CZJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 18
•20 January 2020
FEDERAL COURT OF AUSTRALIA
CZJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 18
Appeal from: Application for an extension of time: CJZ17 & Ors v Minister for Immigration & Anor [2019] FCCA 495 File number: NSD 776 of 2019 Judge: PERRY J Date of judgment: 20 January 2020 Catchwords: MIGRATION – Application for an extension of time within which to appeal decision of Federal Circuit Court – where appeal would not have reasonable prospects of success – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 27
Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Craig v South Australia (1995) 184 CLR 163
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
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
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Date of hearing: 10 December 2019, 15 January 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Applicants: The First Applicant appeared in person with the assistance of an Interpreter Solicitor for the First Respondent: Mr J C Hutton of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 776 of 2019 BETWEEN: CZJ17
First Applicant
CKA17
Second Applicant
CKB17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
20 JANUARY 2020
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
2.The first and second applicants are to pay the first respondent’s costs in the amount of $3,500.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. INTRODUCTION
This is an application for an extension of time within which to appeal from a decision of the Federal Circuit Court (the FCC). By that decision, the FCC dismissed the applicants’ application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant them protection visas.
The applicants did not file written submissions pursuant to the timetabling orders of the Registrar made on 28 May 2019. The Minister filed and served an outline of submissions on 29 November 2019.
The application was initially listed for hearing at 10.15am on 10 December 2019. At 9.41am that day, the Registry advised that the first applicant (the husband) had notified the Registry that he had been involved in a car accident on his way to attend the hearing and was running late. The hearing was accordingly deferred to commence after 11.30am. At the hearing, the husband, with the assistance of a NAATI Level 3 interpreter in Persian and English, explained that his car had been written off and that he was stressed as a result of the accident (T, 10 December 2019 at p. 3.26-32). The husband requested an adjournment of two weeks to prepare for the hearing. The Minister did not object to the applicants being granted an adjournment (T, 10 December 2019 at p. 4.17). In the circumstances, I made orders adjourning the hearing and setting the application down for hearing at 10.15am on 15 January 2020. I note that the husband was provided with a copy of the Minister’s submissions at this hearing and that they were translated to him by the interpreter.
At the hearing on 10 December 2019, I also made orders permitting the applicants to file and serve any written submissions and further affidavit evidence in support of the application for an extension of time on or before 13 January 2020. The applicants did not file any further submissions or evidence.
The husband attended the hearing on 15 January 2020 and made detailed oral submissions with the assistance of a NAATI Certified Interpreter in Persian and English.
For the reasons set out below, the application for an extension of time must be dismissed.
2. BACKGROUND
2.1 The applicants’ claims
The applicants are citizens of Iran. The second applicant is the first applicant’s wife and the third applicant is their son who is a minor. The applicants applied for protection visas under the Migration Act 1958 (Cth) (the Act) on 17 September 2014. The husband claimed to fear harm if returned to Iran on the basis of his conversion from Islam to Christianity while he was living abroad in 2004. The husband claimed that when he returned to Iran about a decade later, he was arrested and detained for two days, and was required to appear in the Family Court. He said that his ex-wife told the authorities about his conversion to Christianity and that he was required to pay her Mehriyeh, a spousal settlement payment. He also said that he was sent to prison on two occasions and tortured because of his conversion to Christianity. However, he told the authorities that the baptism certificate was fake and denied everything. Following his release, the husband fled Iran with the assistance of a family member and a people smuggler. The husband said that he feared returning to Iran as the authorities would find out that his baptism certificate was in fact genuine, and he would be killed because of his conversion (see FCC reasons at [7]).
The wife and son did not make separate claims in their own right, but applied as members of the same family unit as the husband.
