BZAHU v Minister for Immigration
[2014] FCCA 2500
•13 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAHU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2500 |
| Catchwords: MIGRATION – Application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) – application contends Tribunal’s decision affected by jurisdictional error – no prima facie case – no reasonable explanation for delay – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.477, 424AA |
| Australian Broadcasting Corporation v O’Neill [2006] HCA 46 Australian Broadcasting Tribunal v Bond [1990] HCA 33 |
| Applicant: | BZAHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 862 of 2014 |
| Judgment of: | Judge Burnett |
| Hearing date: | 13 October 2014 |
| Date of Last Submission: | 13 October 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 13 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.W. Haddrick |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the First Respondent: | Mr B. McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be dismissed.
That the application for an interlocutory injunction be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $7643.00.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 862 of 2014
| BZAHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This application commenced approximately two weeks ago, with the applicant seeking an urgent interim injunction to restrain the first respondent from deporting him. His then and present migration status is as an unlawful entrant.
In his application, the applicant first made an application for extension of time for the making of his principal application, pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”). He then sought judicial review of the decision of the Refugee Review Tribunal rejecting his protection visa application.
Given the Minister’s undertaking on that occasion not to take action, the matter was adjourned to today for hearing. Although both applications were formally adjourned today for hearing, the issues agitated today were, first, the grant of the interlocutory injunction and secondly, the extension of time application to be made in support of the principal application.
For obvious reasons, the substance of the principal application had to be agitated as the question as to whether or not the application could give rise to a serious issue to be tried or a prima facie case, in the sense explained in Australian Broadcasting Corporation v O’Neill [2006] HCA 46 was at its heart. In ABC v O’Neill (supra) the principles to be applied for the granting of an interlocutory injunction were expressed by Gummow and Hayne JJ in the following terms at [65]:
“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal72:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
In the same decision, Gleeson and Crennan JJ expressly approved the above quotation from the judgment of Gummow and Hayne JJ and continued at [19]:
“…a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.”
Likewise, in considering the question of whether an extension of time ought be granted under s.477 of the Act, it is settled that the applicant ought demonstrate the following factors: namely, that in considering whether the discretion ought be exercised the court ought consider the extent of the delay; the reasons for it; any prejudice to the respondent; the impact on the applicant if time is not extended; the interests of the public at large and the merits of the proposed substantive application.
There are other matters to be considered in the context of such an application. Commonly they relevantly concern the balance of convenience – i.e. the competing prejudice. Neither party here contests this favours the applicant. Likewise, there is no contest concerning the bearing such an application will have upon the public interest at large. However, the applicant must, for the purpose of the extension of time application, also address the extent of and provide an explanation for the delay, a matter that is separately addressed below.
It follows that two substantive issues require resolution. The first is where there is a prima facie case or a serious issue to be tried? Or to be put another way for the purposes of s.477 of the Act, what are the merits of the proposed application? And, has the applicant explained the lengthy delay in bringing his application?
As these applications were heard together, it is important to make a number of observations. The first is that there does not appear to me to be any material difference between the test requiring the applicant to establish a prima facie case for the granting of an interlocutory injunction and in the test relevant to considering the merits of the application, which the applicant is required to demonstrate in its application for extension of time. So far as these factors impact on the outcome of my decision, they are resolved together and, indeed, both matters inform both applications. Secondly, in seeking an interlocutory injunction, it is also necessary for the applicant to address all the contested discretionary factors in dispute, including the question as to whether the discretion to extend time ought to be enlarged. If the applicant fails to establish a prima facie case on any one of those factors then it will fail to establish a prima facie case and the application for the interim injunction will also fail. It follows that the practical effect of these two matters has to be addressed. Before doing so, I’m first going to turn to some of the facts relevant to the substantive dispute.
In this instance, the applicant arrived in Australia as an irregular maritime arrival on 16 February 2012. In his protection visa application he declared he was born in Kabul in December 1993. He is an Afghan citizen by birth and that has been the sole country in which he has a right of residence. He understands the Hazari language and his ethnicity is Hazara and his religion is Shia. He is single and the whereabouts of his parents is unknown. He has two brothers and a sister who reside in Pakistan. He declared various residential addresses, including one in Kabul from birth until 2008, when he moved to Peshawar in Pakistan where he worked as a carpet weaver.
