SZRDC v Minister for Immigration
[2012] FMCA 676
•16 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 676 |
| MIGRATION – RRT decision – Afghani refugee from Pakistan – principal refugee claims disbelieved by Tribunal – secondary claim of risk from perception as ‘Western’ if returned to Afghanistan – whether addressed by Tribunal – whether reasoning arbitrary, illogical and irrational – jurisdictional error not established – six months’ delay in applying for judicial review – election to seek Ministerial intervention – extension of time refused – application dismissed as incompetent. |
| Migration Act 1958 (Cth), ss.48B, 417, 477(1), 477(2), 477(2)(b) |
| Cervantes v Minister for Immigration & Citizenship [2012] HCATrans 123 Hui v Minister for Immigration & Anor [2011] FMCA 486 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6 MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, [2004] FCAFC 263 Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83, [1994] FCA 878 SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZOOR v Minister for Immigration & Citizenship (2012) 127 ALD 1, [2012] FCAFC 58 Tuitaalili v Minister for Immigration & Citizenship (2011) 124 ALD 405, [2011] FCA 1224 |
| Applicant: | SZRDC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 250 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 27 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Success Lawyers |
| Counsel for the First Respondent: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for extension of time is refused.
The principal application is dismissed as incompetent.
The applicant must pay the first respondent’s costs fixed in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 250 of 2012
| SZRDC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant came to Australia on a student visa in April 2010. He applied for a protection visa on 12 November 2010, and this was refused by a delegate on 15 March 2011. The delegate’s decision was affirmed by the Tribunal on 5 July 2011. The applicant now seeks judicial review of the Tribunal’s decision, and orders which would give him a further hearing of his refugee claims. I would have power to give this relief only if jurisdictional error were shown in the Tribunal’s procedures or reasoning.
The applicant’s application to the Court was not lodged until 6 February 2012, which was nearly six months after the expiry of the 35 day time limit provided by s.477(1) of the Migration Act 1958 (Cth). He therefore needs an extension of time under s.477(2), to render his application competent. His application for extension was listed for concurrent hearing with a full hearing on the merits of his grounds for contending that the Tribunal’s decision was affected by jurisdictional error. This was convenient, since the substantive merits of the matter, at least at a provisional level, are relevant to the exercise of the discretion to extend time. In the present case, after weighing up all the circumstances, including the applicant’s explanation for his delay and the merits of his grounds of review, I have not been satisfied that an extension of time is “necessary in the interests of the administration of justice” as is required by s.477(2)(b). It is convenient for me to explain this conclusion after addressing the grounds of the substantive application.
The applicant’s refugee claims
The grounds of the application for judicial review focus only upon the Tribunal’s reasoning at the end of its statement of reasons, where it addressed a secondary element in the applicant’s refugee claims. This was a concern that, if he returned to Pakistan or Afghanistan, he might face persecution for a Convention reason because of a perception that he was “a spy of western world and Australia”.
It is therefore not necessary to detail how the applicant presented his much more prominent claims that he would face persecution by reason of the kidnapping of his father by the Taliban and the disappearance of other members of his family in late 2010. Nor is it necessary to examine why the Tribunal disbelieved these claimed events, and rejected almost the whole basis upon which the applicant sought Australia’s protection. No contention is now made that these adverse conclusions are vitiated by any jurisdictional error of fact, law or procedure.
It is, however, important to bear in mind the lack of prominence in the proceedings before the Tribunal of the applicant’s statements which became the focus of his counsel’s submissions to me, when considering the brevity of the Tribunal’s assessment of the residual concerns which it perceived to have been raised by them. The brevity was, in my opinion, an understandable response to the manner in which the relevant claim was presented to the Department and Tribunal. It requires a reminder that the reasoning of the Tribunal should not be examined “minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6 at 272 and 291). The intent of this advice remains clear and binding upon me, notwithstanding criticism of its expression (see Heydon J in Cervantes v Minister for Immigration & Citizenship [2012] HCATrans 123 at line 645).
The applicant’s visa application was accompanied by a signed statement which explained his claims for protection against return to his country of nationality, Afghanistan. In the statement and at later interviews, he explained that he was born in 1990 into a Tajik ethnic family, owning property in the province of Balkh in Afghanistan and elsewhere. His parents migrated to live in a town in Peshawar in the north west of Pakistan when he was ten, as a result of the then Taliban offensive. He and his siblings obtained good educations, and he taught English at a school before coming to Australia for more studies. His father derived income from his properties, and also, the applicant claimed, his father “had a transportation business which supplied goods for the government of Afghanistan” which were obtained from China. He claimed that in September 2010 the applicant and his sister in Australia were informed by their mother that their father had been kidnapped by the Taliban, and that all other members of the family were in hiding. His visa statement concluded:
I do not have any family member in Afghanistan or any part of the world except my sister [name].
