SZSYV v Minister for Immigration
[2015] FCCA 2457
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSYV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2457 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time in which to file application – factors for consideration – consideration of merit of proposed application. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 46A(2), 91R(3), 422B, 424A, 424AA, 425, 476, 477, Part 7, Division 4 Tribunals Amalgamation Act 2015 (Cth), s.3, Schedule 2 |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 MZZRO v Minister for Immigration & Anor [2014] FCCA 882 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZRIQ v Minister for Immigration & Anor [2012] FMCA 823 SZTQM v Minister for Immigration & Border Protection [2015] FCA 535 WZASCv Minister for Immigration & Anor [2013] FCCA 1452 |
| Applicant: | SZSYV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1385 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 5 June 2014 |
| Date of Last Submission: | 5 June 2014 |
| Delivered at: | Perth (by video-link to Sydney) |
| Delivered on: | 11 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the First Respondent: | Ms R Francois |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the second respondent to “Administrative Appeals Tribunal”.
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) in which to file an application under s.477(1) of the Migration Act1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 1385 of 2013
| SZSYV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review (“Judicial Review Application”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to the applicant’s application for a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision was handed down on 17 January 2013.
The Judicial Review Application is out of time by reason of s.477(1) of the Migration Act, but the application for an extension of time under s.447(2) of the Migration Act and the Judicial Review Application were heard together, on the basis that if an extension of time was granted the Court could deal with the Judicial Review Application.
Background facts
The background factual material includes the following:
a)that the applicant is a male citizen of Iran, born 22 October 1978: CB 3 and 14;
b)the applicant is Persian speaking: CB 14;
c)the applicant arrived in Australia on 13 April 2012 as an unauthorised maritime arrival: CB 84;
d)the then Minister for Immigration and Citizenship (now the Minister for Immigration & Border Protection (“Minister”)) exercised his discretion under s.46A(2) of the Migration Act to allow the applicant to lodge a Protection Visa application, which was lodged on 16 July 2012: CB 2 and 3;
e)on 12 October 2012 the applicant applied to the Tribunal for review of a delegate’s decision made on 2 October 2012 to refuse the applicant a Protection Visa: CB 83-98 (“Delegate’s Decision”) and CB 99-140 (application to the Tribunal for review);
f)the applicant attended a hearing before the Tribunal on 6 December 2012 (“Tribunal Hearing”): CB 156-158; and
g)the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa on 17 January 2013: CB 202-218.
Applicant’s claims
The applicant’s claim is in essence that he fears harm in Iran on the basis of apostasy because he converted to Christianity and does not observe Islam.
In Iran, the applicant undertook national military service, and then worked in a petro-chemical plant for six years before becoming unemployed: CB 30.
The applicant had a Summary of Claims prepared for him by his registered migration agent, which was dated 16 July 2012, and attached to which was a statutory declaration of the same date completed by the applicant: CB 60-63 (claims); CB 64-67 (statutory declaration).
The applicant’s claims included the following:
a)that for many years he had experienced personal difficulties with the requirements of Islam and the pressures placed on people to conform, and that at school children were taught that those who prayed or went to religious celebrations would get better marks, whilst as adults those who joined the Basij (an Iranian religious para-military organisation) would be able to choose the city where they studied. The applicant claims at work that he found that those who did not pray or fast were not given permanency, and that when the petro-chemical company for which he worked was privatised his contract was terminated. His lack of religious affiliation and zeal meant that he was not offered work, and as a member of a particular family (“the Family”), descendants of the prophet Mohammad, the expectations on the applicant were tougher and the penalties were harsher: CB 61-62;
b)the applicant claimed to satisfy the refugee criteria of religion, in particular, because of his history of not observing the fundamental expectations of Islam, and his lack of observance, which has been a factor from his school age onwards, and has caused problems with jobs, and as a consequence of recent events he is now clearly identified as an apostate, for which the penalty continues to be hanging: CB 61-62;
c)the applicant gave evidence of his conversion, which occurred after the dismissal from the petro-chemical company because he did not participate in daily prayers and of his wish to convert to Christianity because he hated Islam: CB 64;
d)that the rejection of the regime in Iran by converting to Christianity is not purely theological, but contains a component of the political as well, but that that does not make the conversion any less genuine, and requires as assessment of its genuineness by reason of the complexity of the motivation involved. Nor does it make the conversion any less life threatening: CB 153;
e)that because the applicant is an apostate who has turned his back on Islam he will be executed if he returns to Iran: CB 62; and
f)his dismissal from employment was caused by his inadequate observance of Islamic practices: CB 61.
A Baptism Certificate in support of his claims, showing that the applicant had been baptised at the Hillsong Church in Sydney on 4 November 2012 was provided to the Tribunal: CB 159.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found that the applicant was not a reliable, credible or truthful witness: CB 213 at [79];
b)did not accept the applicant’s central claims that he had:
i)been fired from his job due to non-observance of Islam: CB 213 at [81]; or
ii)had an interest in Christianity while in Iran: CB 214-215 at [85]-[92];
c)found that the applicant’s actions in Australia did not indicate a genuine interest in Christianity, and that those actions had been conducted for the sole purpose of strengthening his claims for protection, and therefore under s.91R(3) of the Migration Act, it disregarded the applicant’s conduct for the purposes of the refugee criteria: CB 215-216 at [93]-[98];
d)found that there was not a real chance that the applicant would be subjected to serious harm on the basis of his being a non-observant Muslim: CB 216 at [99];
e)concluded that there was not a real chance that the applicant would suffer serious harm on the basis of his religion if returned to Iran: CB 216 at [100];
f)considered and rejected any suggestion that the applicant would be subjected to mistreatment upon return to Iran on the basis of his being a failed asylum seeker: CB 216 at [101]; and
g)considered the applicant’s complementary protection claim against the complementary protection criteria, summarising its key findings rejecting the applicant’s claims as set out above, and further finding that the applicant would not be perceived as a Christian convert on return to Iran, and that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if returned to Iran: CB 216-217 at [98]-[105].
