DQB17 v Minister for Immigration
[2020] FCCA 2536
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQB17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2536 |
| Catchwords: MIGRATION – Application for protection visa – claim that Tribunal had failed to properly consider a subsistence claim in the light of the applicant being a member of a particular social group – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 91R, 477(2). |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86. Vella v Minister for Immigration and Border Protection (2015) 98 ALJR 89. Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Tran v Minister for Immigration and Border Protection [2014] FCA 533. Prince Alfred College v ADC (2016) 258 CLR 134. Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | DQB17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1753 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 8 September 2020 |
| Date of Last Submission: | 8 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A White |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | Mr A F Solomon-Bridge |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application for extension of time for the filing of the Originating Application for Review be dismissed.
The Amended Application filed on 25 August 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
MLG 1753 of 2017
| DQB17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who made application for a Protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’) on 12 December 2012.
A delegate of the Minister refused to grant the visa on 16 April 2014, after which the applicant sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’).
On 2 September 2015, the Tribunal affirmed the decision of the delegate. The Tribunal found that no protection obligations were owed to the applicant.
It was common ground at the hearing before the Court, that the applicant had a 35 day limitation period from the date of the handing down of the Tribunal’s decision on 2 September 2015 for the filing of an Originating Application for Review of the decision of the Tribunal. He had until 9 October 2015 to file an application for review within time.
The applicant did not file an Originating Application for Review until 10 August 2017 – a period of 1 year and 10 months after the expiration of the limitation period. That Originating Application included an application for extension of time for its filing.
The application for extension of time was opposed by the first respondent.
In an affidavit of the applicant filed on 24 April 2018, the applicant at [3] – [10] inclusive sought to explain his delay as follows:
“[3] I had originally applied for a protection visa with the help of a private lawyer. On or about 17 September 2015, I received a letter from my lawyer enclosing a decision made by the Administrative Appeals Tribunal ("the Tribunal") to refuse my application for review.
[4] I was given information about what my options might be in the cover letter from the lawyer. I was upset about the decision and felt that the Tribunal did not deal with my case properly.
[5] On or about 5 October 2015, I contacted Victoria Legal Aid, ("VLA"). I spoke on the telephone with a lawyer from VLA on or about 7 October 2015. I was told through an interpreter a lot about the court processes including the time line for filing an application to review the AAT decision and VLA processes. I recall that I was told that if I lost the court case I would have to pay the costs of the Minister's lawyers.
[6] I received a letter of acknowledgement from VLA on 2 November, 2015 which noted that the 35-day limit had expired and explaining that I may still wish to apply for judicial review. I have a family living in a dangerous situation in [omitted], Pakistan. I am responsible for financially supporting them, given they live illegally in Pakistan. Because of my difficult financial situation, I was not able to afford to pay any fees and I was very worried about incurring court costs. I therefore decided I would not file my application for judicial review and would wait to hear whether I have a strong case. I simply felt this was the safer option.
[7] I don't really understand the legal processes and each time I contacted VLA I was told that a lawyer would deal the case as soon as it was possible.
[8] VLA sent me a letter on 13 December 2016 requesting that I fill out a VLA application form. At the time I sent back the form I had some savings in my bank account and this meant that I was initially not eligible for legal aid funding without paying a big contribution. I therefore experienced further delays because of the initial refusal of legal aid.
[9] In March 2017, I lost my job and stopped work in a wood factory. After this I was forced to rely on my savings to pay for rent and food and to support my family in [omitted].
[10] I provided another bank statement to VLA in June 2017 to show that my savings were greatly reduced. The application for aid was reassessed and I finally received approval on or about 7 July 2017.”
(Emphasis added)
Although the applicant was deemed to have received notice of the decision on 4 September 2015 when a copy of the decision was emailed to the legal firm then representing the applicant, the applicant deposed that he did not receive notice of the decision until 17 September 2015, upon his receipt of a letter from his lawyers enclosing a copy of the decision. Even accepting that he did not receive notice of the decision until 17 September 2015, the applicant still had a period of 22 days within which to file an Originating Application for Review.
Paragraph [5] of the applicant’s affidavit makes it clear that at least 2 days prior to the expiration of the period for the filing of an application for review, the applicant was advised about the “timeline for filing an application to review the AAT decision and VLA (Victorian Legal Aid) processes”.