I am not secure in my home country because the present government of Mr. Karzi can not provide security for myself and if I go to Afghanistan I will be target by extremists elements.
I will be accused spy of western world and Australia, therefore I can not go back to Pakistan. I do not have anyone over there and Pakistan is not my home land.
My father is missing since Friday 10th September 2010, still I am waiting for any news regarding my father and my mother and rest of the family, the last time I contacted my mother and family members that was 20th September 2010 on Monday.
I do not have any other choice except living in Australia and asking for protection.
The applicant was interviewed by a delegate of the Minister on 28 February 2011. According to the Tribunal’s summary of that interview:
§Asked about his claim to fear being accused as a spy, he said that the extremists might target him for returning from a Western country. The international forces will not help him.
The delegate did not disbelieve the applicant’s claim that his father had been kidnapped, but concluded that it was “likely due to his family’s wealth” and was “not to be Convention related”. The delegate also considered the applicant’s concern about returning from Australia:
Persecution of Afghans who have lived and travelled overseas in Western countries
Although there is independent country information to suggest that those seen as supporting or helping the Afghan government or coalition forces are experiencing in some areas various forms of persecution from anti government forces (CX250180 5.16), there is no information at present to suggest that Afghans returning from western countries are experiencing any form of persecution related to their travel.
Independent country information suggests that although there are economic and social concerns for Afghan refugees returning to Afghanistan, there are a significant number of NGO and government based programs in place operating to integrate refugees back into Afghan society (CX257684 5.17).
During the interview when the applicant was questioned about his claims that he would be accused of being a spy and killed by extremists, he stated that he knew this was happening because of what he saw on television, at no time was the applicant threatened or harmed by anyone due to his travel overseas to Australia. This leads me to believe that if he was to return to Afghanistan that he would not now or in the foreseeable future experience any form of persecution related to his travel and subsequent study.
The applicant did not present any additional evidence or submissions to the Tribunal before attending a hearing on 3 June 2011. On its description in its statement of reasons, which is the only evidence as to what was said at the hearing, the applicant said at the commencement of the hearing:
32.He summarised his fears of persecution as follows: – He fears harm from the Taliban or the people who kidnapped his father in September 2010, who may target him as a member of his father’s family. Later in the hearing, the applicant said that the Taliban targeted his family not only because he is wealthy, but also because he operated a transport business supplying spare parts to the Afghan National Army – in other words, for his imputed political opinion.
The applicant told the Tribunal that, after being taken to Peshawar at the age of ten:
33.…he had returned to Kabul once, for a week in October 2009. He had to return to Afghanistan to obtain a loan to fund his studies, as it was not possible for Afghanis to obtain such loans in Pakistan. Nothing untoward happened during this visit.
The applicant explained that the family had their home in Peshawar and “were well‑established there”. He did not refer to any incidents disturbing the family after he left Afghanistan, until the claimed events of late 2010 were communicated to him by his mother. He and his sister living in Australia were questioned by the Tribunal about this communication, and about its background. Various inconsistencies between his account and that of his sister, and between his evidence and a statement which had accompanied the student visa application, were put to him, as were other concerns.
There is no evidence that at any time during the hearing the applicant raised a concern about being persecuted in either Pakistan or Afghanistan for a perceived ‘Western’ association arising independently of the circumstances of the kidnapping claim.
After the hearing, the applicant was invited to make written comment on the various matters which had been put to him. The applicant responded with a four page rebuttal of the Tribunal’s concerns. In the course of this, the closest he came to maintaining his original concern of being a perceived ‘Western spy’, was in one paragraph at the end:
I further state the situation in Afghanistan continues to be extremely dangerous for me to return to Afghanistan. The present government under President Hamid Karzi will not be able to give me state protection against the Taliban. I will be a target of the Taliban extremists. In addition I can’t go to Pakistan because I do not have anyone in Pakistan and I will be a victim of Taliban in Pakistan and I do not want to be subjected to the inhuman degrading treatment that I got in Pakistan whenever I was detained by the police for interrogation. My father is missing since 10 September 2010, still waiting for news regarding my father and my mother and the rest of the family. The only sibling who is alive now, is my sister and she is in Australia.
