SZSJC v Minister for Immigration

[2013] FCCA 1755

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1755

Catchwords:
MIGRATION – Application for extension of time – substantive application seeking review of decision of Refugee Review Tribunal – no satisfactory explanation for delay – not in the interests of the administration of justice to extend time – finality in litigation – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 420, 422B, 424A, 425, 477

Migration Amendment (Complementary Protection) Act 2011 (Cth)

SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FCA 771
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491
Sithamparapillai & Anor, Ex parte - Re MIMA & Anor [2004] HCATrans 364
Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 57
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration v Ley Lat [2006] FCAFC 61
Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
SZRQR v Minister for Immigration & Anor [2013] FMCA 21
SZRSA v  Minister for Immigration & Anor [2012] FMCA 1187

Applicant: SZSJC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1718 of 2013

Judgment of: Judge Nicholls

Hearing date: 9 October 2013

Date of Last Submission: 9 October 2013

Delivered at: Sydney

Delivered on: 31 October 2013

REPRESENTATION

Appearing for the Applicant: Mr A Joel

Solicitors for the Applicant: Adrian Joel & Co.

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is amended to ‘Minister for Immigration and Border Protection’.

2. The application for an extension of time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) on 25 July 2013 is refused.

3. The applicant pay the first respondent’s costs set in the amount of $

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1718 of 2013

SZSJC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 25 July 2013 to extend time within which to make an application seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed an earlier decision by the Minister’s delegate to refuse a protection visa to the applicant.

2. Also before the Court is the applicant’s affidavit made on 20 July 2013, the affidavit of Mr Adrian Joel, solicitor, made on 22 July 2013, annexing a copy of the Tribunal’s decision (“TD”), and the applicant’s written submissions.

Background

1. The applicant is a citizen of Lebanon. He arrived in Australia on 25 June 2009. He applied for a protection visa on 25 October 2010 and his claims to protection were set out in a statement attached to his application ([2] at TD 2).

2. In essence, he and the co-author of this statement, who was also from Lebanon, claimed to be homosexuals and to be in a homosexual relationship. The applicant feared harm from his family in Lebanon because of the relationship ([23] at TD 4). The applicant was represented in making the application for the visa ([28] at TD 7).

3. The applicant was interviewed by the Minister’s delegate on 13 May 2011. A written summary of the recording of the interview is contained in the Tribunal’s decision record ([25] at TD 5).

4. The delegate put information from an undisclosed source to the applicant that he, and the person claiming to be his partner, were not homosexuals, nor did they live together, and that the claim was contrived to obtain a protection visa ([26] at TD 6).

5. However, while the delegate had concerns about the genuineness of the relationship, it appears the basis for the refusal of the protection visa was that country information indicated that the applicant could safely relocate within Lebanon to avoid harm ([31] at TD 7).

6. The applicant applied to the Tribunal for review on 28 June 2011 ([32] at TD 7). He continued to be represented in his application ([38] at TD 8). The applicant appeared at a hearing before the Tribunal on 4 November 2011. The Tribunal’s account of the hearing is set out in its decision record ([36] at TD 8 to [63] at TD 13 and [74] ‑ [76] at TD 14). The Tribunal also heard evidence from the applicant’s claimed partner ([64] at TD 13 to [73] at TD 14).

7. Following the hearing the Tribunal wrote to the applicant and, pursuant to s.424A of the Act, put information to him which the Tribunal considered would be reason, or a part of the reason, for affirming the delegate’s decision. The text of that letter is reproduced at [77] (TD 15 to TD 20). The applicant’s representative ultimately responded (see [79] – [81] at TD 20).

8. The applicant also appeared before the Tribunal again, on 11 April 2012. The Tribunal also heard oral evidence from two other witnesses on behalf of the applicant ([82] at TD 20 to [130] at TD 28). The hearing on this occasion was specifically held to address the question of complementary protection ([84] at TD 21). The applicant’s representative also made further written submissions to the Tribunal ([79] at TD 20).

9. The Tribunal found that the applicant was not a homosexual. This finding was based on the Tribunal’s finding “that his claims and evidence [were] not credible” ([134] at TD 28). The Tribunal gave extensive reasons for this (see [135] at TD 29 to [141] at TD 30, and in particular [141] at TD 30 to [161] at TD 34).

Before the Court

1. The applicant applied for an extension of time in which to seek judicial review of the Tribunal’s decision on 7 December 2012 (SYG 2901 of 2012). He did so with the benefit of legal advice from a solicitor. These proceedings were discontinued on 14 March 2013. Again, the applicant acted with the benefit of legal advice and representation (see his affidavit at [2]).