He returned to Pakistan in September 2011 and then subsequently departed Afghanistan on a passport which was issued to him legally and without difficulty. That passport was subsequently destroyed in the course of transit to Australia. In his claims for protection set out in his statement of 18 April, he identified, in particular, not only that he was Hazara and Shia born in Kabul, but his father was Mujahedeen and a member of the Wahdat. He says that about four and a half years ago the Gulbadeen faction members of the Mujahedeen came after his father, causing his father to flee to Iran. He said that on the way to Iran his father disappeared and the applicant now believes his father has been taken by the Taliban. He said that while fleeing, the applicant’s father had managed to telephone the applicant’s mother with a cryptic message telling her to flee. As a result, his mother relocated the family, including him, to Peshawar in Pakistan in 2008. He said that one day an aunt, with whom the applicant was in telephone contact, told the applicant that people who had taken his father were asking around at the applicant’s old neighbours in Kabul about the applicant’s family. She told him one neighbour told these people that the applicant’s family were in Peshawar and it was following that that the applicant then decided to leave Pakistan.
He said he could not stay in Pakistan as he was at risk as a Hazara and that he was unlawfully there, making him at risk of harm from police and the security situation there was also worsening. He said he could not return to Afghanistan because the Taliban was surging against the American-backed government. He stated the Taliban were located in every region of Afghanistan and that he had no connections outside Kabul. He said Afghanistan is tribal and so he could not just move to a different area. The Hazaras, he said, have been massacred in numerous places around Afghanistan and that the US Forces cannot now secure Kabul, let alone after withdrawing in 2014.
He said that he participated in an interview with a delegate of the Minister on 23 May 2012, which was conducted with the assistance of an interpreter in the Hazaragi and English languages. He said his migration agent was present at that interview and that he explained that his passport was arranged for him in Afghanistan by a people smuggler. He told the delegate that a year after that he and his mother had arrived in Pakistan his mother married another man, leaving the applicant to care for his siblings. He explained that his cousin learnt from his Hazara neighbours in Kabul that the Taliban were asking about his family and a mentally ill neighbour had told the Taliban that the applicant’s family were in Peshawar and he says he was told that by his aunt via the telephone. He says, when asked, he stated that he had never been harmed or threatened personally by the Taliban, but as a Hazara and a Shia his human rights have been violated in Afghanistan for many years.
I have earlier noted that he arrived in Australia on 16 February 2012. On 19 May 2012 he lodged an application for a protection class XA visa and he was assisted in that regard. On 10 July 2012, the Department of Immigration refused his visa and subsequently on 20 July 2012, he lodged an application for review of the decision with the Refugee Review Tribunal (“RRT”). On 26 February 2013, the Tribunal affirmed the department’s decision not to grant the applicant a protection visa and subsequently he has lodged this application in this court in late September 2014.
A version generally consistent with his initial version was provided first in a statement attached to his protection visa application; secondly, in an interview with the delegate, which has earlier been noted, and finally in submissions that were made in support of the interview made to the delegate, which preceded the decision of 10 July 2012. These matters appear to have been generally accepted and informed the delegate’s decision to refuse his visa application, including a complementary protection visa application. It was that decision that was the subject of the unfavourable review decision before the RRT that the applicant now seeks to impeach.
Significantly, at the Tribunal hearing another particular of claim was advanced. At the Tribunal hearing the applicant first confirmed all the information in his forms and statutory declaration accompanying his protection visa application was correct and he had no information to add. However, subsequently when asked (this is to be found at [43] of the Tribunal’s decision) what he feared would happen if he returned to Afghanistan, he said he feared his father’s enemy, Z, would become his enemy. He said Z was a member of Hezebe-e-Islami, but then Z joined the Taliban. He said Z sees no difference between the applicant and the applicant’s father. He noted that Z was a person with no logical human feelings. When asked, the applicant stated that he was unsure whether his father was still alive. He said that he believed his father was dead and that he would have the same fate. That is, the applicant said “they” (I take it to be a reference to Z and his cohorts) have suicide bombers, so how could they be empathetic toward the applicant. He said to the Tribunal this shows how ruthless they are and that the applicant said that Z knows the applicant very well and that Z is an enemy of the applicant’s family. When the Tribunal asked, other than Z, did the applicant fear anything else, the applicant responded he feared Z’s people. When asked what that meant, the applicant said that he did not have a problem with the rest of the Taliban, just with Z. This was the first time that Z had been referred to.
