CNC15 v Minister for Immigration
[2016] FCCA 2864
•22 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNC15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2864 |
| Catchwords: MIGRATION – Extension of time – substantial delay – delay not adequately explained – no reasonable prospect of success in proposed grounds of review – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.414, 417, 477 and 477(1) & (2) |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | CNC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 442 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 2 June 2016 |
| Date of Last Submission: | 2 June 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 22 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms T D M Heuzenroeder |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the Respondents: | Mr P d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application for an extension of time in which to file an application for judicial review is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 442 of 2015
| CNC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time in which to make an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 23 February 2013. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa. The delegate’s decision was made on 18 October 2012.
The applicant filed his Application for judicial review on 27 November 2015. Pursuant to s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) the applicant had 35 days in which to file an application in this Court for judicial review. His application was filed 2 years and 7 months out of time.
The applicant has filed an Amended Application dated 23 April 2016. That application abandons the original grounds of review sought and raises the following proposed grounds of review:
“1.The Tribunal’s decision dated 28 February 2013 is affected by jurisdictional error because the tribunal failed to consider an integer of the applicant's claim, and thereby constructively failed to exercise jurisdiction. In particular:
1.1.It was an essential integer of the applicant’s claim that he feared persecution in the reasonably foreseeable future, by reason of the withdrawal of the international security forces from Afghanistan (which forces he had assisted while in Afghanistan).
1.2In making its decision, the Tribunal failed to make a finding in relation to and/or address at all, whether the withdrawal of the international security forces would, or might reasonably be expected to, have any bearing on the applicant’s risk of future persecution, whereof there was a constructive failure to exercise jurisdiction.
2.The Tribunal’s decision was affected by jurisdictional error in that by finding at paragraph [163] that the applicant did not have substantial grounds for believing that there was a real risk he would suffer significant harm it did not engage sufficiently or at all, in a probative reasoning process, and thereby failed to exercise jurisdiction. In particular:
2.1The Tribunal’s reasons at paragraphs [141], [147], [149], [151], [153] and [161] do not consider (notwithstanding that a proper exercise of jurisdiction required such consideration) the evidence and conclusion accepted by the Tribunal at paragraph [101].”
The applicant relies on the following materials:
a)His Affidavits of 27 November 2015 and 26 April 2015;
b)Affidavit of Libby Hogarth dated 5 May 2016;
c)Affidavit of Damien McInerney dated 6 May 2016; and
d)Court Book filed by first respondent.
The first respondent relies on the materials in the Court Book.
Background
The applicant is a citizen of Afghanistan born in Ramok Village, Olukan, Sharestan District in the Daikundi Province. He is a Hazara Shia. He is married and has three children. His wife and children did not travel with him to Australia. He arrived at Christmas Island as an unauthorised maritime arrival on 21 May 2012.[1] He applied for a protection visa on 1 September 2012.
[1] Court Book (‘CB’) p 87.
The applicant claimed to fear persecution by reason of the fact that he had been working for the international forces in Afghanistan as a security guard. He feared that he would be targeted by the Taliban on that basis and because he was a Hazara Shia.
His application was supported by a Statutory Declaration dated 1 September 2012 prepared by his solicitor. Detailed submissions in support of his application were also submitted having been prepared by the same firm of solicitors.
As I have already noted, the Minister’s delegate refused the application on 18 October 2012. His representative applied on his behalf for a merits review on 23 October 2012. On 11 February 2013, the applicant’s solicitor sent a detailed submission to the Tribunal in anticipation of the hearing on 14 February 2012. He was represented at that hearing and gave evidence. The Decision Record was posted to him on 1 March 2013.
Extension of time
The Court has power to extend the time in which to make an application for review pursuant to s.477(2) of the Act. If, in circumstances it considers appropriate, where an application for that order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order, then the Court may make an order extending time.
The applicant has made an application in writing setting out his reasons for seeking an extension of time.
The relevant question is, therefore, whether the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending the period for making an application for judicial review.
