SZMFJ v Minister for Immigration & Anor
[2009] FMCA 771
•12 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 771 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for extension of time within which to file application – whether in interests of administration of justice – delay not satisfactory explained – whether merit in application – findings opens to Tribunal – reconstituted Tribunal not compelled to consider previously constituted Tribunal’s records, hearing, or findings – whether Tribunal failed to apply correct test in relation to conscientious objectors – Erduran test not applicable where finding that applicant was not conscientious objector – substantive application lacks merit – not in the interests of administration of justice to grant extension of time – application for extension of time dismissed – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss.476, 477, 415, 65, 36, 425, 422A, 430 Statutory Declarations Act 1959, s.11 |
| Minister for Immigration & Ethnic Affair v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 SZCBT v Minister for Immigration Multicultural Affairs [2007] FCA 9 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 NABE v Minister for Immigration Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150; [2002] FCA 814 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 |
| Applicant: | SZMFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1584 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 August 2009 |
| Date of Last Submission: | 7 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B O'Donnell |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Ms J Dinihan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for an extension of time, made on 2 July 2009, is dismissed.
The substantive application made on 2 July 2009 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $3,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1584 of 2009
| SZMFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application made on 2 July 2009, invoking the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 May 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant. The applicant seeks orders that the Tribunal’s decision be set aside and that the applicant’s application for review of the delegate’s decision be remitted to the Tribunal for determination according to law.
Background
Section 477(1) of the Act provides for a time limit to be imposed on the making of such applications. The application before the Court must be made within 35 days of the date of the Tribunal’s decision. It was not. It was made 16 days later. The Court is unable to grant the remedies sought in the application in these circumstances.
Section 477(2) provides for the extension of this 35 day period where an application for such an order has been made in writing to the Court, specifying why the applicant considers it necessary in the interest of the administration of justice for the Court to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make this order.
An application for an extension of time has been made in writing. The applicant has set out three grounds as to why he considers it necessary in the interests of the administration of justice that the time for making the substantive application be extended:
“1. The Applicant does not read English and did not understand the significance of the decision record until it was interpreted for him on Wednesday, 17 June 2009.
2. The Applicant obtained preliminary legal advice on 18 June 2009 but was unable to gather the relevant documents and arrange a full conference with counsel until Wednesday 24 June 2009.
3. The Applicant is only seven days outside the 35 day limit in s 477 of the Migration Act. He is well within the 35 day period in which an extension of time is allowable. He has an arguable case for judicial review and he has acted promptly once he understood the significance of the decision record.”
By way of amended response filed on 28 July 2009, the first respondent opposes the application for an extension of time for the making of the application and the relief sought by the applicant. In response, the Minister seeks an order pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) that the application be dismissed on the ground that no reasonable cause of action is disclosed.
When the matter came on at the first Court date on 29 July 2009 the applicant was represented by Mr B O’Donnell of Counsel. Ms J Dinihan, solicitor, represented the Minister.
The following evidence was read before the Court:
1)The affidavit of the applicant made on 24 June 2009. (No objection was taken.) This annexed the decision of the Tribunal made on 12 May 2009 concerning the applicant (“Affidavit 1”).
2)The affidavit of the applicant made on 2 July 2009. (No objection was taken. Nor was the applicant required for cross examination.) The applicant’s evidence went to the issue of the time taken to seek judicial review of the Tribunal’s decision (“Affidavit 2”).
3)Applicant’s exhibit 1 (“AE1”). This was a letter from the first respondent’s Department notifying the applicant of a refusal of an application for a bridging visa which the applicant made on 3 July 2009. (This issue was relevant to the applicant remaining lawfully in Australia pending the outcome of his application to the Court.)
The applicant pressed his application for an extension of time. For the Minister, Ms Dinihan provided an outline of the Minister’s opposition to this application.
Ultimately, I understood the Minister’s position to be not a request for an order pursuant to r.13.10(a), but that the substantive application should be dismissed as not competent because it was made outside the time limit in s.477(1) and it was not in the interests of the administration of justice that the time be extended. (See ground four in the amended response.)
The application for an extension of time was set down for hearing at 10am on 4 August 2009.
Hearing Before the Court
At the hearing before the Court, Mr O’Donnell again appeared for the applicant. Ms Dinihan again appeared for the first respondent.
Also read into evidence was:
1)The applicant’s affidavit of 29 July 2009 (with annexure). (No objection was taken.) This concerned the granting of a temporary visa to the applicant on 29 July 2009, valid until 12 August 2009. At the first Court date, Mr O’Donnell had pressed a concern that the applicant had been refused a visa to remain in Australia the outcome of his application to the Court. (The granting of this visa addresses that concern.)
2)The applicant’s affidavit, which on its face was either sworn or affirmed on 4 August 2009, or sworn on 24 June 2009, or if regard is had to the applicant’s written submissions, 3 August 2009. (See paragraph [3].) (In any event, no obligation was taken.) (“Affidavit 3”). The affidavit annexes the Court Book filed in proceedings in SZMFJ v Minister for Immigration & Anor [2008] FMCA 1155 (“SZMFJ (FMC)”)
3)The affidavit of Ms Jaimee Dinihan, made on 31 July 2009, with annexure. (No objection was taken.) The applicant agrees that the copy of the Tribunal’s “Outgoing registered post report” relates to the letter sent to the applicant, notifying him of the Tribunal’s decision.
Written submissions for the applicant were filed in Court. Oral submissions were made by both parties.
In addition to the sole ground (with two particulars) in the substantive application, Mr O’Donnell also sought to raise an additional ground alleging jurisdictional error in the Tribunal’s decision that he said should be taken into account in the Court’s consideration of whether it is in the interests of the administration of justice to extend the time for the making of the application for judicial review. (See further below – the “Erduran” point.)
As this matter was raised at the commencement of the hearing of the application to extend time, I gave the Minister until 6 August 2009 to file written submissions. Leave was granted to the applicant to file written submissions in reply by 7 August 2009. Both parties filed written submissions on this issue.
The Tribunal Decision
The applicant has provided a copy of the Tribunal’s decision record to the Court. (See Affidavit 1, and annexure.)
This record reports that the applicant is a citizen of Israel who arrived in Australia on 12 November 2006. He applied for a protection visa on 8 November 2007, which was refused by a delegate of the respondent Minister. (See paragraphs [1] to [3] at page 2, and the annexure to Affidavit 3 at Court Book – “CB” 1 to CB 53.)
The applicant sought review. The Tribunal (differently constituted) affirmed the delegate’s decision on 12 March 2008. (See paragraph [4], CB 54 to CB 57, and CB 77 to CB 88.)
The applicant sought judicial review. The Federal Magistrates Court dismissed the application by order made on 12 August 2008. (See SZMFJ (No.1) (FMC).)
