CQZ15 v Minister for Immigration and Border Protection

[2017] FCCA 130

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQZ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 130

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – MZAFZ type error – whether Tribunal’s decision was legally unreasonable.

Legislation:
Migration Act 1958, ss.438, 477

Cases cited:
CQZ15 v Minister for Immigration & Anor [2016] FCCA 2788
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Applicant: CQZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2742 of 2015

Judgment of: Judge Riley

Hearing date: 20 October 2016

Date of last submission: 20 October 2016

Delivered at: Melbourne

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the applicant: Lisa De Ferrari

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The time for the filing of the application to this court be extended to 11 December 2015.

2. The decision of the Administrative Appeals Tribunal handed down on 15 October 2015 in matter number 1315134 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4. The first respondent pay the applicant’s costs of the proceeding, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2742 of 2015

CQZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time in which to file an application seeking review of a decision made by the Administrative Appeals Tribunal.  In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is a citizen of Iran.  He claimed to fear persecution on the grounds of actual and imputed political opinion, religion (or lack thereof), having left Iran illegally, and membership of particular social groups consisting of people who fail to adhere to strict Islamic mores or who are westernised, or who are failed asylum seekers. 

Extension of time application

1. The Tribunal’s decision was made on 15 October 2015. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision.  The application to this court was not filed until 11 December 2015.  Consequently, the application was 22 days late.  The Minister did not oppose the extension of time being granted.

2. Under s.477(2) of the Migration Act 1958, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.

3. In considering whether to grant an extension of time, the court must consider:

   a)the length of the delay;

   b)the reasons for the delay;

   c)the prejudice to the parties of the grant or refusal of an extension of time;

   d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and

   e)the merits of the substantive application.

4. As stated, the delay was 22 days.  The applicant explained that he assumed that he had 35 days from the day when he received the decision of the Tribunal from his lawyer.  He also said that he tried contacting Victoria Legal Aid many times, after which he filed the application without the benefit of legal representation.  The Minister did not point to any prejudice to him if an extension of time were granted.  The applicant, as an asylum seeker, would obviously suffer significant prejudice if an extension of time were not granted.  There is obviously a public interest in litigation concerning the decisions of public bodies being finalised quickly, though as stated, the delay was only 22 days, and the delays in the court lists make a delay of that length seem miniscule.  For the reasons discussed below, there is considerable merit in the substantive application.

5. Weighing all these matters, I consider that it is necessary in the interests of the administration of justice to grant an extension of time in this case.

6. The registrar, who listed the matter for final hearing, appears not to have been aware of the extension of time issue.  In any event, if the court granted an extension of time, the parties were content for the matter to be dealt with on a final basis.

Preliminary issue

1. A preliminary issue was an objection to an affidavit affirmed by Vincenzo Murano on 12 October 2016 and filed by the Minister on 12 October 2016. That affidavit, I was told, exhibited two certificates issued by the Secretary of the Minister’s department under s.438 of the Act. The Tribunal did not disclose those certificates to the applicant. The Minister conceded that the first s.438 certificate was invalid (because it purported to rely on public interest immunity for certain documents on the basis that they were internal working documents) but maintained that the second s.438 certificate was valid. The applicant argued that the second s.438 certificate was invalid as well. For the reasons set out in CQZ15 v Minister for Immigration & Anor [2016] FCCA 2788, the affidavit affirmed by Mr Murano was not read by the court and was not admitted into evidence.

Grounds 1, 2 and 3 of the application for review

1. The first, second and third grounds of review in the application filed on 11 December 2015 and amended on 15 September 2016 all concern the s.438 certificates. The three grounds are as follows:

   1.The Tribunal’s decision is vitiated by reason of the Tribunal having proceeded on an invalid certificate.

   Particulars

   (a)On 7 October 2013, a delegate of the Minister certified, purportedly for the purpose of s 438(1)(a) of the Migration Act 1958 (the Act), in respect of ‘information in folios 146-151 of file number CLF2012/237990’ (the first s 438 certificate).

   (b)The certification in the first s 438 certificate, that ‘disclosure of this information would be contrary to the public interest because’ those folios contained ‘specific information relating to the department’s document examination process and internal workings of the department’, was not according to law.

   (c)The Tribunal had before it the Department’s file in respect of the applicant, which contained folios 146-151.

   (d)The Tribunal had regard to the evidence before it, which included the Department's file. (By way of example, see [22] of the Tribunal's reasons.)

   2.In addition and/or alternatively to ground 1, breach of procedural fairness.

   Particulars

   (a)The Tribunal did not disclose the existence of the first s 438 certificate to the applicant.

   3.A separate, further breach of procedural fairness.

   Particulars

   (a)On 12 February 2015, a delegate of the Minister certified, purportedly for the purpose of s 438(1)(b) of the Act, in respect of ‘information provided to DIAC as an allegation relevant to file number CLF2012/237990’ said to have been given to the Minister (or an officer of his Department) ‘in confidence’ (the second s 438 certificate).

   (b)The Tribunal did not disclose the existence of the second s 438 certificate to the applicant.

2. This matter is relevantly indistinguishable from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, at least insofar as the first s.438 certificate is concerned. The Minister did not seek special leave to appeal from that decision. However, the Minister formally submitted in the present proceeding that MZAFZ was wrongly decided.  Clearly, MZAFZ is binding on this court. 

