Caw23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 4

File number(s):

PEG 163 of 2023

Judgment of:

JUDGE LAING

Date of judgment:

11 January 2024

Catchwords:

MIGRATION - application for an extension of time in which to seek review of a decision by the Administrative Appeals Tribunal – relevant considerations – adjournment applications – application for an extension of time dismissed

Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36, 91N, 91P, 91Q, 424A, 425, 425A, 477, 501

Cases cited:

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117

Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491

Singh v Minister for Immigration and Border Protection [2016] FCA 108

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 676

Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431

SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Division:

Division 2 General Federal Law

Number of paragraphs:

61

Date of hearing:

4 & 31 October 2023

Place:

Sydney

Appearing for the Applicant:

In person

Solicitor for the First Respondent:

Ms G Ellis of Sparke Helmore Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 163 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CAW23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	11 JANUARY 2024

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicant seeks an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a dual citizen of Samoa and New Zealand.

3. The applicant first arrived in Australia in 2006 and has departed and returned to Australia on a number of occasions subsequently. In 2017, the applicant’s Subclass 444 visa was cancelled under s 501 of the Act. A request for revocation was unsuccessful.

4. On 30 March 2021, the applicant lodged an application for a protection visa. That application was found to be invalid due to ss 91N and 91P of the Act, on the basis that the applicant was a national of two or more countries. By letter dated 10 October 2022, the applicant was advised that the Minister had exercised the power under s 91Q of the Act to enable the applicant to make a valid protection visa application.

5. On 17 October 2022, the applicant lodged a valid application for a protection visa.

6. On 12 December 2022, the Delegate refused to grant the visa. The applicant applied to the Tribunal seeking review of the Delegate’s decision on 19 December 2022.

7. On 27 February 2023, the applicant attended a hearing before the Tribunal via audio-visual link.

8. On 3 May 2023, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

9. The Tribunal summarised the claims and evidence before it at [15]-[29] of its decision. This included the applicant’s claims to face harm in Samoa and New Zealand on account of his previous involvement with and escape from a criminal gang (Gang).

10. The Tribunal expressed concerns regarding the applicant’s claim of escaping from the Gang’s Clubhouse and queried why the applicant would not have instead gone straight to the airport from his brother’s home (at [21]-[24]). The Tribunal considered that the applicant’s answers regarding his escape plan had been “vague, indirect and unpersuasive” (at [25]). Although the Tribunal accepted that the applicant’s brother had collected the applicant from a house the applicant had said belonged to the Gang, and drove the applicant to the airport, the Tribunal did not otherwise accept the applicant’s evidence as the Tribunal considered that it did “not align with common sense” (at [25]).

11. The Tribunal considered that the applicant had also provided vague evidence about his claimed involvement with the Gang. This was in circumstances where information in the Delegate’s decision record indicated that the applicant had only been in New Zealand for a period of a few months in 2008 and 2009 (at [26]-[29]).

12. The Tribunal did not accept that the applicant was a “patched” member of the Gang. The Tribunal considered that the applicant had provided no corroborative evidence in this regard, with his brother’s evidence depending upon what the applicant had told him. The Tribunal observed that there was no corroborative evidence of the various injuries that the applicant claimed to have suffered from Gang members. The Tribunal considered the explanation for this of fearing further reprisal for seeking medical attention unlikely, particularly given the short time frame in which the events were alleged to have occurred (at [30]-[31]).

13. The Tribunal found it “entirely implausible” that the applicant was, on the one hand, routinely beaten by the Gang for not generating sufficient revenue, but then also simultaneously elevated within the leadership structure by being patched within such a short period of time that other Gang members were jealous of his success. The Tribunal observed that the applicant had been invited to comment upon this potential inconsistency but had not provided any direct explanation. The Tribunal formed the view that the applicant’s story was “nearly entirely contrived” (at [32]).

14. The Tribunal was prepared to accept that the applicant may have been involved in illegal drug activity and that this may have put him in contact with some Gang members for a short period of time in 2008 and 2009. The Tribunal considered that the applicant had not provided particulars of why this would expose him to danger after such a lengthy period of time had passed (at [33]-[34]). Further, the Tribunal did not accept that the applicant would be unable to obtain police protection in New Zealand if he were in danger (at [35]-[36]).

15. The Tribunal did not accept that the applicant, or his family in Samoa, had been threatened in any way should the applicant return to Samoa (at [38]-[43]).

16. Having regard to the above, the Tribunal found that there was no real chance that the applicant would be persecuted for any reason in the foreseeable future if he returned to New Zealand or Samoa. The Tribunal therefore found that the applicant did not meet the criteria for protection in s 36(2)(a) of the Act (at [44] and [49]).