2.2 The Tribunal’s decision
A delegate of the first respondent, the Minister, decided to refuse to grant the applicants protection visas on 10 September 2015. The decision was affirmed by the Tribunal on 12 May 2017. The Tribunal accepted that:
(1)the husband had travelled overseas to country Y from Iran in order to pursue his studies where his application for asylum on the grounds of actual or imputed political opinion was refused (Tribunal reasons at [47]-[48]);
(2)in 2004, there was a conflict between the husband and his first wife, following which the husband was baptised and thereafter sought the assistance of the church to relocate to Canada (Tribunal reasons at [49]); and
(3)shortly thereafter, the first and second applicants married and they moved to a third country, country X, where their son was born. Their application for protection in that country was also refused and they returned to Iran (Tribunal reasons at [49]-[51]).
However, the Tribunal found some aspects of the husband’s evidence to be “evasive, implausible, vague, contradictory and unconvincing”, that he often avoided answering the question, and that there were significant internal inconsistencies in his evidence, as well as inconsistencies between his evidence and that of his wife (Tribunal reasons at [37]). The Tribunal then set out in detail the respects in which it found the husband’s evidence to be deficient with respect to his claims, which were conveniently summarised by the primary judge as follows:
10. The Tribunal made a number of credibility findings about the evidence given by the first applicant. The Tribunal found his evidence to be “evasive, implausible, vague, contradictory and unconvincing” and it found that “[t]here were significant inconsistencies within his evidence and between his evidence and the second named applicant’s evidence”. Specifically, it found that:
a) the first applicant gave varying evidence about documents his first wife purportedly gave to the Iranian Government/Islamic Revolutionary Court and the manner in which she purportedly gave these documents;
b) there were plausibility issues about his wife having a copy of his baptism certificate, because he claimed to be baptised after they separated;
c) the first applicant gave varying evidence about when he attended the Family Court in Iran, including whether it had jurisdiction to deal with his conversion to Christianity, as well as varying evidence about what happened when he appeared before the Islamic Revolutionary Court;
d) the first applicant made new claims about being charged, but not convicted of converting to Christianity;
e) the first applicant’s claims about his detention in Iran were implausible and inconsistent with other evidence about his work and travel; and
f) when it asked the first applicant about his Christianity [the Tribunal] found that his knowledge of the Bible is not consistent with his claims that he had been practicing Christianity since 2004.
11. The Tribunal therefore did not accept that the first applicant’s first wife or her lawyer informed the Iranian authorities that he had converted to Christianity or that he was involved in any political activities. The Tribunal was of the view that the first applicant fabricated these claims for the purpose of strengthening his protection visa application.
12. The Tribunal considered the first applicant’s claims in relation to his conversion to Christianity, including the evidence provided by his supporting witnesses. The Tribunal made its ultimate findings on the first applicant’s claims about his conversion to Christianity under the refugee criterion at [119]-[121] of the decision record. It found that:
a) the first applicant was baptised on 1 April 2004;
b) it was not satisfied that the first applicant was or is a genuine convert to Christianity;
c) the first applicant did not practise Christianity after he returned to Iran in 2004;
d) the first applicant may have attended Bible classes in [county X] for the purposes of obtaining asylum [country X] but he did not practise Christianity when he returned to Iran in 2013;
e) it was not satisfied that the Iranian authorities were aware of the first applicant’s baptism in [country Y] or of any of his church related activities. It follows that he was not of adverse interest of [sic] the Iranian authorities for these reasons;
f) even if the Iranian authorities were aware of the first applicant’s baptism and activities, what would be of concern would be what he does on return to Iran;
g) it was not satisfied that the first applicant would practise or have any desire to practise Christianity if he returns to Iran; and
h) it follows that he would not be of adverse interest to the Iranian authorities for this reason.
(footnotes omitted)
Having regard to these deficiencies in his evidence, the Tribunal found that it was not satisfied that the husband was a genuine convert to Christianity, found that he did not practice Christianity on the occasions when he returned to Iran, and was not satisfied that the Iranian authorities were aware of the husband’s baptism. Furthermore, the Tribunal found that even if the Iranian authorities were aware of the husband’s baptism or activities, the authorities would be concerned only with what he did upon his return to Iran. In this respect the Tribunal did not consider that the husband would practise or have any desire to practise Christianity if he returns to Iran and therefore concluded that he would not be of adverse interest to the Iranian authorities.
