FKP17 and Ors v Minister for Immigration and Anor (No.2)

Case •

[2020] FCCA 1046

•

5 May 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKP17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1046
Catchwords:
MIGRATION – Application to extend time for applying for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal affirming decision not to grant applicants a Protection visa – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.314, 414, 417, 427(6)(a), 441G(1), 476, 477(1), 477(2)

Migration Agents Regulations 1998 (Cth), reg.8, sch.2, cl.2.17

Cases cited:

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
First Applicant: FKP17
Second Applicant: FKW17
Third Applicant: FKY17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3842 of 2017
Judgment of: Judge Manousaridis
Hearing date: 24 April 2020
Date of Last Submission: 24 April 2020
Delivered at: Sydney
Delivered on: 5 May 2020

REPRESENTATION

Counsel for the Applicants: Mr A Silva
Counsel for the First Respondent: Mr N Swan
Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

  1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decision made by the second respondent on 2 March 2017 is dismissed.

  2. The first and second applicants pay the first respondent’s costs, including the first respondent’s costs of the recusal application which were reserved by the order made on 27 July 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3842 of 2017

FKP17

First Applicant

FKW17

Second Applicant

FKY17

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicants apply for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).[1]

    [1] At the hearing before me counsel for the parties agreed that I should hear both the application for an order under s.477(2) of the Act and the application for remedies claimed in the application on the assumption that an order will be made.

  2. I will begin by setting out the uncontested background to the issues that arise on the application, the evidence the second applicant gave in the second of two affidavits she made, and my findings on the evidence the second applicant has given in that affidavit. Much of the background concerns the dealings between the first and second applicants and their migration agent, a lawyer. The applicants rely on matters they say passed and did not pass between them and their migration agent to explain their not having applied for remedies under s.476 of the Act within the time provided for by s.477(1) of the Act. The first and second applicants also rely on a claim of negligent advice by their migration agent to support one of the grounds on which they intend to rely if an order under s.477(2) is made.

Background

  1. The first and second applicants are husband and wife, and the third applicant is their child. All three applicants are citizens of Sri Lanka, although the third applicant was born in Australia. The first and second applicants have another child who was also born in Australia, but who became a citizen of Australia after he turned ten years of age.[2]

    [2] CB127

Migration history of first and second applicants

  1. The first applicant entered Australia in 1990 on his Sri Lankan passport holding a student visa. In September 1991 he applied for a protection visa. A delegate of the Minister refused that application in May 1993, and the first applicant applied to the Refugee Review Tribunal for a review of that decision. The first applicant departed Australia in November 1993.

  2. The second applicant entered Australia in March 1991 on her Sri Lankan passport holding a 560 visa. She left Australia in December 1991, but returned in February 1992 as the holder of a 560 visa. The second applicant departed Australia in November 1993, together with the first applicant.[3]

    [3] CB127

  3. The first and second applicants next entered Australia in September 1996. By this time they were married.[4] The first applicant entered as the holder of a business (subclass 456) visa using a passport that did not record his given name.[5] The second applicant also entered Australia on the same day as the first applicant in September 1996 as the holder of a visitor (subclass 676) visa using a passport that also did not record her given name.[6] At a time not revealed in the evidence before me, the passports the first and second applicants used to enter Australia in September 1996 were submitted for examination by the “Document Examination Unit” of what is now known as the Department of Home Affairs; and “according to the Document Examination report” the passports “exhibited evidence of alteration to the photograph, and that the documents had been legitimately manufactured but fraudulently altered”.[7] The first and second applicants have remained in Australia since their entry in September 1996.[8]

    [4] They were married in 1994 - CB119

    [5] CB1

    [6] CB1

    [7] CB127

    [8] CB1

Applicants engage services of CLA

  1. Sometime before 20 August 2014 the first applicant approached a firm of solicitors, Christopher Levingston & Associates (CLA), who are also migration agents, to provide assistance. The nature of the assistance the first applicant sought is described in a letter dated 20 August 2014 CLA sent to him.[9] The letter sets out the following work the first applicant requested CLA to perform:

    -   To represent you in preparing and managing an application for Australian citizenship for your son [that is, the third applicant];

    -   To represent you, your wife [that is, the second applicant] and your son . . . in preparing and managing an application with the Department of Immigration and Border Protection (“DIBP”) for an onshore Protection (Class XA) visa, until the DIBP determines the application, and, if necessary;

    -   Prepare and lodge an application to the Refugee Review Tribunal (“RRT”) for a review of the DIBP’s decision to refuse to grant you, [the second applicant, and the third applicant] an onshore Protection (Class XA) visa until the RRT determines the application; and, if necessary

    -   Prepare and lodge a request on your, [the second applicant’s and the third applicant’s] behalf to the Minister for Immigration and Border Protection (“Minister”) for ministerial intervention under section 417 of the Migration Act 1958, for grant of a substantive visa to enable you to make an onshore application for a parent contributory (subclass 143) visa, until the Minister determines the request.

    [9] Exhibit HG-1, page 4

  2. The letter stated that Ms Anang would be responsible for the matter under the supervision of Mr Levingston.

Applicants lodge application for Protection visa

  1. On 25 November 2014 the applicants lodged an application for a Protection visa. Only the first applicant made a substantive claim for protection. The second and third applicants applied as members of the first applicant’s family unit.

  2. The application was submitted to the Department of Immigration and Border Protection (Department) under cover of a letter dated 25 November 2014 from CLA.[10] In their letter CLA stated the first applicant’s claims for protection were as follows:

    [10] CB1

    Claims for Protection & the Law

    Below is a discussion of the applicants [sic] claim for protection and their applicability to the relevant law.

    1.Are the applicants outside their home country?

    The applicants are nationals of Sri Lanka who currently reside in Australia therefore they satisfy this element.

    2.Do the applicants fear harm/persecution and does the harm feared amount to persecution?

    At question 44 of his form 866C, the primary applicant states:

    “I left Sri Lanka following threats to my life from members of the United National Party (UNP) and Janatha Vimukthi Peremuna [sic] (JVP).”

    At question [sic] 46 and 47 of his form 866C, the primary applicant states that he fears that if he returns to his country of nationality, he may be killed by members of the UNP or JVP.

    Based on the applicant’s claims for protection, it is evident that the applicant fears that if he returns to his country of nationality he will be harmed. The harm feared by the applicants amount [sic] to persecution as defined by section 91R(1) of the Act.

    3.Is the persecution/harm feared for a convention reason?

    The primary applicant fears that he will be harmed as a result of his membership of a political organisation therefore the reason for his persecution align with the convention stipulated ground of political opinion.

    4.Are the applicants [sic] fears well founded??

    The applicant asserts that he was the subject of death threats by the UNP and the JVP therefore the applicants [sic] fears of harm are well founded.

