FLX18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1357
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLX18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1357
File number(s): MLG 3110 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 3 December 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for a moderate delay – whether there was an arguable case of jurisdictional error – extension of time application refused Legislation: Migration Act 1958 (Cth) ss 36, 65, 411, 412, 414, 415, 426A, 430, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 3 December 2024 Date of hearing: 3 December 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms K. Petrovski Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3110 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLX18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Administrative Review Tribunal”.
2.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed on 17 October 2018 is amended so as to seek a writ of mandamus.
3.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with any requirement to make, file or serve an amended application as ordered in Order 2 above.
4.The application filed on 17 October 2018 for an extension of time in which to file the application for judicial review as amended is refused.
5.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.38.
6.Pursuant to r 17.02 of the Rules, the orders 4 and 5 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE CUTHBERTSON
INTRODUCTION
This matter was listed for an interlocutory hearing before the Court on 3 December 2024.
These reasons, revised from the transcript, explain why the Court dismissed the application and made the following orders:
4. The application filed on 17 October 2018 for an extension of time in which to file the application for judicial review as amended is refused.
5. The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $4,189.38.
6. Pursuant to r 17.02 of the Rules, the orders 4 and 5 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
BACKGROUND
The applicant, a citizen of Malaysia, applied for a protection visa on 9 February 2017. He claimed he would be discriminated against if he returned to Malaysia due to his Christian faith and political activities as an activist for the Sabah Sarawak Union – UK (SSU-UK). On 24 March 2017, a delegate of the Minister refused to grant him a visa. The applicant then applied to the Administrative Appeals Tribunal for merits review of the delegate's decision on 8 April 2017. Following hearings conducted in April and August 2018, the Tribunal delivered an oral decision affirming the delegate's decision on 23 August 2018. I note the applicant disputes that an oral decision was made that day.
The Tribunal sent the applicant a letter outlining the outcome of the hearing and advising he could apply for a written statement of decision and reasons within 14 days of the date of the oral decision. That letter was sent on 24 August 2018. The applicant did not send a request for a written statement of decision and reasons within the prescribed time frame. He next contacted the Tribunal on 26 September 2018 and did not formally apply for a written statement of decision and reasons until 15 October 2018.
On 17 October 2018, the applicant applied for judicial review of the Tribunal's decision. The application for judicial review was filed 20 days outside of the 35 day time limit prescribed by s 477(1) of the Migration Act 1958 (Cth) (the Act). The applicant sought an extension of time in which to file his application for judicial review.
The Minister opposes the application. This judgment is only concerned with the extension of time application. It raises the following the issues. First, does the applicant have an adequate explanation for the delay and secondly, is the judicial review application reasonably arguable?
Section 477(2) of the Act provides that the Court may extend the 35 day period provided by s 477(1) as the Court considers appropriate if there has been an application made in writing (and there has in this case) and the Court is satisfied it is necessary in the interests of the administration of justice to make an order extending time.
The factors which may be considered in the context of an extension of time application are not closed. The term "necessary in the interests of the administration of justice” is broad, as is the discretion inherent in that phrase. As a consequence, there are a range of permissible considerations relevant to the exercise of the discretion. It is a matter for the judge hearing the extension of time application to determine which of that range of considerations make it necessary for the grant of an extension of time in a particular case: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579; [2022] HCA 28 at [12]-[13], per Kiefel CJ, Gageler, Keane and Gleeson JJ; and [39]-[40], per Gordon, Edelman and Steward JJ.
Many cases have referred to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 with approval, where his Honour identified the kinds of considerations guiding the exercise of this particular type of discretion. They include the length of delay, the explanation for the delay, any prejudice to the administration of justice as a result of the delay, and the merits of the substantive application. While those factors provide guidance, and they are not taken as exhaustive or a code: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43], per Mortimer J. It is a matter for the Court to identify and formulate the interests of the administration of justice in a particular case and how they should be weighed and assessed. As the merits of the proposed application are a permissible consideration, it is within the Court's jurisdiction to have regard to that factor in such a matter as it considers appropriate in the circumstances: Katoa at [17]-[19], per Kiefel CJ, Gageler, Keane and Gleeson JJ.
