CFT16 v Minister for Immigration

[2017] FCCA 1670

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFT16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1670

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal –extension of time to make application – whether the Tribunal erred by failing to provide written particulars of information which it considered would be part of its decision to the applicant – whether the Tribunal’s decision was unreasonable and lacked an intelligible basis – no reasonably arguable jurisdictional error – extension of time refused - application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(1), 417, 424A, 430(1), 477

Cases cited:

AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

First Applicant: CFT16

Second Applicant: CFY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2182 of 2016

Judgment of: Judge Smith

Hearing date: 13 July 2017

Date of Last Submission: 18 July 2017

Delivered at: Sydney

Delivered on: 21 July 2017

REPRESENTATION

Counsel for the Applicant: Mr V. Kline

Counsel for the First Respondent: Mr D. Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. An extension of the period within which to make an application for relief under s.477(1) of the Migration Act 1958 (Cth) is refused.

2. The application is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2182 of 2016

CFT16

First Applicant

CFY16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 June 2016. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicants protection visas.

2. An application to this Court for judicial review of a migration decision, such as the Tribunal’s decision, must be made within 35 days of the date of the decision: s.477(1) Migration Act1958 (Cth) (Act). It is common ground that the application in this case was lodged 10 days outside of that period. However, pursuant to s.477(2) of the Act the Court can make an order extending the period within which an application may be made for judicial review if:

   (a)   an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. There is no issue that the first of these requirements has been met in this case. The issue for determination is whether the Court is satisfied that it is in the interests of the administration of justice to make an order extending the period for making the application for judicial review.

4. There is no prescription of the matters that must be considered in determining whether an order extending the period would be in the interests of the administration of justice. Ordinarily, the relevant matters appear from the circumstances of the case, including the statutory context in which the question arises. Given that the immediate context is an application for judicial review, the merits of the grounds sought to be raised by an applicant for review, almost always need to be considered in determining the issue.

5. Here the applicant raised, and I have considered, the following matters:

   a)the extent of the delay;

   b)the reason for the delay;

   c)any prejudice to the respondents;

   d)the impact on the applicant if time is not extended;

   e)the interests of the public at large; and

   f)whether the merits of the proposed judicial review are arguable, or have reasonable prospects of success.

6. The delay in this case is 10 days, not a significant period in light of the 35 day period prescribed by s.477(1) of the Act. The first applicant, who is the mother of the second applicant, explained that she was late in filing her application because she was unrepresented at the time and thought she had to wait for an outcome of her application for Ministerial intervention under s.417 of the Act. There is some controversy as to whether an application for Ministerial intervention provides a reasonable excuse for any delay in bringing judicial review proceedings. However, given the short period of delay, I do not need to enter into that controversy and accept for present purposes that the reason for delay, being the first applicant’s misunderstanding, was reasonable in the circumstances.

7. There is no relevant prejudice to the respondents.

8. In respect of impact upon the applicants, the applicants argued that there were three relevant matters:

   (i)that they would be shut out of a remedy in this Court without the ability to challenge the legality and reasonableness of the Tribunal’s decision;

   (ii)that they could be recalled to a country where the first applicant claims to have a well-founded fear of persecution: and

   (iii)the applicants would not have a right of appeal from a decision to refuse to make an order extending time (see AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 at [48]; [2016] FCA 1139).

9. I do not necessarily agree that it is relevant to consider the harm that the applicants might face upon return to their country of nationality; however, for present purposes, I have taken that possibility into account. I have also taken into account the two other matters relied upon by the applicants.

10. The applicants argue that the public would have no interest in the question at hand because the delay was so short. I disagree. The legislative imposition of a time limit for making applications for judicial review, reflects a general public interest in having matters of this nature determined quickly in order for there to be certainty as to the visa status of non-citizens who remain in Australia: see to a similar effect, although in a different context, the comments of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541at 552-553; [1996] HCA 25. That said, the public interest is not significant in circumstances where the delay is short.

11. The applicants argued that, in light of the other circumstances, the only matter the Court would substantially concern itself with, would be the merits of the grounds of review raised by them. The only basis for the Minister’s opposition to an order extending time is what was argued to be the lack of merit in those grounds. I agree that the question of merits is the most significant matter in determining whether an extension of time would be in the interests of the administration of justice. While I have given the other matters consideration, my decision ultimately turns upon my assessment of whether there are sufficient merits in those circumstances to warrant an order extending the period within which an application for judicial review may be made under s.477(1) of the Act.

12. In order to assess the merits of the application it is necessary first to consider the factual background to the Tribunal’s decision, the claims made by the first applicant in support of the visa application and the Tribunal’s reasons for decision.

