SZSSR v Minister for Immigration

[2015] FCCA 703

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 703

Catchwords:
MIGRATION – Application for an extension of time – substantive application seeking review of decision of the Refugee Review Tribunal – explanation for delay satisfactory – whether Tribunal failed to take a relevant consideration – whether Tribunal failed to consider an integer of a claim – whether Tribunal failed breached procedural fairness obligations ‑ not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 476, 476A, 477

Federal Court Circuit Rules 2001 (Cth), r.4.05
Migration Legislation Amendment Act (No.1) 2009 (Cth)
Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth)

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176 ; (1984) Admn 96-034; 3 FCR 34
ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Dranichnikov  v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323

First Applicant: SZSSR

Second Applicant: SZSSS

Third Applicant: SZSST

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 680 of 2013

Judgment of: Judge Nicholls

Hearing date: 11 March 2015

Date of Last Submission: 11 March 2015

Delivered at: Sydney

Delivered on: 27 March 2015

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Sweeney Tiggeman

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Leave is granted to the applicants to rely on the amended application filed on 11 March 2015.

2. Leave is granted to the applicants to rely on written submissions filed on 18 February 2015.

3. Leave is granted to the applicants to rely on the affidavits of Brett Ford affirmed on 17 July 2014, David Sweeney sworn 20 February 2015, Frances Milne affirmed 21 February 2015 and the first applicant sworn 25 February 2015

4. The application for an extension of time made on 4 April 2013 pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

5. The first and second applicants pay the first respondent’s costs set in the amount of $8,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 680 of 2013

SZSSR

First Applicant

SZSSS

Second Applicant

SZSST

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 4 April 2013 the applicants made an application pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application pursuant to s.476 of the Act (“the substantive application”). The applicants were the subject of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 January 2013 which affirmed the decision of the Minister’s delegate to refuse protection visas to them.

The Issue

1. Section 477(1) of the Act provides that an application made pursuant to s.476 of the Act must be made to this Court within 35 days of the date of the making of the Tribunal’s decision. In the current case, the application was made thirty four days after the expiry of the 35 day period. On this basis, the substantive application pursuant to s.476 of the Act is not competent.

2. Section 477(2) provides that, upon written application by an applicant, the Court may extend the time for the making of the substantive application, if it considers it is in the interests of the administration of justice to do so. The applicants have made such an application in writing. The key issue before the Court is whether time should be extended.

The History Before the Court

1. At the first Court date in this matter, on 8 May 2013 a number of orders were made for the conduct of the case. The application for an extension of time was set down for hearing, ultimately, on 27 February 2014. It is of relevance to note that at the time of making the application, and at the time of the first Court date, the applicants were represented by a solicitor who continues to represent them now.

2. On 11 February 2014, orders were made, by consent of the parties, that the hearing be vacated and the matter be adjourned for further directions following the outcome of relevant proceedings in the High Court (S297-2013 v Minister for Immigration and Border Protection). In essence, the matter at issue was whether the Tribunal had jurisdiction to consider matters involving persons who were said to be “unauthorised boat arrivals” and whether any remittal by this Court to the Tribunal was therefore futile.

3. In the meantime, the Australian Senate disallowed relevant legislation Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), which was the subject of the High Court proceedings. On this basis, there was no question as to the Tribunal’s jurisdiction. On 8 May 2014 the extension of time was relisted for hearing on 24 February 2015. Neither party asked for any other procedural orders to be made.

4. On that date (24 February 2015), the applicants also continued to be represented by the same solicitor, and were also represented by counsel. The applicants sought leave to file an amended application and written submissions. It appears that the respondent Minister was put on notice of the intention to seek such leave on, or about, 18 February 2015.

5. As set out above, the latest relevant orders for the filing of any amended application, evidence by way of affidavit and written submissions were made on 8 May 2013. No orders relevant to these matters were subsequently sought by either party until now. Those orders provided for any amended application, and evidence by way of affidavit, to be filed by 10 July 2013. An order was also made requiring written submissions to be filed by the applicant 14 days before the hearing.

6. Given the sequence of events set out above, the applicant did not seek leave to file any amended application after 10 July 2013. Written submissions were to be filed by 10 February 2015 (that is, 14 days before the hearing). It is important to note that throughout the entire period the applicants were represented by solicitors. No attempt was made by the applicants to exercise the liberty granted to both parties on 8 May 2013 to seek any further procedural orders on three days’ notice.

Before the Court

1. As set out above, the applicants sought to file written submissions within the 14 day period, specifically, some 8 days “late”. Further, the applicants sought to “plead” an amended application by way of these written submissions.

2. At the hearing on 24 February 2015, the applicants attempted to explain the delay and “deficiencies” in the conduct of the applicant’s case, in light of the above. The applicants sought to read a number of affidavits directed to various issues. At that stage, it must be said, the applicants’ case lacked clarity and structure, such that the hearing could not effectively, and efficiently, proceed given the lack of coherent focus on the facts to be derived, and the case to be argued.

3. In the circumstances, I determined that the hearing of the extension of time should not proceed on that date. The matter was adjourned until 11 March 2015. I also made an order that the applicants file an Application in a Case (“AIC”) by 3 March 2015, to properly seek any procedural orders in relation to any amended application and to identify the affidavit evidence on which the applicants would seek to rely. In compliance with r.4.05 of the Federal Court Circuit Rules 2001  (Cth) (“FCC Rules”) any such AIC was to be accompanied by an affidavit in support. I made clear to the applicants that on 11 March 2015 I would only proceed on the documents identified in the AIC.