  3. Under the heading “Conclusion” the letter contains the following statement:

    We submit that the applicants [sic] claim for protection satisfies the four key elements of the convention definition thus Australia has protection obligations to the applicant under the Refugees Convention and complementary protection grounds.

CLA advise application for Protection visa has no prospects of success

  1. On 9 January 2015 Ms Anang sent an email to the first and second applicants attaching a letter from the Department acknowledging receipt of the application for a Protection visa.[11] The email referred to bridging visas that had been issued, provided information about the ability of the first and second applicants to work, and advised of certain other matters. Under the heading “Clause 2.17B notice” the email made the following statements:

    [11] Exhibit HG-1, pages 12-16

    As you know, your application for protection was made to create a pathway to the Minister for Immigration and Border Protection to seek his intervention in granting you a substantial [sic] visa to enable you to make an onshore application for a contributory parent (subclass 143) visa.

    Consequently, we do not believe your application for protection has any prospects for success.

    Please find attached Clause 2.17B notice confirming our advice to you in that regard.

    [First name of first applicant], please sign and date the clause in the presence of a witness. [First name of the second applicant] can act as your witness.

    Please return the signed and dated page to us at your earliest convenience.

    Please let us know if you need further information or clarification.

  2. Ms Anang’s email attaches the following document (2.17 notice):[12]

    [12] Exhibit HG-16

    CLAUSE 2.17(b) NOTICE

    Clause 2.17(b) of the Migration Agents Code of Conduct reads as follows:

    “If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:

    (a)Must not encourage the client to lodge the application; and

    (b)Must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and

    (c)If the client still wishes to lodge the application – must obtain written acknowledgement from the client of the advice under paragraph (b).

    *******************

    We confirm that we have read the notice at the top of this page and that we have received advice in writing from Christopher Levingston & Associates to the effect that in their opinion our visa application has no prospects of success before the Department of Immigration and Border Protection or the Refugee Review Tribunal.

    Despite this advice, we direct Christopher Levingston & Associates to proceed to file an application for a Protection Visa in accordance with our instructions.

  3. CLA purported to issue the 2.17 notice pursuant to cl.2.17 of the “Code of Conduct for Migration Agents” (Code of Conduct). The Code of Conduct was prescribed by reg.8 of the Migration Agents Regulations 1998 (Cth) pursuant to s.314 of the Act, and is Schedule 2 to those Regulations.

  4. CLA did not provide to the first and second applicants the 2.17 notice before they lodged the application for a Protection visa. Nevertheless, it is reasonably open to infer, first, that on 9 January 2015, when Ms Anang sent the email to the first and second applicants, CLA considered the applicants’ claims for a Protection visa to have been “grossly unfounded” because, in their email, Ms Anang said CLA did not believe the applicants had any prospects of success. Second, from CLA holding the belief on 9 January 2015 that the applicants’ application for a Protection visa were “grossly unfounded”, it may be inferred CLA held that belief on 25 November 2014 when they lodged the applicants’ Protection visa application.

  5. There is no evidence the first and second applicants signed and returned the notice that was attached to Ms Anang’s email of 9 January 2015.

Delegate interviews first applicant

  1. Sometime before 1 June 2015 the delegate interviewed the first applicant. The delegate’s decision record records the first applicant gave the following evidence about his migration history:[13]

    When the applicant was asked why he and his wife had travelled to Australia on false passports, in 1996, he responded that he was in danger and could not remain in Sri Lanka. The applicant was asked about his application for a Protection visa in 1991, which was refused on 18 May 1993 and he responded that this was the case. It was put to the applicant that as he had been refused a Protection visa, it would have been difficult for him to be granted a visa and he responded in the affirmative. It was put to the applicant that it appeared that the real reason he travelled to Australia on a false passport in a different name and date of birth, with a visa allowing him to enter Australia attached, was that it would allow him to enter Australia and he responded this was the case.

    [13] CB130-131

  2. The delegate’s decision record records the applicant gave the following evidence in relation to his claims for protection:[14]

    The applicant was asked if he had experienced any incidents of harm in the past and he stated that the police had come to his house, in 1989, seeking JVP members who were friends visiting his home at the time, as the JVP Party was in opposition to the government. The applicant was asked if he had ever been detained or arrested by the Sri Lankan authorities or committed any criminal acts in Sri Lanka and he responded that he had not. When the applicant was asked what he thought would happen to him if he were to return to Sri Lanka he responded that he did not know.

    The applicant was asked if he was a member of the UNP and he responded that he had been a member in the past. The applicant was asked about his return to Sri Lanka in 1993 and if he had been involved in any political activities to which he responded that he had not been politically active, since 1989, and that had been the reason he had initially come to Australia, in 1990. The applicant stated after his return to Sri Lanka, in 1993, he had worked from 1993 to 1996 for his father-in-law, and his wife had also assisted them with their spare parts business. The applicant stated that his mother, his in-laws and his sister were living in Colombo or surrounding areas of Colombo, and he and his wife were in regular contact with them.

    [14] CB132-133

Delegate refuses to grant Protection visa

  1. On 1 June 2015 the delegate decided to refuse to grant to the applicants a Protection visa. The delegate acknowledged the first applicant may have been politically active in 1989, and that he may have been subjected to threats on his life at that time; but the delegate was satisfied the first applicant would not be at risk of being seriously harmed for political reasons if he returned to Sri Lanka. The delegate relied on the first applicant not having been involved in politics since 1989, and he had returned to Sri Lanka in 1993 where he remained for another three years without any problems.[15]

    [15] CB133

Application to Tribunal

  1. On 22 June 2015 the applicants lodged an application for review of the delegate’s decision. They did so through CLA. The form of application provided for the giving of details of the applicants’ representatives. This part of the form recorded that Ms Anang was the applicants’ representative; and her contact details, including her email address, were also recorded in the form of application.[16]

    [16] CB138-140

26 October 2015 – CLA send email on strategy

  1. On 26 October 2015 Ms Anang sent an email to the first and second applicants.[17] This was sent in response to an email the second applicant sent to Ms Anang on 23 October 2015 requesting Ms Anang obtain the necessary visa in relation to the third applicant to enable him to enrol in school.[18] After providing information and advice in relation to the third applicant, Ms Anang, in her email, stated as follows (emphasis added):

    [17] Exhibit HG-1, page 18

    [18] Exhibit HG-1, page 19

    Strategy for your matter

    As discussed at our recent meeting, at this stage we wait correspondence from the AAT inviting us to attend a hearing fro [sic] your matter.

    Following receipt of the correspondence, we will discuss whether or not you should attend the hearing.

    At this stage, given that, the application for protection was made primarily to create a pathway to the Minister, we would likely advice [sic] you not to attend the hearing.

