CRQ16 v Minister for Immigration

[2018] FCCA 2876

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRQ16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2876

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant them Protection visas – applicants need a 22 month extension of time under s.477(2) of the Migration Act 1958 (Cth) to make their application to this Court – no reasonable or adequate explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438, 476, 477

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Bechara v Bates [2018] FCA 460

BUD17 v Minister for Home Affairs [2018] FCAFC 140

BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483

Minister for Immigration & Citizenship v MZYZA [2013] FCA 572

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

First Applicant: CRQ16

Second Applicant: CRR16

Third Applicant: CRS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2554 of 2016

Judgment of: Judge Dowdy

Hearing date: 3 October 2018

Delivered at: Sydney

Delivered on: 3 October 2018

REPRESENTATION

Counsel for the Applicants: Mr P. Bodisco of Counsel

Solicitors for the Applicants: Weighbridge Lawyers

Counsel for the First Respondent: Ms K. Evans

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Grant leave to the Applicants to file and rely upon the Further Amended Application dated 3 October 2018.

2. Order the First and Second Applicants to pay the First Respondent’s costs of and incidental to the filing of the Further Amended Application, including any costs of the preparation for the hearing on the basis of the earlier Amended Application.

3. The Further Amended Application filed in Court on 3 October 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

4. The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $8,000, that sum being inclusive of the earlier costs order that the First and Second Applicants pay the First Respondent’s costs thrown away by the filing of the Further Amended Application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2554 of 2016

CRQ16

First Applicant

CRR16

Second Applicant

CRS16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Adjournment Application

1. In this matter, which has been set down for hearing for some considerable time, Mr Bodisco of Counsel, who regularly appears in this Court, has appeared for the Applicants on short notice. That has caused him some difficulty and he has seen a refinement of the argument that he wants to put on behalf of his clients from what was in the Amended Application, which was originally to be heard today. I have already given him leave to file a Further Amended Application which raises an argument concerning s.438 of the Migration Act 1958 (Cth) (the Act) and the certificate issued in this case purportedly under that section (s.438 certificate) which Ms Evans, who appears for the Minister, concedes is invalid.

2. Having obtained the right to file and rely upon the Further Amended Application, Mr Bodisco seeks an adjournment because of a pending decision in the High Court of Australia in which case he in fact appeared and which, he tells me, is likely to give final and definitive guidance in the area of law relating to s.438 of the Act and the number of cases since the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (MZAFZ) which have considered s.438.

3. It is the case that Judges in this Court and in the Federal Court regularly adjourn or make special arrangements in terms of the hearing of a case where a point which is relevant to the case under consideration will be dealt with in a judgment pending in the High Court in the reasonably near future. 

4. However, in this case I think that there is a reasonably well settled body of law which is binding on me, exemplified by judgments both of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and, in those circumstances, this matter, having been set down a long time ago, and with me as a Judge being personally booked out until early 2020, it is highly undesirable and not in the interests of justice, doing justice between the parties, and also having regard to the workload of this Court, to adjourn this hearing and then for me to have to displace or make alternative arrangements for the further hearing of this case.  Accordingly, I decline to adjourn the hearing.

Substantive Application

1. The First Applicant in this proceeding is a male citizen of Indonesia aged 45 years, having been born on 7 March 1973. He is of Chinese ethnicity and is the litigation guardian of his son, the Third Applicant, pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) for the purposes of this proceeding.

2. The Second Applicant is a female citizen of Indonesia, also of Chinese ethnicity, aged 37 years, having been born on 12 November 1980, and the wife of the First Applicant and the mother of the Third Applicant. 

3. The Third Applicant is a male child citizen of Indonesia, aged 9 years, having been born in Australia on 11 May 2009.

4. By Application filed in this Court on 21 September 2016, they (collectively the Applicants) sought: 

   a)an extension of time of some 22 months, or one year and 10 months, under s.477(2) of the Act outside the time limit prescribed by s.477(1) for them to make their substantive applications for judicial review to this Court under s.476(1); and

   b)to quash and have re-determined the decision of the second respondent, the Administrative Appeals Tribunal (at time of decision the Refugee Review Tribunal) (Tribunal) dated 16 October 2014, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 January 2014, refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)). 