2. The applicant, again with the assistance of a, albeit different, legal representative, now seeks to make another application to the Court for judicial review of the same Tribunal decision. He again seeks an extension of time to do so. This is the issue before the Court for consideration now.

3. The range of relevant elements for the grant of an extension of time have been discussed in a number of cases before this Court (SZMFJ v Minister for Immigration and Citizenship & Anor [2009] FCA 771 at 44; see also SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] per Judge Barnes). In the current case the extent of the delay, whether there is any satisfactory explanation for the delay, the merits of the proposed “substantive” application, prejudice to the parties, and the interests of the Australian community, or the public at large, appear to be relevant to the question of whether it is in the interest of the administration of justice to extend time.

4. The applicant was represented at the hearing of the application to extend time by Mr A Joel. Ms B Rayment appeared for the Minister.

5. The applicant’s submissions before the Court, as best as they could be understood, referred to the following.

6. First, the period of the delay should commence from the date of the handing down of SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”) (a case of this Court dealing with the Tribunal’s approach to consideration of the complementary protection criterion, s. 36(2)(aa) of the Act).

7. Second, the Tribunal breached its duty pursuant to s.425 of the Act because it did not “investigate” with the applicant at the hearing, matters relating to complementary protection. The applicant was therefore denied the opportunity of giving his evidence in relation to such questions as the deprivation of life and liberty.

8. Third, pursuant to s. 91R(3) of the Act, the Tribunal disregarded the applicant’s conduct in Australia for the purposes of the consideration under the Refugees Convention criterion, that is with reference to s. 36(2)(a) of the Act. However, it was not entitled to disregard this behaviour in relation to the consideration under the complementary protection criterion (s. 36(2)(aa) of the Act).

9. Fourth, although, ultimately it remained a suggestion rather than a properly articulated matter, the Tribunal did not address the applicant’s claim as it related to “religion”.

10. These submissions are dealt with below under the heading of “The Merits of the “Substantive” Application”. Very little, if anything, was said on behalf of the applicant in relation to the extent of the delay and whether the applicant was able to provide any satisfactory explanation for it. At best the applicant appeared to rely on his affidavit, and the claimed consequences flowing from SZFSK.

The Extent of The Delay and The Matter of Any Satisfactory Explanation

1. The Tribunal’s decision was made on 24 April 2012. The current application to the Court for an extension of time, was made on 25 July 2013. The applicant’s delay in seeking judicial review, therefore, is approximately 14 months.

2. The applicant argued before the Court that the period before the handing down of SZSFK should not be taken into account for the purposes of s. 477 of the Act. That is, the relevant period should be taken to have commenced on the date of that judgment.

3. That judgment was handed down on 16 May 2013. I note that even on this basis the applicant is over a month “out of time”. No satisfactory explanation has been provided for that period. There was some suggestion, possibly related to this point, or the point below (at [25]), or both, that the law in relation to migration is constantly changing and there is therefore difficulty on the part of legal representatives in maintaining immediate currency with all developments.

4. That is, that the applicant’s current legal representative took some little time to note the application of SZSFK to the circumstances presented by this case. I cannot see that this provides a satisfactory explanation for even the “shorter” period of the delay. No evidence of any particular difficulty on the part of the applicant’s current legal advisor was proffered to the Court.

5. In any event, as the Minister submits, the relevant period, dictated by statute, commences on the date of the Tribunal’s decision. The applicant is required to make his application within 35 days of that date. The extent of the delay, therefore, is 14 months.

6. I note that even with his previous legal representation it took the applicant over 7 months to file the application which was subsequently discontinued. He has provided no explanation, let alone a satisfactory explanation, for that delay.

7. It may be that rather than arguing that the period should start in May 2013, the applicant was seeking to say that the period between April 2012 and May 2013 was satisfactorily explained by the absence of the very judgment on which he now seeks to rely.

8. However, even in these circumstances, as referred to above, the applicant was still out of time. But far more importantly, it ignores that the applicant was previously legally represented. The successful argument before Judge Driver in SZSFK was always arguable since the introduction of the complementary protection provisions to the Act. That the applicant, or his previous solicitor failed to articulate it, does not provide a satisfactory explanation for the delay.

9. What also stands against the applicant’s explanation in this regard and denies it rising to a satisfactory explanation is that, with respect, I do not understand anything in SZSFK, or as the applicant insisted before the Court, the “consequences” of SZSFK, to be a “change in the law” as the applicant submits, or for that matter a change in the understanding of the law.