On appeal the Federal Court ultimately set aside the orders of the Federal Magistrate, set aside the Tribunal’s decision, and remitted the matter to the Tribunal for determination according to law. (See SZMFJ v Minister for Immigration and Citizenship (No.2) [2009] FCA 95 – “SZMFJ (No.2) (FC)”)
It is the Tribunal decision that was subsequently made that is currently before this Court.
Applicant’s Claims to Protection
The applicant’s claims to protection in Australia pursuant to the UN Refugees Convention were initially set out in a statement provided with his protection visa application. (See [20] of the Tribunal’s decision record, and CB 26 to CB 29.)
In its decision record the Tribunal set out the applicant’s account of what he said occurred in Israel. (See [21] to [28]). The applicant’s claim to fear persecutory harm on return to Israel was said to be that he would be arrested on return because he had refused (because of his political views) to present himself for military service when called upon to do so.
The Tribunal
The Tribunal stated that the applicant appeared at a hearing before the Tribunal, as previously constituted, on 19 March 2009. It said: “His evidence is accurately summarised in Decision N0.071969401.” (See [29].)
Following remittal, the Tribunal said that it advised the applicant by letter dated 19 March 2009 of the possibility of inviting him to another hearing. (See [30].)
By letter dated 27 March 2009, the Tribunal reported that it invited the applicant to a hearing scheduled for 5 May 2009. (See [31].)
When no response was received, the Tribunal instructed a member of staff to contact the applicant. The Tribunal reported that the staff member did so and referred to the invitation to hearing and the lack of a response. The applicant was reported as saying that he did not understand, but that he was able to confirm that his current address was the address to which the letter was sent. When the applicant was subsequently contacted by an interpreter through “TIS” (the Telephone Interpreter Service), he answered the telephone, but then “hung up”. (See [32].)
The applicant did not attend the hearing on the day scheduled. (See [33].) The Tribunal proceeded to make its decision pursuant to s.426A of the Act. (See [34].)
The Tribunal understood the applicant’s claims to be that he feared harm based on military service obligations if he were to return to Israel, arising from his claimed conscientious objection to performing such service, as governed by the Israeli Defence Service Law of 1986. (See [38] to [39].)
The Tribunal found that this law was a law of general application. (See [40].) While it understood that the enforcement of such laws would not ordinarily provide a basis for a claim of Convention related persecution (see [42]), it understood that it may, in some circumstances, amount to persecution (at [44]), and considered whether the administration of Israel’s compulsory military service in the applicant’s case would be enforced against the applicant in a discriminatory and/or selective manner such as to attract the attribution of a Convention ground. (See [46].)
The Tribunal noted that while the applicant had provided some details about his claims, it found his account to be: “fundamentally … a series of unsubstantiated and general assertions.” It said that it had regard to the evidence given by the applicant at the hearing before the earlier constituted Tribunal (at [47]).
The Tribunal found that it had invited the applicant to a hearing following the remittal of his case, and that this was done on the basis of having considered all the material before it, and being unable to make a decision favourable to the applicant (at [47]).
That factor, the applicant’s unexplained failure to attend the hearing (where he could have addressed the Tribunal’s concerns), and the lack of any corroborative evidence (at [47] to 49]) led it to reject the overwhelming part of the applicant’s factual account of what he said had occurred in Israel, including the claim that he was a conscientious objector. In all, it found that it could not be satisfied: “that the applicant has suffered or that he would suffer any of the claimed harm” (at [50]).
The Tribunal found that, given its rejection of the applicant’s factual account of claimed harm, it was not necessary to consider whether the claimed harm was related to any Convention ground (at [51]).
While it accepted that the applicant was an Israeli national subject to compulsory military service (which was a law of general application) it was satisfied that in the applicant’s case (remembering that it found that he was not a conscientious objector) the administration and application of the law, in these circumstances, had not been, and would not be, applied to him in a discriminatory and/or selective manner attributed to any Convention ground (at [52]). It therefore affirmed the decision under review (at [54 to [55]).
The Competence of the Substantive Application
The issue before the Court is the competence of the applicant’s substantive application.
The Tribunal’s power to make its decision is derived from s.415 of the Act. The Court, pursuant to s.476, has the same original jurisdiction as the High Court has under s.75(v) of the Constitution. But because of s.477(1), an application to this Court for a remedy in exercise of that jurisdiction must be made within 35 days of the date of the Tribunal’s decision.
The current version of s.477(1) (and s.477(2)) were enacted by the Migration Legislation Amendment Act (No.1) 2009 (Cth), which became operational on 15 March 2009 (Migration Legislation Amendment Act (No.1) 2009 Proclamation (13/03/2009), Legislative Instrument – F2009L01026). This amendment to the Act applies to applications made to this Court on or after that date. (See cl.7 of Schedule 2.)
Application for Extension of Time
The Tribunal’s decision was made on 12 May 2009. The application to the Court was made on 2 July 2009. It was made 16 days after the 35 day limit specified in s.477(1). There is no dispute between the parties that that is the case. There is no discretion under s.477(1) to extend that time.
Such discretion does exist under s.477(2). The Court may extend the time if:
a)An application for an order to extend the time has been made in writing to the Court, specifying why the applicant considers that it is in the interests of the administration of justice to make the order.
b)The Court is satisfied that it is in the interest of the administration of justice to do so.
The first limb has been met in the current case. The applicant has made an application in writing for an order to extent the time for the making of the substantive application. He has specified why it is in the interests of the administration of justice to do so. (See [4] above for the three grounds.)
I read the applicant’s specification to be that the delay in making the application can be explained (grounds one and two), and that he has an arguable case for judicial review (ground three). (The first two sentences of ground three are factually incorrect: The applicant is 16 days “outside” the time limit in s.477(1), and there is no limit on the time within which an extension of time is “allowable” pursuant to s.477(2).)
The issue now is whether the second limb of s.477(2) – the interests of the administration of justice – can be satisfied.
There are a number of circumstances relevant to the second limb in s.477(2). These are:
1)The extent of the delay and the reason for the delay.
2)Whether there is any merit in the application.
3)Whether there is any prejudice to the respondents.
4)The impact on the applicant.
5)The interests of the public at large.
6)The Court’s discretion itself.
Delay
The Tribunal made its decision on 12 May 2009. I accept, with reference to Attachment “A” to the annexure of Ms Dinihan, that it was posted to the applicant at an address in Bondi Beach NSW on 13 May 2009.
For the purposes of s.477(1), the starting date for the 35 day period is the date of the Tribunal’s decision, not when it is sent to the applicant. Nor is the starting date when the applicant receives notice of the decision – whether deemed or actual. The delay in making the application is therefore 16 days.
