DFF17 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 149
Federal Circuit and Family Court of Australia
(DIVISION 2)
DFF17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 149
File number: MLG 1532 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 March 2023 Catchwords: MIGRATION LAW – application for extension of time – decision of delegate of Minister for Immigration and Border Protection – Refugee and Humanitarian (Class XB) visa – where applicants are husband and wife – where the application was filed some 56 days out of time – consideration of whether it is in the interests of the administration of justice to grant the extension of time – where delay is not excessive, there is plausible explanation for delay and no identified prejudice to the Minister – finding that there is merits to applicants’ claim – where delegate did not consider second applicant’s claim in assessing whether there are compelling reasons for giving special consideration to granting of permanent visa having regard to the degree of persecution or discrimination to which applicants are subject in home country – extension of time granted – further consideration of substantive judicial review application – jurisdictional error established – writ of certiorari issued – order for costs. Legislation: Migration Act 1958 (Cth), ss 477, 477A
Migration Regulations 1994 (Cth), sch 2, cl 200.222
Cases cited: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28
MZABP v Minister for Immigration (2015) 242 FCR 585
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
XA v Minister for Home Affairs [2019] FCAFC 166
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 15 November 2022 Date of hearing: 15 November 2022 Place: Melbourne Counsel for the Applicants: Dr A McBeth Solicitor for the Applicants: Kerdo Legal Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Mills Oakley ORDERS
MLG 1532 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFF17
First Applicant
DFG17
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.The applicants’ 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 respondent quashing the decision dated 19 April 2017.
3.A writ of mandamus be issued directed to the respondent requiring it to reconsider and determine the applicants’ application according to law.
4.The respondent pay the applicants’ 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
This is an application for judicial review of a decision of a delegate of the then Minister for Immigration and Border Protection (‘the Minister’) dated 19 April 2017 to refuse to grant the applicants Refugee and Humanitarian (Class XB) visas. As the applicants filed the review application on 18 July 2017, some 56 days outside the time limit, the applicants also seek an extension of time within which to make the review application.
Background
The applicants are husband and wife from Afghanistan.[1]
Application for Refugee and Humanitarian visa on 11 November 2016
[1] Court book at page 1.
On 11 November 2016, the applicants made a joint application for a Refugee and Humanitarian visa as part of the ‘Community Proposal Pilot’ program (‘the Program’).[2] As required by the Program, the applicants were proposed by the Brotherhood of St Lawrence, Australia.[3] The application was also supported by the first applicant’s brother, who was an Australian citizen and who indicated that he was prepared to support the applicants’ resettlement in Australia.[4]
[2] Court book at pages 1 to 89.
[3] Court book at page 4.
[4] Court book at pages 2 and 5.
The application consisted, among other things, of a statement of claim filed by each of the applicants.[5] In these statements, the applicants claimed that they fled Afghanistan due to a stated fear from the Taliban and others. I will deal with the content of these statements in more detail shortly.
[5] Supplementary court book at pages 1 to 5.
At the time of their application, the applicants were living in Quetta, Pakistan.[6] As part of the visa application process, the applicants participated in an interview with a delegate of the Minister. The interview took place on 16 January 2017 at the Australian High Commission in Islamabad.[7]
Refusal of application by the delegate on 19 April 2017
[6] Court book at page 1.
[7] Court book at page 106.
On 19 April 2017, the Brotherhood of St Lawrence was advised by email and letter that the applicant’s visa application had been refused, annexed to which was a decision record of the Minister’s delegate dated 11 April 2017.[8]
[8] Court book at page 102 and following.
Extension of time application
The applicants filed their application in this court seeking judicial review of the delegate’s refusal decision on 18 July 2017.
Section 477(1) of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides that any application for judicial review of the delegate’s decision needed to be filed within 35 days, namely by 24 May 2017. As stated, the application was therefore filed 56 days out of time.
Section 477(2) of the Act allows this court to grant an extension of time within which a review application can be made if it is satisfied that it is necessary in the interests of the administration of justice to do so. The power to extend the time for filing a review application, such as that permitted by section 477(2), was recently the subject of judicial consideration by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28 (‘Katoa’). In Katoa, the court considered the power to extend time under section 477A of the Act, however, the analysis in that case applies equally to section 477.
