DWW16 v Minister for Immigration
[2020] FCCA 358
•24 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWW16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 358 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) within which to make a competent application to the Court – no satisfactory explanation for the delay – not in the interests of the administration of justice to extend time – application for an extension of time refused. PRACTICE & PROCEDURE – Leave sought to rely on ground of proposed amended substantive application – previous grounds abandoned – whether there was such merit in the proposed ground to warrant leave to amend in the interests of the administration of justice – no such merit in the proposed ground – leave to amend refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 476, 477 Federal Circuit Court of Australia Act 1999 (Cth), s.13 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 |
| Applicant: | DWW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3575 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 February 2020 |
| Date of Last Submission: | 4 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O. Jones (by direct access) |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the First Respondent: | Clayton Utz |
| Legal Representative for the First Respondent: | Ms S. Burnett |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave to amend the proposed substantive application is refused.
The application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 15 December 2016 is refused.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3575 of 2016
| DWW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 15 December 2016 seeking an extension of time within which to make a competent application pursuant to s.476 of the Act seeking review of the decision of the Immigration Assessment Authority (“the IAA”), which on 28 October 2016 affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (“the visa”).
Evidence
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Background
The applicant arrived in Australia by boat in September 2012 (item 28 at CB 43). The applicant was interviewed by a departmental officer on 7 February 2013 (“the entry interview”) (CB 1 – CB 28). On 2 October 2015 he made a valid application for the visa (CB 98 – CB 142). As the applicant was an “unauthorised maritime arrival”, the application, and as it ultimately was referred to the IAA, was governed by Part 7AA of the Act (s.5(1)(a)(i) – (iii) and s.5AA of the Act).
The applicant claimed to be a Hindu and a Tamil from Batticaloa, Eastern Province, Sri Lanka. He claimed to fear harm in Sri Lanka from the Karuna Group (“KG”) (a pro-government paramilitary group), who sought to extort money and assistance from him. The group perceived him to be wealthy because he had spent time in Saudi Arabia.
He claimed that as he was a supporter of the Tamil National “Party” (“TNP”) (subsequently referred to as the Tamil National Alliance (“TNA”) – see [24] at CB 180), he did not want to help the KG ([12] at CB 140). He also claimed to fear harm from the Sri Lankan authorities because he had previously been assaulted by the Sri Lankan Army (“the SLA”) ([6] at CB 139).
By letter dated 4 March 2016, the delegate invited the applicant to an interview scheduled for 22 March 2016 (CB 154). The applicant attended. The delegate’s decision record makes reference to, relevant to the current proceedings, some of what the applicant said at the interview ([13] at CB 179 and [22] – [37] at CB 180 to CB 181).
The delegate found that the concerns he discussed with the applicant at the interview led, on a cumulative basis, to finding that the applicant had embellished and exaggerated his claims (CB 181 – CB 182).
The delegate found that the applicant would not be of interest: “… to the non-state agents or the Sri Lankan authorities if he were to return to Sri Lanka” ([44] at CB 182). The application was refused, essentially on this basis.
The IAA
The matter was referred to the IAA on 1 August 2016 (CB 195.4). The Minister’s written submissions (“respondent’s submissions” – “RS”) contain a comprehensive report on the IAA’s consideration and findings (at [7] – [11]):
“7. The IAA had regard to all of the material referred to it by the Secretary pursuant to s 473CB of the Act.8
8. The IAA accepted that the applicant was threatened and robbed by the Karuna Group in 2012. It did not accept that he was subsequently approached by the Karuna Group by reason of the applicant's "vague description" of those later encounters. Nor did it accept that the applicant genuinely feared the Karuna Group given his continued residence in his home area after the 2012 incident despite being able to return to Saudi Arabia. The IAA did not accept that the Karuna Group had visited the applicant's house after his departure from Sri Lanka. It observed that this claim had not been made prior to his SHEV application in 2015. Given this, and country information regarding the cessation of paramilitary activities by the Karuna Group, the IAA did not accept that the applicant faced a real risk of harm from the group upon returning to Sri Lanka.9
9. After considering available country information the IAA did not accept that the applicant faced a real risk of harm by reason of his association with the TNA or as a Tamil in Sri Lanka. It observed that the country information before it did not indicate that TNA supporters continued to face harm from any paramilitary groups or any other non-state agent. It further noted that there were no official laws or policies in Sri Lanka that discriminated on the basis of ethnicity or language, including in relation to access to education, employment or access to housing and that the implementation of laws and policies by the Sri Lankan government (the Sirisena government) was generally without discrimination. For these reasons, and in light of the TNA's position in the political system in Sri Lanka, it was not satisfied that the applicant faced harm as a TNA supporter.10 As the LTTE were no longer in existence, the IAA also found that the applcaint [sic] would not face harm from that group. The IAA accepted that the applicant was assaulted by the SLA in 1996 as claimed. However, it observed that he had been of no adverse interest since then and had willingly engaged with the authorities on a number of occasions, primarily to obtain official documentation for travel between 1998 and 2012 to Saudi Arabia.11
10. The IAA accepted that the applicant left Sri Lanka illegally. It accepted he would be charged under the Immigrants and Emigrants Act (I&E Act), face a brief period of detention (in unpleasant conditions) and a fine. However, it found the treatment to which the applicant would be subject under the I&E Act would be pursuant to a non-discriminatory law of general application. The IAA was not satisfied that such treatment amounted to serious or significant harm. The IAA further found that having regard to the applicant's profile, it was not satisfied that he had a well-founded fear of persecution as a failed asylum seeker.12
11. The IAA was not satisfied that the applicant was a person to whom Australia owes protection obligations by virtue of s 36(2)(a) or (2)(aa) of the Act.13”
[Error in the Original.]