In submissions Ms Dinihan described this period as: “not excessive, but not negligible”.
Mr O’Donnell submitted that the applicant received the Tribunal’s decision in “May/June” of 2009 (Affidavit 1 at [1]), the applicant does not read English (Affidavit 2 at [6]), he did not understand its significance until it was interpreted to him by a friend on 17 June 2009 (Affidavit 2 at [6]). By that time, the applicant was already one day over the 35 days limit.
But from that point, the applicant’s evidence is that he acted as quickly as he could in obtaining advice from his counsel, and gathering the relevant documents. Further, delay was occasioned when he attempted to file the applications (the substantive application and the application for an extension of time), because he did not have sufficient funds to pay the filing fee. He had insufficient “English skills” to fill out the relevant exemption “forms”. Yet further delay was occasioned in arranging time for a “friend” to assist him in translating these documents, and in attending a further conference with his legal counsel. (See Affidavit 2 at [7] to [9].)
In terms of the extent of the delay, being 16 days, it must be said that in the greater scheme of things, it is not of itself a great period.
But it is with the applicant’s explanation for the delay that I encounter difficulty.
His evidence is that he received the letter dated 13 May 2009 from the Tribunal (enclosing its decision record of 12 May 2009) sometime in “May or June 2009” (Affidavit 1 at 1]). The evidence before the Court (which the applicant does not challenge) is that the letter was posted on 13 May 2009. (See annexure to the affidavit of Ms Dinihan.) It was at Australia Post’s “South Sydney – Business Hub” in “Alexandria NSW” on that date.
It was addressed, according to the evidence before the Court, to the applicant’s address for service, which was also his residential address. (See CB 55 to CB 56.) It continues to be his residential address now. (See Affidavit 1, Affidavit 2, and Affidavit 3.) There is nothing in the Court Book, nor does the applicant contend that it was not sent to the current address for service at that time.
Nor is there any evidence before the Court, nor does the applicant otherwise contend (other than the reference to “June 2009”) that there was any delay in the delivery of the letter by Australia Post.
I do not accept that the applicant did not receive the Tribunal’s letter until June 2009. On what is before the Court, a clear inference can be drawn that the applicant received the letter at his residential address at least sometime in the week following 13 May 2009.
The applicant’s evidence is that he does not read English. (See Affidavit 1 at [6].) This is in conflict with other evidence that he has put before the Court. The Court Book annexed to Affidavit 3 contains a copy of his application for a protection visa. While the applicant responds to the relevant question in that application form as to whether he would require an interpreter if he were invited to an interview, by stating that he would require the services of an interpreter in the Hebrew language (see Question 9 at CB 12), in answer to Question 11 on the same page, the applicant signifies that he can speak, read, and write English (CB 12).
The applicant made a declaration pursuant to s.11 of the Statutory Declarations Act 1959 that, amongst other things, what was contained in his application was “correct” (CB 24).
In my view, of even greater significance is the applicant’s evidence as to what happened (or what did not happen) when he did received the letter. His evidence is that he “did not understand the significance of the Tribunal’s letter” until it was interpreted for him by a friend on 17 June 2009.
I note that his evidence was not that he did not recognise the letter as being from the Tribunal, but that he did not understand its significance. As indeed he said that he did not understand the significance of any “document” sent to him by the Minister’s Department.
The evidence before the Court is that the applicant has received a number of communications from the Minister’s Department. But more relevantly, a number of letters from the Tribunal. See:
a)CB 58 – letter dated 28 December 2007;
b)CB 60 – letter dated 14 January 2008, inviting the applicant to a hearing;
c)CB 72 – letter dated 12 March 2009 inviting the applicant to the handing down of the Tribunal’s (as earlier constituted) decision;
d)CB 74 – letter dated 3 April 2008 notifying the applicant of the decision of the Tribunal as earlier constituted;
e)Annexure to Affidavit 1 at [30] of the Tribunal’s decision – the letter of 19 March 2009, advising the applicant that his matter had been remitted to the Tribunal for reconsideration;
f)Annexure to Affidavit 1 at [31] – the letter of 27 March 2009 inviting the applicant attend a hearing before the Tribunal.
I am satisfied, on the evidence, that a clear inference can be drawn, even if the applicant could not understand the significance of the Tribunal’s letter of 13 May 2009, that is, as he could not read it, he would have identified it as being from the Tribunal. This is consistent with his evidence that is to the effect that he did not understand the significance of what was contained in such letters, but there is no evidence to say he could not, or did not, identify their source.
On the evidence before the Court, therefore, I find that the applicant received the Tribunal’s letter of 13 May 2009 at his residential address within a week or so, at least, after 13 May 2009 (certainly, not June 2009) and would have recognised it as being from the Tribunal, having received many letters from the Tribunal in connection with the application for review.
The applicant’s evidence provides no explanation as to why he was unable to arrange for his friend, or anyone else, to translate the letter for him until nearly a month later.
This unexplained delay in obtaining such a translation is inconsistent with the apparent, or claimed, seriousness of the applicant’s circumstances. The applicant came to this country seeking refuge from what he claimed to be persecutory harm in Israel. He claimed to fear harm if he were to return. He embarked on a process of securing his stay in Australia to avoid such harm. Yet having received a letter from the very organisation which could have delivered him the result that he sought, he wasted a month before doing anything to ascertain what the Tribunal’s communication was about.
I also have difficulties with the applicant’s evidence and explanation of what he did once he said that he did become aware of the significance of the letter.
The applicant’s evidence (see Affidavit 2) is that he approached Mr O’Donnell on 18 June 2009 who had previously acted for him in his “previous appeal in the Federal Court.” (I understood this to be a reference to SZMFJ (No 2) (FC).) Ultimately, he “arranged a full conference” with his counsel, which he attended on 24 June 2009, and at which counsel: “assisted [him] in preparing [his] court documents.”
He took these documents to this Court’s registry on the same day. The issue that arose was the payment of a filing fee. He was not able to “fill out” the relevant exemption form. He then said that he again attended with his friend (who appears to have assisted in the interpretation of Affidavit 2) on 2 July 2009 at his counsel’s Chambers where he: “prepared [his] court documents”, documents that, other than the affidavit itself, he previously said had been prepared on 24 June 2009.
Further, and specifically, in relation to the applicant’s evidence in Affidavit 2 (that he does not read English), Affidavit 1 made on 24 June 2009, contains no certification from any person, let alone a competent person in both the Hebrew and English languages, that the contents of Affidavit 1 were prepared with the assistance of any interpretation or translation, or that the affidavit once prepared (in English) was translated to the applicant so that he could comprehend that to which he gave his oath. I note that Affidavit 1 contains the applicant’s evidence that he received the Tribunal’s letter of 12 May 2009, enclosing the Tribunal’s decision record in “May/June 2009”.
