DZAFG v Minister for Immigration & Anor
[2015] FCCA 168
•19 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZAFG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 168 |
| Catchwords: MIGRATION – Application for leave to proceed out of time – application for injunction to restrain the Minister from deporting the applicant – application for judicial review – no arguable case – applications dismissed. |
| Legislation: Migration Act 1958 (Cth) s.447 |
| SZQPW v Minister for Immigration [2012] FMCA 471 SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | DZAFG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 2 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 19 January 2015 |
| Date of Last Submission: | 19 January 2015 |
| Delivered at: | Darwin |
| Delivered on: | 19 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Johnson |
| Solicitors for the Applicant: | William Forster Chambers |
| Counsel for the Respondent: | Mr Bevan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed 14 January 2015 is dismissed.
That the Applicant pay the Respondent’s costs in the sum of $3,416.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 2 of 2015
| DZAFG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
This is an urgent application brought by the applicant for an injunction restraining the Minister from deporting him tomorrow to Vietnam pending the outcome of his application for judicial review of the Refugee Review Tribunal’s decision which affirmed the delegate’s decision to refuse his application for a protection visa.
That decision of the Refugee Review Tribunal was made on 19 September 2012. Therefore, part of the applicant’s application is for leave to file his application out of time. Pursuant to s.477(2) of the Migration Act 1958 (Cth) I have discretion to grant the applicant leave out of time if I consider it to be necessary in the interests of the administration of justice.
Significantly, s.477(1) of the Migration Act 1958 (Cth) requires the application to be filed within 35 days. According to the Minister’s calculations, the applicant is 812 days late in filing his application. That is a significant delay.
The issues that are relevant to determining the application for leave to file out of time and the injunction are linked and it is necessary, as part of considering these applications, to consider whether or not the applicant has established a prima facie case or an arguable case for relief. I accept the submissions for the applicant that the consequences for him, if the leave to proceed out of time and the injunction are not granted, are serious in that it will effectively bring his application for judicial review to an end.
It is also the case that the applicant has not had the opportunity to fully ventilate the arguments for the application for review, but that is not necessary for today’s purposes because all he needs to establish is whether or not he has an arguable case. The applicant’s Counsel referred to the injustice to the applicant which cannot be cured if he is deported. Of course, that is only an injustice if he has an arguable case. If he does not have an arguable case, then deportation is the inevitable result, whether it takes place tomorrow or some other day.
It is difficult for many applicants to understand that the nature of their application before this Court is a judicial review. It is not a review on its merits. It is not an opportunity for an applicant to put on fresh evidence or seek to have the court make different findings of fact to the Tribunal.
The applicant filed his application on 14 January 2015. It is now 19 January 2015 so the application has been brought on very quickly which has put considerable pressures on Counsel (both Ms Nguyen in preparing the application and Mr Johnson presenting it) for the applicant and Counsel for the respondent and I have been assisted considerably by the oral and written submissions made by both Counsel.
I note that the application states that it is prepared by Ms Nguyen, a Barrister at William Forster Chambers.
The application itself does not detail particulars of the alleged jurisdictional errors of the Tribunal. The affidavit filed in support says absolutely nothing about the delay and the reasons for the delay. The applicant’s affidavit really just annexes the decision and documents which were submitted to the Tribunal.
Turning to what the applicant says is the reason for delay, he lists three factors under the grounds of application for extension of time in his application. The first is a change in legal representation. His Counsel said, from the Bar Table, that after the review decision was made, he sought further legal assistance from various sources without success for some period of time. There is no mention of the fact that he was represented at the Tribunal, presumably he would have been given some advice at the time about the next steps in the proceeding.
It is also clear from the material filed by the Minister, in the affidavit filed this morning by Mr Vikneson, that the applicant has engaged in alternative processes by seeking to make representations to the Minister. It could be that those actions could be taken either supporting the delay and that he was taking other action or not supporting the delay in that he was taking an alternative view to filing a judicial review application. I do not know which factor it is because there simply is not the information from the applicant about those matters.
