CHD16 v Minister for Immigration
[2017] FCCA 1679
•21 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHD16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1679 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case to set aside Notice of Discontinuance – whether the power to set aside is enlivened – only if power is enlivened then the discretion to set aside is considered – power not enlivened – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 476, 477 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 |
| Applicant: | CHD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2236 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The Application in a Case made on 9 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2236 of 2016
| CHD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant before the Court is a citizen of Fiji. He arrived in Australia on a tourist visa on 23 March 2012 and applied for a protection visa on 25 June 2012 (CB 1 to CB 82, including attachments). The delegate of the Minister (“the delegate”) refused the grant of the visa on 27 March 2013.
The applicant claimed to fear harm from the military of Fiji. He claimed he had been “forced to retire in March 2010” from his position as a senior prison officer when a Colonel Ioane Naivalurua from the military took over as Prison Commissioner (CB 20). Following this, he had been “implicated” in “passing information to governments” that he had visited since his “forced retirement” (CB 18).
The applicant had previously been in Australia in November 2011, and when he returned to Fiji in February 2012, he claimed that he was told by close friends in the government that “the army is investigating a group of former police and prisons (sic) personnel including [himself]”, as his frequent travel had “raised suspicion” that he was passing information about the Bainimarama regime to foreign governments. The applicant claimed he had experienced “emotional harm” because he had had to leave his family (CB 19). As the military was now the “head” of the authorities in Fiji he also could not hope for any protection on return (CB 21).
The applicant included a number of documents with his application during the process before the Minister’s department, including letters of support, certificates, copies of “blogs” written about the situation in Fiji, in particular the allegations made by the applicant against Colonel Naivalurua, and two letters from his wife about recent military visits looking for the applicant.
The delegate refused the application on 27 March 2013. The delegate found the applicant to be credible (CB 109.4). However, the delegate found that the applicant had returned to Fiji on a number of occasions since 2010 and had not experienced any serious harm or harassment on these visits. Further, the delegate found that the applicant was able to leave Fiji “undetected”, and had not engaged in any political activism in Australia (CB 117.3 to CB 117.8). The delegate found the applicant’s fear of harm was not well-founded (CB 117.9).
The applicant applied for review to the Tribunal on 16 April 2013 (CB 139 to CB 144). The applicant provided further letters of support to the Tribunal on 3 July 2013 (CB 150 to CB 155). The applicant attended a hearing before the Tribunal on 11 October 2013 and provided further documents to the Tribunal at the hearing (CB 171 to CB 194).
The Tribunal affirmed the delegate’s decision on 4 November 2013 (CB 199 to CB 214). By letter dated 5 November 2013, the applicant was notified of the Tribunal’s decision (CB 198).
On 18 August 2016 (nearly 3 years later), the applicant applied to this Court pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), seeking an extension of time within which to bring a competent application to the Court pursuant to s.476 of the Act, seeking review of the Tribunal’s decision of 4 November 2013.
On 7 September 2016, the applicant first appeared before a Registrar of the Court. The matter was adjourned for further directions on 28 September 2016 in light of the apparent involvement of a Ms Mereoni Kirwin in the preparation of the applicant’s application to the Court, and the consequent state of the proposed substantive application.
At the Court event on 28 September 2016, the applicant appeared, and a timetable was determined to allow the applicant’s matter to progress. I note Orders 2 and 3 made on that date gave the applicant the opportunity to file an amended proposed substantive application, and any further evidence by way of affidavit, on or before 26 October 2016.
The applicant did not comply with the Court’s orders made on 28 September 2016. He subsequently filed a Notice of Discontinuance (“NOD”) in the proceedings on 24 November 2016. The applicant then filed an Application in a Case (“AIC”) on 9 January 2017, which asked the Court to “reinstate” his previous application for an extension of time filed on 18 August 2016. It sought the following orders:
“1. An order that the decision of the tribunal be quashed.
2. A writ of mandamus directed to the tribunal requiring them to determine the applicant’s application according to law.
3. A declaration that the recommendation of the Tribunal was not made in accordance with law, by reason of the ground/s of this application.
4. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
5. An order that my application be reinstated in this Honourable Court.”
The matter was listed for directions before me on 15 February 2017. Orders were made that gave the applicant the opportunity to file any amended AIC, any amended proposed substantive application, any further evidence by way of affidavit and written submissions. The applicant filed written submissions and an affidavit made by him that simply asked the Court to “appoint him” a lawyer. The Minister also filed written submissions in accordance with the Court’s orders.
The applicant’s AIC raises the immediate question of whether the Court has the power to set aside the NOD. If the Court does have the power, then the second question is whether, in the circumstances of this case, it should be set aside. The merits of the proposed substantive application and the application to extend time are not relevant as to whether the power exists (SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 (“SZFOZ”) per Ryan J and Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91; (2014) 140 ALD 136 per Ross J).
Submissions filed by the applicant on 6 March 2017 did not address the first question, nor the extension of time relevant to the second question. They are essentially an attempt at identifying errors in the Tribunal’s decision of 4 November 2013, and did not address the factors for consideration in support of the AIC to set aside the NOD.
However, in his affidavit made on 8 January 2017 (in evidence, see [27] below), the applicant also indicates that “an extreme miscommunication and misunderstanding occurred” which led to the “withdrawal” of his application by Ms Kirwin [that is, the filing of the NOD] ([4] - [5] of the applicant’s affidavit of 8 January 2017). I note that Ms Kirwin assisted the applicant before the Tribunal, and in the making of his application to extend time to this Court.
Further, the applicant asserts ([5] of the applicant’s affidavit of 8 January 2017):
“I only learnt about the withdrawal after she had lodged it and when one of her assistants rang me to inform me of the action. Why she had withdrawn my application without ‘consulting’ me is beyond my explanation and I was only told by her assistant that Ms Kirwin was worried that my application would be refused and I will have to pay the associated cost of approximately $6,000.”
[Errors in the original.]
I note in this regard that the applicant was provided with the opportunity by orders made on 15 February 2017, to file further evidence by way of affidavit in support of his AIC, and that he has not done so.
As the Minister submits, “the first question is whether the Court has power to set aside a [N]otice of [D]iscontinuance” ([3] of the Minister’s written submissions). Further, there is no express power in the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) or the Federal Court Rules 2011 (Cth) to set aside a NOD.
However, as the Minister also submits, the Court has “implied inherent and incidental powers shaped by the relevant statutory provisions”, and this includes “an inherent power to set aside a [N]otice of [D]iscontinuance in exceptional circumstances in order to prevent injustice or abuse of its process” ([6] of the Minister’s written submissions).
In this regard see SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 per Ryan J, there citing Castanho v Brown & Root (UK) Ltd [1981] AC 557, where His Honour stated (at [15] and
[17] - [20]):
“[15] The learned Federal Magistrate appears to have regarded the question of whether to set aside the discontinuance as involving an exercise of discretion. As a result, his Honour adverted to considerations, to some of which I have already referred, including the appellant’s prospects of success on the application for review if it were reinstated, the reasons for the discontinuance and whether it occasioned any injustice to the appellant. However, in my view, the orders of the learned Federal Magistrate can be supported on the narrower ground of an absence of power to set aside a discontinuance which has been regularly effected…
…
[17] There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with Rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (UK) Ltd [1989] 2 All ER 743 …
[18] Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside; see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557 …
[19] In Applicant A26 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1050, to which I was referred by Ms Burnett who appeared for the Minister, Mansfield J noted an acknowledgement by the respondent Minister that a notice of discontinuance filed by the former solicitor for the applicant without the knowledge or consent of the applicant can be set aside in the discretionary exercise of the Court’s inherent power to prevent injustice…
[20] In the present case, by contrast, the Minister does not acknowledge the existence of any circumstances which would enable the filing of a notice of discontinuance by the appellant himself to be characterised as an abuse of process or otherwise to enliven the inherent power of the Court to prevent injustice. Castanho v Brown & Root and Applicant A26 were exceptional cases and, it seems to me, it cannot lie in the mouth of a party like the present applicant who knowingly and voluntarily filed a notice of discontinuance, to assert that his own act should be set aside as an abuse of process. Courts also probably have an inherent power to set aside a discontinuance which has been procured by fraud or duress but that power, likewise, is not available to be invoked in the present case.”