I respectfully submit some country information which indicates that the person like me will be persecuted by the Taliban extremists.
However, it seems that no ‘country information’ was, in fact, submitted to the Tribunal before it made its decision.
The Tribunal’s reasoning
In its “Findings and Reasons” the Tribunal first addressed the applicant’s claims made to the Tribunal, which it summarised:
66.The applicant claims to fear harm in Afghanistan, essentially for reasons of his membership of a particular social group, his family. He claims that someone – he has indentified the Taliban as the likely perpetrators, and now claims to be certain of this – kidnapped his father in September 2010, not merely because of his wealth, but also because his delivery of spare parts to the Afghan National Army gave him an imputed political opinion. The applicant has more recently claimed to fear harm because of his family’s past experiences in Afghanistan, and because he voiced opposition to the Taliban.
The Tribunal described the applicant generally as a “witness of low credibility”, and explained why it did not accept that the Taliban or anyone else had kidnapped his father in September 2010. The Tribunal concluded:
68.The above concerns, taken together, lead the Tribunal to conclude that the applicant’s father did not transport spare parts or other equipment from China to Afghanistan; that he was not kidnapped by the Taliban or others; that there was no ransom demand or threats made to family members in Peshawar; and that his family is not in hiding.
69.Having found that the applicant’s father was not kidnapped (because of any business interests, his wealth or any other reason), and his family has not disappeared, the Tribunal also dismisses the applicant’s claims that extremists or others might have an adverse interest in him for any reason related to these now‑rejected incidents. The Tribunal finds that these claims are without foundation, and concludes that he has no associated genuine or well‑founded fear of persecution.
The Tribunal also rejected the applicant’s claims in his post‑hearing letter that he and his family have an adverse profile in Afghanistan arising from the events which forced them to flee to Pakistan and because he “was outspoken against the Taliban, even as a young boy”. It concluded that they had fled from “generalised violence”, and that there was no “lasting interest by the Taliban in the applicant’s family or him personally”. It noted that the family continued to have property interests in their home area in Afghanistan and in Kabul.
The Tribunal then dealt with all of the residual characteristics of the applicant and his original claim to fear of “being seen as a Western spy”. It is convenient to set out the whole of this discussion, which led to its general conclusion that the applicant was not owed protection obligations by Australia:
72.The Tribunal accepts that the applicant has spent little time in Afghanistan. He told the Tribunal that he visited there briefly, without incident, and he has not expressly claimed to fear persecution in that country on any grounds other than his membership of a particular social group, being his membership of his father’s family and a political opinion based on his opposition to the Taliban, both of which the Tribunal has considered above. The Tribunal has also considered whether the applicant’s other circumstances ‑ such as his departure from Afghanistan at a young age, or his growing up in Pakistan ‑ could form the basis for a particular social group based on these experiences. However, the Tribunal is not satisfied that any of these experiences form a ‘characteristic’ or ‘attribute’ common to all members of any putative particular social group, given the diverse situations in which they arise. In any event, the Tribunal finds that the applicant’s and his family’s ongoing links with Afghanistan are inconsistent with their claim to fear persecution there, including for reason of his having grown up in Pakistan.
73.The Tribunal, having accepted that the applicant is well‑educated and that he comes from a relatively comfortable business family, has considered whether he has made an implied claim on the basis of any such attributes. For instance, he commented that the (now‑rejected) kidnapping of his father might have been motivated in part by the Taliban’s (or others’) interest in his father’s wealth. Based on the applicant’s evidence as a whole, including his family’s ongoing connections with Afghanistan, the Tribunal does not accept that he has a well‑founded fear of persecution based on any such attributes.
74.The Tribunal accepts that the applicant is a Tajik. Again, he has not claimed, and there is nothing before the Tribunal to suggest, that he has a genuine or well‑founded fear of persecution in Afghanistan, for reason of his ethnicity.
75.The applicant wrote in his protection visa application that he fears being seen as a Western spy if he returns to Pakistan, and targeted for that reason. He has made no express claims on this basis with respect to Afghanistan.
§As evident from the delegate’s decision record, which was attached to the review application form, the delegate raised this issue with the applicant, and he replied that· extremists could kill him because he had spent time in a European country. The applicant’s comments appeared to relate to Afghanistan, although that is not entirely clear.