Section 477 of the Act does not delineate the criteria of which a Court must satisfy itself in considering the question of whether an extension of time is “necessary in the interests of the administration of justice”. It has been observed that any matters advanced by an applicant and considered by the Court in an application such as this must logically and sensibly relate to the interests of the administration of justice.[2] The Courts have identified a range of matters that might ordinarily be taken into account when considering this issue. The matters include:
a)The reasons for the delay;
b)The length of the delay;
c)Whether there is any prejudice to the respondent;
d)The merits of the proposed application for review; and
e)The effect on the applicant if time is not extended.
[2] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252.
The applicant has identified the following grounds of application for an extension of time:
“1.The applicant’s migration agent lodged an application for Ministerial Intervention on behalf of the applicant and did not specifically advise the applicant to pursue judicial review or of his option so to do.
2.The applicant was affected by a depressive condition which caused him to be unable to pursue or obtain advice on judicial review independently of his migration agent.
3.The applicant would be severely prejudiced if an extension of time were refused in that a refusal will result in his removal to a country in which he fears persecution.
4.The elapse of time causes no identified hardship to the respondent.
5.Accordingly the interests of justice favour the granting of the extension of time.”
Length of delay and explanation for delay
The applicant has provided an explanation for the delay in this matter. No doubt due to the length of the delay, some aspects of the applicant’s explanation are lacking in detail and precision.
The applicant says that he was advised of the Tribunal’s decision by telephone some time after 1 March 2013. He is now not able to recall whether he was given any advice as to his options for applying for judicial review.[3] Notwithstanding the fact that he cannot recall whether he was given any advice as to his right to make an application for judicial review, the applicant asserts that at the time he was advised of the Tribunal’s decision, he “did not know what was happening in the process and what (he) could do”.[4] He states that he had a caseworker at Red Cross called Michael. It was this person who made appointments for him and assisted him to fill out forms. He states that he asked other Hazaras about where he should go to get advice about his case. He states that everyone recommended that he consult a migration agent, Libby Hogarth.[5] His affidavit does not explain when he spoke to others about from whom he should seek advice or why he simply did not seek advice from the solicitors who had represented him before the Tribunal. He states that he believed that he first consulted with Ms Hogarth in July 2014. This was approximately 17 months after the Tribunal decision. He is not able to recall whether he was given any advice about judicial review when he first consulted with Ms Hogarth, but he does understand that she made an application for Ministerial intervention on his behalf.[6]
[3] Affidavit of CNC15, dated 26 April 2016 at [3].
[4] Ibid at [4].
[5] Ibid at [6].
[6] Ibid at [9].
It was at Ms Hogarth’s instigation that he went to see the Psychologist, Damien McInerney. He attended a clinical interview with Mr McInerney on 1 December 2015.[7]
[7] Affidavit of Damien McInerney, dated 6 May 2016, Annexure “DM1” at p 1.
The applicant’s affidavit does not include any information as to whether or when he was advised of the outcome of the request for Ministerial intervention. The applicant asserts, “I could not understand the advice that the migration agent gave me about what I could do next”.[8] His affidavit does not explain at what point, or points, in his professional relationship with Ms Hogarth he received the advice that he was unable to understand. He agreed with the psychologist’s assessment that he tends to leave decisions to his representatives and acknowledges that he has not been active in seeking out an understanding of the legal process.[9] To the best of his recollection, he believes that the first time he was told of his option to seek judicial review in this Court was when he was informed by Ms Hogarth in about September 2015.[10] He says that he fears persecution if he were to be returned to Afghanistan.
[8] Affidavit of CNC15 op cit at [11].
[9] Ibid at [13]-[14].
[10] Ibid at [15].
Ms Hogarth’s affidavit confirms that she consulted with the applicant in July 2014. Having identified that his application for judicial review would be out of time, she prepared an application for Ministerial intervention which was sent to the Minister in December 2014.[11] She was notified that the application had been refused in August 2015. Having sought and received “new information” with respect to the applicant’s case throughout 2014 and 2015, she sent a second application for Ministerial intervention to the Minister in September 2015 on the basis of that information.[12] That second application was refused in November 2015. On 27 November 2015, she provided the applicant with forms to enable him to lodge an application in this Court for judicial review.[13] Ms Hogarth secured representation for the applicant through his present solicitor in December 2015.
[11] Affidavit of Libby Hogarth, dated 5 May 2016 at [5].