Background

1. The applicants are citizens of Vietnam. The first applicant arrived in Australia on 5 February 2010 on a temporary business visa. The second applicant was born on 18 July 2012. On 18 June 2013, the applicants lodged applications for protection visas. Those applications were based upon the first applicant’s claim that she feared harm upon return to Vietnam. For that reason it is convenient to refer to the first applicant as the applicant.

2. The applicant’s claims in support of the protection visa application were that she feared harm in Vietnam:

   a)as a result of a dispute with her former employer concerning its use of chemicals in the seafood exported by it;

   b)for reasons of her religion, namely Catholicism; and

   c)because she is a single mother with a child born out of wedlock.

3. On 24 July 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

4. The applicant attended a hearing conducted by the Tribunal on 15 December 2015 and the Tribunal made its decision to affirm the delegate’s decision on 28 June 2016.

5. The Tribunal had a number of difficulties with the applicant’s evidence concerning the first of her claims. It found that a number of aspects of the applicant’s evidence were vague and implausible and that some of her evidence was disingenuous. Those matters were compounded by inconsistencies in the applicant’s evidence and the preparedness of the applicant to provide false information and documents to obtain her business visa and to have a child out of wedlock to enable the child’s father to more easily sponsor her for a visa. It will be necessary to return to these matters in more detail later in these reasons.

6. In light of its concerns, the Tribunal did not accept that the applicant was truthful about her experiences in Vietnam and found that the applicant would not face serious harm from any relevant party because of her alleged dispute with her employer or for any other reason.

7. The Tribunal accepted that the applicant regularly attended church in Australia.  It found that the applicant’s claim to have been persecuted in the past in Vietnam was made simply to embellish her claim in an attempt to strengthen her case. The Tribunal concluded that the applicant had not been persecuted in the past and would not face serious or significant harm on the grounds of her religion in Vietnam in the recently foreseeable future.

8. The Tribunal found, on the basis of country information considered by it, that there was no real chance that the applicant or her son would suffer harm as a result of the applicant being a single mother of a child born out of wedlock.

9. For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The applicant raised two grounds in support of the contention that it was reasonably arguable that the Tribunal’s decision was affected by jurisdictional error.

Ground 1

1. The first ground is that the Tribunal failed to comply with s.424A of the Act. In summary, that provision requires the Tribunal to give the applicant written particulars of information which it considers would be the reason, or part of the reason, for its decision. The ground in the amended application did not clearly identify the “information” which was said to have given rise to the obligation under s.424A of the Act. The particulars to the ground were:

   The Second Respondent gave the First Applicant information, during the hearing before the Second Respondent, by showing her the website of a company whose address therein was the same as the address the First Applicant had given in her protection visa application, as her address in Vietnam (see Transcript p. 45 line 19 to p.46 line 10). That information was part of the reason why the Second Respondent affirmed the decision under review. The Second Respondent had not, prior to giving the information to the First Applicant, complied with the provisions of s 424A of the Act. Nor did the Second Respondent, during the hearing comply with the provisions of s424AA of the Act in regard to that information.

2. Counsel for the applicant clarified at the hearing of this matter that the “information” upon which he relied, was the address of the company whose website was shown to the applicant by the Tribunal during the hearing conducted by it. I indicated to Counsel that, if that were the “information” relied upon, the argument would face difficulties in light of [17] of the decision of the plurality (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (SZBYR) in which their Honours said:

   Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

   (Emphasis added)

3. The applicant was given leave to file written submissions dealing with this issue after the hearing. In those submissions, the applicant addressed [17] in SZBYR only briefly, saying that the majority held there that the “facts of that case did not give rise to a tenable argument before the Tribunal that the appellants were persons owed protection obligations under s.36(1) of the Act.” That is not what was said by the plurality at [17]. The paragraph speaks for itself.

4. The applicant went on to submit[1] that, in order to find what would be the “reason” or “a part of the reason” for the decision of the Tribunal, “requires identification of the links in the chain that sustain (if they do) the eventual disposition”. That submission does not reflect the law. The critical point made in [17] of SZBYR is that the word “would” in s.424A(1) of the Act suggests that the operation of s.424A(1) is to be determined in advance. In light of that, the analysis must focus on how the information might affect the satisfaction of the criteria for the grant of the visa. The plurality explained that the “information” relied upon by the appellants could not have been “the reason or part of the reason” for the decision to be made, because it did not “contain in (its) terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.”

   [1] Relying on the judgment of Kirby J in SZBYR at [80].

5. Thus, the question is not whether a piece of information can be identified somewhere in the Tribunal’s ultimate process of reasoning, but whether that information contains, in and of itself, a rejection, denial or undermining of the applicant’s claims to be owed protection.