The Minister also referred to Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 (“Christodoulou”) in the context of the scope of such an “inherent power”. In that case, the Court referred to certain authority that suggested the power to set aside a NOD “extend[ed] beyond cases of fraud and mistake” to “whenever the interests of justice dictate that that is the appropriate course” (Christodoulou at [27]). However, the Court did not need to decide the question (Christodoulou at [28]).
The Court’s observations on the scope of the “inherent power” of the Court to set aside a NOD in Christodoulou are said to be obiter dicta by the Minister, who further contends that the “narrower construction set out in SZFOZ is the preferred and binding construction of the Court’s inherent power” ([9] of the Minister’s written submissions).
This submission is said to be supported by the Full Federal Court decision in Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 (“Chen”). In that case, the Court concluded that there was an implied power to “reinstate a discontinued appeal in order to prevent an abuse of process”, but that it was not possessed of a power “implied or express … simply to reinstate a discontinued appeal in ‘the interests of justice’” as suggested in Christodoulou (Chen at [41] – [42] and see also [47]). The Court in Chen also noted that the Court in Christodoulou “inexactly” referred to the jurisdiction as an “inherent” one (Chen at [43]).
Further, the Court in Chen relevantly stated (at [46]):
“While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.”
[Emphasis added.]
Even further, the Court in Chen also stated (at [48]):
“We also consider that the power to reinstate an appeal is discretionary in nature so that, when enlivened, the prospects of success of the proposed appeal may also be taken into account in its final exercise, as held in Christodoulou.”
The Minister also referred (at [9] of the Minister’s written submissions) to BLR15 v Minister for Immigration & Anor [2016] FCCA 1260 at [24] and SZUXV v Minister for Immigration & Anor (No.2) [2016] FCCA 1556 at [22], both cases of this Court that are said to have accepted the Minister’s submissions in this regard (see also BZAGD v Minister for Immigration and Border Protection [2015] FCCA 3471 and the subsequent appeal BZAGD v Minister for Immigration and Border Protection [2016] FCA 670).
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of the applicant made on 8 January 2017 and filed on 9 January 2017.
c)The affidavit of the applicant made on 5 March 2017 and filed on 6 March 2017, admitted subject to relevance.
The evidence before the Court does not reveal that the Court’s power to provide relief against an abuse of process is enlivened in the current circumstances.
The applicant gave oral evidence before the Court. In response to cross-examination by the Minister, the applicant stated that he understood the meaning of the term “discontinuance”, that he had signed the NOD, and that at the time of signing the NOD, he had intended to discontinue his application to the Court, but then “had a bit of a doubt in between”. Further, the following exchange occurred:
“[Minister’s solicitor]: I’m not sure I follow the answer. So I will just ask again in steps. I’m sure it’s my fault. So at the time you signed the form, you intended to discontinue, and then at a later point you had doubts. Is that right?
[Interpreter]: That’s correct.”
The Minister’s solicitor then took the applicant to his affidavit that he had filed on 9 January 2017. In particular, to [5] where the applicant states, “I only learnt about the withdrawal after she [Ms Kirwin] had lodged it”. The following exchange then took place:
“[Minister’s solicitor]: Yes, of course. You say at paragraph 5 that you only learned about the withdrawal after Mrs Mereoni Kirw[i]n had lodged it.
[Applicant]: Yes, yes.
[Minister’s solicitor]: And, in fact, you go on to say that:
Why she had withdrawn my application without consulting me is beyond my explanation.
[Interpreter]: Yes, I wasn’t told why she has withdrawn that, the reason. She didn’t really explain to me about the reason.