It is well-settled that in determining whether it is in the interests of the administration of justice to extend time under section 477 of the Act, there are a range of factors to which the court can have regard. Whilst there is no exhaustive list of factors, commonly the following matters are regarded as relevant to the exercise of the court’s discretion:
(a)the length of the delay;
(b)any explanation for the delay;
(c)prejudice to the Minister if the extension of time were granted; and
(d)the merits of the substantive application.[9]
[9] See MZABP v Minister for Immigration (2015) 242 FCR 585.
The High Court in Katoa did not take issue with these settled principles, although it did consider the jurisprudence which had developed regarding how the court is to assess the merits of the substantive application, in particular, whether the court can assess the ‘merits’ on anything other than an ‘impressionistic’ basis.
Relevantly, the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at paragraph [17]:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
The plurality then went on further at paragraph [18]:
18.However … there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Similar comments were also made by the balance of the court in Katoa (Gordon, Edelman and Steward JJ) at paragraph [62]:
62.… Where an application for an order under s 477A(2) has been made to the Federal Court “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”, the question for the Federal Court - the statutory question - is whether the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension. There are no mandatory considerations. A number of factors may be relevant and it is for the judge hearing the application to decide what is both necessary and sufficient to resolve the issues raised in the application. In assessing whether it is necessary in the interests of the administration of justice to grant the extension under s 477A(2), the merits of the underlying application may be, and often are, considered and given considerable weight. In some, maybe most, extension of time applications, the judge can and does consider the merits of the underlying application at what might be described as a threshold level - inquiring whether the proposed grounds of review enjoy reasonable prospects of success. But in order to resolve the facts and issues raised in an application, the judge may sometimes consider that it is necessary to have regard to the merits of the underlying application in greater detail.
63.… the Federal Court does not ordinarily fall into jurisdictional error by concluding that it is not necessary in the interests of the administration of justice to grant an extension of time after having undertaken something more than a preliminary or threshold assessment of whether the proposed grounds of review enjoy reasonable prospects of success.
Consideration
Length and explanation for delay
It is not in dispute that the applicant’s application was filed some 56 days outside of the statutory time frame. It was submitted for the applicant that a delay of some 56 days in the circumstances is not so long as to weigh against the granting of an extension of time.[10] The Minister on the other hand says that in the context of a 35-day time limit, a delay of 56 days is inordinate.[11] The delay in this case is not insignificant, although it is also not excessive.
[10] Applicant’s Outline of Submissions filed on 15 November 2022 at paragraph [22].
[11] Minister’s Outline of Submissions filed on 16 November 2021 at paragraph [13].
However, the applicants have provided an explanation for the delay. In support of the extension of time application, the applicants rely upon affidavits filed by Ms Peggy Kerdo affirmed on 17 July 2017 and 27 October 2021. Annexed to Ms Kerdo’s July 2017 affidavit is correspondence between the first applicant’s brother and the case worker at the Brotherhood of St Lawrence who was assisting with this application. That correspondence shows that the Brotherhood of St Lawrence sent the first applicant brother a copy of the refusal decision on 21 April 2017 and indicated that they would meet and discuss ‘further possible options’.[12]
[12] Affidavit of Peggy Kerdo affirmed on 17 July 2017 and filed on 18 July 2017 at Annexure PPSIK-3.
By email dated 5 June 2017, the Brotherhood of St Lawrence then advised the first applicant’s brother that merits review was not available from the refusal decision and that the only option was to make an application for judicial review.[13] In that email, the case worker from Brotherhood of St Lawrence said:
If you want to apply in court, you will need to seek legal advice, through legal aid or a community legal centre in your area. The process can be very expensive with private lawyers, and there is no guarantee of positive outcome. However, applying in court is the only option to go if you want the decision vacated on error of law. I am happy to liaise with any lawyer you will be involved with and provide them with any information you might need to assist with the application. …
[13] Affidavit of Peggy Kerdo affirmed on 17 July 2017 and filed on 18 July 2017 at Annexure PPSIK-5.
