Dej21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 591

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DEJ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 591

File number(s):

MLG 2335 of 2021

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

29 July 2022

Catchwords:

MIGRATION – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – application for extension of time – where the application was filed some 18 months out of time – finding that the interests of justice require an extension of time be granted – further consideration of substantive application for judicial review – whether the Tribunal failed to engage in an active intellectual process with the applicant’s claim – jurisdictional error established – writ of certiorari issued – writ of mandamus granted – order for costs.

Legislation:

Migration Act 1958 (Cth), ss 36, 477

Cases cited:

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Division:

Division 2 General Federal Law

Number of paragraphs:

57

Date of last submission/s:

8 March 2022

Date of hearing:

8 March 2022

Place:

Melbourne

Counsel for the Applicant:

Ms D Gang

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr V Murano

Solicitors for the Respondent:

Minter Ellison Lawyers

ORDERS

MLG 2335 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DEJ21
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	29 JULY 2022

THE COURT ORDERS THAT:

1.The applicant’s application for an order pursuant to section 477(2) of the Migration Act 1958 (Cth) be granted.

2.A writ of certiorari be issued directed to the second respondent quashing the decision dated 3 March 2020.

3.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.

4.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. Before the court is an application for an extension of time in which to bring a judicial review application pursuant to section 477 of the Migration Act 1958 (Cth) (‘the Act’).

2. Both parties agreed that if the court were minded to grant the extension of time, in the interests of efficiency, the court should go on to consider the substantive application on the basis of the material and submissions put on the same day.  The substantive application is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (‘the Tribunal’), made on 3 March 2020 affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), to refuse the applicant’s application for a protection visa.

   BACKGROUND

3. The applicant is a 27 year old Sikh man from Punjab, India.[1]

   [1] Applicant’s Outline of Submissions filed on 14 February 2022 at paragraph [2].

4. The applicant arrived in Australia on 14 June 2014 on a higher education sector TU Subclass 573 visa (‘student visa’).[2]

   [2] Applicant’s Outline of Submissions filed on 14 February 2022 at paragraph [3].

5. On 21 February 2017, the student visa was cancelled on the ground that the applicant had not been enrolled in a course of study since 1 February 2016, making him an unlawful non-citizen.[3]

   [3] Applicant’s Outline of Submissions filed on 14 February 2022 at paragraph [4].

6. On 12 October 2019, the applicant applied for a protection visa.[4]  In his protection visa application, he raised the following matters:

   (a)he left India in 2014 and planned to come to Australia as it ‘is the safest country to be as I am a homosexual’;[5]

   (b)he did not mention his homosexuality to his family ‘in the fear of getting killed or tortured’;[6]

   (c)he feared ‘torture, punishment mistreatment and discrimination from the society I was living in and my family’;[7]

   (d)he told his family about his homosexuality and his ‘family got angry and wanted to kill as they considered me a blot to the family and would kill me to keep the honour and pride …’;[8]

   (e)his parents and other villagers demanded him to marry and abandon his ‘aberrant ways or else they would kill me’.[9]  He went on to say that he was chased and attacked but was able to escape and go to Delhi;

   (f)once in Delhi, he says he complained to the police but they also did not help him and also told him they would kill him if he were ‘in their hands’;[10] and

   (g)he subsequently went to New Delhi for two weeks before coming to Australia.[11]

   [4] Applicant’s Outline of Submissions filed on 14 February 2022 at paragraph [5].

   [5] Court book at page 32.

   [6] Court book at page 32.

   [7] Court book at page 32.

   [8] Court book at page 32.

   [9] Court book at page 33.

   [10] Court book at page 33.

   [11] Court book at page 33.

7. In response to a question about what he feared if he were to return to India, he said:

   I will be killed by my family even if I would manage to escape from my family I would be bullied, harmed, mistreated, discriminated, tortured, not allowed to practice my human rights by the society wherever I go.

   …

   My family, society and the police would torture me kill me and bully based on my gender identity … same goes for the family as according to them I have brought shame and dishonor to the pride of the family.[12]

   [12] Court book at pages 33 and 34.

8. It is common ground that the applicant did not attend an interview scheduled with the delegate for 22 October 2019.[13]

   [13] Court book at pages 56 and 72.

9. On 29 October 2019, the applicant was notified that his application for a protection visa was refused.[14]

   [14] Court book at page 67 and following.

10. On 5 November 2019, the applicant lodged an application for review in the Tribunal.[15]  On 28 February 2020, the applicant attended a hearing before the Tribunal.[16]

    [15] Court book at pages 82 and 83.

    [16] Court book at page 103.

11. On 3 March 2020, the Tribunal affirmed the delegate’s decision.[17]

    [17] Court book at page 113.