[Minister’s solicitor]: Okay. Well, leaving the reason aside, it is true, isn’t it, that you knew about the withdrawal when you signed the form for discontinuance?
[Interpreter]: Yes, that’s correct.
[Minister’s solicitor]: And at that point in time, you intended to discontinue.
[Interpreter]: It was not my wish, but just because – the way she advised me to sign the paperwork and this is how it’s going to proceed – so I just went on as follows.
[Minister’s solicitor]: Okay. So you acted on her advice. Is that what you say?
[Interpreter]: Yes, that’s correct.”
In the circumstances, the relevant test is that in Chen. That is, whether the filing of the NOD by the applicant, or on his behalf, was a “deliberate and informed act” (Chen at [46] and see above at [24]). From the applicant’s oral evidence to the Court, it is clear that he voluntarily signed the NOD, and did so knowing that the filing of the NOD would bring the proceedings to an end. On the evidence, the filing of the NOD either by the applicant, or caused to be filed by the applicant, was deliberate, in the sense of being intentional.
The applicant’s assertion in his affidavit evidence that he only “learnt” about the withdrawal after she [Ms Kirwin] had lodged it”, must be seen in light of the applicant’s subsequent oral evidence to the Court that he did not know the “reason” behind the “withdrawal” but acted on Ms Kirwin’s advice.
In short, on the evidence given by the applicant, he made his application to extend time pursuant to s.477(2) of the Act, and then filed the subsequent NOD, with the assistance of Ms Kirwin. Ms Kiriwn’s status, on the evidence, is not clear. There is nothing before the Court to indicate she has any legal qualifications.
However, what is clear on the evidence ultimately given by the applicant, is that he knew of the filing of the NOD which he confirmed contained his signature, and which was effected by Ms Kirwin who was assisting him, albeit that he did not know the reason why Ms Kirwin had recommended this course of action to him. The applicant’s evidence was also that he was not “forced” into signing the NOD.
I agree with the Minister, that in the circumstances, the applicant has not established that he did not knowingly cause the NOD to be filed. The applicant’s evidence was that, acting on advice from Ms Kirwin, he signed the NOD, and knew what the consequence of that signature, and the subsequent filing of the NOD would be.
There was nothing in the applicant’s evidence to suggest the signing and filing of the NOD was due to some “mistake”. In all, the applicant proceeded on advice from Ms Kirwin, knew the nature of the document he was signing, and the consequence of signing it. His subsequent change of mind does not detract from the fact that, at the relevant time, the NOD was knowingly effected, with the consequence of the discontinuance of his proceedings before the Court.
Further, I note that during cross-examination, when given the opportunity, the applicant refused to comment on whether the NOD was effected by the fraudulent conduct of any other party. Nor is fraudulent conduct indicated by any other evidence before the Court.
Therefore, the circumstances of this case do not come within any of the rare occasions when the Court’s power to set aside the NOD is enlivened. Absent such a power, the AIC should be dismissed. I will make the appropriate order.
While the Court’s power to set aside the NOD was not enlivened, for the applicant’s benefit I note the following. Even if the power had been enlivened, it cannot be said, on the material before the Court, that the NOD should be set aside because it is in the interests of the administration of justice to extend time pursuant to s.477(2) of the Act, such that the applicant’s proposed substantive application to be made pursuant to s.476 of the Act, be heard.
It is to be remembered that the application to which the NOD applied was an application to extend time pursuant to s.477(2) of the Act. The Tribunal’s decision was made on 4 November 2013. The applicant was required by s.477(1) of the Act to make any relevant application pursuant to s.476 of the Act within 35 days of that date. He did not do so. However, the applicant had made an application in writing pursuant to s.477(2) of the Act, asking the Court to extend the time within which he can make his substantive application to the Court. The delay is nearly 3 years.
The factors to be considered in relation to the question of an extension of time are not exhaustive. However, there are a large number of authorities which provide direction and guidance to this Court as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).
The particular factors arising from the circumstances presented in considering the exercise of discretion in this case (if such consideration were to take place) appear to be, the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility
In the current circumstances, the length of the delay, a period of nearly 3 years is a greatly significant length. The applicant did not provide a satisfactory explanation for this delay.
