SZQPN v Minister for Immigration
[2012] FMCA 47
•6 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 47 |
| MIGRATION – Show cause hearing – extension of time application – grounds as pleaded have no merit – application to extend time refused – application dismissed as not competent. |
| Migration Act 1958 (Cth), ss. 36, 65, 417, 430, 476, 477, 486F, 486I Federal Magistrates Court Rules 2001 (Cth), r. 44.11, 44.12, 44.13, 44.14 |
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| First Applicant: | SZQPN |
| Second Applicant: | SZQPO |
| Third Applicant: | SZQPP |
| Fourth Applicant: | SZQPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2006 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 September 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Sarom Solicitors |
| Appearance for the Respondents: | Ms T Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The application made on 7 September 2011, and amended on 24 October 2011, is dismissed as not competent.
The first and second named applicant pay the first respondent’s costs, set in the amount of $ 8,340.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2006 of 2011
| SZQPN |
First Applicant
SZQPO
Second Applicant
SZQPP
Third Applicant
SZQPQ
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There are two applications before the Court. The first made on 7 September 2011, amended on 24 October 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), applied for an order that the Minister for Immigration and Citizenship (“the respondent”) and the Refugee Review Tribunal (“the Tribunal”) show cause why the remedies sought in relation to a decision made by the Tribunal should not be granted.
The second application sought an extension of time, pursuant to s.477(2), within which the substantive application may be brought.
Background
The background to this case is as follows:
1)The first applicant (“the applicant”) is a Fijian national and the wife and mother respectively of the second to fourth named applicants.
2)The applicants applied for protection visas on 10 September 2010. Only the applicant made claims to be a refugee. The others applied as members of her family unit.
3)The applicant’s claims, ultimately before the Tribunal, were that she feared harm from the military in Fiji because:
(a)Of her prior involvement with the Methodist Church, in particular a Church conference, which was banned by the Fijian military.
(b)She had received threatening calls while working at “Vodafone Fiji” as a result of not releasing certain information to the military.
(c)She had travelled to Australia and the Fijian government would believe that in applying for a protection visa she gave information against them.
(d)There was no Constitutional protection in Fiji.
The Minister’s delegate (“the delegate”) is reported to have refused the application on the basis that the applicants were not persons to whom Australia had protection obligations ([3] at page - “P” - P2 of the Tribunal’s decision).
The applicants applied for a review of the delegate’s decision on 30 November 2011 ([4] at P2). The applicant gave oral evidence to the Tribunal at a hearing held on 22 February 2010. The Tribunal’s account of what occurred is contained in its decision record ([33] at P6 to [82] at P11). On 2 March 2011 the Tribunal affirmed the decision of the delegate to refuse the applicants protection visas.
Application to the Court
The application to the Court was prepared by a solicitor “Sashimendra Singh”, the applicants’ lawyer, who certified (pursuant to s.486I of the Act) that there were reasonable grounds for believing that this migration litigation had a reasonable prospect of success.
The grounds of the original application were:
“Ground 1
The Tribunal’s finding of its satisfaction which caused it to refuse to grant a protection visa to the applicant, pursuant to s.65(1) of the Migration Act 1958 (Cth) was irrational, illogical and not based on finding and inferences of fact supported on logical grounds.
Ground 2
The Tribunal failed to exercise its jurisdiction by failing to deal with the evidence in the following ways:
Part A: The Tribunal failed to refer to the evidence or any other material on which a finding of fact was based contrary to s.430(1)(d) of the Migration Act 1958 (Cth); and
Part B: The Tribunal failed to set out its finding on material questions of fact contrary to s.430(1)(c) of the Migration Act 1958 (Cth).”
[With particulars.]
When the matter first came on for directions on 21 September 2011 the applicants were represented by Mr Singh. Putting aside the question of the delay in seeking judicial review, I asked Mr Singh the basis for his certification in light of the grounds as pleaded. The concern was that on their face, and in light of other material filed, the grounds did not reveal any reasonable prospect of success.
Ground one pleads, with some particulars, that the Tribunal’s decision was irrational, illogical and not based on findings and inferences of fact supported on logical grounds.
The most recent High Court authority and direction for the disposition of such a ground is to be found in the joint judgment of Crennan and Bell JJ, and in the judgment of Heydon J, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”). In light of that authority, the particulars appeared to be only a challenge to the Tribunal’s findings of fact and to therefore seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Ground two asserts a failure to exercise jurisdiction pursuant to s.430 of the Act. In light of Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 (“Yusuf”), it is difficult to see how, without reference to any other consequence, a mere allegation of a breach of s.430 can be said to be jurisdictional error.
In spite of having stated in the application form that he “prepared” the application, and in his certification that the grounds had a real prospect of success, Mr Singh was unable to assist the Court in light of the concerns explained above. He said he had relied on counsel.
I granted a short adjournment to enable Mr Singh to contact his counsel to see if any light could be shed on these matters. On resumption, he advised that he had been unable to contact counsel in the time available. I therefore set the matter down for a show cause hearing, pursuant to r.44.11(b) of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) to determine whether the application raised an arguable case. I also put Mr Singh on notice of the relevant parts of Part 8B of the Act and, in particular, s.486F(1)(c)(i) and (2).
Before the Court
Subsequently, at the show cause hearing the applicants were represented Ms T Baw of Counsel. The first respondent was represented by Ms L Weston.
As set out above, the applicants sought to rely on three affidavits, being:
1)The applicant’s affidavit filed 7 September 2011, annexing the Tribunal’s decision record and containing an explanation for the delay in filing the substantive application (“the first affidavit”);
2)The applicant’s affidavit filed 7 September 2011, annexing the transcript of the Tribunal’s hearing (“the second affidavit”); and,
3)The supplementary affidavit of the applicant, sworn on 27 September 2011 and produced in Court on 28 September 2011. It annexed a copy of documents submitted in the application for protection visas.
While the respondent had been served with the first affidavit, the second affidavit was only brought to the Minister’s attention at the commencement of the show cause hearing, permitting only a brief period of time for its contents to be perused. Further, the supplementary affidavit was only produced during the hearing, affording the respondent no time to consider it or its annexures.
Further, although no prior notice had been given, the Minister’s solicitor indicated to the Court that they would seek to cross-examine the applicant on the material in the first affidavit. This was ultimately not pressed, and the first affidavit was admitted into evidence.
The second affidavit was admitted provisionally (with no subsequent objection), with leave granted to the Minister to make written submissions generally, and specifically in relation to the reading of the second affidavit.
The supplementary affidavit was also provisionally admitted (with no subsequent objection), and the respondent reserved the right to require the applicant for cross-examination on that affidavit. That was ultimately not pressed.
Before the Court following the Show Cause Hearing
On 28 September 2011, after submissions were put, the show cause hearing was adjourned to a date and time to be fixed and directions were made for the filing of further written documents and submissions. Directions were also made that provided for the respondent to notify the applicant’s solicitors, by 30 September 2011, if the applicant was required for cross examination. On that date, the respondent advised that the applicant was not required for cross-examination.