The Tribunal concluded by finding that it was not satisfied that the applicant was a person who satisfied:
a)the refugee criterion in s.36(2)(a) of the Migration Act; and
b)the alternative complimentary protection criterion in s.36(2)(aa) of the Migration Act,
and was therefore not satisfied that for those reasons the applicant was a person in respect of whom Australia had protection obligations. It followed that the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
The Judicial Review Application
In the Judicial Review Application, as amended, the applicant seeks an extension of time in which to file the Judicial Review Application, and sets out four proposed grounds of judicial review. Those four grounds are set out further below: see [25], [35], [36] and [51] below.
Both the applicant and the Minister filed written submissions. The applicant failed to address the issue of extension of time in his written submissions. Oral submissions were made by both the applicant and the Minister at hearing in respect of the issue of extension of time and the merits of the Judicial Review Application proper.
At hearing affidavits were tendered and read into evidence from:
a)the applicant, sworn 27 September 2013 (“Applicant’s Affidavit”) essentially detailing his explanation for the delay in filing the Judicial Review Application;
b)the affidavit of Charles Frederick Stanford, the applicant’s solicitor, sworn 15 October 2013 (“Mr Stanford’s Affidavit”), which annexes a transcription of the Tribunal Hearing; and
c)the affidavit of Michelle Elizabeth Stone, the Minister’s solicitor, sworn 1 November 2013 (“Ms Stone’s Affidavit”), annexing a copy of an email referred to by the Tribunal at CB 216 at [97] of the Tribunal Decision.
Extension of time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established but not exhausted in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
WZASCv Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Extent of and reasons for delay
Section 477(1) of the Migration Act requires that an application be filed within 35 days of the date of the Tribunal Decision, which in this case is 17 January 2013. The last day for filing the Judicial Review Application was therefore 21 February 2013. The proposed Judicial Review Application was filed on 20 June 2013. The applicant therefore requires an extension of time of almost four months for the Judicial Review Application to be considered by the Court.
The Applicant’s Affidavit indicates that:
a)he first found out about the Tribunal Decision on 22 January 2013 when he received a call from a person working with his migration agent (whose name he does not now remember) who told him that the Tribunal had refused his Protection Visa and that if he wished to go to the “Federal Court” he needed to apply to Legal Aid to find out if there are any errors in the Tribunal Decision. In response to a question from the person the applicant asked for his case to be referred to Legal Aid and he said that he was going to try to go to the “Federal Court” but that he did not know how to apply for Legal Aid and did not know any lawyers who could represent him. The person working with his migration agent said that the case would be referred to Legal Aid and she would send them a copy of the Tribunal Decision. As the result of this telephone conversation the applicant assumed that Legal Aid would find a lawyer to represent him. About two weeks later he received a Legal Aid application from Legal Aid, by express mail, which Legal Aid had already filled in. Shortly thereafter he received a call from a person at Legal Aid (whose name he does not now recall) but who informed him that he had to sign the last page of the application and send it back “immediately” and that there were “only 21 days left to file an application to the Federal Court”. The applicant then signed the last page, and sent it back to Legal Aid by express post. See Applicant’s Affidavit at [3]-[7];
b)sometime later in February 2013 the applicant says he spoke to a person working with his migration agent (whose name he cannot now recall) and told that person that he had not heard from Legal Aid, and that that person said that they would call Legal Aid. The next day he received a telephone call from the person working with his migration agent who said that they were sending him another application to send to Legal Aid and when he received it he should just sign it and send it to Legal Aid. The applicant says he subsequently received the further application for legal aid, signed it, and delivered it to the Legal Aid office in Sydney. It is not clear from the Applicant’s Affidavit but it appears that he did ask someone at Legal Aid whether they were going to assist him, and was told that Legal Aid had not received an application from him. In any event, sometime after 16 February 2013 he received a letter from Legal Aid which informed him that they had not received his application. See Applicant’s Affidavit at [8]-[12];
c)on or about 23 April 2013 the applicant says he received a call from Legal Aid (from a person whose name he cannot now remember). He was told that Legal Aid had been refused because he was out of time, and that he needed to find his own lawyer for the matter. Subsequently he received a letter from Legal Aid informing him that his legal aid application had been refused and that he had 28 days to appeal against Legal Aid’s decision. See Applicant’s Affidavit at [12]-[14];
d)the applicant then says that after he was told by Legal Aid to find his own lawyer he spoke to a person at a refugee group who has helped him, and who asked a person from another refugee group to help him apply to the Court and to find someone to represent him. The timeframe in which this occurred is not expressly indicated in the Applicant’s Affidavit. See Applicant’s Affidavit at [15];
e)the applicant says that on 20 June 2013 Mrs Frances Milne from Balmain For Refugees helped him to prepare and file the Judicial Review Application, and subsequently referred the applicant to his present lawyer;
f)the applicant says that the reason that he did not commence the Judicial Review Application within time is because he initially understood that if he applied to Legal Aid that Legal Aid would provide him with legal representation to assist him to make the Judicial Review Application, and that it was only when he was informed by a representative of Legal Aid that it had refused him legal aid and that he should find his own lawyer to represent him that he sought help and then filed the Judicial Review Application: Applicant’s Affidavit at [17]; and
g)the Applicant’s Affidavit reflects the reasons submitted on his behalf as an explanation and reason for the delay in filing the Judicial Review Application.
