EJP17 v Minister for Immigration
[2019] FCCA 1789
•4 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EJP17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1789 |
| Catchwords: MIGRATION – Application for extension of time – protection visa – where grounds not reasonably arguable – where delay significant – where explanation for delay unsatisfactory – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 5J(1)(c), 36(2A), 36(2B)(a), 36(2)(a), 477 and 477(1) |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 Gallo v Dawson (1990) 93 ALR 479 |
| Applicant: | EJP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 411 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 8 April 2019 |
| Date of Last Submission: | 8 April 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 4 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Markwell |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Ms J Battiste |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Leave is granted to the applicant for the purpose of the application to extend time to proceed on the basis of the proposed amended application filed on 26 March 2019.
The application to extend time is dismissed.
The applicant is to pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 411 of 2017
| EJP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 26 May 2017 (‘IAA’) to refuse the applicant a Safe Haven Enterprise visa. That decision affirmed an earlier decision of a delegate of the Minister on 24 October 2016.
The application was lodged on 6 October 2017, some 3 months and 6 days outside the statutory time limit established by s.477(1) of the Migration Act 1958 (Cth) (‘the Act’). It is necessary for the Court to grant the applicant an extension of time before the substantive application for judicial review can be considered.
The first respondent opposes both an extension of time and the proposed substantive application.
Background
Counsel for the applicant indicated that he did not take issue with the summary of background matters, including relevant procedural matters, contained in the first respondent’s outline of submissions. I have accordingly paraphrased that summary for the purpose of these reasons.
Background
The applicant is a citizen of Afghanistan from the Ghazni province and is a Hazara Shi’a Muslim.
The IAA identified the applicant’s claims as follows:
a)Whilst living in Afghanistan, the applicant was in a relationship with a woman and they had plans to marry. Both families accepted the applicant’s marriage proposal but the applicant’s father passed away and as a result the applicant did not have enough money to get married.
b)He and his partner were in love and decided that a marriage party was not necessary. They consummated their relationship at her father’s house and his partner became pregnant.
c)The applicant brought his partner to his own house without her parent’s permission and without being legally married. Her father was very angry and saw this as an affront to his dignity. The applicant claims her father punched him, threatened to report him to the Taliban, and kill him. As a result, the applicant fled to Kabul.
d)The applicant claims to fear being killed by his former partner’s father and the Taliban who would punish him for breaking cultural traditions by having intercourse, living with a woman without being married, and having a child outside marriage. He also claimed to fear being killed by the Taliban, ISIS (Islamic State) and other anti-government elements on account of being Hazara and Shi’a, and on account of his status as a returnee to Afghanistan from the West.
The IAA did not accept the applicant’s claim to fear persecution at the hands of his partner’s father, or anyone else arising out of his pre-marital relationship with his partner. The IAA found, for the purposes of well-founded fear of prosecution under s.5J of the Act, that the applicant faced a small but real chance of serious harm through being kidnapped, subject to physical ill treatment, and/or killed by insurgents whilst travelling to his home village due to his Hazara ethnicity and/or his Shi’a faith. For that reason, the IAA was also satisfied that the applicant also attracted the complementary protection provisions because he faced a real risk of significant harm under s.36(2A) of the Act if he were to return to his home area.[1]
[1] CB p 225 at para [30].
The IAA was not satisfied that the real chance of persecution related to all areas of Afghanistan.[2] It found that there was no real chance of serious harm to the applicant either in Kabul, because of its substantial Hazara population, the fact that the applicant had lived there for several years, and that he still had substantial family links and support there, or in Mazar-e-Sharif, which also had a substantial Hazara population.
[2] Section 5J(1)(c).
For that reason, the IAA found that the applicant did not satisfy the definition of refugee under s.5H(1) of the Act.
Specifically, the IAA was not satisfied that the applicant would face a real chance, in either Kabul or Mazar-e-Sharif, of being killed, forcibly recruited, or otherwise suffering serious harm from his father-in-law, the Taliban, Islamic State, or other extremist groups, insurgent or anti-government elements, pro-government groups, government, or members of the community, with respect to the claimed pre-marital relationship, or on the basis of his profile as a Hazara Shi’a male returning from the West as a failed asylum seeker. It was not satisfied that he would face a real chance, in either Kabul or Mazar-e-Sharif, of being killed, forcibly recruited, or otherwise suffering serious harm on the basis of any actual or imputed connection with or support for the Afghan government, the western or international community, or by virtue of any imputed opinion of being anti-Taliban or anti-Islamic State.