Directions were made for the applicant to file written submissions on relevant matters raised at the hearing by 24 October 2011, particularly:
“ a.the issue of satisfactory explanation for the applicant’s delay in filing her application in this Court and any relevant authorities pertaining thereto;
b. ground one (1) in the Application filed on 7 September 2011 (‘the Application’);
c. an explanation of how ground two (2) in the Application, subject to any amendment pursuant to paragraph three (3) herein, is to be understood in the context of ‘an arguable case’ pursuant to reg.44.12 of the Federal Court Rules 2001 (Cth) and s.477 of the Migration Act 1958 (Cth) (‘the Act’);
d. the provisional admission of the first applicant’s second Affidavit on 6 September 2011 and filed on 7 September 2011 and her Affidavit sworn on 27 September 2011and handed to the Court today (‘the provisionally admitted affidavits’); and
e. any reply to the first respondent’s submissions made to the Court today.”
The applicant’s written submission were received and, in compliance with the directions made on 28 September 2011, the respondent filed and served written submission in reply on 7 November 2011. The applicants also filed an amended application on 24 October 2011 (leave granted earlier).
The respondent sought leave to file an affidavit, which the applicant ultimately consented to, and consent orders were made in Chambers on 28 November 2011 providing for same. The affidavit of Laura Francis Weston, affirmed on 4 November 2011, was filed on 1 December 2011.
Subsequently, both the applicants and the first respondent advised that they did not seek any further hearing in this matter. They advised that they were content to have the matter proceed to consideration of judgment. As such, the Court relied upon the documents and submissions before it (as detailed above).
The Amended Application
The amended application is in the following terms:
“ Ground 1
The Tribunal’s finding of its satisfaction which caused it to refuse to grant a protection visa to the applicant, pursuant to s.65(1) of the Migration Act 1958 (Cth) was irrational, illogical and not based on findings or inferences of fact supported on logical grounds.
Particulars:
(a) The Tribunal accepted that the applicant may have received three telephone calls from the military while working at Vodafone in Fiji.
(b) The applicant claimed that after the first telephone call from the military her house was burnt.
(c) The applicant claimed that her house caught fire because something with flames was thrown into her bedroom window.
(d) The Tribunal made no finding that the house fire was not started in the way the applicant claimed.
(e) The applicant claimed that shortly after the fire, she received a second telephone call from the military to the effect: ‘This is what you get for not following orders.’
(f) The Tribunal made no finding that it did not believe the military said what was alleged in the second telephone call.
(g) The Tribunal declined to accept that the applicant’s house was burnt by the military for the reasons claimed although the Tribunal accepted it may have burnt down for other reasons.
(h) The Tribunal refused to allow the applicant extra time to obtain documentary evidence from Fiji about the house fire.
(i) In the absence of findings in (d) and (f) and the refused in (g) above, the Tribunal’s finding of its own satisfaction, was irrational, illogical and not based on findings and inferences of fact supported on logical grounds.
Ground 2
The Tribunal erred by failing to deal with the evidence in the following ways:
Part A: The Tribunal failed to refer to the evidence or any other material on which a finding of fact was based contrary to s.430(1)(d) of the Migration Act 1958 (Cth); and
Part B: The Tribunal failed to set out its findings on material questions of fact contrary to s.430(1)(c) of the Migration Act 1958 (Cth).
Particulars:
Part A:
(a) The Tribunal made a finding that it declined to accept that the applicant’s house was burnt by the military for the reasons claimed although the Tribunal accepted it may have burnt down for other reasons.
(b) The Tribunal failed to refer to any evidence or any other material on which the finding in (a) above was based.
Part B
(a) The Tribunal accepted that the applicant may have received three telephone calls from the military while working at Vodafone in Fiji.
(b) The applicant claimed that after the first telephone call from the military her house was burnt.
(c) The applicant claimed that her house caught fire because something with flames was thrown into her bedroom window.
(d) The Tribunal made no finding that the house fire was not started in the way the applicant claimed.
(e) The applicant claimed that shortly after the fire, she received a second telephone call from the military to the effect: ‘This is what you get for not following orders.’
(f) The Tribunal made no finding that it did not believe the military said what was alleged second telephone call.
(e) The failure of the Tribunal member to make any findings as to whether the evidence in (c) and (e) was correct or credible was a failure to make findings on material questions of fact.”
Consideration: The Extension of Time
Section 477(1) of the Act provides that applications made to this Court for judicial review of, relevantly, a Tribunal decision must be made within thirty five days of the date of the Tribunal’s decision.
This time may be extended, on application, if the Court is satisfied that it is in the interests of the administration of justice to do so (s. 477(2) of the Act). In the current case the applicants have made such an application (s.477(2)(a)).
I have previously considered the elements relevant to such consideration (see, for example, SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44] and SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23]):
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.
The Tribunal’s decision was made on 2 March 2011. The application to the Court therefore should have been made by 6 April 2011. It was made on 7 September 2011. That is five months out of time.
The applicant’s relevant evidence is that she “received” the Tribunal’s decision on 7 March 2011. She was advised by a number of people in the Fijian community that her “best option” was to request intervention by the Minister ([6] of her first affidavit). When this approach was unsuccessful at the end of May 2011, the applicant said that she consulted a solicitor who again wrote to the Minister on 28 June 2011. The applicant claims that this request was reported as being unsuccessful on 18 July 2011. It was not until 23 August 2011 that she consulted her current solicitor and the present proceedings were subsequently filed (at [8]-[13] of her first affidavit).
The applicants’ submission in this regard is that the applicant acted with expedition based on her understanding of relevant events and once advised of the availability of judicial review acted promptly. That is, the applicant did not know that she could come to Court until she was informed of this “action” by her current solicitor on 23 August 2011 (see [13] of her first affidavit). She then acted well within thirty-five days by making her application to the Court within fifteen days.
I cannot accept this submission as providing a satisfactory explanation for the delay in light of all the evidence before the Court.
First, the applicant asserts in submissions that she only became aware of the option of applying for judicial review after she had sought Ministerial intervention on two occasions. Therefore her pursuit of this course cannot be seen as some conscious choice between judicial review and Ministerial intervention. That is, it is not open to say in these circumstances that there was any inference that this was done because of any view that there was no legal error in the Tribunal’s decision.
The evidence of Ms Weston however is that when notification of the Tribunal’s decision was sent to the applicants’ on 3 March 2011, this notification enclosed the Tribunal’s decision record and a document headed “Information About Tribunal Decisions” (see annexure “B” to the affidavit of Ms Weston of 4 November 2011).
This document (on its front page – see p.7 of the affidavit of Ms Weston) states:
“If you think the decision of the Tribunal is wrong in law, you may consider seeking judicial review in the Federal Magistrates Court of Australia.”