Nor does Affidavit 3, variously said to be sworn on either 4 August 2009 or 24 June 2009 (or 3 August 2009), contain any such interpreter’s certification. (All three affidavits were witnessed by the same Justice of the Peace.)
The answer to these anomalies may be found in the applicant’s own evidence in Affidavit 2 (the only affidavit to have an interpreter’s certification).
The applicant says (at [6]): “I do not read English …” He then says (at [8]) in relation to his capacity to read and “fill out” the filing fee exemption form:
“My English skills were not good enough to be able to fill out the form.”
The inference to be drawn from the latter evidence is that the applicant’s “English skills” were not non-existent (“I do not read English”), but were “not good enough”. That is, there was some capacity to understand English.
This brings us back to where the applicant started - his protection visa application. He clearly declared that he would need the services of an interpreter in the Hebrew language, but that he could speak, read, and write English.
In all, therefore, I find the applicant received the Tribunal’s letter enclosing its decision record soon after 13 May 2009. While he did not fully understand the detail of what was set out in the decision record (I accept that he would need the services of someone whose skills were better than his in the English language), he did understand that the letter was from the Tribunal, and given the circumstances, would have understood that it was significant.
That is, that it was an important letter from the very body that was considering, in effect, his application for protection in Australia. Yet he has left unexplained why he was unable to arrange for anyone to translate for him for almost a month. I cannot accept, in the circumstances, that the applicant was ignorant of the source of the letter, or of its importance to the process of determining his refugee status.
I agree with Ms Dinihan that the period of the delay was “not excessive”. But in light of what I have set out above, I also agree in that sense, it was “not negligible”. The delay, therefore, is not satisfactorily explained.
The Merits of the Originating Application
There is one ground in the application (with two particulars):
“1. The Second Respondent fell into jurisdictional error by failing to consider (or failing to give proper, genuine and realistic consideration to) relevant material, being:
a. the evidence given and arguments presented by the Applicant relating to the issues arising in relation to the decision under review at the hearing of the Second Respondent (differently constituted) on 10 March 2008; and
b. the findings made by the Second Respondent as differently constituted as recorded in its decision record dated 12 March 2008 and handed down 3 April 2008.”
In submissions the Minister opposed the application for an extension of time on the basis that, amongst other matters, the originating application, prepared with the assistance of counsel, does not raise an arguable case that there is jurisdictional error on the part of the Tribunal’s decision, or that there is no reasonable prospect of success.
I see the relevant test to be applied here as deriving from the language of s.477(2) itself. That is, whether, in light also of other relevant considerations, there is merit in the ground of the application, as particularised, such that it is in the interests of the administration of justice that the time for the making of the application be extended.
In considering this, it is necessary to set out what I understand to be the reason for affirming the decision under review, pursuant to the Tribunal’s power set out in s.415 of the Act.
It is clear that, as the High Court said in Minister for Immigration & Ethnic Affair v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, the Tribunal’s reasons should not “be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (at [31]). (with reference to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”).
Nor, on the other hand, should a “beneficial reading” of a Tribunal decision be taken to mean that any ambiguity in the Tribunal’s decision record be construed in favour of the Tribunal (SZCBT v Minister for Immigration Multicultural Affairs [2007] FCA 9 per Stone J at [26]).
In my view, the rationale, the reason, for the Tribunal’s decision is that, on what was before it, the Tribunal was unable to reach the requisite level of satisfaction such that the visa must be granted. The relevant statutory regime (ss.65 and 36(2)) requires that the Tribunal (relevantly) must reach such a level of satisfaction for the applicant to be successful before it (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In the current case, the applicant was invited to a hearing before the Tribunal after his case had been remitted by the Federal Court. He was put on notice by the Tribunal that, on what was before it, the Tribunal was unable to make a decision favourable to him. The applicant had clearly been through this process before when he had been invited to, and attended, a hearing before the Tribunal as earlier constituted. (See CB 60 to CB 64).
There could be no doubt that the applicant was on notice of the importance of attending the hearing in these circumstances. He did not do so. No explanation was provided.
The only evidence before the Court as to what was before the Tribunal at the time of the sending of its letter, inviting the applicant to a hearing, is the relevant material contained in the Court Book and the Tribunal’s own decision record.
A plain reading of its decision record reveals:
1)At [19]:
“The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.”
2)At [20]:
“In support of the application for a protection visa, the applicant provided a Statement in which he claimed that …”
3)At [29]:
“The applicant appeared before the previous Member on 10 March 2008. His evidence is accurately summarised in Decision N0.071969401.”
To properly understand the reason for the Tribunal’s decision the above must be read with:
1)At [31]:
“On 27 March 2009, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 May 2009. The applicant was also advised that if he did not attend the hearing listed on 5 May 2009 and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. The applicant did not respond the hearing invitation.”
2)At [33]:
“The applicant did not attend the hearing listed on 5 May 2009.”
3)At [34]:
“The Tribunal has decided to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.”
What follows in the Tribunal’s analysis must be understood in this context. The Tribunal could not be satisfied on what was before it that the applicant, in effect, met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. He did not attend the hearing which was offered to him as the opportunity to present evidence and arguments which may have persuaded the Tribunal to a different view.
The Tribunal explained:
1)At [47]:
“Whilst the applicant has provided some details about his claims, fundamentally, he has made a series of unsubstantiated and general assertions. The applicant has attended a hearing before the previous Member and the Tribunal has given regard to the evidence given in the course of that hearing. Following remittal, the Tribunal wrote to the applicant, advising him that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present argument at a hearing on 5 May 2009. The applicant was also advised that if he did not attend the hearing listed on 5 May 2009 and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. The applicant did not attend the hearing and the Tribunal has no explanation.”
2)At [48]:
“The applicant was sent a hearing invitation letter under s.425 which complied with s.425A. The invitation was sent to the address provided by the applicant and he confirmed that address on 4 May 2009. The Tribunal made attempts to contact the applicant before the hearing. The Tribunal has carefully considered the evidence before it and the Tribunal is satisfied that the applicant has been given a fair opportunity to attend a further hearing and he has not attended.”
3)At [49]:
“The applicant has not provided any corroborative evidence of his claims.”
Given this, the Tribunal found, comparable to what was described by a Full Court as the “inevitable consequence” (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], per French, Emmett and Dowsett JJ, SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999 at [16] to [17], per Conti J) that it was not satisfied as to the greater part of the applicant’s factual claims as to what he said had occurred in Israel and in relation to the harm he claimed to have suffered. Nor, in relation to this greater part of his claims, which included a rejection of his claim to be a conscientious objector in relation to Israel’s conscription laws, would it be satisfied that he would suffer any of the claimed harm in the future (at [50]).
