CSC17 v Minister for Immigration
[2018] FCCA 2290
•21 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2290 |
| Catchwords: MIGRATION – Application for judicial review – application for an extension of time – Protection (Class XA) visa – whether the Applicant afforded procedural fairness – whether the Tribunal made the decision not according to law – whether the Tribunal ignored earlier decision in WZATU v Minister for Immigration and Border Protection – whether the Tribunal acted upon invalid s.438 certificates – no procedural unfairness – no jurisdictional error established – no extension of time warranted as there are no reasonable prospects of success – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss. 424A, 424AA, 438, 477(1) |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 |
| Applicant: | CSC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1314 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 April 2018 |
| Date of Last Submission: | 13 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2018 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondents: | Mr Smythe |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 21 June 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1314 of 2017
| CSC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed 21 June 2017, the Applicant seeks an extension of time under s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) within which to seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The decision of the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) Visa (“Visa”).
In considering whether to grant an extension of time, the Court considers:
a)whether there has been a reasonable and adequate explanation for the Applicant’s delay; and
b)whether there is any prejudice to the First Respondent;
c)whether the Applicant’s substantive claim is sufficiently arguable to justify an extension of time[1]
[1] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 [62] – [63] per Mortimer J.
The application to the Court in this proceeding was filed four days out of time. The explanation provided was that the Applicant was only made aware of the Tribunal decision on 15 May 2017 (the application was filed on 20 June 2017).
The Applicant appeared by telephone and relied on written submissions which outlined the grounds of his application and the grounds of review.
The Applicant initially made an application for an adjournment, however, that application was withdrawn.
Background
The relevant facts in this matter have been accurately set out in materials prepared on behalf of the First Respondent and are replicated exactly from [7] – [18] below, with citations omitted:
The Applicant is a citizen of Egypt. On 12 March 2013, the Applicant lodged an application for the Protection visa. The Applicant was represented by a registered migration agent. The Applicant provided a statutory declaration dated 11 March 2013 in support of his claims.
On 26 June 2013, the delegate refused to grant the Applicant the Visa. The delegate, among other things, found that there were significant inconsistencies in the Applicant's evidence and did not believe the Applicant in respect of a number of his claims to fear harm. The delegate also found that the fact that the Applicant did not apply for protection when he was in the USA and France, undermined the credibility of his claims. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant's removal, there is a real risk that he will suffer significant harm if returned to Egypt.
On 2 July 2013, the Applicant applied to the Tribunal for review of the delegate's decision. The Applicant was again represented by a migration agent.
By letter dated 17 July 2013, the Tribunal (‘First Tribunal’) invited the Applicant to appear at a hearing on 29 August 2013 to give evidence and present arguments. That hearing was later rescheduled to
9 September 2013. The Applicant, via his agent, provided lengthy submissions and supporting documents to the Tribunal in support of his claims. On 3 September 2013, the Applicant's representative wrote to the Tribunal confirming that the Applicant would be attending the hearing with his representative and that he would not require an interpreter.
On 11 September 2013, the Tribunal wrote to the Applicant pursuant to s.424A of the Act, inviting the Applicant to comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Following a request for an extension of time, the Applicant provided a response to the Tribunal's letter on 25 September 2013.
On 17 December 2013, the Tribunal affirmed the delegate's decision to refuse to grant the Applicant the Visa (‘First Tribunal decision’).
Following an application for judicial review of the First Tribunal Decision to the Federal Circuit Court, on 7 September 2016, the Court found that the Tribunal's decision was affected by jurisdictional error on the basis that the Applicant was denied procedural fairness in circumstances where the Tribunal required the Applicant to use an Arabic interpreter and give his evidence in Arabic. It found that this may have impeded the Applicant's ability to communicate with the Tribunal: WZATU v Minister for Immigration and Border Protection & Anor [2016] FCCA 2247 (‘WZATU’).