In her further October 2021 affidavit, Ms Kerdo annexes an email from the first applicant’s brother forwarding the 5 June 2017 response from the Brotherhood of St Lawrence referred to in the preceding paragraph.[14] This email was forwarded to Ms Kerdo on 7 June 2017.
[14] Affidavit of Peggy Kerdo affirmed and filed on 27 October 2021 at Annexure PPSIK-6.
This exhibit also contains the various communications between the first applicant’s brother and the Brotherhood of St Lawrence, in which the first applicant’s brother sought to follow up on advice about the refusal decision in the period between 19 April 2017 and 5 June 2017. It is apparent from this email exchange that the Brotherhood of St Lawrence did not send the refusal decision to the first applicant’s brother until 21 April 2017. Moreover, the first applicant’s brother followed up with the Brotherhood of St Lawrence on 3 May 2017, but no response was received until 5 June 2017 when he was advised that he would need to seek legal advice.
Upon being so advised, the first applicant’s brother sought advice within two days and the application for judicial review was then filed within just over a month.[15] In her October 2021 affidavit, Ms Kerdo states that she was advised that the first applicant’s brother had had difficulty speaking to the first applicant to get instructions because of a series of attacks in Quetta (where the applicants were living) targeting Hazara people.[16]
[15] Affidavit of Peggy Kerdo affirmed and filed on 27 October 2021.
[16] Affidavit of Peggy Kerdo affirmed and filed on 27 October 2021 at paragraph [15].
In this case, the applicant’s explanation for the delay is plausible and I accept that the delay was caused in large part by the fact that the Brotherhood of St Lawrence case worker, who was not legally trained, took some weeks to clarify the next steps. It is apparent from the affidavit material that the applicants, through the first applicant’s brother, wished to progress this matter through whatever review mechanisms were available to them, and to the extent that it was within their power to do so, did not ‘sit on their hands’.
Prejudice to the Minister
The Minister concedes that there is no prejudice to him if an extension of time were granted.[17] However, given the applicants’ claims, there would be significant prejudice to them if they were excluded from seeking judicial review due to a failure to have filed their application within time.[18]
[17] Minister’s Outline of Submissions filed on 16 November 2021 at paragraph [16].
[18] Applicant’s Outline of Submissions filed on 15 November 2022 at paragraph [24].
Merits of grounds in substantive application
As to the merits of the claim, I am satisfied that there is merit to the applicants’ claim and therefore the extension of time ought be granted on that basis, and in circumstances where for the foregoing reasons, I am satisfied that whilst there is a not insignificant delay, there is a reasonable explanation for that delay and no prejudice to the Minister.
I will then turn to consider the grounds of review.[19]
[19] See Amended Originating Application filed on 15 November 2022.
Ground 1
By ground 1, the applicants claim that the delegate of the Minister failed in its statutory task in that it failed to consider the claims made by the second applicant. The particulars to ground 1 state:
(a)The first and second applicants each provided statements setting out their claims for protection.
(b)The second applicant’s statement included claims that were specific to her and did not apply to her husband, including the threat to Hazara women from the Taliban and Daesh.
(c)The delegate’s decision record makes no reference to and gives no consideration to the independent claims of the second applicant.
It is common ground that the delegate was assessing the applicants’ application against five separate but very similar visa sub-classes. Relevantly, the applicant’s representative took the court in oral submissions to the requirements of clause 200.222(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) which relevantly provide:
If the application includes a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a)the degree of persecution to which the applicant is subject in the applicant’s home country; and
(b) the extent of the applicant’s connection with Australia; and
(c)whether or not there is any suitable country available, other than Australia, that can provide for the applicant’s settlement and protection from persecution; and
(d)the capacity of the approved proposing organisation to provide for the permanent settlement of the applicant in Australia.
It is apparent from the delegate’s decision record of 11 April 2017 that the delegate made findings in favour of the applicants in relation to the criteria in (b), (c) and (d) as set out above. The dispositive issue was whether the applicants satisfied criterion (a). The issue in relation to whether criterion (a) is satisfied rests on whether the delegate is satisfied that there are compelling reasons for giving special consideration to the granting of a permanent visa having regard to the degree of persecution to which the applicant is subject in his home country. A similar dispositive issue arises in relation to each of the other visa categories considered, although in the case of one sub-class, the term ‘discrimination’ is used instead of ‘persecution’. For the present purposes, I accept that nothing turns on that distinction.
