. At paragraph [92], the Tribunal concluded that the applicant’s visa should be cancelled and consequently at paragraph [93], it affirmed the delegate’s cancellation decision.
Extension of time application
As stated, the applicant’s application for judicial review has been filed outside the time limit for such applications.
Section 477(1) of the Migration Act 1958 (Cth) provides that an application to this court in relation to a migration decision must be made within 35 days of the migration decision. Any such application therefore should have been filed on or before 8 November 2018. In fact, the applicant filed an application for judicial review in this court on 21 June 2021.
On 11 October 2021, the applicant filed an amended initiating application in which he raised 6 grounds of review.
The matter first came before me on 4 November 2021 at which time the applicant sought an adjournment to allow him to obtain legal representation. That application was ultimately granted.
The matter returned before me on 24 January 2022, on which occasion the applicant appeared representing himself and sought a further adjournment on the basis that he had been unable to obtain legal advice and representation since the last occasion. A further adjournment was granted, and the applicant was advised that the matter would proceed on the adjourned date regardless of whether he was legally represented.
Notwithstanding this further adjournment, however, when the matter came back before me on 26 April 2022, the applicant still did not have legal representation and appeared on his own behalf. Nor had the applicant filed any further material in the adjourned period in support of his application. In particular, the applicant had not filed any written submissions in support of his application, notwithstanding orders providing for the filing of written submissions and further affidavit material by Registrar Carney on 4 August 2021.
In his Amended Initiating Application filed on 14 October 2021, the applicant noted that the decision in respect of which judicial review was sought was a decision of the Administrative Appeals Tribunal dated 4 October 2018.
The applicant raised the following grounds for an extension of time:
The reason I filed out of time are because:
a. Lack of education and legal knowledge
b. Lack of fund
c. Lack of assistance from Legal Aid
d. Severe depression for being locked and not have any family here in Australia
He repeated these reasons in his affidavit affirmed on 3 May 2021 and filed on 31 June 2021 at paragraph [4]. In addition, he said at paragraph [5] of that affidavit:
5.A fellow detainee who has a postgraduate degree in International Law provided me with assistance to write and submit this appeal now.
The applicant also said in this affidavit:
6. My real name is not […] but […]. My date of birth is ‘2nd February 1990’. From the day of my arrival by boat to Australia, I gave a wrong surname and DOB, because:
a. I was scared and young.
b. I listen to the other older countrymen in the boat, where they told me if I give my true surname and DOB, I may be deported.
That is the extent of the explanation proffered by the applicant for the delay in filing his application for judicial review. At the hearing before me, when asked to expand upon the reasons for the delay, the applicant said he had not been able to obtain legal advice due to the COVID pandemic and also because he has been in detention since 2018.
Section 477(2) provides that the court can extend the 35 day time limit for filing an application for judicial review if it is satisfied that it is in the interests of the administration of justice to do so. There are no prescribed factors which must be considered in determining how that discretion is to be exercised. However, it is well settled that the court must have regard to a range of factors including:
(a)the length of the delay and the explanation for that delay;
(b)any prejudice to the Minister in granting the extension of time; and
(c)whether there is any merit to the grounds raised by the applicant’s substantive application.[43]
[43] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
Length and explanation for delay
The delay in this case of almost 2.5 years is, it is submitted for the Minister, excessive. There is much force in this submission, particularly when regard is had to the lack of reasonable explanation proffered by the applicant for that delay.
As noted by his Honour Justice Wigney in Tran v Minister for Immigration & Border Protection [2014] FCA 533 at paragraph [38], in which the applicant sought to file an application for judicial review 18 months after the time limit in section 477(1) of the Act had passed:
38.The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be … The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be sufficient basis to refuse Mr Tran’s application for an extension of time.
Those comments equally apply in this case. The applicant’s application is about 2.5 years out of time. That is on any calculation an extraordinary delay. This is particularly so when the timeframe for filing such an application is 35 days.