By way of background, the applicant's claim for protection is set out in his visa application. This was accurately summarised by the delegate in their refusal decision at page 82 of the court book:
•The applicant claims he is a native from north Borneo Sabah and he left Malaysia because it was hard for him to get a job. He was rejected for more than six times in job interview, because he is 'Christian'. He claims he was discriminated because he is not a 'Muslim';
•He planned further studies in college/university but his family could not afford his school fee because it is too expensive and the cost of living in Malaysia is high compared to low wages;
•He has also been part of the human rights activists collecting signatures for a petition to United Nations to get the British Government to review the validation of the 1963 Malaysian Agreement;
•He claims he has been threatened that he will be dragged into jail for being part of this 'Sabah Sarawak Union- United Kingdom (SSU-UK)' movement;
•He thinks if he returns to Malaysia, he cannot improve his life financially; he will be discriminated for his religion and cannot do further study due to lack of funds. He will be unable to claim his rights through 'Sabah Sarawak Union- United Kingdom (SSU- UK)' movement due to threats;
•He claims Malaysian government allowed the illegal people from Sulu Mindanao (Philippines), Bangladesh and Indonesia to enter Sabah and given them citizenship as long as they are willing to convert to Islam and vote for the ruling party UNMO. He also claims there is a movement whereby they convert people in school and village from Christianity to Islam by paying Rm. 200 and with promise that people who converted will receive more benefit than Christians;
•Every criminal incident in Sabah committed by illegal immigrants has been reported to police, but police did not take any action. Instead, the number of illegal immigrants is increasing;
•He did not try to move elsewhere in Malaysia claiming because of racism towards natives from north Borneo Sabah and Christians;
•He does not think Malaysian authorities will protect those against the government;
•He wishes to return to Malaysia after he builds himself with education and financial savings so that he can support his family.
The visa application was also accompanied by a number of news articles, which concerned calls for Sabah and Sarawak rights, a proforma petition and a template for collecting signatures. The delegate's decision stated the applicant's claims were provided with minimal and vague detail and without any supporting evidence, noting in particular the following:
There is no evidence that he was involved in any separatist movement, anti-government activities, and campaigns or encouraged others to support such movement. He provided with his application a pro-forma petition, template for signature collection and some news articles. These documents, on their own merit, are not credible evidence of his involvement as volunteer in the movement and his claims of receiving threats. He has not outlined his claims of being threatened with the timing and nature of the threats and who he received the threats from. He claims police inaction in response to reporting of the criminal activities by illegal immigrants, but has not provided any copy of these police reports. While his claims of illegal migration from Philippines, Bangladesh and Indonesia may be true, her (sic) claims of Malaysian government converting those illegal immigrants to ‘Islam’ and giving them citizenship for their vote in favour of UNMO is not substantiated by any evidence or country information. On the contrary, I find that the majority of people from these three migrating counties are already Muslim.
The country information above indicates that the invasion of Sulu soldiers in 2013 was handled by the Malaysian security forces under strict rules. There is currently no known widespread political or criminal threat in Sabah province. Country information above also indicates that though there are cases of political persecution reported in Malaysia, it is generally targeted towards the high-profile opposition leaders. General opposition party members are able to undertake political activities and are not at risk of official discrimination on a day-to-day basis; and if arrested, have commonly been released on bail shortly afterwards.
The country information set out above on religious freedom and Christians in Malaysia indicates Non-Islamic minority religious groups remained generally free to practice their beliefs and the Christians do not face discrimination on day to day basis. The applicant was vague about his claims of conversion. His claims lack detail regarding who are converting and when and where these conversions took place. Although the Malaysian law supports conversion to Islam, there is no country information on mass conversion of Christians to Islam.
In relation to the applicant's claims regarding religious discrimination, there is no evidence before me that the applicant attended six interviews and were declined a job due to his religion. I note from the above country information that native Malaysians are part of the larger 'bumiputra' population that enjoys preference over the smaller groups of Chinese and Indians. While within the 'bumiputra' group, native Malaysian Christians may be a minority against Malays, there is nothing in the country information that indicates that the Native Malaysian Christians face widespread discrimination in Malaysia. The applicant has not claimed any specific incident of unfair treatment by Malaysian authorities or Malays as a measure of racial discrimination that lead to consequences of a substantially prejudicial nature and amounts to persecution.
The applicant claims his poor financial condition and the current weak economy in Malaysia is part of the reasons for his seeking Australia's protection. There is no obligation at international law for States to provide protection to people fleeing violations of economic, social or cultural rights. The fact that a person may enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a non-refoulement obligation. While I acknowledge the applicant may not want to return to Malaysia because he fears financial hardship, I do not find that this amounts to significant harm.