[12] Ibid at [7]-[8].
[13] Ibid at [11].
The Affidavit of the Psychologist, Damien McInerney, annexed a report that he prepared on 7 December 2015. On the basis of his clinical interview, he concluded that the applicant has a persistent, fearful, anxious and worried mood with episodes of depression and constant emotional stress. He has a pattern of intrusive thoughts about his past and his fears for the future, which include his understandable concern for the welfare of his children, who are displaced and living in Pakistan. With respect to his memory function, he concluded that the applicant has a disturbed short term memory function characterised by extreme forgetfulness of every day things. He concluded that the applicant’s concentration is impaired, that he has extreme sleep disturbance, chronic tiredness, poor appetite and whilst he has no suicidal ideation or intent, he is beset with morbid thoughts. He was of the opinion that the applicant suffered a significant depressive condition with extreme levels of emotional stress and anxiety at the time of examination. He concluded that the applicant’s psychological presentation was consistent with the history provided by him. He was of the view that the applicant’s ability to focus, concentrate and process information was compromised by his chronic stress and anxiety. It was this that led to his habit of leaving decisions in the hands of others. Mr McInerney’s report expresses an opinion beyond the area of expertise by purporting to express his view as a clinician that the applicant’s fear of persecution is well-founded. I have ignored that aspect of his opinion for the purpose of this application.
With respect to the length of the delay and the explanation provided, the applicant’s counsel, Ms Heuzenroeder, submitted that the applicant is illiterate and did not understand the options open to him following the Tribunal’s decision. Further, he did not recall having received any professional advice about his options until July 2014. Given that Mr McInerney has expressed the opinion that, at the time he was examined, he had a significant depressive condition and extreme levels of emotional stress and anxiety impairing his ability to focus and concentrate, this was a matter that should be given considerable weight when assessing the adequacy of the explanation for the delay.
Ms Heuzenroeder submitted that over half of the period of delay was a direct result of following the advice of his migration agent to seek Ministerial intervention rather than judicial review. She submitted that the fact that the applicant’s advisor pursued Ministerial intervention, pursuant to s.417 of the Act, should not prevent the granting of an extension of time. Authority was cited for that proposition and I will refer to that later in these reasons.
Counsel for the applicant submitted that the application for judicial review to this Court was filed relatively soon after the applicant first recalls being informed of the judicial review process, and relatively soon after the rejection of his second request for Ministerial intervention. Ms Heuzenroeder made the overarching submission that given the disadvantage he was under because of his inability to properly understand the legal process, the applicant was engaged to the extent possible for him in seeking appropriate legal advice.
Counsel for the first respondent conceded that the Minister does not claim to have been prejudiced by the length of the delay. However, he submitted that the length of the delay was of itself a material consideration. He submitted that the absence of prejudice was not of itself a determining factor.
Consequences of refusal of application
This consideration can be dealt with briefly. If the application to extent time is refused, the applicant would be prevented from raising his arguments on judicial review and will be liable to be returned to Afghanistan. The consequences of a refusal are obviously very significant to him.
Merits
Counsel for the applicant submitted that the Tribunal acknowledged a submission made on behalf of the applicant that there was an increased risk of persecution arising from the imminent departure of international security forces from Afghanistan, and that this was a integer of the applicant’s claim. The Tribunal further acknowledged that the imminent withdrawal of international forces was relevant to a consideration of the security situation in Afghanistan. Notwithstanding that acknowledgement, Ms Heuzenroeder says that the Tribunal fell into error because it did not make any finding with respect to that integer when reaching its conclusion that the applicant did not have a well-founded fear of persecution in the reasonably foreseeable future. This was a failure to conduct a hearing as it was required to do by s.414 of the Act. The failure to properly conduct a hearing amounts to a failure to exercise jurisdiction and is accordingly a jurisdictional error. Her further contention with respect to the proposed ground one was that the Tribunal did not engage in a sufficiently probative process of reasoning when considering whether there was a real chance that the applicant had a well-founded fear of persecution in the foreseeable future. This was because of the failure to consider the impact of the imminent withdrawal of international forces. This caused the Tribunal to fall into jurisdictional error failing to apply the proper legal test.
