SZLWB v Minister for Immigration
[2019] FCCA 93
•21 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZLWB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 93 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – extension of time application. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 417, 477 |
| Cases cited: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 |
| First Applicant: | SZLWB |
| Second Applicant: | SZLWC |
| Third Applicant: | SZRZO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2921 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 23 October 2017 14 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 January 2019 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for making the application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is extended up to and including 25 October 2016.
The matter is to be listed for final hearing on a date to be fixed.
The Applicants file and serve any amended application, any further affidavit evidence and written submissions fourteen days before the hearing.
The First Respondent file and serve any affidavit evidence in reply and written submissions seven days before the hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2921 of 2016
| SZLWB |
First Applicant
| SZLWC |
Second Applicant
| SZRZO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time within which to seek review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)) dated 11 March 2015 affirming a decision of the delegate of the First Respondent not to grant the Applicants protection visas.
Under s.477(1) of the Migration Act 1958 (Cth) (the Act) an application for review of a Tribunal decision must be made to the court within 35 days of the date of the decision. However, under s.477(2), the court may extend that 35-day period as it considers appropriate if an application for such an order has been made in writing to the court specifying why the applicant considers it necessary in the interests of the administration of justice to make such an order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Applicants are husband and wife and their son. They did not apply for judicial review of the Tribunal decision of 11 March 2015 until 25 October 2016. In their review application, they sought an extension of time under s.477 of the Act. As required by s.477(2)(a), “grounds” in support of the application for an extension of time were set out in writing in the application, as follows:
1. The RRT directed the minister to consider the special medical needs of the [Third Applicant] who is suffering from Autism. He is a child born in Australia. The RRT wanted the minister to consider the obligations of Australia under Child Rights Convention [47].
2. The migration agent of the Applicant referred the matter to the minister. The minister rejected the application on 16 September 2016. This I believed constituted the final component of the decision.
3. I was not advised by the Solicitor Mahalingam Sutharshan what steps I could take apart from writing to the minister.
4. When I received the decision from the minister, I sought to consult a different lawyer.
In his affidavit accompanying the application, the First Applicant (referred to for convenience as the Applicant) made reference to and annexed the notification dated 16 September 2016 as to the outcome of the request for Ministerial intervention under s.417 of the Act. This letter advised that the Assistant Minister had decided it would not be in the public interest to intervene.
The Applicant expressed the view in his affidavit that he had been “unable” to lodge the review application on time, because the Tribunal had not finally determined the review application as it had referred the matter to the Minister to be considered in light of the best interests of the Third Applicant.
The Applicant was given the opportunity to file further affidavit evidence in support of his application for an extension of time. He filed and also relied on an affidavit of 16 June 2017 attaching a letter explaining that after he received a negative decision from the Tribunal on 12 March 2015, he had sought ministerial intervention in circumstances where in its decision the Tribunal member had asked for the case to be brought to the Minister’s attention considering the circumstances around his son’s unique health concerns.
The Applicant indicated that following the Tribunal’s advice, he had made a submission to the Minister. However, while waiting for the Minister’s decision, he had missed the deadline to apply to this court. The Minister’s decision was not made until 16 September 2016. He filed his review application on 25 October 2016.
The Minister opposed the grant of an extension of time, having regard to the extent of the delay (some 18 months), the reasons for delay and the merits of the grounds of review.
As pointed out by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [43], the issue of whether an extension of time is necessary in the interests of the administration of justice as provided for in s.477(2) of the Act is a matter to be determined to the satisfaction of the court.
As his Honour also pointed out at [44], s.477(2) “does not define or confine the matters” to which the court could or should have regard in considering the interests of the administration of justice (and see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]). However factors that are ordinarily taken into account include whether there has been a reasonable and adequate explanation for the delay in instituting proceedings, whether there is any prejudice to the Minister and whether the Applicant’s substantive case is sufficiently arguable to warrant the extension of time.
I have borne in mind that, as Mortimer J explained in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (affirmed in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478), in considering the merits of a case and, in particular, whether a case is “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”, it is generally inappropriate to investigate fully the merits of the substantive case. As her Honour stated at [62]-[63]:
62. As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
I have had regard to all of the relevant circumstances, insofar as possible on the material before the court, in considering the application for an extension of time.