The Minister submits that even if the evidence in the Applicant’s Affidavit is accepted, the delay has not been adequately explained. The Minister says that the applicant was aware there was a right to seek review, and that there were time limits which applied. The Minister says that on 16 February 2013 the applicant was advised by Legal Aid that they had not received his application, and at this time the applicant knew there was a time limit for filing the Judicial Review Application, and was under no misapprehension that the Judicial Review Application had not been filed.
In the Court’s view it is plain that the applicant knew, at least three weeks prior to the expiration of the time for filing this application, that there was a time limit which applied for the filing of the Judicial Review Application. It is clear that the applicant understood that there was a time limit, and took steps (hence his application to Legal Aid) to assist him with making an application. Being aware that there was a time limitation, there is however no explanation which otherwise exhibits any sense of urgency prior to, or at or about the time that the time limit was expiring. The apparent failure of Legal Aid to receive the application is no doubt unfortunate, but at the time that occurred it appears that the applicant still had time in which to make the application within time, but made no enquiries as to how that might be done. Indeed, he then did nothing for more than two months, apart from wait for a response to his application for legal aid, knowing all the while of the time limit for filing an application. It is apparent from what is set out in his application that the applicant understands that his application for legal aid was separate to the making of the Judicial Review Application. There is no indication that at any time between receiving the letter from Legal Aid informing him that they had not received his application for legal aid, the timing of which is described as being after 16 February 2013, and then (two months later, on or about 23 April 2013) receiving a telephone call from someone at Legal Aid indicating that they had refused his application for assistance, as to what, if any, steps he took by way of follow-up with respect to his legal aid assistance application or making an application for judicial review. There is no evidence for example that he went back to his migration agents to see whether or not they could refer him to someone else who could assist him to make the Judicial Review Application. Nor is there any evidence that he spoke to anyone at a refugee group such as those who subsequently helped him. Nor does he appear to have made any enquiry with Legal Aid. Nor, bearing in mind that he had been baptised at the Hillsong Church on 4 November 2012, is there any evidence that he approached any member of that congregation for assistance. Sometime subsequent to 23 April 2013 the applicant received a letter from Legal Aid informing him that his application had been refused and that he had 28 days to appeal against Legal Aid’s decision. It is only then that he spoke to a person from a local refugee group, who referred him to a person from another refugee group, to help him. The timing of that is not explained with any precision or detail in the Applicant’s Affidavit, and the Court is simply uninformed (even on an approximate basis) as to when the Legal Aid letter refusing the legal aid application was received by the applicant, or how long it was before the applicant actually approached anyone for further assistance, bearing in mind that he had known that his application for legal aid had been refused from on or about 23 April 2013.
In all of the above circumstances, the Court is of the view that there is a delay of significant extent, namely four months, or more than three times the period in which the application was otherwise required to be made, and no reasonable explanation for the length of that delay, and in particular, no reasonable explanation as to why steps were not taken more urgently after it was apparent that:
a)the deadline for making the Judicial Review Application was approaching, and the applicant knew that Legal Aid had not received his application for legal aid assistance to help him make the Judicial Review Application; and
b)from on or about 23 April 2013 he would not be receiving any assistance from Legal Aid.
Other matters
The Minister does not assert any particular prejudice if time is extended, albeit that there must be some prejudice insofar as the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end.
The impact on the applicant of a failure to extend time for making the Judicial Review Application will be negligible, as, for reasons set out below, the proposed Judicial Review Application has no reasonable prospects of success because no jurisdictional error is established.
As to the interests of the public at large this matter is determinable on existing well-understood and explained provisions in the Migration Act and Migration Regulations and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Merits of the proposed Judicial Review Application
Each of the grounds of the Judicial Review Application are set out below, together with the applicant’s and Minister’s submissions, and the Court’s consideration of each of the grounds.
Ground 1
Ground 1 is as follows:
The RRT failed to deal with the full integers of the Applicant’s claim under the complementary protection provision (section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a.The RRT failed to deal with the claim under the complementary protection provisions and as squarely raised by the Applicant that he would face a real risk of significant harm on the basis of:
i.his non conformity with Islam; and
ii.as a member of the … [Family] family (descendants of the prophet Mohammad).
b.Further, during the hearing, the RRT misdirected itself as to the applicability of section 91R(3) to the Applicant’s claims (see page 18 of the transcript), which is a provision specific to claims under the Refugee Convention (section 36(2)(a) of the Migration Act);
c.As a result of the Tribunal’s failure to expressly deal with integers of the claim at paragraphs [104] and [105] of the decision and as a result of the Tribunal’s misdirection as to section 91R(3), the RRT failed to deal with the full integers of the Applicant’s claim that he would face significant harm as a result of his non-conformity with Islam, of which the fact of his conversion as opposed to his motivation for converting would be relevant.
