BUB17 v Minister for Immigration
[2020] FCCA 204
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUB17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 204 |
| Catchwords: MIGRATION – Protection visa – application for extension of time – significant delay – merits of proposed grounds – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 424AA(1)(a), 425, 476, 477, 477(1) and 477(2)(a) & (b) |
| Cases cited: AAV15 v Minister for Immigration and Border Protection (2015) 230 FCR 465 R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 |
| Applicant: | BUB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 151 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 4 December 2018 |
| Date of Last Submission: | 19 December 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Bergin |
| Solicitors for the Applicant: | Camatta Lempens Pty Ltd Lawyers |
| Solicitors for the Respondents: | Ms Stokes for the Australian Government Solicitors |
ORDERS
The application for an extension of time in which to file judicial review proceedings is dismissed.
The applicant to pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 151 of 2017
| BUB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 21 January 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa.
As a preliminary matter, the applicant seeks an order abridging the time in which the application may be made to the date of filing. This application was filed on 26 April 2017, which is approximately two years and two months after the expiration of the time limit provided for in the Act. An order extending time may be made pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’).
The matter proceeded before me on the basis of the Amended Application filed on 16 April 2018. The two grounds were as follows:
“1.The Administrative Appeals Tribunal (Tribunal) erred by misapprehending the evidence and then used its erroneous findings about the evidence to make negative credibility findings which was a jurisdictional error.
Particulars
1.1The Tribunal made findings at paragraph [36] that the applicant’s testimony was ‘inconsistent, and implausible amounting to a fabrication’ for reasons set out, which included examples of events described by the applicant which caused him to fear harm.
1.2In setting out the events which the Tribunal found to be inconsistently described by the applicant, the Tribunal misunderstood the evidence presented by the applicant.
1.3.The applicant described three separate events in his testimony before the Tribunal, which the Tribunal misunderstood to be variations of the same event put inconsistently by the applicant, but which the applicant considered three separate events relevant to his fears that he would be targeted for his role in bringing issues of election corruption to light.
1.4.The events described by the applicant were:
1.4.1.That prior to the election the applicant overheard the Awami League discussing rigging the election in his restaurant;
1.4.2.That on election day, while travelling to the polling station by bicycle, the applicant heard that members of the Hindu community were being prevented from voting by an armed group; and
1.4.3.That also on election day, he discovered that members of the armed group took ballot boxes from the polling station.
1.5.One of the grounds on which the Tribunal made its finding at paragraph [36] was that it noted at paragraph [38] that ‘his statement differs from evidence provided at the hearing before me as he said he heard the vote rigging on Election Day while out riding his bicycle.
1.6.The Tribunal’s misunderstandings of the applicant’s evidence were applied to make further findings that were ‘significant’ regarding the applicant’s credibility which led the Tribunal to find that the applicant was not a credible witness at paragraph [41].
1.7.The Tribunal’s rejection of the applicant’s evidence and its findings regarding the applicant’s credibility were illogical or irrational, and/or legally unreasonable and accordingly a jurisdictional error.
2.The Tribunal failed to afford procedural fairness to the a applicant in circumstances where it raised with him an inconsistency in his evidence leading to an adverse credibility finding, but failed to consider his evidence addressing the alleged inconsistency.
Particulars
2.1.The Tribunal put to the applicant the facts it perceived as being inconsistent testimony given by him regarding the events leading up to the murder of Chairman Shawkat.
2.2.The applicant attempted to correct the misunderstanding of the three events listed above in paragraph 1.4.
2.3.The Tribunal failed to consider the explanation given by the applicant, and thereby denied the applicant procedural fairness.”
Background
The applicant is a citizen of Bangladesh and a Sunni Muslim. He arrived in Australia as an unauthorised maritime arrival on 22 July 2012. He applied for the protection visa on 22 November 2012. A delegate of the Minister conducted an interview with him on 9 August 2013 and refused the application on 20 February 2014.[1]
[1] Court Book (‘CB’), pp 109 - 123.
The applicant applied for a review of the delegate’s decision within time and appeared before the Tribunal to give evidence and present arguments on 20 January 2015. He did so with the assistance of an interpreter in the Bengali language. Whilst the applicant’s submissions in this matter include the contention that aspects of the review hearing before the Tribunal were confusing, the adequacy of the interpreting at the hearing is not in issue.