The applicant’s evidence before the Court is that she has some capacity in the English language. At the hearing with the Tribunal, even though the Tribunal made every effort at the beginning of the hearing to adjourn to enable an interpreter to be present, the applicant and her husband insisted that the hearing continue in the absence of the interpreter (see T1 to T3). The applicant told the Tribunal (T2, line 31 to 33):
“I can understand English. I can speak and understand. It’s just if there’s any words that you use that I will not be able to understand then he can help.”
Further, none of the applicant’s affidavits before the Court bear any indication that she required the services of an interpreter in their making.
Before the Tribunal the applicant gave evidence that she had prepared the application for a protection visa (T5, line 18) and that she did not receive any assistance ([34] at P6 of the Tribunal’s records in annexure “A” to the affidavit of Ms Weston of 4 November 2011).
An inference can therefore be drawn that when the applicant received the notification from the Tribunal, which she says in her evidence she received on or about 7 March 2011 ([4] to her first affidavit), she had the opportunity to discover that she could have sought judicial review of the Tribunal’s decision at that time.
Second, the applicant’s first affidavit, on which the relevant submissions are now based, is clearly carefully drafted. There is no implication of any impropriety in this regard. What may be drawn from this is that the applicant’s evidence (that she sought advice from the Fijian community shortly after 7 March 2011 “… as to what other options …”[emphasis added] (at [5]) were available, and that they told her that the “… best option” (at [6]) was to request Ministerial intervention) is consistent with her having known (at least, by the time of the Tribunal’s notification, when read with [34] – [39] above) of the “other option” of coming to Court.
Third, her evidence at [10] of her first affidavit is that she sought advice from her first solicitor, Mr Rigas, on or about 7 June 2011 and “… that was the first time I obtained any legal advice in relation to my protection visa application.”
That indeed may have been the case as it relates to legal advice. It says nothing about whether she knew of the “option” of applying to the Court, or whether any discussion of it took place.
Further, her evidence (at [13]) that “on or about 23 August 2011, I sought advice from my current solicitor …” does not say that this was the first time that she knew of the “option” of coming to Court.
In her supplementary affidavit, made on 27 September 2011, the applicant states that on or about 7 June 2011 she sought advice from a solicitor in relation to her protection visa application and the Tribunal’s decision. Relevantly, she says (at [2]):
“… at no stage did Mr Rigas [the solicitor] either discuss or suggest that I had an opportunity to seek judicial review of the Tribunal decision through the courts.”
This evidence plainly did not say that, at that point, she did not know of this “option”. Merely that Mr Rigas did not discuss it with her.
In the following paragraph (at [3]) the applicant says:
“I did not become aware of the option to seek judicial review of the Tribunal decision until I consulted my current solicitor.”
The Minister did not require the applicant for cross examination. Her evidence in this sense remains untested and unchallenged. Nonetheless it is difficult to accept this part of the applicant’s evidence in light of the Tribunal’s communication to her as attached to the letter of notification of the Tribunal’s decision, a letter which is also in evidence before the Court and, in a real sense, speaks for itself.
The applicant has made no attempt to explain, or even make reference to, this letter. There is nothing from her to say she did not understand the advice or even how to go about putting it into action.
I earlier set out references to the applicant’s capacity in English. In her application for a protection visa, a copy of which is annexed to her supplementary affidavit, the applicant responded to a relevant question that she could speak, read and write English.
In the absence of any explanation by the applicant as to whether she read the Tribunal’s advice of the “option” of judicial review it is difficult to accept her evidence that she only learned of this option at the time of consulting her second (and current) solicitor. That is, on or about 23 August 2011. This is particularly so as her evidence in reference to the events of, and following, March 2011 talks of the “best option”.
The application for judicial review should have been made on 6 April 2011, so as to remain competent within the requirements of s.477(1) of the Act. In any event, the applicant says she received the Tribunal’s decision on 7 March. That was well within the thirty five day period. The period between that day and the date on which she saw Mr Rigas, her first solicitor, is just short of two months. I accept that the Tribunal’s relevant advice would have made the applicant aware of the option of judicial review as at 7 March 2011. In light of the other evidence before the Court, on balance, I do not accept the applicant’s evidence that she did not know of the option of judicial review until August 2011.
In this light, I agree with the Minister that the circumstance of this case are closer to those as found in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 than those in SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340. The applicant’s latter assertion (that she did not know of this “option” of judicial review) stands in contradiction to her own other evidence that on receipt of the Tribunal’s decision (which included the advice as to judicial review), she consulted members of the Fijian community and decided the “best option” was to seek Ministerial intervention.
The exercise of this choice in the circumstances is not a sufficient or satisfactory explanation for the delay in seeking judicial review (Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 per von Doussa J at [5]).
This position is even stranger when regard is had to the period between her consulting Mr Rigas (7 June 2011) and the receipt of advice from the Minister’s department as to the lack of success in her Ministerial intervention request (18 July 2011). This additional period of some six weeks delay was the result of acting on advice of the applicants’ lawyer. While the applicant says he did not discuss judicial review with her, there is nothing to suggest, nor does the applicant assert, that Mr Rigas acted negligently or incompetently in this matter.
Here the applicant’s choice to pursue Ministerial intervention was, with her lawyers involvement, a “seemingly informed choice”, even if it were to be accepted (which I do not) that the applicant was “unaware at that time” of her right to seek judicial review (see MZYFL v Minister for Immigration and Citizenship [2010] FCA 717 per Jessup J at [7] as to an analogous observation).
The applicant’s evidence is that she then consulted her second lawyer on 23 August 2011. The period between 19 July 2011 (the day after receipt of the advice of the unsuccessful Ministerial intervention) and 22 August 2011 (the day before consulting the current solicitor) is, as the Minister points out, a period of thirty five days. That is, the very period the legislation allows for the making of such applications.
Nowhere in her evidence does the applicant proffer any explanation for this period. In circumstances where a considerable time had already elapsed since the Tribunal’s decision, it would be expected that the applicant now (and with the benefit of legal advice in these proceedings) would have proffered some explanation for the passage of this time if one was available. She did not. This period also remains without satisfactory explanation.
Finally, it can be accepted that the applicants’ current solicitors did act with expedition following the applicant’s approach on 23 August 2011.
In all these circumstances, therefore, the period from about 7 March 2011 to 22 August 2011 (a period of about five and a half months) remains without satisfactory explanation. The decision to seek Ministerial intervention instead of pursuing the “option” of coming to this Court is not a sufficient reason to justify the delay (Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J and Plaintiff M90 /2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J)
This is an element weighing against the exercise of the discretion to extend time pursuant to s.477 of the Act. But the critical element in the circumstances of this case that weighs against the applicants is that the grounds of the application, as amended, lack such merit as to cause the Court to extend time.
The applicants have not sought any further opportunity to expand and further explain the grounds of the substantive application as amended. As such, it must be taken that what the applicants put before the Court, including lengthy oral submissions by Ms Baw on the applicants’ behalf, represented the height of the applicants’ case in asserting jurisdictional error on the part of the Tribunal.