It is also clear that after receipt of a letter from VLA on 2 November 2015 which explained that the 35 day time limit for the filing of any application for review had expired, the applicant elected not to apply for judicial review until such time as he had heard from VLA as to whether or not he had a “strong case”, stating that he thought that that was “the safer option”. The applicant had deposed that he was also financially supporting a family living in Pakistan, was in a difficult financial position, was not able to afford to pay any fees, and was very worried about incurring court costs. [1] He deposed that delays were experienced between November 2015 and December 2016 because of the lack of availability of a lawyer from VLA to assist him in his case. That was confirmed by one Ms Fisher, a lawyer then at VLA, in her affidavit filed on 24 April 2018. Legal aid for Counsel’s advice to be obtained was granted, and after receipt of that advice, Counsel was briefed on 13 July 2017 to prepare documents for filing in support of an application for review of the decision of the Tribunal.
[1] Paragraph [6] of applicant’s affidavit filed on 24 April 2018.
Considerations relevant to the hearing of an application for an extension of time pursuant to the provisions of s. 477(2) of the Act include: [2]
a)The extent of the delay.
b)Whether there is any acceptable explanation for the delay.
c)Whether there is any prejudice to a respondent in the event of the extension for time application being granted.
d)The merits of the substantive application before the Court.
[2] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment
(1984) 3 FCR 344 at 348 – 349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
In Vella v Minister for Immigration and Border Protection (2015) 98 ALJR 89 at [3], Gageler J, in relation to an application for an extension of time where there had been a 16 month period of delay, said as follows:
“[3] The critical question for me is that posed by s 486A(2)(b): whether I am to be satisfied that it is necessary in the interests of the administration of justice to make the order extending the period for the making of the application. Mr Walker has properly conceded that, given the length of the extension sought, I would only reach that satisfaction were I to be persuaded that Mr Vella's case is "exceptional".”
(Emphasis added)
Mr Solomon-Bridge of Counsel on behalf of the First Respondent properly conceded that the first respondent would suffer no real prejudice should the application for extension of time be granted. He nonetheless submitted that the application for extension of time ought to be refused.
The first respondent placed reliance upon the judgment of McHugh J in Re Commonwealth of Australia & Anor; ex parte Marks (2000) 177 ALR 491 at [16] – [17] where it was said by His Honour:
“[16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
[17] An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”
(Citations omitted)
There is no suggestion that the delay in the filing of the Originating Application for Review was in any way caused by the first respondent or any other relevant public body.
Mr Solomon-Bridge further relied upon Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 – 555 per McHugh J where His Honour said:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that"[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
"The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
The scheme of the Act is that s II forbids the bringing of an action for damages for negligence after the expiration of three years from the date on which the cause of action arose unless leave is given under s 31. It follows that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition which s II imposes. In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion, as Davies JA and Ambrose J held. As Wells J has pointed out, "to qualify is not to succeed". The object of the discretion, to use the words of Dixon CJ in a similar context, "is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case". In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.
In the present case, the learned District Court Judge held that the present respondent was "placed in a position of serious prejudice having regard to the lapse of time which has occurred". That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”
(Citations omitted)
The Court is unprepared to accept the applicant’s submission that his election not to file an application for review until he received positive legal advice that his claim was arguable ought to be considered exculpatory. Limitation periods ought to be extended only in exceptional circumstances in the interests of justice. There are sound public policy reasons why that is so. The expeditious resolution of matters such as the present application is to be encouraged both on public administration and fiscal grounds. The purposeful delay on the part of the applicant was disrespectful of the legislative intention of parliament and otherwise inexcusable.
The Court adopts what was said by His Honour Justice Wigney on the question of the inability on the part of an applicant to obtain either favourable, or early, legal advice as to the prospects of success of any claim, in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [33] – [35] and at [38] as follows:
“[33] Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
[34] On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
[35] This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].
…
[38] The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.”
(Emphasis added)
The Court finds that the applicant’s conduct in ignoring the required compliance by him with the filing of an application for review within time showed a disrespect for the laws of the Commonwealth of Australia, and that such conduct ought not to be rewarded. The Court further finds that, in such circumstances, the delay was so extensive that the filing of the Originating Application for Review out of time was an abuse of the Court’s process.
There is authority for the proposition that, depending on the circumstances of the case, the Court ought not, prior to the determination of the extension of time question, determine questions other than those relating to that issue. In a clear case where the applicant’s delay was extensive and intentional, the Court is not required to enquire as to the substantive merits of the applicant’s claims for protection before refusing the application for extension of time. Though dealing with an application for extension of time in a non-migration context, the High Court in Prince Alfred College v ADC (2016) 258 CLR 134 at [111] – [112] per French CJ, Kiefel, Bell, Keane and Nettle JJ, in that regard, said as follows:
“[111] The primary judge heard the issue of liability together with questions about whether an extension of time was necessary and should be granted. Section 48(5) of the Limitations Act, which allows for a question as to an extension of time to be determined after the close of pleadings, in practical terms permits this course. It is, however, a question for the court, having regard to the circumstances of the case, whether it is an appropriate course. In the present case, even if there were considered to be good reasons to hear the evidence relating to liability and the extension at the same time, that does not mean that the issue of liability should have been decided once it was obvious that there were problems arising from the state of the evidence and the position in which the PAC was placed.
