CKA15 v Minister for Immigration
[2017] FCCA 1089
•29 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKA15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1089 |
| Catchwords: MIGRATION – Application seeking an extension of time – proposed substantive application for review of decision of former Refugee Review Tribunal – insufficient merit in the grounds of the proposed substantive application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424, 424A, 425, 427, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442 |
| First Applicant: | CKA15 |
| Second Applicant: | CKB15 |
| Third Applicant: | CKC15 |
| Fourth Applicant: | CKD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3099 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 19 July 2016 and 10 March 2017 |
| Date of Last Submission: | 10 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) on 13 November 2015 and amended on 30 March 2016 is refused.
The first and second applicants to pay the first respondent’s costs set in the amount of $6,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3099 of 2015
| CKA15 |
First Applicant
| CKB15 |
Second Applicant
| CKC15 |
Third Applicant
| CKD15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 13 November 2015 and amended on 30 March 2016, seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 25 November 2014 which affirmed the decision of the Minister’s delegate to refuse protection (Class XA) visas to the applicants.
Section 477(1) of the Act requires that any such application (pursuant to s.476) be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application was filed with the Court’s Registry outside that time limit by some 10 months. The application is therefore not competent.
Section 477(2) of the Act provides for an extension of time within which to make that application competent, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The applicants have made such an application in writing. They set out the grounds in support of the application to extend time, which, in essence, are that the first applicant, (who, it appears, acted on behalf of his wife and two children, who were the other applicants) had no knowledge of the capacity to come to Court, and on advice from a migration agent, sought Ministerial intervention. Once his request for Ministerial intervention had been refused, he became aware of the possibility of coming to Court to seek judicial review, and he acted as quickly as possible in making that application.
The amended grounds for the application to extend time are in the following terms:
“1. The Tribunal's decision is dated 25 November 2014 and the notification is dated 25 November 2014 and the proceeding was filed in this Court on 13 November 2015.
2. Legal representation was being sought. The Applicant did not understand any impact of short delay.
3. The delay is relatively minimal and is not that excessive in all circumstances of the applicants and readily explainable.
4. The Applicants would be persecuted and denied of right to subsist were the Applicants denied the right to pursue their application and return to their country of nationality. The application is on merit.
5. There is no prejudice to third party including the respondents.
6. In all circumstances that it is in the interests of justice that the time for filing be extended.”
[Errors in the original.]In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence are the following affidavits:
a)The affidavit of the first applicant made on 28 March 2016 (no objection).
b)The second affidavit of the first applicant made on 28 March 2016, annexing a transcript of the Tribunal hearing. A second document filed on 1 April 2016 appears to be the “second part” of the Tribunal hearing (no objection) (“T”).
c)The affidavit of the first applicant made on 31 March 2016 (no objection).
d)The affidavit of Nathan Buck, Solicitor, made on 2 August 2016 (no objection).
e)The affidavit of the first applicant made on 8 August 2016 (objection to second last sentence in [2], not pressed).
f)The affidavit of Albert Ghassibe, a family friend of the applicants made on 5 August 2016 (no objection).
None of the deponents were required for cross-examination.
The issue for the Court now, is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the 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 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110, 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]).
In the current case, the particular factors arising from the circumstances presented in considering the exercise of discretion 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.
The Minister opposed the application for an extension of time. The Minister submitted that the delay was “significant”, and that the applicants have not provided a satisfactory explanation for that delay. Further, the proposed substantive application for review of the Tribunal decision, lacked sufficient merit to warrant an extension of time.
The Tribunal decision was made on 25 November 2014. Any application to this Court pursuant to s.476 of the Act should have been made on or before 30 December 2014. It was not made within this period. It was made on 13 November 2015. That is about 10 and a half months out of time.
In their submissions, the applicants, through their counsel, stated that the delay is “relatively short”. That cannot be accepted. Ten and a half months after the date statutorily required for the making of such an application, cannot, on any objective basis, be said to be “relatively short”.