17. The Tribunal was also not satisfied that there was a real risk of the applicant suffering significant harm for any of the reasons claimed if he returned to New Zealand or Samoa in the reasonably foreseeable future. The Tribunal found that the applicant was therefore unable to meet s 36(2)(aa) of the Act (at [45]-[48] and [50]).

18. Accordingly, the Tribunal affirmed the Delegate’s decision (at [51]-[54]).

    PROCEEDINGS IN THIS COURT

19. The applicant filed an application with this Court on 8 August 2023 seeking judicial review and an extension of time in which to seek review. The applicant also sought, at the time his application was filed, an interlocutory injunction restraining his removal from Australia. However, this was not pressed after the applicant was informed by the Minister that the Department did not intend to proceed with his foreshadowed deportation after the current proceedings had been filed.

    Adjournment of the first hearing date and further adjournment application

20. The hearing of this matter before the Court was originally scheduled to occur on 4 October 2023. That hearing was adjourned after the applicant exhibited some difficulty in navigating the Court Book, with which he expressed a lack of familiarity. An affidavit of service was filed by the Minister demonstrating that the document had been served by email as well as by express post to the detention centre at which the applicant resided. However, the applicant did appear to have some difficulty in navigating the Court Book, which he said he had not previously received. In the particular circumstances of this case, I considered it necessary to adjourn the hearing to 31 October 2023 to allow the applicant a fair opportunity to participate.

21. At the resumed hearing, the applicant was given opportunities to elaborate upon his grounds of review. This was in circumstances where the grounds the applicant had raised were unparticularised. To assist him in doing so, the applicant was asked questions (such as what he felt that the Tribunal had failed to consider). In response to what was raised by the applicant, I sought to explore with him, by reference to the materials, why he considered that the issues he had raised had affected the Tribunal’s decision.

22. In response, the applicant (understandably) expressed that he felt stressed and under pressure at having to represent himself at the hearing. He said that he felt unwell, that he lacked the requisite knowledge for these proceedings and that his family had been trying to find him a lawyer but had been unable to pay the fees. The applicant sought more time, which I understood to be a request for a further adjournment of the hearing.

23. The adjournment application was opposed by the Minister. The Minister observed that the matter had already taken two hearing dates before the Court.  The Minister submitted that there was no evidence of the steps the applicant had taken to seek out a lawyer and that the Court could not be satisfied that adjournment was likely to result in the applicant obtaining one, based upon what he had said. In these circumstances, it was not apparent that adjournment would advance the applicant’s case. The Minister submitted that allowing an adjournment in these circumstances would be contrary to case management principles. The Minister observed that no medical evidence had been provided demonstrating that the applicant was medically unfit to continue with the hearing. Reliance was placed by the Minister on the case of Singh v Minister for Immigration and Border Protection [2016] FCA 108 (Pagone J).

24. I discussed with the applicant some concerns that I had regarding the adjournment request. Without wishing to underestimate the difficulties that unrepresented parties may face, I observed that it was not unusual for applicants to be in a position where they needed to represent themselves in migration proceedings. When this occurs, efforts are made towards making hearings as fair as possible. This is usually by attempting to explain the issues that may arise for consideration and by giving careful and independent consideration to the materials that are before the Court.

25. However, I observed that adjournments are unable to be granted without sufficient reason. This is on account of the number of applicants to this Court waiting for hearing dates (and, in some cases, have been waiting for a number of years). Provision of multiple hearing dates to one applicant impacts upon the ability of other applicants to have their cases heard. Case management considerations therefore require that adjournments only occur with sufficient basis. I also expressed concern that the applicant was in immigration detention, which was usually a reason for a matter to proceed expeditiously.

26. I further explained that there were difficulties with the reasons that had been provided for adjourning the matter. In terms of the applicant’s suggestion that he was not feeling entirely well, it was not clear to what extent nor how this impacted his ability to participate in the hearing. The applicant had not explained how long his family would need to engage a lawyer and it was not apparent how likely it was that they would be able to do so.

27. In response, the applicant expressed that he understood the concerns that had been raised and that he did not wish to say anything further in relation to those concerns. Based upon those concerns, I declined to adjourn the hearing. However, further questioning at the hearing identified that a significant part of the applicant’s difficulty was in feeling that he had to answer questions immediately, within the pressures of a hearing, by reference to the materials that were in front of him. I explained that the questions asked were intended not to test the applicant, but to assist him in having a fulsome opportunity to elaborate upon the grounds that he had raised. I asked the applicant if it would assist if he were provided some opportunity after the hearing to provide any further submissions in writing, if something occurred to him later and outside of the immediate pressures of a hearing. The applicant embraced this suggestion. It was unopposed by the Minister, in circumstances where it would not occupy a further hearing date. I therefore set what I considered was a fairly generous timetable to allow this to occur, so that the applicant might also have some opportunity to obtain advice if he were able to do so. The applicant confirmed that he knew how to file any further material. To date, no further material has been filed.

