MZARM v Minister for Immigration and Border Protection
[2019] FCA 607
•15 April 2019
FEDERAL COURT OF AUSTRALIA
MZARM v Minister for Immigration and Border Protection [2019] FCA 607
Appeal from: Application for extension of time: MZARM v Minister for Immigration and Anor [2018] FCCA 965 File number: VID 575 of 2018 Judge: BROMBERG J Date of judgment: 15 April 2019 Catchwords: MIGRATION – application for extension of time to appeal from decision of the Federal Circuit Court – whether the applicant has a reasonable prospect of success on the proposed ground – s 438 Migration Act 1958 (Cth) – where Tribunal failed to inform the applicant of the existence of a s 438 notification – whether failure is arguably material to the outcome of Tribunal’s review – application granted. Legislation: Migration Act 1958 (Cth), s 438 Cases cited: AKH16 v Minister for Immigration and Border Protection [2018] FCA 372
Minister for Immigration and Border Protectionv SZMTA [2019] HCA 3
MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585
Stead v State Government Insurance Commission (1986) 161 CLR 141
Date of hearing: 15 April 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Ms S Kelly Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 575 of 2018 BETWEEN: MZARM
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
15 APRIL 2019
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time dated 16 May 2018 be granted.
2.The costs of that application be reserved.
3.Time be extended to 16 April 2019 for the filing of the Notice of Appeal by the applicant in the form of the document headed ‘Draft Notice of Appeal from the Federal Circuit Court of Australia’.
4.On or before 29 April 2019, the applicant prepare, file and serve an appeal book.
5.On or before 29 April 2019, the applicant file and serve his outline of submissions.
6.On or before 6 May 2019, the first respondent file and serve his outline of submissions.
7.On or before the day seven days prior to the hearing of the appeal, the parties file and serve their lists of authorities.
8.The appeal be listed for hearing on a date to be fixed on an estimate of half a day.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an application for an extension of time to appeal a decision of the Federal Circuit Court of Australia delivered on 20 April 2018 and published as MZARM v Minister for Immigration and Anor [2018] FCCA 965. By that judgment, the primary judge dismissed the applicant’s application for judicial review of a decision of the second respondent (“Tribunal”), to affirm a decision of a delegate of the first respondent (“Minister”) not to grant the applicant a Protection (Class XA) visa (“visa”).
A short factual narration is given in the reasons of the primary judge at [6]-[8] and, for present purposes, with some further elaboration, that will suffice:
[6]At all relevant times the applicant was a Colombian national. He arrived in Australia in February 2012 on a student visa. He applied for a protection (class XA) visa on 20 March 2013. The minister’s delegate refused to grant the applicant the visa he sought. On a merits review before the Refugee Review Tribunal (now the Administrative Appeals Tribunal) on 21 January 2015 the tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought.
[7]In support of his protection visa application, the applicant made a statutory declaration on 19 March 2013. In it he stated that he believed he would be killed if he were to return to Colombia. He said he believed he would be targeted by members of [Los Urabenos], a group well-known for drug trafficking and for associating with street gangs that acted as informants and hitmen. The applicant said [Los Urabenos] had taken the view that he had jeopardised their very lucrative Australian operations and they believed the applicant was to blame for their members being convicted and being sent to jail. The applicant’s solicitors provided detailed submissions in support of his protection visa application in which they stated that the drugs with which Mr [V] was involved had a street value in excess of AUD 900,000.
[8]Mr [V] was sentenced in the County Court of Victoria on 19 February 2013 by his Honour Judge Maidment after Mr [V] pleaded guilty to attempting to possess a marketable quantity of cocaine and to possessing cannabis. Mr [V] was sentenced to a youth detention centre order for three years.
As those reasons state, the applicant claimed to fear harm by reason of his association in Australia with another Colombian, being the person referred to in the primary judge’s reasons (“Mr V”). In particular, the applicant claimed to fear harm by reason of his cooperation with police in relation to the investigation and subsequent conviction of Mr V for drug smuggling. The applicant claimed that he had been threatened by Mr V and that his family in Colombia had received threats from Los Urabenos.
The relevant principles to be addressed on an application such as this are not in contest. The factors relevant to be taken into account include the length of the delay, whether there is an acceptable explanation for the delay, any prejudice to the respondent if the Court were to grant an extension, and fourthly, the merits of the proposed appeal.
In this case, the delay of some six or seven days is relatively short. The Minister accepted that there is no prejudice if the Court were to grant an extension. An explanation for the delay has been given in an affidavit made by the applicant and affirmed on 17 May 2018. It seems, by reference to that evidence, that as a consequence of both the applicant’s disappointment in having his application for judicial review dismissed and his financial circumstances, it took the applicant some time to properly consider his circumstances and provide his solicitors with instructions to file an appeal with this Court. In the circumstances, and taking into account the shortness of the delay, whilst the explanation is somewhat less than entirely satisfactory, I am prepared to regard it as adequate.