4. On 3 March 2015 the applicant did file an AIC. They sought the following orders:

   “1. Leave granted pursuant Federal Circuit Court Rules 7.02 and 10.01 for the Applicant to file in Court, on 11 March 2015, an Amended Application, in the form of the draft circulated on 19 February 2015, and for the applicants to rely on that Amended Application.

   2. Leave granted pursuant to Federal Circuit Court Rule 10.01 for the Applicants to rely on submissions filed on 18 February 2015.

   3. Leave granted pursuant to Federal Circuit Court Rule 10.01 for the Applicants to rely on the following affidavits: -

   a) Affidavit of Brett Ford affirmed 17 July 2014

   b) Affidavit of David Sweeney sworn 20 February 2015

   c) Affidavit of Frances Milne affirmed 21 February 2015 and;

   d) Affidavit of Abdollah Shiyari sworn 25 February 2015.”

5. The affidavit of Mr David James Sweeney, the applicant’s solicitor, made on 3 March 2015, accompanied the AIC, in compliance with r.4.05 of the FCC Rules. The affidavit annexed the following documents:

   1)The affidavit of Mr Sweeney made on 20 February 2015.

   2)A proposed amended substantive application. It is to be noted that this proposes to amend the original proposed substantive application which itself was filed outside the time limit set out at s.477(1) of the Act.

   3)The affidavit of Brett Ford, a director of a transcription service, made on 17 July 2014, and annexing a Transcript (“T”) of the hearing before the Tribunal held on 17 December 2012.

   4)The affidavit of Ms Frances Milne made on 21 February 2015.

   5)The first applicant’s affidavit of 25 February 2015.

   6)The applicants’ written submissions addressing the question of the extension of time pursuant to s.477(2) of the Act and the grounds of the proposed amended substantive application.

6. The Minister’s response was as follows. First, to oppose leave being granted to the applicants to rely on the “new grounds”. That is, the grounds in the proposed amended substantive application. In essence, the Minister’s argument was that on the evidence, the applicants were ready to proceed to a hearing of the applicants’ application for an extension of time in early 2014. There was a considerable period of time during which the applicants could have identified, and “notified” the Minister of the new grounds. Further, that the “new grounds” did not disclose any meritorious grounds of review.

7. Second, to not oppose the applicants’ application for an extension of time. The Minister said that he no longer pressed his objection to this in respect of the “original” application.

8. The application for immediate preliminary attention is the applicants’ AIC. This does not just press the “new grounds” of the proposed amended substantive application, but provides evidence to support the application for an extension of time in respect of the original, but not competent, application seeking review of the Tribunal’s decision.

9. The Minister’s position is clear with relation to the grounds of the proposed amended substantive application. What is perhaps not as clear is the context within which the Court should consider the question of the “new grounds”.

10. The Minister does not oppose the extension of time. This appears to be because the Minister accepts the applicants’ evidence (and that of Ms Milne) for the delay in making the original application seeking review of the Tribunal’s decision.

11. However, in my view, there is no finite list, or restriction, on the number of elements relevant to the Court’s consideration, pursuant to s.477(2) of the Act, of whether it is in the interests of the administration of justice to extend time (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771). The matters of the length of the delay, and whether there is any satisfactory explanation for it, are generally but two of a number of elements relevant to the consideration. The relevant elements for consideration in any one case arise from the circumstances presented. In the current case, the Minister has made plain his position that the “new” proposed grounds lack any merit.

12. In earlier written submissions dated 18 February 2015, the Minister also makes clear that the original grounds of the substantive application lack merit (see respondent’s written submissions of 18 February 2015 at [22]). [I note that the respondent’s submissions filed on 6 March 2015 include two sets of written submissions. For convenience, I shall refer to them by the two separate dates when the respective submissions were signed by counsel, 18 February 2015 and 23 February 2015.]

13. It is also clear in the circumstances of this case, that the matter of the merit of both sets of grounds are important elements in any consideration to extend time pursuant to s.477(2) of the Act.

14. In this light, it is difficult to see how the Minister does not oppose the extension of time, but insists, at the same time, that there is no merit in any of the grounds. It cannot be in the interests of the administration of justice to extend time simply to dismiss either the original application, or the proposed amended substantive application, on the basis of any lack of legal merit in the grounds.

15. The following questions emerge from the above:

    1)Should leave be granted as variously sought in the AIC?

    2)Do the grounds of the proposed amended application contain merit such as to weigh in favour of the extension of time pursuant to s.477(2) of the Act?

    3)Do the grounds of the original, but not competent, substantive application contain merit such as to weigh in favour of the extension of time pursuant to s.477(2) of the Act?

    4)What is the extent of the delay in making the application seeking review of the delegate’s decision, and have the applicants provided a satisfactory explanation for it, such as to argue in favour of the extension of time pursuant to s.477(2) of the Act?

    5)Are there any other relevant elements in the circumstances of this case which should be considered in the consideration pursuant to s.477(2) of the Act?

    6)Should the discretion to extend time pursuant to s.477(2) of the Act be exercised in the applicants’ favour?

Should the leave sought in the Application in a Case be granted?

1. The first question posed at [24] above is whether leave sought in the AIC should be granted. The Minister opposes the granting of the leave. In addition to the lack of merit in the grounds of the proposed substantive application, the Minister argues that the applicants have had a reasonable opportunity to raise the grounds they now seek to raise.

2. In the circumstances of this case, there is strength in the Minister’s position. The applicants before the Court have been legally represented since, at least, 4 April 2013 when they made their application for an extension of time.