[Footnotes Omitted.]
The Extension of Time: s.477(2) of the Act
As set out above, the applicant seeks an extension of time pursuant to s.477(2) of the Act within which to bring a competent application pursuant to s.476 of the Act before the Court.
The IAA’s decision was made on 28 October 2016. The application to the Court said to be made pursuant to s.476 of the Act was filed on 15 December 2016. Section 477(1) of the Act required that application to have been made within 35 days of the date of the IAA’s decision. It was not. It was filed 13 days late.
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant the application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
Prior to the Hearing
At the hearing on 4 February 2020, the applicant was represented by counsel on direct access. The applicant sought leave to proceed on an amended proposed substantive application, which he sought to file in Court.
Ultimately leave was granted to the applicant to file this proposed amendment, for the purpose of hearing argument as to whether the leave should be granted.
As set out above, the issue in the current proceedings is whether it was in the interests of the administration of justice to extend time to enable the applicant to make a competent substantive application pursuant to s.476 of the Act, even though it was filed 13 days after the date required pursuant to s.477(1) of the Act.
Previously on 18 September 2019 the application to extend time was set down for hearing on 4 February 2020. Orders were made on that date which, amongst other things, directed the parties to file written submissions, fourteen days (21 January 2020 – the applicant) and seven days (28 January 2020 – the Minister) respectively, prior to the hearing. No submissions were filed by the applicant by that date.
The Minister did file his submissions on 28 January 2020. In his submissions, the Minister noted that the applicant had sent a proposed amended substantive application to him containing one proposed ground. This document was never filed with the Court.
In any event, the Minister further noted that there was nothing from the applicant to indicate that the sole ground of the proposed substantive application had been abandoned.
In his written submissions under the heading of “Further consideration”, the Minister also raised an issue further to what was set out in the proposed substantive application concerning notification of the delegate’s decision to the applicant. [It was not sent to the last notified address provided for the purposes of receiving correspondence].
In his written submissions the Minister stated that he consented to an order extending the time under s.477(2) of the Act: “…by reason of the matters addressed under the heading “Further consideration” below” (see RS [4](a)).
As set out above, the Minister had had notice in June 2019 (although not filed in Court) of the proposal to amend the proposed substantive application. In relation to this proposal the Minister stated (as at 28 January 2020) that he: “…neither opposes nor consents to the application for leave to rely on the proposed amended application” (see RS [4](b)).
However the Minister also noted that there had been considerable delay in seeking to rely on the proposed amended application (the application to the Court was made on 15 December 2016) and that no explanation had been provided for this delay.
On 28 January 2020 (the date of filing the Minister’s written submissions) the Minister’s solicitors sent an email to my Chambers advising that (consistent with what was set out in the Minister’s written submissions at [4](a)) the Minister sought that the hearing date for the extension of time be vacated and that the matter proceed as a final hearing.
While this was copied to the applicant (at the email address he had provided to the Court), there was nothing from the applicant to explain whether he was abandoning the ground of the originating proposed substantive application (noting that no proposed amended application had been filed), or whether he took no issue with the “Further consideration” raised in the Minister’s written submissions.
The parties were advised (by email) that the matter remained listed for a hearing of the extension of time pursuant to s.477(2) of the Act.
It is trite to say that the granting of the extension of time involves the exercise of a statutory discretion. This Court has the power to exercise its jurisdiction in Chambers without a hearing (s.13(4) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”)). However such exercise requires the consent of both parties (s.13(4)(b) of the FCCA Act).
In the current case there was no indication from the applicant as to whether he consented to what had been proposed by the Minister, and in the circumstances in which the Minister made his proposal. In the current case this was also important because there was no indication from the applicant (even in light of the Minister’s written submissions) as to what he sought to press, and relevantly not press, in his proposed substantive application, at the hearing of the extension of time.
Further, the exercise of a statutory discretion (in this case s.477(2) of the Act) is not of such administrative character (as, say, an extension of time pursuant to orders made previously by the Court as to the filing of written submissions) as to be done in Chambers, as opposed to open Court where the Court can hear fully from both parties.
Even further, the exercise of a statutory discretion such as that envisaged by s.477(2) of the Act should also, ordinarily, occur in open Court, given the infinite number of factors to be considered in such an exercise. The matter remained listed for a hearing, on 4 February 2020, of the application to extend time.