As I have already noted, the Tribunal affirmed the decision of the delegate on 21 January 2015, and it is that decision which is the subject of this review.
The basis of the applicant’s claims has been succinctly summarised by the first respondent in its written outline of submissions, and I shall paraphrase that summary. The applicant claimed to fear harm from the Awami League on the basis of imputed and actual political opinion due to the fact that he claimed to support the Bangladesh Nationalist Party (‘the BNP’). He claimed that prior to his having left Bangladesh and, in particular, in the lead up to an election, members of the BNP held their meetings at his father’s restaurant, which he managed.
He claimed that after he reported vote-rigging by the Awami League to the Elected Council Chairman of his area, the Chairman had the perpetrators arrested. The Chairman was also a member of the BNP. The Awami League won the election and the applicant claimed that the relevant imprisoned members of the Awami League were released from prison, murdered the Chairman, burnt down his father’s restaurant, and sought him out with the intention of killing him. The applicant claims that he went into hiding and that members of the Awami League had attended his parent’s home on a number of occasions looking for him.[2]
[2] CB, pp 47 to 49.
That is the essential nature of the claims made by the applicant. The facts which underpin those claims, the Tribunal’s interpretation of them, and whether it properly considered all of his claims, or erroneously conflated them, was a central issue in the application before me.
The Tribunal did not find the applicant to be a credible witness. It found that his evidence was inconsistent, implausible, and involved fabrications. It found that he had not heard about or witnessed vote-rigging.[3] It placed significant weight on the fact that it regarded the applicant’s claim to have changed significantly over time. It did not accept that the applicant had reported vote-rigging to his local Elected Council Chairman. Further, the Tribunal found that the applicant had been inconsistent and deliberately vague in his account as to how long he was in hiding prior to his departure from Bangladesh. It was a matter of significance to the Tribunal that the applicant could not say when the election in question occurred.
[3] CB, p 90 at para [41].
The Tribunal rejected the applicant’s evidence that he had ever been involved in the BNP. Having rejected that he was either truthful or credible as a witness, the Tribunal was not satisfied that he had the fear of harm claimed for the reasons he claimed. For that reason it was not satisfied that he would face a real chance of persecution involving serious harm if he were to return to his country of origin. The Tribunal went on to consider the complementary protection obligations but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed to his home country, there was a real risk that he would suffer significant harm.
Materials Relied On
The applicant relied on the affidavit of his solicitor, Ms E Rutherford, filed on 26 April 2017, his affidavit filed on the same date, his affidavit of 16 April 2018, his further affidavit filed after the hearing on 19 December 2018, and an audio copy of the hearing before the Tribunal.[4] The affidavit of Ms Rutherford annexed a typed transcript of the hearing before the Tribunal. That transcript was prepared privately and is not the official transcript. Whilst it is preferable that an applicant present the official transcript of a hearing, no objection was taken to this course by the first respondent and no issue was taken with the overall accuracy of the informal transcript. In addition, as I have noted, I was assisted by having an audio copy of the hearing tendered as an exhibit.
[4] Exhibit A1.
The first respondent relies on the affidavit of the solicitor Ms L Butler filed on 12 December 2018.
Both parties relied on the materials in the Court Book.
Submissions
With respect to the application for an extension of time, the applicant submitted that it was in the interests of the administration of justice to extend time to permit him to make this application. He made the uncontroversial submission that the first respondent would suffer no prejudice except as to costs. He submitted that there would be significant prejudice to his position if no extension of time was granted for the obvious reason that if he was not permitted to make this application, he would, in all likelihood, be returned to Bangladesh, where he claims to fear persecution. Further, given that an application for Ministerial intervention has already been made, a successful review in this Court is his only avenue of redress against the decision of the Tribunal. It was submitted that the proposed ground had sufficient merit to warrant such an extension even given his significant delay of filing this application.
As I have noted, the applicant relied on two affidavits for the purpose of explaining the delay in making this application. I will summarise the contents of those affidavits.
In his first affidavit filed on 26 April 2017, the applicant provided some brief explanation to the delay in filing this application. He claimed as follows:
a)His Sydney-based lawyer had posted the Tribunal’s decision to an address in Adelaide at which he had ceased to live. When he moved away from that address, he lost his mobile phone, which had all his contact details in it.
b)As a consequence, he did not know about the Tribunal decision or the time limit in which he was required to file an application for judicial review.
c)He went to collect his mail from his previous address “about six or seven months later”.
d)In February of 2016, he took legal advice about obtaining a partner visa and was advised to request Ministerial intervention with respect to his immigration status. That request was prepared for him by a lawyer but was refused on 24 March 2017.
