Ejr17 v Minister for Home Affairs

[2019] FCCA 1698

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJR17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1698

Catchwords:
MIGRATION – Application for extension of time in which to file proceedings – where delay significant but not egregious – where explanation for delay unsatisfactory – where proposed grounds lack merit – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2A), 473CB(1), 473CB(1)(c), 473CC(2)(a), 477, 477(2), 477(2)(a) and 477(2)(b)

Cases cited:

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: EJR17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 413 of 2017

Judgment of: Judge Heffernan

Hearing date: 6 May 2019

Date of Last Submission: 6 May 2019

Delivered at: Adelaide

Delivered on: 20 June 2019

REPRESENTATION

Counsel for the Applicant: Mr W Markwell

Solicitors for the Applicant: W J Markwell & Associates

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application for an extension of time is dismissed.

2. The applicant is to pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 413 of 2017

EJR17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 8 August 2017.  That decision affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The application was filed outside the 35 day time limit provided for by s.477 of the Migration Act 1958 (Cth) (‘the Act’) when seeking a remedy to be granted in the exercise of the Court’s jurisdiction under s.476 of the Act. Accordingly, it is necessary as a preliminary issue to determine whether to grant an extension of time under s.477(2) of the Act. The application was filed 24 days late. The first respondent opposes an extension of time. The applicant also seeks to proceed by way of an amended application in the event that an extension of time is granted. The first respondent takes no attitude with respect to leave to amend the grounds of application in the event that the Court decides that it is in the interests of the administration of justice to extend time.

3. The grounds for seeking an extension of time are as follows:

   “1.The Applicant has strong grounds of judicial review.

   2.The judicial review application is some 4 weeks 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.The previous representative of the applicant emailed him the refusal of the IAA but Applicant could not open the attachment and did not know what it was.  Applicant called his then representative many times but with no success to avail.

   4.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.

   5.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 respondent’s. 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.

   6.See Affidavit of the Applicant affirmed 18 April 2019 in support of the Application for the extension of time.”

4. The Amended Grounds of Application are as follows:

   “1.The Second Respondent, by failing to consider the Applicant’s evidence that he had an intimate relationship with F, in Kabul, has made a decision that is so unreasonable, that no reasonable decision maker would have made such a decision.

   Particular

   The Applicant upon arriving in Australia was open to suffering from psychological disorders, stress and trauma.  The Applicant had only ever been subject to authorities that were liable to punish him severely and his only experience of government authorities had been extremely negative.  The Applicant would have been in great trepidation went he underwent his initial interview at Wickham Point IDC on 14 April 2013.

   2.The Second Respondent has failed to properly consider a mandatory consideration and this has resulted in a jurisdictional error.

   Particular

   Under s473DB of Part 7AA of the Fast Track Review as set out in the Migration Act 1958 (“the Act”), it is a mandatory requirement that the Second Respondent ‘considers the review material provided to the Authority [Second Respondent] under s473CB of the Act’.

   The Second Respondent has only conducted a perfunctory analysis of the relationship with Fariba in Kabul, instead of a proper in depth analysis similar to the consideration if afforded the Applicant’s relationship with Mahtab.

   3.The Secretary has not provided all of the relevant and necessary review material to the Second Respondent, that it is required to, under section 473CB(1)(c) of the Act.

   Particular

   The Applicant attended upon a Psychologist/Counsellor, whilst he was in detention in Darwin.  The Psychologist/Counsellor would have made notes or produced a Report regarding any such attendance(s) she made upon the Applicant and these notes/Report would be in the Secretary’s possession and/or control and were relevant to the review and should have been/must be made available to the Second Respondent.

   4.The Applicant refers to the Decision of the Second Respondent dated 8 August 2017 and marked with the letter “A” and annexed to the Affidavit of Stacey Anne Bell dated 29 September 2017.

   5.The Applicant refers to the Affidavit of itself affirmed and filed 18 April 2019.

   6.The Applicant refers to the Affidavit of William John Markwell, sworn and filed 23 April 2019.”