5. That original Application filed in this Court was succeeded by an Amended Application filed on 5 January 2017, and then by the Further Amended Application filed in Court today.

Background

1. The primary Applicant, the First Applicant in this proceeding, arrived in Australia lawfully on 11 November 2007 as the holder of a Student (Vocational Education and Training) Subclass 572 visa (Student visa).  He was issued with a second Student visa on 17 December 2007, which ceased on 15 March 2010.  He was then granted a further Student visa on 7 April 2010, ceasing on 5 October 2011, and then a fourth Student visa on 5 October 2011, which ceased on 30 October 2013.  However, on 11 July 2013, he applied for the Protection visa through the agency of his registered migration agent and solicitor, Mr Sam Issa. 

2. The Second and Third Applicants applied at the same time as dependant applicants who were members of the First Applicant’s family unit and who made no independent protection claims in their own right.  The Second Applicant had come to Australia with the First Applicant on 11 November 2007 as the dependant applicant holder of a Student visa. 

Initial claims for protection

1. In his statutory declaration declared on 9 July 2013 (statutory declaration), the First Applicant claimed, in substance, as follows: 

   a)he was of Chinese ethnicity and born a Buddhist, but converted to Christianity in the year 2000 and was baptised in May 2005 whilst in Japan; 

   b)his wife is also of Chinese ethnicity and was born a Buddhist and converted to Christianity and baptised at the same time as himself; 

   c)his parents continue to practise the Buddhist faith; 

   d)his usual occupation is as an international student; 

   e)he was currently studying for a Diploma in Tourism at Academies Australia in Sydney; 

   f)he currently attended a Christian Pentecostal Church at Ultimo in Sydney on a regular basis, where the pastor was the Pastor Agus Gunawan; 

   g)his family is Buddhist; 

   h)he fears harm in Indonesia from Muslims and local authorities; and

   i)he wishes to preach the gospel, but could not do so to the Muslim community in Indonesia and he and his wife could not effectively practise and adhere to Christianity in Indonesia. 

2. I note that since his initial arrival in Australia, the First Applicant has returned to Indonesia twice to visit his elderly mother, namely, in 2011 and 2012.  Consistent with his claim to be an international student, the First Applicant stated in his Protection visa application form that he spoke, read and wrote the English language to an average standard.  It is important to note that there was no claim in his statutory declaration that he had been raised by a Muslim uncle and practised Islam with this uncle and his friends and was threatened and then attacked by his uncle and other Muslims in Indonesia because of his conversion to Christianity, and that he had to flee Indonesia to go to the United States, Japan and then Australia because of this threatened harm.  This claim was made later and its omission from the statutory declaration was a factor in the decision of the Tribunal coming to and making adverse credibility findings, as further dealt with below. 

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ..... 

Decision of Delegate

1. The First and Second Applicants attended an interview with the Delegate on 15 January 2014.  On 14 January 2014 Mr Issa had sent a supporting letter from Pastor Gunawan dated 10 July 2013 (Pastor’s first letter).  In his Decision Record the Delegate noted that the First Applicant said at interview that his father and mother had divorced when he was eight years of age and he had lost contact with his father, and that his maternal uncle became a father figure and encouraged him to convert to Islam.  He did not do so, but could recite parts of the Koran and had practised some aspects of Islam.  The Delegate was concerned that there had been no claim about the Muslim uncle in the statutory declaration.  The Delegate rejected the First Applicant’s claim to have a Muslim uncle who wished to torture, kill or otherwise seek for his conversion to Christianity.

2. The Delegate accepted that the First and Second Applicants had converted to Christianity, but on the other hand did not accept the claim that the First Applicant had a Muslim uncle or that there were any friends of the Muslim uncle who wished to harm him.  The Delegate did not accept that the First Applicant had ever been a Muslim, or that he would be harmed on the basis of being a Muslim apostate or an imputed Muslim apostate.  The Delegate also did not accept that the First and Second Applicants evangelised or proselytised in the past, or that they would proselytise or evangelise to Muslims if they returned to Indonesia.

