Deg19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 324
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEG19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 324
File number(s): SYG 2140 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 11 April 2024 Catchwords: MIGRATION – Application for extension of time to bring proceeding – Relevant considerations.
MIGRATION – Protection Visa – Refusal – Review of Refugee Review Tribunal decision.
Legislation: Tribunals Amalgamation Act 2015, s 15AG
Migration Act 1958 (Cth), ss 5, 36 91R, 474, 477
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 26 Date of hearing: 7 March 2024 Place: Sydney Counsel for the First, Second and Third Applicants: Mr O. Jones Solicitor for the First, Second and Third Applicants: Ehsani Legal Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: Submitting appearance save as to costs
Table of Corrections 12 April 2024 In second sentence of paragraph 23 the word “respondents” has been corrected to “applicants”. ORDERS
SYG 2140 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEG19
First Applicant
DEH19
Second Applicant
DEI19
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.The applicants’ application for an extension of time be refused.
2.The proceeding 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 CAMERON
INTRODUCTION
This judicial review application was filed by a family unit comprising three applicants (Applicants) who are all citizens of Iran and who arrived in Australia by boat on 1 August 2012. On 15 November 2012 they lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that the first applicant feared persecution in Iran because of his Christian tattoos and his illegal import of, and sale of motorbikes in, Iran and that the second applicant, his wife, allegedly feared persecution in Iran because she had been harassed by the Basij, Iran’s religious and moral enforcement body. The third applicant was the first and second applicants’ daughter and did not make any claims of her own. On 14 August 2013 the applicants’ application was refused by a delegate of the first respondent (Minister). The applicants then applied to the Refugee Review Tribunal (Tribunal), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and on 20 August 2019 they applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
The applicants’ application for judicial review was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (Cth) (Act) and they have applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the application for an extension of time within which to bring this action will be refused and the proceeding will be dismissed.
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time of the Tribunal’s decision, it relevantly provided:
477Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
....
Because the Tribunal’s decision was dated 14 March 2014, the applicants had until 18 April 2014 to commence this proceeding. The commencing application was not filed until 20 August 2019 and so it was brought more than five years out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicants said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicants have provided a satisfactory explanation for their delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit such that the Court should consider them at a trial.
The Minister did not submit that prejudice of any particular materiality would result from an extension of time.
Satisfactory explanation for delay
In their amended application, the applicants alleged:
1. The Applicant’s application was refused on 14 March 2014. They were initially represented by Ms Cathrynne Lester from Australian Migration Options Pty Ltd. Ms Lester then ceased representation. The Refugee Review Tribunal referred the Applicants’ case to Justice.net, a program run by the University of Adelaide. A Barrister … picked up the Applicant’s case. The Applicants were not aware of the 35-day time limit to apply for judicial review after the decision of the RRT. The matter did not proceed for 3 years. The Applicant’s moved to Sydney and met with a migration agent … . They did not know that Mr … was not a lawyer. He did not make any progress with the case. His license was also cancelled during this period. Finally, they met with Mr Ali Al Khafagi who assisted them with their initial judicial review in 2019.
2. The Applicants relied on the program run by the University of Adelaide to provide them with legal assistance. The Applicants did not have the funds to be represented by the private lawyer. They were not aware of the legal process or their rights.
3. It is in the interest of administration of justice to allow our application to the federal circuit court as that there are legal errors in the decision of the RRT.
(errors in original)
Those allegations were unsupported by evidence of any sort and for that reason alone are unpersuasive. I also note that, even if those allegations were to be accepted as proven, which is not the case, they fail to particularise the advice that the applicants undoubtedly received from time to time, either from the representative who assisted them before the Tribunal and to whom the Tribunal’s decision was sent for forwarding to them, from Justice.net or from the counsel they identified. How the issue of the s.477 limitation period remained unaddressed for so long, notwithstanding the involvement of advisers for much of the period, is unexplained.
I conclude that the applicants have not demonstrated a satisfactory explanation for the delay in commencing the proceeding.
Merits of substantive application
In relation to the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, an applicant must demonstrate that his or her case has sufficient merit that the Court should consider it at a trial.
I have concluded that the present applicants have not done that.
Claims before the Department
The applicants made their claims for protection in their visa application dated 15 November 2012. They also attended interviews conducted by the Department on 25 August 2012 and 22 November 2012. The applicant’s then-representative provided written submissions dated 5 December 2013 in advance of a Tribunal hearing on 11 December 2013 which the applicants attended.
The applicants’ claims can be summarised as follows:
(a)the first applicant feared harm if he returned to Iran because he smuggled and sold motorbikes in breach of Iranian law. He was arrested as a consequence and, in court, was questioned by the judge about a tattoo of the Cross on his upper arm. The first applicant claimed that the judge had treated him harshly and had asked him a number of questions about his religion. Even so, he was bailed after having spent seven or eight days in custody;
(b)the first applicant also feared harm because of his two visible tattoos, including one of the Cross on his upper arm, which he claimed were reflective of his “non-conformist” profile and would cause him to be of interest to the Iranian authorities;
(c)the second and third applicants feared harm as a consequence of their relationship with the first applicant;
(d)the second applicant also feared harm and did not want to leave the house because of prior harassment from Basij officers who had criticised her for showing her hair, wearing an Islamic coat of insufficient length and for having her fingernails painted;
(e)the second applicant also feared harm if she returned to Iran because she had sought asylum in a Western country; and
(f)both the first and second applicants feared that the first applicant would be arrested and punished for his prior alleged offending.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (Convention), or s.36(2)(aa) of the Act.
