Cus18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 293
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293
File number(s): PEG 289 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 28 April 2022 Catchwords: MIGRATION – Judicial review – application for an extension of time to file judicial review application – Immigration Assessment Authority Decision – citizen of Bangladesh – claims of Rohingya ethnicity – claim of statelessness – claims that parents born in Burma (Myanmar) – claims of mental health issues – whether proposed grounds of review reasonably arguable
MIGRATION – Duty of Minister to provide certain assistance to applicant for judicial review in detention – where applicant told no assistance could be provided
PRACTICE AND PROCEDURE – Extension of time – factors – where very substantial delay – whether satisfactory explanation for delay – whether prejudice – observations on effect of very substantial delay in relation to consideration of prejudice – whether proposed grounds of review reasonably arguable
Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 5H, 36, 46A, 256, 473CA, 473CB, 473DB, 473DC, 476, 477
Statutory Declarations Act 1959 (Cth)
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1
AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291
BJM15 v Minister for Immigration and Border Protection [2021] FCA 786
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BRE15 v Minister for Immigration [2019] FCCA 1680
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BVA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496; (2016) 70 AAR 413
CWT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588
CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371
Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DNN18 v Minister for Home Affairs & Anor [2018] FCCA 2926
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665
Duwai v Minister for Immigration and Border Protection [2014] FCA 1141
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Le v Minister for Immigration & Ethnic Affairs & Ors (1994) 53 FCR 27
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Citizenship v SZIAI [2009] HCA 38; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646
MZZRO v Minister for Immigration & Anor [2014] FCCA 882
NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99; (2002) 72 ALD 405
NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 22
NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Singh v Minister for Immigration and Border Protection [2016] FCA 108
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZJRV v Minister for Immigration & Citizenship [2008] FCA 298
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
SZQWV v Minister for Immigration and Citizenship [2012] FCA 817
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17
SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214
WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398
Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 30 July 2021 Place: Perth Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Mr V Ghosh Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 289 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) filed 29 May 2018, as amended on 26 October 2020, and as further amended on 22 July 2021, for an extension of time in which to file an application under s 476 of the Migration Act be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 29 May 2018 the applicant, CUS18, filed an extension of time application (“Extension of Time Application”), amended on 26 October 2020, and further amended on 22 July 2021, pursuant to s 477 of the Migration Act 1958 (Cth) (“Migration Act”), seeking an extension of time in which to file an application for judicial review (“Proposed Judicial Review Application”). The Proposed Judicial Review Application seeks review pursuant to s 476 of the Migration Act of a 30 March 2017 decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse CUS18 a Subclass 785 Temporary Protection visa (“Protection Visa”) on 7 December 2016.
At hearing:
(a)the Court Book (“CB”) was marked as Exhibit 1; and
(b)three affidavits were read on behalf of CUS18 (without objection from the Minister), namely:
(i)CUS18’s affidavit affirmed 8 July 2021 comprising 15 paragraphs and relied upon in relation to the proposed grounds of review in the Proposed Judicial Review Application (“CUS18’s Review Affidavit”);
(ii)another CUS18 affidavit affirmed 8 July 2021 comprising 23 paragraphs and relied upon in relation to the Extension of Time Application (“CUS18’s Extension of Time Affidavit”); and
(iii)the affidavit of Ms Carolyn Graydon, the Principal Solicitor at the Asylum Seeker Resource Centre, the solicitors for CUS18, filed 26 October 2020 annexing a transcript of a 30 November 2016 interview between CUS18 and an officer of the Minister’s Department (“Graydon Affidavit” and “Protection Visa Interview Transcript” respectively).
BACKGROUND AND PROCEDURAL HISTORY
The background to this matter is as follows:
(a)CUS18 is a citizen of Bangladesh who entered Australia at Christmas Island on 16 June 2013 as an unauthorised maritime arrival: CB 58, 65 and 132;
(b)on 22 April 2016 CUS18 was advised that the Minister had lifted the statutory bar under s 46A of the Migration Act to allow CUS18 to make an application for a Protection Visa: CB 28-29;
(c)on 25 August 2016 CUS18 lodged a Protection Visa application: CB 44-92;
(d)on 30 November 2016 CUS18 attended an interview to discuss his Protection Visa application and claims for protection: CB 106-108;
(e)on 7 December 2016 the Delegate’s Decision was to refuse to grant CUS18 a Protection Visa: CB 132-146;
(f)following the Delegate’s Decision the matter was referred to the Authority in accordance with s 473CA of the Migration Act;
(g)on 12 December 2016 the Authority sent to CUS18 an acknowledgement of the referral in accordance with s 473CA of the Migration Act, and a copy of the Authority’s Practice Direction: CB 149-161;
(h)CUS18 provided to the Authority on 16 March 2017 a letter of support from the Centre for Asylum Seekers, Refugees and Detainees Inc (“CARAD”) and a letter in Bengali: CB 163-164, and subsequently on 30 March 2017 provided to the Authority a translation of that letter: CB 180-183; and
(i)on 30 March 2017 the Authority Decision affirmed the Delegate’s Decision: CB 188-199.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)was satisfied that Bangladesh was CUS18’s receiving country for the purposes of its review: CB 190 at [7];
(b)made adverse credibility findings against CUS18 as a result of various inconsistencies in CUS18’s evidence, including the evidence provided at his entry interview, his subsequent interview in September 2013 with his immigration detention case manager, his written claims in August 2016 and his claims in a November 2016 interview;
(c)noted the information that CUS18 provided at his entry interview that he then retracted at his interview with the case manager, including information about whether he had been charged with murder in Bangladesh and his travel to Malaysia: CB 191 at [11]. The Authority considered CUS18’s reasons for the “contradictory claims”: CB 192 at [12] including that:
(i)when he travelled to Australia by boat, he did not eat or drink anything and his mental condition was very poor, and someone told him to say things he said at his entry interview: CB 192 at [12]. The Authority observed that CUS18’s entry interview commenced when he had been in Australia for some 17 days, and he did not claim to be unwell at that time until now: CB 192 at [13]; and
(ii)his time in immigration detention had affected his mental health: CB 192 at [12]. The Authority found that CUS18 had not provided medical evidence to substantiate his mental health problems (or physical health problems): CB 192 at [13], and that CUS18’s alleged health and state of mind could not explain the extent of the inconsistencies in CUS18’s claims: CB 192 at [14];
(d)ultimately accepted that CUS18 provided false claims at his entry interview regarding his entry into Malaysia and the alleged murder charges: CB 192 at [13];
(e)concluded that CUS18 departed Bangladesh lawfully in 2006 and then entered Malaysia on a tourist visa and remained in Malaysia until he travelled to Australia (in 2013): CB 193 at [16];
(f)noted inconsistencies between CUS18’s evidence in relation to his family, including in relation to whether he was married, how many children he had, and whether his family members had been killed: CB 192 at [11] and [14], and did not accept that CUS18’s wife, children and mother were killed or that the whereabouts of his other family members was unknown to him: CB 193 at [16];
(g)did not accept that CUS18 was the child of refugees from Burma (or Myanmar as it is now generally known), or that he was subjected to harassment or mistreatment on this basis, and observed that CUS18 stated that his ethnicity was Bangladeshi and did not refer to a distinct ethnic dimension which could explain why his family suffered from mistreatment, nor did he provide an explanation as to how his parents acquired citizenship in Bangladesh if they were stateless persons born in Burma: CB 192-193 at [15];
(h)did not accept that CUS18 or his family were ever subjected to mistreatment by the Bangladesh National Party (“BNP”) or Jamaat e-Islami (“JI”), and whilst it considered country information in relation to political violence in Bangladesh and acknowledged that violence does occur between supporters of various political parties, found that CUS18 did not provide any specific reasons why his support for local political groups was so sought after, and why his refusal resulted in frequent attacks upon himself, the burning of his father’s shop, and the death of his wife and two children in 2015: CB 192-193 at [15]-[16];
(i)did not accept that CUS18 would face a real chance of serious harm or a real risk of significant harm by reason of being perceived as a stateless person and the child of refugees from Burma, from the BNP or JI for refusing to join their parties, or for any other reason: CB 193 at [16];
(j)was not satisfied that CUS18 would face harm as the result of having sought asylum in Australia or as a consequence of a Departmental data breach in 2014: CB 193 at [16]; and
(k)considered the complementary protection criterion and was not satisfied that CUS18 would face a real risk of significant harm upon return to Bangladesh: CB 194 at [20].
EXTENSION OF TIME APPLICATION
Requirements
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants the Extension of Time Application pursuant to s 477(2) of the Migration Act.
The Court may order an extension of the prescribed 35-day period to seek judicial review of the Authority Decision if:
(a)an extension of time application is made in writing specifying why it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(a); and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(b).