3. Ultimately, the Delegate refused to grant a Protection visa to the First Applicant under either the Refugees Convention criterion or the complementary protection criterion, and that therefore meant that he also refused to grant Protection visas to the Second and Third Applicants.

Decision of Tribunal

1. On 30 January 2014, the Applicants lodged an application for review of the Delegate’s decision with the Tribunal through Mr Issa.  By letter dated 19 August 2014, the Tribunal set down a hearing before it on 30 September 2014.  By letter of 17 September 2014, Mr Issa asked for an adjournment of that nominated scheduled hearing to allow Pastor Gunawan to appear, as he would be overseas on 30 September 2014.  By letter dated 18 September 2014, the Tribunal indicated that it would not postpone the hearing.  Then, by letter of 29 September 2014, Mr Issa forwarded to the Tribunal four supporting letters and some medical evidence in relation to the mother of the First Applicant.  One of the supporting letters was from Pastor Gunawan and was dated 22 September 2014 (Pastor’s second letter).

2. On 30 September 2014, the Applicants attended the Tribunal hearing to give evidence and present arguments, with Mr Issa and an interpreter in attendance.  In its Decision Record at [8] to [10], the Tribunal recorded the First Applicant’s claims as made at the Tribunal hearing.  They included hat his father had died when he was very young and his uncle had taken custody of him and raised him.  This uncle was a Muslim and the First Applicant regularly attended a mosque and undertook activities for the Muslim religion.  The First Applicant himself had spoken about Islam to Muslim communities.  He was introduced to Christianity in 2000 and in the same year met the Second Applicant.  He then adopted Christianity and abandoned Islam, and this created conflict with his uncle and his uncle’s friends.

3. He was told to return to Islam and that if he did not do so he would be beaten and harmed.  He was attacked and beaten with fists and a piece of wood.  He therefore did not feel safe in Indonesia and so he travelled to the United States in July 2000 and remained there until February 2002.  He then returned to Indonesia because he wanted to marry his wife.  He was again beaten in late 2002 by Muslims.  On a second occasion, the uncle took out a knife to kill him and the First Applicant tried to defend himself and his finger was cut in the process.  He and his wife went to live in Japan in October 2003 as a result of those events and they returned to Indonesia in December 2006 because his mother was very sick.  It was in fear for his safety that the First and Second Applicants left Indonesia and came to Australia.

4. At [11] – [12] of its Decision Record, the Tribunal recorded that the claims made at the hearing had not been made in and were inconsistent with the claims as made by the First Applicant in his statutory declaration.  At [13] – [14], the Tribunal rejected the First Applicant’s explanation of why the claims that he had made at the hearing had not been made earlier in the statutory declaration and which was to the effect that he intended to give more information when he was interviewed by the Delegate.

5. At [15] – [17] of its Decision Record, the Tribunal recorded further discussion with the First and Second Applicants relating to the omission of significant features of the claims made by the First Applicant at the interview with the Delegate, as compared with the claims made before the Tribunal. At [17] – [18] of its Decision Record the Tribunal recorded that the Second Applicant and Mr Issa had suggested to the Tribunal that this was because the Delegate had truncated the interview and required the Applicants to say just “yes” or “no”, or otherwise the interview would go on for days, and that at the interview the Delegate had been intimidating and had cut off answers.

6. The Tribunal recorded at [18] – [19] of its Decision Record that it had listened to the audio recording of the interview between the Delegate and the Applicants and the Tribunal did not accept that the claims of the Applicants about being cut off were correct. Further, in particular, the Tribunal having listened to the audio recording was of the view that the Delegate had not been intimidating or had cut off questions when the Applicants had been answering them or truncated the interview. 

7. Then from [20] – [23] of its Decision Record the Tribunal dealt with the delay of the Applicants in making application for Protection visas in that they did not apply for Protection visas until they had been in Australia for some five and a half years. 

8. At [24] – [27], the Tribunal dealt with the Applicants having returned to Indonesia on two occasions as being inconsistent with their claims for protection and at [27], the Tribunal recorded its view that it did not believe that the First Applicant would be willing to twice return to Indonesia if he had actually left Indonesia for his safety in 2007 when he claimed that he was not safe anywhere in that country.