Section 91R(3) of the Migration Act read as follows:
For the purposes of the application of the Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
In relation to ground 1 the applicant submits that:
a)jurisdictional error is established if the process by which the Tribunal assessed the claims failed to have regard to the actual nature of the legal inquiry it was required to undertake: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”);
b)reading the Tribunal Decision fairly and as a whole, the Tribunal has failed to deal with the claim as squarely raised on the material that the applicant would face significant harm under the complementary protection criterion due to his non-conformity with Islam and his membership of the Family;
c)the claims with respect to non-conformity with Islam and the overlayed consequences posed by the applicant’s membership of the Family were squarely raised on the material: CB 61-62. On a fair reading of the material a necessary inference would have to be drawn that the conversion to Christianity was an expression of the applicant’s dissatisfaction with and non-observance of Islam, and dissatisfaction with the state of Iran: CB 153;
d)in dealing with the applicant’s claim the Tribunal dealt with only those matters related to the applicant’s past experiences in Iran, namely, losing his employment and the raid on the house church and his subsequent interest to the authorities, and the genuineness of his conversion to Christianity. This is exemplified by CB 217 at [104] in the Tribunal Decision which is the following terms:
Because I do not accept that the applicant lost his job because of his non-observance, gave his photo and details for a house church identity card, that the house church was raided, or that he subsequently was of interest to security authorities, that he genuinely converted to Christianity while in Australia or would be perceived to be a Christian convert on return to Iran, I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
e)the Tribunal:
i)accepted that the applicant “may be a non-observant Muslim”: CB 216 at [99], which is an integer of the claim which survives the credibility findings made elsewhere by the Tribunal;
ii)in dealing with the applicant’s conversion to Christianity focused its consideration on the “genuineness” of the conversion, as opposed to the fact of the conversion, which is an integer of the claim which survives the credibility findings made elsewhere by the Tribunal: CB 216 at [97]; and
iii)in dealing with the issue of non-observant Muslims living in Iranian society under the Refugee Convention test, the Tribunal dealt only with the issue of whether “non-observant Muslims are able to live in Iranian society without coming to the attention of the authorities” as opposed to the particular overlayed effect of the applicant’s membership of the Family, and the scrutiny the Family members may be said to have been subjected to: CB 216 at [99]; and
iv)during the Tribunal Hearing, the following exchange occurred:
MEMBER: Now is the time where I’ll raise some issues with you. Whether I had felt concern about your claim. But before I do, I’ve got to tell you about a section of the Migration Act that’s called Section 91R(3) and it says that if I believe you’ve …. undertaken an action for the sole purpose of improving your claim, I can ignore those actions in assessing your claim.
APPLICANT: I didn’t get this, the meaning of this.
MEMBER: There’s a section of the Migration Act, where if I believe that you have done something since you have been in Australia, and the only reason you have done this is to improve your chances of being given a Protection Visa, and I write my findings, I could ignore those actions. So very often … there is often news, is in cases where my claim to be Christian and … and then become baptised, and if the Tribunal feels that the only reason that you have done those actions, is to improve their chances of success, we can ignore all of those actions.
Transcript, page 18.
f)section 91R(3) of the Migration Act applies specifically to claims under the Refugee Convention as opposed to claims under the complementary protection criterion. During the Tribunal Hearing the Tribunal made no mention of the specific application of this section to the applicant’s claims under the Refugee Convention;
g)reading the Tribunal Decision fairly and as a whole, the Tribunal has not dealt with the applicant’s claim to face a risk of significant harm as advanced by the applicant: SZSRR v Minister for Immigration & Anor [2013] FCCA 1712 at [70] per Judge Barnes. The applicant submits that the claim and its component integers are considerations made mandatorily relevant by the Migration Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; and Yusuf, and see also Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; (1999) 58 ALD 30 at [18]-[19] and [21] per Wilcox and Madgwick JJ and [50] per Hill J. The Tribunal’s approach is to be distinguished from errant fact-finding: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for a Protection Visa under complementary protection, in part due to a misdirection on the law as stated in s.91R(3) of the Migration Act; and
h)as to the fact of the applicant’s conversion, as opposed to his motivations for the conversion, it may have been relevant to a determination of whether the applicant would face a real risk of significant harm as demonstrative of his non-observance. The Tribunal’s misdirection may be seen as critical for the foundation upon which it rejected the applicant’s claim: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [72]-[74] per Kirby J.
The Minister says that proposed ground 1:
a)alleges a failure to consider two claims against the complementary protection criteria:
i)firstly, a claim to fear harm on the basis of the applicant’s non-conformity with Islam; and
ii)secondly, a claim to fear harm as a member of the Family (being descendants of the prophet Mohammad); and
b)asserts that the Tribunal misdirected itself as to the applicability of s.91R(3) of the Migration Act.
The Minister says that all aspects of proposed ground 1 are factually misconceived:
a)in relation to the first aspect, the Tribunal accepted that the applicant was a non-observant Muslim, but rejected the applicant’s claim to have been subjected to any harm for this reason in the past: CB 213-214 at [80]-[84], and was not satisfied that he would come to the attention of the authorities in Iran because of his status as a non-observant Muslin in the future: CB 216 at [99]. The Minister submits that these findings are entirely dispositive of the applicant’s claim that he would suffer any harm of any kind due to being a non-observant Muslim, and accordingly, once these findings were made no further issue arose for the Tribunal’s consideration, and it is in that context that the Tribunal’s conclusion at CB 217 at [104] must be read;
b)with respect to the second aspect, the Minister says that the applicant never claimed to fear harm as a member of the Family. Rather, the claim advanced in the statement asserted to support this claim (which was prepared by his agent: see CB 61-62) was that he feared harm due to his non-conformity with Islam in circumstances where he claimed that his punishments would be greater due to his being a member of the Family. The Minister cited the statement made in the claim (at CB 61), as follows:
Also, as a member of the … [Family] (descendants of the prophet Mohammad), expectations on [the applicant] were tougher and penalties were harsher.