Application in writing – specifying why
The Extension of Time Application filed includes an application in writing for an extension of time, and the following grounds (taken from the further amended Extension of Time Application filed 22 July 2021):
1.There are reasonable reasons for the delay which are set out in the accompanying affidavit.
2. There is no prejudice to the Respondents.
3. The impact on the applicant weighs in favour of granting an extension.
4. It is in the interests of justice to grant the extension.
CUS18’s Extension of Time Affidavit sets out the evidence relied on by CUS18 in relation to the Extension of Time Application.
In the above circumstances it was not in dispute at hearing that s 477(2)(a) of the Migration Act had been satisfied.
Whether in the interests of the administration of justice
Law
In considering the law with respect to whether it is in the interests of the administration of justice to extend time in which to make an application for judicial review under the Migration Act regard must be had to the High Court judgments in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), which, in summary, provide as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
(b)
the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period:
Brisbane South Regional Health AuthorityCLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
With the above statements of principle in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act are well-established, but not closed, and can be summarised as follows:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)whether the grounds of the Proposed Judicial Review Application are reasonably arguable,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Delay
In this case there is a very substantial delay of 390 days. The delay itself is more than eleven times the existing limitation period, and an extension of time, if granted, would extend the period granted to CUS18 in which to file to 425 days, whereas the limitation period under s 477(1) of the Migration Act is 35 days. As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and “[i]n all but very exceptional cases”, the limitation period should be “rigidly applied”: see too BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 (“BJM15”) at [41] per Colvin J; WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (“WQRJ”) at [30] per Derrington J. In the Court’s view, for reasons set out below in relation to both the explanation for the delay (at [14]-[42] below) and the merits of the Proposed Judicial Review Application (at [46]-[79]) there is nothing “exceptional”, or obviously exceptional, in the circumstances of CUS18’s case.
In any event, this is a case in which the delay in bringing the Proposed Judicial Review Application weighs significantly and heavily against granting the Extension of Time Application, and is so very substantial that, of itself, it is probably sufficient for the Court to exercise its discretion to dismiss the Extension of Time Application (absent an exceptional case).
Explanation for the delay
CUS18 sought to explain the delay by reference to the following:
(a)CUS18 was in immigration detention: Transcript, p 4;
(b)CUS18 was unrepresented at the time of the Authority Decision and subsequently did not receive legal advice until May 2018: Transcript, p 4;
(c)CUS18 had not been in the community and had no contacts to assist him to access legal support and apply for review of the Authority Decision: Transcript, p 4; and
(d)CUS18 was isolated within detention and had not been able to access legal support and did not speak to a lawyer until May 2018: Transcript, p 4,
and relied generally upon the content of CUS18’s Extension of Time Affidavit.
In CUS18’s Extension of Time Affidavit (on which he was not cross-examined), CUS18 said as follows:
(a)at all relevant times he was detained at the Yongah Hill Immigration Detention Centre (“Yongah Hill IDC”): at [5];
(b)he does not recall the date upon which he was given the Authority Decision by an officer at the Yongah Hill IDC, but recalls that an officer gave him the letter, which was many pages in length, and he does not remember any explanation having been provided to him at that time: at [6];
(c)he opened the letter but did not understand what it said as it was written in English, except for a small part in Bengali, but he could not understand many of the words used in the Bengali part: at [7];
(d)he assumed it was a negative decision because he did not see any visa in the envelope: at [8];
(e)he had no legal representation before the Authority, and no one to explain to him the meaning of the Authority Decision, or what his future options were: at [9];
(f)he showed the letter to another detainee who was from Bangladesh: at [10], who told him that he “was right, it was a letter from the … [Authority] rejecting my case”, and told him that there were “lots of reasons” for the rejection, but did not tell him the details or explain to him what he could now do concerning the rejection: at [11];
(g)that he “kept the letter in my room and I did not know what to do about it. I was a loner and did not socialise with other detainees or participate in detention centre activities. I did not have any good friends in detention. I just kept to myself. I did not have anyone I could ask for help”: at [12];
(h)after receiving the Authority Decision he felt “totally crushed and hopeless”, and he had already been in detention for four years and did not have a visa. He was also feeling “very depressed” due to news that he had previously received about his family in Bangladesh, and he had also received news about same time as he received the Authority Decision that a cousin in Malaysia had been beaten up and was in hospital, and that he remembered “thinking at that time that this must also be the end for me”: at [13];
(i)he had stopped eating and drinking for 45 days from mid December 2015 until the first week of February 2016 after hearing the news that his family had been killed and he felt that could not go on living in detention: at [14];
(j)since February 2016 he has suffered from painful constipation and indigestion issues which he says were causing him “a lot of pain” around the time that he received the Authority Decision. He also “suffered from depression, insomnia, anxiety, back pain and I had problems with my eyes. Both my physical and mental health very poor throughout this period and this made it more difficult for me to take any kind of action for myself. I felt lost. I did not know how to keep moving, let alone how to seek help for my legal problem. I had no energy and I felt totally hopeless”: at [14];
(k)he does “not remember exactly when but around two or three months after I was given the … [Authority Decision] an immigration officer came to see me. She said that my application had been refused and she asked me what my plan was. I said I did not know what to do and had no plan. The officer said that if I wanted to stay in Australia I would need to go to the court, or else I would be sent back to Bangladesh. … I asked the officer if she could help me with the court process or tell me where I could get help. The officer said she could not help me with any information about that”: at [15] (emphasis added);
(l)over subsequent months there were several more occasions on which officers came to see him in relation to sending him back to Bangladesh: at [16]-[17];
(m)in early May 2018 he was given an appointment slip by a Serco officer for an appointment next day of which he was previously unaware, but when he answered the phone in the interview room at the time of the appointment a person who said they were a lawyer introduced themselves, but he does not know the lawyer’s name or organisation the lawyer was from, and is not sure who told the lawyer to call: at [18];
(n)the lawyer explained to him that if he wanted to stay in Australia he needed to apply to review the Authority Decision, and when he told the lawyer that he did not know how to do that, the lawyer told him that the lawyer could provide him with the form but could not help him to fill it out or provide it to the Court, and that after his appointment a guard gave him a form which he assumes the lawyer sent through to the Yongah Hill IDC with a request that it be passed on to him: at [19]; and
(o)he did not know how to fill out the form, but eventually obtained assistance from a new detainee with a Bangladeshi background (in exchange for a payment of five packets of cigarettes), and when he had completed the form he gave it to a guard to send to the Court, but there was a problem which needed to be fixed before the form could be accepted, and the same detainee assisted him (in exchange for further payment in cigarettes) and he understands that the form was sent by the guard to the Court: at [22]-[23].
It can be inferred that the “form” referred to above is the Extension of Time Application filed in this Court on 29 May 2018.
Generally, “the longer the delay the more persuasive the explanation needs to be”: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J; see also Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ. Unwarrantable delay in the absence of any acceptable explanation may be a sufficient reason alone to deny the grant of discretionary relief: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57] and [61] per Bromwich J; WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214 at [42] per Judge Lucev. Further, with such a very substantial delay, CUS18’s “case would need to be exceptional” before the time for commencing proceedings would be extended: Marks at [13] (see too at [16]) per McHugh J, citing Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479; ALJR at 459 per McHugh J.
The effect of delay in a case concerning prerogative relief from the decision of an administrative decision-maker was commented upon by the High Court in Marks at [16] per McHugh J in the following terms (emphasis added):
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. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, ‘[t]he rules of court must prima facie be obeyed’. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.”
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [5]-[6] per Flick J. In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”) the Federal Court observed that:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the … Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. …
This passage from SZSDA has been applied on many occasions over many years in this Court: see, by way of example, MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [34] per Judge Jones; MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F. Turner; WZAWB v Minister for Immigration & Anor [2016] FCA 1345; (2016) 309 FLR 398 at [92] per Judge Lucev; DNN18 v Minister for Home Affairs & Anor [2018] FCCA 2926 at [27] per Judge Driver; CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371 at [22] per Judge Kendall.
It is well-established that an applicant has the onus of making proper inquiries as to any applicable time limit and of taking any reasonable action to ascertain whether the relevant decision can be challenged: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J; SZSDA at [38] per Foster J; Duwai v Minister for Immigration and Border Protection [2014] FCA 1141 at [7] per Edmonds J.
The fact that CUS18 was in immigration detention, and not in the community, is not sufficient of itself to explain any delay. Nor is the fact that CUS18 did not have access to legal advice of itself sufficient to explain any delay. It may be trite to observe that the majority of applicants in migration judicial review proceedings in this Court are self-represented, and many of them are, or have been, in immigration detention, but they still make their judicial review applications within the prescribed time limit. In refusing an application for an extension of time in which to appeal the Full Court of the Federal Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [38] per Yates, Wheelahan and O’Bryan JJ said that:
38.… the circumstances referred to by the applicant as his explanation for the delay are unexceptional in that they involve matters (including lack of legal representation) that are shared by many litigants in this Court in the migration jurisdiction.