However, it is important to note that the Minister opposes the application, and submitted that the delay was not satisfactorily explained, but elected not to cross-examine the first applicant or his “friend”, who provided affidavit evidence on his behalf. In this light, it is therefore not open to the Court in the absence of anything to the contrary, not to accept the applicant’s evidence. I should also note that the application for an extension of time had been set down for hearing on 19 July 2016, but the hearing was adjourned because the Minister initially indicated that he did want to cross-examine the first applicant.
I agree with the Minister that the period of the delay is significant. However, I cannot agree that the applicants have not, on balance, provided a satisfactory explanation for the delay.
Nonetheless, one part of the explanation provided by the applicants is not to be accepted as providing a satisfactory explanation. The first applicant asserted, in evidence, that he was self-represented and did not know of the 35 day time limit ([4] of the first applicant’s first affidavit of 28 March 2016). The Minister submitted that ignorance of the relevant time limit is an unsatisfactory explanation for filing the application out of time (SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 (“SZJRV”) and SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 (“SZLIH”)). Further, the fact that the applicants were unrepresented did not justify an extension of time being granted (SZNYE v Minister for Immigration and Citizenship [2010] FCA 500).
The applicants rely on MZZGC v Minister for Immigration and Citizenship [2015] FCA 842 (“MZZGC”) at [11] – [12] for the proposition that “great weight” should be given to the fact that the applicants are non-English speakers, and that they are not familiar with the Australian legal system.
I cannot see that that part of the Court’s judgment assists the applicants. Paragraph 12 of MZZGC only addresses the question of the relevant principles in relation to an extension of time within which to appeal from this Court to the Federal Court. There is no dispute in the current proceedings that those principles apply in the current case.
Paragraph 11 of MZZGC in my respectful review, sets out part of the Court’s understanding of the applicant’s (in that case) explanation for the delay.
It must be said that in the current case, both parties have taken a simplistic view of the application of the relevant principles to the facts presented. Without reference to further authority, the applicants simply say that the delay is explained by their lack of knowledge and the time taken to resolve the Ministerial intervention request.
The Minister has stated a number of propositions which I find are not fairly reflective of the authorities he cites. For example, the Minister relies on SZLIH at [33], for the proposition that “ignorance of the relevant time limits is an unsatisfactory explanation for filing the application out of time” (see [19] of the Minister’s written submissions filed on 11 July 2016).
In in that case, the Court found that the applicants’ failure to make proper enquiries to determine relevant time limits was “not acceptable”. In my respectful view, that must be seen in the context that the applicants, in that case, “had a repeated history of failing to comply with time requirements” (SZLIH at [32]).
In short, both parties appear to have taken a view of selectively reading relevant authorities, extracting certain principles, and then in a formulaic and mechanical way, seeking to apply those principles to the circumstances presented in this case.
In my respectful view, what authorities such as MZZGC illustrate, is that the assessment of whether it is in the interests of the administration of justice to extend time, requires a far more nuanced approach, and one which focuses on the facts and circumstances of each case as presented to the Court, and not some formulaic application of propositions from other cases.
It may be, for example, that ignorance of the law may not, in some circumstances, weigh heavily against the exercise of discretion, and in others, it may. For example, in SZJRV, on which the Minister says he relies ([19] of the Minister’s written submissions), in my respectful view, the Court makes clear the nuanced approach that is necessary (SZJRV at [6]):
“Had consideration been confined simply to the short extension of time required, the discretion could well have been exercised favourably to the Applicant. The explanation provided is, with respect, not satisfactory. But, as was recognised by the Full Court, a less persuasive explanation may be required when the extension required is for a comparatively short period of time.”
This point is also, in my respectful view, made plain in MZZGC at [14]:
“The length of the delay and any explanation for it is also a significant factor but the weight of these factors in any given case is likely to vary considerably.”