3. Further, as the evidence of Ms Milne would reveal, if leave was granted (see at [9] – [10] of her affidavit), counsel, who now appears for the applicants, was approached by her, on the applicants’ behalf, sometime in early 2013 and was given relevant documents on 21 March 2013. That is, the delegate’s and Tribunal’s decisions, the transcript of the Tribunal hearing, and “other” documents.

4. The state of the evidence which is the subject of the leave sought before the Court now is that all of the applicants’ proposed grounds of the proposed substantive amended application arise from those documents. Ms Milne does not expressly refer to the “post-hearing submissions” from the applicant’s representatives before the Tribunal, which attached the emails from the family in Iran (see further at

   
   

   [74] – [109] below). However, these were plainly documents given by the applicants, through their representatives, to the Tribunal. In these circumstances, if they were not part of the “other documents” referred to in Ms Milne’s affidavit, they would have been available to the applicants’ legal representatives to have obtained from the applicant.

5. Mr Sweeney’s affidavit of 3 March 2015 provides the explanation that the documents, now the subject of the AIC (and as annexed to his affidavit), were not filed earlier because he was unaware of relevant orders made by the Court as to the time for filing of such documents. That evidence does not satisfactorily explain why this is so, given that Mr Sweeney was present in Court on 8 May 2013 and was on the record as the applicants’ solicitor when the orders were made.

6. Nor was there any satisfactory explanation given either in evidence, or for that matter, by way of submission, as to why these matters could not have been attended to in the lengthy period between that date, and the time when action was taken. That is, some six days before the hearing.

7. In submissions to the Court, the applicants made reference to workload pressures on legal representatives, that “mistakes”, for which an apology was tendered, can be made, and that the applicants’ legal representatives acted in a pro bono capacity.

8. There is no proposed evidence to support the first and second points in those submissions. The solicitor’s explanation for the delay was said to be his lack of awareness of the Court’s orders. However, even if workload pressures were said to be a relevant consideration, there is nothing in the evidence the applicants seek to present, nor in submissions, to explain the lack of action over such a period of time that was otherwise available. I do not take into account that period of time when the matter of the Tribunal’s jurisdiction was a “live” issue.

9. As to the last point, while legal practitioners acting pro bono plainly deserves some positive approbation I do not comprehend that it means that the applicants’ case may be given a lesser standard of care than would otherwise be given by those legal representatives.

10. It is clear, therefore, that in the circumstances, the Minister has a number of strong arguments in support of his opposition to leave being granted to the applicants, in the form of the orders sought in the AIC. However, there are two matters that stand in favour of granting the leave.

11. First, it must not be forgotten that the central issue in this case is whether the Court considers it is in the interests of the administration of justice to extend time, pursuant to s.477(2) of the Act, to enable the applicant to bring a competent application before the Court in relation to a decision that, ultimately, led to them being denied protection in Australia.

12. In my view, there is an obligation on the Refugee Review Tribunal makes lawful decisions. Granting the leave sought by the applicants allows the question of the lawfulness of the Tribunal’s decision to be tested in this Court.

13. The strength of the Minister’s arguments, in large part, in opposing the leave sought by the applicants, derive from the lack of action, omissions, mistakes, and it must be said, the unexplained tardiness of the applicants’ legal representatives. On the (proposed) evidence presented to the Court, the applicant himself, acting on behalf of his family, acted with appropriate speed in relation to those matters that were within his own ability to pursue.

1. In matters of this type, in my view, the applicants should not be disadvantaged because of the omissions of their legal representatives. That they acted pro bono is not an argument to satisfactorily explain their lack of action. However, it also should not result in disadvantage to the applicants.

2. The applicants in this matter should be given the opportunity, albeit through those same legal representatives, to put forward the best case possible that the circumstances allow. That is particularly so in circumstances where the consequences of any refusal to extend time means, that amongst other things the operation of s.476A of the Act means that the current consideration represents, realistically, the extent of judicial review (see [115] to [123] below). Given the above, it is, in my view, in the interests of the administration of justice to allow the applicants the opportunity to put forward what they consider to be their strongest case.

3. Second, it is the case that at 24 February 2015, the Minister was clearly prejudiced in being presented late with a proposed amended substantive application, matters of evidence, and written submissions of the case that he was required to respond to. However, it cannot be said that that prejudice continued as at 11 March 2015.

4. By that time, the applicants had provided a finite bundle of documents from which their case was to proceed and in respect of which the Minister would have had reasonable notice. It is also of note that the Minister’s application for costs thrown away on 24 February 2015 was not opposed by the applicants.

5. I note that while the mere absence of prejudice to the Minister, now, by the late filing of this material is not enough on its own to justify the extension of time the applicants seek (Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176; (1984) Admn 96-034; 3 FCR 344 at [349], ActewAGL Distribution v The Australian Energy Regulator[ 2011] FCA 639 at [88]), it is, in my view, sufficient, and when taken with what is immediately above, a strong element in favour of granting the orders sought in the AIC.

6. In all, therefore, it is appropriate to make the orders sought by the applicants in the AIC, to enable the best possible case they are able to present to be properly considered by the Court. I will make the appropriate orders.

Do the Grounds of Review Have Merit?

1. The following is background to questions two and three above at [24].

2. The applicants are citizens of Iran. The first and second applicants are husband (“the applicant”) and wife (“the second applicant”), and the third applicant is their child. The family arrived in Australia as “irregular maritime arrivals” on 1 June 2012 (CB 1 to CB 42 and CB 59). On 11 August 2012, the Minister exercised his power, pursuant to s.46A(2) of the Act, to lift the relevant “bar”, and allow the applicants to lodge a protection visa application (CB 43 to CB 45). Such an application was made by the applicants on 11 August 2012, with the assistance of a registered migration agent (CB 46 to CB 230, including attachments).

