GKH18 v Minister for Immigration
[2019] FCCA 2844
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GKH18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2844 |
| Catchwords: MIGRATION – Extension of time application - Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – minimal delay – acceptable explanation – conceded lack of prejudice – no merit in substantive application – extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| First Applicant: | GKH18 |
| Second Applicant: | GKI18 |
| Third Applicant: | GKJ18 |
| Fourth Applicant: | GKK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 657 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 September 2019 |
| Date of Last Submission: | 20 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Applicants: | The second applicant appeared in person and on behalf of the first, third and fourth applicants |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
The first and second applicants’ pay the first respondent’s costs fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 657 of 2018
| GKH18 |
First Applicant
| GKI18 |
Second Applicant
| GKJ18 |
Third Applicant
| GKK18 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 1 November 2018.
The IAA’s decision affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicants a Safe Haven Enterprise visa (the “visa”).
The application to this Court was filed four days outside the statutory time limit imposed by s.477 of the Migration Act 1958 (Cth) (the “Act”). In order to obtain assistance from this Court, the applicants must obtain an order extending the time in which to bring their application. Without such an order, the application is incompetent and must be dismissed.
The first and second applicants are husband and wife respectively. The third applicant and fourth applicant are their children. Both children were born in Australia. At the hearing, the applicants were not legally represented. The second applicant spoke on behalf of herself and the other applicants. She did so with the assistance of a Vietnamese interpreter.
The Court had before it the applicants’ application for judicial review filed 10 December 2018, a Court Book numbering 234 pages (marked as Exhibit 1) and a written outline of submissions filed by the Minister dated 24 July 2019.
Although copies of the Court Book and the Minister’s written submissions had been sent to the applicants at their address of service, the second applicant did not have copies of these materials with her in Court. The interpreter translated the Minster’s submissions to the second applicant prior to the commencement of the hearing. A copy of the Court Book was also provided to the second applicant. It was agreed that, to the extent that anything in the Court Book was referenced (including the decision of the IAA), the interpreter would translate these materials. The parties agreed to this approach.
Background
The factual background to this matter is set out at [4]-[12] of the Minister’s submissions dated 24 July 2019. The Court is satisfied, having cross-checked the references and reviewed the materials in the Court Book (hereafter, “CB”), that this is an accurate summary of the background relevant to this matter. The Court adopts this summary as its own. It provides as follows.
On 8 May 2013, the first applicant, a citizen of Vietnam, arrived in Australia as an unlawful maritime arrival (CB 189).
On 18 August 2016, the department notified the first applicant that the Minister had lifted the s.46A bar, and invited him to apply for a visa (CB 24-25).
On 1 September 2017, the first applicant applied for a visa (CB 33-66). His wife and two children (the second, third and fourth applicants respectively) also applied for the visa as members of the same family unit but did not raise their own claims for protection (CB 67-136).
The first applicant’s claims were set out in a statutory declaration accompanying the visa application dated 31 August 2017 (CB 137-139) and can be summarised as follows:
a)he is of Kinh ethnicity, and a Catholic. He is not free to practise his faith;
b)he participated in a demonstration against the Vietnamese authorities and their actions towards Catholics at Con Cuong in July 2012. The police attended the demonstration and beat people, including the applicant;
c)he was arrested and taken to the police watch house where he was beaten and kicked by police. He was detained for ten hours. Before he was released, he was forced to sign a document to say that he was not harmed whilst detained;
d)the next day, he went to Laos and Thailand for six months. Whilst he was there, his wife told him that people came looking for him. He returned to Vietnam between December 2012 and April 2013 but did not live at his house; and
e)he would face punishment if returned to Vietnam as he departed illegally and would be a failed asylum seeker.
The first applicant was invited to attend an interview with the delegate on 24 July 2018, during which he advanced the two additional claims that he has shared posts on his Facebook account highlighting human rights abuses by the Vietnamese government since 2015 and in 2018, he attended two protests in front of the Vietnamese Consulate in Perth.
On 30 July 2018, the applicant’s lawyer provided further evidence to the department (CB 179-185).
On 3 August 2018, the delegate refused to grant the visa on the basis that the first applicant did not meet the requirements of s.36(2)(a) or 36(2)(aa) of the Act (CB 189- 207). As a result the second, third and fourth applicants were also refused the visa.
On 8 August 2018, the matter was referred to the IAA (CB 208-209). On 28 September 2018, the applicant appointed a lawyer to represent him (CB 210-211).
On 1 November 2018, the IAA affirmed the delegate’s decision not to grant the applicants the visa (CB 216-228).
The IAA’s Decision
It is not disputed that the applicants here satisfy the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met.
Relevantly, s.473DD of the Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision here is 13 pages long and contains 31 paragraphs. Having reviewed the IAA’s decision in detail, the Court is again satisfied that the Minister’s submissions (at [13]-[25]) accurately summarise the IAA’s decision. The Court adopts these submissions as its own. They provide as follows.