That explanation obviously lacks sufficient detail for the purpose of explaining a delay of this length. The applicant’s second affidavit filed on 16 April 2018 and dated 11 April 2018 sought to expand and clarify on the above. The applicant deposes as follows:
“When my application at the Administrative Appeals Tribunal (“Tribunal”) was affirmed, I recall receiving a phone call from my lawyer saying that they couldn’t continue my case and that I had to find another lawyer.”[5]
[5] Applicant’s affidavit, filed 16 April 2018, at para [4].
The affidavit continues:
a)The Department of Immigration also called him, advised that his visa was going to expire soon and that he had to decide what to do.
b)His previous lawyer had been assigned to him under a funded scheme and he had no experience in how to engage a lawyer.
c)With reference to the claim in his first affidavit that he had moved premises, he states that there was some confusion about where “the documents” (presumably the Tribunal decision) had been sent, and he was told by his previous lawyer that he had to wait for them to arrive so that he could take them to a new lawyer.
d)When he rang his previous lawyer to find out where “the documents” were, he was told that that lawyer was very busy.
e)He was told at some point that he needed a barrister, but he did not know what that was and could not recall who told him this or when.
f)At about the time of the Tribunal decision, he had a girlfriend, whom he intended to marry. The girlfriend was an Australian citizen. He could not marry her straight away because she was not yet divorced.
g)His belief at that time was that if he married his girlfriend, his immigration situation might change, and so he thought that he should wait until they were married.
h)He cannot recall being told of any time period in which he needed to do anything in his case and, “I did not receive the paperwork for a long time.”
i)He sought legal advice in February 2016.
j)He attended on a lawyer with his girlfriend but did not understand fully the advice that he was given, as no interpreter was present. Consequently, he relied on his girlfriend to make decisions about their situation at that time.
k)He has no recollection of having made a choice not to pursue judicial review at an earlier stage than he did. He was given a series of options that he did not fully understand.
l)After the Ministerial intervention request was rejected, he was made aware that judicial review was his only remaining option and a friend assisted him to draft his application.
In his affidavit filed on 19 December 2018, the applicant sought to provide an additional explanation for his delay in filing the application. He stated as follows:
a)He had made further inquiries to clarify when the request was made to the Minister to allow him to apply for a partner visa.
b)The drafting of that request commenced in April 2016.
c)Between May and December of 2016, inquiries were made by his former solicitor to obtain documents and information about his partner and her son for the purpose of making the request to the Minister.
d)He, his partner, and her son made statutory declarations on 13 January 2017.
e)He does not know why it took between February of 2016 and March of 2017 to prepare and submit his request to the Minister.[6]
[6] It was not the subject of dispute that the request for Ministerial intervention was made on 16 March 2017 and that the Department finalised the request without referring it to the Minister on 22 March 2017. The applicant was notified of that refusal on that date (Affidavit of Ms L. Butler dated 12 December 2018).
Counsel for the applicant submitted that the application for the extension of time was no less meritorious by reason of the extended delay in filing. Since his current solicitor was briefed, his actions have been prompt.
It was submitted that an adequate explanation having been provided, I should give greater weight to the merits of the proposed grounds of appeal than I should to the length of the delay. Counsel for the applicant referred me to and acknowledged the comments of Flick J in AAV15 v Minister for Immigration and Border Protection,[7] where the Court observed:
“The discretion to grant or refuse an extension of time and the discretion summarily to dismiss a proceeding are unquestionably valuable discretionary powers. Both are discretionary powers which assist both the parties to litigation and the public more generally in the timely resolution of litigation in a just and equitable manner. It is in the interests of neither an applicant nor of the public for litigation to proceed to a potentially lengthy and complicated hearing where a proceeding has not been commenced within such time as may be prescribed and where there are no good reasons to extend time. And, even where a proceeding has been commenced within time, it is again in the interests of neither the applicant nor the public for the court to entertain a proceeding which has no realistic prospects of success.”
[7] (2015) 230 FCR 465 at para [16].