What immediately follows provides, in my respectful view, the necessary weighing and balancing of relevant factors in the circumstances presented (MZZGC at [15]):
“The length of time between the Federal Circuit Court decision and the application for an extension of time in which to appeal is significant. I accept the Minister’s submissions that the fact of an application for Ministerial intervention is no acceptable explanation for failing to lodge an appeal from the Federal Circuit Court. On the other hand, a lack of access to legal representation and advice for any appeal provides some explanation, especially for an applicant who has the additional disadvantages of unfamiliarity with the Australian legal system, insecure migration status and future in Australia, and lack of functional English. That these attributes may be shared by many litigants in this Court in the migration jurisdiction is no reason to diminish their importance. They do in a real sense, in my opinion, affect the capacity of individuals to access the justice system. What remains unexplained on the evidence is why, in May of this year, the applicant did manage to lodge the documents necessary to apply for an extension of time. Overall, it is difficult to find an acceptable explanation of the delay.”
On the evidence in the current case, evidence which the Minister has chosen not to challenge, it is clear that the applicants, in particular the first applicant, relied on the advice of a migration agent, and the assistance of his friend, Mr Ghassibe. The advice from the migration agent was that he should request the Minister’s intervention following notification of the Tribunal’s adverse decision. The first applicant’s evidence that he was not told, and did not know of the option of coming to this Court must, in the circumstances, be accepted.
Why the Minister elected not to cross-examine the first applicant, or for that matter, Mr Ghassibe, remains a matter for the Minister. What emerges on the unchallenged evidence is that the first applicant, without legal representation, and relying on advice which provided him with only one avenue, that is, to seek Ministerial intervention, cannot be said to have made an informed choice as between seeking Ministerial intervention, or exercising his right pursuant to s.476 of the Act of coming to this Court.
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)).
In all therefore, in the circumstances of this case, I accept that the applicants have provided a satisfactory explanation for the lengthy delay in coming to this Court. The applicants, following advice, in circumstances where they were unaware of the possibility of coming to Court, pursued Ministerial intervention and when notified of the adverse result, on the evidence, acted as soon as reasonably practicable in making an application to this Court to extend time.
I agree with the Minister, that given the significant delay, granting the extension of time may undermine the general 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] per McHugh J). However, in the current case, given that the delay is albeit, significant, has been satisfactorily explained, this factor is not weighed in favour of the Minister.
Nor can I see that the Minister would be prejudiced if time were to be extended, and nor did the Minister press such a claim before this Court. Noting of course, that an absence of prejudice is not conclusive in the current circumstances (Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at [349] and ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142 at [88]).
There are three grounds of the amended proposed substantive application. Before the Court, the applicants’ counsel stated that he did not press ground three. The following grounds therefore are the sole remaining grounds of the amended proposed substantive application:
“Ground 1
1. The Tribunal denied the Applicants procedural fairness and fair hearing in the circumstances where it was clearly indicated that certain persons would not be witnesses.
Particulars
(i) The Tribunal considered that it was entitled to examine unprepared witnesses (although the witnesses also part of the application) (CB 231 at [11]).
(ii) It was clearly indicated that certain persons would not be witnesses
(iii) The witnesses were unprepared and were not present to give evidence (CB 231 at [10]).
(iv)The Tribunal was procedurally unfair to question unprepared witnesses to engage with unprepared witnesses.
(v) The Tribunal has misdirected itself whether it was required to afford the witnesses procedural fairness.
(vi) The Tribunal did not carry out substantial justice as required by the Act.
(vii) The Tribunal committed jurisdictional error.
Ground 2
2. The Tribunal’s findings on key claims as fear from Lucy’s husband and his supporters (and kidnapping and marriage) (CB234-236) is irrational and / or illogical and failed to ask the correct questions.
Particulars
(a) The Tribunal invited the Applicants to the hearing.
(b) Lucy is not in Australia and not an Applicant.