The assessment then turns to the question of whether there is any merit and the extent of any merit in the proposed appeal. On that issue, the question of whether the applicant has a reasonable prospect of success on the proposed appeal, should be approached on an impressionistic basis, that is, on the basis that all the Court needs to be satisfied of is that there is an arguable case, in the sense that on its face, the argument is not plainly hopeless: see AKH16 v Minister for Immigration and Border Protection [2018] FCA 372 at [9] (Bromberg J); following MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585 at [62]-[63] (Mortimer J).
The applicant has filed a draft Notice of Appeal containing two grounds as follows:
1.The Federal Circuit Court erred by failing to conclude that the decision of the Tribunal is affected by procedural unfairness, in that the Tribunal failed to inform the applicant of the existence of a certificate under s 438 of the Migration Act 1958 (Cth).
2.The Federal Circuit Court erred by failing to conclude that the Tribunal failed to comply with s 424A of the Act, in that it did not put to the applicant the information contained in the departmental movement records.
The applicant is legally represented and a detailed outline of submissions elaborating upon each of those grounds of appeal has been filed and further oral submissions were received today. Detailed submissions in response have been made by the Minister. For reasons I propose to shortly outline, I consider that, approached on an impressionistic basis, the applicant’s proposed ground 1 is sufficiently arguable to warrant the grant of the application. It is not necessary, or indeed helpful given that there will be an appeal, to descend into comprehensive detail. Nor, for that matter and for that reason, is it necessary for me to consider the prospects of success on ground 2.
I will make some short observations about ground 1. The Minister accepts that the Tribunal was provided with documents to which s 438 of the Migration Act 1958 (Cth) purportedly applied. The Minister accepts that the certification and the notification referred to in s 438 were invalid. The Minister further accepts that the purported certificate or the purported notification and the documents covered by it were not disclosed to the applicant during the application before the Tribunal. The Minister further accepts that but for the question of materiality, jurisdictional error on the part of the Tribunal would be established. Those submissions are based upon, and appear to me to be consistent with, the observations made by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protectionv SZMTA [2019] HCA 3.
The issue in relation to materiality is an issue which is principally directed to the findings made by the Tribunal at [142] of its reasons. There the Tribunal said this:
Departmental movement records indicate that [Mr V] departed Australia in January 2014. The court’s sentencing remarks refer to [Mr V’s] intention to return to Colombia and the applicant claims that he has heard that [Mr V] has returned there from someone familiar with [Mr V’s] family. The tribunal therefore accepts that Mr V has returned to Colombia. However, despite the fact that [Mr V] has returned to Colombia, he has not made any attempts to contact or threaten the applicant or to threaten or harm the applicant’s family in Colombia. While the applicant claims that his family has been contacted by Los Urabenos, his evidence is that his occurred around the middle of 2013 and is not ongoing. The tribunal will deal with the applicant’s evidence and its concerns about these incidents below.
The issue of materiality is also principally concerned with the content of a document, the subject of the purported s 438 certification or notification. That document is a document under the hand of a case officer with the Department of Immigration and Border Protection. It states, in summary, that Mr V is still in Australia, is detained at the Malmsbury Youth Justice Centre, and then says:
He’ll be imprisoned until 2016 and he’s not in the community.
It is apparent, from what the Tribunal said at [142], that the Tribunal took the view that the applicant’s claim of a well-founded fear of being harmed should he be returned to Colombia, including by Mr V himself, was undermined by the Tribunal’s view that Mr V had not made any attempts to contact or threaten either the applicant in Australia or the applicant’s family in Colombia. The document provided to the Tribunal under the cover of the purported s 438 notification potentially calls into question the accuracy of the Tribunal’s finding at [142] that Mr V had departed Australia and was, at the time of the Tribunal’s decision, in Colombia.
Whether, absent that finding, the Tribunal would have made the consequent finding at [142] which served to undermine the applicant’s claim, becomes questionable. It is in that context that, in my view, the materiality of the Tribunal’s failure to inform the applicant of the existence of the s 438 certification or notification becomes arguable. I say that, noting the observation made by Bell, Gageler and Keane JJ in SZMTA at [49] by reference to the observations in Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145], that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice, could have no bearing on the outcome of the proceeding.
Taking into account those matters, and also taking into account the potentially severe impact upon the applicant of the loss of an opportunity to institute his appeal, it seems to me that the interests of justice require that the application for an extension of time be granted.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 1 May 2019
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