After the hearing the Tribunal caused a s.424AA notice to issue and the applicant was invited to attend a second hearing to discuss this issue. At [56] the Tribunal’s decision continued:
The Tribunal, using the procedure in s424AA, discussed with the applicant that he did not name Z in his written statement, nor during his interview with the delegate. Although the applicant claimed that at the first interview he had named Z at an earlier interview, the information available to the Tribunal on the departmental file did not show that. The Tribunal allowed the applicant additional time at the conclusion of the first hearing to provide additional evidence and submissions, but the submission from his migration agent provided no further information regarding his naming Z in an earlier interview.
In determining the applicant’s application the Tribunal concluded at [114] and [115]:
The Tribunal indicated at the hearing it had concerns the applicant did not in his written statement or during his interview with the delegate, name Z as a person with whom his father had a conflict or that Z is the person whom the applicant fears will harm him if he returns to Afghanistan. The applicant offered several explanations as to why he only named Z for the first time at the first hearing [and then five matters were identified].
…
The Tribunal is not satisfied by any of the applicant’s explanations. There is no evidence to support the applicant’s claim he had made reference to Z in his earlier interview before the department or to his migration agent. During the second hearing, the migration agent submitted the applicant had not named multiple people on varying occasions. His failure to name Z is not a big issue and should not affect the Tribunal’s assessment of the applicant’s credibility. After each hearing the Tribunal allowed the applicant additional time to provide evidence he had done so. Had the applicant so named Z at an earlier interview, the Tribunal considers it is all more reason for him to consistently name Z when describing why he fears to return to Afghanistan. The Tribunal considers that the applicant is claiming Z is the person he most fears will harm him were he to return to Afghanistan, in essence making Z the key part of the applicant’s claims, it is reasonable to expect the applicant to provide consistent evidence when discussing such a key part of his claims.
The Tribunal then proceeded to formally find against the applicant. In particular, an observation was made by the Tribunal at [114](b) in these terms:
At the first hearing the applicant claimed he did not mention Z during an earlier interview with the delegate. The Tribunal has reviewed all the material on the departmental file. It can find no evidence of the applicant making any reference to Z. There is no record on the departmental file of the applicant having an earlier interview, other than which he had with the delegate on 23 May 2012. It would be common practice for the applicant to attend what is often referred to as an ‘entry interview’. The records of any entry interview are not on the departmental file. At the hearing the Tribunal invited the applicant’s migration agent to provide evidence the applicant had made an earlier reference to Z. The migration agent’s post hearing submission of 12 November 2012 provided no additional evidence or information on this issue. The Tribunal notes too, there is no reference to Z in the migration agent’s submissions to the delegate of 15 June 2012 or to the Tribunal on 19 September 2012 which leads the Tribunal to conclude the applicant also has not named Z when giving instruction to his migration agent.
In fact, there was an entry interview record and a transcript of that record was subsequently produced for this hearing. However, notwithstanding that fact, it is apparent from the transcript that it appears to be generally consistent with the applicant’s initial statements. However, the applicant contends for this application that that is not so and these matters will be subsequently addressed. However, it suffices to say the applicant has seized upon the Tribunal’s failure to consider the entry interview in its efforts to impeach the Tribunal’s decision.
The applicant advances three grounds in support of its application for review of the Tribunal’s determination, dealing with each in turn. In the first ground, the applicant contends that the Tribunal mistakenly concluded there were no entry interviews which were conducted by the applicant prior to 22 May 2012. It was contended for the applicant that the Tribunal had mistakenly concluded that there were no entry interviews and that it had made an erroneous finding or reached a mistaken conclusion which was in the nature of an error provided of a jurisdictional character in accordance with the principles in Craig v State of South Australia [1995] HCA 58. In particular, it relied upon observations in the Tribunal’s reasons at [56]. There, the Tribunal noted that, using the procedures in s.424AA of the Act, it discussed with the applicant that he had not named Z in his written statement. At that time, it noted that the applicant claimed that he had named Z at an earlier interview. The Tribunal had indicated that if Z was the main reason for the applicant fearing to return to Afghanistan, it considered it reasonable the applicant would have named Z in his written statement and interview with the delegate. However, because he did not do so, the Tribunal considered it may find he was not providing credible evidence and may go on to find that he was not credible generally. That was the thrust of the Tribunal’s inquiries under s.424AA of the Act. The Tribunal noted that the applicant did choose to respond at the hearing and stated that when he had prepared his statement, his migration agent did not put Z’s name in his statement, and therefore the delegate did not ask him about Z during the interview and unfortunately, he stated, he had forgotten to mention Z’s name during the course of the interview.