12. The applicant filed an application for judicial review of the Tribunal’s decision in this court on 15 September 2021, some 526 days after the time for such an application was to be made.[18]

    [18] Initiating Application filed on 15 September 2021.

    EXTENSION OF TIME APPLICATION

13. The applicant seeks an extension of time within which to file his application to this court pursuant to section 477 of the Act. That application is opposed by the Minister.

14. Pursuant to section 477(2) of the Act, the court has the power to extend the 35-day time limit where it is satisfied that it is necessary in the interests of the administration of justice to do so. There are no prescribed factors which must be considered in determining how that discretion ought to be exercised. However, it is common ground that the relevant factors include:

    (a)the length of the delay and the explanation for that delay;

    (b)any prejudice to the Minister in granting the extension of time; and

    (c)whether there is any merit to the grounds raised by the applicant’s substantive application.

    Length and explanation for the delay

15. The applicant relies upon an affidavit filed on 14 February 2022 in which he sets out in some detail the reasons for the delay in filing his application for judicial review.[19]  In summary, he says that he was in detention in early March he received notification that his Tribunal application had been rejected.  I note that the Tribunal’s decision was made on 3 March 2020 and the covering letter attaching that decision addressed to the applicant was dated 4 March 2020.[20]  He says that on the afternoon of 23 March 2020, some 19 or 20 days later, he was suddenly told that he would be released from detention.[21]

    [19] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022.

    [20] Court book at page 109.

    [21] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraph [12].

16. The applicant further states that he was then placed on a plane from Western Australia to Melbourne via Sydney in circumstances where he had nowhere to go and had no contacts of any support services on his arrival in Melbourne.[22]

    [22] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraph [13] and following.

17. The applicant further states that his release from detention coincided with the outbreak of COVID-19 and the initial lockdowns experienced in Melbourne at that time.[23]  In summary, the applicant says that for the period between the end of March 2020 and August 2021, he variously was living on the streets, became involved in drugs and was essentially destitute.[24]  The applicant was ultimately caught stealing and imprisoned and then transferred to immigration detention in August 2021.[25]

    [23] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraph [16].

    [24] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraphs [17] to [28].

    [25] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraphs [27] and [28].

18. After a period of quarantine, and upon returning to immigration detention, he says that he was ‘able to put (his) head back together and then get some help from a fellow person in the detention centre to file the paperwork in the court in September 2021’.[26]

    [26] Applicant’s Affidavit affirmed on 8 February 2022 and filed on 14 February 2022 at paragraph [30].

19. It is submitted that in the context of the circumstances in place in response to the COVID-19 pandemic throughout 2020 and 2021 in Melbourne, the applicant’s homelessness and drug use, that an acceptable explanation has been provided for the delay.[27]

    [27] Applicant’s Outline of Submissions filed on 14 February 2022 at paragraph [15].

20. The Minister says that no reasonable explanation for the delay has been given.  In particular, it is submitted that the delay in this case of about 18 months is excessive, and in those circumstances, the reasons given do not adequately explain the delay.[28]

    [28] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [14].

21. It is further submitted that the applicant had some time whilst he was still in detention in early to mid-March 2020 after receiving notification of the decision to take some steps towards filing an application for judicial review, but no evidence has been given about what, if any, steps were taken to advance his claim at this time.[29]

    [29] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [15].

22. I accept that on its face, a delay of 18 months is significant. However, in the context of the pandemic and the public health responses to that pandemic introduced in 2020 and continued through 2021, I find that the applicant has provided an acceptable explanation for the delay in filing his application.  Moreover, I have had regard to the fact that the applicant, after being released from detention in Western Australia, was flown to Melbourne at very short notice and without any prior warning, which might otherwise have allowed him to make appropriate arrangements on his release.  In addition, I have had regard to the applicant’s evidence that after his release from detention, he effectively became homeless and destitute and involved in drugs.

23. It is the combination of these factors, rather than any one factor in and of itself, which leads me to the conclusion that the applicant has provided an adequate explanation for the delay which, as I say, is significant.

    Prejudice to the Minister

24. The Minister concedes that there is no prejudice to him by the extension of time being granted.[30]  There is, of course, a public interest in the finality of administrative decision making and I have had regard to this in considering this matter.

    [30] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [16].

    Merits of the applicant’s substantive claim

25. In essence, the applicant’s substantive claim is that the Tribunal erred in that it failed to consider, in the sense of giving active intellectual engagement, the fundamental claim he made, namely that he feared harm from his family if he were to return to India.[31]

    [31] Amended Application filed on 14 February 2022.

26. It is common ground that in the context of an extension of time application, the court is required to undertake no more than an ‘impressionistic’ assessment of the grounds of review advanced by the applicant.  The question before the court is whether the grounds are ‘‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’.[32]

    [32] See MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [63] (‘MZABP’).