The only part of the applicant’s factual claims which the Tribunal was able to accept was that he was a citizen of Israel and, as such, would be subject to compulsory military service. The Tribunal found that such a law was a law of general application, and in circumstances where the applicant was not a conscientious objector, the Tribunal was satisfied that the administration of that law had not and would not be enforced against the applicant in a “discriminatory and/or selective manner attributed to Convention grounds …” (at [52]).
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason and it therefore affirmed the decision under review (at [54] to [56]).
In my view, these findings were all open to the Tribunal on what was before it, and for which it gave reasons.
There are two reasons, therefore, for the Tribunal’s conclusion. The first is its inability to be satisfied as to the bulk of the applicant’s factual account underpinning his claim. The second is that what was accepted as to his factual account did not reveal a Convention-related claim to fear persecutory harm.
The applicant’s ground in the substantive application must be considered in light of the above.
The first particular to the ground of the application is that the Tribunal fell into error because it failed to properly consider relevant material, being the evidence and arguments presented by the applicant, in relation to the issues under review, at the hearing before the earlier constituted Tribunal.
The applicant’s submissions are:
1)That it is permissible for the Tribunal, on remittal, to consider material relating to a hearing conducted by the earlier constituted Tribunal. (See SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 – “SZHKA”, SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) 159 FCR 291 – “SZEPZ”. See also applicant’s submissions at [21].)
2)The Tribunal is obliged to properly consider all claims and integers of claims made by an applicant (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 – see applicant’s submissions at [22].)
3)That, pursuant to s.425 the Tribunal must give proper and realistic consideration to the evidence given by an applicant at a hearing to which he has been invited.
In short, the applicant’s position is that, having regard to these three principles, and having regard to what was described as the “wholly inadequate” summary of the hearing in the earlier constituted Tribunal’s decision record, the failure of the Tribunal “to go to the transcript or hearing tapes of the hearing”, and that having regard to the Tribunal’s decision record, a “suspicion” is raised that the Tribunal did not give proper, real and genuine consideration to the hearing before the earlier constituted Tribunal.
Mr O’Donnell also submitted that the applicant was conscious of the cost of providing a transcript at this time, but that a transcript of the hearing before the earlier constituted Tribunal would be provided at any final hearing of his substantive application before the Court.
In my view, the applicant’s ground as particularised at particular (a) does not have merit.
First, it must be said that neither SZHKA nor SZEPZ is authority for any proposition that a failure by a subsequently constituted Tribunal to have regard to the earlier constituted Tribunal’s decision record constitutes jurisdictional error of itself. (Not that I understood the applicant to be making such a submission.)
Section 422A(3) of the Act makes provision so that, following reconstitution, the Tribunal may have regard to any record of the proceedings of the review made by the previously constituted Tribunal. But the exercise of this power is clearly discretionary.
As was said in SZHKA at [22] per Gray J:
“The same may be said of any reliance on ss 422 and 422A, which are found in Div 3 of Pt VII of the Migration Act. Both deal with the reconstitution of the Tribunal, ie the substitution of one member for another, in different circumstances. By s 422(2) and s 422A(3) the member who comes to constitute the Tribunal after its reconstitution may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. The first thing to note about these provisions is that they confer on the Tribunal member concerned a discretion. In modern Commonwealth enactments, s 33(2A) of the Acts Interpretation Act 1901 (Cth) makes it clear that the word "may" signifies the conferring of a discretion. The member who comes to deal with the case may choose to rely on the record, but is not compelled to do so. The second thing is that neither s 422 nor s 422A says anything about the exclusion of the Tribunal’s obligation under s 425(1). Having regard to the record of what a previous Tribunal member has done is a sensible step, and may assist in eliminating repetition of a number of steps. In no sense could it be said to be a substitute for the opportunity given to an applicant pursuant to s 425(1) to give evidence and present arguments about the issues.”
The applicant also relies on SZHKA at [37] (per Gyles J). (In particular, I understand, in context, the last two sentences.)
“The Full Court in SZEPZ [2006] FCAFC 107; 159 FCR 291 did not decide the issue as to whether the second review was de novo. The same course may be taken in these cases. The fatal flaw was in not complying with s 425, and the decisions must be set aside. These appeals are not the vehicle to decide how the new reviews are to take place. However, as presently advised, it is difficult to see an escape from the proposition that once an administrative decision is set aside for jurisdictional error, the whole of the relevant decision making process must take place again (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597). There is no analogy between that situation and a rehearing ordered on an appeal in judicial proceedings or pursuant to statutory provisions such as s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) or the former s 481 of the Act. Mandatory statutory obligations must be carried out again. The suggested dichotomy between an administrative decision and what precedes it is unconvincing in this context. Such a conclusion would not mean that what has taken place in the previous review cannot be taken into account in the second review if considered relevant. The proceedings are administrative, not judicial, and the Tribunal can have regard to all relevant material, including a transcript of what took place at the previous hearing, subject to compliance with the statutory regime.”
The Tribunal, therefore, may have regard “to any record of the proceedings of the review made by the Tribunal as previously constituted.” But it is not compelled to do so.
What is also of note is that the authority relied on by the applicant was, relevantly, commenced with the question as to whether, on reconstitution, following a Court order setting aside the “first” Tribunal decision, the Tribunal was required to issue: “a fresh invitation pursuant to s.425(1) and constituting a fresh hearing” (SZHKA at [1]).
The Tribunal in the current case did comply with this authority. It did give the applicant an invitation to a hearing before it, following reconstitution. The relevant unexplained part of the applicant’s argument before this Court now is his failure to take up that opportunity.
The applicant also argues now that s.425 requires the Tribunal to give proper, genuine, and realistic consideration to the evidence given at a hearing resulting from an invitation “from that provision”.
That may be implicit, although I note that the obligation is on the Tribunal to deal with each claim made, not every piece of evidence before it. But, in any event, in my view, the focus is on the evidence given at a hearing before the member who makes the decision following reconstitution.
As was said in SZHKA at [28] (per Gyles J):
“An applicant’s case will inevitably involve subjective elements – starting with a genuinely held fear of persecution. The grounds for that fear will usually involve accepting the applicant’s word for events for which there may be no objective corroboration. The applicant may have to persuade the Tribunal that some apparently credible external source of information is incorrect, incomplete or out of date. It will often involve the applicant in persuading the Tribunal that the applicant is, in truth, the person the applicant claims to be from the place the applicant alleges. Usually, failure by an applicant to succeed will be because the truth of what the applicant has said has not been accepted by the Tribunal in some critical respect. It is, no doubt, for this reason that the Parliament has provided for a compulsory opportunity for an applicant to persuade the Tribunal face to face. That opportunity is only of real value if the face to face meeting is with the person making the decision. The face to face meeting is not just an opportunity for the applicant to put his or her best foot forward. It is the opportunity for the Tribunal member to explore issues that concern that member with the applicant. The importance of that process is underlined by the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, particularly at [33]–[40]. In my opinion, the opportunity to be provided by virtue of s 425 is not provided by an appearance before another Tribunal member on an earlier occasion in the course of an aborted review.”