There was no claim made, the Minister says, that the applicant feared harm simply due to his being a member of the Family; and
c)section 91R(3) of the Migration Act only applied to consideration under the Refugees Convention, and the Tribunal applied s.91R(3) of the Migration Act in this way, and no error arises from its reasoning. In particular, the Tribunal found, independently of its finding under s.91R(3) of the Migration Act, that the applicant was not genuinely interested in Christianity, and that his baptism in Australia did not demonstrate a genuine conversion. In considering the complementary protection provisions, the Tribunal found at CB 217 at [104] that the applicant would not “be perceived to be a Christian convert on return to Iran.” No conduct of the applicant was “disregarded” in the Tribunal’s conclusions with respect to complementary protection.
Consideration of ground 1
The Tribunal’s factual findings dispose of this ground. The Court notes that factual findings made in relation to one aspect of a matter can, as purely factual findings, be relied upon by the Tribunal in assessing whether an applicant meets the different criterion for another aspect of the matter such as with refugee (“serious harm”) claims and complementary protection (“significant harm”) claims: SZQGI v Minister for Immigration & Citizenship [2012] FCA 343 at [10]-[11] per Rares J, and more recently SZTQM v Minister for Immigration & Border Protection [2015] FCA 535 at [45]-[51] per McKerracher J. The Tribunal accepted that the applicant was a non-observant Muslim. The Tribunal found that his previous actions indicated that he would not come to the attention of the authorities in the future if returned to Iran, and, moreover, that country information indicates that the Iranian authorities do not normally interfere in the private religious lives of their citizens: CB 216 at [99]. Further, and independently of its findings with respect to the applicant’s previous activities in Iran, or the genuineness of his conversion to Christianity whilst in Australia, the Tribunal found that if the applicant were to return to Iran, he would not “be perceived to be a Christian convert on return to Iran”: CB 217 at [104]. It was as a consequence of this factual finding, amongst others, that the Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that there was a real risk that he would suffer harm, and that he therefore did not meet the complementary protection criteria: CB 217 at [105]. Thus, the Tribunal did not disregard relevant matters related to the complementary protection criterion.
The Tribunal did not misapply s.91R(3) of the Migration Act. Reading the Tribunal Decision fairly, and as a whole, it is plain that the Tribunal has distinguished between the applicant’s refugee criterion claims and the complementary protection criteria claims. Even in the passage from transcript cited by the applicant in submissions the Tribunal does not indicate that it is applying s.91R(3) of the Migration Act in relation to the applicant’s complementary protection claims. The Tribunal Decision itself makes it plain that s.91R(3) of the Migration Act is only resorted to for the purposes of the claim of a well-founded fear of persecution, that is the claim under the refugee criterion: CB 216 at [98]. That the Tribunal understood the distinction between the refugee and complementary protection criteria, and the applicability of s.91R of the Migration Act to the former and not the latter, is also evident from the Tribunal’s setting out of the relevant law in the Tribunal Decision: see CB 203-205 at [5]-[18].
The applicant did not make a claim on the basis of his membership of the Family as opposed to his non-observant Muslin status. What he did claim was that because of his membership of the Family if his non-observant Muslim status became an issue, the expectations of him were tougher, and any penalties to be imposed might be harsher. Those matters are subsequent to his non-Muslim status becoming an issue upon his return to Iran, which the Tribunal has found, in effect, would not be an issue for the applicant upon his return to Iran. Therefore the issue of his membership of the Family, in the context of his allegedly being a non-observant Muslim, does not arise.
There was no error in the Tribunal Decision in the respect alleged in ground 1, and no jurisdictional error is demonstrated by ground 1. It follows that ground 1 must fail.
Grounds 2 and 3
The applicant dealt with grounds 2 and 3 together.
Ground 2 is as follows:
The RRT breached s 424A of the Migration Act 1958.
Particulars
a.The RRT has failed to give clear particulars of information referred to at paragraph [90] of the decision, namely the email from a yahoo address contained in the Court Book at page 196; or to ensure that the applicant understood why the information was relevant to the review; or to invite the applicant to comment on or respond to it;
b.The information was not put to the applicant for comment during the hearing pursuant to s 424AA of the Migration Act.
Ground 3 is as follows:
The RRT breached s 425 of the Migration Act 1958.
Particulars
a.During the hearing, the Tribunal undertook to receive further information from the applicant’s advisor in regards to the email contained in the Court Book at page 196 and referred to the decision at paragraph [90];
b.In the decision at paragraph [90], the Tribunal lent no weight to the document because it was not submitted until after the hearing “so no questions could be asked to elicit” information regarding the provenance of the email;
c.In the circumstances, the Tribunal denied the applicant procedural fairness, the denial of which went to the jurisdiction of the Tribunal.