The applicant placed particular emphasis on the use of the procedure in s.424AA of the Act. It was noted the Tribunal had orally given the applicant clear particulars of the information it considered relevant for affirming the decision under review and had challenged the applicant on the absence of an earlier interview that the applicant had said that he had participated in. This demonstrated that the Tribunal placed particular reliance upon the absence of an earlier record of interview. It was said, by reason of that, that the Tribunal then formed the views expressed in [114] and [115], which were adverse to the applicant. However, I do not accept that submission. It seems apparent to me that, on a reading of the Tribunal’s reasons, the Tribunal had not placed particular reliance on the absence of an earlier record of interview, but rather an absence on the applicant’s failure to identify Z as a reason for this fear.
It was further contended that the Tribunal had mistakenly concluded there was no entry interview. In response, the respondent contended that that contention was misconceived for the simple reason that the Tribunal did not mistakenly conclude that no entry interviews were conducted, and that such was plain on the face of the Tribunal’s decision. In particular, it was contended for the respondent that the Tribunal was plainly cognisant of the fact that it would have been typical for an entry interview to have been conducted, but then noted it did not have any records before it to indicate that an interview had in fact been so conducted.
Importantly, at [114](b), which I’ve earlier referred to, it can be seen that the Tribunal noted it can find:
…no record on the departmental file of the applicant having an earlier interview, other than that which he had with a delegate on 23 May 2012. It would be common practice for the applicant to attend what is often referred to as an ‘entry interview’. The records of any entry interview are not on the departmental file.
It is plain from those words that the Tribunal did not construe that to mean that there had been no such interview, but rather there was no evidence of any interview. In any event, as the Tribunal’s reasons proceed to note, the applicant was afforded a further opportunity to produce such a transcript of any interview, but none was forthcoming. It was further contended in support of this ground that this matter constituted a defect in the inquiry process. Respectfully, I do not accept that submission. It is, in my view, incorrect, simply because it cannot be supported, first, on the facts as found by the Tribunal, and secondly, because of the Tribunal’s invitation extended to the applicant, which was not answered.
In any event, the respondent says that even if there were an error, the error itself is not fatal. In its submissions and its further submissions on this ground, the respondent contended that, even if the Tribunal had mistakenly concluded that there were no entry interviews, which of course, in my view, is not the case, such error would be an error of fact, which cannot constitute jurisdictional error. In that regard, the respondent relies particularly on the authority of SZRPT v Minister for Immigration and Border Protection [2014] FCA 24. In that case, Katzmann J considering the point and, commencing at [32], considered:
“…in particular the observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG (2010 115 ALD 303 ; [2010] FCAFC 51 at [27]–[28] (with which I agreed at [35]) to the effect that an error of fact based on a misunderstanding of evidence would not give rise to jurisdictional error unless it meant that the tribunal had not considered an applicant’s claim.”
At paragraph 36 her Honour continued:
“To like effect, in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 ; [2003] FCAFC 231 at [20] the Full Court said that “unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6” (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004 HCA 32 at [39] per Gummow and Hayne JJ, Gleeson CJ agreeing at [1]). A fact is classed as jurisdictional if it must objectively exist before an administrative decision-maker’s jurisdiction to exercise a power is enlivened or if it is a criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion: Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57], [107].”
Whether or not the applicant had given an entry interview, in my view, is not such a fact. It is apparent here that the questions for consideration were (a) did the applicant have a well-founded fear of Z and (b) more generally, a well-founded fear of persecution? The second matter was plainly addressed and so also the first matter. In doing so, the Tribunal at [114] and [115] clearly articulated its understanding of the applicant’s claim and explained why it dismissed them. It cannot be said by reference to those matters it so mischaracterised the applicant’s claim that it failed to address it in an administrative law sense, therefore enlivening an entitlement to judicial review. It follows that I do not think that the applicant has a prima facie case in respect of this part of ground 1 of his application.
The applicant also complains that the Tribunal failed to make proper inquiries. The duty upon tribunals to make further inquiries has been addressed by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, where at [25] of the plurality’s decision it stated:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
Their Honours observed that, in that case, it wasn’t necessary to explore the principles in the case before them for the two reasons which have some analogy here. Commencing at [26], their Honours continued:
“The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result.”