Counsel submitted that there was no point in the Decision Record at which the Tribunal appeared to consider the likelihood of risk to the applicant in the foreseeable future as a result of the draw down of international troops.
For the first respondent, Mr d’Assumpcao conceded that the failure to consider an integer of a claim can amount to a jurisdictional error. It was, he submitted, entirely a matter for the Tribunal as to what country information it accepted. There was no obligation, he said, to accept the country information cited by the applicant. In providing reasons for its decision, he submitted that the Tribunal was not required to set out a line by line refutation of every matter raised by an applicant. In this case, he pointed to authority that suggests it is not always necessary for a Tribunal to make a finding on a particular matter because that matter may be subsumed by a finding of greater generality or because the factual premise upon which the submission is based has been rejected by the Tribunal.[14] Mr d’Assumpcao submitted that the Tribunal accepted country information which was the most up to date. The country information that it accepted suggested that Hazaras and Shias were not at any particular risk. It was this finding on a matter of greater generality that obviated the need for the Tribunal to make a finding about the impact of the withdrawal of international troops.
[14] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47].
With respect to the failure to engage in a probative reasoning process, on the issue of the draw down of troops, counsel for the first respondent submitted that such a process was undertaken. He submitted that determining whether there was any objective basis for a person’s fear of persecution was necessary to refer, assess and make findings of fact about the country of nationality at the time the person is likely to be returned there. For that reason, current country information was vital to that process.
Consideration
As I have already noted, the matters to which the Court can properly have regard when considering whether or not to extend time under s.477 are unconfined. Ultimately I must be satisfied that it is in the interests of the administration of justice to grant the extension sought. With respect to the merits of the proposed grounds of application, it is not necessary that an applicant demonstrate to the Court that the proposed grounds will ultimately be successful. What is necessary is that they at least have a reasonable prospect of success.[15] Close consideration must necessarily be given to the merits of the proposed grounds.[16]
[15] SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158; SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389; SZRIQ v Federal Magistrates Court (2013) 139 ALD 252.
[16] Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740.
The discretion to grant or refuse an application to extend time must be exercised judicially.[17] It becomes a question of balancing competing interests. It is a relevant consideration that there is a significant public interest in finalising legal disputes. It is for the applicant to advance a plausible reason for the delay in commencing the proceedings in this matter.[18] Counsel for the first respondent referred me to the following extract from Re Commonwealth of Australia; Ex parte Marks[19] at paragraph 16:
“Independently of the merits of the case, I find it difficult to see how a person who with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.”
[17] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426.
[18] Reaper Ibid at [12].
[19] (2000) 177 ALR 491.
I was further referred to the decision of Gallo v Dawson[20]. In that matter, his Honour Justice McHugh concluded that a case would need to be exceptional before a court would extend time after many months simply because the applicant had not appealed until they have researched the relevant issues.
[20] (1990) 93 ALR 479.
I have referred to the authorities above not because the length of the delay is of itself conclusive. Rather, they underscore the need for the applicant to provide an adequate explanation for that delay. It has been observed that an important consideration with respect to delay is the public interest in there being an end to litigation and the efficacy of acts and decisions of public bodies and officials.[21] I have given weight to this consideration.
[21] Applicant M221/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 45 at [19].
I am not satisfied that the applicant has provided an adequate explanation for the length of the delay in this matter. The length of the delay is very substantial. The significant gap in time between having been advised by his solicitor of the Tribunal’s decision and approaching the migration agent, Ms Hogarth, is not adequately explained by the applicant’s assertion that he followed the guidance of and left decisions to others. That may well be the case, but of course at the time that he learned of the Tribunal decision, he was represented by the solicitors who appeared for him at the Tribunal hearing. If he did not understand what the processes were, or his options for a review of the Tribunal’s decision, it was incumbent upon him to make enquiries. He had demonstrated that he recognised the importance of legal advice by engaging solicitors to assist with his visa application.
Further, the applicant does not explain at what point he sought to make enquiries about obtaining advice with respect to his case. Having engaged Ms Hogarth, he elected to pursue Ministerial intervention under s.417 rather than apply for judicial review and seek an extension of time. In making the election to pursue that course, the applicant made a practical decision. In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs[22] Weinberg J in refusing leave to appeal the decision of the primary judge, Goldberg J[23] who had refused an application to extend time in which to seek constitutional writs, at paragraph 7, referred to a long line of authority that establishes that embarking on such a course, “should properly be characterised as an indication that the applicant accepted that the Tribunal’s decision was correct, and that he did not intend to challenge that decision further in the court.”