(c) The Applicants witnesses were narrated events rather than being participants in the events (witness Aline being the only other person at school at the time of claimed kidnapping of Lucy but not first hand witness).
(d) The Tribunal presumed that had the events claimed occurred the Applicants would have discussed the events and described the events in exact details and not differently.
(e) No reasonable Tribunal would presume there would be discussion amongst the Applicants of details.
(f) No reasonable Tribunal would presume the details of claims amongst the Applicants where the incidents giving rise to the claims of details.
(g) The Tribunal failed to ask correct question and has incorrect question – that all witness should describe events similarly.
(h) The Tribunal committed jurisdictional error.
[Errors in original.]
Before considering the remaining grounds of the amended proposed substantive application, the following background is relevant.
The applicants are citizens of Lebanon, who arrived in Australia on 18 June 2013 on visitor visas. They applied for the protection visas on 26 July 2013. The first and second applicants are husband and wife, and the third and fourth applicants are their adult sons. All the applicants made claims to protection. The first applicant made a specific “Statement” that the second, third and fourth applicants also relied upon (CB 94 to CB 95). Also included with the application was a Statutory Declaration made by the first and second applicants’ daughter, Lucy, on 23 July 2013 in Canada (CB 96 to CB 97).
The applicants’ claims to fear harm can be summarised as follows:
a)The applicants are Maronite Christians and fear harm from “sectarian violence”. They claimed they had been under “constant threats” from an “Islamic terrorist group” called “Fateh Al Islam” (“FAI”).
b)Lucy had been “abducted by an Islamic group” from her school in October 2005. Lucy was forced to “become a Muslim by marriage” and was assaulted physically and mentally. The family paid a ransom of “$50,000 US dollars to bring her back home”. The family rescued Lucy and took her to a convent claiming that she was mentally ill.
c)The first and second applicants feared that the third and fourth applicants would be “forced” to fight in the sectarian violence.
d)The family would be subject to “extortion of their businesses” by the FAI.
The first applicant provided a further “Statement” to the Minister’s Department on 10 January 2014, and certain media reports (CB 116 to CB 128). The first, third and fourth applicants, through their representative, provided Statutory Declarations to the Minister’s Department on 14 January 2014 (CB 129 to CB 151). Further, the second, third and fourth applicants appear to have amended their applications to be part of the family unit, and no longer had claims of their own.
The delegate refused the applications for the visas on 6 March 2014 (CB 152 to CB 179). The delegate was “not satisfied that [the first applicant] genuinely feared serious harm amounting to persecution” for the reasons claimed, due, in part, to internal inconsistencies and ambiguities in his statement.
The applicants applied for review to the Tribunal on 6 April 2014 (CB 180 to CB 181). They were again assisted by a registered migration agent. By letter dated 18 September 2014, the applicants were invited to attend a hearing before the Tribunal on 28 October 2014 (CB 185 to CB 187). Relevant to the amended proposed substantive application before the Court, the applicants’ representative returned the “Response to Hearing Invitation” form on 1 October 2014 (CB 188 to CB 189). This form indicated that the first applicant would be taking part in the hearing, and that the second, third and fourth applicants would not. The Tribunal’s “Hearing Record” shows that the first applicant and the second applicant were present at the hearing, as well as Aline, another daughter of the first and second applicant, and each of them gave an oath, prior to giving evidence.
The applicants provided a written statement from Aline at the hearing (CB 193 to CB 198). The statement disputed a number of findings made by the delegate, including findings about the facts in relation to Lucy’s kidnapping, and references to country information.
By letter dated 3 November 2014, and sent pursuant to s.424A of the Act (“the s.424A letter”), the Tribunal invited the applicants to comment on, or respond to, information in relation to a number of the claims that had been made (CB 205 to CB 210). Relevant to the amended proposed substantive application before the Court, this letter brought to the applicants’ attention a number of the Tribunal’s concerns about evidence given by the first and second applicants, and Aline.