On 16 September 2016, the Applicant wrote to the Tribunal advising that he was withdrawing his previous authorisation to BMA Lawyers.
By letter dated 24 November 2016, the Tribunal invited the Applicant to appear at a hearing to give evidence and present arguments on 22 December 2016, which the Applicant attended.
On 14 December 2016, the Applicant provided further submissions in support of his review application and various attachments.
On 12 May 2017, the Tribunal affirmed the delegate's decision to refuse to grant the Applicant the Visa (the Tribunal decision).
On 21 June 2017, the Applicant applied to this Court for an extension of time within which to apply for judicial review of the Tribunal decision.
Claims of the Applicant
The Applicant claims to fear harm due to alleged political activities of his father and uncle. He claims that he would be perceived as a dissident against the political regime in Egypt because of his relatives’ politics, his atheism and also because of a data breach by the Department of Immigration. He claims also to fear harm upon being returned to Egypt as a failed asylum seeker.
The Applicant claims that he will be detained, tortured and killed by the government if he is returned. He claims to be on Al Mokhabarat’s wanted list. He further claims that Al Salafeyin, described as a religious majority of the current ruling party in Egypt would view him as an instigator against Islam. He claims to fear harm based on his political and social beliefs, involvement with the New Egypt Democratic Movement and involvement with the Al Mokhabarat newspaper. He claims that authorities will be harsher on him because he has paid to leave the country twice and fled to a western country. He claims that the Muslim Brotherhood will not be tolerant of his views and the government will persecute him.[2]
[2] Court Book 760.
Extension of time application
The Applicant’s grounds for an extension of time are extracted from his originating application and are as follows:
1.The Applicant was only made aware of the Tribunal’s decision on 15 May 2017.
2.The Tribunal’s decision was delivered to the Applicant only on 15 May 2017.
3.It’s for the serving of justice to allow the application.
4.The delay is one day and will not prejudice the Respondents.
Grounds of review
The Applicant’s grounds of review are extracted from his originating application and are as follows:
1.The Tribunal did not apply the relevant laws and regulation in considering its decision.
2.The Tribunal did not give the Applicant a chance to comment on any adversaries it’s found on the Applicant’s initial claims.
3.The Tribunal applied irrelevant laws and regulations in considering its decision.
4.The Tribunal made its decision not according to law.
5.The Tribunal ignored the finding of the Federal Circuit Court in first instance.
6.The Tribunal in taking its decision did not serve justice.
7.The Tribunal denied the Applicant procedural fairness.
Consideration
Legal error
Grounds one, three and four are essentially the same ground of review but phrased in differing ways. This ground alleges that the Tribunal made a legal error. The Applicant does not further particularise these grounds. Having regard to the decision, there is no evidence that the Tribunal considered an irrelevant consideration, did not consider a relevant consideration or in any way made its decision not according to law. The Tribunal considered the Applicant’s protection claim correctly according to the criteria under ss.36(2)(a) and 36(2)(aa) of the Act. Grounds one, three and four therefore cannot be made out and should be dismissed.
Opportunity to comment on adverse information
Ground two concerns an inability to respond to any “adversaries” to the Applicant’s case. This presumably refers to adverse information as referred to in s.424A of the Act.
There is no evidence that the Tribunal did not give the Applicant the opportunity to comment on any information adverse to his case. The Applicant was sent a letter, dated 11 September 2013, detailing information that the First Tribunal considered adverse to the Applicant’s claims and invited him to comment.[3] The Applicant responded to this invitation via his representatives on 25 September 2013. The Applicant did not advance any new claims before the Tribunal and the Applicant had already made comment on any information adverse to his claims as invited by the First Tribunal in accordance with s.424A of the Act. As outlined by Wigney J in SZHDY v Minister for Immigration and Citizenship [2007] FCA 1218 at [17]:
[t]he authorities… make it plain that where the RRT has provided particulars of information in compliance with s.424A at an earlier hearing the provision of those particulars will continue to meet the requirements of the section in the event of a rehearing.