The Court observes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev, although the Court may, particularly where the delay is short and no injustice is done to the Minister, take into consideration the fact that a person is self-represented, does not speak English (or English as a first language), does not have a lawyer to assist them, and is in immigration detention: BQQ15 at [33] per Yates, Wheelahan and O’Bryan JJ; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J. This is not, it must be observed, a case of short delay, but a case of an extraordinarily long delay.
One matter which must be addressed arising out of CUS18 having been in immigration detention during the period of the delay is his evidence that he was told by an “immigration officer” that she was unable to help CUS18 with any information concerning the Court process in relation to reviewing the Authority Decision or telling CUS18 where he could get help in that regard: see [15(k)] above.
Section 256 of the Migration Act provides as follows:
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
In SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 (“SZSPI”) at [16] per Allsop CJ, Mansfield and Besanko JJ, in circumstances where the applicant had already been involuntarily removed from Australia, the Full Court of the Federal Court observed that:
16.It was accepted by the Minister, correctly in our view, that the affording of “all reasonable facilities” in s 256 incorporated having a reasonable time for doing the things referred to in that section. The statutory duty in s 256 thus effectively amounts to an entitlement of a detainee such as the applicant to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation.
The above view was reiterated in SZSPI at [37] and [40] per Allsop CJ, Mansfield and Besanko JJ.
In the context of being given a reasonable time to obtain legal or take proceedings preventing removal the Full Court of the Federal Court further observed that “in many cases, a person in immigration detention may not speak English, at all, or with any great facility, and may well be a stranger to the Australian legal system”: SZSPI at [37] and [40] per Allsop CJ, Mansfield and Besanko JJ, and then said at SZSPI at [41] and [45]-[46] per Allsop CJ, Mansfield and Besanko JJ as follows:
41.The Department’s policy identifies a usual period of seven days’ notice, which would generally be at least five working days. Further, a reasonable opportunity presupposes the knowledge of the person that she or he can seek injunctive relief to prevent deportation until her or his case is disposed of. It is of little use to have a telephone available for five days if the person does not know that she or he is entitled to approach the Court for an order to prevent her or his removal.
…
45.We are not prepared to conclude positively that this applicant had the full benefit of s 256 of the Act. Whilst he appears to have been informed on a number of occasions of the Department’s unwillingness to regard his application for an extension of time as a matter which would prevent his removal, he was given only three working days to bring an application in relation to the date set for his removal. He did, however, appear to have a lawyer available to him. The assessment of a reasonable time is difficult. Giving seven days (five working days) would have made the assessment easier to make. The case is therefore not without its troubling aspects.
46.As we said above, where it has been demonstrably shown that a person has had a reasonable opportunity to obtain legal advice and injunctive relief if desired, the removal of an applicant from Australia with a subsisting and pending application, such as an application for an extension of time in which to file a notice of appeal, may not raise either questions of contempt, or Constitutional issues concerning the intersection of judicial and executive power to which we have made reference. Such a conclusion would be able to be reached by a Court if it were demonstrated that the person was aware of her or his ability to approach the Court to prevent deportation until disposition of any application and that the person had been given a reasonable opportunity and reasonable facilities to seek advice about and, if desired, make such an application
In Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337 (“Moana”) at [44]-[45] per Allsop CJ the Federal Court (in a subsequent case concerning involuntary removal of a person in immigration detention) observed as follows:
44.Evidently, here was an attempt to heed the content of SZSPI. What must be remembered by all who work in the Department, however, is the seriousness (for them personally) of the possible contempt of the Court by removal from Australia of an applicant in circumstances where the engagement of the protective judicial power of the Commonwealth that has occurred is undermined and stultified by a lack of full and reasonable opportunity to engage the Court. What is a full and reasonable opportunity is not susceptible to rules and simple (or complex) bureaucratic procedures. It will depend on the person and his or her circumstances. Nothing in SZSPI said that 7 days’ notice would always be reasonable. Often the people subject of these powers are of limited education, having restricted or little English language, or suffering other disadvantage, perhaps physical or mental illness. I have no evidence of the applicant’s background and circumstances other than his New Zealand heritage. The letter or notice given to him by Ms Lacorcia gave him the wrong court to contact. The “reasonable facilities” for the purposes of s 256 should at least include means of communication to the correct court and information that would assist him in approaching the duty judge of the correct court. The applicant had lodged an application with the Federal Court to extend time on 27 July 2018, but he was told he should apply to the Federal Circuit Court for an injunction. I cannot say whether this misleading information impeded him.
45.No one in the Department should consider 7 days’ notice to be necessarily adequate to bring on an urgent application, without an understanding of the personal circumstances of the person concerned. Reasonable facilities for the taking of legal proceedings should include clear and correct information as to how to approach the duty judge of the Federal Court of Australia in the relevant Registry, to restrain removal pending the resolution of the case. That matter and any opposition can then be brought on urgently.
The more recent Federal Court cases concerning s 256 of the Migration Act have involved removal from Australia of persons in immigration detention. Earlier cases in the Federal Court, which have not been referred to in the more recent cases, were not limited to the circumstances of removal of a person in immigration detention.
In Le v Minister for Immigration & Ethnic Affairs & Ors (1994) 53 FCR 27 (“Le”) the Federal Cour had before it an application to direct the Minister to bring two children in custody at the Port Hedland Immigration Detention Centre to a suitable place in Sydney and provide them with reasonable facilities to enable them to meet their next friend and legal advisers and prepare for a hearing in the Federal Court in relation to a review of the Minister’s decision to refuse to accord them refugee status. In the course of delivering a judgment which directed the transfer of the two children concerned the Federal Court, having referred to the relevant Second Reading Speech with respect to s 256 of the Migration Act, went on to observe: Le at 33 per Sheppard J, that:
33. Those remarks establish that the intention of the section was to confer a right on a person in custody to be accorded all reasonable facilities for obtaining legal advice and taking legal proceedings. That is how the section should be construed.
In NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1587; (2002) 126 FCR 99; (2002) 72 ALD 405 (“NAFC”) the Federal Court held that an apprehension of breach of duty cannot derogate from the Minister’s power to transfer a person in immigration detention to another detention centre, because the duty under s 256 of the Migration Act exists wherever the person is detained: at [24] per Beaumont J, and observed that s.256 of the Migration Act “is a free-standing guarantee which must be given its own effect, wherever the detainee is held”: at [24] and [53] per Beaumont J. In NAFC at [47]-[48] per Beaumont J the Federal Court observed that:
47.The key element in the provisions of s 256, in my opinion, is the concept of “reasonable facilities”. It appears that these words were intended to have their ordinary meaning. The primary dictionary definition of “facility” is “something that makes possible the easier performance of any action”.
48.The appropriate dictionary definition of “reasonable” appears to be “not excessive”, as in “reasonable terms” (Macquarie Dictionary 3rd ed); or “within the limits of reason; not greatly more or less than might be thought likely or appropriate” (The New Shorter Oxford English Dictionary). As Gaudron J observed in an analogous context (Slivak v Lurgi (Australia) Pty Ltd (2001) 177 ALR 585 (at [53])) these are ordinary words bearing their ordinary meaning, and the question “requires no more than a making of a value judgment in the light of all the facts”.
NAFC was appealed but nothing said on the appeal affects the view expressed at first instance: see NAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 22.
In BRE15 v Minister for Immigration [2019] FCCA 1680 (“BRE15”) the question arose as to whether it was in the interests of justice to waive compliance with a requirement under Rules of Court to file an affidavit explaining delay on an application under s 477(2) of the Migration Act to extend time in migration judicial review proceedings: BRE15 at [13(a)] and [22] per Judge Lucev, and to instead permit reliance upon a letter explaining the delay sent to the Court by the applicant from immigration detention. The circumstances in the letter raised issues with respect to the duty under s 256 of the Migration Act, in relation to which the Court observed as follows in BRE15 at [36] per Judge Lucev:
36.The requirement, or free-standing guarantee as it was described in NAFC, that the applicant be afforded “all reasonable facilities” in relation to the taking of legal proceedings in relation to the applicant’s immigration detention, is in mandatory terms – “shall” – and is all-encompassing in relation to the provision of reasonable facilities – “all reasonable facilities”. It would not be in the interests of justice if the acts of the Minister’s employees or agents responsible for the supervision of the applicant in detention acted, advertently or inadvertently, in a manner which may have prevented, contributed to, or resulted in, the applicant not filing the Proposed Judicial Review Application on time in circumstances where there may be reason to doubt that the applicant has been afforded “all reasonable facilities” in relation to the taking of legal proceedings whilst in immigration detention. In light of the meaning accorded to s.256 of the Migration Act the interests of justice require that everything should be done by those responsible for an applicant whilst in detention to enable an applicant to utilise all reasonable facilities to make an application on time.
