Mzaqg v Minister for Immigration

[2016] FCCA 2194

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAQG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2194

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal’s refusal of Protection Visa – issue of relocation first raised by the Tribunal during the hearing – unarticulated claim tolerably clear from the material before the Tribunal but not considered by the Tribunal – Consideration of factors in respect of extension of time - merit on one ground of the substantive application – application remitted for hearing by the Tribunal.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Vu v The Minister for Immigration & Citizenship [2008] FCAFC 59

SZBEL v The Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63
Singh v The Minister for Immigration & Multicultural Affairs (2001) 115 FCR 1
Htun v The Minister for Immigration & Multicultural Affairs (2001) 195 ALR 244
NABE v The Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA1695
NAVK v The Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA1695

Applicant: MZAQC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: (P)MLG13 of 2015

Judgment of: Judge McGuire

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Melbourne

Delivered on: 31 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the applicant be granted leave to file his Application for judicial review out of time.

2. That the decision of the Refugee Review Tribunal made 31 October 2014 be quashed.

3. That the application be remitted to the Administrative Appeals Tribunal for hearing.

4. That the first respondent pay the applicant’s costs in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

(P)MLG13 of 2015

MZAQG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time pursuant to s477 of the Migration Act 1958 (“the Act”) to bring his application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made 4 October 2013 affirming a determination of the Minister’s delegate not to grant him a Protection (Class XA) Visa (“the visa”).

2. The amended application complains on two grounds as to the Tribunal’s decision.  They are:

   i) The second respondent breached s 425 (1) of the Migration Act and/or its obligations of procedural fairness by failing to put the applicant sufficiently on notice of an issue which arose in relation to the decision under review which was different from those which were dispositive issues for the delegate.

   Particulars

   It was reasonable for the applicant to relocate to Islamabad.

   ii) Further or alternatively, the second respondent committed jurisdictional error by denying the applicant procedural fairness and/or by  committing an error of law and/or by failing to discharge its duty of review and/or by failing to take into account relevant considerations by reason of its failure to consider the applicant’s claims and/or their component integers. 

   Particulars

   The second respondent failed to consider the applicant’s claims that he was on a “hit list” of Jihadis and opposition parties, and his unarticulated claim to the effect that it was unreasonable to relocate by reason of his poor health.

3. The application to this court was lodged 32 days out of time and hence leave is needed to prosecute the application. 

4. The applicant argues for an extension of time inter alia on the following bases:

   i)That there is merit to his substantive grounds of complaint;

   ii)That the delay is a relatively short one;

   iii)That there is no manifest prejudice to the respondent in granting an extension of  time; and

   iv)That he has a reasonable excuse for failing to lodge on time by reason of:

   (a)Financial constraints in instructing a lawyer;

   (b)His lawyer (presumably put in funds) made application for ministerial intervention/consideration; and

   (c)That he did not receive timely advice as to the option of an application for judicial review.

5. I accept the submission of the counsel for the first respondent as to the proper consideration for this court on an application to extend time and extracted from a long line of superior court authority being:

   ·Applications for an extension of time are not to be granted unless it is proper to do so and the legislative time limits are not to be ignored;

   ·There must be some acceptable explanation for the delay;

   ·Any prejudice to the respondent defending the proceeding;

   ·The mere absence of prejudice to the respondent is not enough to justify the grant of an extension of time; and

   ·The merit of the substantive application.

Consideration of application for extension of time

1. I accept that the delay of 32 days is not a long one in relative terms and where proper preparation and prosecution of the respondent’s case is not likely to be compromised by such delay.

2. Nevertheless, statutory timeframes are put in place for a reason and so as to allow proper and efficient discharge of justice.  They are certainly not arbitrary references to be ignored.  It follows that the mere absence of prejudice to the respondent does not of itself justify an order for an extension of time.

3. It seems that the applicant chose, whether under advice or not, an option of ministerial consideration of the Tribunal’s decision.  It is well established that this is not in itself justification for ignoring the time limits applicable for judicial review.[1]

   [1] Vu v The Minister for Immigration & Citizenship [2008] FCAFC 59 at [29]

4. Ignorance of the options and time limits does not justify the failure to lodge in time given the information memorandum accompanying the Tribunal’s decision.