It is useful, at this point, to refer to decisions of other Federal Circuit Court Judges looking at these types of issues. The first is a decision of SZQPW v Minister for Immigration [2012] FMCA 471 which is a 2012 decision of Judge Nicholls.
At paragraph 33 of his decision Judge Nicholls refers to a submission that was made to him asking the Court to take judicial notice of subsequent events which took place in Egypt in support of the extension for time application. He said, in the last sentence of paragraph 33:
I cannot see how this is relevant to the question of the administration of justice in matters of judicial review concerned with the lawfulness and not the merits of a Tribunal decision.
That resonates with the circumstances here as there was some suggestion during submissions and certainly in the application itself, of the applicant wanting to raise issues not before the Tribunal and issues which really fall into issues of merit and not judicial review, which are quite limited. The second ground for the application for extension of time points to this. I note that Mr Johnson did not seek to press this in oral submissions, but that ground refers to information coming to light about the existence of correspondence from the Government of Vietnam to the Government of Australia about the applicant. There are no details before the Court about what that is but in any event that falls well outside the issue of judicial review.
The third ground that the applicant sets out in his application to extend time, is that the applicant does not consent to any removal, voluntary or involuntary, to Vietnam. I do not think that the third ground advances matters. It is clear from the affidavit filed of Mr Vikneson, that at one stage the applicant signed a document consenting to his removal but then revoked that consent and it is clear from the documents annexed to the affidavit, that the Department is treating his removal as an involuntary one, not a voluntary one. I do not think that has any influence on whether or not he should be granted the application to proceed out of time.
Counsel for the Minister, in his written submissions, argues that the applicant’s failure to give reasons for the delay means that his application must fail without the need for the Court to go further and considering whether or not he has an arguable case.
In a decision of SZTDM v Minister for Immigration & Anor (2013) FCCA 1130, the decision of Judge Cameron refers to similar submissions being made by the Minister in that case at paragraph 20 where he said that the Minister was saying that because the reasons for delay were so unmeritorious that even if there were some merit in the substantive application, the extension for time should not be granted.
Judge Cameron rejected that submission with that because of the discretionary nature of the decision for the court and that when considering whether or not it is in the interests of the administration of justice to extend time, Judge Cameron thought that in a case where the primary application has merit, justice would require that consideration be given to the priority of that as opposed to the delay. This case is different because here the Minister says there is no arguable case.
Turning to the injunction, it is clear that the injunction cannot stand alone but must be in aid of the primary application and this is also where it is relevant to look at whether or not the applicant has an arguable case. The grounds for primary relief are brief and have not been particularised, though Mr Johnson did his best to expand on those in his oral submissions.
The first ground is that the decision of the Tribunal was affected by an error of law. That ground is so vague as to be meaningless. I do not find that there is any arguable case on that point. The second ground refers to the decision of the Tribunal being unreasonable on all of the evidence before it. The test for unreasonableness is referred to, as Counsel for the Minister referred to, is that the decision is such that no rational or logical decision maker could make the same decision on the same evidence. An authority for that is found in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at page 647.
I have not been pointed to what factors in the decision would indicate that the decision the Tribunal reached was unreasonable in that sense.
The third ground raises the issue of the Tribunal giving inadequate weight to matters raised by the applicant to explain his reasons for not disclosing certain matters resulting in his flight from Vietnam. The difficulty with that ground as expressed is really inviting an impermissible merits review.
It is clear from reading the decision that the Tribunal discussed the evidence the applicant gave both in his initial interviews and before the Tribunal at some length, and found that his evidence lacked credibility. The Tribunal put its concerns to the applicant giving him an opportunity to respond. It is a matter for the Tribunal and not for the Court to make findings about the applicant’s credibility.
Really what it comes down to is ground four, which is expressed as the Tribunal erring in its conclusions about important jurisdictional facts, including the real risk of the applicant being persecuted by the State of Vietnam if returned. Although it is not expressed in this form, what I think that ground is getting at is that it is a complaint that the Tribunal failed to consider the whole of the applicant’s claim. This comes down to the issues of the further material which was provided to the Tribunal by the applicant’s migration agent, which was both written submissions and also a report by Dr Hansen.