The IAA had regard to the material given to it by the Secretary under s.473CB of the Act and recorded that that no further information had been obtained or received (CB 218 at [4]).
The IAA accepted that the first applicant was Catholic. Whilst the first applicant claimed that there was no freedom of religion in Vietnam, he had not indicated that he or any members of his family had been prevented in any way from practising their Catholic faith or harmed on the basis of their religion. The IAA was not satisfied that the first applicant attended any services at Con Cuong at any point, given that Con Cuong is some three hours’ drive away from his home and he told the delegate that he attended mass at his local church (CB 219 at [8]).
The IAA found that the first applicant’s evidence regarding the incident in Con Cuong had varied considerably and was generally inconsistent with the country information. It was not satisfied that the first applicant was in Con Cuong on 1 July 2012 when the mass was disrupted or that he took part in rallies that protested against the event. The IAA found that this claim had been entirely fabricated and that he was not a witness of truth (CB 220 at [11]-[13]).
The IAA considered the first applicant’s claims and evidence that he had shared anti-Vietnam posts on his Facebook account since 2015 and that he attended two protests in front of the Vietnamese Consulate in Perth in 2018. In circumstances where the first applicant made no mention of sharing the Facebook posts in his 2017 statutory declaration, and he provided no further evidence of this beyond a link to a Facebook page, the IAA did not accept the claim. It also found that in any event the first applicant’s Facebook name bore little relation to his legal name, and was therefore not satisfied that the applicant would be identifiable from his Facebook page (CB 220 at [14]).
The IAA accepted that the first applicant had attended a number of community events in Australia as well as the two protests in 2018. It was satisfied that the first applicant was not a speaker and was not involved in organising them. The IAA was not satisfied that any of the events were monitored by the Vietnamese government; that they were reported in Vietnam; or that participants would be imputed with a particular political opinion on return to Vietnam. The first applicant did not take part in any activities against the state prior to departing Vietnam, and was not satisfied that he would have any interest in participating in activities against the state on return to Vietnam (CB 220 at [15]).
The first applicant claimed that in March or April 2013 he and the second applicant departed from Vietnam legally using their own passports. The IAA therefore found that the applicants were permitted to leave Vietnam (CB 221 at [16]).
Although not raised by the first applicant, the IAA accepted that the first applicant’s details would have been made available as a result of the data breach in February 2014 (the “data breach”) which may reveal that he had sought asylum in Australia. Whilst there was no evidence that the information was accessed by the Vietnamese authorities, the IAA nevertheless accepted that the first applicant may be identifiable on re-entry as a person who sought asylum in Australia (CB 221 at [17]).
Considering the country information, the IAA found that the first applicant did not face a real chance of harm on the basis of his Catholic faith. The first applicant had not claimed to have been prevented from practising his religion in the future, nor that he had modified his religious practice in the past to avoid harm or conceal his views (CB 222 at [20]).
The IAA was not satisfied that the first applicant would participate in any conduct from which he would be perceived to be a political activist on return to Vietnam. The IAA was not satisfied that he faced a real chance of harm on the basis that he would be considered to be a political activist (CB 222 at [21]).
The IAA accepted that if the first applicant returned to Vietnam, the authorities would know or assume that he had applied for asylum in Australia due to the manner of his return (CB 222 at [22]). However, relying on country information, the IAA did not accept that there was a real chance that the first applicant would suffer harm on return to Vietnam on the basis that he had spent time in Australia or unsuccessfully sought asylum here (CB 222-223 at [23]).
Ultimately, the IAA was not satisfied that the first applicant met the requirements of the definition of refugee in s.5H(1) and therefore, the requirements of s.36(2)(a) of the Act (CB 223 at [25]).
In considering the first applicant’s claims under the complementary protection criterion, the IAA relied on its anterior findings to conclude that there was not a real risk of significant harm by reason of the first applicant’s religion, protest activities in Australia, as an asylum seeker returning from Australia or due to the data breach (CB 224 at [28]). Accordingly, the IAA found that the first applicant did not meet s.36(2)(aa) (CB 224 at [29]).
Proceedings in this Court
The applicants acknowledged that they require an extension of time in which to bring their judicial review application. They advanced the following ground in support of that extension application:
Because I don’t understand.
No affidavit in support of the application for an extension of time was filed. An affidavit was filed by the first applicant but this simply annexed the IAA’s decision.
There was one ground identified in the substantive judicial review application, as follows:
The assessment was unfair.
By orders of a registrar of this Court made on 6 February 2019, the applicants were given an opportunity to file an amended application, further affidavit evidence and an outline of submissions. No further materials were provided.