Ground One of the Substantive Application
In ground one the applicants’ assert that the Tribunal’s decision was irrational, illogical and not based on findings and inferences of fact supported on logical grounds.
The particulars to this ground are set out at [25] above.
In essence the applicants’ argument is that the Tribunal’s lack of satisfaction that any of the applicants were persons to whom Australia had protection obligations was irrational, illogical and not based on findings and references of fact supported on logical grounds because:
1)Given other findings made by the Tribunal, it made no finding that the applicant’s house fire was not started in the way claimed by the applicant.
2)It made no finding that the military said what was alleged by the applicant in telephone calls following the fire.
3)The Tribunal refused to accept that the applicant’s house was burnt down by the military even though it accepted that it may have been burnt down for other reasons.
A substantial part of the applicants’ submissions focused on the appropriate test that this Court should apply to the questions of illogicality and rationality.
In this regard the applicants rely, it must be said somewhat torturously, on the Full Federal Court in MZXSA vMinister for Immigration and Citizenship [2010] FCAFC 123 (“MZXSA”) for the proposition that the door is still open for authority to settle the question as to the appropriate test to be applied for illogicality and irrationality.
In essence, the applicants’ argument is that two tests were put forward by the joint judgments of Gummow ACJ and Kiefel J, and by Crennan and Bell JJ in SZMDS. Heydon J did not put forward any relevant legal test. Where this takes the applicants in terms of the applicable test was not really made clear in submissions.
It is the case that there were two joint judgments. As can be respectfully seen from MZXSA (at [43]-[44]), the relevant difference in approach was that Gummow ACJ and Kiefel J (at [44] of MZXSA):
“… held (at [53]) that the Tribunal had made a critical finding by inference that was not supported on logical grounds. On that basis their Honours held (at [54]) that the Tribunal’s decision should be quashed. The essence of their Honours’ reasoning was that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, without more.”
Crennan and Bell JJ (at [43] of MZXSA):
“… in a joint judgment, held (at [135]) that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal. On that basis their Honours held that the appeal should be allowed, although accepting (at [132]) that illogically or irrationality may constitute a basis for judicial review in the context of jurisdictional fact-finding. The essence of their Honours’ reasoning was that a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. In this discourse the differences between the separate notions of ‘logical’ reasoning and ‘rational’ reasoning, and the constraints that each separately might impose on jurisdictional fact-finding, were not discussed by their Honours.”
It is the case that Heydon J found that the Tribunal’s reasoning in SZMDS “… was not illogical” and therefore “… it is not necessary to determine any of the questions of law about which the parties were in controversy” (at [87]).
In SZQSS v Minister for Immigration & Anor [2012] FMCA 31 I took the respectful view that nonetheless the approach of Heydon J was “sympathetic” to the test enunciated by Crennan and Bell JJ (at [33] - [34]:
“… in addressing the Federal Court’s reasoning as to how the decision-maker in SZMDS was said to have reasoned illogically, Heydon J said (at [78])
‘The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could be said to reveal an absence of any basis whatsoever for her conclusion.’
In my respectful view, the reference here to ‘minds might differ’ is sympathetic to what was said by Crennan and Bell JJ at [131].”
But the resolution of this case does not depend on the adoption of either of the two tests of the joint judgments in SZMDS. There are two reasons for this. The first is that on either test the Tribunal’s reasoning, when the Tribunal’s decision record is, at least fairly, read, was neither illogical nor irrational, or for that matter unreasonable.
The second is that I am guided and directed by the approach taken by the Full Federal Court in MZXSA. Having noted the “evident differences” in the two joint judgments, the Full Court said (at [45]):
“Given this difference it is desirable to consider at the outset whether the Tribunal’s decision in the present case was affected by irrationality or illogicality in the precise way in which the appellant contends it to have been. It is only if the Tribunal’s decision was so affected that it becomes necessary to consider further the difference between the two approaches in SZMDS and the consequences that those approaches may have in the present case.” [Emphasis added]
I note, respectfully, that this mirrors the approach taken by Heydon J to the resolution of the case before the Court in SZMDS when he said towards the beginning of his judgment (at [59]):
“It is desirable to consider the nature of the persecution that the first respondent claimed to fear, and the reactions of the Tribunal member to the first respondent’s claims in respects other than the two particular issues on which the appeal turns, before going to those two issues.”
The crux of the applicants’ attack in the current case is that there was in the Tribunal’s reasoning “an absence of logical connection between the evidence as a whole and the reasons for the decision” (with reference to SZMDS at [135]).
I disagree for the reasons set out below.
In considering the Tribunal’s approach it is important to remember a number of things.
First, Tribunal decisions are not meant to be “to 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” (Wu Shan Liang at [31]). They are to be read at least fairly, and meaning is to be determined contextually and holistically.
Second, the Tribunal’s obligation in the conduct and disposition of the review of the delegate’s decision is to deal with all claims, and aspects of claims, expressly made, and claims clearly arising from the circumstances (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2)[2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs[2001] FCA 1802; (2001) 194 ALR 244 (“Htun”)). Plainly the Tribunal cannot deal with a claim subsequently articulated before the Court by the applicants’ legal representatives, but not one expressly made or clearly arising from what is before the Tribunal.
Third, the Tribunal does not bear any onus to “disprove” an applicant’s claims or evidence. It is for the applicant to put forward claims and evidence such that the Tribunal is satisfied that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees[1]. In these circumstances, only, must a visa be granted (ss.65 and 36(2) of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention ”).
Fourth, nor is there any obligation on the Tribunal to make out an applicants’ case for them (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). Nor is there any general obligation to conduct enquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 1595 at [26]). Although there may be an obligation to make an obvious inquiry about a critical fact (Minister for Immigration & Citizenship v SZIAI[2009] HCA 39; [2009] 259 ALR 429).
In the current case the applicant’s claim to fear persecutory harm if she were to return to Fiji in the foreseeable future (on which the remainder of the applicants’ depended) was said to emanate from the Fijian military, who were synonymous with, or representative of, the undemocratic government in Fiji. (See annexure “A” to the applicant’s supplementary affidavit, being a copy of the application for the protection visas – at items 42 and 43). The applicant described the government of Fiji as being a “military government”.
There was nothing in the applicant’s claims that could be said to be any expression of harm emanating from any other source. Nor could this be seen to clearly arise in the circumstances presented.
The question that the Tribunal was jurisdictionally charged to answer was whether the applicant, on the evidence presented, had a well-founded fear of persecution for a Convention related reason.
On the evidence presented the applicant said she feared serious harm, that is persecution, if she were to return to Fiji in the foreseeable future. The only source from which such harm was said to emanate was the military.
In support of this claim the applicant pointed to what she said was an instance of past harm directed to her and her family, namely that the military burnt the family’s house because she did not cooperate with the military. There was no suggestion whatsoever from the applicant, nor did her evidence allow for the possibility, that someone else had burnt her house.