10. As I respectfully understand the reasoning in SZSFK, what sits at the core of that reasoning, is that the criteria at ss. 36(2)(a) and 36(2)(aa) of the Act posit different types of harm. While the test to determine each is the same (a real risk of harm, see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33) the criterion in relation to the Refugees Convention speaks of “serious harm”, under complementary protection it is “significant harm”.

11. In my respectful view, the judgment in SZSFK did not provide some “new” illumination of this distinction. This distinction was plainly apparent from the time of the introduction of the complementary protection amendment to the Act (24 March 2012, Migration Amendment (Complementary Protection) Act 2011 (Cth)).

12. In SZSFK the Court found the language relevantly used by the Tribunal to be “problematic”. This allowed an inference to be drawn that the Tribunal in that case “confused” the two different concepts of “harm”, and therefore did not properly address the complementary protection criterion.

13. What can be said for current purposes, therefore, is that the argument ultimately successful in SZSFK was available in an appropriate case from the introduction of the complementary protection amendment to the Act, and certainly from the date of the Tribunal’s decision.

14. That this argument is not available, in any event, in the current case is considered further below. In the meantime, the situation presented is that the applicant, with legal representation delayed for some 7 months before seeking judicial review in circumstances where he could have raised the very argument he seeks to raise now. He did not. With legal advice he discontinued those proceedings and without any satisfactory explanation in all the circumstances seeks to recommence the same proceedings now.

15. This is not a case where an unrepresented applicant had no knowledge of how to go about making an application to the Court. The applicant had been represented throughout the process before the Tribunal, and had two different legal representatives and legal advice available to him.

16. The Minister referred the Court to Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470 (“Marks”) per McHugh J at [15] – [17]:

    “[15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

    [16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, ‘[t]he rules of court must prima facie be obeyed’. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

    [17] An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”

    [Emphasis Added]

17. I respectfully understand the phrase “to do justice between the parties” to be a part of, and in a real and relevant sense synonymous for current purposes with, the “interests of the administration of justice” which is the test that the Court is now required to apply in the exercise of the discretion pursuant to s. 477(2) of the Act.

18. It is, to respectfully apply the reasoning of McHugh J to the current circumstances, difficult to see, independent of the merits of the case, how the applicant who not only had knowledge of the Tribunal’s decision, but was also legally represented, delayed 14 months before the current attempt to seek judicial review can be said to have provided a satisfactory explanation for the delay. This delay in circumstances where he abandoned an earlier attempt at seeking judicial review, also well out of time, and where the very same arguments which he now seeks to make about the Tribunal’s decision were available to him and his former legal representative to have made at an earlier time.

19. I note also, (albeit in a context where applicants for protection visas sought Ministerial intervention, instead of coming to a Court) the following authorities:

    1)Sithamparapillai & Anor, Ex parte - Re MIMA & Anor [2004] HCATrans 364 (22 September 2004) per Hayne J at page 18 of 19:

    “Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants contended, that there be no continuing legal proceedings extant. Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegations which now it is sought to pursue. That of itself would be reason enough to conclude that the proceedings brought should stand dismissed...”

    2)Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J at page 24 of 28:

    “The plaintiff’s decision to seek ministerial intervention rather than commence legal proceedings within time is not a sufficient reason to justify the plaintiff’s delay in bringing the present application to this Court...”

    3)Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 per von Doussa J at [9] – [10]:

    “[9] There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s 417. The application under s 417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.

    [10] The delay therefore is not adequately explained. That, alone, in my view, would be sufficient to refuse the application for an extension of time...”

1. I should also note that there was no suggestion before the Court now that the applicant’s previous legal representative acted in any way negligently, or lacked competence.

2. The failure to provide a satisfactory explanation for the lengthy delay may be sufficient in itself, and especially having regard to the particular circumstances of this case, to base the refusal of the exercise of the discretion, and refuse the extension of time, which the applicant seeks.

The Merits of the Substantive Application

1. In any event, the grounds of the proposed “substantive” application are without merit. The grounds are:

   “[1]The First Respondent failed to address the correct question before it, namely whether the applicant was entitled to be granted a protection visa according to law.

   Particulars

   a. The First Respondent concluded at paragraph 175 that considering the Applicant could not meet the refugee criterion in accordance with section 36(2)(a),this meant he could not meet the complimentary protection criterion referable to the application of s36(2)(aa). Further this rationale was applied at paragraph 176 in dismissing related claims.