At the hearing of this matter, the Court explained to the second applicant that the factors to be considered in relation to the question of the extension of time are not exhaustive. However, in determining whether the Court will grant an extension of time, the Court will generally look at the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
In relation to the extension of time request, the Minister contends as follows:
a)the explanation is not satisfactory;
b)there is no specific prejudice to the Minister beyond the public interest in the finality of administrative decision making;
c)the substantive application does not disclose sufficient merit; and
d)the applicants have failed to file a supporting affidavit as required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) and therefore the application is not competent, or should fail on the basis of non-compliance with the Rules.
Delay and Explanation
A limitation provision is the general rule; an extension provision is the exception to it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
While limitation periods ought not to be treated lightly, the delay in filing the judicial review application here is only four days. This weighs in favour of granting an extension of time.
The explanation for the delay was that the applicants did not understand what was required of them due to very poor English skills and because of stress associated with their daughter’s poor health.
In the circumstances of this particular case, the explanation provided seems entirely reasonable.
This also weighs in favour of granting an extension of time.
Prejudice
The Minister does not claim any specific prejudice (beyond being unable to enjoy the benefit of finality in relation to an administrative decision.
Overall, the lack of prejudice to the Minister weighs in favour of granting an extension of time.
Merits
Often, the determinative factor of whether to grant an extension will be whether the proposed application has any merit. It will rarely be appropriate or in the interests of the administration of justice to grant an extension of time where there is no reasonable prospects of the substantive application succeeding.
Here, the judicial review application contains one ground:
The assessment was unfair.
The Court notes the Minister’s argument (at [31]) that, in the absence of particulars, the Court should dismiss the application on that basis alone.
Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicants an opportunity to outline orally what they think the IAA “did wrong” and why they think the IAA’s “assessment was unfair”.
To assist the applicants, the Court explained that, in determining whether the substantive application had merit, it needed to look at whether there was an argument that the IAA had engaged in jurisdictional error.
It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa the applicants now seek. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
Unfortunately, when asked to explain to the Court what she thought the IAA “did wrong” and what the applicants mean when they say that the IAA’s “assessment was unfair”, the second applicant simply said “she did not know”.
Consideration
Although not entirely clear, and without further assistance from the applicants, the Court understands the applicants’ sole ground of review to be an allegation that the IAA breached the obligations of procedural fairness such that the assessment was “unfair”.
In relation to the procedural obligations imposed on the IAA, and in determining whether these obligations have been breached, the Court notes that the IAA expressly stated that it had received the materials referred by the Secretary pursuant to s.473CB of the Act.
Here, there was no requirement that the IAA request or obtain any new information from the applicants interview them: s.473DB of the Act.
On 9 August 2018, the applicants were provided an Acknowledgment Letter in which the scope of an IAA review was outlined and what they could do to support their application.
The applicant’s representative advised the IAA on 28 September 2018 that the applicants had not received any information from the IAA.
The Court notes that the IAA sent the document to the address that was the last provided address; however it is unnecessary to consider this issue in any detail here because the IAA responded to the applicant’s representative on the same day (28 September 2018) with a “courtesy copy” of the acknowledgment letter and advising that no decision had been made (CB 212).
The applicants’ representative could have sought to provide any further information to the IAA at that time. No further information was sent and no request was made for the IAA to allow further time to provide further information.
In these circumstances, it was not necessary to consider the application of s.473DD of the Act. Further, having not received any “new information”, nor obtained any “new information”, any obligations under s.473DE did not arise.
Finally, it cannot be said here that there was a requirement for the IAA to consider exercising the discretion under s.473DC of the Act. There is nothing on the face of the IAA’s decision to suggest that there was a need to consider to exercise, or exercise, the discretion to obtain new information in writing or at an interview.
The Court has also considered, noting recent Federal Court authority in AZZ18 v Minister for Home Affairs [2019] FCA 844, whether there was any particular information that was before the IAA which could give rise to a reasonable apprehension on the part of a fair‑minded and fully informed lay observer that any information before the IAA was “prejudicial”, thus raising concerns as to bias. There is no such information in this case.
The Court is satisfied the IAA adhered to the procedural fairness obligations dictated by Pt.7AA of the Act and conducted a fair assessment of the materials before it.
Having reviewed the IAA’s decision as a whole (and being mindful that the applicants were unrepresented and that the Court should be astute to identify any error that may give rise to a potential ground of review), the Court is satisfied there are no errors on the face of the IAA’s decision.
The lack of merit in the substantive application weighs heavily against granting an extension of time.
Conclusion
Having weighed the factors to be assessed in relation to an extension of time application, the Court is not satisfied that this is a matter where it can be said it is in the interests of the administration of justice to exercise the discretion under s.477(2) of the Act.
Although the delay here is not substantial, the Minister is not prejudiced and the explanation provided for the delay is reasonable, the Court is not satisfied that there are any prospects of success in relation to the applicants’ substantive application.
In the circumstances, the application for an extension of time is denied.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 16 October 2019
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