§In his evidence to the Tribunal, the applicant told the Tribunal that it was his membership of his family that caused him to fear persecution, and, in explaining why they might wish to target him, said that they have kidnapped his father and will know from him that the applicant is currently in Australia. He implied that this may be an added threat, though it was clearly not his main claim. As the Tribunal does not accept that the applicant’s father had been kidnapped, it does not accept that anyone has a consequent interest in the applicant, or knowledge of his whereabouts.
§To the extent that there is a residual or implied claim that extremists may target him for reason of his having been in Australia, or perceived to be Western, the Tribunal notes that the applicant taught in an English language school in Peshawar and comes from a family whose education, property and other attributes could, at least in some extremists’ eyes, lead them to be viewed as Western, at least in the eyes of poor Afghanis or extremists. The Tribunal does not accept, given his past experiences in Pakistan, that the applicant’s mere presence in Australia for just over a year, or any changes to his lifestyle, would significantly alter perceptions of him. The Tribunal, having rejected the claimed kidnapping, does not accept that the applicant has any profile with extremists or others.
76.Despite its findings above that the applicant does not have a well‑founded fear of Convention‑related persecution in Afghanistan, the Tribunal accepts that he is apprehensive about his prospects there and would, in all likelihood, go to Pakistan to join his family there. The Tribunal finds, however, that the applicant’s concerns about his possible return to Afghanistan relate to general economic, social, political and security conditions, and his personal circumstances (such as his family’s ties·in Heyatabad, Pakistan), rather than the risk of Convention‑related persecution.
77.For the reasons stated above, the Tribunal does not accept that the applicant’s father was kidnapped in September 2010, or that the applicant has a genuine or well‑founded fear of persecution for any Convention reason if he returns to Afghanistan, his country of nationality. The Tribunal finds that, if the applicant returns to Afghanistan, there is no real chance of him experiencing serious harm for any Convention reason. He does not have any religious, political or other interests, actual or imputed, that may put him at risk.
78.Having considered the applicant’s evidence as a whole, the Tribunal is not satisfied that he has a well‑founded fear of Convention‑related persecution, now or in the reasonably foreseeable future, if he returns to Afghanistan, his country of nationality.
The grounds of review
The applicant’s counsel relied upon an amended application which contained two grounds:
1.The Tribunal’s reasoning on the issue of the applicant’s claimed fear of persecution upon return to Afghanistan for reason of his having spent time in a European country was arbitrary, illogical and irrational.
Particulars
(a)The Tribunal found that the applicant may be perceived as being ‘westernised’, but reasoned from the applicant’s experiences in Pakistan prior to his coming to Australia that he would not face a well founded fear of persecution in Afghanistan for that reason.
(b)[deleted]
(c)The Tribunal relied on the applicant’s past experiences in Pakistan without so much as attempting to gauge any action that Islamic militants in Afghanistan may take against the applicant for reason for their perceptions of him.
(d)It was illogical, irrational and arbitrary for the Tribunal to draw conclusions as to whether perceptions of the applicant in Afghanistan would be altered in circumstances where he had not lived in Afghanistan since he was ten years of age, and where it could not reasonably be expected that there would be any perceptions of him to alter.
2.The Tribunal failed to lawfully consider and address the applicant’s claimed fear of persecution upon return to Afghanistan for reason of his being perceived to be “Western”.
Particulars
(a)Failure to consider the effects of any perceptions that poor Afghans or extremists in Afghanistan (as opposed to those of people in Pakistan) may have of the applicant as a result of his sojourn in Australia.
Counsel’s written and oral submissions focused entirely upon the Tribunal’s reasoning found in the last ‘dot’ point of its paragraph 75. He submitted that it revealed ambiguity whether the Tribunal had addressed its findings at the applicant’s future situation in Pakistan or in Afghanistan. He submitted that, on either reading, it reflected illogical reasoning without a rational evidentiary foundation, so as to fail the tests of reasonableness explained by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16.
Ground 2 was premised on reading the Tribunal’s discussion as only addressing the applicant’s situation in Pakistan. It contended that there was therefore a “misunderstanding or misconstruing” of a claim advanced by the applicant or clearly raised by the material (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [63]).