It is convenient to consider first the Applicants’ delay in seeking review of the Tribunal decision and whether there is a reasonable and adequate explanation for the delay. In this case, the delay of some 18 months was undoubtedly significant. There is authority (see, for example, Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at [3] per McHugh J) that a case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal. Such reasoning has been applied to applications for an extension of time under s.477(2) of the Act.
However the circumstances of this case differ from that of a case where an applicant has, after receiving an adverse Tribunal decision, decided of his or her own accord, and by making a deliberate forensic choice, to seek Ministerial intervention before approaching the court (see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALR 211 at [29]; SZVMA v Minister for Immigration and Border Protection [2016] FCA 1058 at [35] and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [24]).
In this case, the Applicant gave evidence and was cross-examined by counsel for the Minister in relation to the reason for the delay. He acknowledged that he had previously made an application for judicial review in relation to a Tribunal decision based on the Refugees Convention criterion and that he had commenced such proceedings within the applicable time limit. As the Minister submitted, this demonstrated some awareness of the existence of a time limit on seeking judicial review. The Applicant did not suggest that he was unaware of such time limit. He also confirmed that when the Tribunal in this instance made its decision on 11 March 2015, he was aware that an option available to him was to challenge the decision in the court. However his matter was referred to the Minister by the Tribunal and while the Minister was considering his application, he did not apply to the court.
It is instructive to consider what the Tribunal stated in relation to this issue in its decision. Relevantly, after concluding that the First Applicant did not meet the complementary protection criterion and that the second and third named Applicants had not made their own claims to fear harm in India and were not members of the family unit of a person who satisfied a criterion for a protection visa, the Tribunal continued:
Humanitarian Considerations
46. Under s.417 of (sic) Act the Minister has a discretion to substitute for a decision of the Tribunal another decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. The Minister has issued guidelines in relation to the circumstances in which he may consider exercising this power… The guidelines indicate that the Minister will generally only consider the exercise of his power in cases which exhibit one or more unique or exceptional circumstances and that factors relevant to this assessment include circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration.
47. It is difficult not to feel some sympathy for the Applicants’ circumstances given the loss of their unborn child in 2007 and, in particular, the medical difficulties being experienced by their Australia-born son [the Third Applicant]. The medical evidence provided to the Tribunal indicates clearly that [the Third Applicant] has been diagnosed with moderate global development delay together with autism spectrum disorder. He is receiving treatment for these problems from a range of paediatric specialists, including at the Children’s Hospital Westmead. I believe it is reasonable to assume that he would be unable to receive treatment of a similar standard if he were to return to India, and that the services available to him there would, in fact, be significantly less effective. The problems he faces are severe and it was evident at the hearing that they have imposed a considerable emotional burden on his parents. The advisor submits that Australia’s obligations under the Convention on the Rights of the Child should be taken into consideration and, consistent with Article 3 of the Convention, [the Third Applicant’s] best interests should be a primary consideration in making a decision on his visa issue. For these reasons I have asked that this case be brought to the Minister’s attention.
(emphasis added)
In other words, the Tribunal itself referred the matter to the Minister. This was not a case in which the Applicants made a deliberate forensic choice to make an application to the Minister rather than to seek judicial review. I accept the First Applicant’s evidence that he proceeded on what he understood was the advice of the Tribunal and, on that basis, had written to the Minister in relation to his son’s medical condition. He explained that he was not aware that in those circumstances he could challenge the Tribunal’s decision in the court at the same time. He followed the advice he was given by his solicitor to write to the Minister. He explained that his solicitor had advised him to do exactly what the Tribunal had instructed him to do, that is, to write to the Minister. His evidence was that if his solicitor had advised him to come to the court at that time, then he would have done so.