In his application to extend time, the applicant essentially raised two matters to explain the delay. He was cross-examined by the Minister on both of those reasons.
The first reason is that the applicant sought Ministerial intervention. The Tribunal decision was made on 4 November 2013. The evidence before the Court is that the applicant sought Ministerial intervention by letter dated 9 December 2013 (CB 216 to CB 218). The applicant confirmed in his evidence that the letter was drafted, and sent on his behalf, by a registered migration agent who, according to the letterhead on that letter, was also a solicitor.
There is no evidence from the applicant to explain the time between the date of the Tribunal’s decision (sent to him by registered post on 5 November 2013, see CB 198) and the date of the letter seeking Ministerial intervention (9 December 2013), a period of nearly 5 weeks. It is of note that the 35 day period relevant to s.477(1) of the Act ended on 9 December 2013. That is the date of the Ministerial intervention letter.
Some authorities would suggest that merely seeking Ministerial intervention is not, of itself, a satisfactory explanation for the delay (MZZVK v Minister for Immigration and Border Protection [2016] FCA 854 at [46], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520).
Other authorities however, allow for the possibility that it may, in certain circumstances, be a satisfactory explanation (SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [58] – [72] per Barnes FM (as she then was) and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM (as she then was)).
The second matter advanced by the applicant was that due to financial constraints he was unable to obtain legal advice.
However, before the Court, the applicant gave evidence that he did consult a solicitor/migration agent in December 2013 (Mr N Silva), and paid for his services. In light of this evidence, I do not accept the assertion in the grounds of the application to extend time that the applicant did not have access to legal advice, nor that he was unable to pay for it at that relevant time.
The applicant’s Ministerial intervention request was finalised on 15 April 2014. The applicant, through his migration agent, who was at that time authorised to receive correspondence for him, was notified on the same date (CB 230 to CB 232).
There is nothing in the evidence from the applicant now, to explain the delay from April 2014 to August 2016 in making his application to the Court. A period of well over two years.
Nor do the grounds of the proposed substantive application have such merit to support an extension of time. The grounds of the proposed substantive application (noting that it was presented for filing nearly 3 years outside the time limit set in s.477(1) of the Act), are a long narrative of 31 paragraphs that do not engage with the Tribunal decision, or even contain any suggested legal error. At the very highest, the grounds seek impermissible merits review.
The applicant was given the opportunity to amend these grounds by orders made on 28 November 2016 and 15 February 2017, and has not done so.
In written submissions said to have been prepared by the applicant, he makes various assertions. The applicant’s submissions before the Court were essentially directed to the question of conditions in Fiji.
First, the applicant’s grievance at the Tribunal’s conclusion in light of the evidence he says he presented to it, does not, on its own, provide any indication of merit in support of the proposition that the Tribunal fell into legal error. For the most part, the applicant is seeking to challenge factual findings made by the Tribunal which were reasonably open to it on what was before it.
Second, the submissions appear to assert that the Tribunal misconstrued or misunderstood or misapplied the requirements of the complementary protection criterion (s.36(2)(aa) of the Act).
On the evidence before the Court, the Tribunal set out and applied the correct approach to considering the criterion in s.36(2)(aa) of the Act. In essence, the Tribunal did not accept, at a factual level, that the applicant’s claims to past harm in Fiji were credible (see [28] at CB 210 to CB 211).
The Tribunal gave cogent reasons for this ([28] at CB 210 to [32] at CB 213). There is no evidence before the Court to show that this factual conclusion, and the antecedent findings that informed it, were not reasonably open to the Tribunal on what was before it.