This latter sits at the heart of the applicants’ complaint now in this regard. That is, there was no basis for the Tribunal’s finding that others burnt the house. What the applicants’ attack fails to recognise is the “two edged sword” nature of this attack. To the extent that the applicants’ submission relied on the argument that there was no evidence to support a finding that someone else burnt the house, it is a confirmation that the applicants’ claim was limited to the assertion that the military, and only the military, burnt the house. The Tribunal squarely dealt with this claim. In [99] (at P15) of its decision record the Tribunal found that it did “… not accept that the first named applicant’s house was burnt for the reasons she claims by the military …”. The Tribunal gave reasons for this which were probative on the material before it.
There is no illogicality or irrationality in the Tribunal’s reasoning here. The applicant gave her evidence and her explanation as to why this particular aspect of her claim was raised for the first time at the hearing before the Tribunal, and not on any earlier occasion available to her. The Tribunal’s reasoning was that, given the significance of such an event, and given that the applicant was now saying that this was one of, in essence, two incidents that impelled her and her family to leave Fiji she would have included it in her application for protection or in her evidence before the delegate ([99] at P15).
There is nothing illogical or irrational about this, neither on the test formulated by either of the two joint judgments, or in the approach taken by Heydon J in SZMDS, or that of the Full Court in MZXSA. That alone is sufficient to deal with this aspect of the applicants’ ground now. Given there was nothing illogical or irrational with the finding at [99] (at P15) and this finding dealt entirely with this aspect of the claims as made, then the applicants’ particular in this regard is not made out. Therefore the applicants’ reliance on what the Tribunal said at [100] (at P15) and [101] (at P16) does not assist the applicants. Relevantly:
“She indicated that she would provide documents that the house was burnt and of her miscarriage and requested a further two weeks, after the initial grant of one week to provide documents that these occurred. The Tribunal did not give the applicant the further time as even if the Tribunal accepts her house was burnt and she miscarried it does not accept it was for the reasons she claims and was burnt by the military. The Tribunal does not accept she is a witness of truth that her house was burnt by the military for the reasons she claims or that she suffered a miscarriage because her house was burnt by the military or because of her refusal to hand over information while at Vodafone or because of her involvement in activities with the Methodist church or protesting in contravention of the banning of the Methodist Church conference.
Although it has doubts as the first named applicant had not been credible as to her other claims, even if the Tribunal accepts she received phone calls from the military in 2008 while working at Vodafone it does not accept she is now of any interest to the military for her refusal to give that information. It is her claim that on three occasions while working at the Vodafone call centre, the military requested information of the calls made by SDL member, and that she was threatened as she did not give the information. It is her claims she was one of many called in the call centre as it depended on who was on duty. As the Tribunal had discounted her house was burnt by the military for the reasons she claims(although accepting her house may have burnt for other reason, but not by the military for the reasons she claims), and it is her evidence that nothing further has happened to her in Fiji since that time in 2009 and 2010, the Tribunal finds that as a result the first named applicant is not of any interest to the military. The Tribunal may expect that if she was she would have been questioned or pursued directly outside her work in the later part of 2008 (after the calls were received), 2009 or 2010.”
The applicants now in submissions rely on the proposition that what the Tribunal said ([100] at P15 to [101] at P16) allows that the Tribunal did accept that the house burnt down or at least that, on balance, it cannot be ruled out that it did so accept.
The paucity of the applicants’ attack is revealed in a number of ways. First, given what is set out above, allowing for a moment that the applicant is correct in reading the Tribunal’s analysis in this way (which for the reasons set out below, I do not agree), any such finding would be irrelevant to the jurisdictional task set for the Tribunal. That is the task to deal with the claims as put. As set out above, the finding that it was not burnt by the military is sufficient to dispose of this aspect of the claim.
Second, and separately, when the Tribunal’s decision record ([100] at P15) is plainly, let alone fairly, read it cannot be said at that part that the Tribunal made any critical finding that, on either legal test or approach, was irrational or illogical.
What the Tribunal was plainly saying, and indeed was seeking to emphasise, was that if the military did not burn the house down, and it already had given cogent and probative reasons for this, then in the circumstances it was not necessary to give the applicant more time to provide documents that her house had burnt down. “Even if” these documents were to show that the house was burnt, given that the applicant did not assert that they would show that the military burnt it, then these documents were irrelevant in that they did not fully support the claim as made, that is the claim the house was burnt down by the military.
The use of term “even if”, and the Tribunal’s surrounding expression may at one level be described as infelicitous. But it is certainly not ambiguous such that the meaning cannot be fairly discerned. “Even if”, in context, is not an express finding that the house burnt down, but that even an expression of the applicants’ case at its highest (the house being burnt) does not mean that the Tribunal was persuaded on the evidence that it was burnt by the military.
The words used by the Tribunal in parenthesises in [101] (at P16) are clearly infelicitous and potentially misleading. Why the Tribunal felt compelled to express as a finding the acceptance of the house being burnt is a question that arises from the applicants’ submissions. It provides the “basis” in the applicants’ representatives’ submissions now of the attack of irrationality and illogicality.
That is, it is said, at one part of its analysis the Tribunal clearly says it does not accept the house was burnt, and yet at another that it was. The latter it is said was done on the basis that it was burnt by someone other than the military. The absence of a probative basis for this reveals the “absence of a logical connection between the evidence and the reasons for the RRT’s decision” (see per Gummow ACJ and Kiefel J at [135]).
Again, the premise in the applicants’ submissions is not available on, at least, a fair reading of what the Tribunal said. The focus of the claim to fear persecutory harm is the military. The Tribunal’s reasoning at [101] (at P16) was that the house was not burnt by the military (as previously found) But even if it were to be accepted that it “may” have burnt down for some other reason, if it was not done by the military, then even if it had been burnt it would not assist in revealing a basis for persecutory harm in the past because it would logically, in the circumstances, have had to have been burnt down by someone else. If it was not the military then no fear of persecutory harm arises on the claims as made.
The applicants’ reliance on the argument that the Tribunal accepted (at this part) that the house burnt down ignores and misunderstands that the critical element in all of this is the military, not the burning down of the house.
The applicants’ argument now that there was no probative basis in the evidence to found a finding that it was burnt “for another reason” denies the logic of the Tribunal’s analysis as set out above.
In any event, and separately, it is logical and rational to say that if it was not burnt by the military for the reasons given by the applicant then it “may” have been burnt for other reasons. But this is irrelevant. The Tribunal found it was not burnt by the military. Nothing subsequently said reveals irrationality or illogicality.
Further, a note needs to be made of the difference as between this particular (ground 1(d)) as expressed in the amended application and as the case was argued in submissions before the Court. As set out above the submission focused on the house being burnt by the military and the Tribunal’s alleged finding it was burnt “for other reasons”. This is the finding, as set out above, which the applicants say in submissions was “problematic”.