5. Similarly, I do not accept any argument where the applicant blames his lawyer for negligent advice as to his options.

Where the applicant’s grounds of complaint have substantive merit?

Ground 1

1. The applicant here argues that the Tribunal did not put him on notice as to an issue or issues arising on the review.

2. Section 425 of the Act provides:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision and review.

3. An applicant would reasonably understand that issues arising before the delegate would similarly be issues before the Tribunal.  It follows, however, that if the Tribunal identifies issues which differ from those arising before the delegate and those issues are dispositive of the Tribunal’s determination then, if the Tribunal takes no step to identify that or those issues to the applicant, there may be a breach of the obligations under s245.[2]

   [2] SZBEL v The Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63 at [35]

4. The applicant argues that the failure to raise such an issue which becomes dispositive of the application is effectively a denial of procedural fairness within the context of the particular facts and circumstances of an application.

5. The relevant background facts here are that the delegate disposed of the application on a credit issue in not believing the applicant’s claims of reasonable fear.

6. The Tribunal however, generally accepted that the applicant’s claim but disposed of the application against the applicant on the basis of the applicant being able to relocate to Islamabed whereas his claim of fear of persecution related to Karachi.

7. The applicant’s counsel argued that within the context of the applicant’s circumstances, he was effectively “ambushed” by the Tribunal disposing of his application on the basis of a relocation when this was not a dispositive issue before the delegate and not raised as an issue by the delegate.

8. Counsel sets out the applicant’s particular circumstances as:

   i)He was not represented and required the assistance of an interpreter with the attendant difficulties of that status;

   ii)The issue of relocation was dealt with near the end of a long three and a half hour hearing before the Tribunal;

   iii)The issue of relocation was dealt with during the Tribunal process at a time when the Tribunal had indicated time pressures due to the limited availability of the interpreter;

   iv)The transcript and audio of the Tribunal hearing indicates a lack of appreciation of the issue by the applicant in confused responses as evidenced by:

   (a)That his responses were rambling and confused and relevant to Karachi rather than Islamabad;

   (b)A letter from the applicant to the Tribunal post that hearing indicating that he had been unwell, “dizzy”, and tired.

9. Counsel says that in light of the above, it should have been apparent to the Tribunal that this applicant did not understand the newly identified issue and to then proceed to dispose of the matter on that issue was not to afford procedural fairness to the applicant in that he was not given a “real opportunity” to address the issue and present arguments.[3]

   [3] Singh v The Minister for Immigration and Multicultural Affairs (2001) 115FCR 1 at [27] – [28]

10. The issue of relocation was raised relatively late in the interview but understandably so given the need to address the claims which had been raised before the delegate and the Tribunal (and which were ultimately accepted by the Tribunal).

11. The hearing of more than three hours duration was punctuated by a two adjournments at 10.37 am for 14 minutes and again at 1.37 pm for

    
    

    5 minutes.

12. Whilst reference was made to the interpreter’s time limitations, it is clear that the interpreter remained for the duration of the hearing. It is equally clear from the transcript that the applicant’s command of English was such that he was able to address a majority of the questions directly without the assistance of the interpreter.

13. Neither the transcript nor the audio themselves persuade me that the applicant was unable to respond properly on account of tiredness or confusion.

14. Whereas counsel for the applicant argues that the transcript demonstrates the applicant’s confusion, I disagree.  The issue was the reasonableness of a relocation to Islamabad.  Counsel for the applicant refers to a response in the transcript at page 56 line 18 where the applicant refers to the blowing up of a politician’s car in Karachi.  That response appears at the end of an exchange in respect of Islamabad. However, a proper and careful reading of the transcript shows the applicant addressing Islamabad as a relocation option as for example on page 53 line 21 where there are references to the applicant’s brother and sister living in Islamabad and the particular circumstances and experiences in Islamabad. Specifically at page 57 lines 36-44 the exchange between the Tribunal member and the applicant deals with the reasonableness of relocation as well as the applicant’s fear of harm in Islamabad.