The Tribunal concluded that, considered individually and cumulatively, there was no real chance that the husband would be at risk of persecution by reason of his actual or imputed religion if he returned to Iran and therefore he did not meet the Refugee Convention criterion in s 36(2)(a) of the Act (Tribunal reasons at [135]). Equally and based upon the same factual findings, the Tribunal was not satisfied that as a necessary and foreseeable consequence of being removed to Iran, there was a real risk that he would suffer significant harm so as to satisfy the complementary protection criterion in s 36(2)(aa) of the Act (at [136]-145]).
2.3 The decision of the FCC
The applicants applied for judicial review of the Tribunal’s decision in the FCC on the ground that the Tribunal conflated its consideration of the husband’s asserted conversion to Christianity with the issue of whether he would be tried as an apostate under Sharia law (FCC reasons at [23]). The applicants also submitted that the Tribunal conflated its consideration of the issue under the refugee criterion in s 36(2)(a) of the Act with its later consideration of the same issue under the complementary protection criterion in s 36(2)(aa) (ibid). The applicants were legally represented in the FCC.
For reasons I later explain, the FCC dismissed the application.
3. PRINCIPLES GOVERNING THE GRANT OF AN EXTENSION OF TIME
Rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) requires a notice of appeal to be filed and served within 21 days after the date on which judgment below was pronounced or alternatively, on or before a date fixed by the court below. Final orders were made in the Court below on 15 March 2019. There having been no other date fixed within which an appeal might be instituted, the time limit for making the application ended on 5 April 2019. Accordingly, as the applicants’ application was lodged on 20 May 2019, an extension of 45 days is required.
The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Importantly, in considering the merits of the proposed appeal, the draft grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).
In support of the application for an extension of time, the husband “request[s] compassion from the courts for an extension of time.” The Court is required to exercise the discretion to grant an extension of time judicially in accordance with established principles. Ultimately, however, the question is where the interests of justice lie having regard to factors of the kind to which I earlier referred, including giving weight to the seriousness of the consequences to the applicants of refusing the application.
4. SHOULD THE APPLICATION FOR AN EXTENSION OF TIME BE GRANTED?
4.1 The issues
With respect to his reasons for the delay, the husband alleged that:
1.I have a lawyer whom I paid
•he ran away
•he refuses to answer my calls
•he never informed that my application was denied.
2.I have been informed from Immigration that if you do not appeal you will become liable for detention
While initially the Minister took issue with the adequacy of the applicants’ explanation for the delay, by email dated 12 December 2019, the Minister advised the Court and the applicants that he “does not dispute the adequacy of the applicants’ explanation for the delay in appealing the Federal Circuit Court decision”.
The Minister also accepted that he would not suffer any prejudice if the extension were granted (first respondent’s written submissions (Minister’s submissions) at [8]). However, the Minister opposes the application for an extension of time on the basis that any appeal would have no prospects of success (Minister’s submissions at [3]).
It follows therefore that the primary issue is whether any appeal would have any reasonable prospects of success.
4.2 Would an appeal have any prospects of success?
It is important to emphasise that the FCC was limited to considering whether the Minister’s decision was made lawfully under the Act, that is, whether his decision is invalid by reason of a jurisdictional error. The Minister would make a jurisdictional error if, for example, he misunderstood the criteria under the Act by which to determine whether or not to grant the husband a protection visa, or made a decision which was irrational or illogical and therefore legally unreasonable: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).
However, neither the FCC nor this Court has jurisdiction to grant the applicants protection visas, to decide whether they meet the criteria for protection visas, or to correct any mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The issue in the FCC was not, therefore, whether the husband or the FCC agreed with the Minister’s decision. Even emphatic disagreement with that decision would not establish it was tainted by jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [61] (the Court). Equally if the extension of time were granted, the question on the appeal would be whether the FCC fell into error in holding that the Tribunal’s decision was not invalid by reason of jurisdictional error.