However the particular asserts that the Tribunal, in its analysis, failed to make a finding that the “house fire was not started in the way the applicant claimed”. This appears to rely on the applicant’s evidence before the Tribunal that, in 2008 (“I cannot get the exact date …”) (T23, line 22) someone “… threw something at the house” (T24, lines 3 to 5).
This particular ignores the plain finding made by the Tribunal that it did not accept that the house was burnt for the reasons given by the applicant. The focus again was on whether the military, the only claimed source of persecutory harm, was responsible. Whether someone threw something at the house, or whether it was started in some other way, was not in the circumstances a finding that the Tribunal needed to make. Once it had reached the point that the military had not burnt the house down, it was irrelevant (to the question that the Tribunal was jurisdictionally charged to answer) to make a finding as to how the fire was started.
Finally, I note, with reference to the specific point of the fire, the applicants’ submission that the applicant’s “mere failure” to refer to the fire in her “original statement” was not a basis for the Tribunal to draw a distinction between the “fact” of the fire (which it accepted had occurred) and the “reason” for the fire (which it did not accept).
This submission does not rise above a “mere” challenge to the Tribunal’s findings of fact. These findings, as set out above, were an exercise within jurisdiction. The submission seeks impermissible merits review (Wu Shan Liang).
In terms of the charge of illogicality and irrationality, it is without merit. Not only did the applicant not raise the house fire in her initial written statement, she made no mention of it when interviewed by the delegate (see [66] at P9). The Tribunal was “surprised” by this.
In the circumstances the Tribunal’s surprise was entirely logical and rational. While the applicant made claims to fear harm from the military regime these were, for a significant part, expressed in the general. That is, a military regime that did not respect human rights.
Up until the Tribunal hearing there was, in effect, only one instance of harm, specific to the applicant, put forward by her. That is the threatening phone calls from the military while she worked at Vodafone. Telephone calls precipitated by her refusal to give information sought by the military.
It was at the hearing that the applicant, for the first time, mentioned, in the context of the telephone calls, that her house got “partly burnt down”(see T6, line 27; T19, line 18 and T23, line 13-14). The applicant gave an account of this (T23, line 16 to T24, line 16). It is clear that the applicant sought to link the fire to the telephone calls from the military.
What follows in the transcript of the hearing provides the probative basis for the Tribunal’s disbelief that the house was burnt by the military (at T24, line 18 to T25, line 1):
“TRIBUNAL MEMBER: So this seems like a pretty important event. I mean, why wouldn’t you mention that in your written statement or to the department at the interview?
APPLICANT: Yes
TRIBUNAL MEMBER: Just – now, I want to hear.
APPLICANT: When I came in 2010 I was still traumatised, I wasn’t in the right state of mind and plus when we came over we didn’t receive any support. There was no-one to advise me as I was doing – filling out the form and application by myself and I couldn’t remember all the details. So when I met my husband’s cousin…
TRIBUNAL MEMBER: So let me – so you were saying that you were traumatised from this event in 2008?
APPLICANT: That’s right.
TRIBUNAL MEMBER: and you couldn’t – didn’t understand the forms, or your were…
APPLICANT: When I came here.
TRIBUNAL MEMBER: Not understand, that your were traumatised, and you didn’t have any help?
APPLICANT: I didn’t have any help or support on where to go or what to do. That was when I reached Australia.”
The Tribunal considered the applicant’s explanation for the failure to mention the house fire before, but was not persuaded ([99] at P15). The Tribunal’s reasoning, entirely logical and rational on any of the two relevant tests, or the approach otherwise employed, was that, in context of the threatening calls from the military, the house fire, allegedly done by the military, is of “such significance” that it could not accept that the military burnt her house given her delay in raising this matter.
The second particular in ground one is that the Tribunal made no finding that it did not believe the military said what was alleged in the “second” of a number of calls the applicant claimed to have received from the military while working at Vodafone (at particular (f)).
In her initial written statement of claims to fear persecutory harm the applicant claimed that while working at Vodafone she received “a lot of threatening calls from the military” (see annexure “A” to the applicant’s supplementary affidavit at item 42 of the application for the protection visas).
At the Tribunal hearing the applicant gave evidence that she received these telephone calls from the military when working at Vodafone in 2008. She described them as the “three critical calls” (see T20, T2, and T23, line 4). All the telephone calls were said to be “pretty much the same” (T23, line 7-9). It was during this part of the hearing that the applicant gave evidence about the house being burnt “after the first call that I received probably in April or May” (T23, line 30-31).
The applicant’s evidence to the Tribunal (although it must be said not given without some need for the Tribunal to clarify dates and sequence of events) was that she was asked by the military to provide confidential information about a Vodafone customer, she refused, she was threatened over the phone, her house was partly burnt by the military ,and then two days later she received a call from an “unknown number, with no caller ID” (T24, line 10), and the caller said “… this is what you will get for not following orders” (T24, line 14 – 15).
The applicant’s attack now is that the Tribunal made no finding that it did not believe what the military said in the “second” call. With reference to the transcript of the hearing this appears to be therefore a reference to the first of the threats that the applicant received. However in submissions it appears this was a reference to the applicant’s claim that suggested the military were responsible for the fire (see for example the applicants’ “show cause submissions” at [32](d)).
In any event, whichever of the two it is, or both, the applicants’ particulars in this regard do not support the applicants’ ground for the same reasons already set out above in relation to the house fire.
Both the calls and the fire were presented by the applicant as instances of past harm, and why she now says she fears persecutory harm on return to Fiji. The applicants now say that a part of the illogicality and irrationality in the Tribunal’s decision stems from the Tribunal’s acceptance that the calls to Vodafone were made by the military, yet it made no finding in relation to a particular call which suggested that the military was responsible for the house fire.
The applicants’ attack in this regard, again, misunderstands the Tribunal’s reasoning, at least on a fair reading.
In the current case the Tribunal has adopted an approach that is, in my view, of a lesser quality in terms of clear decision making, and at first glance leaves the door open to the very attack employed by the applicants now. [It must be said that Tribunals should focus on making clear, firm, and precise findings of fact that do not require a fair reading to discern meaning.] Did the applicant receive calls from the military or not? This is the question arising from, and as a consequence of, the applicants’ submissions.
However, there is a difference between the Tribunal making a finding that the calls were made, and saying that “even if” the calls were made they do not assist the applicant, particularly when this latter is said in the context of the Tribunal expressing doubts as to the applicant’s other claims (see [101] at P15 to P16).
In the current case however, on a fair reading, the Tribunal’s analysis proceeded as follows. The Tribunal had doubts generally about the applicant’s credibility, in large part said to arise from its analysis in rejecting the claim that the military were responsible for the house fire.