9. Then at [28] and [29], the Tribunal set out its adverse credibility findings about the Applicants.  In [28] the Tribunal recorded that it did not find the First Applicant to be a witness of truth and that in so far as the Second Applicant had purported to corroborate his evidence, she also was not a witness of truth.  At [29] the Tribunal recorded its finding that the account of events advanced by the Applicants was false and recorded that it did not believe that the First Applicant was raised as a Muslim, attended a mosque or engaged in activities in support of that religion and that it disbelieved his claims that he had an uncle in Indonesia who had threatened and attacked him. 

10. At [33] – [34], the Tribunal dealt with the First and Second Applicants attendance at church in Australia and at [35] it referred to its original refusal to postpone the hearing to allow Pastor Gunawan to give evidence and I will return to that issue below. 

11. At [38] – [39], the Tribunal also further dealt with the issue about postponement of the Tribunal hearing. From [40] – [49] the Tribunal considered independent country information on Christianity and Chinese ethnicity in Indonesia and then at [50] found that the Applicants were Christians who would attend a church in Indonesia but would not seek to evangelise. In the result, the Tribunal found that none of the applicants were owed protection obligations by Australia and affirmed the Delegate’s adverse decision.

1. The Applicants need an extension of approximately one year and 10 months.  They have sought that extension in their Further Amended Application on the following grounds:

   1.The Tribunal's decision is dated 16 October 2014 and the proceeding is to be filed in this Court now.

   2.The Applicants are not familiar with Australian legal system.

   3.The Applicants have limited English ability - were advised to pursue Ministerial intervention.

   4. The Applicant did not understand any impact of delay.

   5. The delay is relatively explainable.

   6. 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.

   7. There is little or no evidence of prejudice to third party including the respondents.

   8. In all circumstances that it is in the interests of justice that the time for filing be extended.

2. The Applicants rely in support of their extension application on the affidavits of the First Applicant of 20 September 2016 and of 2 October 2018.  I will refer to those affidavits later in this judgment.

Proposed Grounds of Attack on Tribunal Decision in this Court

1. The proposed substantive Grounds in the Further Amended Application are as follows:

   1.The Tribunal has breached section 438 of the Migration Act and/or denied the applicant procedural fairness.

   2.The Tribunal has made a decision that is legally unreasonable.

   Particulars

   In refusing an application to adjourn the hearing and/or to refuse a request by the Applicants for the Tribunal to obtain oral evidence from the Rev Agus Gunawan, the Tribunal made a decision that was unreasonable by:

   i.Misdirecting itself at paragraph [35] of the decision that the letter of 22 September 2014 [“the letter”] was confined to issues of credit as opposed to reflections based on the Pastor’s years of Ministry experiences in Indonesia [See CB 187];

   ii.Misdirecting itself at paragraph [35] of the decision that “any evidence that person gives about the applicants’ commitment to Christianity would be based on representations made to him by them” as opposed to the Pastor’s own observations;

   iii.Having regard to the irrelevant considerations at paragraph [35] of whether the Pastor was “independent” or “in a position to assess their credibility as the Tribunal has been able to do”. 

Consideration of Extension Application

1. In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.  Those factors include:

   a)whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay; 

   b)whether there is any prejudice to the Minister; and

   c)whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.  In relation to the assessment of whether or not the Applicants’ substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”. 

2. The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:

   [17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.

   (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

   (2) The length of the delay is a relevant factor.

   (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.

   (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

   (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

   [18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:

   12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

   (emphasis removed)

3. Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:

   [17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].

4. The extension of time required by the Applicants in this case is a very great one.  I do not consider that the Applicants have given any adequate or reasonable explanation for their delay in approaching this Court either in the affidavits of the First Applicant to which I have referred or in cross-examination at the hearing, when the First Applicant was cross-examined by Ms Evans.  I regret to have to say that I consider that the First Applicant was not in any way attempting to assist the Court by giving frank, full and straightforward evidence when he was cross-examined. It is inconceivable to me that the First Applicant, with the background that I have outlined earlier in this judgment, does not have a reasonable facility with the English language.  However, I gained the firm impression throughout his cross-examination that he was deliberately attempting to minimise his facility in the English language and his capacity to speak it or to read it.