However, when the Tribunal’s discussion is considered in its full context, in my opinion, it is clear that the Tribunal did address its findings, about the applicant’s risk of being persecuted for being perceived ‘Western’, at his situation if he returned to live in Afghanistan. Throughout its reasoning, the Tribunal was alive to the need to consider the applicant’s refugee status in relation to his country of nationality, and it expressly did so both at the start and at the conclusion of its “Findings and Reasons” (see paragraphs 61 and 77). Paragraph 75, in which the challenged section appears, commenced with the statement, in effect, that the Tribunal proposed to address the applicant’s “seen as Western” claim as being made “with respect to Afghanistan” although in the visa statement it only referred to a fear of return to Pakistan. This direction of its subsequent discussion towards arriving at a conclusion about the applicant’s future risk of persecution in Afghanistan is then confirmed by the continuing focus on “if the applicant returns to Afghanistan” in paragraphs 76 and 77.
I therefore consider that the ‘ambiguity’ submitted by counsel for the applicant does not arise on a fair reading of the Tribunal’s reasons. I consider that its reasoning in the third dot of paragraph 75 was clearly directed at assessing a claimed risk of Convention‑related persecution facing the applicant if he returned to Afghanistan as a perceived ‘Western spy’. The Tribunal’s references to Pakistan when assessing this risk arose both from how the applicant had raised this claim, and how the Tribunal dealt with it.
Subjecting the Tribunal’s brief reasoning to a minute examination, as invited by counsel for the applicant, I do not find any illogicality or lack of evidentiary foundation, although it involves reasoning on which minds might differ. The reasoning could have been expressed more clearly, but on a fair reading, the Tribunal reasoned as follows:
·The Tribunal noted that the applicant’s visa statement claimed that he might be perceived and targeted for persecution as “a Western spy” if he returned to Pakistan.
·It accepted, as had the delegate, that this should be understood as also claiming that he would face the same risk in Afghanistan.
·It noted that in Pakistan he and his family had attributes which could “lead them to be viewed as Western, at least in the eyes of poor Afghanis or extremists”.
·However, on its previous findings, including those at paragraphs 72, 73, and 75, he and his family had not faced persecution in the past when in Afghanistan or Pakistan by reason of his personal or family attributes.
·The Tribunal did not accept that his being present in Australia “for just over a year” would “significantly alter perceptions of him”.
·It did not accept that the applicant “has any profile with extremists or others”.
·It concluded at paragraph 76 that all his concerns about “his possible return to Afghanistan” related to general conditions in that country and to his individual “personal circumstances”, “rather than the risk of Convention‑related persecution”.
I do not accept that it was irrational for the Tribunal to address the ‘Western spy’ claim by extrapolating from the absence of persecution of the applicant and his family for ‘Western’ attributes perceived by extremists in the course of their life in Peshawar. In effect, the applicant’s claim had invited this, by implicitly raising whether the risks facing him on return to Pakistan from being perceived as a ‘Western spy’ would also extend to Afghanistan.
The applicant’s statements invited the Tribunal to draw from its general knowledge of the situation in the north west area of Pakistan and over the border in Afghanistan, and I am not persuaded that there was no rational foundation for the comparison invited by the applicant and performed by the Tribunal.
Counsel for the applicant sought to distinguish the finding of the Tribunal which was upheld by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, by reference to the point made by Heydon J at [78]:
78The 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 not be said to reveal an absence of any basis whatsoever for her conclusion.
However, in my opinion, an assessment of the future risk of persecution of the applicant on the ground of perceived ‘Western’ affiliations was, in the circumstances addressed by the present Tribunal, even more one of “degree, impression and empirical judgment”. At best, in my opinion, counsel’s submissions showed that not all refugee decision‑makers might have made the same assessment for the same reasons. In effect, they established no more than this element in the Tribunal’s decision was a matter upon which “minds might differ”. However, judgments following SZMDS have pointed out that this is insufficient to establish jurisdictional error of the species alleged in Ground 1 (see SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97 at [52] and [124], MZXSA v Minister for Immigration & Citizenship (2010) 117 ALD 44, [2010] FCAFC 123 at [43]‑[45], and Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [32]‑[37], SZOOR v Minister for Immigration & Citizenship (2012) 127 ALD 1, [2012] FCAFC 58 at [15], [85], [114]).
I therefore do not accept the submissions made in support of Grounds 1 or 2. I consider that they were based upon a misreading of the Tribunal’s statement of reasons in relation to a relatively minor element in the applicant’s refugee claims. I consider that the Tribunal undoubtedly addressed this element, and I am unpersuaded that the Tribunal’s conclusion can be characterised as “arbitrary, illogical and irrational”.