It is the case that on 18 March 2015, the Acting Director, Ministerial Intervention (National) wrote to the Applicant’s solicitor acknowledging that the Tribunal had referred the matter to the Department on 12 March 2015 for possible consideration under s.417 of the Act. This letter advised the solicitor that the Department had initiated a ministerial intervention request on the Applicants’ behalf. The letter explained the Minister’s powers under s.417. It also informed the solicitor that his clients should be aware that the Minister was under no obligation to intervene and that this meant that his clients should not “discontinue” any application for judicial review in the expectation that the Minister would intervene.
The Applicant was asked about his awareness of this letter in cross-examination. He told the court that he had not received a copy of the letter. I accept this evidence and also his evidence that he did not remember his solicitor telling him about the Department advice about not to discontinue any application for judicial review. The Applicant did not have a judicial review application on foot at that time.
I have had regard to the fact that the Tribunal itself referred the matter to the Minister and that the Applicant acted on the advice of his solicitor thereafter. While the delay was lengthy, this reflected the Applicant’s understanding that he should wait for the results of the Ministerial intervention referral. In fact the Applicant could have commenced judicial review proceedings at the same time. However I accept that he acted on legal advice in this respect in circumstances where this followed a Tribunal referral. He understood, perhaps unsurprisingly in light of the Tribunal’s approach, that this was the appropriate way to proceed.
In the particular and unusual circumstances of this case, I do not regard the explanation for the delay as unsatisfactory. Nor do I accept that it is necessary that in all cases the applicant must establish an exceptional case before an extension of time will be granted. In this case the extent of the delay was directly referable to the Minister’s consideration of the referral from the Tribunal. After the Applicant was notified of the result of the referral, while he did not commence these proceedings immediately, he did so within 35 days of the date of such notification. I have taken this additional period into account, but do not regard it as counting against the Applicant to the extent that was contended for by the Minister.
I have borne in mind that the Applicant admitted in cross-examination that he knew when the Tribunal made its decision that he could challenge it in this court and that he had done so in the past in relation to an earlier Tribunal decision. However there is no suggestion there was a Tribunal referral to the Minister in relation to the earlier decision.
As the First Respondent conceded, it is understandable that the Applicant and his wife would follow the advice of their solicitor as to steps to take to further their interests, having regard to the situation of their son as described in the Tribunal decision. While a decision was made by the Applicants to follow that advice, this case differs from a situation involving an application for ministerial intervention initiated by an applicant. The extent of the delay was primarily as a result of waiting for the Minister’s decision. This was not a strategic decision to pursue the avenue of seeking Ministerial intervention over the avenue of coming to court. I am satisfied that in this case the Applicant has provided a reasonably satisfactory explanation for the delay.
It is also necessary to consider the prospects of success of the judicial review application, consistent with the approach suggested in MZABP. Counsel for the Minister indicated that the primary argument for the Minister in this case was that the Applicants’ grounds of review were hopeless and that in these circumstances, in considering the balancing process, the fact that the case had no reasonable prospects of success should mean that an extension of time should be refused.
Before turning to the grounds of review, I note that the First and Second Applicants arrived in Australia in April 2007 and applied for protection visas in May 2007 based on Refugees Convention grounds. Their applications were refused. They unsuccessfully sought review by the Tribunal and, subsequently, judicial review.
The Third Applicant was born on 21 April 2011.
The protection visa application in issue in these proceedings was lodged on 9 October 2012. It was originally treated as invalid, but was subsequently accepted as valid in light of the decision of the Full Court of the Federal Court in SZGIZv Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. The delegate refused the application on 3 April 2014. The delegate considered both the Refugees Convention and the complementary protection criteria in relation to the First Applicant, but only addressed the claims of the Second and Third Applicants as members of the First Applicant’s family unit.
The Applicants sought review by the Tribunal on 2 May 2014.
When the matter first came before me for hearing of the extension of time application, I raised with counsel for the Minister a question as to whether the Courtbook was complete. In particular, an issue arose as to whether there was other material relevant to whether the Tribunal had failed to have regard to any aspect of the Applicant’s claim as contended in the application for review. This concern arose because the First Applicant’s statutory declaration of 28 March 2014, which was provided to the Department, was described as a “further” statement. However there was no earlier statement in the Courtbook. There was also an apparent discrepancy in the fact that a letter to the Tribunal from the Applicants’ representative dated 16 December 2014 stated that statutory declarations from the First and Second Applicants were enclosed, but the statutory declarations apparently provided to the Tribunal bore (later) dates of 6 February 2015.