5. After the decision of the Tribunal was sent to the Applicants by way of a letter dated 17 October 2014 to Mr Issa, no application was made to this Court for approximately one year and 10 months. 

6. One of the documents attached with that letter to Mr Issa pointed out that there could be an application for judicial review to this Court for jurisdictional error and that an application for review had to be made within 35 days.  Mr Issa is a well-known migration practitioner in this Court and would have known that anyway.  He regularly appears as solicitor on the record and instructs well-known Counsel in this Court and in the Federal Court of Australia.  It is not conceivable to me that Mr Issa at the time that he received the Tribunal decision record would not have advised the Applicants of their right to seek judicial review.  I would not accept, unless there was independent probative corroborative evidence, the First Applicant’s assertion that he did not get that advice from Mr Issa. 

7. Rather, what the First Applicant said he did was that he went to Pastor Gunawan who assisted him to read the Decision Record and told him the Tribunal had “dismissed our case”. Pastor Gunawan then sent by letter dated 10 November 2014 a request under s.417 of the Act for Ministerial Intervention. That letter refers to the decision of the Refugee Review Tribunal, giving identifying numbers and identifying the name of the Tribunal member and giving the result, being an affirmation of the Delegate’s decision not to grant Protection visas to the Applicants. It is quite clear that Pastor Gunawan knew that the decision had been adverse because in the first paragraph of his request for Ministerial Intervention, he asked the Minister “to substitute a decision more favourable to the applicants”. Pastor Gunawan then says that he had read the decision of the Tribunal. 

8. It is inconceivable to me that Pastor Gunawan also would not have pointed out that it was necessary for the Applicants to make an Application to this Court for judicial review, if they wanted to, within 35 days.  But then there was a letter back to Pastor Gunawan dated 26 November 2014 from the Department of the Minister acknowledging the request for Ministerial Intervention but pointing out:

   Your client should also be aware that the Minister is under no obligation to intervene in their case.  This means that your client should not discontinue any application for judicial review on the expectation that the Minister will intervene. 

9. Ultimately, by letter dated 4 August 2016, an adverse answer was given to the request for Ministerial Intervention and it was only then that the original Application in this Court was filed on 21 September 2016.  I infer on the evidence that the Applicants were content to not make an application in this Court when they knew that they could and should, allowed nearly two years to elapse while they waited for the decision of the Minister and only at that point when they knew, having elected to go down that route, that the Minister had refused to intervene, then to bring an application in this Court. 

10. In other words, I am of the view that on the evidence it ought be inferred on the balance of probabilities that the Applicants deliberately did not bring a claim in this Court for judicial review until their Ministerial intervention request had been dealt with.  I find that the Applicants have not at all given an adequate or reasonable explanation for their very long delay in this case. 

11. However, I now turn to consider whether or not the proposed substantive grounds are reasonably arguable or have reasonable prospects for success.

Consideration

Proposed Ground 1

1. This Ground alleges that there has been a breach of s.438 of the Act. The circumstances in relation to that Ground are as follows. A Delegate of the Minister issued a purported certificate under s.438 dated 21 January 2014, with the document the subject of the certificate being described as “the information in folio/S100 of file number CLF2013/163394”. The Minister through Ms Evans at the hearing concedes that the s.438 certificate is invalid. Folio 100 is a document entitled Interpreter Service Delivery Form. It refers to Ms Lisa Yu, who is a well-known interpreter in this Court. It refers to a job number and the booking of Ms Yu as interpreter for the interview with the Delegate on 15 January 2014. I cannot tell whether it was a document that came into existence before the interview took place or after the interview, but it refers to Ms Yu interpreting in the Indonesian language. It is a completely banal bureaucratic document. There is also in evidence a document entitled Disclosure Decision Checklist, which refers to s.438, and it states that there is a document on file having relevance to s.438 and referring to Folio 100.

2. In my view, Ground 1 is not reasonably arguable, and there are no reasonable prospects for its success in establishing that by reason of the s.438 certificate and the document the subject of the s.438 certificate not having been disclosed to the Applicants previously, that this fact would establish that the decision of the Tribunal is affected by jurisdictional error. The document has got nothing to do with the merits of the Applicants’ review application before the Tribunal. The document is not referred to in the Decision Record of the Tribunal. It could not have affected the decision of the Tribunal and its non-disclosure has not caused any practical injustice to the Applicants.