The extension of time should be refused
In his affidavit in support of an extension of time, the applicant referred to receiving treatment from a clinical psychologist for six months between “late 2010” and “the middle of 2011”. No report from this person was tendered, but his affidavit contained a STARTTS assessment for assistance dated 21 April 2011. It is signed by two people whose professional qualifications are obscure, and which reports:
Thank you for your referral of [the applicant]. I conducted an assessment on the 21st April, 2011. [The applicant] reports a range of severe signs and symptoms associated with posttraumatic stress, anxiety and depression including: low mood; agitation; reduced energy; poor sleep; concentration problems; intrusive thoughts and images associated with past experiences; loss of appetite and an associated weight loss of 10kgs since arriving in Australia; anhedonia; worry and hopelessness about the future; moderate suicidal ideation and somatic reactions including pain on the right side of his upper body. …
The applicant’s affidavit refers to his receiving the Tribunal’s decision soon after it was made, and to his subsequent actions:
7.I received the Refugee Review Tribunal decision by post on 6 July 2011. I was still very worried about my father and my family, I was not able to work, and after the Refugee Review Tribunal decision I was living with my sister and relying on her to support me. I spent my days at her house and could not afford to do anything or go anywhere. I felt depressed and not able to think clearly.
8.About a month after the Tribunal decision a family friend, [name] referred me to a solicitor, Dr Chandrika Subramaniyan who said to me words to the following effect;
“You can go to the Federal Magistrates Court. I do not have the skills to represent you there, but you should get advice from a barrister. I will do work for you without charge, but you would have to pay the barrister.
Alternatively, you can make a request to the Minister to let you stay for humanitarian reasons.”
9.I was not working at that time and did not have money for a barrister. I did not know anybody who had applied to a Court, and I had no idea where to start. I decided to apply to the Minister. I made the request on 9 August 2011.
10.The Minister made his decision on 6 December 2011.
11.I went to see Dr Chandrika Subramaniyan about a week after the Minister’s decision. She said,
“The only option you have is to apply to the Federal Magistrates Court”
or words to that effect.
12.After seeing Dr Subramaniyan I went to my sister and said,
“I will need money to apply to the Federal Magistrates Court.”
She said,
“I will try to find money for you. You will have to wait until I can get it.”
13.As I did not know when or if I could get money, in desperation I made a request to lodge another refugee application, and that was rejected 25 January 2012.
14.The application to this Court was filed on 6 February 2012.
The Minister presented evidence which shows that on 9 August 2011 a migration agent wrote to the Minister, requesting intervention under s.417. The submission was lengthy, but essentially repeated the claims made by the applicant previously, and invited the Minister to accept their truth and to assess them under refugee and humanitarian considerations. No corroborative evidence was presented to establish error by the Tribunal in its assessment of the applicant’s credibility. The applicant and his agent were advised by letter dated 2 December 2011 that “the Minister has personally considered your case and has decided that it would not be in the public interest to intervene”.
By letter dated 15 December 2011 the applicant then requested the Minister’s dispensation under s.48B to allow the making of a second protection visa application. His letter repeated and embellished his claims that his father had been kidnapped in September 2010, and claimed that “the situation now has changed as my father has been killed”. No corroboration of this assertion was provided. The applicant was informed by letter dated 25 January 2012 that his case did not meet the guidelines for referral to the Minister for consideration.
As I have noted, the Court’s power to extend time is qualified by the requirement under s.477(2)(b) that the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”. I considered the discretion in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]:
11.The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]‑[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
I recently considered an applicant’s delay resulting from an application for Ministerial intervention, in Hui v Minister for Immigration & Anor [2011] FMCA 486 at [29]‑[30]:
29.There is a diversity of opinion whether the pursuit of ministerial intervention and other administrative avenues for obtaining a visa can provide an acceptable explanation justifying an extension of time under s.477(2) of the Migration Act and similar powers given to the Federal Court and High Court. Even in the High Court there are contrasting recent judgments (compare Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279, with Ahmed v Minister for Immigration & Citizenship [2011] HCATrans 35). Riley FM in MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] recently concluded, after reviewing some of the Federal Court authorities in the area including Vu v Minister for Immigration and Citizenship [2008] 101 ALD 211; [2008] FCAFC 59:
Those two paragraphs make it clear that an application to the Minister under s.351, or its equivalent, s.417, is a matter to be considered in the overall context of all of the circumstances of the case to determine whether the applicant has a reasonable explanation for his or her delay or not. The position is not as simple as a s.417 application is always or is never a sufficient explanation for the delay.