In BRE15 at [37] per Judge Lucev the Federal Circuit Court therefore held that, in the circumstances, the applicant was entitled to rely upon the letter of explanation.
In this case the unchallenged evidence is that CUS18 was sought out and told by an “immigration officer” (and it does not matter for present purposes whether that person was an employee of the Minister’s Department or an employee of a contractor engaged to assist with the management of persons in immigration detention) that he would need to go to court if he wished to stay in Australia, but when CUS18 asked the “immigration officer” for assistance with the court process or where he might go to get help with that process, CUS18 was told by the “immigration officer” that “she could not help with any information about that”: see [15(k)] above.
The response of the “immigration officer” is, frankly, both remarkable and unhelpful. Implicit within the terms of CUS18’s request is a request to be afforded reasonable facilities to enable him to obtain legal advice or take legal proceedings. It might have been suggested to CUS18 that arrangements might have been made to afford him access to a computer, a telephone and an interpreter to research or make inquiries about what might be done. Alternatively, the “immigration officer” might simply have found out the telephone number for the Legal Aid Commission of Western Australia, given it to CUS18 and allowed him access to a telephone to make such enquiries as he saw fit. But neither was done, and nor was anything else done, by the “immigration officer”, and in those circumstances the duty under s 256 of the Migration Act was not complied with. In the circumstances it has to be asked whether the conduct of the “immigration officer” was such as to have “brought about the delay”: Marks at [16] per McHugh J.
The immediate answer as to whether the delay was brought about by the conduct of the “immigration officer” is “no”. That is because it is evident that at the time of the conduct of the “immigration officer”, that is two to three months after CUS18 received the Authority Decision: see [15(b)] above, there is no evidence that CUS18 had given any thought to making a judicial review application, and the time limitation under s 477(1) of the Migration Act would have already expired, by a period of approximately 25 to 55 days. Thus, even if advice had been given by the “immigration officer” which resulted in the Proposed Judicial Review Application being filed forthwith, delay would still have been an issue to be explained, and in that regard it is pertinent to observe that, apart, potentially, from medical issues discussed below, there is no adequate reason pointed to for the delay to that point in time.
What then happened poses a significant difficulty for CUS18 in terms of explaining the delay. Despite knowing, at least, that a “court” had to be approached for him to stay in Australia, CUS18 did nothing to advance his case for at least a further 10 months. There is no evidence of any thought of applying, or any enquiry with any person, lawyer or court, about whether he could apply for judicial review of the Authority Decision. This is despite the fact that in the following months there were several more occasions on which officers came to see him concerning returning to Bangladesh: see [15(l)] above. There is no evidence that CUS18 raised the possibility of reviewing the Authority Decision (or at least going to “court” to remain in Australia) with any of those officers on any of those several occasions. This period of approximately 300 days subsequent to CUDS18’s discussion with the “immigration officer” is itself about eight and a half times longer than the 35 day limitation period. And then, when in early May 2018 CUS18 had a telephone call with a lawyer, it seems it was a call which he did not arrange and about which he knew nothing. Subject to what is said below concerning medical issues there is no adequate reason pointed to for the delay in the months after CUS18’s discussion with the “immigration officer”.
The ultimate answer as to whether the delay was brought about by the conduct of the “immigration officer” is “no”: rather there was an already not insignificant unexplained delay at the time of the conduct of the “immigration officer”, and even allowing for some delay as a consequence of the “advice” given by the “immigration officer”, there is still a very substantial unexplained delay thereafter.
The necessity for there to be appropriate medical evidence concerning the effect of any alleged medical issues upon a person’s capacity to deal with or engage in the litigation concerned and before any indulgence (such as an extension of time or adjournment) can be granted is well-established: NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [4]-[10] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [47]–[50] and [52] per Collier, Griffiths and Mortimer JJ; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J; AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 at [19] per Lee J; Zangmo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1744 at [18]-[20] per Judge Lucev.
CUS18 has had the same lawyers appearing for him since 26 October 2020, and in the eight months between then and the hearing on 30 July 2021 there were six affidavits filed on his behalf (the last on the day before the hearing). Although CUS18 asserts that he suffers from a number of medical conditions, and that he did so at about the time that he would have been required to file a judicial review application, and for some time thereafter, there is, remarkably, no professional medical evidence, on Affidavit or in the CB, as to the alleged medical conditions, their effects, or the period for which CUS18 suffered from some or all of the alleged medical conditions, and in particular there is no professional medical evidence as it relates to the period from the time of the Authority Decision on 30 March 2017 to the filing of the Extension of Time Application on 29 May 2018. In the absence of such evidence the Court is not prepared to find that CUS18 had a medical condition or conditions which would have affected his capacity to file a judicial review application within the prescribed time. Further, there is no medical evidence, or other reliable evidence, which would enable the Court to find that CUS18 had a medical condition or conditions which might adequately explain either the initial delay up to the time of the “advice” from the “immigration officer” or the still very substantial delay thereafter.
CUS18’s delay of 390 days is very substantial, indeed “extreme” if regard is had to the observations of the Federal Court in WQRJ at [29] per Derrington J, and for the reasons set out at [14]–[41] above has not been satisfactorily explained, and the failure to satisfactorily explain weighs significantly against the grant under s 477(2) of the Migration Act of such a very substantial extension of time.
Prejudice
The Minister submitted that no prejudice would be suffered by him if CUS18 is granted an extension of time, but that “the mere absence of prejudice does not justify the extension”: Hunter Valley Developments Pty Ltd v Cohen FCR 344 at 348-349 per Wilcox J.
On the basis of the Minister’s submission the Court will treat prejudice as a factor which is neutral in the assessment of the Extension of Time Application. The Court does so in circumstances where, but for the Minister’s submission, and where based on usual principles in relation to extension of time applications, there may have been some prejudice to the Minister because the Minister had lost a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation under s 477(1) of the Migration Act: Marks at [17] per McHugh J. As the Court observed in WZAWB at [109] per Judge Lucev:
44. There must be some prejudice arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the application. In traditional terms, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his. In those circumstances, there is additional prejudice by reason of the costs incurred as a consequence of this application.
Not dissimilar observations to those made by the Court in WZAWB were made by the Federal Court in WQRJ at [41]-[44] per Derrington J.
Whether grounds of the Proposed Judicial Review Application are reasonably arguable
Law
If leave to extend time were granted the Authority Decision may be set aside on judicial review on the basis of jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In determining whether the grounds of the Proposed Judicial Review Application are reasonably arguable it is not necessary for CUS18 to positively establish that the Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice, or the interests of justice, to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J.
In determining whether the grounds of review are reasonably arguable the Court is only required to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether CUS18 would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ). The merits of the Proposed Judicial Review Application may be assessed “in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516; (1998) 72 ALJR 819; (1998) 153 ALR 276; [1998] Aust Torts Reports 81-469 at [9] per Brennan CJ and McHugh J, recently applied in BJM15 at [45]-[46] per Colvin J and CWT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588 at [15] per O’Bryan J.
Authority Decision
In the Authority Decision the Authority relevantly:
(a)found that CUS18 claimed to be a national of Bangladesh, and at CB 190 at [7] said as follows:
… [CUS18] claims to be a national of Bangladesh and this is not in dispute. … [CUS18] claims that he is a national of no other country and that he has no right to enter and reside in any country. I accept that this is the case and I find that Bangladesh is the applicants receiving country the purpose of this review.
(b)found that CUS18 was not a credible witness, by reason of various inconsistencies in the evidence provided at his entry interview, his subsequent interview in September 2013 with his immigration detention case manager, his written claims in August 2016 and his claims in his November 2016 temporary protection these interview, including his evidence concerning:
(i)his telling his migration agent in 2016 that his wife and child had been killed by a political group: CB 191 at [10];
(ii)false claims in his entry interview concerning having been charged with murder in Bangladesh at a time, January 2012, when the Authority found that he was in Malaysia, and had been so since 2006: CB 192 at [13];
(iii)how many times he had been married, when he had divorced, and whether he remained in contact with his previous wife, which was inconsistent and which “seriously undermined” his credit: CB 192 at [11] and [14]; and
(iv)his parents’ background as refugees and being targeted by JI and BNP, which was unconvincing: CB 192–193 at [15];
(c)considered CUS18’s reasons for making contradictory or inconsistent claims, including:
(i)his claim not to have eaten or drunk anything when travelling by boat to Australia, and to have been in poor mental condition, which he said he was told by someone to say at his entry interview: CB 192 at [12], in relation to which the Authority observed that at the time of his entry interview he had been in Australia for approximately 17 days, and at that time did not claim to be unwell: CB 192 at [13]; and
(ii)that his time in immigration detention had affected his mental health, but in relation to which the Authority found that he had provided no medical evidence of either mental or physical problems, and that his alleged health and state of mind could not explain the extent of the inconsistencies in his evidence: CB 192 at [12]–[14];
(d)found that CUS18’s parents were not refugees from Myanmar, and that CUS18 was a member of the majority Bengali ethnic group: CB 193 at [16];
(e)found that because CUS18 was a member of the majority ethnic group, who departed Bangladesh lawfully, he was not at risk of serious or significant harm on return to Bangladesh: CB 193 at [16];
(f)apart from finding that CUS18 was a Bangladeshi national and a member of Bangladesh’s Sunni Muslim and ethnic Bengali majority, “otherwise rejected … [CUS18’s] claims in their entirety”: CB 193 at [16];
(g)found that CUS18 did not meet the definition of “refugee” in s 5H(1) of the Migration Act, and therefore did not meet the criteria under s 36(2)(a) of the Migration Act: CB 194 at [17]; and
(h)relying on its reasons in relation to the refugee criteria, was not satisfied that CUS18 would face a real chance or real risk of harm on return to Bangladesh for any reason: CB 194 at [20].