    If you elect not to attend the hearing e [sic] will ask the Tribunal to make a decision based on the information before it and to refer your matter to the Minister for Immigration on compassionate and compelling grounds.

    We will then make a submission to the Minister seeking grant of permanent visas/ Student guardian visas or Visitor visas permitting you to remain onshore in Australia for at least 3 years to await the outcome of your application for Parent Contributory (subclass 143) visas.

    We will have 28 days after the AAT’s decision to seek the Minister’s intervention.

    At this time, we will request documents from you including letters from your Australian citizen/permanent resident friends supporting your request for ministerial intervention, employment references, your CV’s [sic], educational qualifications, letters from your church or community organisations and your income tax assessment notices that are in your possession.

    Please let us know if you need further clarification or information.

19 December 2016 – Tribunal invites applicants to appear before it and decision not to attend

  1. By letter dated 19 December 2016 the Tribunal informed CLA that the Tribunal was unable to make a decision in favour of the applicants on the basis of the material that was then before it.[19] The Tribunal, therefore, invited the applicants to appear before it on 16 February 2017 for the purpose of giving evidence and presenting arguments.

    [19] CB152

  2. On 1 February 2017 Ms Anang sent an email to the first and second applicants attaching a copy of the letter from the Tribunal.[20] After providing details of the date and time of the hearing, Ms Anang stated the following (errors in original):

    [20] Exhibit HG-1, pages 20-21

    As you know, from the onset, we have been of the view that your application for protection was unlikely to be successful.

    We hold that view for the following reasons:

    -    You have never experienced any harm from the UNP or JVP members;

    -    The basis for your claims for protection occurred more than 28 years ago;

    -    You have not been Politically active in Sri Lanka after 1989;

    -    You lived in Sri Lanka from 1993 to 1996 following your departure from there in 1990 and your application for a protection visa in Australia and you did not suffer any harm from UNP or JVP members; and

    -    Your claims for protection arise before your entry in Australia in 1996 however your current application for Protection was made 18 years after your arrival in Australia in 1996 thus there is a basis for a finding that you do not have a well-founded fear that you will suffer Persecution as a result of your Political opinion if you returned to Sri Lanka.

    Based on the above and to avoid an adverse credibility finding against you, we do not recommend that you attend the AAT hearing.

    If you agree with our recommendation, [first name of first applicant], please sign and date at page 4 of the Response to hearing invitation (at page 10 of the attached) and return the signed and dated page to us by email.

    We will then make submissions to to the Tribunal and request that they make a decision on the ‘papers’ (based on the information and documents before them) and if they are unable to find in your favour to refer the matter to the Minister for Immigration and Border Protection on the basis that your matter has unique or exceptional circumstances that warrant a referral to the Minister for possible ministerial intervention.

    Please note, your non-attendance at the hearing will likely result in the AAT affirming the decision to refuse your application for protection.

  1. Ms Anang then set out a detailed request for information and documents, all of which appear to be directed to the preparation of a submission that the Tribunal refer the matter to the Minister.

  2. It appears that the first and second applicants agreed with CLA’s recommendation, and provided documents in response to Ms Anang’s email. That is apparent from the email the second applicant sent to Ms Anang on 9 February 2017 in which she said:[21]

    [21] Exhibit HG-1, page 22

    This is the last document I am sending.

    I believe I had attached all documents within my capabilities for now.

    [The first name of the applicants’ son who has citizenship]’s letter was done by him.

    Please let me know if his letter needs correcting.

  3. That the first and second applicants agreed with CLA’s recommendation, and sent documents to Ms Anang in response to her email of 1 February 2017 that were directed to Ms Anang’s preparation of a submission that the Tribunal refer the matter to the Minister, is supported by the letter CLA sent to the Tribunal in response to the Tribunal’s letter dated 19 December 2016.[22] CLA said that the “applicants for review have elected not to attend the hearing and respectfully seek a decision on the papers”, and they attached a completed “Response to hearing invitation – MR Division” (Response to Hearing Form). The form contains ticks in boxes next to the names of each of the applicants under the word “No”, which in turn appears under the words: “Will you take part in the hearing scheduled for 16 February 2017?” The Response to Hearing Form contains what I infer is the first applicant’s signature.

    [22] CB164-225

  4. In their letter CLA submitted “the primary applicant has a well-founded fear of persecution for” the reasons there set out. CLA further submitted “there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, the primary applicant faces a real risk of suffering significant harm in the form of death”. CLA then made submissions under the heading “Ministerial Intervention”. CLA there submitted:

    If the Tribunal is unable to find for the applicants, we respectfully request that the Tribunal refer this matter to the Minister for ministerial intervention on the basis that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen.

  5. CLA made the following additional submissions: the first and second applicants have been in Australia for 21 years, and the third applicant was born in Australia in 2011; the oldest son of the first and second applicants is in his final year of high school; that son relies on the support of the first and second applicants, and shares a close and nurturing relationship with the third applicant; the forced departure from Australia of the applicants will have an adverse impact on the older son’s psychological and emotional wellbeing; and the applicants have strong familial and community ties in Australia. CLA supported these submissions with a number of letters of support.

  6. CLA concludes its letter to the Tribunal as follows:

    The circumstances discussed above coupled with Australia’s obligations under article 23 of the International Covenant on Civil and Political Rights to maintain and protect the family unit amount to compelling and compassionate circumstances warranting referral of this matter to the Minister for ministerial intervention under section 417 of the Migration Act.

  7. On 15 February 2017 Ms Anang sent an email to the second applicant attaching the letter and documents CLA sent to the Tribunal. Ms Anang states CLA advised the Tribunal “that you will not be attending the hearing tomorrow and have requested that they make a decision based on the information before them”.

Second applicant’s affidavit

  1. The second applicant has made an affidavit relating to the circumstances surrounding the applicants not attending the hearing before the Tribunal.[23] The second applicant deposed as follows (errors in original):[24]

    2.In late December 2016 close to Christmas the migration agent who was handling my case at Christopher Livingston & Associates, Eugenia Anang, told me and my husband by telephone that the AAT has sent us the invitation to attend hearing and that she will send it to us for signature.

    3.She said that as I told you before you are not going for the hearing. I asked her what about you and she said I am not going either. She said we have discussed this before. I said but the Tribunal will expect us to come for the hearing and we want to go for the hearing.

    4.She said I will send the form by email and you sign it and send it to me. She sent it to us and my husband signed it and we sent it to her by email.

    5.We have had discussion with her before about the hearing and she had told us not to go for the hearing but we kept asking her why we should not go for the hearing because we wanted to tell the Tribunal our fears of going back to Sri Lanka but she insisted that we should not go for the hearing.

    6.We were not able to argue with her because we presumed that she knows the law and we didn’t so we must listen to her.