The IAA gave consideration to violence, specifically against Hazaras and Shi’as, generalised violence, the possibility of the Taliban or Islamic State entering Kabul or Mazar-e-Sharif, being a returnee with his particular profile, societal discrimination, forced recruitment, the prevalence of crime, and the safety of travelling to either of those cities.
It had regard to the fact that he may initially be treated as something of an outsider upon his return to Afghanistan, and that he had no identifiable links to Mazar-e-Sharif.
The IAA was not satisfied that those various factors would either individually or cumulatively lead to a well-founded fear of persecution in either Kabul or Mazar-e-Sharif, or in accessing those cities in the reasonably foreseeable future and that he did not satisfy the criteria of s.36(2)(a) of the Act.
For the same reasons it found that there was not a real risk that he would suffer from significant harm for the purposes of s.36(2A) of the Act.
The IAA reconsidered the question of relocation to both of the cities identified and concluded that it would be reasonable for the applicant to relocate. For that reason, it was satisfied that the applicant did not satisfy the criteria for complimentary protection under the Act.[3]
[3] Section 36(2B)(a).
On the question of relocation, the IAA took into account the submissions made by the applicant, a variety of country information, and the lack of support available to the applicant in Mazar-e-Sharif. It also considered his limited work experience.
The application for judicial review
The applicant relied on his Amended Application filed on 26 March 2019. That Application was filed outside the time frame set by the Registrar. On 7 November 2017, the Registrar made an order giving leave to the applicant to file and serve any Amended Application by 30 April 2018. On 3 May 2018, the Registrar extended the timeframe for compliance with the previous order giving the applicant leave to file and serve any amended application by 15 June 2018. In oral submissions, counsel for the Minister indicated that the application for leave to proceed on the proposed amended grounds was opposed. Notwithstanding the significant delay on the part of the applicant, I am satisfied that it is appropriate to allow the applicant to rely on the amended grounds for the purpose of the application for an extension of time and if it transpires, the substantive application.
The grounds of the amended application are as follows:
“1.The Second Respondent has failed to correctly apply the “relocation test”, and/or “relocation principle” as set out in s36(2)(B)(a) of the Migration Act 1958 (“The Act”), and this constitutes a jurisdictional error.
Particulars
The Second Respondent has filed to consider the practicality of the relocation of the Applicant, and has conflated the issues as to:
(i)whether there is an appreciable risk of the feared persecution for the Applicant to relocate to Kabul and/or Mazar-e-Sharif; and/or
(ii)whether it was reasonable for the Applicant to relocate to Kabul and/or Mazar-e-Sharif, given his particular circumstances.
In the alternative to Ground 1, the Second Respondent has failed to correctly apply the “relocation test” and/or “relocation principal” and this constitutes a jurisdictional error.
Particulars
The Second Respondent has failed to consider that:
(i)The Applicant fails the first limb of the test in relation to an appreciable risk of feared persecution in relocating to Kabul, but accordingly, satisfies the first limb of the test in relation to relocation to Mazar-e-Sharif in connection with an appreciable risk of feared persecution.
(ii)The Applicant fails the second limb of the test in relation to whether it was reasonable for the Applicant to relocate to Mazar-e-Sharif given his particular circumstances, but satisfies the second limb of the test in being able to relocate to Kabul, given his particular circumstances.
2.The Applicant refers to the Decision of the Second Respondent dated 26 May 2017 and marked with the letter “A” and annexed to the Affidavit of Stacey Anne Bell dated 29 September 2017.
3.The Applicant refers to the Affidavit of Stacey Anne Bell, affirmed and filed 6 October 2017.
4.The Applicant refers to the Affidavit of itself affirmed and filed 21 March 2019.”
(Reproduced verbatim)
With respect to the application for an extension of time, the grounds of application are as follows:
“1.The Applicant has strong grounds of judicial review.
2.The judicial review application is some 4 months out of time due to the fact that the Applicant was not advised of the IAA’s refusal until September 2017. The previous representatives of the Applicant did not advise the applicant of the outcome of the IAA’s review.
3.Applicant became aware of the IAA’s decision when he received a phone call from the Department informing him the expiry of his Bridging visa and the IAA’s refusal. Soon after, applicant made contact with our office and his previous representative. Applicant then forwarded the IAA’s decision, which was reviewed the last few days on pro bono basis, and applicant was advised that the IAA’s decision was affected by jurisdictional error.
4.The Court ought to exercise its discretion to extend time under s.477(2) of the Migration Act in the interests of justice. There is no prejudice to the respondents. The Applicant did not obtain the pro bono/contingent fee assistance of his current solicitors until late September 2017. In all the circumstances, it is in the interests of the administration of justice to extend time.
5.See Affidavit of Stacey Anne Bell affirmed 6 October 2018 and the Affidavit of the Applicant affirmed 21 March 2019 in support of the Application for the extension of time.”