As I’ve noted, that has parallels in this instance, for reasons which will be explored shortly when I discuss the content of the initial interview. The second matter concerns the fruitfulness of further inquiry, and here of course, as the evidence demonstrates, the subsequent inquiry undertaken, although well after the event as opposed to at the time, did not bear fruit, a matter which is addressed in part below when considering the issue of materiality. It follows, in my view, that there was no error on the part of the Tribunal in its failure to undertake further inquiry and that any such failure would have given rise to the prospect of any jurisdictional error.
Dealing then with ground 2. In his second ground, the applicant contends that the Tribunal took into consideration an irrelevant consideration, that is, the absence of evidence that the applicant made reference to the nature of his well-founded fear for a convention-related reason prior to the first hearing before the Tribunal. In essence, the applicant complains that the Tribunal considered the failure by him to make any complaint about Z prior to the hearing before it. The applicant contended that the Tribunal concluded at [115] that it was not satisfied by any of the applicant’s explanations, and in particular at [114](b) that it was only at the first hearing that the applicant claimed that he mentioned Z during an earlier interview with the delegate.
The applicant contended that that particular finding represents a summary of the applicant’s response to a line of questioning about when he previously identified Z and that the remainder of the paragraph represents what the Tribunal made of his assertion and what considerations the Tribunal took into account when considering the reliability of the assertion in the italicised sentence. The applicant conceded that a person was not identified in the transcript of the entry interviews as a person who could be conclusively described as Z, but said that, in any event, from the interviews it was apparent that first, there was evidence in the transcript that the applicant identified persons he feared in Afghanistan; secondly, that any one of those persons could be said to be Z; and finally, that the transcript is consistent with his contention that he was not asked to identify, either specifically or generally, the identity of the persons that he feared. It was on this basis that the applicant contended that the Tribunal had taken an irrelevant consideration into account, namely the absence of evidence which the Tribunal expected the applicant should have been able to make reference to and be seen in the departmental materials.
In submissions for the applicant the rhetorical question was asked, “Well, why is the matter an irrelevant consideration?” And answered as follows:
“Because given that they were entry interviews, the applicant’s failure to adduce recordings of those interviews is not a matter which should be held against the applicant.”[1]
It was contended for the applicant that the Tribunal had made a credit finding based on the absence of this evidence. Because there is evidence of entry interviews, this consideration, in the absence of any evidence of the entry interviews was never a consideration. However, the Tribunal did not make a finding based on the absence of entry interviews, but rather because of the late evidence introduced by the applicant, which was incompatible with early opportunities for full disclosure by him. It found that the applicant only made reference to the matter of Z in the first hearing – a matter which was entirely consistent with the transcript which was adduced from the initial interview and the subsequent interviews. Each of these interviews took place prior to the reference to Z at the Tribunal hearing. In that regard, the Tribunal’s conclusion is one that was properly open to it. Although I respectfully agree with the submission made that the first sentence at [114](b) would appear to identify the point in issue and the second and later sentences identify the Tribunal’s consideration and analysis. It would require, in my view, a very stretched reading of the transcript of the proceeding before the entry officer to read into it any suggestion that there was a person identified as Z. There were numerous opportunities for the applicant to detail any reference to Z, as is evident from questions and answers at pages 7, 9 and 12 of the entry interview. In particular, a complaint was made by the applicant that he was not ever invited to express any particular remarks about Z. It seems difficult to understand how the interviewer could be expected to know of the presence of Z when, as is evident from page 7 of the transcript, the interview starts by the interviewer inviting the applicant to inform him why he left Afghanistan and to which the officer received a response, “My life was at risk.” The applicant was then invited to inform the officer of what that meant and provide further particulars, and notwithstanding that invitation, expressed on that occasion on page 7, and again likewise on page 9, there was no reference to Z.
[1]Applicant’s Outline of Submissions at [25].
In the respondent’s submissions, it was contended that, as the record shows, the main reason the Tribunal found against the applicant with respect to the Z claims was due to the applicant’s and the migration agent’s failure to mention Z on the earlier occasions that were afforded to him. The Tribunal was only interested in the content of the entry interview because the applicant had asserted that in such an interview he had named Z. The applicant failed to adduce recordings of the interviews, despite an invitation being extended to do so and accordingly this case could be said to be one which was analogous to the decision of Sundberg J in Minister for Immigration and Multicultural Affairs v MZXGJ [2006] FCA 1594, where the so called irrelevant consideration impacting on credibility was plainly relevant in the context. It follows that I do not think that the applicant has demonstrated it has the prospects of a prima facie case in respect of this ground.