[3] Court Book 304.
Accordingly, this ground must be dismissed.
Decision of Federal Circuit Court ignored
Ground five alleges that the Tribunal merely followed the decision of the First Tribunal and ignored the findings of the Federal Circuit Court in relation to the First Tribunal’s decision. The decision of the Federal Circuit Court concerned the First Tribunal incorrectly requiring the Applicant to use an Arabic translator to give evidence. In the circumstances, it was found that the extensive difficulties faced by the Applicant in communicating his claims to the Tribunal through the translator amounted to a denial of procedural fairness.
However, as pointed out by the representative of the First Respondent, no such issue arises in this case. The Applicant was able to appear before the Tribunal and give evidence in English. There is no basis for inferring that the Tribunal ignored the decision of the Federal Circuit Court; the Court only ordered that the decision be remitted and remade and the Tribunal gave thorough consideration to the Applicant’s claims and evidence on remittal. At [33] – [34] and [100] – [102] of its decision, the Tribunal noted the outcome in WZATU and indicated that it would not make negative credibility findings against the Applicant based on the oral evidence he gave before the First Tribunal as the evidence was affected by error.
There is no evidence that the Tribunal did not properly consider the Applicant’s case when remitted or was influenced by the decision of the First Tribunal or acted upon evidence before the First Tribunal. This ground is therefore dismissed.
Non-disclosure certificates
The Applicant alleges a denial of procedural fairness as grounds six and seven of his application. The First Respondent, acting in its capacity as a model litigant, has raised the issue of procedural unfairness due to the existence of non-disclosure certificates issued under s.438 of the Act.
The decisions of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (‘MZAFZ’) and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (‘Singh’) established that a Tribunal will fall into error where it acts upon information covered by a s.438 certificate, the existence of which has not been disclosed to the Applicant. The Applicant seeks to rely on these cases, submitting that the Tribunal has fallen into error and denied him procedural fairness by failing to disclose the existence of two certificates.
The First Respondent concedes that the certificates were invalidly issued and no copies of the certificates were not provided to the Applicant for comment. The First Respondent submits, however, that this did not cause the Applicant any practical injustice.
The case of AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 established that the principles in MZAFZ and Singh do not have any practical application where a Tribunal does not act in reliance of the information contained in the certificates.[4] Having regard to both the information contained within the certificates and the decision of the Tribunal, it cannot be said that the Tribunal has relied on the information. The information covered by the certificates was either irrelevant to the review of the Applicant’s protection claims or, where it had some prima facie relevance, there is no indication that this information that was relied upon by the Tribunal.
[4] AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 [87] – [91].
Further, as explained by the representative for the First Respondent in oral submissions, the documents with information which appeared prima facie relevant were prepared for the purpose of a request to the Minister for Immigration under s.417 of the Act. Section 417 provides that the Minister may intervene and substitute the decision of the Tribunal for their own personal decision, whether the Tribunal has the power to make the substituted decision or not. These documents were prepared to assist the Minister in making a decision to intervene under s.417 and this process is one that is completely separate to the decision processes of the Tribunal. These documents would not bear on the decision making process of the Tribunal and there is no evidence that the Tribunal relied on them in making its decision. No procedural unfairness arises from the failure to disclose the existence or contents of the certificates to the Applicant.
In regards to a broader contention that procedural fairness was not provided to the Applicant, this cannot be accepted. The Applicant has not been able to demonstrate that he was denied procedural fairness by the Tribunal and there is no evidence available that supports a finding that the Tribunal did not comply with its obligations in that respect. Grounds six and seven cannot be sustained and must be dismissed.
Conclusion
In considering the application for an extension of time, whilst the delay is relatively short and no particular prejudice has been pointed to by the First Respondent, in my view, an extension of time is not warranted and the proposed application has no reasonable prospects of success.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 21 August 2018
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