Furthermore, I note that the applicant was able to depart Malaysia without hindrance from the authorities which suggests that he is not of adverse interest to the Malaysian authorities as claimed. Overall I am satisfied the applicant is not as risk of harm from the Malaysian authorities or anyone else in Malaysia for reasons of her (sic) race and political activities or for any other reason.
The applicant sought a review with the Tribunal on 8 April 2017. Some brief relevant background to that process follows. On 6 March 2018, the Tribunal wrote to the applicant advising they had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited by letter to appear to give evidence and present arguments on 17 April 2018. That hearing ultimately was rescheduled to take place on 20 April 2018 accommodating the applicant’s request to be able to appear from Melbourne, rather than in Perth, where his application had originally been made.
A second hearing invitation was sent concerning that new hearing date on 5 April 2018. That letter also requested he read, complete and return a response to hearing invitation form. He was asked to attach any additional information if he had any requests or new information he wished the Tribunal to consider. He returned that form on 6 April 2018, but it did not attach any further information. The applicant attended the hearing on 20 April 2018 with the assistance of an interpreter in the Malay language. There is no record of any further documents being received by the Tribunal during the hearing.
The hearing adjourned to another day. The resumed hearing ultimately took place on 23 August 2018. The applicant again attended with the assistance of an interpreter in the Malay language. Again, the hearing record does not indicate any documents were received during the course of the hearing. What the hearing record does show, however, is that the hearing was completed, and then some 40 minutes later, the member commenced handing down an oral statement of reasons which affirmed the delegate’s decision not to grant the applicant a visa.
On 24 August 2018, the Tribunal sent an email to the applicant which attached a letter confirming the oral decision at the hearing and provided a written record of the outcome of review. The letter sent to the applicant stated the following:
Under the Migration Act 1958, you may request a written statement of decision and reasons be provided. Your request must be in writing and received by us within 14 days of the date of your oral decision.
The 14 day period expired on the 6 September 2018. The letter also attached a document ‘MR25 Information about decisions - MR Division’. This document was not included in the court book but was annexed to a subsequent affidavit filed by the Minister (tendered and marked R2). It relevantly stated the following:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
That document also outlined information concerning bridging visas, including that the applicant's bridging visa would cease 35 days after the decision was made. It also advised that if the applicant decided to seek judicial review of the affirmed decision, he may be eligible for a bridging visa that would keep his immigration status lawful throughout the process. It also advised the applicant should apply for another bridging visa before the current bridging visa ceased. This letter was sent via email to the email address last confirmed by the applicant on 5 April 2018, when he provided a change of contact details form to the Tribunal.
It was also the email that was provided by the applicant with his review application. It was used by the Tribunal to send the applicant letters on 11 April 2017, 6 March, 5 and 30 April and 8 and 9 May 2018. The applicant sent email replies to the Tribunal's 5 April 2018 email on 4, 5 and 6 April 2018. The applicant sent an email to the Tribunal, replying to the Tribunal's 9 May 2018 email on 22 August 2018. The applicant emailed the Tribunal on 26 September 2018 to check on his visa application status, as his attached VEVO stated his bridging visa was expiring on 27 September 2018, but he “never received any black and white letter or e-mail” to inform him whether his status was refused or accepted. He requested to be furnished “with black and white documentation” relating to his current visa to enable him to take further action required by the Department of Immigration and Border Protection, the Tribunal and the Department of Home Affairs.
On 27 September 2018, the Tribunal wrote back to the applicant in the following terms:
The Tribunal has made a decision on your review application and the outcome of this decision was notified to you by email.
Please be aware that the Tribunal has now exercised its jurisdiction in relation to your review application.
In terms of your visa and visa status, please approach the Department of Home Affairs.
You may want to consider seeking professional help from a Registered Migration Agent or an Immigration lawyer in relation to your options now that the Tribunal has confirmed dismissal of your review application.
The Tribunal did not address the applicant’s apparent request for a written statement of decision and reasons.
On 15 October 2018, the applicant sent an email to the Tribunal in the following terms:
Kindly please send me the written reason of my application for protection visa 866 being refused, as the requirements for me to submit to the appeal at the Federal Court.