The draft notice of appeal accompanying the husband’s affidavit dated 19 May 2019 identified one substantive proposed ground of appeal, namely:
I don[’]t agree with paragraph 28 to 30 of the Court decision.
It is, however, not sufficient for the husband merely to express disagreement with the FCC’s conclusion. The husband must identify a potentially appealable error in the primary judge’s decision.
Nor is any error apparent on the face of those paragraphs. To place the paragraphs referred to into context, in the preceding paragraphs the FCC held that:
(1)while the husband made no specific claims to fear harm in Iran as an apostate, it was tolerably clear that the possibility of a criminal proceeding against him under Sharia law for apostasy was an issue arising in the review given in particular the husband’s claim that there had been a proceeding against him but that he had not been convicted (Tribunal reasons at [61], [115] and [142]; FCC reasons at [24]);
(2)the issue was however, somewhat theoretical because the Tribunal did not accept the husband’s claim concerning his conversion, that he had engaged in any Christian activities while in Iran, or that the issue of apostasy had been considered by the Iranian Family Court or the Islamic Revolutionary Court (FCC reasons at [25]);
(3)irrespective of how the issue is characterised, the remaining question for the Tribunal was therefore whether, after it had rejected the husband’s factual claims, the Iranian authorities would discover that he had gone through a form of conversion and attended Christian church activities abroad and in Australia, even though he had not done so genuinely (FCC reasons at [26]);
At paragraphs [28] to [30] of its reasons, the FCC explained why it found at [27] that the Tribunal dealt with this remaining question adequately both in relation to the refugee and complementary protection claims. Specifically, the FCC there held that:
28. I see no error in the Tribunal’s approach. I otherwise agree with the submissions of the Minister on the issues raised in the amended application.
29. The Tribunal squarely dealt with the first applicant’s claims to have converted from Islam to Christianity. Its conclusions that the Iranian authorities would either not know about his conversion, or not care about his purported conversion, would have dealt with any issue of apostasy.
30. The first applicant’s claims that the “Tribunal failed to appreciate that considerations under the refugee criterion are different in kind to the considerations under the complementary protection criterion” are unfounded. The Tribunal considered and rejected the first applicant’s claims to fear harm having converted to Christianity. It then specifically applied the test under the refugee criterion and the alternate test under the complementary protection criterion. A specific example of the Tribunal’s differentiation of the relevant tests is that under the refugee criterion the Tribunal discounted the first applicant’s attendance at church in Australia but did not do so under the complementary protection criterion. This was because the Tribunal was mindful that s.91R(3) did not apply in the assessment of complementary protection.
(footnotes omitted)
Considering the matter at a reasonably impressionistic level, no reasonably arguable error is apparent in the FCC’s reasons. As the primary judge held, the Tribunal’s rejection of the husband’s claim to be a genuine convert to Christianity logically disposed of any claim to fear persecution by reason of his having renounced Islam. This is because it was not suggested by the husband that he had renounced Islam by any means other than by his conversion to Christianity. Nor is any reasonably arguable error apparent in the primary judge’s finding that the Tribunal had considered and applied the refugee criterion in s 36(2)(a) of the Act before separately and correctly applying the complementary protection criterion in s 36(2)(aa). In particular, it is not reasonably arguable that the Tribunal fell into error because, in the course of considering the husband’s claims for complementary protection, it adopted factual findings made in the context of considering his claims by reference to the refugee criterion. Furthermore, the Tribunal explained the test for determining whether an applicant meets the refugee criterion at [11]-[13] and the test for complementary protection at [14] of its reasons, in terms which on their face correctly state the law and identify relevant differences between the two criteria.
At the hearing, the husband made extensive oral submissions and sought to lead further evidence, being photocopies of passports which he said proved that he had left Iran using a falsified document on a visa issued by the Romanian Embassy.
First, the husband said that he had obtained these documents from the Romanian Embassy after the last of his hearings before the Tribunal. He also said that while the Tribunal had given him time to provide further documents, it had not informed him of the time by which they must be provided. As a result, when he tried to lodge the documents with the Tribunal, he was told that it was too late, the decision had already been made, and it was not possible to re-open his case. In his submission, these documents were very important because they demonstrated the reasons why he had to leave Iran using a false passport. The husband also said that his lawyer had failed to provide the documents to the FCC.