   (Reproduced verbatim)

5. The applicant relied on the affidavit of Ms Bell, dated 29 September 2017, his own affidavit dated, 18 April 2019, and the affidavits of his solicitor, dated 23 and 30 April 2019.  He also relies on the materials contained in the Court Book.

6. It is appropriate to set out the background to the visa application and the procedural history before dealing with the extension of time application as a preliminary issue.  Both counsel for the applicant and the first respondent agreed that whilst the extension of time question had to be dealt with as a preliminary issue, it was appropriate for both counsel to make full submissions and in the event that I granted an extension of time I should proceed to determine the matter on a final basis.

Background

1. Counsel for the applicant indicated that he took no issue with the summary of background matters contained in the outline of submissions of the first respondent.  I have accordingly paraphrased that part of the submissions of the first respondent.

2. The applicant is a citizen of Afghanistan, a Hazari and a Shi’a Muslim. He arrived in Australia on 18 March 2013.  The applicant was interviewed by an officer of the Department on 14 April 2013.  His explanation for fleeing Afghanistan was that he had ended an engagement with his fiancé and as a result he had been subjected to threats from her family. 

3. The applicant expanded on the claims made in his arrival interview in a statutory declaration[1] that was provided to support his application for the protection visa.  The protection visa was lodged on 24 April 2016.  The statutory declaration gives a more detailed version of difficulties encountered by the applicant in the lead up to terminating his engagement.  He stated that he successfully sought the intervention of village elders in an attempt to resolve the dispute.  However, after the dispute was resolved he received threats from his fiancé’s brother.  Those threats were not acted upon.  The applicant claimed that he worked at a shop which was close to the home of his former fiancé.  Those who sought to persecute him were aware of the location of that shop and as a protective measure, the applicant altered his work hours and his movements.

   [1]     Court Book (‘CB’) pp 98 to 102.

4. The statutory declaration also contained a new claim about having had a sexual relationship with his cousin.  This is apparently contrary to Shi’a law.  He was fearful of harm from her family and from the Afghanistan government because he had done so.  Further, he claimed to fear harm by reason of his religion and ethnicity and because he would be perceived as a failed asylum seeker returning from the West.

5. The delegate did not believe the major contentions advanced by the applicant. It regarded the applicant’s claim that he would still be of interest to his fiancés family as being implausible. In part, the delegate believed that if they had ever intended to harm him, they would have been able to do so because they clearly knew his whereabouts. As far as the relationship with the applicant’s cousin was concerned, the delegate believed that this was a fabrication calculated to enhance his claim. The conclusion reached by the delegate was that the applicant was not owed protection obligations pursuant to s.36(2)(a) or that there was a real risk of significant harm that would give rise to complementary protection obligations under s.36(2A). The application was refused on 22 December 2016 and the applicant was notified of this by email on that day.

6. The case was referred to the IAA for review as the decision was a fast-track reviewable decision. The Department forwarded a copy of the delegate’s reasons, material submitted to the delegate, other information that was regarded as relevant to the review, and the contact details of the applicant to the IAA, pursuant to s.473CB(1) of the Act. Subsequently, the Department provided the IAA with a copy of the audio recording of the applicant’s arrival interview.

7. The IAA advised the applicant in writing that the matter had been referred to it.  The applicant provided a submission to the IAA on 9 February 2017.  His written submission indicated that he wanted to provide additional information about his past life relevant to his protection claim.[2]  The written submissions complained about the delegate’s credibility findings which were adverse to him, pointed out that he had spoken to a psychologist whilst he was in immigration detention, and attached screen shots of Facebook pages relating to the claim with respect to his former fiancé.

   [2]     CB p 194.

8. The IAA had regard to aspects of the written submissions that were relevant to claims and information that was previously before the delegate.  With respect to the Facebook pages, the IAA concluded that they were new information and that exceptional circumstances did not exist to justify considering them.  No challenge is made to that aspect of the IAA’s decision in these proceedings.