    Extension of time application

28. The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa).

29. The Court is required “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] per Jagot and Halley JJ; see also Katoa at [12] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ.

30. Whilst the matters to which regard may be had are not expressly confined by the Act, matters that may be relevant include the following:

    (a)the extent of the delay and the explanation for it;

    (b)any prejudice;

    (c)the impact on the applicant if time is not extended;

    (d)the interests of the public at large; and

    (e)the merits of the substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (per Gordon, Edelman, and Steward JJ).

    Delay and explanation

31. Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. As the relevant decision was dated 3 May 2023, the application needed to be made no later than 7 June 2023 in order to have been made within time. The application to this Court was made on 8 August 2023, around two months later. This delay is not insubstantial.

32. The application for an extension of time relied upon the following grounds (reproduced verbatim):

    1.The applicant was not notified about the AAT decision on time by his previous legal representative.

    2.The applicant was seeking legal advice as the previous legal representative he had refused to assist him further in this matter.

33. Although the stated grounds contended that the applicant had not been notified by his former representative of the Tribunal’s decision “on time”, they did not say when the applicant was notified of the decision. Whilst the applicant may have sought alternative legal advice, it has not been adequately explained why this was unable to be done, to the extent that it was able to be done, within the requisite timeframe.

34. At the hearing, the applicant did not seek to elaborate upon his explanation.

35. In any event, even if I had been satisfied by the applicant’s explanation, the extension of time would have been refused. This is on account of what I have found in relation to the merits of the proposed application, which are considered below: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].

    Prejudice, the public interest and impact upon the applicant

36. I do not place significant weight upon the issue of prejudice in this case in the absence of any specific prejudice being identified by the Minister.

37. There is a public interest in ensuring that administrative decisions are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]-[17].

38. As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand with all of the consequences that follow. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.

    Merits of proposed grounds

39. The application filed by the applicant contained the following proposed grounds:

    1.        The AAT failed to consider all the evidence provided by the applicant.

    2.        The AAT was unfair in their decision.

    3.        The AAT made a mistake in law when deciding the applicant’s case.

40. In written submissions, the Minister observed that the proposed grounds were unparticularised. It was suggested that this was a sufficient basis upon which to dismiss the grounds raised: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], which was not overturned on appeal in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

41. As was discussed at the hearing, some caution ought to attend submissions of this nature. It has long been common practice not to dismiss an application for want of particularity alone where an applicant does not have the benefit of legal representation. The preferable approach is to provide an applicant with the opportunity to expand upon their grounds after endeavouring to assist with their understanding of the Court’s role and processes. The Court then commonly reads grounds raised as broadly as possible, whilst endeavouring to remain “astute to the possibility of legal error in the Tribunal’s decision”. This is so even where the grounds raised have not been articulated with precision by an unrepresented litigant: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 676 at [55]-[61]; see also Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117 at [30]-[32].

42. I note that the above approach is consistent with the approach undertaken more generally in the Minister’s submissions, which adopted a broad interpretation of the grounds raised and sought to address whether they may give rise to a viable ground of jurisdictional error by reference to the materials before the Court. The Minister did not seek to press any suggestion orally that the application ought to be dismissed for want of particularity alone.

    Proposed ground 1

1. Proposed ground 1 contended that the Tribunal “failed to consider all the evidence provided by the applicant”.

2. The ground as pleaded did not say what evidence the applicant was concerned may not have been considered by the Tribunal.

3. At the hearing before the Court, the applicant suggested that there had been some error regarding whether the applicant’s cousin (D) was the “middle man” referred to in the applicant’s claims of participation in the Gang. The Tribunal was said to have erred in understanding that another person (R), as the middle man, was the applicant’s cousin.

4. I accept that the Tribunal at [27] appears to have considered that the applicant’s “cousin [R]” was the “middle man” in the applicant’s claims. Beyond the Tribunal’s decision, there is no evidence before the Court such as a transcript demonstrating what was and was not said at the Tribunal hearing. The applicant’s statutory declaration referred to a middle man called R at [17], but did not state that he was the applicant’s cousin. However, even if the Tribunal wrongly conflated D and R, it has not been demonstrated that such an error was arguably material to the Tribunal’s decision. I accept the Minister’s submission that the credibility findings upon which the Tribunal based its non-acceptance of the applicant’s claims did not turn upon, and do not appear to have been arguably influenced by, whether or not R was the applicant’s cousin.

5. The applicant also raised a concern at the hearing before the Court that it may have “look[ed] bad” for him that the Tribunal hearing needed to be adjourned and that his brother had not given evidence in person. These issues, the applicant suggested, had arisen because of his representative before the Tribunal. The applicant was concerned that such issues may have been held against him. The applicant submitted that comments about his brother not being there were made at the hearing before the Tribunal and that the Tribunal Member’s body language indicated that she was unhappy about this.