It was submitted for the applicants that in order to address that dispositive issue, the Minister (or his delegate) was required to consider the applicants’ applications and accompanying statements as to why they said they met that criterion.
Delegate’s decision record of 11 April 2017
The delegate’s decision record is at pages 105 to 107 of the court book.
At page 105 of the court book, the decision record identifies the first applicant in these proceedings as the principal applicant and the second applicant in these proceedings as the secondary applicant.
Following this, the decision record contains a heading ‘Summary of applicants’ claims and evidence submitted in support of the application’. It is submitted for the applicants that the summary given here is limited to claims made by the first applicant. It is submitted that there is no reference at all to any claims made by the second applicant.[20]
[20] See Court transcript at page 9.
At page 106 of the court book, the decision record then goes on to set out the delegate’s consideration of the dispositive issue in this matter. Relevantly that records the following:
To assess their claims, an in-person interview was conducted with the applicants … During this interview, the PA [principal applicant] claimed he used to sell Russian alcohol from his grocery store in Afghanistan. He claimed people found out about this business and reported him to the Afghan authorities. He claimed his shop was raided by men in Police uniform, however, he claimed he was not certain if they were real policemen.
During the interview, the PA admitted he is unlikely to experience any troubles with the Afghan authorities if he were to return to Afghanistan. However, he claimed he would be at risk of harm by the local religious clerics (Mullahs).
I note the PA has not provided any evidence to support these claims. I have taken into consideration the PA’s claims provided with the application forms and during the in- person interview.
There is no evidence that the applicants have been registered with, or mandated as a refugee by the United Nations High Commissioner for Refugees (UNHCR). I accept that the applicants are fearful of returning to Afghanistan, however, I am not satisfied that they are subject to a degree of persecution or discrimination which would constitute compelling reasons for giving special consideration to the grant of a permanent visa.
These findings are repeated at page 107 of the court book in the section of the decision record headed ‘Compelling reasons assessment’.
At the section headed ‘Decision’, also at page 107, the delegate then goes on to say:
As stated above, I find that no applicant satisfies the ‘compelling reasons’ criteria in subclause 200.222, 201.222, 202.222, 203.222 or 204.224. Therefore no applicant has met the ‘time of decision’ criteria in any of the five (5) Class XB subclasses. … As no applicant satisfies the primary criteria in any subclass of the Refugee and Humanitarian (Class XB) visa series, the application is refused.
The applicants acknowledge that under the heading, ‘Summary of applicants’ claims and evidence submitted in support of the application’, the delegate says:
For completed statement of claims, please refer to folio 65 of file number: OSF2016069892.
That folio is contained in the Supplementary Court Book, which includes a statement by the first applicant and another by the second applicant. It is clear from the first applicant’s statement that he claimed to fear harm on a number of bases.
Relevantly, for present purposes, this includes that he had was caught selling Russian alcohol from his family shop. He says that this is an offence punishable by execution and that when he was threatened with prosecution, he left Afghanistan.[21] The applicant stated that initially, he went illegally to Iran but was discovered and sent back to Afghanistan. He then left again illegally to Quetta, where his wife had already gone.
[21] Supplementary court book at page 4; paragraph [10] and following.
In the second applicant’s statement, also contained in the Supplementary Court Book, the second applicant relevantly states:
1.I am making this statement to tell my story and to ask the Australian Government to consider my husband and me for a humanitarian visa.
…
4.My husband and I are Hazara ethnicity and Shia religion. It is almost impossible to have any degree of safety anywhere in Afghanistan because of these facts that we cannot change.
5.It was also incredibly difficult to be a woman in Afghanistan, especially a Hazara woman. We are targeted all the time and I fear being abducted and harmed, especially by Pashtun people or religious extremists like the Taliban and Daesh.[22] …
[22] Supplementary court book at page 4.
At paragraphs [6] to [9], the second applicant sets out further claims to fear harm on the basis that:
(a)the Taliban and Daesh ‘remove Hazara people and kill them’;
(b)‘Hazara people are targeted by the Pashtun majority, who are Sunni Muslims’; and
(c)she and her husband are not only targeted because they are Hazara but also because they are Shia whereas the Taliban and Daesh are ‘Sunni extremists’.