Acknowledging that her client bore the onus of establishing that the discretion to extend time should be exercised in his favour, and turning to her submissions as to the merits of the proposed ground of appeal, Ms Bergin reminded the Court of the long-established principle:
“… that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[8]
[8] R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256.
With respect to ground one, it was submitted that the Tribunal misapprehended the evidence of the applicant, causing it to make erroneous findings which led to negative credibility findings. It was submitted that rather than correctly understanding the applicant’s evidence to the effect that three separate claimed events were relevant to his fears that he would be targeted, the Tribunal misapprehended the evidence and made the erroneous finding that the three claimed events were inconsistent variations of a single claimed event. It was this that led to the finding of inconsistent testimony about a single event.
On the applicant’s case, the three distinct events that became conflated in the mind of the Tribunal were: the overhearing by the applicant of the Awami League discussing vote-rigging in his father’s restaurant prior to the election; an incident on election day when he was riding his bicycle to the polling station and overheard that Hindus were being prevented from voting by an armed group, Rulaimin Bahimi; and, thirdly, also on election day, that he discovered that members of the armed group took ballot boxes from the polling station.
It was submitted that the Tribunal erroneously reached the view that the applicant was not a witness of truth and that this conclusion was drawn from a line of reasoning that was not open to the Tribunal without engaging in impermissible jurisdictional error. The error alleged is illogicality and unreasonableness which arises because of the misapprehension of the evidence of the applicant. It was illogical for the Tribunal to find that there was a single event based on inconsistent testimony because this finding was not open to it on the evidence presented. The error was in failing to consider the three events as separate pieces of information. A fair reading of the claims made by the applicant in his statutory declaration, the Decision Record of the Department, and the Tribunal transcript could only lead to the conclusion that the applicant had made claims with respect to three separate events at or about the time of the election.
In support of that argument, the applicant relied on the decision of the Full Court in AVQ15 v Minister for Immigration and Border Protection.[9] In that matter, the Court had this to say:
“A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.”
[9] [2018] FCAFC 133.
The effect of the applicant’s submission is that the misunderstanding of the applicant’s evidence was inconsistent with the fair and reasonable approach required for the assessment of inconsistencies in the claims of a visa applicant. It was submitted that the Tribunal did not engage in the process described in AVQ15.
It was submitted that the error of the Tribunal was so significant and played such a pivotal role in the Tribunal’s rejection of the applicant’s claim as to amount to jurisdictional error. The Tribunal had made a series of cascading findings relating to the applicant’s credibility, all of which relied to some extent on the first adverse credibility finding at paragraph 36 of the Decision Record, that the applicant was not a witness of truth.
With respect to ground two, it is pleaded in terms of the Tribunal denying procedural fairness in failing to consider evidence the applicant gave in response to being informed by the Tribunal of a perceived inconsistency in his evidence. However, as argued, the ground was refined to an allegation that the Tribunal member failed to give clear particulars to the applicant under s.424AA(1)(a). Whilst the applicant acknowledged that the Tribunal is not required to put inconsistencies to an applicant pursuant to that section, as they are not relevantly ‘information’ for the purposes of the section, it was submitted that, given the Tribunal plainly thought that it was engaged in the task of putting what it considered to be ‘information’ to the applicant, it was incumbent upon it to conduct that task correctly and consistently with the legislation.
It was necessary for the Tribunal to give “clear particulars”, whereas in this case the process of raising the question of inconsistencies with the applicant was confusing and confused. It was submitted that there is a distinction between informing an applicant of the Tribunal’s disbelief and informing the applicant of the information upon which that disbelief is based. In support of this argument, counsel referred the Court to the comments of Flick J in SZKSU v Minister for Immigration & Citizenship, where his Honour observed:[10]
“In some circumstances, the manner in which questions may be put may expose a denial of procedural fairness. Procedural fairness requires an opportunity for a party to effectively advance his case.”
[10] [2008] FCA 610 at para [20].
Procedural fairness required the Tribunal to put the inconsistencies to the applicant in clear terms in order to give him a fair opportunity to respond to it. The applicant also relied on the observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:[11]
“… where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
[11] [2006] HCA 63.