3. In my view, the Applicants’ proposed Ground 1 would fail in establishing that the decision of the Tribunal is affected by jurisdictional error arising out of the failure to disclose the existence of the s.438 certificate and Folio 100 to the Applicants.

Proposed Ground 2

1. Ground 2 attacks the decision of the Tribunal not to adjourn the scheduled hearing date, and the refusal of a request for the Tribunal to obtain oral evidence from Pastor Gunawan.  In my view, this proposed Ground would also fail to establish jurisdictional error.

2. The first thing to be said is that there were two documents from Pastor Gunawan before the Tribunal, being the Pastor’s first letter and the Pastor’s second letter. It has not been suggested on behalf of the Applicants how or in what way the actual physical presence or appearance of Pastor Gunawan at a Tribunal hearing would have improved or added to the force of the evidence and the statements which he had made in his two letters. It has not been suggested for the Applicants how, if Pastor Gunawan had actually been physically present at a Tribunal hearing, anything different or anything better would have occurred for them. 

3. The Pastor’s first letter and the Pastor’s second letter were dealt with and considered by the Tribunal.  At [33] of its Decision Record, the Tribunal specifically referred to documents submitted to the Tribunal about the First Applicant’s church attendance in Australia.  In the last sentence of [33], the two letters from Pastor Gunawan are referred to. 

4. At [34] the Tribunal stated that it had considered the contents of all the documents submitted, and accepted that the Applicants had attended a church in Sydney.  The Tribunal also accepted that the First Applicant and, to some extent, the Second Applicant had been involved in public preaching in Sydney.  However, because the Tribunal did not consider them to be witnesses of truth, the Tribunal did not consider that it had been established why they engaged in any evangelical activity, and the Tribunal did not accept that this activity had been done out of a genuine conviction that their practice of the Christian faith required it.

5. At the end of [34], the Tribunal recorded its finding that it did not believe that the Applicants would seek to evangelise in Indonesia.  At [35] of its Decision Record, the Tribunal specifically dealt with and recorded the request by Mr Issa to postpone the hearing so that Pastor Gunawan could attend and give evidence of their Christian faith at a later date.  It noted that this had been refused, but that Mr Issa had been allowed to provide a written statement from Pastor Gunawan, which was provided just prior to the Tribunal hearing in the form of the Pastor’s second letter. 

6. At [35] of its Decision Record the Tribunal again recorded that it had considered the letters from Pastor Gunawan.  It then went on to say that the Tribunal would not regard him as “an independent witness”, given that the Applicants were attending Pastor Gunawan’s church and, in any event, that all that the Pastor Gunawan could say about their Christian faith was what largely had been told by the Applicants to him, and that Pastor Gunawan would not be in a position to assess their credibility as the Tribunal had. For these reasons, there was no purpose in postponing or reconvening the hearing to a date when Pastor Gunawan could come and give evidence.

7. At [36], the Tribunal again recorded that it had considered the evidence of Pastor Gunawan and other members of Pastor Gunawan’s church, but recorded its view that it remained of the view that the First and Second Applicants were not witnesses of truth.  Paragraph 36 again recorded the view that the Applicants would not seek to evangelise in Indonesia, or practice their faith beyond church attendance. The Tribunal noted that the Pastor’s second letter had referred to the Applicants being in fear and depression about having to go back to Indonesia, but noted that it did not consider that the First Applicant and the Second Applicant had appeared to be labouring under any form of depression or anxiety, and that they were able to respond to the Tribunal’s questions at the hearing. 

8. Again, there was reference at [38] to Pastor Gunawan.  Mr Issa apparently complained that the Tribunal had not spent enough time with the Applicants in discussing proselytising and preaching matters and had stated that if the Tribunal had doubts of whether or not that they would do so, the hearing could have been adjourned for Pastor Gunawan to come to give evidence about their commitment in this respect.