3. The second and third applicants (the wife and child), did not make claims to protection of their own, and applied as members of the family unit (CB 55). Included with the application was a Statutory Declaration made by the applicant on 11 August 2012 (CB 86 to CB 94).

4. The applicant claimed to fear harm in Iran because he had been involved in expressing his political opinion against the Iranian regime. He claimed that he had worked for a government radio and television station, “Ahwaz”, as the “Director for Live programmes”

   
   

   ([8] – [10] at CB 86). He claimed that in this position he was required to broadcast the “Supreme Leader’s” lectures.

5. The applicant claimed he became disillusioned because he thought that he was broadcasting “lies” and proceeded to purposely “interrupt” a particular broadcast. He claimed that the authorities (“the Etelatt”) became interested in him after the interruption, and that his personal belongings were taken by the authorities while he was at work. Included in these belongings were a laptop and hard drive on which there was a documentary he had been “working on”, “documenting projects that Ahmadinejad and the Iranian authorities were opening that were not benefitting the Iranian people” ([49] – [50] at CB 91).

6. After his belongings were confiscated he “knew [he] had a few days to leave Iran before the authorities discovered the documentary”. He claimed that his brother in law organised his family’s travel and made the arrangements for them to go to Australia ([61] at CB 92).

7. The applicant also claimed to fear harm on return to Iran because he had claimed asylum in Australia.

8. The delegate refused the application for the protection visas on 26 October 2012. The applicants applied to the Tribunal for review of the delegate’s decision on 1 November 2012 (CB 265 to CB 297).

9. The applicants’ representative provided written submissions to the Tribunal on 14 December 2012 (CB 323 to CB 340), and a further Statutory Declaration made by the applicant on 27 October 2012 (CB 341 to CB 344).

10. The applicant and his wife attended a hearing before the Tribunal on 17 December 2012 (CB 347). After the hearing, the applicants’ representative’s provided the Tribunal with further documents, including a translated copy of correspondence, between the applicant and persons in Iran that had been written since the family’s arrival in Australia (CB 366).

11. The Tribunal affirmed the delegate’s decision on 25 January 2013. The Tribunal did not accept the applicant’s factual claims in relation to the interruption of the Supreme Leader’s speech, or that the applicant was making a documentary that was adverse to the Iranian authorities ([66] at CB 388). The Tribunal found that ([71] – [72] at CB 388):

    “[71]Given the applicant's conformity with the government for much of his working life and his risk aversion for lesser forms of political expression I am unpersuaded that the applicant underwent a change of heart to the extent that he decided to make a documentary critical of the government which he intended to distribute on YouTube.

    [72] The applicant's concern for the risk for himself and his family in what he claimed to have undertaken in my view belies the genuineness of his claim.  He indicated that that reason he did not participate in the demonstrations after the elections were for reason of safety. I consider it incongruent that the applicant then participates in making a documentary cognizant of the high level of risk involved. It is also incongruent that he leaves his laptop containing the claimed documentary unattended in a dormitory accessible to a number of people yet he has the foresight and concern for his safety and that of his family that he arranges passports should his activities be exposed.”

12. In relation to the applicant’s claim to fear harm on return to Iran due to his membership of a particular social group, “failed asylum seekers”, the Tribunal made the following findings ([76] – [78] at CB 389):

    “[76] In respect to the applicant's claim that he fears harm should he return to Iran because of his membership of a particular social group failed asylum seekers from a western country I find as follows. I note that the applicant departed Iran legally and travelled on a passport issued in his own name to Indonesia. He then departed Indonesia and arrived in Australia by boat. I note that the applicant claims to have destroyed this passport by throwing it over board. I am not satisfied that this is the case and I note in any event that the applicant has a photocopy of his passport and that of the members of his family who also travelled with him.

    [77] I am not satisfied that the applicant would, be on his return to Iran, known as or perceived to be a failed asylum seeker from a western country it would depend on the manner in which the applicant undertakes to return to Iran and whether he declared his activities to the Iranian authorities on his return.

    [78] In any event based on the country information set out above at paragraph 61 I am not satisfied that there is any real chance that the applicant's seeking of asylum in Australia  would cause the applicant to be seriously harmed by them. I find it to be a remote chance that he would be persecuted for reason of being a returnee from Australia or for having applied for asylum in Australia.”

The Grounds of the Proposed Amended Substantive Application

1. The grounds of the proposed amended substantive application are in the following terms:

   “1. The Tribunal failed to take a relevant consideration into account.

   Particulars

   The Tribunal failed to take into account the relevant consideration that the applicant would not have a valid passport when he returns to Iran.

   2. The RRT has denied the Applicant procedural fairness.

   Particulars

   Despite having undertaken to have regard for further evidence provided after the hearing, the Tribunal did not deal with evidence in the form of translation copies of emails advanced from the Applicant’s family members.

   3. The RRT has failed to deal with the full integers of the Applicant’s claims.

   Particulars

   The Tribunal failed to deal with a claim advanced during the hearing and in post hearing submissions regarding a family dispute documented in emails by various family members.”

2. Ground one of the proposed amended application asserts that the Tribunal failed to take into account a relevant consideration. Namely, that the applicant would return to Iran without a valid passport, if he were denied protection.

3. The applicants’ submissions however, did not assert that the Tribunal failed to take into account such a consideration, but rather, seek to complain about how the Tribunal dealt with the issue of whether the applicant would face harm, in circumstances where he would return without a passport.