[22] [2004] FCA 395.
[23] (2004) 205 ALR 198.
This question was also dealt with by Davies J in MZZYC v Minister for Immigration and Border Protection[24] where his Honour noted:
“The request for ministerial intervention was an alternative course of action taken by him in lieu of pursuing his appeal rights and a conscious decision on his part not to pursue his appeal rights … It was only after the request for ministerial intervention was refused that he took steps to seek to appeal the decision of the FCC. … That course of action was not consistent with an intent to pursue appeal rights and contests the correctness of the FCC decision.”
[24] [2015] FCA 1426 at [4].
In this matter, the applicant made the election to pursue Ministerial intervention on two occasions.
The affidavit of Ms Hogarth is of little assistance to the Court, providing merely a chronology of when certain actions were taken and no detail as to any discussions she may have had with the applicant in July 2014, when she realised that he was out of time to apply for judicial review.
I am not persuaded by the submission made on behalf of the applicant that I can attach any significance to the fact that over half of the 31 months in which he was out of time was occasioned by, and on the advice of, the migration agent to pursue applications for Ministerial intervention. Ms Heuzenroeder referred the Court to the decision of Graham J in SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs[25] to the effect that electing to pursue Ministerial intervention should not of itself prevent giving an extension of time. In that matter, Graham J distinguished the judgment of Goldberg J in Daniel’s case. His Honour Justice Graham was faced with an application for an extension of time in circumstances where the Minister conceded that the Tribunal’s decision had been effected by jurisdictional error and that of a kind not previously the subject of any reported decision. That matter was clearly relevant to the interests of the administration of justice. It appears that was an important distinction drawn by Graham J on the facts of SZGNO. I am satisfied that SZGNO is confined to its own facts. I am fortified in this view by the decision of the Full Court of the Federal Court in M211 of 2003 v Refugee Review Tribunal and Another.[26]
[25] [2005] FCA 1816.
[26] (2004) 212 ALR 520 at [16]-[24].
With respect to the decision of Wilcox J in Gararth & Ors v Minister for Immigration and Multicultural and Indigenous Affairs[27] which was also referred to in submissions by the applicant’s counsel, the judge concluded that an election to seek the intervention of the Minister rather than appeal was nonetheless a clear indication that the appellant was unwilling to accept the Tribunal’s decision as a resolution of their rights.[28] His Honour found that it was not unreasonable for the appellants to hold off any legal challenge to the MRT decision until they had received a decision from the Minister. It does not appear that his Honour was referred to the decision in Daniel’s case or M211 of 2003.
[27] (2006) 91 ALD 790.
[28] Ibid at [64].
With respect to the opinion expressed by Mr McInerney, I give that limited weight. He saw the applicant on a single occasion over 2 years after the Tribunal decision had been made. I am not satisfied that his opinion adds a great deal to the applicant’s explanation. The fact remains that at the time he was informed of the Tribunal’s decision, the applicant was in contact with a solicitor. Subsequent to that time, of his own volition, the applicant made enquiries as to who he should consult with in order to challenge the Tribunal’s decision. He then contacted a person to assist him to do that.
I have taken into account the fact that a refusal to extend time in this matter will have a significant impact on the applicant. This is one factor to be balanced against the others, including the length of the delay, and the merits of his proposed grounds.
With respect to the merits of the proposed application for judicial review, I am not satisfied that either ground of review has reasonable prospects of success. I accept the submission of the first respondent that the Tribunal made a finding of greater generality with respect to the position of Hazara Shias and that this rendered making a specific finding with respect to the likely impact of the withdrawal of international forces unnecessary. I am not satisfied that the proposed argument that the Tribunal did not engage in a probative reasoning process, or that it misapplied or misconstrued the relevant test, has reasonable prospects of success.
Accordingly, I am not satisfied that it is in the interests of justice to extend time in which to make the application for judicial review.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 22 November 2016
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