Notably, the email was sent by way of reply to the Tribunal's email dated 24 August 2018, which enclosed a letter confirming the oral decision and advising of the timeframes for seeking a written statement of decision and reasons.
On 16 October 2018, the Tribunal wrote to the applicant advising written reasons will not be provided, as the request was received after the prescribed 14 day period.
Ultimately, the applicant was provided a written statement of decision and reasons on 12 November 2018.
TRIBUNAL’S DECISION
Turning to those reasons, the written statement of decision and reasons is in the form of a corrected transcript of the oral statement of reasons given on 23 August 2018. It notes the criteria for the visa set out in s 36 of the Act, and that the Tribunal, where relevant, had taken into account the policy guidelines prepared by the department on refugee law and complementary protection grounds and Department of Foreign Affairs and Trade (DFAT) country information, as required by Ministerial Direction Number 56 (MD 56).
The decision outlines that, at the first hearing, the Tribunal explained to the applicant the documents it had in its possession. The applicant was asked if there was any information in those documents that should be changed, and he is recorded as responding no. He is also recorded as telling the member he did not wish to add anything to his claims for protection and confirming he was happy for the Tribunal to proceed on the basis of this information. He is also recorded as confirming the summary of his claims as set out in the delegate's decision was fair and accurate.
During the second hearing, the Tribunal records reminding the applicant of those responses and records the Tribunal took him through the delegate's findings and indicated they raised a number of issues surrounding the credibility of his claims. The hearing record outlines the evidence that the applicant gave the Tribunal about having worked for the Town Council in Malaysia. The Tribunal says it drew to the applicant's attention this was inconsistent with his application, where he had stated he was a farmer and self-employed. The Tribunal records the applicant attempted to reconcile the two statements by saying he was a part-time employee of the Council. The Tribunal said it found this account confusing and inconsistent.
There was also some inconsistency in his responses concerning when he commenced becoming a volunteer with the SSU-UK. He said at the hearing that it was in 2006, but the Tribunal said this was inconsistent with the application where he stated he was involved in 2014. The Tribunal said it found the applicant's account to be vague, confusing, and lacking an appropriate level of detail of the type one would expect from a genuine political activist. The Tribunal also says it questioned the applicant about how he had intended to live in Australia when he first arrived, and he is recorded as saying he originally lived on his savings and borrowed money from friends.
The Tribunal says it expressed concern with this answer, noting that his claim had partly concerned being unable to afford to study in Malaysia, and the applicant was recorded as making no comment on this observation when invited to do so. The Tribunal questioned the applicant about his claims of being persecuted on the basis of being Christian, and those questions were directed at the country information relating to religious freedoms in Malaysia and his apparent evidence that he and members of his family had had lengthy periods of employment with state-owned enterprises.
The Tribunal recorded finding it difficult to understand from the applicant's responses whether he was suggesting his difficulties in securing employment were due to luck or discrimination. The Tribunal recorded the applicant told the Tribunal he did not have any copies of the police reports alluded to in his application for the visa and said, initially, he had not tried to obtain copies, but then later indicated he had been unable to obtain them because of corruption. Again, the Tribunal described that evidence as being evasive. He is recorded as stating he did not experience discrimination in Malaysia on account of his Christian beliefs before the Tribunal.
The Tribunal then discussed with the applicant that the circumstances appeared to have changed considerably since there had been a change of government in Malaysia and sought to elicit further information from him concerning the problems he said had arisen as a consequence of illegal immigration. The Tribunal outlined its concern the applicant was either unresponsive or provided vague responses without corroborative material.
Ultimately, the Tribunal recorded it had considerable doubts about much of the evidence the applicant provided to the Tribunal, exacerbated by the fact he had been unresponsive to a number of questions, which related to core aspects of his claim. The Tribunal, due to these and other concerns, did not accept his claims as true. It did not accept the applicant held a genuine and well-founded fear of persecution in Malaysia now or in the reasonably foreseeable future for reason of any involvement with SSU-UK, his Christian beliefs, economic reasons, ethnic discrimination, any posting he may have or may not have made regarding the 1MDB scandal or for issues arising as a result of undocumented immigrants in Sabah. The Tribunal also did not accept that if the applicant returned to Malaysia he would face any real chance of being seriously harmed for any of those or any other reason and consequently found the applicant did not meet the requirements of the visa.