3. The Minister also argued in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, at least implicitly, that MZAFZ was wrongly decided.  However, the Full Court of the Federal Court held otherwise.  The Minister has filed a special leave application in Singh, which is yet to be determined.  The Minister submitted that this court should await the outcome of the special leave application and, if special leave is granted, the appeal to the High Court.  The applicant argued that the court was obliged to deal with this matter as the law now stands.  I consider that it is appropriate to determine this matter on the basis of the authorities as they presently stand.

4. For the reasons explained in MZAFZ and Singh, the present matter must be remitted to the Tribunal for redetermination.

Ground 4 of the application for review

1. The fourth ground of review in the application filed on 11 December 2015 and amended on 15 September 2016 is:

   4.The Tribunal’s decision is vitiated by fact-finding that is objectively unreasonable.

   Particulars

   (a)The Tribunal accepted that:

   ·       the applicant had not known his older brother’s whereabouts for some years;

   ·       the brother had at some point been prevented from leaving Iran; and

   ·       the brother was being detained by the Iranian authorities at Evin Prison.

   (b)Evin Prison is notorious as a place where the Iranian authorities hold and punish political prisoners.

   (c)There was nothing inherently ‘improbable’ about the applicant’s evidence regarding why it was that he did not know whether his older brother had been charged with any offence. (Nor did the Tribunal find it ‘improbable’.) Many regimes hold suspected political opponents, sometimes for very long periods of time, without ever charging them.

   (d)The finding that the applicant’s claim (his older brother was being held because of his political opinion) was ‘speculative’ is unreasonable.

   (e)The finding that the ‘speculative’ claim detracted from credibility is unreasonable.

   (f)The finding that there was not a real chance the applicant would be imputed with political opinion against the government, or seriously harmed, by reason of his relationship with his brother, is unreasonable.

2. This ground concerns the following passage from the Tribunal’s reasons for decision:

   78.The applicant claimed at hearing that his older brother was in prison because of his political opinion.  Asked when this happened he said they had no news of him for a long time and thought he might have left the country but they had recently discovered he is in Evin Prison.  As his brother lived with their mother when their parents separated he didn’t have much contact with him but he thought it was around five years he had been missing.  The applicant said once long ago his brother tried to leave the country to go to Turkey because he had political problems from Khatami’s election but he wasn’t allowed to leave.  He thought this was about ten years ago.

   79.Asked how they had found out his brother was in prison he said his mother bribed people to find out; he did not know who as he didn’t get much explanation from her.  They don’t know how long he has been in prison or how long he will be there or whether he has been charged with any offence.  So far his mother has only seen his brother twice.  The Tribunal accepts it is possible the applicant may not have known his older brother’s whereabouts for some years, that his brother may at some point have been prevented from leaving Iran and even that his brother is in Evin Prison.  However in view of the applicant’s claim that he didn’t know whether his brother had been charged with any offence, the Tribunal considers the claim that his brother was in prison because of his political opinion is speculative and unsupported and the Tribunal finds this detracts from the credibility of this claim.  On the limited and speculative evidence before it the Tribunal does not accept that the applicant’s older brother is being held in Evin Prison as a political prisoner.

   …

   88.As the Tribunal has found the applicant’s brother is not being held in Evin Prison as a political prisoner it follows that the Tribunal finds there is not a real chance the applicant would be imputed with a political opinion against the government or seriously harmed for reason of his relationship to his brother.  For the same reason the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to a receiving country there is a real risk he would suffer significant harm for reason of his relationship to his brother.

3. The applicant argued that the Tribunal’s rejection of the applicant’s claim that his brother was being held in Evin Prison as a political prisoner was objectively unreasonable.  That argument was based in part on evidence given in the applicant’s written submissions to this court at [21] that:

   Evin Prison is a brutal, infamous prison, with many documented cases of executions, torture and inhuman treatment, and a notorious prison for punishing political dissidents in Iran.[1]

   [1] See eg the evidence and reports available from the Iran Human Rights Documentation Centre, (footnote in applicant’s written submissions)

4. The Minister argued that the applicant was not permitted to rely on that evidence because it was not before the Tribunal.  I accept that argument.

5. The Tribunal accepted at paragraph 79 of its reasons for decision that it was possible that the applicant’s brother was a prisoner in Evin Prison.  There does not appear to have been any evidence before the Tribunal, or this court, for that matter, that all prisoners at Evin Prison are political prisoners. 

6. The applicant’s claim that claim that his brother was a political prisoner was based on “limited and speculative evidence”.  It was open to the Tribunal to characterise the evidence in that way.

7. Additionally, the Tribunal did not rely on the “limited and speculative evidence” about the applicant’s brother to doubt the applicant’s credibility overall.  Rather, the Tribunal only relied on the fact that the evidence in support of the applicant’s claim that his brother was a political prisoner was “limited and speculative” to not accept the claim that the applicant’s brother was a political prisoner.  That was entirely reasonable.  This matter does not approach the level of legal unreasonableness discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18.

8. This ground is without substance.

Conclusion

1. For the reasons discussed above, the matter will be remitted to the Tribunal for determination according to law.  The Minister will be required to pay the applicant’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 30 January 2017