15. At page 54 lines 30-43 the member specifically directs the applicant to the reasonableness of relocation to Islamabad. The applicant again directs the reasonableness aspect at page 56 line 24.  It is clear that the Tribunal has discharged its obligation here in providing the applicant with an opportunity to give evidence and present arguments in respect of the issue of relocation.  The Tribunal has therefore clearly identified the issue for response and the two limbs of a relocation for consideration are put to the applicant in respect of the putitive relocation in both the risk of harm and , secondly, the reasonableness aspect.  The issue was raised for the applicant.  The Tribunal referred to particulars of considerations such as language and religion.  It is the quality of the opportunity which determines whether or not procedural fairness has been afforded the applicant.

16. In all circumstances set out above, I am not persuaded that this applicant was not provided with procedural fairness and that the requirements of SZBEL were not met.  Accordingly, the ground of complaint has no merit.

Ground 2

1. The applicant says that the Tribunal failed to consider both articulated and unarticulated related claims made by the applicant.

2. It is well established that a failure by a Tribunal to consider an applicant’s claims or their integers can amount to jurisdictional error.  That obligation can extend to unarticulated claims apparent on the material before the Tribunal.[4]

   [4] Htun v The Minister for Immigration and Multicultural Affairs (2001) 195ALR 244 at [42]

3. Firstly, the applicant here argues that the Tribunal failed to consider express claims that he was on a “hit list” of Jihadi and opposition parties. 

4. On 7 October 2014 the applicant wrote to the Tribunal.  The last sentence of that letter states:

   To go back my country is like suicide for me, because we are on hit list of JAHIDIES and OPPISSITION PARTIES.

5. I am satisfied that the Tribunal properly engaged with this claim at [65]-[66] and [68] of its reasons.  Given the findings of the Tribunal in accepting the applicant’s claim as to reasonable fear of harm in Karachi, the consideration of the claim which after all is made in general terms must necessarily address the putitive relocation venue.  The reasons of the Tribunal disclose the following:

   65.I have considered whether the applicant will face real chance or real risk of serious harm or significant harm in Islamabad on account of his MQM membership and Mohajir ethnicity.  The applicant stated at the hearing that his sister that lived there had told him that people in his (sic) is Islamabad have a bad attitude to Mohajir persons with an Urdu accents.  He also said that his brother tried to live there and get a job but couldn’t.  His brother then had to go elsewhere to work and got Hepatitis C as a result.

   66.The above independent country information indicates that though there is some pattern of discrimination against Mohajir in Islamabad in terms of accessing government jobs but there are no reports of violent attacks against them, except for occasional incidents.  The Tribunal has not identified any reports of any MQM members being targeted or harmed in Islamabad and HRCP have stated that they were not aware of any other “discrimination or political victimization” targeting members of the MQM in Islamabad.  Whilst I have accepted that the applicant was harmed in the past on account of his MQM involvement and Mohajir ethnicity, this was in Karachi (a considerable distance from Islamabad) and a long period of time ago relating to a period when he was in student politics.  I do not accept given these factors that any of his past political opponents in Karachi would now be motivated to pursue the applicant to Islamabad because of these distant events.  Given the country information which shows a lack of targeting of MQM members and supporters in the capital, I find he could go and live there and join the MQM and participate in its activities without facing either a real chance of persecution or a real risk of significant harm.

   68.Though there is politically and religiously motivated violence in Islamabad-Rawalpindi caused by the Taliban and other factors, I have taken into account that DFAT considers that the current security situation in Islamabad is relatively free from politically-motivated terrorist and sectarian violence and that these incidents must be considered in the light of Islamabad-Rawalpindi large population of 4.5 million.  I find that the chance of risk that  the applicant will be seriously harmed or significantly harmed in any incident of terrorist and sectarian violence to be remote.

6. Secondly, the applicant argues that the Tribunal failed to deal with an unarticulated claim that his health problems would make any relocation to Islamabad unreasonable.

7. The above mentioned letter of 7 October 2014 which was provided after the hearing but prior to the Tribunal’s decision of 31 October 2014, references the applicant having health issues including on the day of the hearing and also including tiredness and dizziness.