9. As far as the relationship with the cousin was concerned, the IAA found that it was material that the applicant had not raised as an issue in his arrival interview.[3]  Further, the IAA was satisfied that the applicant had been given a proper opportunity to advance and expand on all of his claims in the arrival interview.  It was satisfied that he understood the process.[4]  There was no suggestion that the applicant did not understand the process or that the interpretation was flawed.  The IAA placed weight on the failure to mention the relationship with his cousin.[5]

   [3] CB p 211 at para [25].

   [4] CB p 211 at para [26].

   [5] CB p 212 at para [29].

10. Further, the IAA took into account the answers given to the delegate when she raised her concern about the fact that the applicant had not mentioned the relationship with his cousin in his arrival interview.  The answer given to the delegate was that the applicant was feeling unwell as a result of his journey by boat to Australia.  The delegate placed weight, and it appears the IAA did as well, on the fact that the interview had been conducted a month after the applicant arrived in this country, and there appeared to be no indication that he was unwell at the stage of his arrival interview. 

11. The IAA accepted that the applicant might have been unwell during his biodata interview, which was conducted shortly after his arrival, but was not satisfied that that could explain his failure to mention the claim relating to his cousin at his formal arrival interview.

12. The IAA considered the circumstances of the arrival interview and was satisfied that it was not rushed, that the applicant did not appear to be distressed, and that he seemed to prepare to provide information freely.  He was also prepared to go into the detail of his claims quite specifically as far as they related to his engagement.[6]

    [6] CB p 212 at para [33].

13. The IAA gave detailed consideration to the written submission provided by the applicant and dealt with it in these terms:

    “35.I have considered the applicant['s] submissions, as well as the authorities cited by both the applicant in his submission and the delegate in her decision on the assessment of credibility. I disagree with his submission that the delegate was unfairly picking on his memory and dismissing his credibility in relation to dates. This omission did not turn on discrepancies or inconsistencies in his evidence, but instead turned on a failure to raise the claim, or the circumstances surrounding that claim, in its entirety. I do not accept his limited education, past trauma or health explains that omission.

    36.I accept that his past trauma and health is relevant to his ability to give evidence, but note that other than dates, he did not appear to have difficulty recalling events, or articulating his claims during the arrival interview, nor did he claim to have any concerns during the interview. I consider he had had a reasonable time to recover from his journey by the time of the arrival interview and, while I accept he was still adjusting, I am satisfied it did not adversely impact on his ability to give evidence, other than dates. In terms of dates, I again note the applicant also claimed that his inability to recall dates was cultural.

    37.Weighing all the information before me, I consider the applicant's failure to mention his claims as they relate to F to be a significant omission from the arrival interview, and not one that has a reasonable explanation in all the circumstances. I do not accept his claims in this regard, and consider those claims have been fabricated to strengthen his overall protection claims.

    38.I do not accept that he faces any chance of being harmed from F's family. It follows that I also do not accept his claims that the government would arrest and sentence him to death for having such a relationship outside of marriage, against Sharia Law. Nor do I accept there is any basis to his claims that he would be harmed by local elders or religious extremists because of that relationship.”[7]

    [7]     CB pp 212 to 213.

14. On the basis of the above, the IAA rejected that aspect of the claim for protection. It also rejected the balance of his claim, both with respect to the refugee criteria and the complementary protection criteria. It affirmed the decision under s.473CC(2)(a) of the Act.

Extension of time

1. As I have noted, the Court has power to extend the period of time in which an application can be made.  There are two pre-conditions for such an extension.  Firstly, it is necessary that an application be made in writing to this Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make that order.[8]  Such an application in writing has been made.  Secondly, the Court must be satisfied that it is necessary in the interests of the administration of justice to make the order.[9]

   [8] Section 477(2)(a) of the Act.

   [9] Section 477(2)(b) of the Act.

2. As the applicant has made an application in writing and set out his reasons for seeking an extension of time in an affidavit, it is necessary for me to consider the second criteria, namely whether it is in the interests of the administration of justice to extend the time.