The Authority made a critical finding concerning the status and citizenship of CUS18’s parents at CB 192–193 at [15] as follows (footnotes omitted):
Moreover, the applicant’s evidence has not proven convincing. The applicant claims his parents arrived in Bangladesh as stateless refugees from Burma and that they, and he, suffered mistreatment in Bangladesh as a consequence of this. But when asked what his ethnicity was he stated he was Bangladeshi and made no reference to the distinct ethnic dimension that has affected persons displaced from Burma like the Rohingyas, nor did he offer any explanation of how his parents would have been able to acquire citizenship if they were, in fact, originally stateless persons who were born in Burma.
Proposed grounds
The Proposed Judicial Review Application contains three proposed grounds of review, but only proposed grounds 1 and 3 (set out at [52] and [70] below respectively) were relied upon for the purposes of the argument on the Extension of Time Application.
Proposed ground 1
Proposed ground 1 is as follows:
1.The Authority’s finding that the applicant was not a “refugee” within the meaning of s 36(2)(a) of the Migration Act 1958 (Cth) (Act) would not face a real chance of serious or significant harmas the child of stateless refugees was affected by jurisdictional error due to the Authority’s unreasonable failure to consider exercising or alternatively the Authority’s unreasonable failure to exercise its discretion to get new information pursuant to s 473DC of the Act.Particulars
a)The applicant claimed at the SHEV interview and in his statutory declaration that he had faced harm because his parents
familieswere refugees from Myanmar.b)The Authority found the applicant’s family were not from Myanmar given that he had not provided evidence regarding his Rohingya identity and had not explained how his parents had obtained Bangladeshi citizenship.
c)The Authority had the following information regarding the applicant’s parent’s citizenship:
i.Part B of the applicant’s protection visa application recorded that his parents were Bangladeshi citizens;
ii.Part C of the applicant’s protection visa application contained an attachment indicating the applicant’s parents and two older siblings were citizens of “Burma” and born in “Burma”; and
iii. the entry interview recorded that the applicant’s parents and all siblings apart from his eldest sibling were Bangladeshi citizens.
d) At the SHEV interview the applicant’s representative said:
i.the applicant’s instructions that his wife and child had been killed had been recorded in a file note, but not properly been reflected in his protection visa application;
ii.speculated that the omission may have been an error
may have occurreddue to a practice of pre-filling the protection visa application forms based on the entry interview record prior to taking an applicant’s instructions.e)The applicant was not asked in the SHEV interview whether his parents were citizens of Bangladesh, if so how they obtained that citizenship.f)The Authority did not consider whether to exercise s 473DC to get new information from the applicant regarding his parents’ citizenship and ethnicity.
g)The Authority’s failure to consider exercising s 473DC or alternatively the Authority’s failure to exercise s 473DC to get new information from the applicant was legally unreasonable given:
i.the applicant had not been asked how his parents obtained Bangladeshi citizenship;
ii.it was not clear the applicant was claiming his parents were Bangladeshi citizens;
and
iii.the applicant had not been asked at the SHEV interview to describe his knowledge or involvement in the Rohingya community in Bangladesh.
h)The error was material, as had the Authority sought new information there is a realistic possibility the applicant could have provided information that persuaded the Authority that he is a refugee within the meaning of s 5H of the Act because:
i.he had a well-founded fear of persecution in Bangladesh as the child of stateless refugees from Myanmar; or
ii. he was stateless and therefore could not return to Bangladesh.
iii.the applicant had not been asked about how his parent’s obtained citizenship;iv.there was no basis for the Authority to prefer the evidence that the applicant’s parents were Bangladeshi citizens over the evidence they were not;v.there was evidence suggesting the applicant’s representative made omissions errors in the completion of his protection visa application; andvi.the applicant could provide the only the applicant could provide information relating to his parent’s citizenship.CUS18’s submissions
CUS18’s submissions in relation to proposed ground 1 were as follows:
(a)the question of whether an exercise of discretion is legally unreasonable is a question of fact by reference to the statutory scheme. Where there is an absence of reasons for the exercise of discretion, the focus is on whether the outcome is unreasonable: Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [80]–[85] per Hayne, Kiefel, and Bell JJ;
(b)while individual cases on legal unreasonableness are not “binding”: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 (“DPI17”) at [37] per Griffiths and Steward JJ, the following appeal cases provide guidance as to when a failure to exercise or consider exercising the discretion in s 473DC of the Migration Act may be unreasonable:
(i)in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (“CRY16”) the Authority found the visa applicant could reasonably relocate to Beirut within his home country, Lebanon, to avoid significant harm. The Delegate had not raised the issue of relocation with the applicant at interview: CRY16 at [4]–[5] per Robertson, Murphy and Kerr JJ. The Full Court of the Federal Court held that the Authority had “effectively disabled” itself from determining the issue as the reasonableness of relocation is dependent on a visa applicant’s personal particulars, and the visa applicant had no opportunity to provide those particulars. Accordingly, the failure to consider exercising the discretion under s 473DC of the Migration Act was unreasonable: CRY16 at [82]–[83] per Robertson, Murphy and Kerr JJ;
(ii)in DPI17 the applicant claimed to have been sexually assaulted. At the Protection Visa interview the visa applicant’s representative noted inconsistencies in the applicant’s account of the sexual assault. The delegate assured the visa applicant and representative the inconsistences were not an issue. The delegate accepted the applicant had been sexually assaulted. The Authority on review rejected the claim based on inconsistencies. The Authority acted unreasonably in failing to consider exercising the discretion under s 473DC of the Migration Act as – but for the delegate’s assurances – the visa applicant may have provided submissions and evidence to address the inconsistences: DPI17 at [9], [13], [14] and [46]-[47] per Griffiths and Steward JJ;
(iii)in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”) the delegate of the Minister who conducted a face-to-face interview with the visa applicant accepted the applicant’s claim to have been sexually assaulted. The Authority rejected the visa applicant’s claim, in part, because the applicant’s evidence sounded hesitant based on a review of the audio of the interview: ABT17 at [27]–[28] per Kiefel CJ, Bell, Gageler and Keane JJ and [40] - [43] per Nettle J. The majority of the High Court held the Authority was at a disadvantage to the delegate in assessing demeanour, and that the Authority acted unreasonably by departing from the delegate’s finding without exercising its power under s 473DC of the Migration Act to interview the applicant face-to-face: ABT17 at [29]–[31] per Kiefel CJ, Bell, Gageler and Keane JJ;
(iv)the commonality between the three cases is a failure to consider exercising the power under s 473DC of the Migration Act, or a failure to exercise s 473DC of the Migration Act, may be legally unreasonable if the Authority lacks information critical to determining the review that the applicant could provide, as a result of the nature of the administrative processes that preceded the review;
(c)the Authority is not obliged to give reasons for the exercise or non-exercise of the discretion under s 473DC of the Migration Act, and mere failure to refer to s 473DC of the Migration Act does not mean it was not considered: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ;
(d)it can be inferred the Authority did not consider exercising the discretion under s 473DC of the Migration Act because:
(i)the Authority refers to the fact CUS18 had not provided any information regarding how his parents had acquired Bangladeshi citizenship;
(ii)the Authority does not note that the Delegate did not ask CUS18 any questions about how his parents acquired citizenship,
and as the Authority did not identify that CUS18 had not had an opportunity to comment on the gap in the evidence, it is highly unlikely the Authority contemplated exercising the discretion under s 473DC of the Migration Act to enable CUS18 to address the issue; and
(iii)similarly, the Authority did not refer to the family details attachment at all. Therefore, it is unlikely it considered whether to get new information regarding the inconsistency in the Protection Visa application;
(e)the Authority’s reasoning at CB 192-193 at [15] in rejecting CUS18’s claim that his parents were refugees from Burma was prefaced on the assumption CUS18’s parents were citizens of Bangladesh, and he had not provided evidence regarding the Rohingya community. The Authority’s failure to consider exercising, or to exercise, the discretion under s 473DC of the Migration Act was legally unreasonable for three primary reasons:
(i)CUS18 had never been asked to explain how his parents had obtained citizenship, and there was therefore a gap in the evidence: CRY16 at [82] per Robertson, Murphy and Kerr JJ; DPI17 at [47] per Griffiths and Steward JJ;
(ii)given the inconsistency in the Protection Visa application, it was not clear whether CUS18 was claiming his parents were citizens of Bangladesh or not. Only CUS18 could clarify the issue. The Delegate had not asked CUS18 to clarify the issue; and
(iii)CUS18 was not asked in the Protection Visa interview to provide details of the Rohingya community in Burma, or his involvement in the community;
(f)CUS18 could provide information on each issue. It was legally unreasonable for the Authority to proceed to assess the claim where these deficiencies could be rectified. The Authority’s reasons provided no intelligible basis for not attempting to get information from CUS18 to clarify these issues;
(g)there are additional contextual factors which render the Authority’s approach unreasonable:
(i)the Authority was aware of the possibility that CUS18’s Protection Visa application might have, in part, been pre-filled based on the entry interview record – potentially explaining the inconsistency between Part B and the family details attachment;
(ii)the Authority was aware, from its correspondence with the staff at Yongah Hill Immigration Detention Centre, that CUS18 did not have legal representation on review and as such could not be expected to provide detailed instructions; and
(iii)the Authority had not been able to listen to Part 1 of the entry interview in which CUS18 was first recorded as claiming that his parents and siblings were citizens of Bangladesh; and
(h)the error was material to the outcome for the same reasons outlined in relation to ground 3.