The applicants’ representative responded on 17 November 2014. In that response, the following statement was made about the second applicant’s and Aline’s evidence (CB 211):
“[The second applicant and Aline] attended simply as observers, and [the applicant] is curious as to why they were invited at that hearing to witness. He believes that as ‘witnesses’ his wife and Aline were not provided with sufficient time to prepare any verbal submissions to the Tribunal Member.”
In an attached letter to the Tribunal from the first applicant, he stated that he “would like to record our objections for calling on my wife and daughter to give evidence” (CB 214.3). In particular, that they were not adequately prepared to give evidence. As a result, the first applicant reserved his “right to refuse to comment” on the information in the s.424A letter, referring to the second applicant’s and Aline’s evidence.
Ground one asserts a denial of procedural fairness. The complaint was explained to the Court as being that it had been previously indicated to the Tribunal by way of the “Response to Hearing Invitation” form, that the second applicant would not give evidence. Yet the Tribunal, on the day of the hearing, took evidence from the second applicant, and Aline, and in circumstances where they were unprepared to make their “submissions”.
In written submissions, and before the Court, it appeared that the applicants did not dispute the Tribunal’s statutory power to take evidence. There was no dispute with the Minister’s submission that the Tribunal had a general power to obtain information pursuant to s.424 of the Act (SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51; (2009) 177 FCR 1 at [59] and Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489 (“SZKTI”) at [37])).
Nor was there any dispute from the applicants regarding the Minister’s submission that ([25] of the Minister’s written submissions):
“In SZKTI, the High Court emphasised the broad scope of the power in s.424(1) in the service of the Tribunal’s inquisitorial function, and held that the power extended to obtaining information by telephone without any formal invitation. By analogy of reasoning, there is nothing in the Act that would preclude the Tribunal from seeking information from persons attending a hearing before it. Section 424(2)[1] confirms that the Tribunal may ‘invite, either orally (including by telephone) or in writing, a person to give information.’ The transcript of the Tribunal hearing makes clear that it did no more than invite the mother and Aline to give evidence, which invitation was accepted without the expression of any concern. There was no objection to this course being taken at the hearing, either by the applicants or their representative.”
[1] Amended after SZKTI.
Nor did there appear to be any dispute with the Minister’s submission that the Tribunal had the power under s.427(1) of the Act, to take evidence on oath or affirmation, and that pursuant to s.427(3) of the Act, the Tribunal had the power to summon a person to appear before the Tribunal to give evidence.
Rather, the applicants’ attack was that the Tribunal failed in its obligation to act in a procedurally fair manner. The applicants relied on Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 and 585, for the proposition that the Tribunal was required to act fairly in the circumstances of the particular case.
Ultimately, at the hearing before the Court, the applicants did not press this complaint in relation to the second applicant, noting that she was an applicant for a visa, and an applicant for review before the Tribunal. Rather, the complaint was pressed in relation to their daughter Aline. The submission was that it had been “indicated” that Aline would not give evidence, or participate at the hearing. Further, that Aline was caught “off guard” by the Tribunal in circumstances where she was not one of the persons who had been nominated by the applicants as a witness. Therefore it was procedurally unfair for the Tribunal to question an “unprepared” witness. The applicants proposed that the Tribunal should have adjourned the hearing to enable Aline to “properly prepare” to give evidence to the Tribunal.
It is the case that in the “Response to Hearing Invitation” form signed by the applicants’ representative on their behalf, the applicants indicated that only the first applicant would take part in the Tribunal hearing. They did not request the Tribunal to take oral evidence from another person (CB 188 to CB 189).
However, the Tribunal is not confined in taking evidence, or information, only from those persons whom the applicants nominate for that purpose. Plainly, s.424 of the Act vests a discretion in the Tribunal, to get any information that it considers relevant. The only compulsion on the Tribunal is that it must have regard to any such information. Further, s.427 of the Act provides discretion to the Tribunal to take evidence on oath or affirmation. There is nothing in that section, or indeed elsewhere in the Act, that limits the Tribunal’s power only in respect of those whom the applicants have nominated.