PROCEEDINGS IN THIS COURT
The application for the extension of time sets out that the applicant did not receive a written statement of the refusal decision. It also sets out the applicant sent an email requesting the reasons and there is reference to the Tribunal only replying to his email on 15 October 2018. Those grounds are principally directed at not receiving a written decision. The judicial review application sets out grounds in 22 paragraphs, but most of those set out the background to the Tribunal's decision and reiterate the applicant's claims for protection.
The latter part of those grounds set out matters which were the subject of some discussion during the hearing, including the applicant not being happy with the decision of the delegate, and the allegation that the way the Tribunal had treated his case was unfair and unreasonable. The applicant said no consideration was given to whether he would have an opportunity to lodge the onshore protection visa application once it was refused. He also claimed the Tribunal had not assessed his case against the criteria and that he had not received notification of the decision.
The affidavit filed by the applicant in support also reiterated some of those matters and principally, the relevant parts are paragraphs 10, 11, 13 and 16, which state as follows:
10. I took the documents to Federal Court to appeal, but being requested to get Written Statement of Decision and Reason for my Protection Visa application being refused. But the Administration Appeal Tribunal unable to provide me with the written statement because they said I did not request within 14 days of the oral statement given, which I believe it is the AAT office responsible to provide written statement of refusal without being asked.
11. I will request the court to intervene in this matter as I wasn’t happy with decision of delegate I have applied for the Review. Tribunal member has not assessed my case against the criterion.
…
13. I will do the submissions later stage once I hire the Solicitor for this case.
….
16. Therefore I believe Federal Circuit Court of Australia kindly would accept exceptional circumstances beyond my control to lodge the review application on my own as I do have financial hardship encompassed me to this situation where I could not hire solicitor. Therefore, I would request the Federal Circuit Court of Australia to accept my application without solicitors representation.
On 22 June 2020, orders were made allowing the applicant an opportunity to file an amended application with particulars, further affidavits and written submissions, but nothing has been filed in accordance with those orders. I do have the Minister's outline of submissions. The court book was also tendered along with the applicant's affidavit and an affidavit filed by on behalf of the Minister on 2 December this year. During the hearing, the applicant was taken to those materials. I also spent some time explaining what matters I had to consider in relation to his extension of time application.
I turn to the relevant matters. The first of those that I consider relevant to this application is the length of delay and the applicant's explanation. The application was filed 55 days after the Tribunal's decision, which is 20 days late. The Minister has now conceded that was a short delay, but says that the delay has not been properly explained. I note the applicant has said that the reason why his application was late is because he did not receive any notification or email saying that his visa had expired. We discussed, during the hearing, documents which showed that the Tribunal had sent the email providing the outcome of the decision to him on 24 August 2018 to the email address that he had provided to the Tribunal. I also pointed out the email he sent to the Tribunal on 15 October 2018 is replying to the email sent to by the Tribunal on 24 August 2018.
From that information, it is open for the Court to make two inferences. First, the Tribunal had sent the letter to the correct email address, the one notified by the applicant and, secondly, that the applicant had, in fact, received it. The applicant said during the hearing that “perhaps, at that time, he did not receive the email” and that is why he made his request for the reasons late. When asked if he had an explanation for not receiving the email, he said he probably had problems with his phone at the time. He said his phone was faulty and was prone to error. It would seem, even on his own case, that he had access to his email by at least 26 September 2018, because he sent an email to the Tribunal that day.
The applicant said he did not recall there being a decision made at the hearing, and he disagreed with the proposition that the Tribunal had provided oral reasons for decision at that time. The Minister says that the evidence the applicant had not received the email or the reasons for not receiving an email are not the subject of any evidence. In any event, the evidence shows the email was sent to the correct email address and that he was also present for the oral decision.
Particular reference is made to the Tribunal's hearing record from 23 August 2018, which shows that the interpreter was present until 12.38pm, in circumstances where that is the same time that the Tribunal says that it concluded delivering the oral reasons. That is also the time that the written outcome of review says that the decision was made. Even if the applicant didn't receive it, s 441C(5) provides that if the Tribunal gives a document to a person by a method set out in s 441A(5), and that involves transmitting the document by email, the person is taken to have received the document at the end of the day on which it is transmitted. The Minister relies on that provision to say even if the applicant did not receive it, he is taken to have received it because it was sent to the correct email address, and, on that basis, there was no satisfactory reason for delay for filing.