(Reproduced verbatim)
The application for an extension of time is of course a preliminary issue to be determined before any consideration of the substantive application. For the sake of practicality, counsel for both the applicant and the first respondent consented to me hearing full submissions with the application for an extension of time to be dealt with as a preliminary issue and the substantive application to be considered in the event that I granted an extension of time.
Extension of time application
Applicant’s affidavit material
The applicant relies on two affidavits in support of his application to extend time. His solicitor, Ms Bell, affirmed an affidavit on 4 October 2017. The affidavit asserts that the decision of the IAA was sent directly to the applicant’s migration agent on the day the decision was made. A copy of the email forwarding the covering letter contained in the Court Book[4] shows that the decision was in fact emailed to the previous migration agent on 29 May 2017. The affidavit proceeds to assert that a copy of the decision was not conveyed to the applicant by the previous migration agent. It does not identify the source of that information. It appears to assert that the first that the applicant heard of the IAA decision was when the Department contacted him to tell him he was residing in Australia illegally.[5]
[4] Court Book (‘CB’) pp 213 – 214.
[5] The affidavit appears to be missing the intended first part of paragraph 6.
The applicant’s affidavit was affirmed on 22 March 2019. He states that his previous migration agent did not advise him that the IAA had affirmed the refusal of his visa and that he first became aware of that fact when the Department contacted him on 28 September 2017 to advise him that his bridging visa had expired and that he was illegally in this country. He states that once he was advised of this, he immediately contacted Mr Rezaee, his current solicitor, who filed the present application on 9 October 2017. The applicant says that when he was advised by the Department of his illegal status, he contacted his former migration agent. His affidavit does not say when he did so, or whether it was before or after he contacted his present solicitors. It does not indicate whether the contact was by telephone, email, or in person, or what the applicant said or conveyed to his former migration agent, Mr Brown, about having been told of his illegal status, or Mr Brown’s alleged failure to tell him about the IAA decision. The affidavit states that Mr Brown “then sent me an email dated 28 September 2017”.[6] A copy of that email is annexed to the applicant’s affidavit. It suggests that Mr Brown was attaching to the email a copy of the IAA decision but that he had already “conveyed” this to the applicant on an undisclosed earlier date.[7] It goes on to suggest that the migration agent had taken no further action because the “next step” would be inter alia “an appeal to … the Courts”. The email continues to assert that the applicant had advised him that he would be getting a lawyer to “take over” his case and identifies the names of two persons the applicant had apparently mentioned to him, concluding with the advice that the applicant should be discussing his situation with his “new representative(s)”. The applicant states that as far as he was concerned, Mr Brown was his legal representative, that he was still relying on him as at 28 September 2017, and that he had not received a copy of the IAA decision from Mr Brown or anyone else until that day.
[6] Applicant’s affidavit at para [8].
[7] On one reading of the email, it is possible the writer was asserting that the applicant knew of the decision as early as 3 June 2017.
Notwithstanding the deficiencies in the applicant’s affidavit as to his communication with Mr Brown that lead to the email of 28 September 2017 being sent to him, a couple of inferences can be drawn. Whilst the writer of the email does not acknowledge it, he appears to be responding to a communication from the applicant about the IAA decision. The content of the email suggests that the applicant had asserted to Mr Brown that he had not been advised of the IAA decision, was questioning why nothing had been done, and that Mr Brown was refuting that by reference to an earlier meeting at his offices at some time subsequent to the decision at which he, at the very least, claimed to have conveyed the outcome of the fast track review to the applicant. The email is self-serving on the part of the migration agent but whether that is because he was hastily fabricating a scenario to conceal his own oversight or because he was attempting to refute an allegation of professional negligence by the applicant that he knew to be false, it is not possible to say.
Extension of time principles
An application to this Court for judicial view must be made within 35 days of the migration decision.[8] Pursuant to s.477(2), I have a discretion to extend that period where:
a)A written application has been made to the Court specifying why the applicants say it is necessary in the interests of the administration of justice to make such an order; and
b)If I am satisfied that it is necessary in the interests of the administration of justice to make the order.
[8] Section 477(1).
The first of those requirements has been met, the applicant having made the relevant written application. The operative consideration for me is whether I am satisfied that it is necessary in the interests of the administration of justice to make the order. Section 477 does not prescribe the matters to be considered by the Court in determining whether an extension of time is necessary in the interests of the administration of justice. The matters I consider and to which I give weight must logically and sensibly relate to the interests of the administration of justice.[9] The types of matters which have been taken into account by courts in past applications of this kind include: the reasons for any delay; the length of the delay; the public interest in the expeditious disposal of proceedings; whether the respondent has been prejudiced by the delay; the merits of the proposed application for review; and the effect on the applicant if time is not extended. Those factors are the relevant considerations in this matter and I will consider each of them in turn.