Although the applicants sought leave, which was granted, to read the first applicant’s second affidavit made on 28 March 2016, annexing a transcript of the Tribunal hearing (and see [6] above), the applicants made no reference to it during the course of the hearing before the Court. It is clear from the transcript and indeed from the Tribunal’s decision record at [8] (at CB 230), that the first and second applicants attended at the hearing before the Tribunal and were accompanied by their daughter Aline.
It is also clear that at the beginning of the hearing the first and second applicants, and Aline, gave to the Tribunal, Aline’s written statement, which is now reproduced at CB 193 to CB 198. It also is clear that this statement takes issue with a number of findings made by the delegate and directly seeks to provide “evidence” on matters relevant to the Tribunal’s consideration of the applicants’ claims, particularly in relation to her sister Lucy, who was the subject of the claimed kidnapping in Lebanon.
Given that the Tribunal had just been presented with Aline’s statement, and given its relevance to the conduct of the review, the Tribunal told the first applicant that (T1 lines 29 – 32):
“[Member]: I understand that your wife and daughter are here as well. Given that your wife is an applicant, and your daughter’s provided written evidence today, it may well be that I want to take evidence from them as well. So I’ll have them sworn in as well. We’ll just start with the interpreter first.”
The Tribunal then explained the procedure for the conduct of the hearing. It then proceeded to question the first applicant. It would appear that the applicants’ representative interrupted on a number of occasions during this questioning, and/or was asked questions by the Tribunal (see for example T4 and T5). The point being that the representative was present and participated at the hearing.
After questioning the first applicant for some time, the Tribunal then indicated that it wanted to ask questions of the second applicant (T17 lines 39 to 40). It is important to note, that given the complaint made by the applicants, both to the Tribunal and now before the Court, that the Tribunal asked the applicants’ representative to bring in the second applicant, and he proceeded to do so without any objection being raised by the first applicant at that time (see T17 lines 43 to 49). The Tribunal then proceeded to question the second applicant in the presence of her representative. [References in the transcript to Helene, in my view, in context, are to “Aline”.]
It is also important to note that the transcript the applicants have now put before the Court, reveals that the Tribunal’s questions were directed to Aline’s statement, and particularly in support of the central claim made by the applicants regarding the abduction of their other daughter, Lucy. It must be said that on any plain reading of the Tribunal’s questioning and answers at the hearing, that the Tribunal did have a probative basis for making its findings concerning the evidence given by the first and second applicant and Aline at the hearing.
It is also clear that towards the end of the hearing, the Tribunal made plain, to both the first and second applicants, in the presence of their daughter Aline, its concerns with inconsistencies in the evidence that had been provided (see T35 line 38 to T36 line 38). Importantly, there is nothing from the applicants, or their representative, to indicate any “unpreparedness” on the part of Aline in giving evidence. To the contrary, the transcript reveals the following (T38 lines 11 to 41):
“[Member]: Mr Clark [the applicants’ representative], was there anything that you wanted to say?
[Clark]: The examination was pretty thorough and I appreciate it. I believe that with a natural justice letter, I would sit down to try and read – we’d come back with - should there be further submissions or a response about that, at the appropriate time to comment.
[Member]: Was there anything else that you wanted to say today before I close the hearing? Okay. Thank you very much for coming to speak with me. I know that it’s very stressful to appear before the Tribunal. I’ll wait to receive further comments and any evidence you want to provide.
[Clark]: Could I just ask how long will it take for – I’m not trying to force you to write the letter tomorrow, but is it two weeks, a month?
[Member]: Yes, it will be within a couple of weeks. It will be shortly.
[Clark]: Thank you very much.
[Member]: Thank you, Mr Clark, for your assistance. Thank you, Madam Interpreter.