It was submitted that the nature of the particulars put to the applicant were so confusing as to deny him the opportunity of responding, and this ultimately led the Tribunal not to consider the claims. As a result, he was denied a meaningful opportunity to be heard.[12] In this case, it was asserted that the confusion created by the Tribunal caused the applicant not to be given a fair opportunity to advance his claims. Procedural unfairness arose from the manner in which the hearing was conducted to that extent.
[12] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
First Respondent’s submissions
The first respondent opposes the application for an extension of time submitting that there is no adequate explanation for the considerable delay and, further, that the proposed grounds of review lack merit. The first respondent concedes that it would suffer no real prejudice in the event that time was extended except as to costs, but submits, correctly, that that matter is not determinative. The Minister further submitted that it appears that the applicant opted to seek Ministerial intervention in relation to a different visa application rather than commencing judicial review in relation to the subject decision in a timely fashion. It submits that the applicant has only himself to blame for being unaware of the 35 day time limit because, on his own case, he appears to have neglected to have told his migration agent of his change of address, did not arrange for his mail to be diverted to his new address, and waited for over half a year to collect any mail from his old address.
With respect to ground one, the Minister submits that it should be rejected as an attempt to embark on a merits review of the Tribunal decision. A proper consideration of the Tribunal decision demonstrates that it did not misapprehend the applicant’s claims and, in fact, accurately summarised the three separate claimed events. It was submitted that the inconsistencies found by the Tribunal could not be said to be minor or peripheral.[13] The findings as to inconsistency were each open to the Tribunal and that there was nothing irrational, illogical or unreasonable about them or the consequent finding that the applicant was not a witness of truth. Further, it was submitted that the applicant had not suggested that there was significant information which had been overlooked by the Tribunal and which might have put a different light on the findings as to inconsistencies. This was contrary to the applicant’s written submissions.
[13] Op cit, AVQ15 at para [27] – [28].
With respect to ground two, the first respondent submits that the inconsistencies that were put to the applicant during the hearing were not information for the purposes of ss.424A or 424AA of the Act. Information for the purposes of those sections does not include the existence of doubts, inconsistencies, or the absence of evidence.[14] For that reason, the Tribunal was not required to put clear particulars of any perceived inconsistencies to the applicant in accordance with those sections.
[14] SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at 18.
Further, and significantly, the first respondent submitted that the Tribunal was not purporting to put those inconsistencies to the applicant pursuant to s.424AA of the Act, contrary to the express submission of the applicant. It submits that a consideration of the transcript relied on by the applicant reveals that the Tribunal was raising those inconsistencies with the applicant in order to give him every opportunity to give evidence and present arguments at hearing in accordance with s.425 of the Act. In other words, it was not obliged to reveal its thought processes as to the state of the evidence but did so as part of its duty to give the applicant an opportunity to be meaningfully heard.
Consideration
Pursuant to s.477(1) of the Act, any application to the Federal Circuit Court for a remedy to be granted in the exercise of its original jurisdiction under s.476 of the Act with respect to a migration decision, must be made within 35 days of the date of that decision. Section 477(2) provides the Court with a discretion to extend that period as it considers appropriate:
“(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.”
The first of the above requirements has been met, the applicant having made an application in writing setting out the requisite matters.
Section 477(2)(b) does not stipulate or limit the type of matters of which the Court must be satisfied when considering the question of whether or not an extension is necessary in the interests of the administration of justice.
A starting point in the exercise of the discretion is that any matters taken into account by the Court must logically and sensibly relate to the interests of the administration of justice.[15] Whilst there are no mandatory criteria, factors which are ordinarily taken into account include:
a)the reasons for the delay;
b)the length of the delay;
c)whether there is any prejudice to the respondent;
d)the merits of the proposed application to be considered on the basis of whether a proposed ground has a reasonable prospect of success; and
e)the effect on the applicant if time is not extended.
[15] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252.
Delay
The delay is very significant. The onus is on the applicant to establish a plausible and adequate reason for the delay in commencing the proceedings in this matter. As was observed by McHugh J in Gallo v Dawson[16] a case would need to be exceptional before a court would extend time after many months simply because the applicant had not appealed until they had researched the relevant issues. Whilst the circumstances of that case are not entirely on all fours with the explanation provided by the applicant, he does appear to have taken very little responsibility, firstly, in keeping himself informed as to the outcome of the Tribunal hearing and, as a consequence, any information that might have been given to him about timeframes within which to file an application in this Court and, secondly, in arranging for an application to be made once he knew of the outcome of the hearing.