[112] … The question whether an extension of time is to be granted is one necessarily antecedent to the determination of any issue in the proceedings relating to liability to which the extension is relevant. Moreover, in a case of this kind – where there had been a very long delay in commencing proceedings and the defendant had raised questions of prejudice arising from its inability to obtain evidence – it was essential that those matters, as relevant to the question of extension, be first considered. It is the consideration of those matters which will point to the appropriateness or otherwise of determining any remaining issue in the action where an extension is not to be granted.”
(Emphasis added)
The Court does not consider that it is in the interests of the due administration of justice that applications for extension of time made in circumstances such as the present ought to be granted, irrespective of the substantive merits of the visa application.
The application for extension of time is dismissed.
Substantive Merits of Application
The Amended Application for Review was filed on 25 August 2020. The ground of such application for review was as follows:
“Grounds of application
1. The Tribunal's decision dated 2 September 2015 is affected by jurisdictional error because the Tribunal failed to properly consider the applicant's claim
for protectionto fear a threat to his capacity to subsist in Afghanistan on the basis of membership of a particular social group (PSG), namely, individuals who have resided outside Afghanistan for a prolonged periodand do not have any contacts or property in Afghanistan.Particulars
a. The applicant claimed to fear
serious harma threat to his capacity to subsist if returned to Afghanistan on the basis of membership of a PSG- individuals who have resided outside Afghanistan for a prolonged periodand do not have any contacts or property in Afghanistan.b. The Tribunal failed to properly consider this claim.
c. The Tribunal accepted that the applicant has no family, tribal or social contacts in Kabul or Afghanistan.
d. The Tribunal accepted that the applicant may face harm in the form of not being able to find employment or housing because of his lack of contacts.
and considered this was due to a lack of contacts and difficulties affording housing, rather than as a result of discriminatory conduct for a Convention reason.e. In considering why the harm would result, the Tribunal confused the consequences of the applicant's membership of the PSG with his actual membership of the PSG.
f. Additionally, the Tribunal only considered the harm that would result in the context of the applicant's 'Hazara Shia claims'.
g. In doing so, the Tribunal failed to consider whether the harm would occur as a result due to the applicant's membership of a particular social group- individuals who have resided outside Afghanistan for a prolonged period
and do not have any contacts or property in Afghanistan.”Mr White of Counsel on behalf of the applicant conceded that the sole ground for review was posited upon the claim that the Tribunal had failed to properly consider whether or not the applicant, if returned to Afghanistan, would be unable to subsist by reason of his being a member of a particular social group comprised of ‘individuals who have resided outside Afghanistan for a prolonged period’. It was submitted that such was a clearly articulated ground for review, having been set out in submissions sent by the applicant’s lawyers to the Tribunal on 1 September 2015, [3] particularly as follows: [4]
[3] Court Book (CB) p. 191 – 252.
[4] CB. pp. 195 and 239.
“Individual who has resided outside Afghanistan for a prolonged period
We submit that individuals who have resided outside Afghanistan for a prolonged period can constitute a particular social group. All members of the group share the common characteristic that they have resided outside their home country for the majority of their life. This characteristic is not the fear of persecution. We submit the fact the members of the group have changed accents and would not understand the cultural traditions in Afghanistan makes them easily identifiable. If the applicant was forced to return to Afghanistan, given the fact he has not resided in the country since he was a young child, he would be vulnerable to exploitation and serious harm. Without family ties or land ownership, he would find it extremely difficult to subsist and be likely to be treated with suspicion. Given the importance of family and tribal networks as a security mechanism in Afghanistan, we submit that without same, there is a real risk the applicant would be subjected to serious harm.
…
Situation in Kabul
We submit that the applicant would be at risk of harm if returned to Kabul, Afghanistan. The Applicant instructs that he does not have any family or relations residing in Kabul. His support network in Afghanistan is severely limited given his close family has fled to Pakistan. The Applicant has no property or connection in Kabul to allow him to attempt to subsist there. He has not previously resided in Kabul since he was a young child and therefore it is a very unfamiliar environment for him.”