Moreover, in this case, the applicant has not provide any real explanation for the delay. The fact that the applicant has no legal knowledge or a lack of education is not an adequate reason for such a delay. Nor is the applicant’s ‘lack of funds or legal assistance’. This is particularly so in circumstances where the material before the court identifies that the applicant did have access to a migration agent at an early stage in the proceedings. The applicant has not explained why he no longer retained that migration agent. Moreover, the applicant has not put any evidence before the court as to the steps that he has taken to pursue his right to judicial review.
As to the suggestion in the applicant’s application that he has suffered depression and that this explains why he has not been able to make an application earlier, again, the applicant puts no medical evidence before the court about his mental health or his capacity to have pursued this application at an earlier stage.
In his oral submissions, the applicant further stated that he was unable to bring the application at an earlier stage because of the COVID-19 pandemic. The COVID pandemic has been a factor since about March 2020. There is no explanation as to what, if any, steps the applicant took prior to that date to pursue his judicial review application.
Having regard to each of these factors, the applicant’s application for the extreme delay is not satisfactory, nor persuasive.
Prejudice to the Minister
It is, with respect, quite properly conceded for the Minister that there is no prejudice to the Minister in the granting of an extension of time. However, this of itself is not sufficient reason to grant an extension of time.[44]
[44] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
Merits to the grounds of review
It is further submitted for the Minister that it is not in the interests of the administration of justice to grant an extension of time where the application has little or no prospects of success.
The applicant raises the following 6 grounds of review in his amended initiating application:
1.The Applicant did not have any legal advice nor legal representative during the AAT’s hearing, leading to grave miscarriage of justice.
2.The applicant had no legal knowledge about the legal process, proceeding, the law and therefore, was unable to understand or defend himself during AAT’s hearing, leading to grave miscarriage of justice.
3. The AAT denied the applicant procedural fairness.
4.There was no lawful basis for the Tribunal’s finding that the applicant would be able to return to Iran and would therefore not face indefinite detention in Australia.
a.The applicant explicitly made claims that he would face harm on any return to Iran by virtue of being a failed asylum seeker and a returnee.
b.The Tribunal relied heavily on the DFAT Country Information Report Iran, 7 June 2018, which stated, under the heading ‘Conditions for Returnees’:
Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran.
c.The applicant was unrepresented and in detention. He maintained his claims regarding protection. There was no basis on which the Tribunal could find that he would return to Iran voluntarily.
d.There was accordingly no basis for its findings that the applicant would not face prolonged or indefinite detention as a result of its decision.
5.In the alternative, the Tribunal erred at law in its findings about whether the applicant would be exposed to indefinite detention as a consequence of its decision.
a. Particulars 4(a) – 4(d) are repeated.
6. The Tribunal failed to meaningfully consider the best interests of the child.
As the hearing before me, the applicant made the following further submissions:
(a)as to grounds 1 and 2, he did not have legal representation when he appeared before the Tribunal and therefore was not able to properly present his case;[45]
(b)as to ground 3, he said that when the matter was heard by the Tribunal, he did not have the relevant documents to prove that his parents were born in Iraq and he was only able to obtain these documents in the last two years;[46] and
(c)in relation to ground 4, the applicant questioned why he would be sitting in the detention centre for four years if it was, in fact, safe for him to return to Iran. The applicant further said that he is a Kurdish person and in Iran, Kurdish people have no freedoms and so even if he could return, he could not live a free life, he could not speak freely and as a Kurd he has no rights.[47]
[45] Court transcript at page 4.
[46] Court transcript at page 4.
[47] Court transcript at page 5.
The applicant further stated that the Tribunal decision was made on the basis that he was born in Iran and therefore is not Kurdish. He said that this is not correct as his parents are Kurdish, his language is Kurdish and therefore he is Kurdish.[48]
[48] Court transcript at page 6.