[16] (1990) 93 ALR 479.
In dealing with applications for an extension of time in relation to migration matters, this Court and the Federal Court have repeatedly stressed the need for there to be an adequate explanation for the delay. The principle was summarised succinctly by Pagone J in these terms:
“The need to provide an adequate explanation for the delay is not something to be ignored. It has been said in numerous cases, such as the decision in Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344, that an unacceptable explanation for the delay is an important requirement in deciding whether to grant an extension.”[17]
[17] MZZNU v Minister for Immigration and Border Protection [2017] FCA 496 at para [3].
The onus was on the applicant to maintain contact with his lawyer, and that included, logically, keeping his lawyer advised of any change of address. That obligation was not removed simply because he had lost his mobile phone. His second affidavit[18] states that when he was told that the Tribunal decision had affirmed the delegate’s decision, he was advised by his lawyer that they could not continue to act and that he would need to find another lawyer. There is no evidence as to when he came to learn that the Tribunal had affirmed the delegate’s decision or when the Department called him to advise that his visa was going to expire. There is no evidence as to how that contact occurred chronologically in the context of him having lost his mobile phone.
[18] Affidavit of the applicant dated 11 April 2018.
Whilst I accept that, in his circumstances not having had experience in the past with privately engaging a lawyer, he might have been faced with a difficult task, there is no evidence as to what, if any, efforts he took, having been told that the Tribunal decision had been affirmed, to engage a new legal advisor in a timely manner. I am not satisfied that the explanation given about believing his immigration status may change if he were to be married to his girlfriend, who was an Australian citizen, is an adequate explanation for failing to take timely action with respect to this application. On one view, the applicant appears to have elected to pursue a different path in order to obtain residence in this country.
He claims not to have received the paperwork for a long time but makes no effort to estimate when it was he received a copy of the Tribunal decision and provides no evidence as to the circumstances in which he came to receive it. Even if the decision to pursue Ministerial intervention on the basis of his relationship with his new partner was not taken until about February 2016, when he sought legal advice in the presence of his partner, that does not explain the length of the delay from January of 2015, when the decision was made. Nor do I regard it as an adequate explanation that, when he attended to obtain legal advice with his partner, she was the main person to communicate with the lawyer and that he relied on her to make decisions about their situation at that time.
There is authority to the effect that an election to pursue Ministerial intervention rather than judicial review can properly be characterised as an indication that the applicant accepted the Tribunal’s decision as being correct and evincing an intention not to challenge the Tribunal decision further in court.[19] The applicant asserts that this was not the case, stating:
“At no point do I recall having made a choice not to pursue judicial review earlier. I remember being given options and not fully understanding what was the best course of action.”[20]
[19] Vella v Minister for Immigration and Border Protection & Anor (2015) 326 ALR 391; Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395; MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at para [4].
[20] Affidavit of the applicant dated 11 April 2018, at para [16].
Even allowing for his claim not to have made a conscious decision to pursue Ministerial intervention as an alternative to challenging the decision of the Tribunal in this Court, the glaring fact remains that he did not make a conscious decision to pursue a challenge in this Court in a timely fashion.
By his own account, it was only after the request for Ministerial intervention was rejected, on being told that judicial review was his only option, that he took action to file this application. The delay between first seeking legal advice in February 2016 and the request for Ministerial intervention on 6 March 2017 is explained on the basis that there was a period of information gathering in order to support the claim for Ministerial intervention. That explanation simply underscores the fact that for that period he was relying solely on a process other than judicial review.
It is well-established that being unaware of time limits imposed by the legislation is not an adequate explanation for a significant delay in filing proceedings.[21] It does not amount to a special reason for delay because:
“In the ordinary course of events, a layperson would not be expected to be aware of the court’s time limits.”[22]
[21] SZNYE v Minister for Immigration and Citizenship [2010] FCA 500.
[22] Ibid at para [8].
I am not satisfied that the circumstances of the applicant are such as to make his ignorance of the time limits an exceptional case. I am not satisfied that the applicant has provided an adequate explanation of the delay of over two years in making this application.
Lack of prejudice to the first respondent
The first respondent has properly conceded that it would suffer no prejudice other than costs in the event that time were to be extended. That is, of course, a relevant concession but not dispositive of the question as to whether or not it is in the interests of the administration of justice to permit an extension of time. I give that factor limited weight.