[Clark]: Thank you very much.
[Member]: Thanks very much.”
There is nothing in the transcript provided by the applicants themselves to the Court now, to show that any complaint was raised about the Tribunal seeking to take evidence from Aline. That complaint only emerged in the response provided by the applicants by letter, dated 3 November 2014, in response to the Tribunal’s s.424A letter of invitation to comment on or respond to certain information (see CB 204 to CB 210). In essence, that information concerned the evidence given by the first and second applicants, and Aline, at the Tribunal hearing, and in particular, in relation to the claimed abduction of their daughter Lucy (see also the representative’s response at CB 211 to CB 212, where the complaint is also raised (dated 17 November 2014)).
Before the Court, the applicants’ submissions, as expressed by their counsel, did no more than repeat the complaints made by their representative and the first applicant to the Tribunal. I cannot see how it can be said to have been procedurally unfair of the Tribunal, in the circumstances of this case, to have proceeded to obtain evidence from Aline in relation to a statement that she herself had drafted, and which had been submitted, in her presence, to the Tribunal at the commencement of the hearing.
Before the Court, the applicants’ counsel was unable to explain the submission that she was “unprepared” to give evidence. It is not clear what further preparation Aline would have required to further explain her own statement. This is not a situation where the Tribunal randomly selected a relative to confirm or deny evidence given by the applicants before it. Aline attended at the hearing with her parents and gave a written statement in support of their claims.
To the extent that the applicants, before the Court, argued that the Tribunal’s conduct was unreasonable and that this was an aspect of a failure of procedural fairness, then I cannot see how the Tribunal acted unreasonably. This was in circumstances where the Tribunal did no more than seek to clarify from the first and second applicant’s daughter, the matters that she herself had raised in a written statement that was submitted on the day of the Tribunal hearing, as part of the applicants’ case before the Tribunal.
Before the Court, I sought from the applicants’ counsel an explanation as to the basis on which the Tribunal’s procedural fairness obligation was said to arise. At best, the applicants’ submission appeared to be that any procedural fairness obligation that was owed to the applicants was also owed to Aline. No regard was had, in this submission, to the provisions of s.422B of the Act, which makes the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with (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 light, the Tribunal’s relevant procedural fairness obligations can be said to arise from s.425 and s.424A of the Act. In relation to s.425, the Tribunal plainly invited the applicants to a hearing and there is nothing in the transcript, or indeed, the other evidence before the Court, to show that the hearing was other than a meaningful opportunity for the applicants to give their evidence and present their arguments (SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1481, Minister for Immigration and Citizenship and Anor v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575, SZBEL v Minster for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”), Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230). The applicants were squarely put on notice of the issues of concern to the Tribunal (see SZBEL and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010)189 FCR 494).
Further, the Tribunal wrote to the applicants after the hearing pursuant to s.424A of the Act. It is the case, as explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), that inconsistencies in evidence given by applicants is not “information” for the purposes of s.424A of the Act (SZBYR at [17] – [18]).
Nor is evidence given by applicants at the Tribunal hearing for the purposes of the review “information” that is caught by the obligations in s.424A(1) of the Act, given the provisions of s.424A(3)(b) of the Act. Nonetheless, there was no error in the Tribunal writing to the applicants and inviting their comment or response to its concerns about the evidence that they had given.
In relation to Aline, plainly she was not an applicant before the Tribunal. But the applicants were put squarely on notice both at the hearing, and then by the Tribunal’s letter sent pursuant to s.424A of the Act, of the Tribunal’s concerns arising from her written statement which the applicants and Aline had given to the Tribunal, and her evidence. They were given the opportunity to respond to it. I cannot see that there was any obligation on the Tribunal to further pursue its concerns with Aline herself, given that she was not an applicant before the Tribunal, and had had a fair and meaningful opportunity to explain her written statement to the Tribunal.