This argument has no reasonable prospects of success. The Tribunal expressly considered a request by the husband for a three month extension of time in order to obtain information allegedly from overseas in the following passages from its reasons:
23. At the end of the hearing on 4 April 2017, the Tribunal gave the first named applicant further time until 11 April 2017 to file written submissions or any further evidence he seeks to rely on. On 11 April 2017, the Tribunal received a written request from the first named applicant for an extension of time of almost 3 months for him to collect information from overseas organizations. The Tribunal has considered this request and denied it as he has not provided any information in relation to what documents he wishes to obtain, from whom he seeks to obtain these documents, why it will take almost 3 months to do so, what inquiries, if any, he has made to obtain these documents and why he has not been able to obtain these documents in the last 2 years and 6 months since he filed his application for Protection visas.
24. On 13 April 2017, the Tribunal wrote to the first named applicant, informed him that his request for an extension of time of almost 3 months had been declined but that he had until 28 April 2017 to provide further evidence and that the Tribunal would proceed to make a decision on the review after 28 April 2017. The Tribunal has not received any further evidence or written submissions.
Pursuant to leave granted at the hearing of the application, the Minister filed and served a supplementary application book containing a copy of the email on 11 April 2017 from the husband requesting the three month adjournment, the email from the Tribunal dated 13 April 2017 in response, and the index to the application book in the FCC which demonstrates that this correspondence was in evidence before the primary judge.
The Tribunal’s email accords with the Tribunal’s description of it at [24] of its reasons and in particular that the husband was given a specific date (Friday 28 April 2017) by which he was required to lodge any further evidence or submissions, contrary to the husband’s submission before me. Furthermore, as the Minister submitted, any argument that the Tribunal had acted in a legally unreasonable way in refusing the 3 month adjournment sought would have no reasonable prospects of success, given:
(1)the absence of any justification given by the husband to the Tribunal as to why he required such a lengthy adjournment and any explanation as to why he had not been able to obtain the documents earlier; and
(2)the fact that the Tribunal nonetheless afforded him a further two weeks within which to lodge any further material.
Secondly, while I consider that it is appropriate to receive the documents marked as MFI-A1 in evidence on the application for an extension of time, I do not consider that there is any reasonable prospect that they would be received in evidence on any appeal under s 27 of the Federal Court of Australia Act 1976 (Cth). The husband, in his oral submissions, accepted that he possessed these documents before instituting the application for judicial review in the FCC and as such, they are not fresh evidence. Nor is there any reasonable prospect that the material would likely have produced a different result even if it had been led in the FCC, bearing in mind that the Court had no jurisdiction to consider the merits of the applicants’ application for protection visas. Further and in any event, the Tribunal accepted the husband’s claims that he left Iran to travel to Romania using the passport in the name of a family member and that he used the same passport to enter Iran on a further occasion and to enter Australia. However, the Tribunal was not satisfied that he would be at risk of serious harm or significant harm by reason of his illegal exit from and entry into Iran if he returned.
Thirdly, the husband submitted that he had no option but to leave Iran, that he had risked his life by leaving Iran on a false passport to save his family, and that if he was arrested again in Iran other people who had helped him with the false passport would be arrested as well as him. He also submitted that there were photographs and videos on the internet which could identify him as someone who had converted from Islam to Christianity and therefore his life would be at risk if he were returned. However, these submissions invite the Court to consider the merits of the applicants’ claims which neither this Court nor the FCC has jurisdiction to do, as I have explained. Nor is it apparent that any of these matters were raised before the primary judge. As such, these submissions do not raise any arguable case of error by the FCC.
It follows for these reasons that any appeal would not enjoy any reasonable prospects of success and it would not therefore be in the interests of justice to grant an extension of time within which to appeal.
5. CONCLUSION
The application for an extension of time within which to appeal should be dismissed. I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 20 January 2020
0
11
3