    [23] Affidavit of second applicant 22.03.2018

    [24] Counsel for the Minister objected to my reading these paragraphs to the extent they refer to “we” and “us” on the ground that the second applicant could not give evidence of the first applicant’s state of mind. I ruled that I would read “we” and “us” to refer only to the state of mind of the second applicant.

  2. There are a number of observations that may be made about this evidence. First, the second applicant does not refer to the documents to which I have already referred, or the contents of those documents. Thus, the second applicant does not refer to the email Ms Anang sent on 9 January 2015 stating that the application for a Protection visa “was made to create a pathway” to the Minister to seek his intervention to grant the first and second applicants a substantive visa to enable them to make an onshore application for a contributory parent (subclass 143) visa; to the 2.17 notice Ms Anang sent the first and second applicants; to the email Ms Anang sent the first and second applicants on 26 October 2015 advising that, given that the application for the Protection visa “was made primarily to create a pathway to the Minister, we would likely advice [sic] you not to attend the hearing”; or to Ms Anang’s email of 1 February 2017 which confirmed that “from the onset [sic], we have been of the view that your application for protection was unlikely to be successful”, and set out the reasons for that view. To that extent, the second applicant’s affidavit conveys the impression that the purpose, or at least the substantial purpose, for which the first and second applicants had engaged CLA was to apply for the grant of a Protection visa when, in fact, as the email communications between Ms Anang and the first and second applicants make clear, the purpose or substantial purpose for which the first and second applicants engaged CLA was to use their application for a Protection visa as a “pathway” to the Minister in the hope that the Minister would exercise his or her discretion under s.417 of the Act for reasons that had nothing to do with the first applicant’s claims for protection.

  3. Second, read alone, the second applicant’s affidavit conveys the strong impression that she and the first applicant’s decision not to attend the hearing before the Tribunal was dictated by Ms Anang to the point where Ms Anang is said to have indicated she would refuse to attend the hearing. That impression is inconsistent with the emails Ms Anang sent to the first and second applicants. Those emails show CLA advised the first and second applicants that, in their belief, the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa; the purpose of the applicants applying for a Protection visa was to create a “pathway” to seeking Ministerial intervention under s.417 of the Act; CLA gave its reasons for believing the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa; and, rather than dictating to or directing the first and second applicants that they should not attend the hearing before the Tribunal, the emails invited the first and second applicants to make a decision based on the advice contained in the emails CLA sent to them.

  4. A third matter to note relates to the second applicant’s evidence that “we kept asking her why we should not go for [sic] the hearing because we wanted to tell the Tribunal our fears of going back to Sri Lanka but she insisted that we should not go for [sic] the hearing”. The only evidence of the fears the applicants claimed they had of returning to Sri Lanka is that stated in the application for a Protection visa, and the evidence the first applicant gave to the delegate as recorded in the delegate’s decision record. As I have already noted, the delegate’s decision record notes that when the applicant said what he feared would happen to him if he returned to Sri Lanka he said he did not know. There is no evidence the first applicant provided or stated he would provide to CLA evidence in support of his application for protection in addition to what he had stated in his application for a Protection visa, or to what he had said to the delegate.

  5. There is other evidence that is relevant to determining whether I should accept the second applicant’s evidence; and that is a chain of emails that was initiated after the applicants served on the Minister the second applicant’s affidavit made on 22 March 2018 and another affidavit she made on 4 January 2018.

    a)On 28 March 2018 Mr Gao, the lawyer for the Minister, sent an email to Ms Anang attaching the second applicant’s affidavits “for [Ms Anang’s] comment”.[25]

    [25] Exhibit HG-1, pages 24-25

    b)Ms Anang responded by email sent on 29 March 2018 in which she said that the legal professional privilege she owes to the first and second applicants “prevents me from making any comments regarding the content of the affidavit”.[26]

    [26] Exhibit HG-1, page 24

    c)On 29 March 2018 Ms Anang sent an email to Mr Silva, being the barrister whom the applicants retained to represent them in the proceeding in this Court.[27] After stating that she believed Mr Silva acted for the applicants, Ms Anang sent the email Mr Gao had provided to Ms Anang together with the second applicant’s affidavits. Ms Anang said:

    [27] Exhibit HG-1, page 31

    I have email correspondence between myself and [the second applicant] that are directly relevant to paragraphs 2 to 5 of [the second applicant]’s affidavit of 22 March 2018.

    I am happy to provide copies of the emails to you subject to written confirmation that [the first and second applicants] have waived their legal professional privilege in respect of those emails.

    Further, I have advised Australian Government Solicitors that as a result of the legal professional privilege that I owe to [the first and second applicants], I am unable to comment on the contents of the attached affidavits. A copy of my email to Australian Government Solicitors is attached.

    I have included [the first and second applicants] to this email.

    d)Mr Silva responded by stating that “the clients would respond to [Ms Anang] very soon”.[28]

    [28] Exhibit HG-1, page 35

    e)The first applicant then sent an email to Ms Anang requesting that she send “those documents that you intend to send to the AGS so that I can consider my position about my privilege with regards to those”.[29]

    [29] Exhibit HG-1, page 36

    f)Ms Anang responded to the first applicant’s email.[30] She referred to the email Ms Anang sent to the second applicant, and set out the effects of its contents. Ms Anang further said that on or about 3 February 2017 the second applicant telephoned Ms Anang to discuss the contents of the email of 1 February 2017. Ms Anang said that during their conversation she reiterated the advice contained in the email of 1 February 2017 and “provided an oral summary of our recommended ministerial intervention request”. Ms Anang further said that on 3 February 2017 the second applicant sent an email confirming that she understood the advice provided and sought clarification.[31]

    [30] Exhibit HG-1, pages 37-38

    [31] Exhibit HG-1, page 38. The emails referred to are not in evidence before me

    g)The first applicant responded by a document which has handwritten on it “8/4/18”,[32] but which, according to an email Ms Anang sent to the first applicant on 11 May 2017,[33] the first applicant sent on 24 April 2017. In that document the first applicant stated that the second applicant “intends to stand by her statutory declaration”, but otherwise does not dispute any particular factual assertion Ms Anang made in her email she sent to the first applicant. The document the first applicant appears to have prepared included the following:

    [32] Exhibit HG-1, page 39

    [33] Exhibit HG-1, page 46

    In the email you sent us [being the email of 1 February 2017[34]] we have deleted the contents of the reasons that you stated for your advice to us because that is privileged information which I am not willing to waive. . . .

    [34] Exhibit HG-1, page 40

    For your purposes it is sufficient for you to show the Court that for certain professional reasons you advised us not to go for [sic] the hearing. That is that you had your reasons for that advice. This included the summary that it is “to avoid an adverse credibility finding against you”.