4. The applicant’s written submissions direct attention to [76] (at CB 389) of the Tribunal’s decision:

   “In respect to the applicant's claim that he fears harm should he return to Iran because of his membership of a particular social group failed asylum seekers from a western country I find as follows. I note that the applicant departed Iran legally and travelled on a passport issued in his own name to Indonesia. He then departed Indonesia and arrived in Australia by boat. I note that the applicant claims to have destroyed this passport by throwing it over board. I am not satisfied that this is the case and I note in any event that the applicant has a photocopy of his passport and that of the members of his family who also travelled with him.”

5. The applicants’ argument, as explained before the Court, while referring to various parts of the Court Book, focussed on a “deconstruction” of [76] (at CB 389) of the Tribunal’s decision record. This was as follows. The Tribunal accepted that the applicant left Iran with a valid passport. It accepted that he had arrived in Indonesia and then travelled to Australia by boat. It “acknowledged” that the applicant had destroyed his passport and those of his family members. It therefore dealt with this explanation for the loss of the passport. It accepted that he had a copy of his passport.

6. On any plain reading of [76] (at CB 389), I am unable to accept the submission that the Tribunal “acknowledged” that the applicant had destroyed his passport. Plainly, the Tribunal found that it was not satisfied that the applicant had destroyed his passport by throwing it overboard. It may be that applicants meant to say that the Tribunal “acknowledged” (in the sense of noting) the applicant’s claim that he had destroyed his passport by throwing it overboard.

7. In any event, the applicants’ criticism of the Tribunal’s analysis appeared to be that the Tribunal had accepted that the applicant had originally had a passport and what remained was that in that circumstance he would return to Iran without a passport.

8. What is missing in the applicants’ analysis, is that while noting that the Tribunal “rejected” the applicant’s explanation “for the loss of the passport”, the submissions failed to understand the meaning, in context, and the consequences, of the Tribunal’s rejection of the applicant’s evidence in this regard.

9. On at least a fair reading of the Tribunal’s analysis, the Tribunal was unable to be satisfied with the applicant’s claim to have destroyed the passport by throwing it overboard. What is implicit, if not explicit, as a consequence of this finding, is that the applicant still had his passport.

10. Further, the complaint made before the Court that the Tribunal failed to address the question of the applicant’s return to Iran without a passport must be rejected. As is made plain with the opening sentence at [76] (at CB 389), the Tribunal, in that paragraph, was seeking to address the applicant’s claim to fear harm on the basis of his return to Iran as a member of a particular social group said to be “failed  asylum seekers from a Western country”.

11. Paragraph 76 (at CB 389) of the Tribunal’s decision record cannot be read in isolation. At [77] – [78] (at CB 389) of the Tribunal’s decision record, the Tribunal dealt with aspects of that claim to fear harm as a returnee from a western country. At [76] (at CB 389), it dealt with the matter of the applicant’s passport. In that context, at [77] – [78], the Tribunal dealt with other aspects of the particular social group claim.

12. As set out below, the evidence before the Court is that no express claim, was made to the delegate or the Tribunal, nor a claim, clearly arising, from the circumstances presented, to fear harm on return, because of a lack of passport. It is clear that at [76] (at CB 389), and in the context of his return to Iran, and in addressing the claim to fear harm because of membership of a particular social group, the Tribunal dealt with the applicant’s evidence in relation to the claimed destruction of his passport. There is no legal error in the Tribunal doing so, in circumstances where no express claim was made in this regard.

13. In all, therefore, the applicant’s submissions before the Court referred to matters of country information accepted by the Tribunal and sought to explain [76] of the Tribunal’s decision record (at CB 389), through a deconstruction of that analysis. What remained as the core of the complaint was that the Tribunal did not make a finding on whether the applicant would have a passport on return. That must be rejected at the factual level. The applicant told the Tribunal that he had destroyed his passport by throwing it overboard on the way to Australia. The Tribunal did not accept this claim.

14. The applicant has not pointed to any part of his claims to protection as put to the delegate, or the Tribunal, that say that he feared harm on return to Iran because he would not have a valid passport on return.

15. In this regard, I note:

    1)The applicant’s statement attached to the protection visa application (CB 86 to CB 94).

    2)The applicant’s statement of 15 October 2012 (CB 235 to CB 237).

    3)The delegate’s understanding of the applicants’ claims (CB 246 to CB 248).

    4)The migration agent’s submissions to the Tribunal (CB 323 to CB 340).

    5)The applicant’s statement of 22 October 2012 (CB 341 to CB 344).

    6)The transcript of the hearing.

16. The applicant’s claim to fear harm on return to Iran was said to emanate from his activities in Iran which have brought him to the adverse attention of the authorities. As set out above, there is no claim, either expressly made, or clearly arising, that he claimed to fear harm on return due to a lack of passport, or even any other identity document. Nor is there any such claim made by way of his representative’s submissions.

17. At its highest, the applicant claimed to fear harm, additionally (to the imputed political opinion claim), for reason of having sought asylum in another country (see for example, CB 93.6 and CB 259.7). There is nothing to indicate that returning without a passport was an integer, component or element of that claim. In this light, it is not available to the applicant to make that claim to the Court now.

18. Ground one of the proposed amended application lacks merit such as to weigh in favour of the exercise of the discretion pursuant to s.477(2) of the Act.

19. At the heart of grounds two and three sits the complaint that the Tribunal failed to have regard to further evidence submitted after the hearing, and failed to deal with a claim advanced during the hearing and in submissions after the hearing. Ground two alleges a denial of procedural fairness in this regard. Ground three alleges a failure to deal with a claim, and submissions regarding that claim.