[9] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252.
The delay of over 3 months is significant. The time limit imposed by the legislation is of itself a relevant matter because it represents the intention of the legislature to cater for the orderly administration of justice. In that context, the period of delay becomes highly relevant. As McHugh J observed in Gallo v Dawson:
“A case would need to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.”[10]
[10] (1990) 93 ALR 479.
Whilst the delay in this matter is asserted to be for reasons other than inaction or inadvertence on the part of the applicant, the period of delay cannot be ignored. It is beyond dispute that there are many thousands of migration matters before the IAA, the Administrative Appeals Tribunal, and the Courts. In that context, the public interest in the timely and efficient administration of justice assumes particular importance.
The onus is on the applicant to provide a satisfactory explanation for the delay in all of the circumstances.[11] In this matter, the explanation for the delay is not without some difficulties. The applicant’s affidavit makes the assertions it does but it is difficult to determine what weight to give his explanation when there is no responding affidavit from his former migration agent Mr Brown. In the absence of co-operation from Mr Brown, it should have been possible to subpoena his file and records of email correspondence with the applicant. The applicant’s affidavit does not even attempt to address all of the matters raised in Mr Brown’s email or to place them in proper context. The assertion as to why the delay occurred is clear, but the explanation is so devoid of detail as to be unsatisfactory.
[11] Peck v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810; MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at para [3].
I take into account that if I do not extend time in which to make this application, the effect on the applicant is likely to be very significant. He is likely to be removed from Australia and returned to his country of origin, Afghanistan. The weight to be accorded to this consideration is proportional to the merits of the proposed application for review to which I will refer later in these reasons.
The Minister has conceded that the granting of an extension of time would not cause it any prejudice. The consent of the Minister to an extension of time or an absence of any prejudice to the first respondent are relevant but not of themselves determinative.[12]
[12] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at para [6]; Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344.
I will turn now to a consideration of the merits of the proposed application. When considering the proposed grounds the test is whether either of them has a reasonable prospect of success.[13]
[13] SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at para [67]; Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 at para [48].
Ground one
This ground refers to the relocation test “as set out in s.36(2)(B)(a)” (sic).[14] I am not satisfied that it is reasonably arguable that the IAA failed to consider the practicality of relocation to either Kabul and/or Mazar-e-Sharif. It spent considerable time weighing up factors directly relevant to that matter. Section 36(2B)(a) requires the Minister to be satisfied that it would be reasonable for an applicant to relocate to an area where there would not be a real risk that they would suffer significant harm. What is reasonable in the context of relocation means what is ‘practicable’ which requires consideration of the particular circumstances of the applicant and the potential impact on him of a relocation within his country of origin.[15] The Decision and Reasons of the IAA illustrate that it did consider the question of reasonableness appropriately and in a manner adapted to the particular circumstances of the applicant.[16] It cannot be reasonably argued that the IAA “conflated” the question of risk of harm with the more practical considerations about the impact of relocation on the applicant and his capacity to adapt. The IAA cannot be said to have reasoned that simply because it found there was not a real risk to the applicant in Kabul or Mazar-e-Sharif that relocation was therefore reasonable in the sense of being practicable.
[14] This should be reference to s.36(2B)(a).
[15] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317.
[16] CB pp 236 to 239.
The applicant’s written submissions with respect to ground one addressed matters not within the ambit of that ground. I will deal with them briefly. The first was a complaint that the decision of the IAA understated the level of violence in Mazar-e-Sharif. That is a complaint about the merits of the finding of the IAA and not within the scope of permissible challenges on judicial review. The second is a complaint about the failure to consider country material relied upon by the applicant. This is not reasonably arguable. The IAA invited the applicant to make further submissions and received new information from him. It gave detailed consideration to the country information provided by the applicant.[17] The applicant is in reality complaining about the failure of the IAA to accept the contentions in the country information on which he relied and/or the arguments he presented based on that information.
[17] CB pp 225 to 230 at paras [32], [34], [35], [37], [44] and [46].
In my view, ground one does not have a reasonable prospect of success.
Ground two, both as pleaded and as articulated in the written submissions of the applicant, amounts to an emphatic disagreement with the decision of the IAA and a complaint that it did not make certain findings for which the applicant contended. I am not satisfied that ground two has a reasonable prospect of success.
Taking all of the above into account, I am not satisfied that it is in the interests of the administration of justice to extend the time in which the applicant had to apply for judicial review.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 4 July 2019
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