It is after making all of these claims that the second applicant then goes on to say that their situation has become worse after her husband started selling alcohol secretly.[23] The second applicant then goes on to give evidence about the fact that her husband’s shop was raided, and that since that occurred, her husband was threatened and that they escaped Afghanistan.
[23] Supplementary court book at page 4; paragraph [10] and following.
At paragraph [16], the second applicant then says:
16.We cannot go back to Afghanistan. I fear I will be killed because I am Hazara woman.
It is submitted for the applicants that the Minister’s delegate did not consider any of the claims made by the second applicant which were particular to her. Specifically, it was submitted that the delegate did not consider the second applicant’s claims to fear harm as:
(a)a Hazara woman;
(b)that she will be targeted as a Hazara and as a Shia; and
(c)that she would be targeted by the Taliban and Daesh as a Hazara woman.[24]
[24] Applicant’s Outline of Submissions filed on 15 November 2022 at paragraph [34] and following.
It is submitted that there is nothing at all in the delegate’s decision record which indicates that it considered any of these claims squarely made by the second applicant.
There is much force to this submission.
In the Minister’s written submissions, it is acknowledged that the delegate made no express reference to the second applicant’s specific claims.[25] However, the Minister says that in circumstances where the delegate is not required to provide any written reasons, the absence of reference to a particular matter cannot be taken as evidence that the delegate did not consider those matters. In support of this proposition, the Minister relies upon the High Court decision in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (‘Plaintiff M64/2015’).
[25] Minister’s Outline of Submissions filed on 16 November 2021 at paragraph [18].
At paragraph [25] of that decision, the plurality (French CJ, Bell, Keane and Gordon JJ) said:
25.It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons of a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be born in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw and inference that the decision has been attended by an error of law by what has not been said by the Delegate. Further ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. … (emphasis in original)
Similarly, in XA v Minister for Home Affairs [2019] FCAFC 166 (‘XA’) at paragraph [177], Thawley J noted:
177.In light of the fact that there was no obligation to provide reasons, the following general principles apply to the interpretation of the decision record which the delegate prepared:
(1)The court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision …
(2)An error of law might be demonstrated by inference from what the delegate said by way of explanation given for the decision made; however, whether it is appropriate to draw the inference must be assessed having regard to the fact that there was no statutory requirement to provide reasons …
(3)By reason of the fact that there was no obligation to provide reasons, ‘it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate … the fact that the decision does not mention a matter does not, of itself, indicate that the matter was ignored …
(4)Related to the last point, an applicant cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings … (emphasis in original)
In this case, the Minister points to the fact that the delegate said that he had considered all of the information provided for the purposes of the application, and in those circumstances, no inference should or could reasonably be drawn that the delegate did not have regard to each of the claims made by each of the applicants.[26]
[26] Minister’s Outline of Submissions filed on 16 November 2021 at paragraph [18].
Moreover, it is submitted for the Minister that the second applicant’s claims were ‘largely reliant on the first applicant’s claims’. The Minister accepts that the second applicant claimed to fear persecution or harm as a result of being a Hazara woman, but submits that the conclusion reached by the delegate that the applicants had not provided evidence to support the degree of discrimination in Afghanistan being of a compelling nature, could equally apply to the second applicant’s claims. Therefore, it is submitted for the Minister that the failure to specifically refer to this aspect of the second applicant’s claims does not evidence a failure by the delegate to consider this aspect of the second applicant’s claims.