In relation to grounds 2 and 3 the applicant submits that:
a)the principles of procedural fairness require that persons whose interest may be adversely affected receive a fair hearing by the use of an appropriate procedure in the circumstances: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515 (2006) 231 ALR 592; (2006) 93 ALD 300; CLR at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”), where the Court observed that procedural fairness required a fair hearing and not a fair outcome and the relevant question was therefore about the Tribunal’s processes, not its actual decision;
b)clear particulars of information considered by the Tribunal at CB 214 at [90] were not put to the applicant, and:
i)the information was clearly used to affirm the Delegate’s Decision;
ii)there was no attempt by the Tribunal to give the applicant clear particulars under s.424A of the Migration Act of the information;
iii)there was no attempt by the Tribunal to utilise the oral mechanisms available under s.424AA of the Migration Act during the hearing;
iv)during the hearing, the applicant was not alerted to the concerns the Tribunal had regarding the provenance of the material, and the Tribunal therefore failed to ensure that the applicant understood why the material was relevant to the review; and
v)the information was specifically about the applicant; and
vi)the information was not given by the applicant, but rather his advisor, who had advised the applicant not to bring the material to the hearing: see Transcript at page 4;
c)the applicant has been denied an opportunity of meeting the case against him in circumstances where he was not informed of any concerns the Tribunal may have had in regards to the provenance of the email;
d)no letter was provided to the applicant pursuant to s.424A of the Migration Act, and given there was no hearing, s.424A(2A) has no application to excuse compliance with s.424A of the Migration Act. The requirement for the Tribunal to comply with s.424A is strict: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545 (“SAAP”), and it is not a requirement which may be avoided by any question as to practical injustice to the applicant;
e)in the circumstances of the hearing, there has been a denial to the applicant of procedural fairness that went to the jurisdiction of the Tribunal: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 (“Applicant NAFF of 2002”), where the Court interpreted the statutory duty to consider arguments presented by the applicant involved a duty to afford the applicant procedural fairness, which arose in part because it was not possible to anticipate what supplementary questions the Tribunal intended to put;
f)the Tribunal in this matter indicated that:
In the course of the hearing, I’ll point out what I think to be the problems with your claims, that is anything which might cause you to be refused a Protection Visa. You will have an opportunity to comment on any such that I might mention. You’ll also have the opportunity – if you need it – at the end of the hearing, to seek more time to respond to my comments.
Transcript, page 3;
g)following the indication given by the Tribunal set out above the Tribunal asked for any documentation which was to be advanced by the applicant, following which there was the following exchange:
ADVISOR: He has a letter, which he proposes to submit. He wasn’t able to bring it today – from the person who introduced him to the church – was about to go overseas to marry a Colombian girl but whose fellow Iranian who attends the church, and has a letter from him, which I’ll send in subsequently.
MEMBER: Why didn’t … why haven’t you produced it today? You’ve known this … this hearing has been on for quite some time.
ADVISOR: … I can explain that. I spoke to him before putting in that submission and asked him if he could provide any supporting evidence from his church that he had been attending regularly and he said yes he could, and that was only a few days ago, and he has since got his friend to write this letter, which was emailed to him, ‘cause his friend is about to go overseas and he … he hasn’t been able to print it. I have asked him not to print it, but to copy the email to me for submission.
MEMBER: Okay, Okay.
Transcript, pages 3-4;
h)later, the advisor asked for extra time to provide written materials after the hearing, and was given until the end of the next week. At the conclusion of the Tribunal Hearing, the Tribunal stated as follows:
MEMBER: Just to let you know what happens from here. You’ve got until Friday to provide a response, including the original information that you want to give to me. I’ll take all of that and then I will … I understand.
Transcript, page 27;
i)the message contained at CB 192 was then provided to the Tribunal. In submissions accompanying it, the advisor stated as follows:
Finally, we attach a copy of a letter from the man who introduced [the applicant] to the Hill Song Church. The letter refers to Farsi services. The fact that these are available to [the applicant] within the Hill Song Church perhaps explains why he has not looked elsewhere for Farsi services. He has found in Hill Song what he is looking for and the companionship of other Iranians. We submit that, whatever the merits of his choices, they are his choices and they in no way constitute evidence that his claim to be a Christian is not genuine.
CB 163;
j)in the Tribunal Decision at CB 214 at [90] the email was dealt with in the following manner:
I lend no weight to the evidence provided by the applicant’s advisor in support of the claim that such details were kept and recorded by a house church in Iran. It consisted of an email from a yahoo address by a person who claimed to have been a member of a house church in Shiraz for four years and who subsequently fled Iran. His relationship to the applicant has not been explained, how the email was solicited, the location and or status of the author are all absent. The email was also not submitted until after the hearing, so no questions could be asked to elicit such information, further calling into question the provenance of the email.
k)the Tribunal:
i)did not give the applicant notice that there was an issue in regards to the provenance of the evidence advanced on behalf of the applicant;
ii)never wrote to the applicant after the hearing and or receiving the evidence to place him on notice of the issue of the provenance of the email; and
iii)denied the applicant the opportunity of leading further evidence in regard to the provenance of the document, including issues such as how the email was solicited, the applicant’s relationship to the author, the location and status of the author and other issues subsequently raised by the Tribunal; and
l)the Tribunal’s approach constituted a denial of procedural fairness, and so jurisdictional error: Applicant NAFF of 2002.
The Minister submits that ground 2 is fundamentally misconceived because:
a)firstly, the email was provided to the Tribunal by the applicant’s migration agent: CB 195, and therefore falls within the exception under s.424A(3)(b) of the Migration Act: SZRIQ v Minister for Immigration & Anor [2012] FMCA 823 at [33]-[42] per Cameron FM (“SZRIQ-FMC”). And, further, the transcript of the Tribunal Hearing cited by the applicant makes it apparent that the applicant expressly authorised his migration agent to provide the communication to the Tribunal, and there is therefore no basis for the applicant to allege that the migration agent was not acting within the scope of his authority and that the Tribunal should have known this with respect to the email;
b)second, even if contrary to paragraph (a) above, the requirement in s.424A(1) of the Migration Act relates to information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, it requires the impugned material to “contain in their terms a rejection, denial or undermining” of an applicant’s refugee claims: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”), and this email did not contain any information which would itself reject or undermine the applicant’s claims, but rather, purported to support the applicant’s claims; and
c)the applicant appears to suggest that the Tribunal ought to have put its conclusions about the email to the applicant under s.424A of the Migration Act, but the Tribunal’s thought processes do not constitute “information” for the purposes of s.424A(1) of the Migration Act: see SZBYR; SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68; Minister for Immigration & Anor v SZGUR [2011] HCA 1, (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1; CLR at [9] per French CJ and Kiefel J.