On Sunday 2 February 2020 an email was sent by the applicant’s counsel (there had been no earlier indication that he would be appearing for the applicant) who advised that he had: “…recently been briefed to appear at the hearing on behalf of the Applicant”. He attached to the email written submissions, which had not been filed with the Court. He stated he would make oral submissions at the hearing consistent with the written submissions and seek leave to amend the proposed substantive application.
Those submissions (subsequently confirmed at the hearing) abandoned “all prior grounds”. This appeared to relate to the grounds of the proposed substantive application. It was not clear whether this included the grounds of the application to extend time. The submissions sought to advance one ground of a proposed amended substantive application, which sought judicial review of the IAA’s decision.
The Delays: The Extension of Time
The Seeking of Leave
At the hearing of the application to extend time the applicant provided no evidence, nor did he advance any argument, to explain what he described as the “short” delay of 13 days in seeking to make his application pursuant to s.476 of the Act.
His counsel indicated that he had misunderstood the basis of the concession made by the Minister in relation to the extension of time. Although not made explicit, I understood this to have been put in the context, possibly, of the applicant’s failure to provide any evidence to support either the application to extend time, or the application for leave to proceed by way of the proposed amended substantive application. Although I note, in relation to the former, the applicant had been required to file any such evidence prior to the filing of the Minister’s written submissions.
The Minister’s position (in his written submissions) of the concession was perfectly clear. The plain and clear words used by the Minister leave no basis for any assertion of ambiguity, or lack of clarity, so as to be open to misunderstanding or confusion. It was therefore difficult to understand counsel’s stated misunderstanding.
In any event, the Minister’s concession related only to the extension of time, and not to the grant of leave for the proposed amended substantive application.
While the delay in relation to the first matter (the extension of time pursuant to s.477(2) of the Act) is 13 days, the delay in bringing forward the proposed amendment of the proposed substantive application (pursuant to s.476 of the Act) is far longer. As set out above, the application to the Court was filed on 15 December 2016. On 27 April 2017 a Registrar of the Court made an order that gave the applicant the opportunity to file any proposed amended substantive application on or before 8 June 2017. The applicant did not take up that opportunity.
The applicant appeared before the Court at directions on 18 September 2019, when the application to extend time was set down for hearing. Given that both parties agreed at the hearing before the Court on 4 February 2020 that the proposed amended substantive application had been given to the Minister in June 2019, the applicant would have known at directions on 18 September 2019 that he would seek to press an amendment, but made no mention of it whatsoever.
By his email of 2 February 2020 counsel advised the Court that he had only: “…recently been briefed to appear”. However even on this basis the proposed amended substantive application, as set out in the written submissions attached to the email of 2 February 2020 (and put to the Court for the first time), appeared to be in similar terms to what had been given to the Minister in June 2019.
While the applicant may claim that the delay in relation to the extension of time (13 days) was “short”, this still does not relieve the applicant of making some attempt to explain this delay by way of evidence.
His failure to make any attempt in this regard may be sufficient of itself to dismiss the application to extend time. However, even if counsel did misunderstand the basis of the Minister’s initial concession (subsequently withdrawn), there could be no misunderstanding as to the delay in seeking leave to amend. Nor was any such claim made by the applicant before the Court.
The delay in raising that proposed amendment with the Court was over two and a half years from the date given to the applicant to make any such proposed amended substantive application. [Order 2 made by the Registrar on 27 April 2017 gave the applicant until 8 June 2017].
It is two years between that date and the date on which the Minister received notice [June 2019].
Even taking that date, this is a significant delay which does require some explanation based on evidence.
What has occurred in this case is that the applicant has appeared through his counsel. He has made no attempt to explain with any evidence whatsoever the 13 day delay or, even at best, the two year delay (in relation to the proposed leave).
At the hearing there was some dispute between the parties as to the length of the delay in the making of the application to extend time as it related to the proposed amended ground.
For the purposes of the application to extend time, the applicant submitted that the Court should consider that matter, having regard to the merits of the proposed ground, and that the relevant delay was 13 days, even though that proposed ground had not, at best, been brought forward until two years later.
The Minister submitted that the delay in relation to the extension of time pursuant to s.477(2) of the Act was two years, given that the ground of the original proposed substantive application had been abandoned.
The applicant’s argument suffers from one important deficiency. This is not a case where the applicant has sought leave to file a proposed amendment in a timely fashion. Counsel may well have only been briefed “recently”, but the applicant was in possession of his proposed ground about eight months ago. He attended Court at directions and made no mention of this. His failure to provide any evidence whatsoever to explain this only compounds the deficiency of his position.
In the circumstances, this important omission in the presentation of his case is also probably sufficient to refuse the grant of the leave to amend.
In any event, what the Court is left with is an application to extend time pursuant to s.477(2) which, in an evidentiary context, is deficient as to any explanation for the 13 day delay. Further, an application for leave either two, or two and a half, years late, for an amended proposed substantive application, which is also absent any reasonable or satisfactory explanation whatsoever, let alone based on any evidence.