8. The Tribunal had granted to the applicant one adjournment on medical grounds.

9. The transcript at page 35 lines 5-30 shows the following exchange:

   Member:But it just appeared to be – in terms of your case it seems to be a pretty significant matter, yet you did not tell the delegate about it.  It’s not mentioned in your written statement.  I may think that thats a bit odd that you would fail to mention so significant to your case.

   Applicant:Because that time whatever in my mind I just telling, telling, telling, telling.  Even now I am feeling same thing.  I feel little dizzy now because whenever I remember that kind of thing, I don’t know why, I feel very scared and I feel like something burning in my hand and I don’t know.  Now I am sitting all right but I feel like spinning. 

   Member:Do you need a break? 

   Applicant:Maybe.

   Member:Yes or no?  What do you need?  Do you want a five-minute break or 10-minute break or something?  I think we we’ll just take another five-minute break and just give you a chance to …

   ADJOURNED [11.36 AM]

   RESUMED [11.41 AM]

   Member:How are you feeling now?

   Applicant:I should be all right.

10. The transcript at page 64 provides the following from the applicant through his interpreter:

    …because of this sort of-this-all this-my present issues have had a very adverse effect on me and I have gone into depression.  I went to see the doctor and doctor (indistinct) he came up with the - that I have sinus problems and did - even the (indistinct) he gave me a referral letter saying I should go and get myself checked up at the hospital.

11. The applicant’s letter of 7 October 2014 annexed requests of August 2014 for imaging and pathology tests on the applicant relating to his cough and asthma condition. 

12. The court in NABE v The Minister for Immigration and Multicultural and Indigenous Affairs[5] considered the obligations of the Tribunal in respect of unarticulated claims:

    It has been suggested that the unarticulated claim must be raised squarely on the material available to the Tribunal before it has a statutory duty to consider it.  The use of the adverb “squarely” does not convey any precise standard, but it indicated that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

    [5] [2004] FCA 1695 at [15]

13. Allsop J (as his Honour then was) in NAVK v The Minister for Immigration and Multicultural and Indigenous Affairs[6] considered NABE and commented:

    A practical and common sense approach to every day decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been made, and then subjecting them to further analysis to assess their legitimacy.

    [6] [2004] FCA 1695 at [15]

14. The reference to the applicant’s health is clearly not an expressly articulated claim.  However, the court is to consider the materiality of the references to the applicant’s health within the context of its presentation to the Tribunal and the context of the putitive relocation as an issue only raised during the course of the Tribunal hearing and not being an issue before the delegate.  That context is that the letter post-dates the hearing and I can infer it is produced pursuant to an invitation by the Tribunal to provide further material within 7 days.

1. Further, statements through the interpreter on the transcript at page 64 are in direct response to the member’s invitation:

   Is there anything further that you’d like to say in support of your case?

2. Consequently, in the hearing where it is the Tribunal who first proposes the issue of relocation the applicant responds within context with the information as to his health.  He does so by immediate response and by later letter.  It is trite to observe that it is not for this court to consider the merits of the applicant’s claims, articulated or unarticulated.  This is the role of the Tribunal.  However, and notably, the Tribunal’s reasons at [23] under the heading “Consideration of claims and evidence” do reference the following:

   Letter from the applicant to the Tribunal dated 7 October 2014 stating that he was sick on the day of his interview and attaching requests (dated 1 August 2014) for imaging and pathology tests relating to cough and asthma conditions.

3. Taking into account the context of the applicant’s statements in respect of his health, I am satisfied that there is an unarticulated claim that arises “tolerably clearly” from the material before the Tribunal. It follows I am persuaded that the Tribunal failed to consider that claim and that this failure causes it to fall into jurisdictional error.

Conclusion

1. Taking into account the relatively short delay in the lodging of his application, the balances of prejudices to the applicant and first respondent, lack of reasonable explanation for the delay, but with emphasis on a meritorious substantive ground of complaint, I am persuaded that an extension of time should be granted to the applicant to bring his application.

2. On consideration of the substantive application I am persuaded that the Tribunal fell into error in failing to consider an unarticulated claim by the applicant. Consequently, the decision of the Tribunal made

   
   

   31 October 2014 will be quashed and the application remitted for hearing.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 August 2016