In all, there is insufficient merit in ground one such as it can be said that it weighs in favour of the grant of the application to extend time.
Ground two asserts that the Tribunal’s findings in relation to the first and second applicants’ claimed fear from the husband of their daughter Lucy, and his supporters, and the kidnapping and marriage which predated it, were irrational and/or illogical, and the Tribunal fail to ask the correct questions.
The basis of the complaint, as explained before the Court, appeared to be that the Tribunal’s irrational or illogical approach was to assume that the applicants, and their witness Aline, would have discussed the relevant events involving Lucy’s kidnapping, and would have provided a coherent and consistent account of claimed relevant events.
To the extent that the applicants sought to rely on authority for the proposition advanced in ground two, reference was made to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”). I have regard to what, with respect, was relevantly said in that case, particularly at [129] to [131]. Further, for the applicants to establish at least some arguable case under ground two, there would need to be some indication that there was an absence of a “logical connection” between the evidence given and the reasons of the decision-maker (SZMDS at [51]).
This directs attention to the actual analysis made by the Tribunal. As is set out above, the Tribunal found that there were “significant inconsistencies” in the applicants’ evidence (and this included the evidence given by Aline), and therefore it was not satisfied that they were being “truthful about the claimed events in Lebanon” (see at [14] at CB 232).
The Tribunal’s decision record addressed these inconsistencies in a comprehensive and detailed manner (see [15] at CB 232 to [23] at CB 234 to CB 235). In my view, the Tribunal explained, for reasons probative of the evidence before it, why it found that the first and second applicants, and Aline, were not credible witnesses (see the conclusion at [38] at CB 238). It is clear, as the Minister submits, that the Tribunal formed an adverse view of the applicants’ credibility, based on inconsistencies and the implausibility in their evidence. As the Minister also submits, findings of fact, including findings on credibility, are for the Tribunal to make in the proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]).
In the circumstances of this case, I can only agree with the Minister that to describe the Tribunal’s reasoning as being irrational, illogical or unreasonable, is simply another way of the applicants expressing their dissatisfaction or disagreement with the Tribunal’s decision (Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611).
In submissions before the Court, the applicants also complained that the Tribunal proceeded from some expectation that the applicants should have given consistent evidence. The applicants now argue that they were “narrating” events from some time in the past, and that the Tribunal should have made allowance for the fact that there would be inconsistencies in their claims in these circumstances. This was described by the applicants’ counsel as being that the Tribunal failed to ask the correct question as to whether the events from a long time ago would be consistent in all details, when the applicants were narrating events to which none of them were first hand observers.
That is, the events of the claimed kidnapping of Lucy, and the unreasonableness of the Tribunal’s approach, are said to be that it presumed that there would be discussion amongst all of the applicants of the details of what had occurred, and that therefore they would have been consistent in their account. This complaint does not assist the applicants in revealing some merit in the ground of the proposed substantive application. The Tribunal’s decision record reveals no such expectation that the applicants would have discussed past events.
Rather, the Tribunal did all that it could reasonably do in the circumstances. That was to give the applicants, and their daughter Aline, the opportunity to explain the claims and the evidence in relation to those claims, and to point out to them inconsistencies in that evidence and seek an explanation. The applicants chose not to attempt any satisfactory explanation, but rather to complain that the second applicant and Aline were “unprepared”. In circumstances where the Tribunal’s findings were all reasonably open to it on what was before it, and was particularly probative of the material before it, the applicants’ ground has no merit.
Conclusion
In all, there is either no merit, or insufficient merit, in either of the two grounds of the proposed substantive amended application to weigh in favour of the application to extend time. For this reason, notwithstanding that the applicants have provided a satisfactory explanation for the delay, and no prejudice would accrue to the Minister if time were to be extended, it would be futile to extend time simply to dismiss the amended proposed substantive application. It is appropriate that the application to extend time be refused. I will make that order accordingly.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 May 2017
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