30.I agree with this approach. In the present case, I consider that Ms Hui has shown a sufficient explanation to excuse her delay in discovering the existence of the time limit and commencing her present application. She clearly was not content to allow the Tribunal’s decision to go unchallenged generally, and speedily made her discontent known to the Minister. As will appear below, I consider that her application raises a substantial issue of concern as to the fairness of the Tribunal’s proceedings. Taking into account all the considerations which have been pointed to in authorities on s.477(2) (see SZNZU v Minister for Immigration [2010] FMCA 197), I am persuaded that it is ‘necessary in the interests of the administration of justice’ in the present case, that I should extend time.
In the present case, the applicant admits that he was clearly informed as to the existence of a right for judicial review, that he should obtain a barrister’s opinion, and that he should make a decision on whether to take that course. He then chose not to challenge the validity of the Tribunal’s decision, and sought Ministerial intervention under s.417, and then s.48B. He explains this choice on the basis that he “did not have money for a barrister” at that time. However, in law and practice, impecuniosity is not a barrier to seeking judicial review in this Court, and it is not difficult for unsuccessful applicants to the Tribunal to discover how to file an application without legal assistance. Most of the applicants who come before me are in that position.
While the choice made by the present applicant might appear understandable in his situation, I am unpersuaded that it provides an explanation which demonstrates a ‘necessity’ to extend time ‘in the interests of the administration of justice’. The migration context in which the administration of justice is to be considered, explains why this Court’s jurisdiction to review the validity of migration decisions is normally expected to be invoked speedily. The history of that jurisdiction before the introduction of the time limit, points clearly to the desirability that justice should not be delayed in the obtaining of judicial rulings on the validity of administrative decisions and actions in this area. It is clearly in the public interest that any challenge to the validity of a refugee determination by an on‑shore applicant should be mounted without any delay.
In the circumstances of the present case, I am unpersuaded that the applicant’s decisions to seek Ministerial intervention before exploring the avenue of judicial review, provide an explanation favouring an extension of time. He made these decisions after receiving professional and competent advice, albeit advice which suggested the taking of counsel’s opinion. He has not claimed, and I would not infer, that he was unaware of the time limit. His applications to the Minister did not display any strong ground for challenging the Tribunal’s decision on his central claims for refugee protection, and he has not now presented any such challenge to the Court in terms of jurisdictional error.
I cannot ignore that fact that I have not upheld the merits of the grounds for ordering a rehearing by the Tribunal which were presented to me. I accept that the discretion to extend time should not be automatically exercised by reference to the ultimate outcome of the case, even when the application for extension of time was left to the final hearing (c.f. Katzmann J in Tuitaalili v Minister for Immigration & Citizenship (2011) 124 ALD 405, [2011] FCA 1224 at [25], citing French J in Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83, [1994] FCA 878 at 98). However, I do not consider that the grounds presented to me were strongly arguable, nor of any general importance, nor of particular importance to the applicant’s own refugee application. In effect, they sought to seize upon an infelicity of expression by the Tribunal in its consideration of a relatively minor element in the applicant’s refugee claims, to secure a rehearing of unchallenged adverse findings on the credibility of the applicant’s principal claims.
Considering both the applicant’s explanations for not complying with the time limit on seeking judicial review, and the merits and significance of his grounds for review, I am not satisfied in terms of s.477(2)(b) of the Migration Act that it is necessary that time should be extended.
I have considered the consequence of my refusing time, that the applicant will not acquire a right of appeal to the Federal Court from my conclusions on his grounds for judicial review. I have also considered his hardship in not obtaining an opportunity to persuade another Tribunal member to believe his refugee claims, or to re‑assess his circumstances which were accepted by the present member. I have assumed that this might have the consequence that he will need to depart Australia. I have also taken into account the evidence of his mental condition, and his claims as to his family and personal situation.
His current situation undoubtedly attracts sympathy. However, I am not persuaded that considerations of personal hardship to the applicant which might result from a refusal to extend time should cause me to exercise my discretion favourably.
After considering all the matters suggested in the authorities, I decided that I should refuse the application for extension of time, and dismiss the application for judicial review as incompetent.
Costs should follow the event, in accordance with the usual scale.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 16 August 2012
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