9. However, at [39] the Tribunal recorded its rejection of these submissions by Mr Issa, and noted that because it considered that the First and Second Applicants were not witnesses of truth, the Tribunal did not believe that they wished to engage in proselytising and preaching in Indonesia, and because it had no doubts in that regard, it saw no purpose in postponing the hearing or reconvening it to take oral evidence from Pastor Gunawan. 

10. Insofar as the Pastor’s second letter gave first hand evidence of the problems of evangelising in Indonesia to Muslims, the Tribunal at [44] relied on independent country information that there were 22 million Christians living in Indonesia, and that the risk of them suffering serious harm for being Christians and attending church services was remote, and that, in any event, the First Applicant and the Second Applicant would not wish to evangelise and publicly preach in Indonesia and, accordingly, expressly recorded that it had preferred that independent country information, rather than the general claims about Christian churches and Christians themselves being attacked as made by the Applicants and Pastor Gunawan in his Pastor’s second letter: in this respect see [34], [36] – [37], [39] and [44] of the Decision Record of the Tribunal.

11. The simple fact of the matter is this: 

    a)Pastor Gunawan gave evidence by reason of his two letters to the Tribunal, and the Tribunal clearly considered and had regard to that evidence; 

    b)there has been no submission and no evidence to illustrate or to show how or in what way, if Pastor Gunawan had actually attended at the hearing, the position of the Applicants would have been any different or the Tribunal could have possibly come to a different view. 

12. Further, if by not having heard or giving itself the opportunity of hearing from Pastor Gunawan, the Tribunal is to be taken as failing to consider evidence from him, that does not necessarily amount to a failure to properly consider the claims of the Applicants. It is not in every case that when an administrative decision-maker ignores relevant material it therefore makes a jurisdictional error. It is necessary that the Tribunal’s failure to have regard to relevant material should affect its exercise or purported exercise of power in the sense of causing it to exceed its authority or power.  Everything depends, in this respect, on the circumstances of the case, including the cogency of the evidentiary material which, it is submitted, has been ignored, and the place of that material in the assessment of the claims of the Applicants. 

1. The evidence that is said to have been ignored, before it can establish or arguably establish jurisdictional error, must be shown to be so “fundamental” or so “important” or so “overwhelming” or of “pivotal importance” as to give rise to jurisdictional error: see generally Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 at [59] – [62] per Tracey J.

2. To similar effect with respect to documents, in BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [65] the Full Court of the Federal Court per Robertson, Steward and Thorley JJ stated:

   [65]The legal consequences flowing from a finding that the Tribunal failed to consider a document, or a critical part of a document, “will depend on the circumstances of the case and the nature of the document”: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]. It is relevant to consider:

   (1)     the cogency of the evidentiary material; and

   (2) the place of that material in the assessment of the review applicant’s claims.

   See: SZRKT at [77], [98], [111], [112] and [122]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [46]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [49]- [50] and [54]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62].

3. In my view, nothing like that could be said of the fact that the Tribunal did not give itself the opportunity to actually hear in person from the Pastor Gunawan.  Obviously, a discretionary decision of the type made by the Tribunal in refusing to adjourn the hearing and allow Pastor Gunawan to give evidence or to reconvene a further hearing after the initial hearing, is a discretionary judgment which must be legally reasonable and must have an intelligible and justifiable underpinning and not be illogical or irrational in the legal sense.

4. In my view, these discretionary decisions of the Tribunal concerning Pastor Gunawan cannot be said to be “illogical” or “irrational” in the legal sense nor do they “lack an intelligible justification”.  Further, in the context of the Tribunal’s reasoning generally, any evidence that could have been given by Pastor Gunawan physically at a Tribunal hearing could not have been so “fundamental” or so “important” or so “overwhelming” or of “pivotal importance” as to give rise to jurisdictional error. 

Conclusion

1. In my view, the proposed substantive Grounds have no reasonable prospects of establishing that the decision of the Tribunal is affected by jurisdictional error. 

2. Accordingly, for two reasons, namely the failure of the Applicants to give a proper explanation why they brought the application so late, together with the fact that their Grounds do not have reasonable prospects for success, I do not consider that it is in the interests of the administration of justice that an extension of time be granted.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  9 October 2018