In relation to ground 3 the Minister again contends that the ground of review is misconceived on the following bases:
a)that the Tribunal discharged the obligation in s.425 of the Migration Act which requires it to invite an applicant to appear before it to give evidence and present arguments relating to the “issues” arising in relation to the review, as the applicant was invited to and did attend a hearing before the Tribunal, at which the applicant’s claims to have been involved in a house church in Iran were discussed, following which the email was provided to the Tribunal as evidence in support of that claim;
b)the email was therefore further evidence in support of an extant issue of the applicant’s involvement in a house church in Iran, and the Tribunal was therefore under no obligation to provide a further hearing opportunity to the applicant to present evidence and arguments in relation to the email: Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 83 ALJR 1017; (2009) 258 ALR 434; (2009) 110 ALD 238; CLR at [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ (“SZKTI”); Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427; (2009) 110 ALD 15; and
c)to the extent that the applicant’s contention is that the Tribunal ought to have invited the applicant to attend a further hearing of the Tribunal so as to inform the applicant of the Tribunal’s opinion of views about the email, it is well settled that that is not what is required under s.425 of the Migration Act, and therefore there cannot have been any obligation to invite the applicant to a further hearing for that purpose: SZBEL; SZJKH v Minister for Immigration & Anor [2007] FMCA 1899 at [20]-[26] per Cameron FM (“SZJKH”); SZLBC v Minister for Immigration & Anor [2008] FMCA 181 at [13] per Smith FM, from which an appeal was dismissed in SZLBC v Minister for Immigration & Citizenship [2008] FCA 728 at [10] per Weinberg J.
Consideration – ground 2
Ground 2 specifically alleges a breach of s.424A of the Migration Act.
Section 424A of the Migration Act provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
In SZRIQ-FMC the Federal Magistrates Court found that a letter, and a written acknowledgement given under a code of conduct, were documents that the applicant gave during the process that led to the decision there under review (being a decision of the Refugee Review Tribunal), and that therefore the information in the letter and acknowledgement “was information which was supplied by the applicant, albeit through the medium of his agents, during the process that led to the delegate’s decision. As such, it was not information which s.424A(1) required the Tribunal to supply to the applicant and so it committed no error by not doing so”: SZRIQ-FMC at [42] per Cameron FM. An appeal to the Federal Court by SZRIQ against SZRIQ-FMC was dismissed: see SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252.
In this case, the applicant, through his migration agent, provided the email at CB 196 to the Tribunal. The applicant did so in accordance with an arrangement agreed with the Tribunal for the applicant’s agent to submit that email after the Tribunal Hearing. In these circumstances, there can be no breach of s.424A of the Migration Act as the “information” was given to the Tribunal by the applicant for the purposes of the Tribunal’s review, and, therefore, is within the exception in s.424A(3)(b) of the Migration Act.
In the above circumstances, ground 2 must fail, because there is no breach of s.424A giving rise to jurisdictional error, or any error at all.
Consideration – ground 3
Ground 3 specifically alleges a breach of s.425 of the Migration Act.
Section 425 of the Migration Act provides as follows:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act: Migration Act, s.422B. As s.422B of the Migration Act applied to this case, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified by the applicant, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal hearing: see [3]-[4] above; SZBEL. The applicant attended the Tribunal hearing and gave evidence in support of his claims. Nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Part 7, Division 4 of the Migration Act.
In SZKTI the High Court observed as follows:
50. During the hearing, the RRT had questioned important aspects of the first respondent's evidence and raised as an issue the truth of his claim of an association with the Local Church in China. For example, the RRT queried the first respondent's membership of a church about whose members and history he knew so little and raised country information inconsistent with the first respondent's evidence. The RRT also queried whether church meetings could be secret as claimed by the first respondent. The RRT drew attention to inconsistencies in the first respondent's claims, asked the first respondent to compare his practice of religion in China with his practice of religion in Australia and informed him that his evidence regarding his religious practice had been "vague and lacking detail". Finally, the RRT asked the first respondent whether he had told Mr Cheah about his review application.
51. Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah's knowledge of the first respondent's past activities in China deriving from any account given to him by the first respondent was directly related to that issue. Further, s 422B of the Act suggests that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4 of Pt 7. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah's information by responding (as he did) to the letter from the RRT conforming with s 424A.
SZKTI at [50]-[51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ.
There can be no question in this case that the obligation in s.425 of the Migration Act to invite the applicant to appear before the Tribunal to give evidence and present arguments was fulfilled by the Tribunal Hearing on 6 December 2012. At the Tribunal Hearing the issue of whether or not the applicant was a member of a house church in Iran was raised, and was a matter which required resolution by the Tribunal for the purposes of the review. In that regard, that issue, was not a new issue. The further email at CB 196 was simply additional evidence about an extant issue, and not the raising of a new or additional issue which triggered the obligation to give another hearing: SZKTI at [51] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. There was no obligation on the Tribunal to invite the applicant back for a further hearing to address the email at CB 196: SZBEL, SZJKH. The onus was on the applicant to provide such evidence or information as it sought fit in an endeavour to satisfy the Tribunal of the applicant’s case. The fact that the applicant, through his migration agent, supplied an email to the Tribunal which was so deficient in providing fundamental information (as found by the Tribunal, and as is evident from a reading of the email: CB 196), or, put another way, so vague and lacking in detail: see SKKTI at [50] per French CJ, Heydon, Crennan, Kiefel and Bell JJ, was not a matter which the Tribunal was required to remedy by recalling the applicant.