    It is not necessary for you [sic] tell the court what those reasons are. That will breach my privilege. I intend to pursue my protection visa application to the end . . . . The Department will use it against me in the future. . . .

    You must never advise a client not to go for the Tribunal hearing. Once an applicant makes an application he /she must not be advised not to go for the hearing whatever reasons there may be. The client must be prepared to face the Tribunal to which he applied for review. You are to assist him to appear and not to stop him/her from attending the hearing. That is negligence.

    We were also not told about judicial review options if our case failed which is an important right for an applicant.

    h)On 10 May 2018 Mr Levingston sent to Mr Silva the following email.[35]

    [35] Exhibit HG-1, page 43

    I am aware that your client has sworn an affidavit which has been filed in Court which is not a correct recital of the relevant facts and circumstances surrounding this case.

    My specific concern is that the reasons given by the client for not attending the RRT [sic] hearing are incorrect and create the impression that the client was somehow pressured into not attending the hearing.

    That is not correct and we have forwarded you all of the relevant emails between my firm and your client.

    I think it is fair to say that the client was well aware that the application was put on foot, not to articulate claims about persecution for convention reasons in Sri Lanka, but to create a pathway to the Minister under section 417 by reason of their child being an Australian Citizen.

    Your client, in furtherance of some objective is seeking to mislead the Court and you may wish to consider your stance having regard to these circumstances.

    i)Mr Silva responded to Mr Levingston’s email by email on 10 May 2018 stating he could not directly respond because he was acting as counsel on a direct access basis.[36]

    j)On 11 May 2017 Ms Anang sent an email to the first applicant (copied to Mr Silva and Mr Levingston).[37] It responds to the email the first applicant sent on 24 April 2017. Ms Anang denies she had been negligent, and also says she holds the view that the contents of the second applicant’s affidavit of 22 March 2018 “misrepresent the events surrounding your decision not to attend your Tribunal hearing”, and then sets out her reasons for that view.

    k)The first and second applicants responded to the emails of Mr Levingston and Ms Anang by email sent on 21 May 2018.[38] The email, however, responds almost line by line to the email Ms Anang sent. The email refers to Ms Anang’s referring to Mr Levingston’s claim that the first and second applicants were seeking to mislead the Court, and states that it is “not our intention to mislead the Court”, noting that the “important points are firstly we were advised not to go”, and, “we were not given advice about judicial review so we didn’t know about it”. The email, however, does not take issue with the statement Mr Levingston made in his email of 10 May 2017 that the first applicant “was well aware that the application was put on foot, not to articulate claims about persecution for convention reasons in Sri Lanka, but to create a pathway to the Minister under section 417 by reason of their child being an Australian Citizen”.

    [36] Exhibit HG-1, page 42

    [37] Exhibit HG-1, pages 46-47

    [38] Exhibit HG-1, pages 48-51

  6. Under cross-examination the second applicant accepted she had received the emails Ms Anang sent on 9 January 2015, 26 October 2015, and 1 February 2017. In those circumstances I find that those email communications reflect the true nature of the first and second applicants’ dealings with Ms Anang and CLA up to the time CLA provided submissions and documents to the Tribunal, and that the second applicant was aware of the nature of that relationship as revealed in those communications. On the basis of that evidence I am not satisfied that the first and second applicants did not attend the hearing before the Tribunal because they were directed or coerced by Ms Anang or any other person from CLA not to attend. I am also not satisfied that the second applicant said to Ms Anang, or at any time believed, that the first and second applicants “wanted to tell the Tribunal our fears of going back to Sri Lanka”. The first and second applicants decided not to attend because they accepted CLA’s advice (which they do not allege was negligent) that the first applicant’s application for a Protection visa had no, or no reasonable, prospects of success; and that they pursued their application for a Protection visa, not in the expectation that they would succeed in being granted a Protection visa, but in the hope that CLA would succeed in persuading the Tribunal to refer the applicants’ case to the Minister for the exercise of his discretion under s.417 of the Act. These findings are made all the more secure by the first and second applicants’ not having taken issue in their email of 21 May 2018 with the statement Mr Levingston made in his email of 10 May 2018 that the first applicant “was well aware that the application was put on foot, not to articulate claims about persecution for convention reasons in Sri Lanka, but to create a pathway to the Minister under section 417 by reason of their child being an Australian Citizen”.

  7. There is another, not insignificant, matter to note. The first applicant, who was the primary applicant for the Protection visa, has not given any evidence about his deciding not to appear at the hearing before the Tribunal; and no explanation has been given for his not giving evidence. The first applicant’s not giving evidence brings into play the principles Handley JA considered in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd:[39]

    In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.

    There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel…. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions.

    There is in fact extensive case law in the United States on this question although it is not referred to in Wigmore, Evidence, 3rd ed (1940). It may be found summarised in 5 ALR 2d, par 25 at 949-951. One of the leading cases is Milliman v Rochester Ry Co 3 App Div 109; 39 NYS 274 (1896), a decision of the Appellate Division of the Supreme Court of New York. The judgment of the Court was given by Follett J who said (at 276):

    “In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party … The existence of this rule is not disputed but it is urged that it is not applicable to this case because the daughter was produced as a witness, and that no presumption arises from the plaintiff's failure to interrogate her, that her testimony would have been unfavourable to him. I think the rule is as applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or non-existence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.”

    [39] Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at pages 418-419

  1. Although the particular issue Handley JA addressed in this passage was the significance to be attached to not asking a witness in chief a question of a person who has been called to give evidence, what his Honour said applies to where a person is not called as a witness at all. That is clear from the passage of the judgment of Follett J that Handley JA quoted. That the first applicant did not give evidence reinforces my findings in paragraph 36 of these reasons.

Tribunal’s decision and reasons

  1. On 2 March 2017 the Tribunal decided to affirm the delegate’s decision. The Tribunal set out the first applicant’s claims, as stated in his application for a Protection visa, as recorded by the delegate in the delegate’s decision record, and as advanced by CLA in the submissions they provided to the Tribunal. The Tribunal accepted the applicant is an ethnic Sinhalese from Colombo, but otherwise could not be satisfied whether the first applicant was a member of the UNP, or that he would be killed by members of the UNP because they hold a grudge against him as he had assisted the JVP, or whether the JVP continue to hold a grudge against the first applicant because of his previous involvement as a UNP member, or whether the applicant suffered any harm in Sri Lanka. In those circumstances the Tribunal was not satisfied the first applicant satisfied the criteria for the granting of a Protection visa.

  2. The Tribunal, however, noted that the applicants’ advisor had requested the Tribunal refer the application to the Minister for consideration under s.417 of the Act. The Tribunal also noted that it considered the applicant’s case and the ministerial guidelines relating to the exercise of the discretionary power conferred by s.417 of the Act, and would refer the matter to the Department.