The third ground advanced by the applicant is in these terms: that the Tribunal failed to take into consideration a relevant consideration, that is, the contents of the entry interviews conducted on 16 March 2012 and 21 March 2012. It was contended for the applicant that the contents were made relevant in three ways. First, by way of the applicant raising with the Tribunal that he had participated in an entry interview and that, in the interview, he had made relevant disclosures. Secondly, that by way of the Tribunal determining at its own volition that the contents of any interview would be highly relevant to whether the applicant’s versions of events had been consistent throughout the process of seeking a protection visa. And third, by way of the Tribunal’s general duty to make relevant inquiries of the particular issues.
It was contended that the contents of the two entry interviews were relevant for the statutory functions of the Tribunal for three reasons. First, the entry interviews may tend to suggest the identity of Z and demonstrate that the applicant has taken steps, whenever pressed upon, to identify Z. Second, that the entry interviews may tend to suggest that the applicant’s version of events have been consistent and that the matters set out in [114] of the reasons should not lead to the conclusion reached in the first sentence of [115] of the reasons. And finally, that the applicant may have disclosed information which speaks to the well-founded fear of persecution for a Convention-related reason which should be considered by the Tribunal to determine as to whether that information is both relevant and reliable or not in exercise of the statutory power.
In answer to the applicant’s submissions, the respondent contended that it can be accepted the Tribunal did not take into account the entry interviews. So much is apparent from the Tribunal’s own reasons. However, the reason it did not do so was because there was no such evidence before it as I’ve already noted. As the respondent submitted, it is a trite legal proposition that a Tribunal is only required to take into account the evidence and materials placed before it when coming to its decision. In this case, absent such evidence, the Tribunal was not required to consider the content of the entry interviews as they weren’t before it, and that, of course, is despite the Tribunal offering the applicant an opportunity to provide such evidence.
Furthermore, the respondent noted the applicant doesn’t suggest in this proceeding that the Tribunal did in fact have any evidence before it indicating the existence or contents of the entry interviews. It was, as the Tribunal noted in its decision, only an expectation that interviews would have taken place.
In any event, and perhaps most significantly, the real question in this case, and the one that I think is central to each of the matters contended for by the applicant, comes back to this question of materiality. In Australian Broadcasting Tribunal v Bond [1990] HCA 33, several of the High Court justices addressed the point that an error will only constitute an error of law if that error was material to the decision. For instance, Mason CJ said at [80]:
“A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact.”
Similarly, Toohey and Gaudron JJ said at [46]:
“For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.”
For the respondent, it was contended that, whilst it did not accept there was any error, even if an error did exist it is difficult to conclude that any of the asserted errors could have been material to the Tribunal’s ultimate determination. That is because, on a proper reading of the entry interview transcript, there is unequivocally no mention of Z.
The applicant, in submissions, sought to make much of the reference to “might have” by the Chief Justice in Bond (supra), but I do not think those words ought to be read other than in context. That is to say that a different outcome is reasonably arguable. The applicant here contended it is. Respectfully, I think his argument conflates the Tribunal’s alleged error of process in failure to consider with the outcome of error. That is the point of the inquiry directed by Bond (supra). There will be no error of law unless the error is material. Here, as the respondent has contended, the evidence of the interview merely constitutes a fourth version of the applicant’s initial basis for claim. That is, it did not in any material sense lead any evidence to suggest the existence of Z as an individual in respect of whom the applicant had fear. Rather, it just addressed the general concerns.
Despite counsel’s best efforts, I do not think that it can be reasonably concluded that either:
a)the transcript raises the prospect of an earlier reference to Z; or
b)that the reference to the plural that was pointed to can be broadened to include the singular, thus enlivening the prospect of it being a reference to Z.
The transcript was not considered by the Tribunal and, had it been so, in my view, it would have done nothing but fortify the Tribunal’s conclusions. I do not think its absence would have materially affected the outcome of the application. It follows that I do not think that the applicant is able to demonstrate a prima facie case in respect of ground 3.