6. Even if there were evidence of the latter issue, however, there is no indication from the Tribunal’s decision that the Tribunal held against the applicant either the adjournment request (which had been granted) or the manner in which evidence was given by the applicant’s brother. Whilst the adjournment was noted by the Tribunal at [4] of its decision as part of the background to the matter, this does not mean that it was considered adversely. The Tribunal did not find the applicant’s brother to be an untruthful or unsatisfactory witness. However, it found that the brother’s evidence was limited because it was based upon information that had been provided by the applicant. The Tribunal found the applicant’s account to have been unsatisfactory and unreliable (at [30]).

7. At [39]-[40], the Tribunal found it “somewhat surprising” that the applicant was unable to answer, initially and without further discussing with his representative, why he claimed that he was unable to return to Samoa. I note that this occurred in circumstances where adjournment of the initially scheduled Tribunal hearing had been required due to difficulties in obtaining instructions and funds. However, it is not apparent that anything arguably turns upon this in a manner capable of demonstrating jurisdictional error. The applicant’s representatives had, subsequent to the adjournment request, provided detailed submissions to the Tribunal. At the hearing before the Tribunal, the applicant appears to have gone on to provide reasons for why he claimed that he was unable to return to Samoa. Those reasons were considered by the Tribunal (at [41]-[43]).

8. I have not identified more generally any significant evidence that was before the Tribunal that the Tribunal arguably failed to consider, resulting in relevant error. As was submitted by the Minister, the material considered by the Tribunal appears to have been limited to:

   (a)the claims made in the applicant’s protection visa application;

   (b)statutory declarations provided by the applicant and his brother;

   (c)the material in the Delegate’s decision;

   (d)written submissions made to the Tribunal by the applicant’s representative; and

   (e)the oral evidence that was provided at the Tribunal hearing.

9. This material was considered by the Tribunal at [16]-[44] of its decision. I am unable to perceive, from my reading of the materials, any arguable basis for drawing an inference that any part of this evidence was not considered in a manner capable of giving rise to jurisdictional error.

   Proposed ground 2

10. Proposed ground 2 contended that the Tribunal “was unfair in their decision”.

11. The ground did not state the manner in which the Tribunal was contended to have been unfair. The applicant did not elaborate upon this ground at the hearing, beyond what he raised and has been considered in relation to ground 1.

12. As the Minister identified, the Tribunal’s procedural fairness obligations were limited under Part 7 of the Act. The applicant was invited to a hearing in accordance with ss 425 and 425A of the Act. That hearing was adjourned at his representative’s request. Both the applicant and his representative attended the rescheduled hearing (the applicant attended via video conference). No complaint appears to have been made at the time regarding the conduct of the hearing, at which oral evidence was taken from both the applicant and his brother. The applicant appears to have been sufficiently on notice of the issues arising in relation to the decision under review from the Delegate’s decision and the Tribunal’s questioning that was set out in its decision.

13. There does not appear to have been any “information”, as that term has been interpreted within the context of s 424A, capable of enlivening the Tribunal’s obligations under that provision. The Tribunal’s decision was based upon the applicant’s written evidence and submissions made to the Department and the Tribunal, material contained within the Delegate’s decision (a copy of which was provided to the Tribunal), some country information and the oral evidence given by the applicant and his brother to the Tribunal. It is not apparent that anything in the brother’s evidence could be described as “in its terms”, a “rejection, denial or undermining” of the applicant’s protection claims: see Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431 at [19]-[28]). The balance of the material, even if it met this description, would have fallen within the exceptions in ss 424A(3)(a) to 424A(3)(ba) of the Act.

14. For the above reasons, I accept the Minister’s submission that no arguable ground of jurisdictional error is apparent in relation to the applicant’s proposed ground 2.

    Proposed ground 3

15. Proposed ground 3 contended that the Tribunal “made a mistake in law when deciding the applicant’s case”.

16. The ground did not state what error in law the applicant considered that the Tribunal had made. The applicant did not elaborate upon the ground at the hearing.

17. It is not apparent from my own review of the materials what error of law the Tribunal could be said to have made. The Tribunal appears to have set out the correct tests for the various statutory criteria that it identified in its decision. The Minister expressed a similar inability to identify any arguable error of law in either the procedure adopted or the decision that was made by the Tribunal.

    CONCLUSION

18. Taking into account the above considerations, and in particular what I have found regarding the merits of the proposed substantive application, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended in this matter. I am therefore obliged to dismiss the application before the Court.

19. I will hear from the parties in relation to costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Deputy Associate:      

Dated:       11 January 2024