In relation to the final ground of review which refers to the failure to meaningfully consider the best interests of the child, the applicant said he did not understand what that referred to.[49]
[49] Court transcript at page 7.
When invited to make any further comments as to why he believed that the Tribunal decision was affected by a jurisdictional error, the applicant said:
When I came here … there was a huge protest … and I was involved. I was in that. … we ran away. We fled. And we cannot sit there and say…this is in that protest. … They would suppress us. AAT look at my document and they said, ‘You are from Iran and you are not Kurdish people’. But Kurdish people are not free and we cannot speak and if you look … at the statistics, the highest execution – population of executed people are Kurdish people in Iran. There is no freedom of expression and these are not lies. You could – with a simple search in internet you could find it.[50]
Grounds of review
[50] Court transcript at page 7.
Ground 1
It is not disputed that the applicant was not legally represented in the proceedings before the Tribunal. That fact alone, however, does not lead to the conclusion that the Tribunal’s decision was affected by jurisdictional error. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 (‘Nguyen’), the court considered whether an applicant seeking judicial review of a deportation decision under the Act had the right to legal representation before the Tribunal and whether the failure to provide such representation amounted to a denial of procedural fairness or other jurisdictional error. At paragraph [27], the court in that case said:
27.In our view, the principle established by Deitrich[51] did not require the AAT to ensure that the appellant was provided with legal representation before deciding to affirm the delegate’s decision that he should be deported.
[51] Dietrich v The Queen (1992) 177 CLR 292.
In Nguyen, the court then went on to consider whether the failure to stay proceedings until the applicant was represented could amount to a denial of procedural fairness. At paragraph [33] and following, the court in Nguyen said:
33.There can be no doubt that deportation of a non-citizen who has lived in Australia for a considerable period is a very serious matter and is likely to inflict considerable hardship on the individual concerned. There is also no doubt that the absence of legal representation can effectively deprive an individual of the chance of rebutting the case in favour of his or her deportation. But there are other examples of administrative decisions potentially having a severe, if not catastrophic impact on individuals. These include such decisions as … rejecting applications for refugee status by persons within Australia … These decisions can have a profound impact on the people concerned and, indeed, in the case of applications for refugee status, often involve claims that a person’s very life is at stake. There is also little doubt that many persons facing … denial of refugee status would benefit greatly from legal representation at the decision-making stage.
…
35.If this is so, it raises the same public funding concerns that troubled the High Court in Canellis.[52] It is true that in Dietrich some members of the High Court were prepared to assume that the decision would not impose a substantial financial burden on governments … A similar assumption cannot, however, be made in the present case. … Moreover, while criminal cases may involve special considerations so far as the provision of legal assistance is concerned, courts might be thought to be ill-equipped to determine spending priorities for scarce legal aid resources.
36.It follows that although the AAT was bound by the requirements of procedural fairness, it was not obliged to ensure that the appellant was legally represented in the proceedings for review of the delegate’s deportation order. The AAT therefore did not fail to comply with its duty to afford the appellant procedural fairness.
[52] New South Wales v Canellis (1994) 181 CLR 309.
These comments equally apply to the present application. The Tribunal did not have an obligation, or indeed the power, to ensure that the applicant was legally represented. The failure to do so does not give rise to a jurisdictional error as claimed.
The Minister, as a model litigant, further submits that perhaps ground 1 could be interpreted as a submission that the Tribunal’s failure to exercise its discretion to grant an adjournment to allow the applicant to seek legal representation was legally unreasonable in the Li sense.[53]
[53] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; First Respondent’s Written Submissions filed on 21 October 2021 at paragraph [41].
Even if ground 1 were framed in such a way, it could not be made out in circumstances where an adjournment was not sought by the applicant, where the applicant was assisted in the course of the hearing by an interpreter and where it is clear from the Tribunal’s decision record that the issues of concern to the Tribunal were clearly articulated and put to the applicant, the applicant provided a response and that response was taken into account.