The next step in the “logic” of the analysis requires some care. “… [E]ven if the Tribunal accepted she received the calls …” in context, and fairly read, is not an express finding that she did receive the calls. Rather, in the context of doubt about the applicant’s credibility, the Tribunal was saying that “even if” her claims about the telephone calls were true, that is, taking the applicant’s claim in this regard at its very highest, it would not reveal a basis for future persecutory harm. This is because, for reasons given which are probative of the evidence before it, the Tribunal found the applicant was not of any interest to the military since that time, at the time of its decision, and for the foreseeable future.
The probative basis for this was the applicant’s evidence that, since the events of 2008, nothing further happened to her in Fiji in 2009 and 2010 ([101] at P16). The Tribunal was made further confident in this finding by the applicant’s delay in not applying for protection when she earlier visited Australia twice (once in 2009 and then again in 2010, see [103] at P16). Her return to Fiji with her children was seen by the Tribunal as an indication that she did “not hold a genuine fear of persecution” ([104] at P16) at least by 2010, if at all. This approach to the evidence is made clear at the first sentence of [105] (see at P16).
The “logic”, the “rationale”, of the Tribunal’s relevant findings is that even if the applicant’s claims about the calls were to be accepted, there is no well-founded fear of persecution for a Convention reason if she were to return to Fiji. On this analysis, whatever else may be said, whatever the context of the telephone calls, the applicant’s claims did not call on Australia’s obligations to protect her, and her family, as refugees.
There is no illogicality or irrationality in rejecting that the house was burnt by the military, and then proceeding on the basis that, “even if” the calls were made, as the applicant said, following these events any fear was not well founded. Nor indeed was there any basis to allow, in this light, that the fear could even be described as a subjective fear, given the applicant’s subsequent actions.
The Tribunal made no express reference to a finding about what the applicant said the military caller told her on the phone in 2008 because, in this regard, it proceeded on the express basis that “even if” the calls had occurred as claimed, then the other factors to which it referred meant it could not be satisfied that a well founded fear of persecution was made out.
On none of the bases put forward does this reveal illogicality or irrationality. The Tribunal’s analysis was probative of the evidence before it. There was no absence of a logical connection between the evidence and the reasons for its decision. While minds may differ the Tribunal’s decision was open to it on what was before it.
How the Tribunal’s refusal to give the applicants further time to provide further documents to the Tribunal in relation to the house fire itself revealed illogicality or irrationality was never satisfactorily explained (with reference to particular (b) of ground one) (see at [91] of P14).
The basis of the Tribunal’s refusal in this regard is dealt with above. If this is some attempt, by stealth, to assert that the Tribunal failed in its procedural fairness obligations, then no such ground was pleaded. What remains is that it was not illogical or irrational of the Tribunal not to give the applicant a further opportunity in this regard because any such opportunity would be a futile exercise given its finding that, whatever else, the military was not responsible for the fire. Even if the house had been burnt, which is the matter on which the applicants’ sought further time, unless there was some document that said the military did it (this was not put to the Tribunal), then there was nothing of relevance and of utility for the applicants to produce by way of documentation.
It was never made clear or satisfactorily explained how particular (h) was said to reveal illogicality or irrationality in the Tribunal’s decision. This particular clearly relates to the applicant’s request at the hearing for further time to support her claim that her house had burnt down (see [100] at P15 and T27).
The Tribunal refused extra time in this regard because the applicants’ request was to provide documents from the “fire brigade” as to the house fire. As the Tribunal told her: “… whether your house was burnt down or not, that’s not the issue; it’s whether the house was burnt down by the military” (T27, line 14 to line 15).
In submissions put in reply to the Minister’s submissions the applicants argue that the Tribunal’s “failure” to make a finding as to who burnt the house down “for other reasons” offends the duty to consider all integers of an applicant’s claims as explained by Allsop J (with whom Spender J agreed) in Htun at [259]. The applicants’ submissions were that the cause and reason for the fire was a component integer of the applicant’s claims and it was “overlooked” by the Tribunal.
A number of matters arise. First, the applicants did not plead any such ground in the application. Nor did they take advantage of the opportunity provided by the leave of the Court to file an amended application to do so.
Second, it must not be forgotten that these proceedings also involve an application for an extension of time within which to bring the substantive application. In the exercise of the Court’s discretion it cannot be in the interests of the administration of justice to further extend time simply to allow yet another amended application so that this “argument” can be properly pleaded. While the hearing was one that involved a “show cause” issue, the applicants, represented by counsel and a firm of solicitors, have had more than a reasonable time to assert this ground.
Third, and in any event, the “submissions/ground” is without merit.
It is the case, as submitted by the applicants, that a failure to deal with a claim, or one of its component integers, leads to jurisdictional error. But the applicants’ submissions appear to misunderstand what is meant by an “integer of a claim”.
The applicant’s claim to fear persecutory harm was that she had come to the adverse attention of the military regime in Fiji. Integers of this claim were that the military had made threats to her over the phone because of her refusal to divulge confidential information and that the military had (partially) burnt down her house.
The applicant’s evidence therefore was that the cause and reason for the fire to her house was her refusal to divulge to the military the information that it wanted. The Tribunal’s finding that the military did not burn her house plainly encompasses that claim, and the integers of that claim.
As set out above, the Tribunal’s observation, or even if it were to be characterised as a finding, that it may have been burnt by someone else for “other reasons” is superfluous to the claim to fear persecutory harm and each integer of that claim.
The alleged failure of the Tribunal to make findings in relation to the matters at particulars (d), (f) and (g) of ground one is not made out. The Tribunal’s analysis was not irrational or illogical in the way alleged on any test or approach established by relevant authority.
In all, therefore, ground one of the amended application, as particularised and as explained and “expanded” by submissions, is without merit such as to weigh against the extension of time being granted in the interests of the administration of justice.
Ground Two of the Substantive Application
In ground two the applicants assert error on the part of the Tribunal by it allegedly failing to deal with the evidence in two ways. Both involve a beach of s.430(1)(c) and (d) of the Act.
Section 430(1) of the Act is in the following terms
“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.”
In relation to s.430(1)(d), the applicants say the Tribunal made a finding that it declined to accept the applicant’s house was burnt down by the military while accepting that it was burnt down for other reasons. The failure to refer to any evidence or other material for this finding is therefore a breach of s.430(1)(d).
The failure to comply with s.430(1)(c) is said to emanate from the Tribunal’s failure to make a finding first as to whether the applicant’s house caught fire because “something” was thrown through the window in circumstances where the Tribunal accepted the applicant had received calls from the military, and where the applicant claimed that it was after the “first” call that her house burnt down.
The second failure in this regard is said to be a failure to make a finding as to whether the military caller told her, presumably with reference to the fire: “This is what you get for not following orders”.
Although not immediately clear, it appears that this ground is raised in support of the applicants’ application for (relief in the nature of) a writ of mandamus compelling the Tribunal to comply with its obligations under s.430 of the Act. The applicant relies on Minister for Immigration and Citizenship v SZLSP[2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115 (“SZLSP”) per Kenny J, particularly at [54], in support of the proposition that “in a case of a failure to comply with s.430 of the Act, the appropriate course for an aggrieved applicant is to seek an order compelling the Tribunal to comply with its obligations under s.430.”