Minister’s submissions
In relation to proposed ground 1 the Minister submitted that the Extension of Time Application faces insurmountable hurdles as:
(a)the threshold of legal unreasonableness in relation to the exercise of the discretion under s 473DC of the Migration Act is high;
(b)the extent of the inconsistencies in CUS18’s evidence meant the Authority was entitled to reject aspects of his claims; and
(c)the Authority’s conclusion was based on the parts of CUS18’s evidence that the Authority accepted.
In particular, the Minister submitted that:
(a)CUS18 had to satisfy either the refugee or complementary protection criteria under s 36(2)(a) or (aa) of the Migration Act;
(b)it was for his CUS18 to put forward evidence capable of satisfying the statutory criteria for a Protection Visa: SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 (“SZQVW”) at [21] per Gilmour J, and unless satisfied the criteria had been met the Authority had to affirm the Delegate’s Decision;
(c)CUS18 reverses the starting point by effectively requiring the authority to take steps to inquire into and resolve inconsistencies in CUS18’s evidence and claims;
(d)the fact that the Authority Decision does not expressly state that it considered exercising the discretion under s 473DC of the Migration Act does not necessarily support an inference, without more, that the Authority did not consider doing so: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; BVA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [46] and [50] per Rares, Perry and Charlesworth JJ;
(e)the Authority was aware of the power to seek new information, referring to it in the Authority Decision at CB 189 at [3];
(f)the absence of reference to consideration of the exercise of the discretion under s 473DC of the Migration Act in relation to the issue of CUS18’s parents birthplace does not support inference that the Authority did not consider exercising the discretion;
(g)CUS18’s evidence and claims contained numerous, substantive inconsistencies;
(h)before the Delegate and the Authority CUS18 only ever claimed that he was a citizen of Bangladesh and of Bangladeshi ethnicity;
(i)CUS18’s provided inconsistent information concerning his parents, who were variously asserted to be:
(i)born in Bangladesh;
(ii)Bangladeshi citizens; and
(iii)persons who came to Bangladesh from Burma;
(j)there was no claim by CUS18 before the Delegate or the Authority that he or his parents were of Rohingya ethnicity;
(k)it was in the above context that the Authority at CB 193 at [16]:
(i)concluded that it was not satisfied and did not accept that CUS18 was a child of refugees from Burma, or that he was subjected to harassment or mistreatment on the basis;
(ii)accepted that CUS18 was a Bangladeshi national and a member of Bangladesh’s Sunni Muslim and ethnic Bengali majority; and
(iii)otherwise rejected CUS18’s claims in their entirety;
(l)CUS18’s submissions focus on the failure of the Authority to inquire into how CUS18’s parents obtained citizenship in Bangladesh, despite coming from Burma, but the Authority was under no duty to seek further information of this kind, and did not need to have rebutting evidence to reject CUS18’s claims nor was it required to accept those claims uncritically: SZQWV at [23] per Gilmour J;
(m)the Authority was entitled to reject CUS18’s claims that his parents were stateless persons from Burma, particularly where CUS18’s own materials asserted that his parents were both citizens of Bangladesh, but originally from Burma;
(n)the Authority in substance accepted claims made by CUS18 that he was a Bangladeshi citizen and of Bangladeshi ethnicity, and it was therefore not unreasonable not to seek new information under s 473DC of the Migration Act;
(o)based on numerous inconsistencies in CUS18’s evidence the Authority rejected his claims that he had been subjected to politically or ethnically motivated violence or harassment in Bangladesh, and in circumstances where the Authority was not satisfied that he faced any relevant harm, it was not unreasonable to not seek further information about his parents citizenship or ethnicity;
(p)inconsistencies and deficiencies in CUS18’s own evidence and claims do not, and should not, require the Authority to exercise its discretion under s 473DC of the Migration Act in order to clarify and improve the review application before the Authority;
(q)the possibility of the pre-fill of the Protection Visa application form is speculative, and there is no evidence to that effect; and
(r)the Authority’s inability to listen to the Part One interview is irrelevant in circumstances where the Authority Decision was not based on demeanour, and there is no evidence before the Court to suggest that the written record of either the Part One or Part Two interviews are inaccurate.
Consideration - proposed ground 1
Section 473DC of the Migration Act provides as follows:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
CUS18 asserts that the authority unreasonably failed to exercise or consider exercising its discretion under s 473DC of the Migration Act to obtain new information concerning CUS18’s alleged status as a child of stateless refugees from Burma.
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, in an administrative decision may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ.
Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. In Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ it was observed that:
9. The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per
Allsop CJ; Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
The relevant principles in relation to legal unreasonableness were conveniently summarised by the Federal Court in Pandey at [41] per Wigney J and included the following:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) …
(h) …
(i) …
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Insofar as proposed ground 1 also raises issues of illogicality or irrationality in the Authority Decision the Court observes that:
(a)fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J; and
(b)Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367; (2010) 84 ALJR 369; (2010) 115 ALD 248 (“SZMDS”) sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.
There was significant material before the Authority which indicated that CUS18’s parents were Bangladeshi citizens, and that he was met not therefore the child of stateless refugees from Burma. Indeed CUS18 claimed, on a number of occasions, that both he and his parents were Bangladeshi, see, for example:
(a)in his irregular maritime arrival interview:
(i)having indicated that he was stateless, CUS18 then immediately indicates thereafter that he is a citizen of Bangladesh: CB 4, questions 10 and 11, and then goes on to provide his most recent address “in country of citizenship or in country of residence” as a village in Bangladesh from the date of his birth in 1977 the date is leaving Bangladesh in March 2013: CB 4, question 12;
(ii)provides personal details including his ethnic group, which he says is “Bangladeshi”: CB 4, question 14;
(iii)says that his father’s citizenship is Bangladeshi: CB 7, question 25;
(iv)says that his mother’s citizenship is Bangladeshi: CB 8, question 26;
(v)says that he has never lived for more than one month outside his country of citizenship: CB 18, question 65
(b)in a covering letter dated 24 August 2016 for his Protection Visa application, prepared with the assistance of the Humanitarian Group, it was expressly said at CB 44 that (emphasis in original):
[CUS18] … Is a citizen of Bangladesh and claims that Australia has protection obligations towards him pursuant to the Migration Act 1958.
(c)in his Protection Visa application:
(i)says that his father’s citizenship is Bangladeshi: CB 52, question 4;
(ii)says that his mother’s citizenship is Bangladeshi: CB 52, question 5;
(iii)in response to question 17 “Your citizenship at birth (if none, write “stateless”)” CUS18 wrote “BANGLADESH”: CB 58 (emphasis in original);
(iv)in response to question 20 “Your father’s citizenship” CUS18 wrote “BANGLADESH”: CB 58 (emphasis in original);
(v)in response to question 21 “Your mother’s citizenship” CUS18 wrote “BANGLADESH”: CB 58 (emphasis in original);
(vi)in response to question 32 “ethnic group you belong to” CUS18 wrote “BANGLADESHI”: CB 60 (emphasis in original);
(vii)in response to question 53 provides details, including his name, the number of the passport and its date of expiry, and indicates that the “Country of issue” is “Bangladesh”: CB 66;
(viii)in response to question 97 indicates that he has a scanned copy passport to be provided with the Protection Visa application: CB 79;
(ix)indicates in an attachment that his mother and father are citizens of Burma: CB 82;
(d)in a statutory declaration made pursuant to the Statutory Declarations Act 1959 (Cth) on 8 August 2016 declares as follows:
(i)at CB 86 at [1]:
I am a 39 year old citizen of Bangladessh [sic]. I do not hold any other citizenship’s and to the best of my knowledge, do not have a right to reside in any other country. I was born in … [Name of village and region deleted] in Bangladesh. I am of Bangladeshi ethnicity …
(ii)at CB 86 at [3]:
I have provided a true and accurate account of my identity.