3. Unsurprisingly, the term ‘in the interests of the administration of justice’ is not defined in the Act. Nor are there any mandatory criteria stipulated when considering whether an extension of time would be in the interests of the administration of justice. It has been held that the matter taken into account by a Court must logically and sensibly relate to the interests of the administration of justice.[10] 

   [10]    SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 at [46].

4. The type of matters which have been regarded as relevant to determining this question are, the length of the delay, whether any prejudice has been occasioned to the respondent by virtue of the delay, the reasons for the delay and whether such explanation is satisfactory, the impact on the applicant if time was not extended, the merits of the proposed application for review, the interests of the public in the timely finalisation of legal disputes, and the fact of the Court’s discretion itself.

Delay

1. The length of delay is significant but not egregious.  It could not be said to have occasioned any particular prejudice to the first respondent except possibly in terms of additional cost.  That of itself is not determinative and nor would be the consent of the Minister to an extension of time.[11]

   [11]    SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.

2. I turn to consider the explanation for the delay.  The applicant’s affidavit states that he was notified by his migration agent that his application had been refused by the IAA on 8 August 2017, the same day that the decision was made.  However, he states that he was unable to open the email and that he also missed a subsequent call from the migration agent.  He did not realise that the email related to the decision of the IAA and so did not avert to the importance of receiving it.  He states that he attempted to contact the migration agent, “2 or 3 times, but the Migration Agent did not answer my call.”[12]  He does not state when he attempted to contact his migration agent, how long after receipt of the email that was, whether he had any inkling that the migration agent was contacting him to advise of the outcome of the review before the IAA, or if it be the case, why it was that he did not attempt to email the migration agent when his call was not answered.

   [12] Affidavit of applicant, dated 18 April 2019, at para [6].

3. He further states:

   “It was at or about this time, the Department of Immigration and Border Protection (DIBP) contacted me and advised that the IAA had confirmed the refusal and Bridging Visa had expired and that I was now illegal in Australia.”[13]

   [13] Ibid at para [7].

4. As can be seen from the above, it is not possible to tell from the affidavit when it was, in relation to receiving the email from his migration agent that he was apparently unable to open, that the Department contacted him and told him that his review had been unsuccessful and that he was residing here illegally.

1. Similarly, the affidavit is equally vague as to when the applicant became aware of the services provided by Beema Rezaee Legal and Migration, or how long after he became aware of those services that he contacted Mr Rezaee.  Whilst some of the deficiencies in the applicant’s affidavit referred to above may appear of themselves to be of little consequence, a greater degree of detail might have been useful in assessing the veracity of the applicant’s version of events.  As it is, his explanation seems somewhat implausible.  In any event, he claims that on learning of his situation, Mr Rezaee immediately lodged the originating application.

2. The applicant claims to have received little or no support from his previous migration agent and that he is unfamiliar with the requirements of this Court.[14]  He states that he relied totally upon the services of his migration agent and believes that he has been let down.  It is difficult to accept that contention at face value when the annexure to the explanatory affidavit shows that his former migration agent notified him of the refusal by the IAA on the day that it occurred and appears to have forwarded the email notification to him by way of attachment. 

   [14] Ibid at para [10].

3. On the whole, I am not satisfied that the explanation for the delay of 24 days before filing has been adequately explained in the applicant’s affidavit.  Against that, I balance the fact that the delay was, as I have noted, less than a month.

4. The applicant faces a more significant problem with respect to the merits of his proposed application.

5. The question is whether either of his grounds has a reasonable prospect of success.  I am not satisfied that either of them does.

6. Ground one conflates two concepts, namely, the failure to consider a relevant matter (the applicant’s evidence of a relationship with his cousin) and the allegation that the failure to do so was unreasonable.  The ground is misconceived.  A fair reading of the reasons of the IAA discloses that it did consider, and at length, the applicant’s claim to have had a relationship with his cousin.[15]  The findings made on that topic were as follows:

   “37.Weighing all the information before me, I consider the applicant’s failure to mention his claims as they relate to F to be a significant omission from the arrival interview, and not one that has a reasonable explanation in all the circumstances.  I do not accept his claims in this regard, and consider those claims have been fabricated to strengthen his overall protection claims.