20. The applicants submit that towards the conclusion of the hearing the applicant raised concerns as to his extended family’s “hostile” attitude to him (in Iran). The submission before the Court was that the claim to fear harm was said to arise as a result of the dispute with his family (see at T26.8). The second applicant subsequently stated that they had “received” some “very worrisome emails…from Iran during this time” (T27.6). The claim was that the applicant had been “branded” a “traitor” in these emails, and in telephone calls. In context, because of his activities in Iran.

21. In relation to the emails, the Tribunal stated that (at T28.7):

    “…May be you can provide them to your agent and you can give them to me in the post-hearing submissions…”

    The Tribunal asked that the “documents” be “translated” (T28.8).

22. In submissions before the Court, the applicants referred to the Tribunal’s statement, described before the Court as an “understanding”, at the beginning of the Tribunal hearing that they would be given the opportunity to make “post-hearing submissions, if you wish to provide them” (see T3.5).

23. The relevance of this to grounds two and three was not made clear before the Court. The applicant was subsequently given that opportunity to provide “post-hearing submissions”. That he and his representatives chose not to make subsequent written submissions does not reveal legal error on the part of the Tribunal. What the applicant did provide after the hearing were the documents reproduced at CB 356 to CB 370, under cover of a letter from the representatives, which does no more than provide the “attached” documents to the Tribunal (CB 355).

24. Although it was not satisfactorily explained before the Court, it may be that the applicants were seeking to argue that in not “dealing” with (in the sense of considering) the documents, the Tribunal breached an undertaking that it gave to the applicant. This possibility arises given the applicants’ subsequent reliance on NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 (“NAFF”) to argue that that opportunity given by the Tribunal to make “submissions” must be a meaningful opportunity. The argument appeared to be that in not “dealing” with the attached documents, the Tribunal’s “undertaking” was not a meaningful opportunity.

25. In all, and at best, the complaint in this light is that the Tribunal failed to deal with this evidence (the documents), despite its request for the material to be provided. The applicants rely on NAFF to assert that this constituted a denial of procedural fairness, and this is revelatory of jurisdictional error. Further, that the Tribunal failed to deal with a claim, relevant to these documents, raised at the hearing by the second applicant, and subsequently through “submissions”.

26. The Minister agrees that the Tribunal received material from the applicants after the hearing and that those were translations of various documents and in particular, and relevant to the submissions now before the Court, they were emails from various persons in Iran (see CB 363 to CB 370). Further, the Minister does not dispute that this material was provided on specific invitation by the Tribunal for the applicants to provide further documentation.

1. The documents that were submitted can conveniently be seen as falling into two groups. First, various certificates or commendations concerning the applicant’s work (CB 356 to CB 364), and translations of various “messages” (CB 365 to CB 370). When regard is had to the applicants’ representative’s covering letter, these are described as

   
   

   ([4] – [5] at CB 355)

   “[4] The translation of extracts from one of [the applicant’s] former colleagues indicating that they do not know about his whereabouts – an indicator of [the applicant’s] sudden and unplanned departure from Iran; and,

   [5]  The translation of extracts from emails to and from [the applicant’s] nephew in relation to their sudden an unexpected departure from Iran indicating that the family in Iran currently do not know his whereabouts.”

2. It is important, in light of the applicants’ grounds, to note the nature of this second group of documents. The representative’s submissions make abundantly clear that the emails were from former work colleagues, and family, indicating that they did not know of the applicant’s “whereabouts”, and concerns about the applicant’s sudden, and unexpected, departure from Iran. Any plain reading of the emails confirms the applicants’ representative’s description of them. That is, relevantly, they related, in part, to the reaction of the applicant’s family in Iran to his departure.

3. The applicants’ submissions now, in essence, propose two matters. First, a failure to properly deal with the “post hearing” material. Two, a failure to deal with a claim said to have been expressly made.

4. The Tribunal noted the receipt of the post hearing “submissions” and the attached documents ([51] at CB 384). It is the case, however that no further reference is made to the emails in its analysis ([63] at CB 387 to [80] at CB 390).

5. It is to be remembered that the applicant’s claim to fear harm on return to Iran was said to be that the applicant “interfered” with a broadcast by the “Supreme leader” of Iran, and that he was questioned by the authorities about this. His departure from Iran was precipitated because the authorities had taken his laptop which contained a film critical of the Iranian government. The applicant claimed to have left Iran in expectation that the authorities would discover this film. The Tribunal dealt with that claim, and the material variously supplied by the applicants in support.

6. As stated above, the Tribunal did not subsequently refer to the “emails” beyond the reference at [51] (at CB 384). However, I cannot agree, in the circumstances, with the applicant’s submissions now, that it was required to do so.

7. As the Minister further submits, the matter of what the applicant’s family and friends knew of the applicant’s whereabouts, and whether the applicants left Iran in haste, could not be part of the claims as to his fears relating to the earlier events, concerning the confiscation of his laptop. Nor, as set out above, do the emails in any way deal with the applicant’s claimed fear, concerning his asserted interference with the broadcast, and the finding of the laptop said to contain the critical film.

8. Before the Court, the applicants pointed to the applicant’s statement at the Tribunal hearing concerning a “family dispute”. The submission is that a claim was advanced at the Tribunal hearing, and in the email correspondence given to the Tribunal after the hearing, that the applicants would face harm on return to Iran because of a dispute with the applicant’s family members.