(iii)at CB 86 at [5] says that he had recently sent a letter to the Bangladesh Consulate in Australia asking for verification of his passport based on the scanned copy attached to that request;
(e)in the Protection Visa Interview Transcript at p7 is recorded as saying as follows:
Immigration interviewer: OK. When you arrived in Australia, you stated you were stateless. Why?
Applicant (through a Bengali interpreter): His parent went to Bangladesh from Burma, Myanmar. At that time it was called Burma, long time before. His brother and sister were also born in Burma. He was born in Bangladesh, but as they are refugees from Bangla, sorry, Myanmar, in the society, they are always treated like refugees and not well treated. That is why they are always attacked and assaulted. That is why he was saying he doesn’t have any state.
Immigration interviewer: No, you have a Bangladeshi passport. You are a citizen of Bangladesh.
Applicant (through a Bengali interpreter): Yes, he has a Bangladeshi passport and is a citizen of Bangladesh, but the Bangladeshi people, there the local people, they assault them and attack them, and that is why he says he does not have any state.
Immigration interviewer: What is your ethnicity? Are you Bangladeshi?
Applicant (through a Bengali interpreter): He is saying he is Bangladeshi.
The Authority also observed that CUS18’s evidence in relation to his claims of his parents arrival in Bangladesh as stateless refugees from Burma “has not proved convincing”: CB 192 –193 at [15], and in that context specifically:
(a)referred to the fact that, when asked, CUS18 stated that his ethnicity was Bangladeshi and made no reference to any distinct ethnic dimension arising from his parents displacement from Burma: and
(b)noted that CUS18 did not offer any explanation as to how his parents would have been able to acquire Bangladeshi citizenship if they were in fact originally stateless persons born in Burma: CB 192 – 193 at [15], and in relation to refer to country information indicating that, at least in the case of Rohingya refugees they were not eligible Bangladeshi citizenship, even if born in Bangladesh.
The question of the determination of the citizenship status of CUS18’s parents, to the extent that it was relevant, was a matter for the Authority to determine, giving such weight to the evidence before it as is considered appropriate: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh, and Gummow JJ. It is clear from the extracts from the Authority Decision referred to in the previous paragraph (see also [64] above) that the Authority understood that there was an assertion that CUS18’s parents had arrived in Bangladesh as stateless refugees from Burma, but it is equally clear that this evidence was not considered to be “convincing”: CB 192–193 at [15]. Having regard to the totality of the evidence before the Authority, including the many manifest inconsistencies in that evidence noted by the Authority, and having regard to CUS18’s multiple assertions that his parents were Bangladeshi citizens: see [63] above, the findings made by the Authority in this respect were plainly open to it and precluded any necessity to seek, or to consider seeking, new information from CUS18 in relation to that issue. The Authority did not lack critical information, but rather relied on information provided by CUS18. There was no information gap, but rather merely conflicting evidence which it was the role of the Authority to consider, weigh and determine, as it did.
The Authority had no statutory obligation to undertake further inquiries arising from any conflict in the evidence that CUS18 had provided prior to the referral to the Authority: Minister for Immigration and Citizenship v SZIAI [2009] HCA 38; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, and to the extent that the submissions on behalf of CUS18 suggest to the contrary that suggestion cannot be sustained.
The individual authorities cited by CUS18 – CRY16, DPI17 and ABT17 - are, as was properly conceded in CUS18’s submissions, not binding on this Court in making an assessment of unreasonableness on the information before it in this case: see [53(b)(i)-(iii)] above, but in any event were distinguishable for the reasons set out in the Minister’s submissions, which for present purposes it is unnecessary to repeat.
The assertion made on behalf of CUS18 that some part of the relevant forms were “pre-filled” is entirely speculative and unsupported by any evidence, and need not be considered further.
For the reasons set out at [56]–[68] above, the proposed ground 1 does not give rise to a reasonably arguable case of jurisdictional error in the Authority Decision or by the Authority.
Proposed ground 3
Proposed ground 3 is as follows:
3.The Authority fell into jurisdictional error in finding the applicant was not the child of stateless refugees from Myanmar by:
(A) failing to complete its statutory task and/or consider a mandatory relevant consideration by not considering
material in to reviewthe “review material” under s 473DB(1) of the Act or failing to give proper, genuine, or realistic consideration to the “review material”; and/or(B) considered an irrelevant consideration and/or made a finding that was irrational or not supported by any evidence, and/or lacked a logical and probative basis that the applicant had claimed his parents were citizens of Bangladesh in the SHEV interview.
Particulars
a.The applicant repeats and relies on the particulars at (a) – (c)
(e)for ground 1.b.The attachment to Part C of the applicant’s protection visa application stating that his parents and older siblings were born in Burma and citizens of Burma was part of the “review material”.
c.The Authority’s statutory task required it to consider the review material pursuant to s 473DB.
that consideration must be proper, genuine, and realistic.d.It can be inferred from the Authority’s acceptance that the applicant’s parents were Bangladeshi citizens that the Authority did not consider the attachment to Part C of the applicant’s protection visa application that indicated they were Burmese citizens. Or alternatively, that the Authority did not give the material proper, genuine, or realistic consideration.e.The Authority did not consider the attachment, or give the attachment proper, genuine, or realistic consideration as: the Authority did not refer to the attachment in its reasons; and the Authority assumed the applicant had claimed his parents were Bangladeshi citizens.
f.Further or alternatively, the Authority stated at [9] of its reasons that the applicant had given oral evidence at the SHEV interview that his parents were citizens of Bangladesh.
g.The Authority’s finding at [9] was wrong – the applicant did not say his parents were citizens of Bangladesh in the SHEV interview.
h.The Authority’s finding at [9] was irrational, supported by no evidence, or lacked a logical probative basis, accordingly, the finding was also an irrelevant consideration.
i.The Authority took the finding at [9] into account at [15] is assuming the applicant’s parents were citizens of Bangladesh, and finding the applicant was not the child of stateless refugees from Myanmar.
j.The errors were material as had the Authority correctly understood the applicant had not in the attachment to Part C and/or the interview claimed his parents were citizens of Bangladesh, it may have accepted the applicant’s claim his parents were stateless refugees or sought new information from the applicant pursuant to s 473DC to clarify the facts.