Further, nor does the applicant’s several references to s.425, in this context, assist. Section 425 is concerned with the opportunity to appear before the Tribunal: “to give evidence and present arguments in relation to the decision under review.”
Plainly, that decision is the delegate’s decision.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) the High Court provided direction in relation to this:
1)The issues arising in relation to the decision under review are to be identified by having regard to the delegate’s decision. (See [34].)
2)But the Tribunal is not confined to those issues. At [35]:
“The issues that arise in relation to the decision are to be identified by the Tribunal.”
Further, as was also said in SZHKA (with reference to SZBEL) at [7], per Gray J:
“The second important aspect of s 425(1) is that the evidence and arguments are to relate to ‘the issues arising in relation to the decision under review.’ The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.”
That is, what is both explicit, and implicit, in s.425 is the invitation to hearing and the opportunity to put evidence and arguments relating to the issues arising in relation to the review as identified by the Tribunal member who makes the decision on the review. In that sense, the applicant’s reliance on s.425 to argue (even in part) error on the part of the Tribunal that made the decision currently under consideration, because it allegedly did not consider the applicant’s evidence, given to the earlier constituted Tribunal, does not assist him.
Even if it is implicit in s.425 that the Tribunal must give proper, genuine, and realistic consideration to the applicant’s evidence, it is, in my view, the case that such consideration be given to evidence given at a hearing before the Tribunal member who makes the relevant decision on the review.
In any event, and ultimately, the evidence before this Court is that the Tribunal did have regard to the applicant’s evidence given to the earlier constituted Tribunal, and as summarised in the decision record. (See at [29].)
The applicant also submits that the earlier constituted Tribunal’s summary of the hearing before that member was “wholly inadequate” such that the member who made the decision currently under consideration should have obtained a transcript or “tapes” of the hearing.
It is true that the decision record of the earlier constituted Tribunal lacked a feature often seen in other Tribunal decision records. That is, a narrative report under a specific heading, making reference to the hearing.
However, on its own, this hardly makes the “summary of the hearing wholly inadequate”, requiring the subsequently constituted Tribunal to listen to hearing “tapes” or read a transcript. (Putting to one side the issues already identified above against this complaint.)
Section 430 of the Act mandates that a Tribunal must prepare a written statement. What is required in that the statement is that it:
a)Sets out the decision.
b)Sets out the reasons for the decision.
c)Sets out the findings on any material question of fact.
d)Refers to the evidence or any other material on which the findings of fact were based,
There is no statutory prescription as to the presentation, or format, of these matters.
So long as these matters are addressed, variations because of personal style, the particular requirements of the case, and ease of presentation are all permitted. In fact, in the current case, a strong argument can be made that the earlier constituted Tribunal’s many references to the applicant’s evidence set amongst its findings and reasons provided a far greater direct, and particular, link between the applicant’s evidence and the Tribunal’s findings on this evidence.
Often, Tribunals’ decision records that set out a hearing report in long summary form require repetition in the “Findings and Reasons” to make such connections. I do not draw this comparison to be critical of these other decision records, but merely to illustrate that, in my view, so long as the relevant statutory requirements are met, “one size does not fit all.”
I cannot see any requirement that the Tribunal provide a “summary” of the hearing in its decision record, or otherwise, as the applicant’s submissions suggest. The statutory requirement, relevantly, is to refer to the evidence, or any other material, on which its findings are based.
Any plain reading of the earlier constituted Tribunal’s decision record reveals that it did just that. (See CB 83.9, CB 84.3, CB 84.4, CB 84.6, CB 85.5, CB 85.6, CB 85.7.) Clearly, it was to this evidence that the Tribunal, whose decision is currently under consideration, said that it paid regard. (See [29] of the Tribunal’s decision record.)
In the circumstances, I do not agree that the “present” Tribunal decision record raises a “suspicion” that the member did not give proper and genuine consideration to the hearing.
In any event, there is no obligation on the Tribunal to have regard to a hearing before an earlier constituted Tribunal. This is what the applicant now alleges. The complaint also fails, in my view, because the Tribunal did have regard to the evidence as presented by the earlier constituted Tribunal. It said so. There is no evidence before the Court that it failed to do so. Nor does the applicant say, at all, let alone with any specificity, to what parts of his evidence the Tribunal failed to give proper, and realistic, consideration.
The applicant’s complaint may also be seen as seeking to assert some failure on the part of the earlier constituted Tribunal to accurately report all of the applicant’s evidence, such that the reconstituted Tribunal could have proper regard to it.
First, s.430 does not require the Tribunal to record all of an applicant’s evidence. Only that evidence on which its findings of fact are based.
Second, the applicant has sought to preserve his position in relation to providing a transcript of the hearing before the earlier constituted Tribunal. At best, the submission is that the Tribunal did not give proper consideration to the hearing. It does not need to do so. But if what is implied is that the Tribunal did not give proper consideration to the applicant’s evidence at that hearing because it was not adequately reported by the earlier Tribunal, then the applicant does not say what evidence this is.
The submission that the matter would be “tested” at a final hearing before this Court with the provision of a transcript, leaves the applicant’s grounds as pleaded and particularised (and in the absence of any identification of what was “inadequately” summarised), as being without merit. This, after all, is the test that the Court is required to apply at this time.
Further, it does not require a transcript for the applicant to identity for the Court what was said to be inadequately reported.
As pleaded and submitted, the ground, and the first particular, come dangerously close to what can be described as an attempt to engage in a “fishing expedition”. The applicant’s position, at best, is: to let him go to a final hearing, where he can then spend money to obtain a transcript to “test” a “suspicion” that proper consideration was not given, because some, as yet unidentified, matters arising from the hearing may come to light.
This has no merit.
Further, the Tribunal does not have to have regard to all of the evidence before it. A distinction can be drawn between evidence, and claims and integers of an applicant’s claims.
It is certainly the case, as the applicant submits, that the Tribunal is required to give proper consideration to an applicant’s claims and aspects of those claims, both expressly made, and as can be said to arise from the applicant’s circumstances. (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J, with whom Spender J agreed. See also NABE v Minister for Immigration Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 per Black CJ, French and Selway JJ (“NABE”), with reference to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26).
But it is also the case that the Tribunal does not have to deal with a claim not stated, nor which obviously does not arise from the circumstances (NABE at [49], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [44], Htun at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).