In my view, the applicant's delay is not well explained. I do note it is 20 days and so, certainly, in the scheme of things, not the longest delay that this Court has ever had to deal with. It is, however, the case that the Tribunal sent the written confirmation to the correct address, and there is really an unsatisfactory explanation and certainly no explanation supported by any evidence other than what the applicants told us from the bar table that supports him not actually having received it. In any event, the operation of the law is such as he is taken to have received it. In my view, there is not an adequate explanation provided in this case. I do note, however, that, in my view, it is not the really key matter, and I will turn to that in due course.
In relation to prejudice, the Minister does not claim any specific prejudice would be suffered if an extension of time is granted. The Minister submits however, that there is a public interest in the finality of decision-making to be considered. In my view it is not a determinative factor in the circumstances of the case, and I note it is well settled that absence of prejudice is not a sufficient basis for the grant of an extension of time in any event: Hunter Valley at p. 349. Rather, the key issue is the merits of the applicant's application for judicial review.
My reading of the applicant's application and affidavit, and what he has told me today is that his grounds of review expressed disagreement with the ultimate decision. Those grounds allege the Tribunal did not assess his case against the criterion. He complains the Tribunal has treated his case in an unfair and unreasonable way, and he alleges the Tribunal had the responsibility to provide a written statement of reasons. The applicant's submissions to this Court in relation to the merits really centred on the Tribunal not believing him. He said during hearing that the Tribunal asked him to tell them about his reasons for seeking protection, but that his reasons were ignored, and they kept asking him about them. He pointed out the Tribunal did not believe him. He says that he is the one who lived and came from his country, and he does not agree with the Tribunal's assessment of the situation there. I understood him to be saying because he is from that country and knows the country, he is in a better position to say what the issues are there and what sort of persecution he might experience there. He reiterated that he had been asked to repeat the same thing. He says that at the final hearing he was told that they had not decided, that they did not tell him the outcome that day, and that they would send him an email. I have already pointed out that this is inconsistent with the information that is before the Court.
The Minister says at a high level that the proposed grounds have no merit. The Minister submits that being asked questions is part of the Tribunal's fact-finding function. The Tribunal is not required to uncritically accept an applicant's claims. Although an applicant should be given the benefit of the doubt in certain circumstances, ultimately, the Tribunal found the claims were not credible on the material before it, and the Minister says that that conclusion was one that was open to the Tribunal.
The Minister then addressed particular grounds as they emerged from the material. The first of those concerned the applicant's complaint that he had not been properly notified. The Minister says that the applicant had been properly notified. Section 430D deals with decisions given orally. Subsection (2) of that section provides that if the Tribunal makes an oral decision on a review, the Tribunal must make an oral statement that describes the decision of the Tribunal on review, describes the reasons for the decision, describes the findings on any material questions of fact, refers to the evidence or any other material on which the findings of fact were based, and identifies the day and time the decision is given orally. The Minister says that the Tribunal complied with those requirements when it handed down its oral decision.
Subsection (4) of that section deals with the period of time prescribed to make an application for the oral statement to be provided in writing, and that is the 14 day time frame. Finally, the Minister refers to subsection (7) which provides the validity of a decision on review is not affected by a failure to identify the date and time when the decision was given orally or a failure to comply with a requirement to reduce an oral statement to writing in the prescribed time. So even if there had been a valid request for the statement to be provided in writing, the failure to provide it was not one that affected the validity of the decision by operation of that section.
I note the applicant's submissions to the effect that there was no oral decision given on the date. I cannot accept that evidence because it first, there is no evidence because the applicant has not filed an affidavit to that effect, and secondly, simply saying in his affidavit that nothing had been put in “black and white” is a different proposition.
From the point of view of assessing whether or not there are reasonable grounds for a reasonable argument that there has been jurisdictional error in that respect, I note that the hearing record makes clear that there was an oral statement given. The timing of that decision accords with the time at which the interpreter stopped interpreting the proceedings. The written statement that was eventually provided was described as being corrected from the transcript, and the term in which it is expressed is where it is expressed in the first and second person: “I asked you how you intended to live in Australia. You suggested..”. So it really suggests that this is a transcript of things that were being told to the applicant in his presence because that is really the obvious inference to be derived from that form of wording.