   [2] The Applicant has been denied procedural fairness in the making of the decision by the First Respondent with respect to the operation of Section 36(2)(aa) of the Migration Act and in doing so offends the application of Section 420(2)(b). Application of this provision includes the duty of the Respondent to identify to the Applicant issues which may be of determinative significance, which were not apparent from the terms and nature of the Protection Visa Application completed, nor the Department or Tribunal interviews conducted. Such duty also exists independently of statutory obligations.

   PARTICULARS

   a. Section 36(2)(a) provides for consideration of Convention based persecutory grounds whilst section 36(2)(aa) provides for consideration of claims with respect to complementary protection.

   b. The First Respondent either did not apply any procedure, or any satisfactory procedure, to identify issues distinct from Convention based persecutory claims which could be relevant and determinative when considering claims based on harm, and to inform the Applicant as to the character of such issues.

   c. The Applicant assumed the reasons provided by the Minister’s Departmental Delegate for refusing to the Protection Visa identified the totality of issues that arose in relation to that decision, and proceeded with his request for review and attendance at the interview with the Tribunal on such basis.

   d. Had the Respondents discharged the notification of obligations as to unresolved complementary issues the Applicant would have been provided with an opportunity to particularise such claims, which could include discrimination, socioeconomic deprivation and failure of Police to provide protection with respect to risk personally faced by the applicant, and other harm not falling within a Convention ground.

   e. As at the time of completion of the application of a Protection Visa Class XA on Form 866A and the time of Departmental and tribunal interview, the Applicant remained ignorant of the evidentiary ambit of Complementary claims, in contrast to the knowledge of the Respondents as to the ambit of such claims.

   f. The Decision record of the Respondent limits complementary consideration to a set of factual circumstances or mosaic, as conveyed with respect to persecutory claims, the effect of which has been to curtail and/or intermix the ambit of analysis contemplated with respect to the operation of section 36(2)(aa), and deprive effective consideration thereof.

   g. Further, by virtue of the conclusion drawn as to the Applicant not being found to have suffered serious harm in the Convention context, such view has been extended to the unresolved context of complementary harm and/or also sustained the evidentiary foundation in dismissing claims of a real risk of significant harm that could have been raised.

   [3] Error of law.

   PARTICULARS

   a. There is no evidence that the Respondent adopted the correct evidentiary test when considering Complementary claims, namely a real chance of real risk.

   b. The First Respondent concluded as a result of determining the Applicant could not satisfy a Convention based ground, this therefore meant that the Applicant could not satisfy evidentiary criteria with respect to section 36(2)(aa).

   c. The effect of application of section 91R(3) dictated in part the character of complementary assessment extinguishing any evidentiary weight being ascribed to events occurring in Australia that could support such claims.”

2. I should note, that the applicant appears to have misunderstood what was actually found in SZSFK, and has misunderstood the reasoning and findings of the Tribunal and the basis for those findings.

3. In SZSFK the Court found (at [97] per Judge Driver):

   “….the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).”

4. No such inference is arguable in the current case. The basis for the Tribunal’s findings that the applicant did not meet either of the criteria in s. 36(2) of the Act, was its comprehensive rejection of the applicant’s factual claim which sat at the core of his application. That is, his claim that he was a homosexual, and was in a homosexual relationship.

5. The Tribunal comprehensively rejected those factual claims. It did so for the extensive reasons it gave. This rejection was based on the inconsistencies and contradictions in the applicant’s evidence, the inconsistencies in his purported partner’s evidence, and the Tribunal’s rejection of the applicant’s explanation for this.

6. In none of this, in contrast to SZSFK, was any finding made in such a way as to say that the Tribunal confused, or conflated the “tests” for “serious” and “significant” harm, as asserted by the applicant now.

7. The Tribunal found that the applicant did not meet the criterion at s. 36(2)(a) of the Act because the central premise of his claim was not accepted. It separately found that he did not meet the criterion at s. 36(2)(aa) of the Act because the central premise was, again based on the factual assertion that he was a homosexual, which had been rejected by the Tribunal.

8. Ground one of the proposed application asserts that the Tribunal failed to address the correct question at law. The particular to that ground asserts that at [175] of its decision record (TD 37) the Tribunal concluded that the applicant could not meet the refugee criterion, and therefore could not meet the complementary protection criterion.

9. This is a misrepresentation of what the Tribunal actually said in its finding that the applicant was not a homosexual. That finding was not based on, and did not involve, any consideration of the Refugees Convention. Rather it was purely a factual finding that underpinned the Tribunal’s conclusion as to s. 36(2)(a) of the Act, and separately, s. 36(2)(aa) of the Act (see [175] – [176] at TD 37).