That complaint is really centring on whether or not the Tribunal gave adequate consideration to consequences, or potential consequences, to the applicant if he was returned to Vietnam. It is relevant to note that the Tribunal accepted the applicant’s evidence that he was a practising Catholic, but did not accept his evidence that he participated in activities of protest.
This is significant because when one looks at both documents annexed to the Tribunal’s decision, being the written submissions and the report of Dr Hansen, neither of those documents state that a person is likely to be subjected to persecution upon the return to Vietnam by reason of being a Mass-going Catholic. Both documents go further than that.
The written submissions extract country information that refers to persecution being based not just on being Catholic and going to Mass, but in participating in other activities including protests, and that it’s that activity that can lead to the harassment and risk of harm. The significant point here is that the Tribunal rejected the applicant’s evidence that he had been involved in protests against the government.
Dr Hansen’s report also talks about returning Catholics being persecuted for reasons that go beyond simply being Catholics who go to Mass, but being Catholics who, whether it is they or their family, have been involved in specific activities for the church. And again, it’s clear from the Tribunal’s reasons that the Tribunal did not accept that the applicant had been involved in activities other than going to Mass.
Counsel for the respondent set out four complaints raised by the applicant’s Counsel and identified where in the decision those complaints were dealt with. The first point is the applicant not disclosing initially his reasons for leaving Vietnam and his pact with other persons was addressed at paragraphs 109 to 114 of the decision and is an issue about credibility of the applicant.
The second point also goes to the applicant’s credibility, which was the evidence about him living on the streets, which was addressed at paragraphs 106 to 108 of the Tribunal’s decision.
The third point being the applicant’s Catholicism was addressed at paragraphs 117 and 118 in particular in the Tribunal’s decision, and paragraph 118 specifically refers to Dr Hansen’s paper and the further written submissions, and it is significant to note here that he points out the distinction being made between simply being a practising Catholic and being a Catholic involved in activities beyond that.
The fourth point deals with the applicant returning to Vietnam as a failed asylum seeker and again the Tribunal addresses this at paragraphs 119 through to 123. Even though the Tribunal does not talk about those documents at length, being the written submissions and Dr Hansen’s report, it does not mean that the Tribunal did not properly consider the material.
Considering that then, in my view, the applicant has failed to establish that he has an arguable case on any of the points that he has raised. It is the failure to establish an arguable case that means as a consequence his application for leave to proceed out of time and his application for an injunction must fail. Looking at the factors that, and again, Judge Nichols set these out in his decision in SZQPW, being factors that need to be considered under s.477(2), as follows:
a)the extent of the delay and the reason for the delay. As I have said previously I think the delay is a significant one and the explanation has been inadequate. If he had been able to establish an arguable case then that would have outweighed, I think, the inadequacy of that delay.
b)whether there is any merit in the application, and in my view there isn’t. Really the primary issue.
c)deals with any prejudice to the respondent. That prejudice would really be the costs thrown away of the process for deportation, which is in line for tomorrow, and further costs of arguing the case, and certainly, arguing a case that does not have merit.
d)is the impact on the applicant. I accept that the impact on the applicant is significant in that he faces deportation tomorrow, and that would be a factor that would carry a lot of weight if there was an arguable case. But I haven’t found an arguable case on any of the grounds that he has raised before the court.
e)refers to the interests of the public at large. I think really the issue there is the public policy issues that the Counsel for the Minister referred to in that the need to finalise proceedings, and there is also an interest of the public purse, but again these would not carry such significant weight as to outweigh the other factors in favour of the applicant if there was an arguable case.
For the reasons I have given above I dismiss the applicant’s application to proceed out of time, and I dismiss the applicant’s application for an injunction.
I will order costs in the sum of $3416.00.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Harland.
Associate:
Date: 28 January 2015
7
1
2