Relevant to a consideration of such submissions were the contents of [41] and [47] of the reasons of the Tribunal which were respectively as follows:
“[41] I accept that the applicant is illiterate and that he has no family, tribal or social contacts in Kabul or in Afghanistan and has a wife and two children to support and that life in Kabul would be difficult for him and his family. Country information indicates that unemployment is widespread in Kabul and that rents are comparatively high and that many who live in Kabul have no other option than to live in informal settlements. The applicant has work experience in panel beating and driving rickshaws and I note that DFAT have commented that men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children without the assistance of family networks. Whilst the applicant may face unemployment due to a lack of contacts and difficulties affording housing, the country information considered as a whole does not indicate that this will be a result of discriminatory conduct for any of the Convention reasons as required by s.91 R(1 )(a) and (c) of the Act.
…
[47] I accept that the applicant will be identified as having a Pakistani influenced accent but considering the country information as a whole (including the large number of Afghan refugees who have returned from Pakistan) and his individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future on account of his membership of a particular social groups of "failed asylum seekers", ”returnees from the West" and "individuals who have resided outside Afghanistan for a prolonged period" or due to any imputed political opinion as being a supporter of the West.”
The Court accepts the submission made on behalf of the first respondent that the Tribunal engaged in an active intellectual consideration of the applicant’s claims. The applicant had claimed that because he was a failed asylum seeker who had spent a considerable period of time away from Afghanistan, he would be unable to subsist if returned to Kabul. The Court adopts what was said by Banks-Smith J in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [72] – [73] as follows:
“[72] It must be recalled that the statement of reasons of the Tribunal has to be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].
[73] The determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line' will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49]; and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)].”
The Tribunal specifically considered the support that the applicant would provide for his wife and two children living in Kabul, and how that might be difficult for him and his family. The Tribunal referred to country information which stated that unemployment was widespread in Kabul, but then noted that the applicant had experience in panel beating and driving rickshaws. It had regard to DFAT country information which indicated that men of working age were ‘more likely to be able to return and re-integrate successfully’ without the assistance of family networks. The DFAT report of 3 October 2014 relating to conditions in Kabul was footnoted in its decision. [5] The Tribunal then found that though the applicant could face unemployment due to a lack of contacts, country information did not indicate that that would be a result of any ‘discriminatory conduct for any of the Convention reasons’. In so finding, it was clear that the Tribunal had not only considered the issue of subsistence raised in the applicant’s submissions, but had also found that there was no factual basis for a finding that there was any protection obligation owed by Australia to the applicant.
[5] Footnote number 14 at CB 272.
At [47] of its reasons, the Tribunal specifically identified the applicant as a member of a particular social group which comprised failed asylum seekers, returnees from the West, and individuals who had resided outside of Afghanistan for a prolonged period. That paragraph falls under the heading of ‘Failed Asylum Seekers and Returnees from the West.’ Immediately following that heading is paragraph [45] which referred not only to the applicant’s membership of that particular social group, but also to there being no country information before the Tribunal which suggested that any member of such social group had ‘been seriously or significantly harmed in Kabul’. It is significant that the Tribunal not only considered the real risk of the suffering of serious harm, but also the real risk of the suffering of significant harm, each of which considerations were matters relevant to a consideration of the provisions of s. 91R of the Act as it then stood. Paragraph [45] relevantly provided as follows:
“[45] It has been submitted that the applicant faces harm due to his membership of a particular social groups consisting of "failed asylum seekers", "returnees from the West" and as an individual who has resided outside Afghanistan for a prolonged period. I have considered the reports referred to by the applicant's agents including reports of two Hazara returnees from Australia being targeted. However, the submitted reports concern individuals who were targeted outside Kabul and there is no recent information before me that returnees or failed asylum seekers or those who have spent time outside Afghanistan have been seriously or significantly harmed in Kabul. I have had regard to the media release of the Edmund Rice Centre (cited in submissions) in regards to returnees, however in making my findings, I have given more weight to reports by OF AT as it they are authoritative, more recent and the Department has been specifically charged with the provision of this advice to the Australian government. DFAT have commented:
3.9 DFAT assesses that there is no evidence to indicate that low-profile individuals are subject to discrimination or violence as a result of them having spent time in western countries.
…
3.41 More broadly, many Afghans-including Hazaras -regularly travel abroad, to Iran, Pakistan and also to Europe and other western countries to seek work and greater economic or educational opportunities. Even under the Taliban regime, Afghans continued to travel abroad to work or study, and then returned to the country.”
The Tribunal carefully considered all of the claims made to it on behalf of the applicant. It appropriately exercised its review jurisdiction. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The application for review is without merit independently of this Court’s finding that the application for extension of time ought not to be granted.
No jurisdictional error has been established on the part of the Tribunal in reaching its decision. The application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 10 September 2020
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