Turning then to the applicant’s explanation for delay. There has been a delay of 18 months. The applicant’s explanation for delay is not particularly fulsome. In the sworn evidence before the court, there is limited material explaining the delay. There is, however, a more fulsome explanation contained in the submissions which are coming before me without dispute, and accordingly I will refer broadly to those.
After the Tribunal determined on 26 February 2013 to affirm the decision not to grant the applicant a protection visa, there is evidence of many exchanges between lawyers acting on behalf of the applicant and the relevant authorities, including exchanges between an organisation known as Playfair Visa and Migration Services and another organisation known as the Refugee and Immigration Legal Service.
There was certainly much activity between 13 May 2013, when Fisher Dore, solicitors on the record for the applicant, provided the applicant’s written authority to Playfair Visa and Migration Services for the transfer to it of the applicant’s file. However, it is to be noted that that event itself occurred some three months after the decision which is now sought to be reviewed. Between 30 May 2013 and late August 2013, there was clearly a high degree of activity wherein the applicant sought, no doubt through the counsel of his lawyers and others, to investigate his prospects of successful review of the Tribunal’s decision.
Not much really appears to have occurred then until about 18 September 2014. Although I note, in fairness, that there were other attempts, such as a request for ministerial intervention, nothing occurred by way of intervention until after 18 September. On that day, the principal solicitor for RAILS was contacted by a friend of the applicant who advised that the applicant had been detained and transferred to the immigration detention centre in Darwin. He provided RAILS’ principal solicitor with a copy of the applicant’s documents, including the decision of the RRT and recordings of previous interviews and hearings. It was then on a review of that material that Mr Francis discerned, and I quote:
“That the RRT member had said there was no record of an entry interview, when in fact there was a disk with an entry interview in the applicant’s materials.”[2]
It was following that that there was then very quick action on the part of the lawyers acting for the applicant to come to court.
[2] Applicant’s Outline of Submissions at page 5.
What is significant in the chronology which I’ve just outlined, apart from the three month delay between the Tribunal’s determination and the solicitors for the applicant writing seeking a request for the file, even discounting for the 35 days allowable for review, is the fact that it seems apparent the record of interview was with the lawyers for the applicant from at least 1 July, when the applicant’s chronology notes that the department had provided Fisher Dore the applicant’s departmental file, electronic documents from TRIM for the departmental file, the IMA entry interview and CD of the audio record of entry interviews and the PV interviews. Although there is a complaint that the solicitors were not supplied the CD of the first part of the protection visa interview dated 23 May 2012.
It follows that since at least since July 2013, the applicant was on notice that something additional existed. This attracts particular significance because of the observation made in respect of events on 18 September 2014, that is, that Mr Francis discerned that the RRT member had said there was no record of an entry interview, when in fact there was a disk with the entry interview in the applicant’s materials.
I’ve already explored and considered the Tribunal’s reasons. It is apparent from a fair reading of the Tribunal’s reasons that that was not indeed the fact. It follows that it was a misunderstanding of the Tribunal’s reasons that gave rise to the recent flurry of activity and nothing more. Having regard to that chronology, in my view, there is no satisfactory explanation for the delay. On that ground alone, I would not consider it appropriate to extend the time for the making of an application.
In any event, I think generally this is an inappropriate case for an extension of time. First, I do not think that the applicant has any real prospects on the merits. Secondly, there is a significant delay – about 18 months – between the decision and the bringing of this application for extension of time. The explanation is not satisfactory, particularly given the length of time that the applicant has had the relevant material it now relies upon within its power or possession and further the clear misunderstanding of the applicant and/or his advisers in respect of the import of a particular part of the material relied upon today. They are the factors that militate against the extension of time application.
Other factors to be considered, including prejudice to the applicant, clearly favour the applicant. So too the lack of prejudice to the respondent and the public interest are both factors which could not be said to distract from the favourable exercise of the discretion in favour of the applicant. However, overall I do not think that they outweigh the factors against the exercise of the discretion in favour of the applicant to grant an extension of time.
It follows, in my view, that the application for an extension of time has no real prospects of success. Accordingly, although there might be other discretionary factors weighing in his favour, the applicant cannot satisfy the court that he has a prima facie case in terms of the requirements set out in O’Neill (supra). It follows that the application for its interlocutory injunction is dismissed. So too is the application for extension of time.
Orders
That the application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be dismissed.
That the application for an interlocutory injunction be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $7643.00
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate:
Date: 7 November 2014
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