Minister decides not to exercise power under s.417

  1. By letter dated 10 March 2017 to CLA the Department confirmed that on 6 March 2017 the Tribunal had referred the matter for possible consideration under s.417 of the Act, and that the Department had initiated a Ministerial intervention request on behalf of the applicants.[40] The letter contained the following paragraph:

    Your clients should also be aware the Minister is under no obligation to intervene in your clients’ case. This means that your clients should not discontinue any application for judicial review on [sic] the expectation that the Minister will intervene.

    [40] CB240

  2. By letter dated 16 November 2017 the Department informed the first applicant that the Assistant Minister personally considered the request for intervention “and has decided that it would not be in the public interest to intervene”; and, for that reason, the Assistant Minister has not exercised his power under s.417.[41]

    [41] CB242

Principles governing exercise of power under s.477(2)

  1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

  2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[42]

    [42] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]

    The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

    (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

    (b)Whether there is any prejudice to the Minister;

    (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

  3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[43] Further:[44]

    If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    [43] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (references omitted)

    [44]  MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (references omitted)

Explanation for delay

  1. The evidence on which the applicants rely to explain their delay in commencing the proceeding is the affidavit of the second applicant made on 4 January 2018. In that affidavit the second applicant relevantly deposed as follows (errors in original):[45]

    3.The reason why we did not apply to the Court to challenge the Tribunal decision was that we didn’t know that we could go to the Court to challenge the Tribunal application.

    4.Until we met Mr. Silva we honestly and sincerely did not know about going to Court as an option so much so that we were surprised when Mr. Silva pointed that out as an option.

    5.Our migration agents and lawyers, Christopher Livingstone and Associates never told us that challenging Tribunal decision at the Court is an option.

    6. I now understand that (only after Mr. Silva explained to us) because they asked us not to go for the Tribunal hearing it would not have made sense for them to tell us that challenging the Tribunal decision as an option after telling us not to go for the hearing.

    7. Before meeting Mr. Silva, we also met Garry Howard of Howard’s Immigration Services on 8 /12/17 at Fairfield and he didn’t tell us that going to Court to challenge the Tribunal decision was an option either.

    8. So we were in the dark about this until we met Mr. Silva. In fact when Mr. Silva told us on 12/12/17 we applied to the Court on the same day.

    [45] Counsel for the Minister objected to my reading these paragraphs to the extent they refer to “we” and “us” on the ground that the second applicant could not give evidence of the first applicant’s state of mind. I ruled that I would read “we” and “us” to refer only to the state of mind of the second applicant

  2. There is no evidence of any communication from CLA to the first or second applicants in which CLA informed the first and second applicants of the possibility of applying to a court to set aside the Tribunal’s decision. There is in evidence, however, the Department’s letter dated 10 March 2017 which contained the statement that CLA’s clients, that is, the applicants, “should not discontinue any application for judicial review on [sic] the expectation that the Minister will intervene”. The second applicant has not referred to this letter, and she was not taken to it in cross-examination. The inference available to be drawn, however, and I do draw that inference, is that CLA provided the letter to the first and second applicants.

  3. The likelihood, however, is that, apart from sending to the first and second applicants a copy of the Department’s letter dated 10 March 2017, CLA did not advise the applicants that they could apply to a court to set aside the Tribunal’s decision. That follows from the advice CLA had given the first and second applicants, which, I have found, the first and second applicants accepted, namely, that the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa, but the application to the Tribunal could constitute a “pathway” to having their matter referred to the Minister for the purpose of the Minister exercising his discretion under s.417 of the Act. I find, therefore, that, apart from sending the Department’s letter dated 10 March 2017 to the first and second applicants, the CLA did not inform the applicants that they could apply to this Court for judicial review; and I further find, however, that they did not do so because the occasion for doing so did not arise, given that the purpose for which the applicants applied for a Protection visa was to create a “pathway” to Ministerial intervention.

  4. That CLA did not advise the applicants that they could apply for judicial review of the Tribunal’s decision does not necessarily mean the applicants were unaware of the possibility of applying to a court to set aside migration decisions of the Tribunal; and I am not prepared to find the first or second applicants were unaware of the possibility of challenging a migration decision of the Tribunal in a court of law. First, I have inferred that CLA sent to the first and second applicants the Department’s letter dated 10 March 2017 which referred to “judicial review”. Second, I have found the second applicant has given an incomplete account of the relevant dealings between CLA and the first and second applicants that does not reflect the true nature of those dealings. For that reason I regret to say I find the second applicant to be an unreliable witness. Third, the first applicant has given no evidence that he did not know of the possibility of challenging in a court migration decisions of the Tribunal.

  5. Let me assume, however, that I accept the first and second applicants were not aware of the possibility of applying to a court to challenge the Tribunal’s decision. The second applicant’s affidavit is based on the implicit premise that, had the applicants known they had the right to apply for judicial review of the Tribunal’s decision, the applicants would have done so. The second applicant, in answers to questions from me, asserted that that is what the applicants would have done.

  6. The second applicant’s assertion is to be assessed by reference to the findings I have already made, namely, that CLA advised the first and second applicants that the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa, but that the application to the Tribunal could constitute a “pathway” to the applicants having their circumstances referred to the Minister for the purpose of the Minister exercising his discretion under s.417 of the Act. I have also found that the first and second applicants accepted that advice. In those circumstances it is most unlikely that, had CLA informed the first and second applicants that they could apply to this Court for orders to challenge the Tribunal’s decision, they would have done so; and that is because any challenge to the Tribunal’s decision would have had as its aim the removal of the “pathway” to the Minister’s consideration of the applicants’ circumstances, that “pathway” being the Tribunal’s decision affirming the delegate’s decision but with a recommendation that the application be referred to the Minister. Further, given the first and second applicants accepted CLA’s advice that the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa, and the applicants do not allege that advice was negligent, it is difficult to imagine that the first and second applicants would have seen any merit in expending money in applying to the Court for a remedy which, even if granted, would not have improved the first applicant’s prospects of being granted a Protection visa unless they saw some advantage in doing so that was unrelated to the merits of the first applicant’s claims for protection.

  7. Quite apart from the first applicant not having given evidence, there is another reason why I cannot accept that, had the first and second applicants been aware of the possibility of challenging the Tribunal’s decision they could have done so. An assessment of that claim requires the articulation of the grounds on which the applicants say they would have applied to this Court, whether those grounds would have had any merit, and, given the merits, whether the first and second applicants would nevertheless have applied to this Court or instead would have awaited for the outcome of the Tribunal’s referral of their application to the Minister. The applicants have given no evidence, and have advanced no submissions, about these matters.