However, again, the applicant’s ground as pleaded, particularised, and explained in submissions, does not identify what claim it is, or what integer of a claim, in relation to which the Tribunal is said to have not given proper, real, and genuine consideration.
Again, the applicant seeks to rely on a promised transcript that, at best, will “test” a “suspicion”. In the absence of any clear statement now, the ground as particularised has no merit in this regard.
In the second particular to the ground, the applicant contends that the Tribunal failed to have proper, genuine, and realistic consideration to the findings made by the earlier constituted Tribunal.
The short answer to the applicant is that the Tribunal does not have to have such regard.
The applicant points to no authority to support the proposition set out in this particular. (Other than a reference in submissions to SZBEL – see below.)
The authorities would tend to support the opposite position. First in SZEPZ, a Full Federal Court described a “decision” of the Refugee Review Tribunal, which had been found to be infected with jurisdictional error, to be an “invalid decision” and one which was “no decision at all …” (SZEPZ at [39]). It is difficult to see that the Tribunal should have regard to that which a Court has found to be invalid, or in effect, no longer to be in existence.
Second, this is further emphasised with reference to Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 the High Court – “Wang”, per Gleeson CJ) where his Honour said (at [16]) that the findings made by an earlier constituted Tribunal whose decision was found to contain an error in law on remittal to: “have no legal status in that further review.”
Even further, in Wang at [74] (per Gummow and Hayne JJ):
“It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law …”
The applicant also submits that, by “analogy” with SZBEL the Tribunal was, at best, obliged to consider the earlier findings.
I do not agree.
I understand SZBEL to be concerned with procedural fairness in the statutory context of s.425. That in this regard, the invitation that must be given to an applicant to come to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (at [33]).
Further, that the applicant is entitled to assume that the issues identified by the delegate as determinative against the applicant are the issues in relation to the review. If the Tribunal identifies some other issue, or issues, then it must tell the applicant (at [35]).
I cannot see that SZBEL stands for the proposition that the Tribunal was “at least obliged to consider” the findings made by the earlier Tribunal. It is certainly obliged to consider the delegate’s findings. On the authority of SZBEL, that is the point to begin the identification of the issues arising in relation to the decision review. But I cannot see that this extends to the findings made by an earlier constituted Tribunal. After all, these are findings contained in a decision that was found by a Court to be an invalid decision.
It may be that in the current case the applicant is anxious to “preserve” the finding apparently made by the earlier constituted Tribunal (although this appears to be unclear), that he was a conscientious objector. (See, in particular, CB 85.3.) The Tribunal found that he was not.
But the Tribunal is clearly not bound by this finding by the earlier constituted Tribunal. It is required to make up its own mind in the proper exercise and completion of the review that it has jurisdictionally been charged to conduct.
The Tribunal’s finding in this regard was open to it, given its concerns that, on what was before it (including the earlier Tribunal’s decision record), it could not reach the requisite level of satisfaction. A matter about which it put the applicant on notice and gave him the opportunity to address. An opportunity which, without explanation, he chose not to take up.
This ground, as particularised by the second particular also lacks merit.
Additional Matter: “Erduran”
At the commencement of the hearing on the application for an extension of time, Mr O’Donnell raised a proposed second ground to the substantive or originating application.
This was that the Tribunal fell into the same error as the earlier constituted Tribunal by applying the wrong test for the determination of the refugee status of conscientious objectors. This was said with reference to SZMFJ (No.2) (FC)
Further, to the extent that the Tribunal “purportedly” found that the applicant was not a conscientious objector, the adoption of the wrong test “distracted” the Tribunal.
At the hearing Ms Dinihan objected to the applicant raising this matter at this late stage. Ms Dinihan submitted that this would cause prejudice to the Minister.
I agree with Ms Dinihan. In particular, in my view, it is not in the interests of the administration of justice that the applicant, with the benefit of counsel, be permitted to raise additional matters of this type at the beginning of a hearing (albeit a hearing on an extension of time). counsel who, on the applicant’s own evidence, had been first (in relation to the matter currently before the Court) been consulted on 18 June 2009 and more fully (“a full conference”) on 24 June 2009 (over 5 weeks earlier). (See Affidavit 2 at [7].)
Nonetheless, and in any event, the proposed ground lacks merit.
Before the Court in SZMFJ (No.2) (FC), the Minister conceded that the relevant law in relation to applicants who claim to be conscientious objectors and seeking refugee status on that basis is as set out in Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150; [2002] FCA 814 at [27] to [28] (“Erduran”) (per Gray J). (See SZMFJ (No. 2) at [5].)
This concession continues for the purposes of the current matter before this Court.
In Erduran (at [28]) the Court said:
“It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (2000) 105 FCR 548 at [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.”
In SZMFJ (No.2) (FC) the Court (per Jagot J) found (in relation to the earlier constituted Tribunal’s decision) at [10]:
“The Tribunal’s reasons, considered as a whole, cannot be reconciled with the reasoning in Erduran. The Tribunal appears to have assumed that the non-discriminatory application of a law of general application is incapable of constituting persecution for any reason within the scope of the 1951 Convention. This assumption explains: - (i) the Tribunal’s focus on finding some significant and essential motivator for the persecution separate and distinct from the application of the laws themselves, (ii) the lack of any finding by the Tribunal as to whether the appellant’s aversion to military service was for the reason of conscientious objection, and (iii) the Tribunal’s treatment of actual and imputed political opinions. Each of these aspects of the Tribunal’s reasoning is contrary to the approach in Erduran which accepts that, depending on the particular facts found, the non-discriminatory application of a general law may constitute persecution for a reason within the scope of the 1951 Convention. Given the basis on which this appeal proceeded (as set out in [5] above) I consider that the Tribunal asked the wrong question and thus constructively failed to exercise its jurisdiction. Accordingly, the appeal must be allowed. I will hear the parties on the question of costs before this Court and the Federal Magistrates Court.”
In this regard, it is important to understand the Tribunal’s reasoning and the difference in the relevant findings made by the two Tribunal members.
The earlier constituted Tribunal, with respect, appeared to be distracted from its primary task to make clear findings of fact. The decision record, in my view, has the hallmarks of a “scholarly” dissertation, rather than a Tribunal record focussed on the task as set out in s.430 of the Act. For example, it is not clear, even on a beneficial reading, whether it made a finding that the applicant was a conscientious objector. The Minister submitted before the Federal Court that there was an assumption by the Tribunal that the applicant’s claims were a fear of persecution by reason of his conscientious objection. In fact, with respect, it appears that much of the Minister’s submissions relied on having to make assumptions, or draw implications, about what the Tribunal actually found. (See SZMFJ (No.2) (FC) at [9].)