The issue raised by this ground ultimately comes down to whether the delegate considered certain aspects of the second applicant’s claims, accepting the principles set out in Plaintiff M64/2015 and XA set out earlier. As noted by Thawley J in XA at paragraph [201] when referring to general comments by a decision-maker that they had considered all relevant information:
201.Such statements can be taken into account in determining what the delegate in fact did … However, such statements do not immunise a decision-maker from challenge and the reliability of such statements is to be assessed according to all of the circumstances; sweeping or formulaic statements that matters have been considered will not shield from scrutiny whether in fact they have been considered…
In this case, whilst the delegate did say that they had considered all the information provided for the purposes of the visa application, there is nothing in the delegate’s reasons to suggest that they had considered those aspects of the second applicant’s claims which were particular to her as opposed to those which were dependent upon, or common with, the first applicant’s claims. Relevantly, there is no reference to the second applicant’s claim to fear harm as a result of being a Hazara woman, a claim clearly not made by the first applicant. Moreover, the delegate expressly referred to folio 65 for a complete statement of the claims made, however, folio 65 is the first applicant’s statement of claim. The second applicant’s statement is, in fact, folio 62.[27]
[27] Supplementary court book at pages 4 to 5.
The absence of any reference to the second applicant’s specific claims which relate only to her, in my view, supports a finding that the delegate did not consider that claim. Consequently, I find that the delegate’s decision is affected by jurisdictional error.
Ground 1 is therefore made out.
Ground 2
Having found that ground 1 is established, it is not strictly necessary for me to consider the remaining grounds raised. However, as they were argued fully before me, I will address them in these reasons.
Ground 2 is essentially the same argument as that raised in ground 1, but the factual premise is different. By ground 2, the applicants assert that the delegate failed to consider certain aspects of the first applicant’s claims, namely that he feared harm because he was of Hazara ethnicity and of Shia faith, and also that he feared harm from religious clerics or mullahs.[28]
[28] Amended Originating Application filed on 15 November 2022.
Unlike ground 1, and having regard to the principles outlined earlier about how reasons ought be viewed where there is no statutory obligation to provide such reasons, I find that ground 2 is not established. It is clear from a fair reading on the decision record that the delegate had regard to the claims made by the first applicant. This is evident from the summary of claims in the decision record and the specific reference to the first applicant’s statement at folio 65. The fact that all of the first applicant’s claims are not expressly referenced in the decision record is not a sufficient basis upon which to find that proper consideration was not given to those matters.
The express reference to some of the first applicant’s claims, as well as the statement setting out the first applicant’s claims, together with the statement by the delegate that they had considered all of the claims, is sufficient to weigh against a finding that the delegate failed to properly consider all of the first applicant’s claims.
For this reason ground 2 is not made out.
Ground 3
By ground 3 the applicants claim that the delegate failed to have regard to relevant information in the Minister’s possession and that this constituted a jurisdictional error either as a constructive failure to carry out its statutory task or because it was legally unreasonable.[29] By the particulars, the relevant information was said to be the information provided in support of the first applicant’s brother’s protection visa application. It is common ground that the first applicant’s brother had been granted a protection visa in 2004.
[29] Amended Originating Application filed on 15 November 2022.
Relevantly, the first applicant referenced his brother’s protection visa claim in his own statement in support of his application for a humanitarian protection visa. It was submitted for the applicant that in circumstances where the first applicant’s brother was found to be a refugee, and in circumstances where it was clear from the first applicant’s statement of claims that he relied upon some of the same circumstances to make his claim for protection, that it was incumbent upon the delegate to have regard to the brother’s protection visa file.[30]
[30] Applicant’s Outline of Submissions filed on 15 November 2022 at paragraph [67].
It is said that a failure to do so amounted to a failure to complete the delegate’s statutory task. Alternatively, in circumstances where it would have been relatively easy for the delegate to access the brother’s protection visa file, it was submitted that the failure to do so was legally unreasonable.[31]
[31] Applicant’s Outline of Submissions filed on 15 November 2022 at paragraphs [67] and [68].
For the following reasons, I do not accept either of these propositions.
There was no duty on the part of the delegate to make such inquiries. The delegate was clearly aware of the first applicant’s brother’s support for the visa applicant. The first applicant’s reference to his brother’s claims did not create an obligation on the delegate to have regard to the brother’s claims. The applicants have the responsibility to make their case and to put before the delegate any relevant material.
Ground 3 is therefore not made out.
Ground 4
At the hearing before me, counsel for the applicant indicted that ground 4 was no longer pressed.[32] As such, it is not necessary for me to address this ground.
[32] Court transcript at page 6.
Conclusion
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.
Moreover, as ground 1 is made out, I make the orders set out at the commencement of these written reasons.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 3 March 2023
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