  8. I therefore do not accept that the reason the applicants did not make an application in this Court in relation to the Tribunal’s decision within the 35 day period prescribed by s.477(1) of the Act was any ignorance on their part of the availability of an option to challenge the Tribunal’s decision by applying to a court. The applicants did not consider the possibility of challenging the Tribunal’s decision because they were committed to a particular course of action based on their acceptance of CLA’s advice that the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa; and that course of action was to secure and rely on a recommendation by the Tribunal that their application be referred to the Minister in the hope the Minister would exercise his discretion under s.417 in favour of the applicants. Further, even if, at the time they became aware of the Tribunal’s decision, the first and second applicants were not aware of the possibility of challenging the Tribunal’s decision by applying to a court, but they would have been informed of that possibility, the first and second applicants would not have applied to this Court for remedies to set aside the Tribunal’s decision; they would have done that which they in fact did, namely, await the outcome of the Tribunal’s referral of their matter to the Minister.

  9. The next question is whether, as I have found, the reason the applicants did not apply to this Court for a remedy, namely, their awaiting the outcome of the Tribunal’s referral of their matter to the Minister, constitutes an adequate reason for their not making an application to this Court in relation to the Tribunal’s decision within the 35 day period prescribed by s.477(1) of the Act. In my opinion it is not. The first and second applicants relied on the Tribunal’s decision as a “pathway” to the Minister considering their case for reasons that had nothing to do with the first applicant’s claims for protection. To that extent, the first and second applicants can be taken to have accepted that the Tribunal’s decision was correct, and did not intend to challenge that decision by going to court, or, assuming they were not aware of the possibility of going to court, they would not have intended to challenge the Tribunal’s decision by going to court if they had become aware of the possibility of doing so. Stated more simply, the first and second applicants elected, or would have elected, to pursue a course of action that was not consistent with their exercising rights to apply to this Court for remedies in relation to the Tribunal’s decision within the 35 day period provided for by s.477(1). An applicant’s taking an alternative course of action to that provided for by s.476 of the Act is not an adequate explanation for not taking the course of action provided by s.476 within the time prescribed by s.477(1) of the Act.

Proposed merits

  1. The amended application on which the applicants propose to rely if an order is made under s.477(2) of the Act contains four grounds. At the hearing Mr Silva, who appeared for the applicants, said the applicants would not be pressing grounds 1 and 4. I will only consider, therefore, grounds 2 and 3.

Ground 2

  1. Ground 2 of the amended application is as follows:

    The Tribunal made jurisdictional error in that its jurisdiction was stultified by the applicants being advised not to go for the Tribunal hearing and/or not appearing before the Tribunal

    Particulars

    (a)The applicants did not attend the hearing because they were advised not to attend the hearing. The applicants could not advance their case further because of the negligent advice given by the former migration agent.

    (b)The Tribunal’s jurisdiction was stultified because the negligent advice of the former migration agent combined with inaction on the part of the Tribunal. The Tribunal knew what was taking place and the Tribunal got diverted because of the request to refer the case to the Minister under s417. Its jurisdiction was stultified because the Tribunal knew that it could not properly deal with the applicants’ case without them appearing. It should have put them on notice that their case will be dismissed if they do not appear independent of the migration agent.

    (c)Under s427(6)(a) the applicants were not entitled to be represented by any person including a migration agent at the hearing. A migration agent only comes to the Tribunal as an observer at the mercy of the Tribunal. In law therefore when it came to the hearing the applicants were not represented. Therefore there was no one between the Tribunal and the applicants and because the Tribunal was conducting an inquisitorial hearing the Tribunal was bound to contact the applicants direct about them not appearing before the Tribunal.

  2. In his written submissions, and in his oral address at the hearing, counsel for the applicant repeated the substance of the grounds stated in the amended application. None of the matters claimed in the ground, however, has any merit.

  3. First, the particulars assert CLA were negligent in advising the first and second applicants not to appear at the hearing before the Tribunal. There are two matters to note about this ground:

    a)The allegation of negligence is not particularised. It does not identify the work the first and second applicants retained CLA to perform; and it does not identify any facts or matters, other than the giving of the advice itself, on which the ground relies for claiming the advice not to attend was negligent.

    b)It is apparent from the applicants’ counsel’s written submissions that the only evidence on which the allegation of negligence is based is that of the second applicant contained in her affidavit of 22 March 2018;[46] but I have found that the matters deposed to by the second applicant do not reflect the true nature of the relationship between CLA and the first and second applicants. In particular, the evidence does not identify all of the advice CLA had given the first and second applicants, including the advice that the first applicant had no, or no reasonable, prospects of succeeding in his application for a Protection visa, and that the application to the Tribunal for review provided a “pathway” to Ministerial intervention. Any allegation of negligence by CLA would have had to engage with the actual facts as revealed by the contemporaneous communications between CLA and the first and second applicants. Neither in the particulars to the ground, nor in the second applicant’s affidavit, nor in the applicants’ counsel’s written and oral submissions, is any attempt made to relate the bald assertion of negligence with the incontrovertible evidence of the dealings between the first and second applicants and CLA.

    [46] An Outline of the Final Submissions of the Applicants, [30]

  4. Second, the particulars assert the “applicants could not advance their case further because of the negligent advice given by the former migration agent”. This assertion, too, is made without reference to the contemporaneous communications that passed between CLA and the first and second applicants. Those communications make it clear that the first and second applicants accepted CLA’s advice that the application for review to the Tribunal would be used as a “pathway” to the Minister considering the applicants’ circumstances by reference to matters that had nothing to do with the first applicant’s claims for protection. Thus, there is no evidentiary foundation for the assertion that the “applicants could not advance their case further because of the negligent advice given by the former migration agent”. The incontrovertible evidence shows the first and second applicants had no intention of advancing the first applicant’s protection claims any further than what the first applicant had done by completing his application for a Protection visa, and his giving evidence to the delegate; their purpose in pursuing their application for a Protection visa was to secure a “pathway” to the Minister for the favourable exercise of his discretion under s.417 of the Act.

  1. Third, the ground asserts the Tribunal “knew what was taking place”. The ground, however, does not identify what it is the Tribunal is said to have known was taking place, unless the ground is intended to assert no more than the Tribunal was aware the first and second applicants elected not to appear at the hearing, and the Tribunal was aware of the matters that was in the material before it, including the submissions CLA had made on behalf of the applicants. If that is all that the ground intends to assert the Tribunal knew, that is incapable of supporting the contention that the Tribunal’s exercise of its jurisdiction was stultified.