10. Ground two asserts a denial of procedural fairness pursuant to s. 420(2)(b) of the Act. The applicant failed to explain the proper relationship between this section and s. 422B of the Act before the Court. Further, the reference in his proposed substantive ground to “determinative issues” appears to confuse this section with s .425 of the Act, and what the High Court said about the Tribunal’s procedural fairness obligations in this regard in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”).

11. It must be said that the applicant’s submissions before the Court here were not clear. As referred to at [16] – [21] above there were a number of interwoven “strands” to the submissions.

12. Section 425 of the Act, and as explained by the High Court in SZBEL, does not stand for the various “propositions” implicit in the applicant’s submissions before the Court.

13. I respectfully understood that what sat at the heart of the High Court’s reasoning in SZBEL is the well-established common law principle that an applicant has the right to know the case against them and to be given the opportunity to respond. The statutory incarnation of that principle in s. 425 of the Act means that if the issues that determine the Tribunal’s review of the delegate’s decision are not apparent, or do not arise from the delegate’s decision, then these issues must be exposed at the hearing held following the invitation extended pursuant to s. 425 of the Act.

14. This does not mean, as the applicant’s submissions implied, that the Tribunal is compelled to make out an applicant’s case for him or to pursue the conduct of the review indefinitely until the applicant can come up with the “right” answers (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 per Keane CJ at [35] and Minister for Immigration v Ley Lat [2006] FCAFC 61 at [76]). Nor to give a running commentary, or expose its thought processes to the applicant (Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]).

15. The Tribunal’s relevant obligation is the provision of a meaningful opportunity to an applicant (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188). That is, a meaningful opportunity to present their case, to know the case against them and to speak to that case on matters which dispose of the review.

16. The applicant appears to ignore the evidence which he himself has put before the Court. That is, the Tribunal’s decision record, which shows that the Tribunal convened an “additional” hearing specifically for the purpose of explaining the complementary protection related matters ([84] – [85] at TD 21):

    “[84] The Tribunal advised the review applicant that since he lodged his application for review, the Migration Act and regulations had been amended. The Tribunal explained that those changes to the law mean that if the Tribunal is not satisfied that he is a refugee, it would also consider whether he is entitled to a Protection visa because of Australia’s complementary protection obligations.

    [85] The Tribunal explained that this would require the Tribunal to consider if it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. The Tribunal also advised that ‘significant harm’ means that he will be arbitrarily deprived of his life; or the death penalty will be carried out [on] him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or degrading treatment or punishment.”

17. The Tribunal reported that at that occasion ([129] – [130] at TD 28):

    “[129] The Tribunal asked the review applicant if he wished to provide the Tribunal with any further evidence in support of his application. The review applicant thanked the Tribunal and promised that everything is true; that he loves his partner very much; he is a relationship with him; and he is looking forward to settling down with him. He concluded that everything he said is true and apologised for any confusion or if he forgot something.

    [130] The Tribunal advised the review applicant that it would allow five calendar days for his representative to listen to the audio recording of the hearing and make written submissions before it turned its mind to the decision.”

18. The application’s submissions before the Court appeared to argue that the Tribunal had a “duty to inquire” and to “elicit information consequential to SZSFK”. That would be, he said, a “proper investigation”.

19. I did not understand the reference to a “duty to inquire” to be put in the sense contemplated by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (at [25]). Rather, the submission was that the Tribunal should have “inquired” at the hearing by asking certain specific questions confined to the complementary protection criterion (thus the reference to SZSFK).

20. These submissions suffer from a lack of a proper understanding of the Tribunal’s relevant obligations as set out above. In essence, the applicant’s case was that he was a homosexual man in a homosexual relationship. Initially (given that it was prior to the introduction of the complementary protection amendment to the Act) the review, and in particular the earlier hearing, proceeded on the basis of considering the application’s factual claims in the context of the Refugees Convention.

21. The Tribunal’s invitation to attend the second occasion of the hearing specifically put the applicant on notice that his factual claims would, if he did not meet the definition of “refugee”, also be considered in the context of the complementary protection criterion. As shown in the extract set out above, the Tribunal explained the different meaning of “significant harm” (as compared to “serious harm”) in an orthodox fashion ([84] – [85] at TD 21). The applicant does not challenge the Tribunal’s account.