k.If the applicant provided new information, he could have persuaded the Authority that he satisfied the definition of a refugee in s 5H because:
i.he had a well-founded fear of persecution in Bangladesh as the child of stateless refugees from Myanmar; or
ii. he was stateless and therefore could not return to Bangladesh
CUS18’s submissions in relation to proposed ground 3 were as follows:
(a)CUS18’s complaint is the Authority’s understanding that he had claimed his parents were Bangladeshi citizens at [15] is affected by jurisdictional error on two alternative bases:
(i)the Authority failed to consider the family details attachment which indicated his parents were not Bangladeshi citizens; and
(ii)the Authority erroneously found CUS18 said in the Protection Visa interview that his parents had obtained Bangladeshi citizenship,
(b)the Authority’s assumption at [15] that CUS18’s parents were Bangladeshi citizens was contradicted by the family details attachment, which stated they were citizens of Burma;
(c)the family details attachment was part of the “review material”, as material CUS18 provided to the Minister: Migration Act, s 473CB(1)(b). The Authority must pursuant to s 473DB(1) of the Migration Act consider the “review material” in conducting a review under Part 7AA of the Migration Act: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [31] and [35] per Allsop CJ, Markovic and Steward JJ;
(d)the family details attachment was not considered. This can be inferred because:
(i)the Authority made no reference to the attachment in the Authority decision;
(ii)the attachment directly contradicted the Authority’s understanding that CUS18’s parents were Bangladeshi citizens expressed at [9] and [15] of the Authority Decision. If the Authority had considered the attachment, it would be expected to explain why it had rejected the evidence; and
(iii)the Authority identified inconsistencies in CUS18’s evidence in assessing CUS18’s credit. Had the Authority considered the attachment it would be expected to have referred to the inconsistencies between Part B and the family details attachment,
(e)the question of whether a failure to consider material is jurisdictional is a question of gravity and the importance of the material: EVS17 at [35] per Allsop, Markovic and Steward JJ. The family details attachment went directly to the consideration of a claim by CUS18. The Authority rejected CUS18’s claim to fear harm due to his parents being refugees from Burma because of his failure to explain how his parents obtained Bangladeshi citizenship. CUS18’s evidence in the attachment that his parents were not born in Bangladesh was an answer to this adverse finding. Further, the evidence in the attachment was consistent with CUS18’s claim that his family were refugees;
(f)further or alternatively, the Authority Decision at [9] states that CUS18 said “they”, being his parents, became Bangladeshi citizens. The Authority was wrong. CUS18 never said his parents were Bangladeshi citizens at the Protection Visa interview. CUS18 said that he was a Bangladeshi citizen, and that his family were harassed because they were from Burma: Protection Visa Interview Transcript at p7;
(g)the Authority’s finding that CUS18 had claimed at the Protection Visa interview that his parents were Bangladeshi citizens was an error either because it lacked a logical or probative basis: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [83] per McKerracher, Griffiths and Rangiah JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496; (2016) 70 AAR 413 at [40]–[42] per Griffiths, Perry and Bromwich JJ, or was irrational: SZMDS at [128]–[131] per Crennan and Bell JJ), or a matter for which there was no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1, CLR at 355–357 per McHugh, Gummow, Kirby and Hayne JJ, and the error is jurisdictional, because the assumption CUS18’s parents were Bangladeshi citizens was central to rejecting CUS18’s claim to fear harm due to their background;
(h)had the Authority not made one or both of these errors, it would have been aware that based on the review material, it was not clear CUS18 had claimed his parents were citizens of Bangladesh. To the contrary, the family details attachment and evidence in the Protection Visa interview indicated CUS18’s parents were refugees from Burma; and
(i)in these circumstances the Authority could have accepted CUS18’s evidence his parents were from Burma. Alternatively, the Authority may have exercised its powers under s 473DC of the Migration Act to get new information from CUS18 to clarify the facts. Had CUS18 been asked to provide further information, he could have revealed that neither he nor his parents were from Bangladesh: CUS18’s Review Affidavit at [4]-[5]. If the Authority accepted this evidence, CUS18 could have satisfied the refugee criteria on the basis of s 5H(1)(b) of the Migration Act – being a person who could not return to his country of former habitual residence, Bangladesh. Alternatively, if the Authority accepted CUS18’s parents were from Burma, but CUS18 could return to Bangladesh, the Authority could have found CUS18 had a well-founded fear of persecution in Bangladesh as the child of refugees from Burma.
In relation to proposed ground 3 the Minister submitted that it is almost certain to fail because:
(a)the Authority was not required to set out every item or evidence or every inconsistency in the Authority Decision;
(b)no objective basis exists from which it can be inferred that relevant evidence relating to CUS18’s parents’ citizenship was overlooked or misunderstood by the Authority;
(c)the inconsistencies in CUS18’s evidence meant the Authority was entitled to reject the claims that his parents were stateless refugees from Burma; and
(d)proposed ground 3 impermissibly seeks to “discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” and ignores the substantive basis of the Authority Decision: WuShan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh, and Gummow JJ.
More particularly the Minister submitted that:
(a)the Authority considered CUS18’s claims, including his claims that his parents were born in Burma and came to Bangladesh;
(b)the Authority did not expressly refer to the fact that an attachment to Part C of the Protection Visa application stated that CUS18’s parents were Burmese citizens;
(c)the failure to specifically refer to the attachment to Part C of the Protection Visa application does not give rise to an inference that the Authority did not consider it, and, in any event, CUS18 claimed on a number of occasions at his parents were Bangladeshi citizens;
(d)the Authority was entitled to accept the claim that CUS18’s parents were Bangladeshi citizens, particularly in circumstances where CUS18 himself claimed to be of Bangladeshi ethnicity, to hold Bangladeshi citizenship, and where he presented a scan of a Bangladeshi passport;
(e)the Authority was not required to specifically identify every inconsistency in CUS18’s evidence and claims, and particularly so where there were numerous inconsistencies;
(f)CUS18 did not expressly state that his parents were Bangladeshi citizens in the Protection Visa interview, but it may be inferred therefrom that he was saying that his parents, despite being Bangladeshi citizens, were treated like refugees because they were from Burma, and even if CUS18 did not say that his parents were Bangladeshi citizens, he nevertheless claimed his parents were Bangladeshi citizens on numerous other occasions; and
(g)the Authority was therefore entitled to find that CUS18’s parents were Bangladeshi citizens based on all the materials before it.
Consideration - proposed ground 3
It was not necessary for the Authority to refer to every piece of evidence and every contention made by CUS18: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46] per French, Sackville and Healy JJ. In that regard, the Authority was entitled to accept or reject, or give such weight to the evidence proffered as it thought appropriate in all the circumstances: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 (“Tran”) at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J. Further, this Court is not to approach the task of judicial review overzealously in search of error in the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; WAEE at [46]-[47] per French, Sackville and Healy JJ.
In many respects what is said in relation to proposed ground 1 is applicable to proposed ground 3, and for similar reasons, does not establish a reasonably arguable case of jurisdictional error in the Authority Decision or by the Authority. Specifically, however, it cannot be said that the Authority did not consider the review material before: rather, it considered it in some detail and arrived at findings that were open on the evidence, and more particularly on CUS18’s own evidence. Merely because it did not expressly refer to particular items of evidence, something that it was not required to do in any event: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] per McHugh J, does not mean that those items of the evidence were not considered by the Authority. Indeed, in circumstances where, the Authority was plainly aware of, and expressing referred to, CUS18’s claims that his parents arrived in Bangladesh as stateless refugees from Burma: CB 192-193 at [15], the appropriate inference to be drawn is that the Authority did consider the evidence relevant to that issue, including the attachment to Part C of the Protection Visa application and the relevant parts of the Protection Visa Interview Transcript: WAEE at [46]-[47] per French, Sackville and Healy JJ.
It was also open for the Authority to not accept that CUS18 was the child of stateless refugees from Burma, or that he was ever subject to harassment or mistreatment on that basis by the BNP or JI or anyone else, having regard to the significant inconsistencies that the Authority found in CUS18’s evidence: see CB 192-193 at [14]-[16]. In that regard, having set out the many inconsistencies at CB 192-193 at [14]-[16], the Authority concluded that:
Given the inconsistent and unconvincing evidence provided by the applicant regarding his circumstances I am not satisfied and I do not accept that the applicant is the child of refugees from Burma or that he was ever subjected to harassment or mistreatment on this basis … I find that in 2006 the applicant departed Bangladesh lawfully and that he entered Malaysia on a tourist visa, where he remained until he departed Malaysia for Australia. I accept that he is a national of Bangladesh and a member of the country’s Sunni Muslim and ethnic Bengali majority. I otherwise reject the applicant’s claims in their entirety. Given this, I am not satisfied that the applicant would face a real chance of harm upon return to Bangladesh the reasonably perceived as a stateless persons [sic] and the child of refugees from Burma and\or from the BNP or JI for reason of his refusal to join their respective parties or for any other reason. The applicant does not claim to fear harm on return to Bangladesh for any other reason.
The Authority was entitled, as it did, to reject CUS18’s claim that he was the child of stateless refugees from Burma, or that he was ever subject to harassment or mistreatment on that basis by the BNP or JI or anyone else, based on its assessment of his credibility: CB 193 at [16]. Nothing in the findings on credibility, or otherwise, hurdles the high bar necessary to make findings of illogicality, irrationality or unreasonableness: SZMDS, ARG15, CQG15, and the findings on credibility were amply supported by the inconsistencies in the evidence of CUS18.
For the reasons set out at [74]–[77] above, the proposed ground 3 does not give rise to a reasonably arguable case of jurisdictional error in the Authority Decision or by the Authority.
Conclusion – whether proposed grounds of review reasonably arguable
For the reasons set out at [56]-[77] above, the Court has concluded that the proposed grounds of the Proposed Judicial Review Application are not reasonably arguable. It follows that this weighs against the grant of the Extension of Time Application.
CONCLUSION AND ORDER
The Court has concluded that:
(a)the very substantial delay and the lack of a satisfactory explanation as to the delay, are of themselves sufficient to refuse the Extension of Time Application; and
(b)a reasonably impressionistic examination of the proposed grounds of review relied upon for the Extension of Time Application reveal that the Proposed Judicial Review Application lacks sufficient reasonably arguable merit, and that this weighs against the grant of an order extending time under s 477(2) of the Migration Act.
Given that the issue of prejudice is neutral, it follows that the balance of the remaining factors weighs clearly against the Court exercising its discretion to grant the Extension of Time Application. There will therefore be an order dismissing the Extension of Time Application.
Due to the dismissal of the Extension of Time Application, it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 28 April 2022
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