27. However, as her Honour Justice Mortimer went on to say in MZABP at paragraph [63]:

    63.Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

28. At paragraph [62] of MZABP and affirmed in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at paragraphs [68] and [76], her Honour Justice Mortimer noted:

    62.… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    
    

    (emphasis added)

29. It is clear from these comments that what the court is required to do at the preliminary stage of determining whether to extend time, is to apply an impressionistic assessment of whether the grounds of review advanced by the applicant have reasonable prospect of success (or other similar iterations of this term).  The court is not required to effectively undertake an assessment of those grounds on a final basis to determine whether the applicant’s application would, in fact, ultimately succeed.

30. The applicant advances only one ground of review by his amended application, in the following terms:[33]

    1.The Tribunal failed to engage in an active intellectual process with the Applicant’s representations on the face of the Tribunal’s decision, in breach of ss 430(1)(b) and (c) of the Migration Act 1958 (Cth) (the Act), resulting in a constructive failure of jurisdiction and an error or (sic) law arising from material non-compliance with the statute.

    Particulars

    a.The Minister has an “obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request”: Minister for Home Affairs v Omar [2019] FCAFC 188 at [37]. The Tribunal did not engage in that active intellectual process in respect of the Applicant’s fear of family retribution, rather than social or societal discrimination. In the absence of such findings, the Tribunal has constructively failed to exercise its jurisdiction.

    b.Moreover, the reasons do not reveal which material facts in the criteria his evidence failed to satisfy in respect of the refugee criterion or the complementary protection criterion, resulting in a constructive breach of s 430(1)(b) of the Act.

    c.The error is either a failure of jurisdiction, in which case no question of materiality arises, or it is error of a statutory condition that “will always involve material non-compliance” because “the non-compliance is fundamental to the hearing process”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [182].

    [33] Amended Application filed on 14 February 2022.

31. In this case, it is apparent on the face of the decision record that the Tribunal summarises the applicant’s claims at paragraph [22]. The Tribunal then sets out a summary of the further information provided by the applicant in the Tribunal hearing at paragraphs [26] to [57].

32. Under the heading of ‘Assessment of Claims and evidence, and findings’, the Tribunal then went on to set out its considerations of the applicant’s claims.  The Tribunal member discussed the manner in which the Tribunal assesses credibility.

33. At paragraph [61], the Tribunal member then said:

    61.The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

34. On the face of the decision record in paragraphs [62] to [67], there is nothing which refers expressly to the applicant’s claims to fear harm at the hands of his family.

35. Therefore, on the face of the decision record and applying an impressionistic assessment as required, the court is satisfied that there may be some merit to the applicant’s claims.

36. On this basis therefore, and for the reasons set out above, I am satisfied that the interests of justice require that an extension of time be granted in this case.

    SUBSTANTIVE JUDICIAL REVIEW APPLICATION

37. As stated, both parties agreed that if the court were minded to grant an extension of time, it ought to proceed to deal with the substantive issues on the basis of the submissions made both in writing and orally.

38. As stated, the applicant made clear representations about his fear of harm from his family if he were to be returned to India.  The Tribunal set out these claims, explored them with him in the course of the Tribunal hearing, but then did not appropriately engage with them in its reasons.

1. The Tribunal refers to country information, but does not say how this country information applies specifically to the applicant, and in particular, how it applies to his claims to fear harm from his family if he were to return to India.

2. It is well settled that the statement of reasons delivered by the Tribunal is to be read fairly and not with an eye keenly attuned to error.[34]  Having said this, however, as properly conceded by the Minister in his written submissions, it is uncontroversial that the Tribunal is required to consider an applicant’s claims to fear harm and the essential integers of those claims which are raised squarely on the material.[35]  The Minister also conceded that in considering such claims, the Tribunal is required to engage in an active intellectual process with such claims.[36]

   [34] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

   [35] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [19.1].

   [36] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [19.2].

3. In this case, the Minister points to the Tribunal’s reasons at paragraphs [40] to [42] of its decision record as evidence that while there is some reference to the applicant’s father, the matters referred to therein do not clearly raise any issues of a fear of significant harm at the hands of the applicant’s family on his return to India.[37]

   [37] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [21].

4. The applicant’s comments in the course of the hearing, however, must be viewed in the context of the applicant’s claims to fear harm at the hands of his family in his application, referred to at paragraphs [6] and [7] above.

5. The Minister also refers to and relies upon the Tribunal’s reasons at paragraphs [47] to [50], in which the Tribunal deals with the applicant’s claims to fear harm from his family.[38]  It is submitted that whilst these matters raise concerns about the applicant’s family, they do not raise any claim that the applicant feared serious or significant harm at the hands of his family if he were to return to India.  With respect, this submission suffers from the same defect as the previous submission.  That is, properly considered, the applicant’s claims are those made in his written application together with any further information provided in the course of the hearing.  His written application clearly identifies a fear of harm at the hands of his family, which is not addressed in a considered way in the Tribunal’s reasons.