9. Having regard to the transcript of the hearing, at its highest, the applicant’s statement about the family was that his sister refused to talk to him and had “hung up” on him, which was “hurtful” and caused embarrassment. The family were “of the same school of thought as the government”. The family were “left alone” by the government once they “noticed” his sisters “agreed” with the government (T26 to T27).

10. The second applicant stated that they had received “worrisome” emails from Iran and that “they” (in context, it is not clear to whom this refers – the family, the former colleagues, or the reports from the family of the authorities’ view) “have branded” the applicant “as a traitor in these emails and in the phone calls” (T27.7).

11. The Tribunal member then stated (T28.2):

    “You referred to some emails and I did see something about emails.”

12. The second applicant responded (at T28.3):

    “Yeah and some of his friends were sending him email because they didn’t know then at the time that he might have left. And some were telling him that, “If you haven’t done anything; if you’re not guilty, come back and just give yourself up because they’re now – the bosses and the people in charge are now getting worried.”

13. It is clear that the invitation subsequently given by the Tribunal was for the applicants to provide translated copies of emails which the applicants said they had received.

14. The following must be noted. First, the express and specific claim made at the Tribunal hearing, linking the emails with the subject of the Tribunal’s invitation to provide these emails, which the applicants took up, was that the emails were sent in circumstances where there were inquiries about the applicant’s whereabouts, and that if he had not done anything wrong he should come back to Iran, because, in these circumstances, he had nothing to worry about. This is plainly what the second applicant said at T28 ([93] above) and which prompted the Tribunal’s invitation.

15. Second, in relation to the emails subsequently provided by the applicants, in response to the Tribunal’s invitation, they make no claim to the Tribunal that the emails contained threats from the family or revealed any dispute that would lead to harm on return.

16. Any plain reading of the emails provided makes plain that there is no reference in these to any family “threats”, or dispute, with the potential of leading to harm from the family. The suggestion that some family members were sympathetic to the authorities and were “angry” at him, cannot, of itself, be seen as a claim to fear harm from those family members, simply because of their political sympathies.

17. Third, in the circumstances, and having regard to the context of what was said at the hearing before the Tribunal, the emails, at their highest, were provided to support the applicant’s claim that he left Iran abruptly, in circumstances where he feared harm from the authorities, because of his activity in disrupting the broadcast, and because of the impending discovery by the authorities of the film on the laptop. The Tribunal plainly rejected both those claims, for reasons which were reasonably open to it.

18. The relevant questions now are, first, whether the emails contained material that could be said to be integers of the applicant’s claim. Second, whether the statement about the family (in particular the “sisters”) can be seen as an express claim to fear “harm” (as that term is understood with reference to both s.36(2)(a) and (aa) of the Act). Third, whether, such a claim clearly arises from the circumstances presented, and in any event, and fourth, whether it is a substantial claim to fear harm.

19. The emails contained no material that can be said to expressly, or clearly, raise a substantial claim to fear harm reliant on established facts. As the applicants’ representative said, the emails indicated that former colleagues, and family, did not know of the applicant’s whereabouts and made references to his “sudden departure”.

20. In all, therefore, I agree with the Minister that the applicants’ assertion now, that statements made at the hearing, and the emails subsequently submitted, contained a clearly articulated claim to fear serious or significant harm, in the sense required by relevant authorities, cannot be sustained (see Dranichnikov  v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 1092 per Gummow and Callinan JJ, NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [22] per Black CJ, French and Selway JJ, SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37]).

21. Further, while it is the case, as said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”)) that in the exercise of its jurisdiction, the Tribunal is required to deal with claims, evidence or submissions. However, I do not comprehend this to extend to expressly dealing with every piece of evidence, or submission made to it.

22. Rather, as was said by the Full Court in SZSRS at [29]

    “The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) , which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”

    [Emphasis added.]

23. Plainly, the absence of any further reference in the Tribunal’s analysis to the emails (beyond [51] at CB 384) is explained by the fact that the Tribunal did not consider emails from the applicant’s family, concerning his unknown whereabouts, to be relevant to the issues it was required to address in the proper conduct of the review. The Tribunal’s approach here was consistent with the actual claims to fear “serious” or “significant” harm, as made by the applicants, and in the context in which those claims were made, including at the hearing (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] – [47]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [2] (Basten JA) (McColl JA agreeing at [1]; McFarlan JA agreeing at [50]), LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [143], Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323 at [349]).

24. In submissions, the applicants’ relied, again, on NAFF in support of grounds two and three. As the Minister submits, the High Court’s consideration in that case was directed to, and arose from, a different factual scenario to that before the Court now. In NAFF, the relevant decision maker told the applicant it would provide an opportunity to the applicant to present further material, but failed to subsequently provide that opportunity. Here, the applicants were given that opportunity and indeed did provide the additional material.

25. In relation specifically to ground two, I agree with the Minister’s submissions that the applicants’ assertion now, that NAFF stands for the proposition that procedural fairness requires the Tribunal to specifically consider (“deal with”) every part, or all, of the material submitted, in relation to an invitation to submit such material, must be rejected.

26. In all, therefore, neither ground two, or ground three, of the proposed amended application reveal jurisdictional error on the part of the Tribunal.

27. The grounds of the proposed amended substantive application lack merit, such as to weigh in favour of the grant of the extension of time pursuant to s.477(2) of the Act. It is the case, that in the circumstances, the grounds are such that they weigh against the exercise of the discretion to extend time in the applicants’ favour.

28. In relation to question (3) at [24] above, ground one in the original application, is pressed by the applicants. It is in identical terms to ground one of the proposed amended substantive application. Given what is set out, relevantly above, this does not provide a basis to weigh in favour of the extension of time. Ground two of the original application was formally abandoned.