In all of the above circumstances, ground 3 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 is as follows:
The RRT breached s 424A of the Migration Act 1958.
Particulars
a.The Tribunal failed to ensure that the applicant understood why information was relevant to the review, namely correspondence with Hill Song Church referred to in the Transcript at page 25 and in the decision at paragraph [97].
b.When this material was orally put to the applicant during the hearing, clear particulars of the letter were not put to the applicant.
d.The Tribunal has therefore breached the mandatory requirements of the Act.
(There is no “c.” in the Particulars to ground 4.)
The applicant’s submissions with respect to ground 4 are as follows:
a)during the Tribunal Hearing the Tribunal said:
We’ve had correspondence from Hill Song previously, and it says “We do come across situations where people come to us, and want to be baptised and receive a certificate, and also do the discovery course, and we feel like their motivation is for the purposes of supporting their application for immigration. While it is hard to judge a person’s motivation …
Transcript at page 25;
b)the above information was dealt with by the Tribunal at CB 216 at [97], and the applicant says that clear particulars of the information were not put to the applicant, in particular the provenance and source of the information remains unclear, and that that ambiguity arises also in the context of the oral invitation given during the hearing, as cited in the extract from transcript above;
c)when asked for a comment on the particular piece of information the applicant’s response was as follows:
I didn’t understand what you mean because of the stuff that you have … I didn’t understand what you mean. But I believe that they’re talking about people who get their certificate for their application. If this is the problem, I didn’t ask them to send this for me. One day I went to check my mailbox and I noticed they have sent it.
Transcript at page 25; and
d)no letter was provided to the applicant pursuant to s.424A of the Migration Act, and during the hearing no clear particulars were given of the information as mandated by s.424AA(a) of the Migration Act. The requirement for the Tribunal to comply with s.424AA is strict, and it is not a requirement which may be avoided by any question as to practical injustice to the applicant: SAAP.
The Minister’s submissions with respect to ground 4 were as follows:
a)even if the email contained adverse information, which it does not, the email falls within the exception in s.424A(3)(a) of the Migration Act as it was received by the Tribunal as part of its inquiries generally, and was not provided in relation to the applicant or the applicant’s review proceedings. In particular, the email chain between the Tribunal and Hill Song starts with a response by Hill Song to questions about certificates. Although no name is given in the emails, the documents being discussed do not reflect the documents submitted by the applicant in these proceedings. It is therefore apparent that the emails were not sent, or received in relation to, the present applicant. It is also clear from the terms of the email that the information in issue was general in nature; and
b)therefore, even if the email was considered to be adverse information, it plainly falls within the exception under s.424A(3)(a) of the Migration Act and did not enliven the Tribunal’s obligations under s.424AA(1) of the Migration Act: Minister for Immigration & Border Protection v CZBB [2013] FCA 1172 (“CZBB”).
Conclusion – ground 4
Section 424A of the Migration Act is set out above: see [41] above.
In this case, the email correspondence referred to, as is clear from the Tribunal’s reference to it during the Tribunal Hearing, but also as it appears in Ms Stone’s Affidavit, is general information not specifically about the applicant or the applicant’s application to the Tribunal for review of the Delegate’s Decision. In the circumstances, it is information which was not specifically about the applicant or another person, but is rather about a class of persons of which the applicant or other person is a member: Migration Act, s.424A(3)(a). As the Federal Court observed in CZBB there is a significant difference between information which is relevant to an applicant’s claims (as this information is) and information that is both relevant to an applicant’s claims and specifically about the applicant: CZBB at [64] per Foster J. The information here does not fall in the latter class, but only the former, and is therefore information within the exception in s.424A(3)(a) of the Migration Act, and was therefore not information that the Tribunal was obliged to give to the applicant under s.424A(1)(a) of the Migration Act. For the above reasons ground 4 is not made out, and must fail, and does not establish jurisdictional error in the Tribunal Decision.
Conclusions on prospects of success of the Judicial Review Application
For the above reasons, none of the four grounds of the proposed Judicial Review Application have any, or any reasonable, prospect of success. It follows that the merits of the proposed Judicial Review Application do not favour an extension of time being granted to the applicant in which to file the proposed Judicial Review Application. Further, even if it were filed, the Court would not, for the reasons set out above, have made orders in the Judicial Review Application in the applicant’s favour, the Court being of the view that the grounds of the proposed Judicial Review Application do not establish jurisdictional error in the Tribunal Decision.
Conclusions and orders
In the Court’s view, the extent of the delay, and the lack of explanation for the delay, are of themselves such as to not warrant the Court extending time to file the proposed Judicial Review Application. Otherwise, for reasons set out above, the Court, having weighed all of the factors in relation to whether an extension of time ought to be granted to the applicant to file the proposed Judicial Review Application, has come to the view that an extension of time ought not to be granted, and that the application under s.477(2) of the Migration Act for an extension of time in which to file the proposed Judicial Review Application under s.477(1) of the Migration Act must be dismissed. In the circumstances the Court is not required to make an order dismissing the proposed Judicial Review Application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J. As indicated above, even if an extension of time were to be warranted, the proposed Judicial Review Application is without merit, because the Tribunal Decision is free from jurisdictional error, and the Court would therefore have, in any event, ordered that the Judicial Review Application be dismissed.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Schedule 2.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 September 2015
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