The effect on the applicant if time is not extended
I take into account that if I do not extend time in which to make this application, there are likely to be serious consequences for the applicant. I am advised, and have no reason to doubt, that a potentially successful judicial review is, at the moment, the only avenue which might result in the applicant successfully obtaining a visa that would allow him to remain in this country. It is likely that he will be required to leave this country either voluntarily or at the instigation of the Department making arrangements for his removal. The weight that can be given to that factor must logically be proportionate to the merits or otherwise of any proposed grounds of review.
The merits of the proposed application for review
I have considered the affidavit material, the transcript, the submissions of counsel, and have listened to portions of the recording of the Tribunal hearing. With respect to ground one, I am not satisfied that a fair reading of the Decision Record of the Tribunal establishes that it misapprehended the claims of the applicant or that it conflated three distinct incidents into an inconsistent account of a single episode.
The Tribunal accurately summarised the first claimed event as deposed to by the applicant in his statutory declaration.[23] The Tribunal then went on to note what has been described as the third claimed event and specifically noted that this was a matter raised for the first time at the Departmental interview held on 9 August 2013.[24] In dealing with that aspect of the Departmental interview, the Tribunal did not appear to be under any misapprehension as to the nature of that incident.
[23] CB, p 187 at para [25] – [27].
[24] CB, p 188 at para [30].
The Tribunal then went on to note that, at the hearing before it, the applicant had claimed that on election day while travelling around on his bicycle, he heard that members of the Rulaimin Bahimi were preventing a community of Hindus from voting with guns. That is what has been described as the second claimed event.[25]
[25] CB, p 188 at para [34].
Even if the submission of the applicant that the Tribunal member appeared during the hearing to conflate the first and second events[26] is accepted, that is not of itself conclusive. The transcript does not record the decision or reasoning of the Tribunal. The Decision Record appears to identify the incidents separately. The starting point is the Decision Record and it is there that the Court looks to ascertain the Tribunal’s understanding of the facts.[27]
[26] Exhibit A1, transcript, at pp 16 – 17.
[27] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at paras [10] & [34].
At paragraph 36 of the Decision Record, the Tribunal turned to a consideration of the applicant’s claims and stated:
“For the reasons that follow, the Tribunal does not accept the applicant is a credible witness and suffered the harm or difficulties in his country that he claims for the reasons that he claims.”[28]
[28] CB, p 189 at para [36].
It then proceeded to note that the applicant’s claims as to how votes were being rigged and how he found out about it had changed significantly over time.[29] That observation was open to the Tribunal because the second and third claimed events had not been raised in his statutory declaration and the second claimed event was not mentioned during the course of the Departmental interview. That is a matter that was specifically noted by the Tribunal member. At paragraph 41 of the Decision Record, the Tribunal member made the following observations and findings:
“I view as significant the applicant’s major discrepancies in his evidence over time as to how he came to know of the vote rigging, who was involved and what happened to lead him to suspect of vote rigging. I expect if he did report the vote rigging to the Chairman, even accepting the applicant has only limited education, that he would be consistent in general detail as to what he witnesses or heard as to vote rigging and how he found out about it. The evidence before me, as outlined above, indicates he has not been. This leads me to find the applicant did not witness vote rigging, hear about it or was informed of vote rigging or of Hindus being prevented to vote by either Rulaimin Bahimi or the Awami league or its youth Wing either while at his restaurant, at the polling centre or out on the bicycle. This adds to my finding the applicant is not a credible witness.”[30]
[29] CB, p 189 at para [37].
[30] CB, p 190 at para [41].
They were not the only inconsistencies that were of concern to the Tribunal. It also placed significant weight on the fact that, in his statement, he indicated that he knew, because he was informed by a friend, that Rohul Amin was the particular person from the Awami League who was searching for him and had been one of the persons he had overheard conspiring to rig electoral votes at his father’s restaurant and whom he had had arrested, whereas, in the Tribunal hearing, when asked whether he knew any of the men that he had reported to the police or who were involved in preventing Hindus from voting, he said that he did not.[31] That led the Tribunal to conclude that he did not overhear Rohul Amin organising to rig votes in the manner claimed. Adding to the Tribunal’s credibility concerns was that the applicant was inconsistent on whether the elections were national or local elections[32] and information suggesting that there had been no national elections for a significant time prior to his departure.[33] It was also concerned about his inability at the hearing to state how long it was between the date of the election and when the men were released from prison, killed the chairman, and tried to harm him.[34] There was an overall concern about his inability to recall how long it was between the date of the election and when the men were released[35] and an inability to provide reasonably consistent timeframes or any at all as to how long he was in hiding or how long between when he informed the police and when the restaurant was attacked leading to a conclusion that his evidence in that regard was inconsistent and purposefully vague.[36] It was not simply the inconsistency in the three claimed events on which the Tribunal based the credibility finding. It states at paragraph 50:
“For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness.”