Of course the length of the delay in both cases (whatever it may be in the latter case) should also be weighed in light of the merits of the proposed ground.
That is, in relation to the grant of leave, does the ground have such merit as to argue, in the interests of justice, that it be fully heard.
In relation to the extension of time (s.477(2) of the Act), the issue is whether the ground has requisite merit, even at the impressionistic level, such that the interests of the administration of justice calls for the extension of time.
In either case, for the reasons that follow, the proposed ground lacks such requisite merit to call for the exercise of either, or both, of the discretions in the applicant’s favour.
To avoid any doubt I note that the applicant’s counsel submitted, notwithstanding the relevant test, that the applicant would argue his case to its fullest extent, so that if the Court granted the leave to amend, and exercise the discretion to extend time, the Court would proceed to finalise the matter without recourse to further argument from the parties, unless the Court otherwise required it.
The Merits of the Proposed Ground
The proposed ground is in the following terms:
“1. The Authority made a jurisdictional error at paragraph 12 of its decision in its treatment of the Applicant's entry interview in 2013.
Particulars
a. The Authority noted that the Applicant had explained an apparent omission from his entry interview on the basis that it was not recorded in the transcript.
b. The Authority indicated that it had investigated the matter for itself by listening to the audio of the entry interview and concluded that there was no error in the transcript of the entry interview, with the result that there had indeed been an omission by the Applicant.
c. The finding of the Authority was legally unreasonable as the law requires an evident and intelligible justification for the Authority's decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW) at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ).
d. There was no evident and intelligible justification for the Authority to reach its finding as to events at the entry interview as there was no indication that the Authority spoke the Tamil language at all or did so with such a level of proficiency that the Authority could make a finding of fact as to utterances by the Applicant in the Tamil language.
e. In any event, the Authority did not apply the caution in relation to entry interviews and omissions therefrom urged by the Full Federal Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [55]-[57].
f. The Authority's findings as to the entry interview had materiality as they formed the basis for the Authority's conclusion that the Applicant had not faced ongoing attention from the Karuna group which could have made a different to the result (Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31] per Kiefel CJ, Gageler and Keane JJ).”
[Error in the Original.]
The applicant’s proposed ground directs attention to [12] (CB 214) of the IAA’s decision record:
“12. In his SHEV application, the applicant provided a secondary statement of claims, dated 30 September 2015. The applicant stated that his wife had advised him that members of the Karuna group had been to his house on two occasions since his departure from Sri Lanka. He had become aware of his information while he was held in immigration detention on Christmas Island in 2012. Since the applicant’s detention in 2012, he was interviewed by a departmental officer in 2013, who asked him why he fears returning to Sri Lanka and asked him to outline any harm he has previously faced. The applicant also lodged an invalid application for a protection visa in 2013 where he outlined the reasons why he cannot return to Sri Lanka, however failed to mention these visits by the Karuna group on both occasions. The applicant first raised the visits by the Karuna group since his departure from Sri Lanka in his SHEV application lodged in 2015, despite claiming to have been aware of this information since 2012. During the SHEV interview the delegate asked the applicant about why he has failed to mention this earlier. He claimed that he mentioned it in the 2013 interview but it was not recorded on the transcript. Upon listening to the recording of the 2013 interview, I do not accept this response. The applicant later stated that he may not have mentioned it because he was not asked to explain it in detail. I accept this may have been the situation in the 2013 interview however I note the applicant’s statement of claims was prepared with the assistance of a registered migration agent in 2013 and he would have had the opportunity to present all of his claims for protection. I do not accept the applicant’s response in respect to the delay in raising this claim as plausible. I do not accept members of the Karuna group visited the applicant’s house on two occasions since his departure from Sri Lanka.”
The parties agreed with the Minister’s description of the relevant background (at [5]-[6] of his written submissions):
“5. The applicant is a Hindu, Tamil from Batticaloa, Eastern Province, Sri Lanka, who first arrived in Australia on 7 September 2012 as an "unauthorised maritime arrival" (ss 5(1)(a)(i)-(iii), 5AA of the Act) and therefore his SHEV application was subject to, and governed by, Part 7AA of the Act.6
6. By his SHEV application, the applicant claimed to fear harm in Sri Lanka as a Tamil who was extorted for money and assistance by the Karuna Group. He claimed to be regarded as wealthy because of the time that he has previously spent in Saudi Arabia. The applicant stated he did not want to assist the Karuna Group as he was a supporter of the Tamil National Alliance (TNA). The applicant also claimed to fear harm from the authorities as a Tamil who had previously been assaulted by the Sri Lankan Army (SLA).7”
[Footnotes Omitted.]
The applicant’s sole proposed ground relies on Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) to assert that the IAA’s decision lacked an evident and intelligible justification such that it was legally unreasonable. That was said to arise specifically from what was said to be the IAA’s investigation for itself of the audio of the applicant’s entry interview, to conclude there was no error in the transcript of that interview.
The lack of the evident and intelligible justification is stated in the ground to be that there was no indication that the assessor spoke the Tamil language (in which the applicant spoke at the entry interview), so as to enable the IAA to make a finding as to what the applicant did, or did not, say at the entry interview.