In any event, the Tribunal has reduced the oral statement to writing and that would suggest that the Tribunal had complied with its requirements under s 430D2(a). It described the decision, that is one to affirm the decision of the delegate. It describes the reasons for the decision because it sets out its problems with the applicant's credibility and findings on the material questions of fact. It sets out a number of those in particular and most importantly that it did not accept the applicant's evidence of certain matters, and it referred to the evidence and the reasons why. In my view, it complied with s 430D2(a) and on the material before me, there does not appear to be any reasonable argument that there had been a failure in that respect that is capable of constituting a jurisdictional error, and I do not consider that there is reasonable argument in that respect.
In relation to the allegation that the Tribunal did not assess the applicant's claim against the criterion, I asked the applicant to explain what he meant there, and he again referred to the Tribunal disagreeing with his reasons for seeking protection and not being believed. The Minister submits that the Tribunal's decision showed that it considered the correct criteria, that is, the refugee and the complementary protection criteria. The Minister also submits the Tribunal had regard to the country information as required, and also noted the applicant did not want to add anything to its claims. On that basis, the Minister says it cannot be said that the Tribunal did not consider the claims against the criteria.
In the written submissions, the Minister argued it is apparent the Tribunal assessed the claims on the evidence before it as well as relevant country information and made clear findings that the applicant did not satisfy the relevant criteria due to the vague, confusing, undetailed, inconsistent and illogical nature of those claims. I accept the Minister's submissions in that respect. I note the applicant does not agree with the outcome, but there is not the least suggestion that the Tribunal had misconstrued what the protection criteria are or that it misapplied them in his case. In my view, the Tribunal has found that the applicant's claim failed at the first hurdle, that is, it did not accept the factual basis for the claim.
It is well settled that it is for the applicant to advance evidence or arguments he wishes to advance in support of his contention, that he has a well-founded fear of persecution for one of the reasons set out in s 36 of the Act: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 576. It is a matter for the Tribunal to decide whether the claim is made out. It is also well settled that the Tribunal is entitled to consider that evidence and weigh it and make findings as to credibility: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]. It is settled that the Tribunal is not bound to accept an applicant's accounts of alleged events giving rise to a claim for persecution, and these matters are further strengthened by provisions under the Act such as ss 5AAA(2) and (4). In my view, the decision discloses the Tribunal approached its task to find the relevant facts in a manner consistent with those sorts of propositions.
The Tribunal questioned the applicant and made various findings that it did not accept his evidence on matters due to inconsistencies, vagueness and the like. The merits of the applicant's application for a visa were for the Tribunal in this case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The making findings on credibility is the function of the primary decision-maker or the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]. Adverse credibility findings can, at times, involve jurisdictional error, but the flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical or rational or groundless as to compromise a decision such that the credit finding can be seen as compromised: SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [40], per Allsop CJ. In my view, the Tribunal's conclusions as to the applicant's credibility do not suffer from such vices. The Tribunal's conclusions were open to it, and, in my view, it cannot be properly said that the Tribunal has not assessed the applicant's claims against the criteria. There are no reasonable grounds to suggest that there is that kind of flaw in this case which would amount to a jurisdictional error.
I asked the applicant again what he meant by his complaint that his treatment by the Tribunal was unfair and unreasonable. He referred again to the Tribunal finding that he was lying to them and not accepting his evidence.
The Minister submitted that, insofar as that complaint was one of a breach of procedural fairness, the Tribunal had complied with the requirements under the Act. The applicant was invited to the hearing. His request to transfer his attendance to Melbourne rather than Perth was accommodated. He was assisted by an interpreter. He was made aware of the main issue, which was whether he met the criteria, as a result of the delegate's decision and in the questioning of the Tribunal. There was no adverse information required to be put to the applicant. The information that the Tribunal made its decision on was the evidence the applicant gave at the hearing, the information in his application and the country information, all of which were excluded from the operation of s 424A of the Act that require certain information to be put to applicants. The Minister says there is no breach in that respect and that the applicant had been, otherwise, properly invited to the hearings in accordance with ss 425 and 425A of the Act.
To the extent this is a complaint that the decision of the Tribunal was unreasonable or illogical, the Minister says that is not open in the circumstances. Instead, the Minister submits that it was open to the Tribunal to make the findings on the grounds that it did, given the evidence before it. The Minister submits those findings were ones that could not be characterised as ones at which no rational or logical decision-maker could arrive at on the same evidence. There was no demonstration of extreme logicality in the reasoning.