I understand, therefore, that it was in this context that the Court looked to the reasoning of the Tribunal as a whole and found that the Tribunal’s reasoning could not be reconciled with Erduran.
The decision of the Tribunal as reconstituted, however, is quite different.
First, the Tribunal made very clear findings. As already set out above, it rejected the overwhelming part of the applicant’s factual account of what occurred in the past, and to fear harm in the future.
It did this because the applicant’s unexplained failure to attend at the hearing left his claims and evidence, which lacked any corroboration, in the state of: “a series of unsubstantiated and general assertions” (at [47] of its decision record). A matter on which the applicant had been put on notice by the letter inviting him to a “second” hearing.
Included in the rejection of the applicant’s account was a clear finding, amongst many others, that the applicant was not a conscientious objector, or that he had not complied with any military service obligations, or that he refused to go when called up for military service as he claimed.
In my view, Erduran requires a finding first that the applicant refused to undergo military service, and if so, whether this arises from a conscientious objection to military service. If in the affirmative, then to consider whether the conscientious objection arises from a political or religious objection.
I agree with the Minister that the Tribunal’s finding that there had been no refusal to undergo military service, nor was the Tribunal able to be satisfied that there would be any such refusal, that is, that he was not a conscientious objector, means that Erduran is not applicable. Therefore, the Tribunal cannot be said to have applied the wrong test on this basis.
The first part of the applicant’s proposed second ground therefore lacks merit.
The second part of the applicant’s proposed ground asserts that the Tribunal’s adoption of the incorrect test, even though the Tribunal “purportedly” found that the applicant would not refuse to do military service, and was not a conscientious objector, served to distract the Tribunal from the significance and importance of the issues raised by the applicant’s claims.
The applicant’s submissions point to various parts of the Tribunal’s decision record to support the contention that it was distracted. For example, the reference (at [50]) to “… he is or would be perceived as a conscientious objector”, and the reference (at [52]) to the “discriminatory and/or selective manner” test.
The former appears to be a reference by the applicant now to that part of the test in Erduran which the applicant’s written submissions in reply describe as: “… the Erduran test focuses on the subjective opinion of the applicant (and renders almost irrelevant the subjective opinions of the government officials who apply the law) …” (See paragraph 3(2) of the submissions in reply.)
The latter is a reference to the test generally applied for laws of general application, said to be in contrast to what is required by Erduran. (See paragraph 3(1) of the submissions in reply.)
The Minister submits that the Tribunal cannot fall into error by referring to a law (whether correct in incorrect) which it did not ultimately consider or apply when making its findings. (See Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323).
The applicant counters by referring the Court to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [103] per McHugh J (quoting the Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145):
“… Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t 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 had no bearing on the outcome.’”
Further, with reference to Wang at [74]:
“It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present …”
In my view, the resolution to this can be found on a plain reading of the Tribunal’s decision record, and as understood in the context in which it was written. I note what was said in this regard in SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J:
“… It is often necessary, in cases such as the present, to ascertain what matters the Tribunal did or did not take into account in reaching its decision. Usually, it is the Tribunal's reasons which signal the answer …”
First, it is clear that the earlier constituted Tribunal made reference to Erduran. (See CB 82.9.) This decision record was clearly before the Tribunal. (See [29] of the Tribunal’s decision record.)
Second, the Tribunal was clearly aware that the earlier decision was infected with error, and had been remitted by the Federal Court for consideration. (See [4] of the Tribunal’s decision record.) The Judgment of Jagot J in SZMFJ (FC) (No 2) clearly was concerned with the application of the Erduran test.
Yet in spite of this, the Tribunal’s decision record makes no reference to Erduran.
In my view, this can be explained with reference to the Tribunal’s decision when read as a whole. It should not be assumed that the Tribunal member proceeded in a sequential way in setting out the relevant segments of the decision without knowing where she was heading, and what she was to conclude.
In my view, the Tribunal’s setting out of its understanding of the law relevant to its consideration (see [36], [40], [42], [44] to [46]) was done on the basis that the Tribunal rejected the greater part of the applicant’s factual account, including the parts relating to his claims to have refused military service and to be a conscientious objector. In this way, therefore, the test in Erduran was not relevant, and the Tribunal did not therefore need to refer to it. This is in sharp contrast to what had been done by the earlier constituted Tribunal, which relevantly, made no clear findings. In these circumstances, its failure to properly apply the Erduran test led to the finding of error.
Further, the Tribunal’s references to the “discriminatory and/or selective manner” test (see [46] and [52]) and the reference that the applicant would not “be perceived as a conscientious objector” (see [50]) were made in the context of a reference to the little that was left of the applicant’s factual account, and claims.
Namely, that he was an Israeli citizen and as such, would be subject to compulsory military service. In this regard, it was appropriate for the Tribunal to consider whether such a law was a law of general application, and if so, whether it would be applied to the applicant in a discriminatory, or selective, manner attributed to any Convention ground. When properly read in this way, the Tribunal’s decision does not reveal error as proposed by the applicant now.
The proposed ground, therefore (with reference to both aspects), also lacks merit.
The Interests of the Administration of Justice
The exercise of the Court’s discretion as to what is in the interests of the administration of justice should, of course, not be exercised lightly against the applicant being given the opportunity to extend the time for the making of his application.
The rejection of the applicant’s application for an extension of time would clearly have an impact on the applicant. It would most probably (at some time) mean that he would be required to leave Australia, and if he is unable to enter any other country would have to return to Israel.
The interests of the Australian public at large would plainly not be served with the refoulment of a refugee to a country of claimed persecution. But this is not the case here. The applicant has been found not to be a refugee in circumstances where, without explanation, he did not attend to the vital opportunity offered to him to explain, support, and ultimately press his claims before the Tribunal. The applicant’s attack on the Tribunal’s decision lacks merit.
The prejudice to the respondent in granting the extension of time would be to put the Minister to the burden and cost of additional litigation in circumstances where the applicant’s delay in making the application remains unsatisfactorily unexplained, and where there is a lack of merit in the ground (or the proposed additional ground) of the substantive application.
In balancing the various elements relevant to what is in the interests of the administration of justice, however, the applicant’s unsatisfactory explanation for the delay in making the application to the Court, the lack of merit in the ground of the application, the lack of merit in a proposed ground, raised late, and the resultant prejudice to the Minister outweighs the impact on the applicant in not granting the extension.
Conclusion
In all these circumstances, therefore, I am not satisfied that it is in the interests of the administration of justice that the order sought by the applicant to extend the 35 day time period be made. The applicant therefore has not met the second limb of the requirement in s.477(2). The application for an extension of time is dismissed.
In view of this, and given that the originating substantive application made to this Court on 2 July 2009 does not satisfy the time limit requirement set out in s.477(1), that application is dismissed as not competent.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 12 August 2009
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