In short, the IAA found that the applicant first raised a claim to fear harm concerning the KG at the subsequent interview with the delegate. It found that at the delegate interview the applicant “first raised” this claim in 2015, even though he otherwise knew of the KG claim in 2013, and did not raise it at the entry interview, or in a written statement of claims subsequently (the first written statement by the applicant).
The IAA noted that the applicant told the delegate that he had raised it at the entry interview but that it was not recorded. The IAA listened to the audio of that interview, and in the applicant’s submission, “unreasonably” rejected the applicant’s claim that he had raised it at the entry interview. This was said to be because there was no indication the assessor could understand the Tamil language.
Before the Court the applicant relied on AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 (“AVQ15”) at [27] – [28] in particular, to argue that the IAA did not proceed with appropriate caution in its assessment of this claim, and fell into error as identified by the Full Court in that case (see further below).
Reference was also made generally to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”), Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (“Hossain”).
For the reasons set out below, whatever articulation of unreasonableness the applicant sought to rely upon is not made out, because the applicant has been unable to establish the factual basis for the claimed error in fact finding by the IAA. As set out below, I agree with the Minister’s submission that the applicant has misunderstood or mischaracterised what the IAA has set out at [12] (CB 214).
An eloquently presented argument is not sufficient, even at an impressionistic level, to reveal an arguable case with the requisite merit, so as to weigh in favour of the exercise of either of the two discretions at issue in the current proceedings.
What is required is that that argument arise reasonably from the evidence before the Court, and with specific reference to explaining the proposed ground, as pleaded. This is the weakness in the applicant’s proposed ground and his arguments in support of it.
The applicant’s approach is to dissect the IAA’s reasoning (at [12]) into its constituent and sequential parts, and take issue with one aspect of the reasoning, without understanding, or attempting to explain, the relevant context for the IAA’s analysis, reasoning, and findings.
The applicant takes issue with one part of the reasoning. That is, that it was unreasonable to determine the claim of harm feared from the KG (as arising from the claimed visits by this group to the applicant’s home after he left Sri Lanka) by listening to an audio recording of the entry interview, in circumstances where the IAA assessor could not understand the Tamil language.
What the IAA reasoned at [12] must be understood in the context in which those matters arose, and were ultimately the subject of the referral to it.
In a written statement (CB 139 – CB 141) dated 5 September 2013, and which was a part of his application for the visa, the applicant stated that he feared for his life because the KG had come to his house demanding that he assist them. He did not want to do so because he supported the “Tamil National Party” ([9] – [12] at CB 139 to CB 140).
At the interview with the delegate on 22 March 2016, the delegate noted that in a supplementary statement dated 30 September 2015 (CB 142) the applicant further stated that after he left Sri Lanka, his wife told him that in September 2012 (after he arrived in Australia), when he spoke to his wife by telephone, that “men” had come to her house on two occasions looking for him ([2] at CB 142).
The delegate’s decision record is relevantly as follows ([34] – [37] at CB 181):
“34. In his supplementary statement dated 30 September 2015 the applicant has stated that after he was detained on Christmas Island his wife informed him that some men came looking for him. However in his arrival interview and his statement dated 5 September 2013 the applicant had not mentioned about this incident. When it was put to him for his comments, he stated he had mentioned during his interview on 5 September 2013 but it was not recorded. Later he stated that it is possible that he would have not mentioned about that incident because he was not asked to explain about it in detail.
35. In his arrival interview the applicant had stated that after he returned from Saudi Arabia in 2012 someone stole from him and threatened him holding a knife to his throat and he did not mention that those people were from Karuna group. When it was put to him why he did not mention about Karuna group, he stated that he informed all the problems was because of Karuna group.
36. In his arrival interview the applicant had stated that he came to Australia because of poverty and there is no work back home. When the information was put to him for his comments, he stated when he was asked for the fundamental reasons for leaving Sri Lanka he gave those reasons however when he was asked how he was threatened he told them the remaining story.
37. When asked who the applicant fears if he were to go back to Sri Lanka, he stated it might be Karuna group or Pillian group. He stated that he would be tortured and killed by those groups if he were to return to Sri Lanka.”
[Errors in the Original.]
As is clear from its decision record, what the IAA set out at [12] (CB 214) is derived principally from what the applicant was said to have stated at the interview with the delegate, and in context of what he says occurred at the entry interview.
The subject of the analysis at [12] was the applicant’s claim that after he left Sri Lanka, his wife, in 2012, told him members of the KG came to his house on two occasions. That is plain given what is set out at the first, second, third, and last sentences of [12] (at CB 214).
The IAA reasoned that the applicant made this claim in a “secondary statement of claims” dated 30 September 2015 in relation to his visa application.
Given that the applicant said that he had been aware of this since 2012, the IAA reasoned that since that time the applicant had had two occasions when he could have raised this claim prior to the statement of 30 September 2015.