The Applicants are self-represented and from a non-English speaking background. They raised an issue as to whether the Tribunal failed to consider an integer of their claims. While grounds of review are to be considered on a “reasonably impressionistic basis” in the context of considering an application for an extension of time, in my view, in this instance, where the Courtbook is in evidence, such consideration should be in light of all the relevant material that was before the Tribunal.
The hearing of the application for an extension of time was adjourned so that the solicitors for the First Respondent could respond to these concerns. The First Respondent filed supplementary submissions and an affidavit affirmed by Kate Elizabeth Gawidziel, the solicitor with carriage of the matter for the Minister, containing information addressing the completeness of the Courtbook provided by the Department.
The affidavit annexed a copy of the First and Second Applicants’ 2007 protection visa application, including a copy of a supporting statement by the First Applicant dated 21 May 2007, and also a copy of an email to the Tribunal from the Applicants’ solicitor dated 6 February 2015 which attached the letter dated 16 December 2014 and copies of the statutory declarations of the First and Second Applicants dated 6 February 2015.
Ms Gawidziel confirmed that she had been advised by a legal officer in the Department that the Department had no record of other statements or statutory declarations from the Applicants in support of their protection visa applications beyond what was now before the court. The Department had undertaken a records search which revealed that there was no record of the Applicants submitting any such additional documentation, including in support of the original protection visa application.
As the Applicants had not had the opportunity to consider this information before the hearing, it was explained in some detail by counsel for the First Respondent and the Applicants were given the opportunity to make post-hearing submissions. They did not take that opportunity.
In light of this information I accept that, as submitted by the Minister and not disputed by the Applicants, neither the First or Second Applicants lodged a statement or statutory declaration at the time of the 2012 protection visa application. A covering letter from their solicitor dated 9 October 2012 stated that detailed supporting statutory declarations providing further detailed complementary protection claims “will be provided shortly”. Hence, while the Applicant’s statutory declaration dated 28 March 2014 was described as a “further” statement, there is no evidence to suggest that any earlier statement by either of the adult Applicants was provided in relation to the 2012 visa application.
The Tribunal received and addressed the statutory declarations of 6 February 2015. It appears that the material in the Departmental and Tribunal files that is relevant to the grounds of review is now before the court.
To consider the grounds in the application and issues apparent on the face of the material, even at a reasonably impressionistic level, I have found it necessary to have some regard to the factual background and the Tribunal decision.
On 9 October 2012 the Applicant applied for a protection visa on the basis that he met the requirements for the grant of the visa pursuant to s.36(2)(aa) of the Act. In the application form the Second Applicant and the Third Applicant were included as members of his family unit.
In the application form the Applicant claimed to be a member and active supporter of the Trinamool Congress (TMC) party in India and that he was tortured, abused and threatened that he would be killed by the Communist Party of India (Marxist) (the CPI(M)) due to his political involvement. He also claimed that due to his business activities he had obtained government tenders, but that he became an enemy of criminal gangs in Kolkata. He claimed to fear he would be targeted by his political opponents and also by the criminal gangs. While he referred to a detailed statement, in another part of the form he explained that the detailed statement would be provided later.
As indicated, initially the Department advised the Applicants that the application was invalid because the Applicant (and his wife) had made a prior protection visa application (in October 2012). In July 2013, the Applicant’s solicitor referred the Department to the decision of the Full Court of the Federal Court in SZGIZ and asked the Department to consider the applications as valid applications. The Department acknowledged the validity of the applications by letter of 5 September 2013.
The Applicant was invited to and attended an interview with a delegate of the First Respondent on 31 March 2014. He provided the Department with a copy of a 5 March 2014 assessment of the Third Applicant by the disability specialist unit at the Children’s Hospital at Westmead which stated that the child had moderate global developmental delay and autism spectrum disorder.