6. The information here does not answer that description. The applicant’s claims to be owed protection arose from her employment, religion and the fact that she was a single mother of a child born out of wedlock. The address of a company has no bearing on any of those claims.

7. For those reasons, the first ground is, at best, weak and is very unlikely to succeed at a final hearing.

Ground 2

1. The second ground is that the Tribunal’s reasoning was irrational and lacked an evident and intelligible basis. The particulars in the amended application reveal that the ground is based upon two aspects of the Tribunal’s reasoning:

   a)the second respondent held that the first applicant’s readiness to provide false information and documents to obtain a one-month business visa in order to escape from Vietnam to Australia, meant that she should, of necessity, give false information to obtain her protection visa;

   b)the second respondent considered relevant to the question of the first applicant’s truthfulness that:

   …in the same spirit, the applicant was prepared to compromise her alleged commitment to Catholicism, with its strict adherence to premarital chastity, as her erstwhile partner told her that having a child together would make it easier for him to sponsor her.

2. The applicant submitted that the first impugned aspect of the Tribunal’s reasons reveal that, the Tribunal had taken the view that a person who lies to get out of his or her country of nationality where they claim to hold a well-founded fear of persecution, will, of necessity, when that person reaches the country where they are seeking asylum, also lie to obtain a protection visa in that latter country.

3. The relevant aspect of the Tribunal’s reasons is contained in the following passage of the statement prepared by it pursuant to s.430(1) of the Act:

   [26] …[g]iven her readiness to provide false information and documents to obtain a one-month Business visa, it is the Tribunal’s view that she would also be prepared to give false evidence in order to secure a permanent Protection visa.

4. In my view, this passage does not reveal that the Tribunal reasoned in the way suggested by the applicant. In particular, although the Tribunal drew an inference from the applicant’s willingness to lie in support of her application for a Business visa, that she might also be untruthful in respect of her protection visa application, the Tribunal did not reason that her earlier untruthfulness necessitated such a conclusion. The fact that the Tribunal did draw that inference must be understood against the background of the fact that there were a number of other, independent, reasons for which the Tribunal doubted the applicant’s credibility. For that reason, this aspect of the second ground is not reasonably arguable.

5. In respect of the second impugned aspect of the Tribunal’s reasons, the applicant argues that “to suggest that the failure of a person to live up to the dogma of her religion, casts doubt on her overall truthfulness, is as irrational as it is medieval.

6. Once again however, I consider that this argument proceeds on a misunderstanding of the Tribunal’s reasons. The relevant part of its reasons was in the following statement:

   [26]… The Tribunal notes that, in the same spirit, the applicant was prepared to compromise her alleged commitment to Catholicism, with its strict adherence to premarital chastity, as her erstwhile partner told her that having a child together would make it easier for him to sponsor her (paragraph 16.r).

7. The reference at the end of that extract of the Tribunal’s reasons is to the following earlier paragraph of its reasons:

   [16]      …

   r. Noting that the applicant claimed to be a committed Catholic who taught the Bible to children, the Tribunal discussed with her the Catholic attitude to sex outside marriage. She responded that it was “not permitted” and “a sin” and that they would not accept a child born out of wedlock. She said that her son’s father, [name], whom she met when living illegally in the farm area after she came to Australia. He told her he would sponsor her so she could stay in Australia legally and that this would be easier for him to do so if they had a child together. The applicant believed him, but this turned out to be untrue as he abandoned her when she got pregnant.

1. These passages make it clear that the Tribunal did not engage in the reasoning which the applicant claimed. It did not find that the applicant was untruthful because she had strayed from the path dictated by her adherence to the Catholic faith. Rather, it considered that the applicant’s own evidence that she would commit a “sin” according to her own beliefs, for the simple expedient of improving her chances of obtaining a visa, indicated that she was willing to give false evidence in order to be successful in her protection visa application. It is not readily arguable that there is anything irrational, illogical or unreasonable about that reasoning.

2. For those reasons, I conclude that the second ground is also unlikely to succeed on any final hearing.

Conclusion

1. I accept for present purposes that the delay in bringing this application was not long, and that there was a reasonable basis for that delay. Having taken that into account, together with the other matters relied upon by the applicant as set out above and in her written submissions, I conclude that there is insufficient merit in the grounds of review raised by her. Indeed, I find that the grounds raised are not reasonably arguable. Accordingly, I am not satisfied that it would be in the interests of the administration of justice to grant an order extending the period within which the applicant might make an application under s.477(1) of the Act.

2. For that reason, I must refuse to make such an order and the balance of the application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       21 July 2017