That is, he had been interviewed by a departmental officer in 2013 (the entry interview), and had made an invalid application for a visa in 2013. In relation to the first, he was specifically asked about harm he feared in the past, and in relation to the second, he outlined the reasons as to why he feared harm.
The IAA found that on both occasions the applicant made no reference to what he subsequently said in his statement of 30 September 2015, that his wife told him of those KG visits.
The IAA noted that at the subsequent interview with the delegate on 22 March 2016, the delegate asked the applicant why he failed to mention this claim earlier than in the statement of 30 September 2015.
The IAA noted that the applicant’s response to this question from the delegate was that he had mentioned “it” in the 2013 entry interview: “…but it was not recorded on the transcript”.
At the hearing before the Court, the applicant submitted that the word “it”, as it appears in this part of [12] (CB 214), was a reference to the KG visit claim, and that the applicant had mentioned it at the entry interview in the Tamil language.
The applicant submitted that the subsequent reference to “not recorded on the transcript” was not the focus of his argument now. That is, the applicant told the delegate he had mentioned it (the KG visit claim) at the entry interview, in Tamil.
The IAA’s decision was said to be unreasonable because it failed to provide an intelligible justification for its conclusion on this claim, as it sought to investigate the applicant’s assertion to have mentioned “it” at the entry interview by listening to the audio recording of the interview, in circumstances where there was no indication the assessor understood the Tamil language.
That is, the subsequent reliance by the IAA on its finding that the applicant did not mention “it” was unreasonable in circumstances where the assessor could not understand what the applicant had said.
As set out above, the applicant’s self-serving (in terms of his argument) focus on one part, of one sentence, of the IAA’s analysis, is not helpful in revealing jurisdictional error.
What the applicant plainly told the delegate, on the evidence before the Court, (the only relevant evidence before the Court is what is reported in the delegate’s decision record) was that he had: “…mentioned it in the 2013 interview but it was not recorded”.
There was no indication by the applicant at the delegate’s interview that he mentioned “it” in the Tamil language, but what he said was not interpreted by the interpreter, or that the interpreter made some error, or omission, in interpretation.
The plain words that the delegate reports the applicant as having told him were that: “…he had mentioned during his interview on 5 September 2013 but it was not recorded” ([34] at CB 181). [The applicant’s entry interview, on the evidence, occurred on 7 February 2013. The delegate’s reference to the interview on 5 September 2013 is an error, as on the evidence no interview took place on that date. It is in fact the date of the applicant’s first written statement. In context, it is clear that the delegate was referring to the entry interview held on 7 February 2013].
There is nothing in this statement by the applicant to indicate that he spoke in the Tamil language, and that there had been some omission or error in interpretation by the interpreter at the entry interview.
The evidence now before the Court is that the entry interview was conducted with the assistance of an interpreter in the Tamil language (CB 2.7). There is no claim, let alone evidence by the applicant now, of any failure in interpretation at the entry interview.
There is no transcript of the delegate’s interview in evidence before the Court. The only evidence as to what the applicant said at that interview with the delegate, relevantly, about what occurred at the entry interview, is what the delegate reported in his decision record. That interview was also conducted with the assistance of an interpreter in the Tamil language (CB 154.9).
Importantly, there is no claim now by the applicant, let alone any evidence, of any errors by the interpreter at that interview. The delegate’s report remains the only source of relevant evidence.
The applicant’s argument now that he mentioned “it” in the Tamil language does not go far in circumstances where he also makes no claim as to any errors or omissions in the interpretation from Tamil into English.
The applicant’s argument also ignores the word “recorded” as used, on the evidence, by the applicant himself at the interview with the delegate.
In noting what had been relevantly said at the delegate’s interview, the IAA understood the applicant’s use of the word “recorded” as being “recorded on the transcript”.
There is no evidence before the Court now that there was a transcript of any audio recording of the entry interview put before the delegate, or before the IAA.
On the evidence what was before the IAA ([2] at CB 212, and “A” at CB 177) was, amongst other things, what was “recorded” by the departmental officer who conducted the entry interview with the applicant in the interview report (CB 1 to CB 27).
On the evidence, that interview commenced at “15:29” on 7 February 2013, and finished at “16:29” (CB 1.8). The signatures appearing at the end of the interview record of the applicant, the interpreter, and the officer conducting the interview, are recorded as being signed, respectively, at “16:28:40”, “16:29:01”, and “16:29:24” on 7 February 2013.
It is to be noted that the entry interview was not, either on its face or otherwise stated, to be an assessment of the applicant’s claims to protection. It was an interview conducted with a person (the subsequent applicant) who arrived in Australia without authority to do so. As such, matters of identity, background factors, personal and family details, visa history, and travel to Australia, were the questions asked of the applicant.
The record of the interview also reveals that the applicant was asked why he left Sri Lanka, why he came to Australia, and why he could not return to his home country (Part C, at CB 21 – CB 26). While the applicant made reference to the “Karuna group” (question 18 at CB 26) there is no record there, or elsewhere in the entry interview record, that he said that they had come to his house after he left Sri Lanka.