The Applicants’ representative also provided the Department with a written submission dated 20 March 2014 in which it was claimed that “the applicants fear that they will be seriously harmed if they return to India for reasons explained in their statement” (emphasis added) and that they were persons to whom Australia had protection obligations as they had a well-founded fear of suffering persecution for Convention reasons if they returned to India. The complementary protection criterion was noted. Country information relevant to the Applicant’s claims was provided. It was claimed that the primary (that is the First) Applicant feared persecution as a member and supporter of the TMC and that he feared that there was a real chance that he would be persecuted in India. It was submitted that the persecutors considered that “the applicants” held a political opinion against them and that consequential on this “they fall within the Refugee Convention social groups”, that the Applicants could not get adequate state protection and that relocation was not a viable option “for our clients” in light of anticipated highlighted instability in India. It was also claimed that “the applicants” met the complementary protection criterion as “they” faced a real risk of significant harm “including torture, degrading, inhuman (sic) and cruel treatment” at the hands of anti-TMC political parties, including the Maoists in Congress.
In addition, the Applicants’ solicitor provided the Department with the statutory declaration of the First Applicant sworn on 28 March 2014 in which he expressed a fear that he faced serious harm and that he would face practical difficulties in relocating in India, particularly given his son’s medical condition. A medical report of 16 November 2011 from a consultant paediatric physician in relation to the Third Applicant’s condition as a baby was also provided.
The delegate refused the application, finding the Applicant’s written claims and statements in the interview were contradictory and not credible. As indicated, he considered the wife and child only as members of the Applicant’s family unit.
The Applicants sought review by the Tribunal. The Tribunal conducted a hearing on 19 February 2015. As described above, it is now apparent that prior to that date, by email of 6 February 2015 the Applicants’ solicitor had sent to the Tribunal a copy of the letter dated 16 December 2014 and the statutory declarations from the First and Second Applicants dated 6 February 2015.
In his 2015 statutory declaration, the Applicant reiterated his claims and provided some further information about his work history. He claimed to fear “my family and I will face serious harm if we returned to India. I fear if I return to India, I would not only be risking my life, but my family’s lives too” (emphasis added).
His wife provided a statutory declaration said to be in support of her husband’s application for a protection visa. She elaborated on what occurred in a claimed incident in January 2007 after which she suffered a miscarriage. She claimed that thereafter “they” continued to receive threatening phone calls for some time and that CPI(M) followers used to throw stones at their house and that this had affected her mental health.
In addition, the Applicants’ solicitor provided the Tribunal with information about the Applicant’s employment background and a submission in the form of advice from special counsel to the effect that as at 13 November 2014 and post-SZGIZ there was no legal impediment to the Tribunal considering both the Refugees Convention criterion and the complementary protection criterion. It was submitted that the Tribunal was legally bound to do so.
After the Tribunal hearing, the Applicants’ solicitor provided some further documents addressing issues raised at the hearing about the First Applicant’s business and a written submission of 6 March 2015 in which it was claimed that “the applicant” would face a real risk of significant harm if returned to India. The solicitor also asked that if the Tribunal decided to affirm the decision, it refer the case to the Minister under s.417 of the Act. It was claimed that there were unique or exceptional circumstances warranting ministerial intervention. In that context it was submitted that the Applicant’s fear of harm was genuine and that if he returned to India, “he and his family will face significant harm”. This submission also referred to Australia’s obligations as a party to the Convention on the Rights of the Child (CRC) and to the Third Applicant’s autism spectrum disorder and his medical treatment in Australia. It was contended that any breakdown in treatment facilities would affect the child’s development and that his best interests should be given due consideration, consistent with Australia’s obligations as a party to CRC. The child’s situation was also raised as a compassionate circumstance. Medical evidence was provided.
On 11 March 2015 the Tribunal affirmed the decision not to grant the Applicants protection visas. In reasons for decision, the Tribunal stated that the “applicants” (sic) first applied for visas in 2007 and that that application was assessed under s.36(2)(a) of the Act. The Tribunal referred to the effect of SZGIZ and continued:
As the Applicants in this case have previously had their claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws and have not left Australia since the final determination of their previous protection application, the Tribunal considers that it must confine its consideration to whether they satisfy the requirements of ss.36(2)(aa) and (c).