Again, I accept those propositions. In my view, there is no reasonable basis to argue that the Tribunal breached its procedural fairness obligations under Div 4 of Pt 7 of the Act. He was properly invited to the hearings, and there is no suggestion that the hearings were conducted in otherwise than an orthodox way. I do note the applicant's arguments that no oral decision was actually provided. However, I have already mentioned why, in my view, the material does not support that claim, and the reasons why that would not amount to jurisdictional error in the circumstances, particularly given that the reasons for decision have since been provided.
I also agree with the proposition that the applicant was on notice of the dispositive issues in his case. They are obvious on the delegate's decision. The delegate noted problems with the credibility of his claims, and it is very clear from the decision that the applicant was questioned closely about those claims during the hearing. Country information and problems with those claims were put to him, and he was given an opportunity to respond to them, all of which suggests that the Tribunal was acting fairly in relation to putting matters to the applicant and giving him an opportunity to respond.
I also accept that the credibility findings, for the reasons I have given in relation to the previous ground, were open to the Tribunal. They are not illogical or unreasonable. In my view, it is not reasonably arguable that the applicant was treated unfairly or unreasonably by the Tribunal.
The Minister also addressed the Court as to whether there had been any failure to consider a claim. The Minister says that there was nothing in the decision to suggest that the Tribunal had overlooked anything raised by the applicant.
The Tribunal clearly asked the applicant about his claims, and there is nothing to suggest the Tribunal did not take into account his responses. There was no evidence, on that basis, the Minister says, of a failure to consider any of the claims. It was simply a case where the claims were not believed. The Minister, in the written submissions, refers to it being a matter for the Tribunal to determine what weight to afford the applicant's claims and to assess whether or not it accepted them, noting those propositions I have set out earlier, that it is for the applicant to satisfy the Tribunal of the claims, and that the Tribunal is not required to accept them uncritically.
The Tribunal found the applicant's claims and the evidence to be vague, confusing and inconsistent, and those findings were ones the Minister says were open to it, on the basis that the applicant failed to provide independent corroborative evidence to suggest he would face any chance of being harmed for any of the essential and significant reasons.
In my view, those submissions should be accepted, for the reasons I have already referred to. I agree that it appears that the Tribunal closely considered the claims made by the applicant in writing and in evidence.
It is quite apparent that there were matters discussed during the hearing that do not emerge from the written claims and which were considered by the Tribunal against the country information. It seems to have been a fairly orthodox application of the relevant principles on the material before it. I agree that the applicant appears to have been closely questioned about his claims. I note that forms part of the applicant's complaint, but that is really the function of the Tribunal. It is not required to accept the claims uncritically. It has a duty to review, and if that involves questioning the applicant closely about those claims, then that is allowable. In fact, the Courts have said that it may be necessary to even quite vigorously challenge an applicant about their claims in certain circumstances.
It is not clear that has necessarily happened here, but ultimately the findings of credibility are ones that do not appear illogical. They are well explained by the Tribunal and appear open on the evidence. In my view, there is no reasonably arguable case that the Tribunal has failed to consider the applicant’s claims.
CONCLUSION
In those circumstances, I have concluded that the applicant's grounds of review and matters raised during the course hearing of the application do not identify any arguable case of jurisdictional error on the part of the Tribunal. I also have considered the Tribunal's decision and have not been able to identify any arguable grounds of jurisdictional error, and this of course weighs heavily against the granting of an extension of time.
In the circumstances, I have determined that the absence of a satisfactory explanation for the delay in filing the application and the lack of an arguable case of jurisdictional error is such that I conclude it is not in the interests of the administration of justice to grant the applicant an extension of time in this matter.
I am also satisfied that the applicant in the circumstances should pay the first respondent's costs of and incidental to this application. I note the applicant says he is in difficult financial circumstances, however, that is not generally a relevant consideration and there is nothing that he has raised that takes it outside of the circumstances where the ordinary course should be followed, that is that the costs follow the event. I note the difficulties the applicant will have in paying the costs, but that is a matter he can raise with the Minister in due course.
Given that I have just made my decision orally, I am going to also order that pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the order refusing the extension of time and ordering the applicant pay costs not be entered until the date of the publication of written reasons for this judgment, which will be revised from the transcript. For the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), that date - that is, the date of the publication of the written reasons for judgment - will also be taken to be the date upon which judgment was pronounced.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 3 December 2024
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