Given the times of when the entry interview commenced and finished, and the times when the document was signed, it is clear that what was recorded as the applicant’s answers to each of the questions was a contemporaneous record of what the applicant had said through the interpreter to the departmental officer.
It is to be noted that when the delegate told the applicant that he had not mentioned the KG visit claim at his entry interview, or in his earlier written statement of 5 September 2013, it was the applicant who responded that he had mentioned this during his interview: “…but it was not recorded” ([34] at CB 181).
On the evidence the only “recording” of what was said at the entry interview, as before the delegate and the IAA, was either what was contemporaneously recorded in the entry interview report by the departmental officer, or the audio of that entry interview.
Given that the written record of the entry interview was a contemporaneous recording, in the absence of any claim subsequently of interpretation error in that interview by the applicant, it was reasonable of the IAA to find that what the applicant told the delegate he had mentioned was: “…not recorded on the transcript” ([12] at CB 214).
After all, on the evidence, the only written record, or recording, of the entry interview to which the delegate could have referred in his questions to the applicant at the delegate’s interview, was that report.
The IAA could have let matters rest, as the delegate did, and found that the applicant was not telling the truth about key aspects of his claims because of, amongst other things: “…the discrepancies found in his statements regarding his claims since his arrival in Australia” ([41] at CB 181 with stated reference to [35] – [37] at CB 181, as reproduced above at [74]).
But the IAA did go further. In circumstances where the applicant made no claim of any interpretation errors at the entry interview, and in circumstances where he specifically stated that he mentioned the KG claim, but it was not “recorded”, it was reasonable of the IAA to understand this as a reference to either that it was not recorded in the entry interview record, or was not recorded on the audio recording of the entry interview.
Given that the written entry interview report was before the IAA, it was reasonable, and fair, of the IAA to then seek to investigate the applicant’s claim (unlike the delegate), by listening to the only other recording, on the evidence, available to it of what the applicant had said. That is, the audio recording.
Given that the applicant made no claim of any error or omission in interpretation, it was also reasonable of the IAA to proceed on the basis that what the applicant had told the delegate was a reference to what had been said, and had been interpreted in English.
What is clear from the IAA’s reasoning, in the circumstances presented to it (including that there had been no complaint about the interpretation at the entry interview), is that if the KG visit claim was mentioned as the applicant had initially told the delegate, but was not recorded in the “transcript”, then listening to the audio would determine the applicant’s explanation to the delegate that he had mentioned “it” one way or the other.
There is no evidence before the Court, nor did the applicant assert in his arguments before the Court, to support what the delegate reports as the applicant’s answer to the delegate’s question. That is, that he mentioned the KG claim at the entry interview, but it was not recorded.
Further, this was not all of the applicant’s answer to the delegate’s question and explanation as to why he did not raise the KG visit claim earlier.
Before the Court the applicant sought to selectively sever that part of the IAA’s reasoning, as set out above, from what subsequently follows at [12] (CB 214).
It was the applicant’s evidence to the delegate that he may not have mentioned “it” at the entry interview because he was not asked for details ([34] at CB 181).
The IAA accepted that this may have occurred. Given the purpose of the entry interview, the structure and format of the interview report, this also was reasonably open to the IAA.
Before the Court the applicant focused on one part of the IAA’s reasoning, addressing one part of the explanation given by the applicant, as to why he did not mention the KG visit claim earlier.
However, as is clear from the delegate’s decision record (the only evidence before the Court of what the applicant told the delegate), the applicant gave two seemingly contradictory answers to the one question ([34] at CB 181).
The IAA did not accept the first answer for the reasons set out above. It did accept the second answer.
The nature and context of the second answer is important. It is to be remembered that the question the delegate put to the applicant at the delegate’s interview was, in effect, why he delayed making the KG visit claim until his statement of 30 September 2015, when he had at least two earlier opportunities to have done so.
The applicant gave two contradictory answers in explanation to this question. However, the IAA did not, in its analysis, rely on any finding that the applicant had given contradictory, or inconsistent, evidence (see with reference to AVQ15 below). Rather, with reasons given, it did not accept one, and did accept the other.
In relation to the explanation it did accept, the IAA found that the applicant still had the opportunity to have mentioned this claim in his statement of claims on 5 September 2013, but even with the assistance of a registered migration agent, he did not do so.
In all, therefore, the IAA found that the applicant had not provided a plausible explanation for the delay in raising the KG visit claim, and on this basis did not accept that claim.
For the reasons set out above, I accept the Minister’s submissions that the applicant has now “misinterpreted” what he initially told the delegate. That is, that he mentioned the KG visit claim at the entry interview, but it was not recorded.
There was no suggestion by the applicant that this failure in recording was due to any error, or omission, in interpretation. There is nothing in the evidence before the Court as to what occurred at the delegate’s interview to support the applicant’s argument now that what he meant was that he spoke in Tamil, made the claim (which he subsequently told the delegate he may not have made), but it was not recorded.
What is missing in the applicant’s argument is, even if he spoke in the Tamil language (which, plainly on the evidence, he did), was the evidentiary connection between the fact that he spoke in that language, and the exact location of where that was “recorded”.