(emphasis added)
The Tribunal made this statement notwithstanding that the Third Applicant was not born before the 2007 protection visa application was finally determined. It confined its consideration to whether the First Applicant met the complementary protection criterion in s.36(2)(aa) and only considered whether the Second and Third Applicants met the family unit criterion in s.36(2)(c) of the Act.
The Tribunal found that only the (First) Applicant made specific claims to fear harm and that his wife and son relied on their membership of his family unit. It determined the matter on that basis, although it recorded the Second Applicant’s claim at the hearing that “they would lose their lives in India”, and the fact that in the hearing the Applicant had claimed that he also feared that “he and his family would be targeted because he would be seen as wealthy”. The Tribunal also referred to the fact that the submission of 6 March 2015 included a claim that the findings of the previous Tribunal indicated that the Applicant’s fear of harm was genuine and that if returned to India he “and his family” will face significant harm, as well as the claim that consistent with Australia’s obligation under Article 3 of CRC, the best interests of the Applicant’s son (the Third Applicant) should be given due consideration.
The Tribunal was not satisfied that the Applicant met the complementary protection criterion. It rejected his claims to have been “targeted” for harm because of his political activism or that past incidents of harm to him and his wife had involved deliberate targeting by members of the CPI(M), supporters, affiliated union members or criminal gangs working on the party’s behalf or business rivals. It did not accept that the First Applicant was ever targeted by members of a CPI(M) affiliated union or by his business rivals.
The Tribunal was not satisfied that the Applicant left India because he feared he would be killed or otherwise harmed there by political or business figures. It had regard to the delay of almost two months between the grant of a visitor visa and his departure from India. Given its findings and the fact the Applicant had not been in India for nearly eight years, the Tribunal was not satisfied he would face any chance of harm from the sources he identified if he were to return to India. This conclusion was said not to be altered by the fact that former CPI(M) members had since joined the TMC.
Finally, the Tribunal considered, but rejected, the Applicant’s suggestion that he would be at risk of harm in India because his long period of residence in Australia would cause his persecutors to believe he was wealthy and this would lead them to kidnap him for ransom. As the Tribunal was not satisfied that such persecutors existed, it was not satisfied this claim was more than simply speculative.
In summarising “complementary protection” issues, the Tribunal stated:
40. The Applicants (sic) have previously been refused Protection visas in Australia but their second visa application, the subject of this review, is a valid application because they are considered ‘SZGIZ-affected’ having not left Australia since the final determination of their previous visa application which preceded the introduction in March 2012 of Complementary Protection legislation. I note the advisor’s submission that the Tribunal is able, and in fact required, to consider all grounds for protection but I consider the effect of SZGIZ is to confine the Tribunal’s consideration to whether the Applicants (sic) satisfy the requirements of s.36(2)(aa) and (c).
41. Taking together all the information before the Tribunal I am not satisfied there is any reason to believe the first-named Applicant would be harmed by members or supporters of the CPI(M) or by his business rivals, including a former employee [name], if he were to return to India. He has not identified any additional matters which could constitute a cause of either serious or significant harm or which could be relevant to an assessment of Australia’s complementary protection obligations in his case.
42. In the light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first-named Applicant being removed from Australia to India, there is a real risk he would suffer significant harm as defined in subsection 36(2A) of the Act.
The Tribunal found that the Second and Third Applicants “have not made their own claims to fear harm in India” and that they did not meet s.36(2)(aa) of the Act. It found that they were not members of the family unit of a person who satisfied s.36(2)(a) or (aa) and held a protection visa and that hence they did not meet s.36(2)(c).
As indicated above, the Tribunal then referred to the humanitarian considerations which led it to refer the matter to the Minister’s attention.
The Tribunal affirmed the decision not to grant the Applicants protection visas.
The first ground in the application is an unparticularised claim that the Tribunal “failed to consider full integers of the claims of the Applicant”. When given the opportunity to address this ground, the Applicant expressed concern that the Tribunal had not accepted his claims, in particular about having an office and business in India. However, while the Tribunal recorded that it had raised a concern in this respect at the hearing, after further documentary evidence was provided, it proceeded on the basis that the First Applicant did have the business interests in India which he claimed. It is not arguable that it failed to consider his claim to fear harm from the alleged enmity of rivals caused by his success in gaining government contracts.