22. The issue determinative of the review was whether the applicant was a “homosexual man” in a homosexual relationship. This factual issue was independent of any application of the differences between serious or significant harm.

23. At the resumed hearing, the Tribunal told the applicant of its difficulty in accepting that he was a homosexual ([90] at TD 21 to TD 22):

    “The Tribunal put to the review applicant that on the basis of the claims and evidence as a whole it was not yet satisfied that he is a homosexual man. The Tribunal indicated further that even it were to accept that he did visit the Peel Hotel or meet Mr Messede there, it would be open to it to find on the evidence as a whole that he did so for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal would be required to disregard that evidence pursuant to section 91R(3) of the Act. The Tribunal explained that if it made such findings it would be reasonable to also find that the claims and information set out in the letters of support from Mr Messede, Mr Raoua Baraka, Mr Abdel Youssef, Mr Mohamad Awad or Mr Mohamad Ali that had been submitted to the Tribunal by the review applicant are not credible or reliable and it would not give them favourable weight.”

24. The Tribunal continued to explore the applicant’s factual claims as to this relationship (see for example at [92] at TD 22). After taking evidence from his witnesses (who gave evidence in support of the applicant’s factual assertion as to his sexuality), the Tribunal told the applicant ([114] at TD 25):

    “The Tribunal advised the review applicant that there were a number of inconsistencies between his evidence and the evidence of his witnesses. The Tribunal said that there were also some inconsistencies between his evidence at the hearing and the evidence his partner at a Tribunal hearing on the same day in relation to his partner’s application for review. The Tribunal explained to the review applicant the procedures set out under section 424AA and stated that it wished to put the inconsistencies in the evidence of the other people to him to comment on or respond to.”

    [See also [115] at TD 25 to [128] at TD 28 in this context]

25. The applicant and his adviser were given the further opportunity to make written submissions ([130] at TD 28):

    “[130] The Tribunal advised the review applicant that it would allow five calendar days for his representative to listen to the audio recording of the hearing and make written submissions before it turned its mind to the decision.”

26. The applicant’s suggestion now that the Tribunal’s failure to ask specific questions with specific reference to the complementary protection criterion was some failure at law, must be rejected. Each of the “suggested” questions put orally in submissions before the Court, “what do you think would happen if your parents knew or allegedly do know [that you are a homosexual?] What do you think would happen?”, were premised on the assumption that the applicant was in fact a homosexual.  

27. On the evidence before the Court, the applicant was plainly aware of the dispositive issue in the review. He was made aware by the Tribunal of the complementary protection criterion. He was represented by a registered migration agent. He was given the opportunity both at the hearing, and subsequently, to give his evidence and make out his case. The Tribunal is not required to consider the complementary protection criterion in the abstract. The Tribunal’s consideration must be with reference to the facts as presented. The applicant was given the opportunity to address his evidence in the context of both, separate, criteria. There is no merit in the applicant’s argument.

28. It must also be said that the particulars to ground two, both in context of the above and on their face, are not helpful.

29. Particular (a) is an assertion of the legal position derived from ss. 36(2)(a) and 36(2)(aa) of the Act. If the applicant seeks to say there is a difference between the two, then this trite point may be accepted.

30. Particular (b) again fails to understand, as set out above, that the applicant’s application for review was unsuccessful because the Tribunal rejected his core factual claim. How any distinction between “Refugees Convention issues” and “complementary protection issues”, and the Tribunal’s alleged failure to explain this to the applicant could assist him now was never satisfactorily explained.

31. Further, the Tribunal specifically noted that at the hearing the applicant gave evidence about matters directly relevant to the criterion at s. 36(2)(aa) of the Act. That is, the fear of torture and arbitrary deprivation of his life (see [176] at TD 37).

32. Particular (c) asserts that the Tribunal assumed the Minister’s delegate’s decision contained the totality of the determinative issues in the review. Any plain reading of the Tribunal’s decision, and its report of the delegate’s decision, refutes that allegation. The delegate saw, as best as can be ascertained, that the determinative issue was “relocation”. The Tribunal plainly took a different view. A view it made plain to the applicant at the hearing (on both occasions).

33. Further, just what is meant by “the notification obligations as to unresolved complementary protection issues” in particular (d) was never explained before the Court. If it is some attempt to argue that the Tribunal was obliged to further explain the criteria in s. 36(2) then no authority was proffered to support any such proposition. Rather, the applicant now appears to ignore that he was represented before the Tribunal and that his representative could have explained to him any matters which he did not understand. Nor is it for the Tribunal to make out his case for him (see above at [56] and SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233).