As set out above, the only recording before the delegate, which, after all, is where he gave this explanation, was what was recorded in the written entry interview report. There is no evidence that the applicant was referring to any other recording. The applicant has not provided any evidence that he was in possession of any audio recording, or that he was referring to any such recording before the delegate.
There is nothing in the evidence before the Court to support what is at least implicit in the applicant’s argument, and certainly necessary for that argument to be made out, that the applicant told the delegate that he had mentioned this in the Tamil language, and what he said in Tamil was not recorded.
It is certainly the case that reasonableness in the legal sense is a necessary element in lawful decision making. In exercising the power given to it by Part 7AA of the Act the IAA was required to exercise that power reasonably. (SZVFW at [4], [80], [89], Li at [26], [29], [63], [88], and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [4], [53]).
The applicant’s reference to SZVFW at particular C of the sole ground of the proposed amended substantive application relies on that case for the purpose of asserting that the impugned finding by the IAA was legally unreasonable, because it did not provide an intelligible justification for its finding.
There is no doubt that SZVFW stands for the proposition that the applicant now proposes. However, as was also said in SZVFW, the relevant test in this regard is stringent (at [11], and see also Li at [108]).
As was also said in SZVFW, the determination of legal unreasonableness depends on the facts of each case, and requires attention to the evidence in each case (SZVFW at [84], and see Stretton at [7]).
Before the Court the applicant sought to rely on AVQ15, in particular at [27] – [28], for the proposition that the IAA did not exercise appropriate caution in making the finding that the KG visit claim was not raised in the applicant’s written statement of 2013, and in making its finding that the applicant delayed in raising the KG visit claim.
Ultimately I did not see that this reference assisted the applicant in the facts and circumstances of this case, as set out above. The applicant’s approach in the current case was to seek to draw what the Full Court found in AVQ15 to attack the IAA’s finding of delay, by simply relying on the lack of a proper explanation by the applicant, to then finding that the KG visit claim was not true.
It is not necessary to go into great detail as to the circumstances which the Full Court considered in AVQ15. In that case the AAT was focused on the question of the applicant’s credibility, and found adversely to the applicant in this regard based on findings of inconsistencies in the applicant’s evidence. As was made clear in AVQ15 (at [27]), on which the applicant in the current case relied, the Full Court stated that: “…the term “inconsistency” should be used with appropriate caution [by the relevant decision maker]”.
The IAA in the current case (at [12], CB 214) made no finding of inconsistency in the applicant’s claims or evidence. The applicant’s credibility as such was not at issue, as was the case in AVQ15. Rather, the IAA did not accept one explanation for not raising the KG visit claim at the entry interview, but accepted the other explanation.
At its highest, the applicant’s argument is that the IAA fell into jurisdictional error because of a particular factual finding that it made that the applicant did not mention the KG visit claim at the entry interview. That finding was legally unreasonable because the IAA listened to the audio recording of that interview in circumstances where it could not understand the Tamil language. Therefore there was no intelligible justification for the IAA’s finding in this regard.
For the reasons set out above, there is no indication of error in the IAA’s understanding of what the applicant had relevantly told the delegate in relation to the KG visit claim.
The applicant gave two seemingly different reasons for his explanation to the delegate, as to the question as to why there was no record of the applicant having raised the KG visit claim at the entry interview.
The IAA sought to deal with both aspects of the applicant’s explanation. It did so reasonably, for the reasons set out above.
The key finding at [12] (at CB 214) is that the IAA did not accept the applicant’s claim that the KG visited his house after he left Sri Lanka. It did so because it found that the entirety of the applicant’s response, or explanation, as to why he did not raise this earlier, despite opportunity to do so, was not plausible.
The IAA did provide an intelligible justification for its ultimate conclusion on the plausibility of this claim. That justification arose from an analysis of the applicant’s own evidence to the delegate, and in light of other material before the IAA. That is, there was no mention of it at the entry interview (the applicant subsequently told the delegate this may have been the case), and no mention of it in a written statement of claims prepared with the assistance of a registered migration agent on 5 September 2013.
Conclusion
The applicant’s proposed ground lacks requisite, or sufficient, merit to call for the leave to amend the proposed substantive application. That leave is to be refused in circumstances also where, with legal representation, the applicant has provided no evidence whatsoever to explain the delay (as set out above) in bringing forward this proposed ground.
In this light, and given the applicant abandoned all earlier grounds of the proposed substantive application, there are also no grounds left in respect of which it can be said there is some merit to warrant the extension of time sought by the applicant pursuant to s.477(2) of the Act. That request should also be refused.
Even if the applicant had brought forward the proposed ground at an earlier time, that is, without the delay, as set out above, it still would have lacked merit to call for the extension of time in the interests of the administration of justice. This is so even if, as the applicant argued, the relevant delay was a “short” 13 days.
It is appropriate to refuse the leave to amend the proposed substantive application and to refuse the extension of time pursuant to s.477(2) of the Act. I will make those orders.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 February 2020
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