It cannot be said, in light of Yusuf, that the applicant seeks to assert that any such failure to comply with s.430 of the Act leads to jurisdictional error. Nor do I respectfully understand Kenny J to have suggested or proposed otherwise. In fact her Honour made clear (at [54] of SZLSP):
“There may be cases where what appears on the face of the Tribunal’s reasons to be a jurisdictional error is shown by the record before the reviewing court to be merely a failure to comply with s.430. Such a failure does not constitute jurisdictional error.”
The applicants’ approach here therefore must also be understood in light of the stage at which these proceedings evolved before the Court. This matter, albeit “complicated” by the application for an extension of time, had been set down for a “show cause hearing” (r.44.11, r.44.12, r.44.13 and r.44.14 of the FMC Rules). At such a hearing, amongst other matters, r.44.12 requires the Court to be satisfied that “the application had raised an arguable case for the relief claimed” before proceeding to the next stage of the litigation.
The applicants say that the specific, additional, relief claimed is a writ of mandamus to compel the Tribunal to comply with s.430, and an arguable case has been raised in the context of the show cause hearing. The basis on which such a conclusion would be based is not a finding of jurisdictional error but, what I understand the applicants to be arguing (if made out), that a necessity to compel the Tribunal to comply would justify an extension of time pursuant to s.477(2) of the Act.
The difficulty for the applicants in this is that, if such an order in the nature of mandamus were made, it raises the question as to whether any “second” decision record by the Tribunal could constitute a different decision, given that the Tribunal would, if the applicants’ argument now was successful in this regard, be required to make additional or “different” findings which may indeed lead to a different outcome. Even if it did not lead to a different outcome, the nature of the decision would still be different.
In any event, and happily for the Court, there is no need to embark on any such consideration of the contentions raised by the applicants’ approach, either as to the show cause aspect of these proceedings or the extension of time application pursuant to s.477(2) of the Act. That is because the factual basis for the applicant’s approach is not made out. The Tribunal did comply with its obligations under s.430 of the Act.
The applicants’ approach here suffers from the same deficiencies, misunderstanding and misrepresentation of the Tribunal’s analysis and decision as in ground one.
As set out above, the applicant’s claim was to fear persecutory harm from the military, and only the military, in Fiji. She claimed she had received threatening phone calls both before and after her house was burnt down by the military.
The applicant claimed her house had been burnt down by the military. The “material question of fact” determined by the Tribunal in this regard was that the military did not burn down her house. The evidence supporting this finding of fact was set out in its decision record, as also referred to above. The Tribunal therefore complied with s.430(1)(c) and (d) in relation to the critical question as to whether the military burnt her house down.
As the applicant made no claim to fear persecutory harm from anyone else, the Tribunal was not required to go any further in its analysis in this regard. In relation to ground two, it was therefore not obliged to set out any further relevant findings because there were no other material questions of fact to be determined in relation to the house burning.
The applicants’ representatives now have failed to comprehend the importance of the word “material” in s.430(1)(c). The “material question of fact” must relate to the reasons (s.430(1)(b)) for the decision on review (s.430(1)(a)). The review is concerned with whether the Tribunal should affirm or not affirm (set aside) the delegate’s decision that the applicant did not have a well-founded fear of persecution for a Convention reason.
As the Tribunal had set out the entirety of its relevant reasoning and findings as required by s.430(1)(c) of the Act in this regard, there was no other evidence and material to which it needed to relevantly refer pursuant to s.430(1)(d).
As already set out above, the Tribunal was not required to make findings as to who else set fire to the house, nor whether it believed that the military threatened her in the way claimed in the “second” telephone call, nor whether the house caught fire with something thrown through the window.
As the Minister submits, s.430 of the Act requires the Tribunal to “make findings on any and every matter of fact objectively material to the decision” that it is making and the reasons for that decision (Yusuf per McHugh, Gummow and Hayne JJ).
As set out above, the Tribunal did just that. The “findings” which the applicant now says the Tribunal should have made related to matters which the Tribunal did not consider, as a result of its otherwise cogent analysis, to be “findings on those questions of fact which it considered to be material to the decisions” (Yusuf).
The applicants’ attempt now to say those absent “findings” were material is misconstrued, and based on a misunderstanding of the claims as made, and as those claims relate to a well founded fear of persecutory harm, and as to how the Tribunal considered and disposed of those claims.
In short, s.430 of the Act does not provide license to an applicant to tell the Tribunal how it must go about doing its job, and to direct its thought processes.
As, in the circumstances, the Tribunal complied with its obligations as set out in s.430 of the Act, it is not appropriate to make the order (in the nature of a writ of mandamus) as sought pursuant to ground two.
The Extension of Time
But further, both in the context of the nature of the show cause proceedings and in the context of the consideration of the application for an extension of time, ground two does not assist the applicants’ case.
As to the first, the flaw in the applicants’ understanding means that the application has not raised an arguable case for the relief sought.
As to the second, it is not in the interests of the administration of justice to extend time in circumstances where the Tribunal has met its obligations pursuant to s.430 of the Act. It would be, as the Minister submits, an exercise in futility.
This mirrors the situation, as set out above, in relation to ground one. The applicant has not raised an arguable case that the Tribunal’s decision was illogical or irrational and therefore afflicted with jurisdictional error. Nor in the circumstances do the interests of the administration of justice require any extension of time merely to immediately dismiss the application.
The applicants submitted that given that a lengthy (about two and a half hours) show cause hearing took place in this matter that this was an indication of the weight of the applicants’ case, and therefore itself a factor in support of the applicants’ assertion of an arguable case and one which had reasonable prospects of success.
This must be rejected on the basis of confusing quantity with quality. Some of the hearing dealt with the evidence as it related to the question of the delay in making the application. For the most part however it was devoted to giving the applicants’ legal representatives every opportunity to explain the substance of the grounds, when on their face they appeared to lack merit. In addition, and for example, ground two asserts jurisdictional error on the part of the Tribunal. It took some time to arrive at the understanding that in fact ground two was not an assertion of jurisdictional error but, in a sense, an adjunct to ground one in support of an order in the nature of mandamus, and not directed to an order in the nature of certiorari.
The explanation for the delay in making the substantive application is not satisfactory. Importantly, the grounds of the application lack merit. I cannot see in these circumstance any prejudice arising to the applicants’ in not exercising the discretion to extend time. In any event there would be no utility in extending time in circumstances where the applicants, with both solicitors and counsel, have had every opportunity to explain their case and have not been able to advance the grounds of the substantive application beyond assertions that lack merit.
Conclusion
In these circumstances the application to extend time is refused. The substantive application is therefore dismissed as not competent. I will make orders accordingly.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 5 March 2012
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