[31] CB, p 190 at para [44].
[32] CB, p 191 at para [45].
[33] Ibid.
[34] CB, p 191 at para [46].
[35] Decision Record, at para [46].
[36] Decision Record, at paras [48] and [49].
I am satisfied that the Tribunal understood that there were three separate claims and tried to reconcile them. Part of the inconsistency noted by the Tribunal was the fact of different claims made at different times and the failure on any occasion to mention all of these claims. For example, at the hearing, he only mentioned the first claimed incident when prompted. It was open to the Tribunal to find that this was an inconsistent narrative, as it did, irrespective of whether the applicant was describing three separate incidents or not. The Decision Record makes clear that the unfolding or evolving nature of the claims made by the applicant at different stages was of itself an inconsistency quite apart from whether the separate events were internally inconsistent or mutually exclusive.
It was inconsistent of him not to make a mention of the first claimed event at the Tribunal hearing.[37] That is a feature of his claims and evidence that the Tribunal struggled to come to terms with. I am not satisfied that it has been demonstrated that the Tribunal conflated three separate incidents into one and that it misconceived the nature of his claims. To the contrary, it appears to have given close consideration to his claims and the evidence and was left with an impression of inconsistency in the claims made from time to time and the details of some individual claims, which led to its assessment that he lacked credibility and ultimately that he was not a witness of truth.
[37] CB, p 189 at para [38].
It is to be accepted that adverse credibility findings can involve error that amounts to a jurisdictional error. Extremely illogical or irrational reasoning on credibility issues might be a jurisdictional error in its own right.[38] Caution must be taken not to permit a challenge to a credibility assessment to stray into the territory of a merits review.[39] It is always a case specific inquiry.
[38] ReMinister for Immigration and Multicultural Affairs, Re Ex parte Applicant S20/2002 (2003) 198 ALR 59 at para [52].
[39] AVQ16, op cit, at para [41].
I am satisfied that the findings of the Tribunal as to credibility were reasonably open to it. I am not satisfied that they were irrational and illogical or legally unreasonable. I am not satisfied that ground one is reasonably arguable.
As to ground two, this was posited on the basis that the Tribunal raised the question of inconsistencies with the applicant in a manner that was confusing and confused. There is no evidence from the applicant in any of the affidavit material that he has provided to suggest that he found the manner of questioning by the Tribunal member in relation to inconsistencies to be confusing. In any event, I accept the submission of the first respondent that the existence of doubts, inconsistencies, or concerns about the absence of evidence is not ‘information’ for the purposes of ss.424A or 424AA of the Act.
Further, it is not apparent to me, on considering the impugned sections of the transcript[40] that the effect of the Tribunal’s question was to create confusion in the mind of the applicant. The applicant is correct that, at one stage in the proceeding, the Tribunal member put to him that she wanted to put information to him under s.424AA of the Act and then proceeded to refer to his failure to mention the significant matter of the attack on the restaurant after the men were released from prison.[41]
[40] Transcript, lines 280 to 291.
[41] Transcript, lines 323 to 328.
For the reasons I have stated, I am satisfied that the Tribunal member was under a misapprehension that she was required to put that matter to the applicant pursuant to that section, but having said that, there appears to be nothing confusing about the way in which she raised that particular concern with him at that point in the hearing. Having considered the transcript, I am satisfied that the Tribunal did provide the applicant with a genuine opportunity to be heard, gave him an opportunity to comment on its concerns, and expand on his claims when necessary. I am not satisfied that ground two is reasonably arguable.
Taking into account all of the matters identified, both individually and cumulatively, I am not satisfied that it is necessary in the interest of justice to extend the time with respect to either ground.
I dismiss the application for an extension of time and I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 6 February 2020
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