34. It is quite clear, as set out above and having regard to the Tribunal’s decision record, that the applicant was given every opportunity to put his claim, make his arguments and make out his case. No failure of procedural fairness is apparent in this regard.

35. Particular (e) also remained unexplained. Just what is meant by “evidentiary ambit of Complementary [protection] claims” was never explained. If the applicant “remained ignorant”, as is claimed, then he should look to his former advisor.

36. In his affidavit before the Court the applicant stated that at the time of the review before the Tribunal (at [3] of his affidavit)

    “…I believed the issue to be determined was restricted to grounds based upon political persecution which I know can be described as harm suffered for reasons which includes political opinion, religion, membership of social group and other grounds.”

    He then went on to give evidence that he remained ignorant throughout the conduct of the review as to complementary protection. He said that all of his claims, and submissions, were directed to the criterion relevant to the Refugees Convention.

1. The applicant set out in his affidavit certain matters which he said he would have put to the Tribunal had he been aware of the complementary protection criterion.

2. The applicant was not cross-examined before the Court. He was not tested in this regard. Nonetheless, when the applicant’s evidence is juxtaposed with the evidence of the Tribunal’s decision record it is difficult to perceive his evidence as anything other than conveniently self-serving.

3. What must be noted, again, is that the applicant was represented before the Tribunal by a registered migration agent who was also a lawyer. As no challenge is made now to the Tribunal’s record before the Court what remains, as set out variously above, is that the different criteria were explained to him, and he was given the opportunity to give his evidence.

4. In any event, much of what the applicant now says he would have told the Tribunal (if he had known about complementary protection) appears to be far more relevant to the Refugees Convention than complementary protection (see the references to “serious harm”, “Sunni refugees and the inability and unwillingness of police to provide protection to Sunnis at [8] of his affidavit).

5. Particulars (f) and (g) misrepresent the Tribunal’s analysis, even leaving to one side what is meant by the reference to the Tribunal’s “mosaic”. The Tribunal did not assess the complementary protection criterion limited to the Refugees Convention criterion. As set out above, the basis for both conclusions, as to each criterion, was a rejection of the applicant’s central factual claim.

6. I note that at particular (g) the applicant is correct to say that the “evidential foundation” for both assessments (Refugee Convention and complementary protection) was the same. That is, the assessment of the claim to be a homosexual which was rejected by the Tribunal in the reference to the factual circumstances presented by the applicant. Unfortunately he has not seen the consequence of this in the remainder of his application to the Court.

7. Ground three asserts error of law.

8. The first particular asserts that there is “no evidence” the Tribunal adopted the correct test. That is, a “real chance of real risk”. This assertion has no basis on a plain reading of the Tribunal’s analysis (see the Tribunal’s decision at [175] where it quotes the phrase “real risk” (at TD 37)).

9. The substance of particular (b) of ground three (with the implied reference to the Tribunal’s application of the Refugee Convention’s analysis to complementary protection consideration) has already been addressed above.

10. Particular (c) of ground three appears to assert that the Tribunal did not take into account the applicant’s claimed activities in Australia in assessing the complementary protection criterion because it disregarded those activities pursuant to s. 91R(3) of the Act in circumstances where it was not open for it to do so.

11. It is the case that conduct in Australia disregarded pursuant to s. 91R(3) relates only to the assessment under the Refugees Convention, and not the complementary protection criterion (see SZRQR v Minister for Immigration & Anor [2013] FMCA 21 at [13] and SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 at [35]). However, on the best evidence available to the Court, the Tribunal dealt with the claims to fear “significant harm” (relevant to s. 36(2)(aa) of the Act) on the basis of what the applicant actually said he feared would lead to “torture” or “arbitrary deprivation of his life” or “liberty”. There is nothing before the Court to show the applicant had any such fear or made a claim to have any such fear as a result of his claimed activities in Australia.

12. Before the Tribunal the applicant, relevantly, claimed that while in Australia he lived in a homosexual relationship, provided “images” on a CD of him and his claimed partner ([87] at TD 21), and gave evidence that he had visited a “gay bar” on one occasion ([89] at TD 21). The Tribunal disregarded this conduct for the purposes of its consideration under the Refugees Convention pursuant to s. 91R(3) of the Act ([163] at TD 34 to [168] at TD 36).

13. In relation to its findings at [175] – [176] (at TD 37) (dealing with complementary protection) two factual findings made by the Tribunal, independently of the Refugees Convention, are central to its consideration under complementary protection and stand in answer to the applicant’s ground three.