If the Applicant’s concern is a concern that the Tribunal did not accept his claims about his business interests in India, such a ground is not in any way arguable. If the Applicant’s concern in ground 1 is that the Tribunal did not make findings in relation to every document that he submitted to it in support of his contention that he operated a genuine company in India, as the Tribunal proceeded on the basis that he did operate that company, it was not necessary for it to refer to all the documents provided in support of the existence of the business. Insofar as his concern is that the Tribunal did not accept that he suffered harm at the hands of business rivals, he seeks impermissible merits review.
The Applicant did not otherwise particularise or specify any integers of his claims which were not considered by the Tribunal.
However the Tribunal stated on several occasions in its reasons that “the Applicants” had previously been refused protection visas in Australia and that the 2012 application was “their second visa application”. On that basis the Tribunal found that the effect of SZGIZ was to confine its consideration to whether “the Applicants” satisfied the requirements of s.36(2)(aa) and (c). It was of the view that it “must” so confine its consideration.
The Tribunal recorded that the delegate’s decision in relation to the 2007 application was made on 21 July 2007 and that this was affirmed by the Tribunal on 21 November 2007. A judicial review application (and an appeal) were unsuccessful. The Third Applicant was not born until 2011. He cannot have been (and was not) the subject of the 2007 protection visa application.
The First Respondent conceded that the Third Applicant was not s.48A barred (as he had never previously been refused a protection visa) but submitted that no claim of any kind was put on his behalf or arose clearly or squarely on the material before the Tribunal (other than the “family unit” claim).
As outlined above, in the letter to the Department of 20 March 2014 the Applicants’ then solicitor claimed that the “applicants” had a well-founded fear of suffering persecution for Convention reasons as well as complementary protection claims. This was said to be based on a claim that feared persecutors considered that “the applicants” held a political opinion against them, in circumstances where the First Applicant was a member and supporter of the TMC. However, in addition it was claimed that “[c]onsequential on this, they fall within the Refugee Convention social groups”. Practical difficulties in relocating within India because of the Third Applicant’s medical condition were also raised by the First Applicant in his statutory declaration of 28 March 2014.
The First Respondent submitted that the only “claims” which may, even arguably, be said to have been made by or for the Second Applicant depended on an acceptance of the claims of the Applicant (which were considered but rejected by the Tribunal). It was contended that the same may be said in relation to the Third Applicant, apart from the submission in relation to the circumstances of the child made in support of the proposition that the Tribunal ought to refer the matter to the Minister under s.417 of the Act. It was submitted that these matters were not raised as a basis for any claim that the Third Applicant met the criteria for a protection visa. The First Respondent submitted that, even taken at its highest, the material about the child’s medical condition and his inability to receive similar treatment in India would not clearly or squarely raise such a claim. This issue is discussed further below.
Ground 2 in the application is that the Tribunal “failed to consider the circumstances of the child in relation to the best interests of the child under complementary protection requirements”.
In submissions, the Applicant referred to the fact that the Tribunal was not satisfied that the complementary protection criterion was met, but also had advised him to go to the Minister. He raised concerns in relation to his child’s medical condition and his need for medical treatment.
The First Respondent submitted that while the Tribunal’s consideration of the complementary protection criterion was limited to a consideration of whether it was satisfied that the Applicant himself was owed such protection, this was not indicative of any arguable error in circumstances where the Third Applicant (and the Second Applicant) were said not to have raised their own independent claims for protection, but rather sought to meet the secondary criteria for the grant of protection visas on the basis that each was a member of the family unit of the Applicant.
The Tribunal was said to be under no obligation to consider whether the Third Applicant himself met the complementary protection or the Refugees Convention criterion in circumstances where (notwithstanding that the s.48A bar may not have applied as the child was not included in the earlier protection visa application as he was born after that matter was finally determined) no such claim was raised.