   38.I do not accept that he faces any chance of being harmed from F’s family.  It follows that I also do not accept his claims that the government would arrest and sentence him to death for having such a relationship outside of marriage, against Sharia Law.  Nor do I accept there is any basis to his claims that he would be harmed by local elders or religious extremists because of that relationship.

   39.Considering all the circumstances, I find that there is no real chance of the applicant being seriously harmed for these reasons if he were to return to Kabul, or Afghanistan more generally.”[16]

   [15]    Court Book (‘CB’) pp 211 to 213.

   [16]    CB p 213 at paras [37]-[39].

7. The particulars for this ground demonstrate clearly that it amounts to a request for an impermissible merits review, as did the written submissions.  The IAA did not accept that the relationship had occurred. It reached that conclusion by considering the chronology of his interviews, when various claims were made, and the context in which the interviews took place as against the later provision of the applicant’s statutory declaration where the claim as to his cousin first arose.  It then made an assessment of the applicant’s credit on the matter of that claim.  As counsel for the first respondent submitted, there was nothing impermissible about the IAA first making an assessment of the applicant’s credit before considering any corroborative information.[17]  The only evidence of the relationship with his cousin came from the applicant himself.  The reasons of the IAA for rejecting the applicant’s claim to having had a relationship with his cousin on the basis that it was a fabrication provide an intelligible justification for having reached that conclusion.  The finding was at least open to it.  It is not reasonably arguable that it acted unreasonably by virtue of having made the relevant findings of fact as to the applicant’s credit.  Ground one does not have a reasonable prospect of success.

   [17]    Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165.

8. Ground two is closely aligned with ground one.  It alleges a failure to consider a mandatory consideration, in this case an integer of the applicant’s claim for protection, namely the affair with his cousin.  It is well-established that the failure to consider an integer of a claim will ordinarily amount to a jurisdictional error.[18]  That does not mean that the IAA was obliged to proceed on the basis that the claim was genuine without reference to the context in which it had been made, which is what the applicant’s written outline appeared to assert.[19]  It was for the IAA to determine the merit of the claims as a whole and this necessarily involved an assessment of the individual integers of the claim.[20]  The contention of the applicant that the IAA conducted only a perfunctory analysis of this integer ignores the inconvenient fact that it found the claim to be a fabrication.  That being so, it was not necessary to submit it to the degree of scrutiny which was given to the relationship with his fiancé.  As the first respondent submitted, that claim failed at the first hurdle.  This ground has no reasonable prospect of success and amounts to a complaint about the outcome, with which the applicant is in disagreement. 

   [18]    Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at para [42].

   [19]    Applicant’s outline of submissions at para [54]-[57].

   [20]    Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

9. There is also no merit in the proposed third ground which is, at best, speculation. The applicant has referred to having seen a psychologist whilst in detention. There is no evidence that any notes were taken by that psychologist let alone what the content of them is if they exist. Section 473CB(1)(c) requires the Secretary to give to the IAA, with respect to each fast-track reviewable decision, any material in the Secretary’s possession or control considered by the Secretary to be relevant to the review. Even if we assume that such notes exist, the applicant has not and cannot prove that the Secretary considered them relevant to the review. The applicant has not come close to establishing that the notes exist and were in the possession and control of the Secretary, let alone that they were relevant to the review. It is difficult in the circumstances to give any weight to the applicant’s written submissions, “such information is vital to the applicant’s case”.[21]  Rather than “fighting with one arm behind his back”[22] because of the alleged failure to disclose a document the existence of which remains a matter of speculation, the applicant would appear to be boxing at shadows.  This ground has no evidentiary basis and no reasonable prospects of success.

   [21] Applicant’s written submissions at para [66].

   [22] Ibid.

10. For the above reasons, I am not satisfied that it is necessary in the interest of the administrative of justice to extend the time in which to apply for judicial review.  I dismiss the application to extend time.

11. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 20 June 2019