14. First, the Tribunal found as a matter of fact that the applicant was not a homosexual and had not been in a homosexual relationship. This finding included the claim that he had been in a homosexual relationship while he was in Australia.

15. Second, the Tribunal found that the applicant’s family ([172] at TD 36):

    “…did not know that he is a homosexual man because he is not a homosexual man and he has not been in a homosexual relationship. The Tribunal does not accept that his family have stopped talking to him because someone informed his family of his homosexuality…”

    (see also [134] at TD 28 to [135] at TD 29).

16. Having made these factual findings, and having considered the applicant’s claims under the complementary protection criterion ([176] at TD 37), the Tribunal found that there were no substantial grounds for believing that there was a real risk the applicant would suffer significant harm on return to Lebanon. This was reasonably open to the Tribunal on the material before it.

17. Although it was not clear to which ground the following submissions were directed, or if they underpinned all the grounds, the applicant also submitted before the Court that the Tribunal had not properly addressed the matter of “religion”.

18. The applicant referred to [39] (at TD 8):

    “The Tribunal explained to the review applicant the definition of a refugee under Australian law. The Tribunal asked the applicant to confirm the reasons why he believed he would be persecuted if he returned to Lebanon. He confirmed that he feared persecution on the basis of his membership of a particular social group, namely homosexual men in Lebanon; and for reasons of religion. He stated that he did not fear persecution on any other ground.”

    [Emphasis added.]

19. Further, he referred to the following from [56] (at TD 11):

    “…if he now returns to Lebanon he will be punished…and by his religion…”

20. The applicant’s witness gave evidence before the Tribunal that ([73] at TD 14):

    “The witness closed his evidence by stating that coming to Australia had saved his and his partner’s lives and it had given them their rights and freedoms. He requested the Tribunal to help them out of a very critical situation especially as someone has called the Department and also called his family and told them that he is a homosexual. He said that his family called him back and told him that they would kill him if he returned to Lebanon. He stated that the caller knows nothing about him and that he only passed on the information for reasons of his religion and because he wants him to face the death penalty in Lebanon under Islamic belief so that he will be rewarded by God.”

21. At best, I understood the submission to be that the Tribunal failed to consider, or did not properly explore with the applicant at the hearing, the claim that he could suffer “significant” harm because of the attitude of those of the Muslim religion who had particular adverse views about homosexuality.

22. The short and complete answer to this complaint is found both in the Tribunal’s factual rejection of the claim to be a homosexual and its specific reference at [176] (at TD 37):

    “…the Tribunal has taken into account the applicant’s evidence at the further hearing that he fears being tortured or arbitrarily deprived of his life particularly by those who take it upon themselves to apply sharia law in Lebanon….”

23. None of the applicant’s grounds, or submissions, reveal any merit such as to justify an extension of time.

Other Elements in the Consideration Pursuant to s 477(2)

1. A further element arguing against any such extension is to be found in the application of the principle that there should be finality in litigation. The applicant, with legal advice, previously commenced in this Court a challenge to the same Tribunal decision. He discontinued those proceedings while legally represented. His own evidence is that his lawyer filed the relevant notice (see also Marks at [15]).

2. It is not in the interests of the administration of justice that the Minister now be put to again considering the applicant’s substantive application, albeit with different grounds, in the circumstances presented to the Court.

3. The applicant asserts that there would be no prejudice to the Minister if time were to be extended. That argument must be rejected in circumstances where the applicant, with legal advice, discontinued previous judicial proceedings concerning the same Tribunal decision.

4. The Minister is charged with the proper administration of the Act. Prejudice does attach to the Minister if applicants for visas ignore any unfavourable outcome to a visa application, fail to make an application for judicial review in the time set by the Parliament, make an application out of time for judicial review, with legal advice withdraw it, then some months later seek to recommence the same proceedings. There was no evidence before the Court that the applicant had any lawful authority to remain in Australia for much of that period.

5. This also engages the wider public interest. Whatever different views exist in the Australian community in reference to the relevant parts of the Act, it cannot be in the interest of the Australian community at large that persons aggrieved by migration decisions choose to remain in Australia in circumstances where their claims to protection have been tested twice and where no satisfactory explanation for the delay in seeking judicial review to address grievances arising from these assessments, is put to the Court some 14 months after the Tribunal’s decision.

Conclusion

1. For all these reasons it is not in the interest of the administration of justice that time be extended pursuant to s. 477(2) of the Act. The application for an extension of time should be refused. I will make an order accordingly.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  31 October 2013