The indicators to the contrary are mentioned above. While the First Respondent acknowledged that there were “passing references” in the Tribunal reasons to claims that the Applicants feared harm (and, I would add, in the representative’s submissions), it was again submitted that it was apparent that it was the Applicant who claimed to fear harm in India and that the claim as ultimately presented to the Tribunal (in particular in his solicitor’s submission of 6 March 2015) was that the Applicant faced a real risk of significant harm if he returned to India (and that therefore his family did too).
The First Respondent acknowledged that, taken at its highest, it may be that a matter that emerged from the materials before the Tribunal was a claim that the Third Applicant would face difficulties because of a lack of facilities in India to deal with his autism. It was submitted that, serious as that undoubtedly would be (as was recognised by the Tribunal in the referral to the Minister for consideration under s.417 of the Act), even taken at its highest this did not constitute either an express or implicit claim of Convention-based harm because there was no ostensible Convention nexus for such claim.
The First Respondent also submitted that the Third Applicant’s medical issues and the lack of treatment facilities would not raise an ostensible claim for complementary protection because it was not arguable (and was not argued) that this would amount to any of the kinds of treatment that amount to significant harm under the Act, in particular having regard to the absence of any claim or evidence in relation to the necessary element of intention (see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405). The claim advanced on behalf of the Third Applicant was said to be a humanitarian-based issue, not one that was, even arguably, advanced as an independent basis for the entitlement of the Third Applicant to a visa. It was also contended that the material before the Tribunal did not, even arguably, give rise to such a claim “clearly” and “squarely” in the manner considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1.
It was also contended that this was not a case in which it could be said that the First and Second Applicants had a legitimate expectation that the best interests of the Third Applicant would be taken into account by the Tribunal in considering their complementary protection claims (cf Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273). Counsel for the First Respondent pointed to the fact that it has been held that a legitimate expectation as to the consideration of the best interests of a child arises only in respect of the exercise of a discretionary power (see Teoh at 304 per Gaudron J and SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] and cases cited there, in particular SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]-[19] per Hely J).
In my view, bearing in mind the approach suggested by the Federal Court in relation to the assessment of the merits of grounds of review in the context of s.477(2) of the Act, on a reasonably impressionistic approach, having regard to the claims that “the applicants” feared harm and the First Applicant’s claim that he “and his family” would be harmed, I am not confident that a claim that the Tribunal erred in failing to consider whether either or both of the Second or Third Applicants met the complementary protection criterion and/or in failing to consider whether the Third Applicant met the Refugees Convention criterion is hopeless or must fail (see MZABP at [66]).
Further, even if there is strength in the First Respondent’s submissions about any claims by the Third Applicant and the relevance of his best interests, in my view to determine these issues in the context of an application for an extension of time would go beyond taking a reasonably impressionistic approach to the merits of the application, particularly in circumstances where the submissions of the Applicants’ representative and the claims by the Applicant and his wife to the Tribunal that he and his family would be harmed are to the contrary and where the Tribunal appears to have proceeded on an incorrect basis in finding that it could only consider whether the Third Applicant met the complementary protection or family unit criteria because he had made an earlier protection visa application. The issues very properly raised by the First Respondent in relation to any implications relating to the Third Applicant’s medical condition, including the relevance, if any, of his best interests, are also matters which should be determined at a final hearing. I also bear in mind the potential application of s.48A to any subsequent protection visa application by the Third Applicant.
I accept what the Applicant said about the reason why he was so late in coming to court. There is no suggestion that significant prejudice to the Minister would be occasioned by the grant of an extension of time. I have also had regard to the First and Second Applicants’ understandable concern about the welfare of their child (albeit that the court has no power to grant a visa on humanitarian grounds).
On balance, in all the circumstances of this particular case, in light of the Tribunal’s approach to its powers post-SZGIZ (despite the fact that the Third Applicant had not previously applied for a protection visa), having regard to the indications that claims to fear harm may arguably be said to have been raised on behalf of the Second and/or Third Applicants, either expressly or on the material before the Tribunal and the legal issues in relation to the relevance of the best interests of the Third Applicant, I am of the view that it is in the interests of the administration of justice that an extension of time should be granted so that these matters may be fully considered and determined at a final hearing.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 January 2019
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