Given the limited nature of the allegations made in this proceeding, which will be set out later, it is not necessary to summarise the greater part of the Tribunals reasons. In relation to the first applicant it is sufficient to record that the Tribunal considered that no risk of persecution arose out of the motorbike incident or his tattoos because the Iranian authorities had treated them, essentially, as trivial matters. As to the second applicant, the Tribunal found that although she had, in the past, received adverse attention from the Basij for violating Islamic dress codes, it did not accept that such attention constituted serious harm.
The Tribunal also stated that the reasons which caused it to not be satisfied that the second applicant faced a real chance of serious harm, as defined by the Act, in Iran for a Convention reason also led it to not be satisfied that she faced a real risk of suffering significant harm, as defined by the Act, if she returned there.
Grounds for judicial review
In their amended application the applicants alleged:
1. The Second Respondent (Tribunal) made a jurisdictional error by not giving proper consideration to a statutory test.
a. The Tribunal at paragraph 251 of its decision accepted the Second Applicant’s claim that she faced adverse attention from the Basij for violations of the Islamic dress code;
b. The Tribunal, however, at paragraph 251 of its decision did not accept that the adverse attention constituted serious harm;
c. The Tribunal found “for the same reasons” at paragraph 268 of its decision that the Second Applicant did not face significant harm for the purposes of complementary protection;
d. The Tribunal was required to give proper consideration to the statutory test: SZSZQ v Minister for Immigration [2018] FCA 403 at [69];
e. The Tribunal failed to give such consideration, in particular whether the Second Applicant faced “significant physical harassment of the person” (s 91R(2)(b)), “significant physical ill-treatment of the person” (s 91R(2)(c)) or “extreme humiliation” under s 36(2A)(e) when read with s 5(1) of the Act.
2. The Tribunal made a jurisdictional error by overlooking an important item of evidence.
a. The Tribunal referred at paragraph 152 of its decision to the United States State Department Country Report on Human Rights Practices (Iran) 2012 (report);
b. The report stated that “a woman who appears in public without an appropriate headscarf (hijab) can be sentenced to lashings and fined”;
c. The report further stated that, in particular, “absent a clear legal definition of `appropriate hijab’ or the punishment, women were subject to the opinions of disciplinary forces”;
d. The Tribunal was required not overlook evidence before it that was significant to its performance of its function: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54];
e. The relevant parts of the report were of such significance as they were influential in relation to the Second Applicant’s claim of serious or significant harm on account of the Islamic dress code.
At the time the visa application was lodged with the Department, the Act relevantly provided:
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant
…
36 Protection visas
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(2A) A non-citizen will suffer significant harm if:
…
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
…
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
…
(b) the persecution involves serious harm to the person; and
…
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
…
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
….
…
The applicants alleged in the first ground of the application that the Tribunal had not considered whether, if returned to Iran, the second applicant would face a real risk of significant physical harassment or ill-treatment for a Convention reason. It was submitted in that connection that the absence from the Tribunal’s decision record of any express discussion of:
“significant physical harassment of the person” (s 91R(2)(b)) or “significant physical ill-treatment of the person” (s 91R(2)(c))
indicated that it had failed to have regard to evidence material to its review with the consequence that its decision was affected by jurisdictional error. The applicants also alleged in the first ground of the application that the Tribunal had failed to turn its mind to whether, if returned to Iran, the second applicant would face a real risk of extreme humiliation.
However, the applicants made no claim of either sort. All the second applicant relevantly said was that the Basij officiously pulled her up on her dressing and appearance and that their attentions made her not want to go out. It could not be inferred from the evidence concerning the conduct in question that a claim more serious than had been articulated emerged clearly from the materials before the Tribunal.
That fact is not altered by the statement in the 2012 US State Department report referred to by the applicants in submissions concerning ground 2 of the application that:
The penal code provides that a woman who appears in public without an appropriate headscarf (hijab) can be sentenced to lashings and fined. However, absent a clear legal definition of "appropriate hijab" or the punishment, women were subject to the opinions of disciplinary forces or judges.
That passage was not cited by the applicants when they quoted other portions of that report in their submissions to the Tribunal.
It is not necessary to consider whether the Tribunal did not consider the matters to which the applicants have referred because it would not have erred by not considering claims that were neither made nor apparent as being claims from the material before it and by not referring to information that concerned circumstances which the second applicant did not claim to fear.
In the circumstances, the applicants’ allegations do not merit consideration at a trial.
CONCLUSION
For the reasons I have given, I conclude that it is not in the interests of the administration of justice for time for the commencement of this proceeding to be extended.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 12 April 2024
0
3
2