   [38] Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [22].

6. In the Tribunal’s consideration of the applicant’s claims, evidence and findings, the Tribunal makes a very general comment at paragraph [61] that it ‘has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein’.

7. The Tribunal then goes on to make adverse credibility findings.  Relevantly, at paragraph [62], the Tribunal says:

   62.… When these contradictions were put to the applicant he maintained that the essentials of his written application were true but that his ‘friend’ had made mistakes in translating his words into written English.  On balance the Tribunal is prepared to accept this contention as, in giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.

   
   

   (emphasis added)

8. Relevantly, at paragraph [63], the Tribunal sets out certain factual findings about the applicant’s claims.  Nowhere in that section is there any analysis with regards to the applicant’s claim to fear serious and significant harm from his family on his return to India.  I do not accept the Minister’s suggestion that the applicant had, in effect, disavowed his claims made in his visa application about fearing harm from his family in India.[39]  This is inconsistent with the comments at paragraph [62] set out above, which would suggest that he maintained his claims as set out in his written application.

   [39] Court transcript at page 11.

9. Finally I note that at no point in the Tribunal’s conclusions at paragraphs [72] or [73] of its decision record is there any evidence that it has considered the risk of harm to the applicant from his family, as opposed to risk of harm from other sources.

10. Further, I note that the Minister submits that if the court were to find that the Tribunal had failed to consider the applicant’s claims to fear harm at the hands of his family, this error, which is not conceded, would not amount to a jurisdictional error in that it was not ‘fundamental to the hearing process’.[40] It was submitted for the Minister that there was no realistic possibility that the Tribunal may have reached a different outcome, even if it had considered those claims. This submission was based on the Tribunal’s comments at paragraphs [40] to [42] and [47] to [50] of its decision record on the basis that these claims do not amount to claims of serious and significant harm for the purposes of section 36(2)(a) or section 36(2)(aa) of the Act.

    [40] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33] and [182]; Minister’s Outline of Submissions filed on 23 February 2022 at paragraph [27].

11. This argument fails for the same reasons set out in paragraph 46 above.  The Tribunal only referred to those matters identified in the course of the hearing before it.  It did not include the more serious claims made in the applicant’s application at page 21 of the court book.

12. Moreover, I note that the only evidence about what occurred at the Tribunal hearing is the information set out in the decision record.  In this regard, I note that at paragraph [36], the member asked the applicant why his application stated that he had told his parents about his homosexuality before he had left India, which was inconsistent with evidence given to the Tribunal.  In response, at paragraph [37], the Tribunal records that:

    37.The applicant stated that a friend had helped him complete the form and that the information set out therein was not an accurate statement of the sequence of events.

13. At paragraph [38], the Tribunal notes that it told the applicant ‘that it was concerned about the inconsistencies between the applicant’s visa application and his oral testimony’, although no specific inconsistencies are noted.

14. At paragraphs [44] and [45], the Tribunal deals with the applicant’s interactions with police.

15. At paragraph [50], the Tribunal records the applicant’s evidence about how he told his parents about his sexuality.  The Tribunal further stated:

    50.… When pressed for details the applicant stated to the effect that the memories were painful, that he had tried to forget them, that he recalled that he drank alcohol ‘a lot’ and was ‘shouting down the phone’ to his father.  He stated that his father was saying words to him to the effect that he (the applicant) was ‘embarrassing the family’.’

16. Further, at paragraph [53], the Tribunal record states:

    53.… The applicant stated that he feared for his life.  When pressed to explain why he feared for his life the applicant stated that the Indian ‘environment’, the ‘society’ was different and that it does not accept homosexual relationships.  He stated that he would be subjected to bullying ‘a lot’ and ‘tortured’.  When pressed for details regarding his fear of torture, the applicant stated that his family would lock him in a room, tie him, and not provide him with food.  He stated that that has not happened to him, but that it ‘may’ happen.  He stated that he has seen ‘YouTube’ videos and he ‘knows that this can happen.’

17. As stated, there is nothing in the Tribunal’s decision record, which in my view, supports the proposition that the applicant disavowed his claim to fear serious and significant harm at the hands of his family if he were to return to India.  There is no evidence that the applicant disavowed any claims to have feared serious and significant harm from his family.  In the face of the Tribunal’s findings at paragraph [62], that submission cannot be sustained.

18. In those circumstances, it cannot be said that the Tribunal’s failure to consider, in the sense of not having actively engaged in an intellectual process in relation to the applicant’s claim, lacks the level of materiality required.[41]

    [41] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.

    CONCLUSION

19. For each of these reasons, I find that the Tribunal’s decision is affected by jurisdictional error and make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       29 July 2022