For each of these reasons, ground 1 has no reasonable prospects of success.
Ground 2
By ground 2, the applicant is, in effect, suggesting that the Tribunal denied him procedural fairness due to his lack of legal knowledge and inability to properly understand and defend himself. A fair reading of the Tribunal’s reasons shows that the determinative issues were clearly put to the applicant, he was provided with an opportunity to respond, he responded and the Tribunal considered his response.
Moreover, the Tribunal also put further information to the applicant by way of the section 424A letter dated 30 August 2018. The applicant was put on notice at the hearing that such a letter ‘would be forthcoming’.[54]
[54] See Tribunal decision record dated 4 October 2018 at paragraph [55].
Ground 2 therefore has no reasonable prospects of success.
Ground 3
By ground 3, the applicant says that he was denied procedural fairness. He has not clearly articulated how he says this has occurred. However, for the reasons discussed in relation to grounds 1 and 2 above, the Tribunal did provide the applicant with a reasonable opportunity to give evidence and put submissions, both at the hearing and after the hearing through the section 424A letter.
There is nothing before the court to suggest that this ground has reasonable prospects of success.
Grounds 4 and 5
Grounds 4 and 5 appear to take issue with the finding by the Tribunal at paragraph [88] of its decision record where the Tribunal said:
88.If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal. … The applicant has consistently claimed he is stateless and does not have any Iranian documents. He said he returned to Iran in 2013 to see his mother, who was unwell … However, based on the Tribunal’s earlier findings that the applicant is an Iranian citizen, the Tribunal considers he will be able to return to Iran and does not accept that indefinite detention is a likely consequence of cancellation.
The reference to indefinite detention in paragraph [88] is a reference to indefinite detention in Australia. It is not a reference to indefinite detention in Iran. The reference in ground 4(b) to voluntary returnees is misguided. The Tribunal did not at any stage say that the applicant would return voluntarily. That is clear from the opening sentence in paragraph [88] of the Tribunal decision record where it refers to the applicant becoming liable for removal if his visa were cancelled.
Grounds 4 and 5 are misconceived and therefore have no real prospect of success.
Ground 6
The claim in ground 6 that the Tribunal failed to meaningfully consider the best interests of the child also has no reasonable prospects of success.
First of all, the Tribunal did consider the impact on the applicant’s child if he were to be removed from Australia. At paragraph [65], the Tribunal noted that ‘the applicant told the Tribunal that he thinks he has a child however he had no contact with him/her and their mother has taken out a restraining order limiting contact’.
This statement however, which appears under the heading ‘Whether there are children in Australia whose interests could be affected by the cancellation, best interests of the child’, must be read in the context of the Tribunal’s reasons as a whole. At paragraph [53] of the decision record, the Tribunal sets out the evidence given by the applicant about his marriage and separation from his wife, including that she has a restraining order against him. Relevantly, the Tribunal records the following:
53.… He has not seen (his ex wife) since (she left him and got a restraining order) and does not know where she is. Before they separated she told him she was pregnant and according to her updates on Facebook, she gave birth in Sweden and subsequently returned to Australia with her child. The applicant said he thinks the child is his, although noted he has not ‘done’ a DNA test.
The Tribunal went on to say at paragraph [54]:
54.The Tribunal has given these factors some weight as a reason not to cancel his visa, particularly given his evidence that he thinks he has a child who resides in Australia, even if he currently has no contact with the child.
Read fairly, the Tribunal did give some consideration to the fact that the applicant ‘thought’ he had a child in Australia and gave that matter some weight against cancellation. The manner in which the Tribunal dealt with this issue did not disclose any jurisdictional error.
Conclusion
For each of these reasons, when regard is had to the extraordinary delay, the lack of any satisfactory explanation for the delay and the absence of merit to any of the grounds of review, I dismiss the application for an extension of time.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 28 September 2022
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