Delay in Making the Application Pursuant to s.477(1) of the Act

1. The relevant material before the Court in relation to the delay in making the substantive application to the Court is as follows:

   1)The affidavit of Ms Francis Milne, Coordinator of “Balmain for Refugees”, affirmed on 21 February 2015.

   2)The affidavit of the applicant affirmed on 25 February 2015.

2. The applicant’s evidence was that he received the decision of 25 January 2013 from his then “solicitor”, who said words to the effect “[y]ou have no hope of an appeal. I will not act for you” (see the applicant’s affidavit at [6]). The applicant says that he contacted two other legal firms until he sought the help of Ms Francis Milne in late February 2013. He met with the solicitor, now on the record, one month later.

3. The evidence of Ms Milne supports the applicant’s evidence. Further, she adds that she received the decision of the Tribunal and the “RRT Hearing” under “Freedom of Information” on 7 March 2013. She had, presumably, the recording of the hearing transcribed. She left the delegate’s decision, the Tribunal’s decision and the hearing transcript with counsel for examination on 21 March 2013 (the counsel who subsequently appeared for the applicants before the Court now). She was “informed” on 27 March 2013 that counsel had identified two grounds, and that the solicitor would go “on the record”. The application to the Court was then made on 4 April 2013. At this time, the application was 34 days out of time (s.477(1) of the Act).

4. The Minister’s position in relation to the delay in not making the application within time, pursuant to s.477(1) of the Act, was that based on the evidence of Ms Milne and the applicant, the Minister accepted that a satisfactory explanation for the delay had been provided. There is no reason not to accept that evidence. I agree on the evidence presented that a satisfactory explanation has been provided. In the consideration of whether time should be extended, pursuant to s.477(2) of the Act, therefore, that satisfactory explanation weighs in favour of the extension of time being granted.

5. However, this is only one element involved in the Court’s relevant consideration here. As set out above, the grounds to the proposed amended application, and for that matter, the remaining ground of the original substantive application, lack merit, such as to argue for the exercise of the discretion in the applicants’ favour. The proposed grounds were fully argued by counsel, with instructions, through a solicitor. I understood that even if time were extended, the arguments in support of the grounds had already been fully ventilated.

6. In weighing the balance between these elements, I understood the applicant to submit before the Court, that the Court should extend time based on the satisfactory explanation for the delay, even if it found that the grounds lacked merit.

7. That submission was put on the basis that an appellate Court may take a different view to this Court of the merits of the proposed grounds. If time were not extended, then the applicants would be denied the opportunity to seek further judicial review (s.476A(3) of the Act).

8. It was not entirely clear whether this submission was put on the basis of some unspecified “unfairness” to the applicants, or some broader element of the public interest. Which may in itself be an element in the consideration under s.477(2) of the Act because further relevant element is the relevant intention of the Parliament in enacting Commonwealth legislation. In this regard, the Parliament has set a time limit of 35 days for the making of migration applications, pursuant to s.477(1) of the Act.

9. The discretion given to this Court in s.477(2) of the Act is, in my view, provided, amongst other things, to address some of the applicants’ disadvantages, as presented in this case. That is, an applicant, who, on the evidence, is from a non-English speaking background, who has no knowledge of the Australian legal system, and who has difficulty in obtaining legal advice, due to financial constraints.

10. However, that Parliamentary intention is also clearly expressed through s.476A(3) of the Act dealing with appeals from this Court in matters involving s.477(2) of the Act. The Explanatory Memorandum to relevant amendments made to the Act in 2009 explains that “s.476A(3) will strengthen the new time limits for applying for judicial review of migration decisions...” (Schedule 3 – [113] of the Explanatory Memorandum to Migration Legislation Amendment Act (No.1) 2009 (Cth)). These time limits are, relevantly, what is set out at s.477(1) of the Act, and contemplate s.477(2) of the Act. The Explanatory Memorandum further explains, “…[t]his will discourage unsuccessful visa applicants from taking advantage of the delays caused by litigation to prolong their stay in Australia”.

11. In all, therefore, I understand the statutory scheme, and the Parliamentary intention informing it, to be that delays in litigation, in cases of this type, are to be discouraged. Section 477(2) of the Act recognises that in some instances it may be in the interests of the administration of justice to extend time.

12. However, in context of the statutory intention, and in circumstances such as the present case, where the proposed grounds of judicial review of the Tribunal’s decision have been fully argued and explored, the proposition that this Court should extend time, simply to provide the applicants with another, and further, opportunity to argue those grounds, is to be rejected.

13. In my view, such an approach is contrary to the relevant legislative scheme. That scheme seeks to discourage delay in making applications pursuant to s.476 of the Act. It recognises the potential for unfairness in some cases, that would result if this Court did not have the capacity to extend time, where appropriate. That is, where the interests of the administration of justice require it. In the circumstances, this is not such a case.

14. What is left, in the current case, is that despite the delay in making the application pursuant to s.476 of the Act, the applicants have still had the opportunity pursuant to the operation of s.477(2) of the Act to have their grounds prepared with legal advice, argued by counsel, and to be fully presented to, and considered by, the Court.

Conclusion

1. In all, notwithstanding the explanation for the delay, the grounds of the proposed amended substantive application are, in all the circumstances, without such merit as to warrant the extension of time. To grant the extension, to simply dismiss the application, is a not an appropriate exercise of the discretion, in all the circumstances explained above. In all, therefore, the extension of time, pursuant to s.477(2) should be refused. I will make an order accordingly.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 March 2015