The Tribunal then proceeded to consider first the facts as found in the context of s.36(2)(a) of the Act ([33] at CB 213 to [34] at CB 213), and then s.36(2)(aa) of the Act ([35] – [37] at CB 213). To the extent that the Tribunal, in considering the criterion at s.36(2)(aa) of the Act, relied on findings expressed earlier in its decision record, such an approach was available to the Tribunal (SZSGA v Minister for Immigration, Multicultural and Indigenous Affairs [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
Third, the applicant makes various references to the Tribunal having denied him procedural fairness (see [7] and [10] of the applicant’s written submissions). In relation to [7] (of the applicant’s written submissions), this appears to be a contention that he was denied procedural fairness because the Tribunal did not properly assess his risk of harm pursuant to s.36(2)(aa) of the Act. For the reasons set out above, this claim lacks merit.
In relation to [10] (of the applicant’s written submissions) this remained unexplained. The applicant’s written submissions do not state what “adverse” information was not disclosed to him.
In any event, s.422B of the Act operates to make what is set out in Division 4 of Part 7 of the Act, the exhaustive statement of the natural justice hearing rule in matters of this type (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252). In this context, I note the applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence, this was a meaningful opportunity to give evidence and present arguments in relation to the issues in the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494). On the evidence, the issues dispositive of the review were discussed at the hearing. There is nothing to say that s.424A of the Act was engaged.
Fourth, the applicant’s written submissions appear to seek to challenge the Tribunal’s reliance on certain country information. As the Minister correctly submits ([15] of the Minister’s written submissions):
“Insofar as the applicant takes issue with the Tribunal’s reliance on certain country information in his written submissions, it is well-established that it was a matter for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at
[5] – [7]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. Moreover, the choice and assessment of country information was a factual matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].”
Fifth, the applicant’s written submissions refer to his affidavit of 26 July 2016 and filed on 18 August 2016, which accompanied his application to extend time made pursuant to s.477(2) of the Act on that date (not read into evidence).
Those submissions complain that the Tribunal failed to consider his claims to fear harm based on his religion and race. In this regard, the applicant made reference to [38] and [64] of his affidavit of 26 July 2016.
The difficulty for the applicant is that he has not provided evidence to show that either of these two claims were expressly made or clearly arose in the circumstances presented to the delegate, or the Tribunal (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
Further, the Tribunal’s decision record, which is in evidence before the Court, reveals that the applicant told the Tribunal at the hearing, that he did not fear harm in Fiji for any reason other than his criticism of the military regime. The applicant has not provided any evidence, including a transcript of the applicant’s hearing before the Tribunal, despite the opportunity to do so, to contradict the Tribunal’s report of evidence given by the applicant at the hearing.
Sixth, the applicant’s written submissions refer to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220. Although it is not entirely clear, it appears the assertion is that the Tribunal did not follow what was relevantly set out in that authority at [60] – [67]. The difficulty for the applicant is that the Tribunal’s findings were not attended by any doubt. In the circumstances, the Tribunal did not need to ask the “what if I am wrong” question.
The proposed substantive application has no merit or prospect of success. If the question for the Court had been one as to whether the NOD should be set aside, then the lack of merit in the grounds of the proposed substantive application would have argued against such a course.
Towards the conclusion of the hearing before the Court, the applicant indicated that he wanted to hand up a bundle of documents in support of his case. He referred to this bundle as “written submissions”. He said these had been recently prepared by Ms Kirwin. This was despite earlier having given evidence, on oath, that he had not seen or spoken to Ms Kirwin since the filing of the NOD on 24 November 2016. In any event, I marked this bundle for identification (“MFI1”), and told the applicant I would consider it.
The bundle of documents is over 100 printed pages. While the first page is headed “affidavit” it is unsigned. The bundle is a collection of various documents which can only be, at best, described as country information about Fiji and political activities in Fiji.
There is nothing to indicate any of this material was before the Tribunal. It is clear it is directed to the issue of the applicant’s claimed fear to return to Fiji. There is nothing in the material relevant to the question of whether the Court’s power to set aside the NOD is enlivened. Nor separately, and for that matter with reference to the extension of time, does the material indicate any legal error on the part of the Tribunal such as to merit the extension of time sought by the proposed substantive application which was discontinued.
In all, the AIC should be dismissed. I will make that order.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 July 2017
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