  2. Fourth, the ground asserts the “Tribunal knew that it could not properly deal with the applicants’ case without them appearing”. That is an allegation of bad faith made without any particularisation or evidentiary foundation. An “allegation of bad faith is a serious matter involving personal fault on the part of the decision maker”; and “the allegation is not to be lightly made and must be clearly alleged and proved”.[47] Further, this part of the ground does not articulate what “properly deal with the applicants’ case without them appearing” means, or the facts and circumstances on which the ground relies for claiming the Tribunal knew it could not properly deal with the applicants’ claims.

    [47] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, at [42]

  3. Fifth, the ground asserts the Tribunal should have given the applicants notice that “their case will be dismissed if they do not appear independent [sic] of the migration agent”. This assertion does not identify the basis on which it is said the Tribunal came under the asserted obligation. More fundamentally, however, the assertion ignores the incontrovertible evidence that in her email sent on 1 February 2017 Ms Anang advised the first and second applicants that “your non-attendance at the hearing will likely result in the AAT affirming the decision to refuse your application for protection”.

  4. Sixth, the ground asserts the Tribunal “got diverted because of the request to refer the case to the Minister under s417”. That assertion is made without reference to what the Tribunal did; and has no support from what the Tribunal did. The Tribunal referred to the applicants’ “advisor” requesting that the Tribunal refer the matter to the Minister in the third last paragraph of its reasons for decision after the Tribunal identified and considered each of the first applicant’s claims for protection. The Tribunal otherwise identified the first applicant’s claims, and considered them.

  5. Seventh, the ground asserts the Tribunal “was bound to contact the applicants direct about them not appearing before the Tribunal”. The basis of that assertion is s.427(6)(a) of the Act which provides that a person appearing before the Tribunal to give evidence is not entitled to be represented. The assertion contained in this part of the ground is made in the teeth of a statutory provision that not only permits, but requires the Tribunal to communicate with an applicant who has nominated a representative to communicate only with the representative the applicant has nominated.[48]

    [48] See s.441G(1) of the Act which provides that if a person applies for a review of a Part 7-reviewable decision, and the applicant gives the Tribunal written notice of the name and address of another person (referred to as “the authorised recipient”), the “Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”.

Ground 3

  1. Ground 3 of the amended application is as follows:

    The Tribunal made jurisdictional error in that it failed to deal with the case presented by the applicant on papers.

    Particulars

    At CB 235 [24-26] although the applicants did not attend the hearing the Tribunal was still required to deal with the applicant’s [sic] case fully from the information that was at its disposal which the Tribunal failed to do.

  2. The ground does not identify which part or parts of the first applicant’s claims the Tribunal did not deal with and the matters on which it relies for claiming it did not deal or fully deal with those claims. In their counsel’s written submissions the applicants submit the Tribunal was required to review the delegate’s factual findings, but the Tribunal failed to do so.

  3. Ground 3 and the submissions made in support of the ground lack merit. It is apparent from its reasons that the Tribunal identified and considered the first applicant’s claims, but concluded it was not satisfied the first applicant satisfied the criteria for the grant of a Protection visa. To the extent counsel intends to submit the Tribunal was required to review factual findings of the delegate, that submission would not correctly identify the nature of the Tribunal’s duty under s.414 of the Act when reviewing a Part 7-reviewable decision. The “Tribunal's statutory task, as revealed by a consideration of the Act as a whole and, in particular, the provisions of Pt 7 . . . is to arrive at the correct or preferable decision in the case before it, according to the material before it”.[49]

    [49] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, at [94] (Nettle and Gordon JJ)

Conclusion and disposition

  1. The applicants’ delay in commencing this proceeding is significant; they have given no reasonable explanation for the delay; and there is no merit in the two grounds of the amended application on which they intend to rely if an order under s.477(2) of the Act were made. I am therefore not satisfied it is necessary in the interests of the administration of justice to extend the 35 day period prescribed by s.477(1) of the Act for the making of an application for remedies under s.476 of the Act in relation to the Tribunal’s decision made on 2 March 2017. I propose to order that the application for an order under s.477(2) of the Act be dismissed.

  2. Counsel for the parties did not submit costs should not follow the event. I am satisfied that costs should follow the event, and I propose, therefore, to order that the first and second applicants pay the Minister’s costs as assessed or agreed. The order for costs I propose to make will include the Minister’s costs of the applicants’ unsuccessful recusal application which I reserved on 27 July 2018.

Other matters

  1. My consideration of the claims and submissions made in these reasons for judgment reveal two matters that trouble me; and it is appropriate I record what those matters are lest I be taken to condone them.

  2. The first relates to CLA’s conduct. CLA advised the first and second applicants that the first applicant had no, or no reasonable, prospects of being granted a Protection visa; yet CLA assisted the applicants in their application for a Protection visa. They did so, however, not because they were of the opinion that the applicants had any, or any reasonable, prospects of being granted a Protection visa, but for the purpose of using an expected unsuccessful outcome of such application as a means - “pathway” is the word used – to bring before the Minister the applicants’ circumstances in the hope the Minister would exercise his discretion under s.417 of the Act in favour of the applicants on the basis of matters that had nothing to do with the first applicant’s claims for protection. This, to me, is indefensible; it constitutes the use of laws Parliament has enacted to give effect to Australia’s treaty obligations to protect refugees for a purpose wholly foreign to the purpose for which those laws were enacted. If the evidence before me is representative of a general practice among migration agents, it is a practice which, in my view, should cease; and, whether or not the practice is contrary to the Code of Conduct, it should be specifically prohibited by the introduction of an amendment to that code, or by some other legislative means.

  3. The second matter relates to the case as formulated and presented by the applicants, through or with the assistance of their counsel. There are two things I wish to note. The first is that the evidence, and the case based on that evidence, on which the applicants have relied, bear little resemblance to the incontrovertible evidence that is before me, particularly the evidence of the dealings between the first and second applicants and CLA. Perhaps the explanation for this is that the second applicant prepared her evidence, and the applicants’ case was framed, at a time when the first and second applicants expected that evidence of their dealings with CLA would be protected from disclosure by legal professional privilege. This, however, would leave unexplained why the second applicant continued to adhere to her evidence, and the applicants persisted with a case based on that evidence, after it had become apparent that the evidence of the first and second applicants’ dealings with CLA would not be protected by any privilege, and that, moreover, the Minister intended to adduce that evidence in his own case.

  4. The second thing is the nature of the claims the applicants have propounded, and the form in which they propounded them. For the reasons I have given, the grounds manifestly lack merit either because they are not particularised, or because they are divorced from the incontrovertible evidence that is before me, or because they are inconsistent with relevant statutory provisions the grounds, and the submissions made in support of those grounds, do not even acknowledge exist.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 5 May 2020


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Standing

  • Jurisdiction

  • Appeal

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Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

3

Luxton v Vines [1952] HCA 19
Jones v Dunkel [1959] HCA 8
Luxton v Vines [1952] HCA 19