SZTLO and Ors v Minister for Immigration and Anor
[2017] FCCA 1463
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTLO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1463 |
| Catchwords: MIGRATION – Application for an extension of time within which to seek review of a migration decision – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.417, 424A, 424AA, 425, 477 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 |
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
| First Applicant: | SZTLO |
| Second Applicant: | SZTLP |
| Third Applicant: | SZTLS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 913 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 November 2016 |
| Date of Last Submission: | 10 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| The First Applicant: | In Person |
| Solicitors for the Respondents: | DLA Piper Lawyers |
ORDERS
The application for an extension of time is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 913 of 2016
| SZTLO |
First Applicant
| SZTLP |
Second Applicant
| SZTLS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In May 2012 the First Applicant (a citizen of Fiji) and his wife and four children applied for protection visas. The application was refused by a delegate of the First Respondent on 15 August 2012. The six visa applicants sought review by the Tribunal. They attended a Tribunal hearing on 3 September 2013. Five of the visa applicants attended a resumed hearing on 6 September 2013.
The Tribunal affirmed the delegate’s decision on 2 October 2013.
On 30 October 2013 the six visa applicants filed an application for review of the Tribunal decision in this court (the first application). On 5 March 2014 they filed a notice of discontinuance in respect of those proceedings.
On 31 March 2014 the visa applicants made a request for Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (the Act). It appears that one of the visa applicants (who is not a party to the present proceedings) withdrew his request for Ministerial intervention. On 24 June 2015 the Department advised the visa applicants that the Assistant Minister had personally considered their case and decided it would not be in the public interest to intervene.
On 18 April 2016 the First Applicant, his wife and one of their children (the Applicants) filed a second application in this court seeking review of the Tribunal’s decision of 2 October 2013.
In the second application, which is the subject of these proceedings, the Applicants sought an extension of time within which to bring the application under s.477(2) of the Act.
Under s.477(1) of the Act an application to this court for review of a Tribunal decision must be made within 35 days of the date of the decision. As considered below, under s.477(2) of the Act the 35 day period may be extended if the Court is satisfied that it is in the interests of the administration of justice to do so.
The second application was filed almost two and a half years out of time. When this matter came before me for directions an issue was raised as to whether the Applicants wished to file an application in a case seeking to set aside the notice of discontinuance of the first judicial review application (which had been filed within 35 days of the Tribunal decision) or to proceed with the second application. At my request, the solicitors for the First Respondent wrote to the Applicants outlining the alternatives and the possible consequences of such courses of action and reiterating that, as had been suggested at the directions hearing, they may wish to seek independent legal advice.
The Applicants did not file any application for reinstatement of the first judicial review application.
In these circumstances, before the date scheduled for hearing of the application for an extension of time, the First Respondent filed an application in a case and a supporting affidavit seeking that the application for an extension of time be dismissed as an abuse of the process of the Court pursuant to r.13.10(c) of the Federal Circuit Court Rules.
However, at the start of the scheduled hearing of the application for an extension of time, the First Applicant indicated that he was not aware of the application for summary dismissal. He explained that he had recently changed his address for service (and postal address). He had not notified the Court or the First Respondent’s solicitors. Hence he had not received the First Respondent’s application in a case, supporting affidavit or written submissions.
As the Applicants were on notice that the extension of time application would be dealt with on the scheduled hearing date, the First Respondent did not press the application for summary dismissal, but maintained opposition to the grant of an extension of time as expressed in the Response.
Section 477(2) of the Act is as follows:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Applicants’ “grounds” for the application for an extension of time were set out in writing in the application filed on 18 April 2016 as follows:
1. The court records will show that I had filed an application for review with the Federal Circuit Court, Sydney Registry, on 30 October 2013. This application was insufficiently prepared and did not include any particularised grounds of judicial review. The application was prepared by Solicitor Alan Rigas, of Alan Rigas Solicitors.
2. Unfortunately for me, under Grounds of application, the only things my solicitor included were:
1. The decision of the Tribunal:
a. Is affected by an error of law.
b. Failed to take into account relevant considerations.
There were no particulars given even for the ground raised.
3. While my matter was still filed with the Federal Circuit Court of Australia, I sought a second opinion from Mrs Anne O’Donoghue of Immigration Solutions Lawyers. This solicitor advised me to withdraw my court application as my family and I would have better chances in pursuing a Ministerial Intervention request rather than continuing the judicial appeal.
4. I have attached a copy of the letter from Mrs O’Donoghue in my Affidavit as part of the evidence. The Court will note that that (sic) the letter said that I instructed her to act.
5. Based on the advice given to me by lawyers, I took for granted that their opinion ought to be valued and that they would know what was in my best interest. I now know that this has not been the case and regret my decision in withdrawing my application.
6. At all times I went along with the professional advice given to me and after our Ministerial Intervention request was refused, three of my children departed Australia and returned to Fiji.
7. The second applicant and I in these proceedings have been granted a bridging visa by the Department of Immigration and Border Protection to remain in Australia on account of our being involved in another court case under the Family Law jurisdiction with the Federal Circuit Court.
8. On 8 March 2016, the third applicant in these proceedings attempted to lodge another Protection visa on his own accord, and this application was determined to be invalid. The third applicant has now been asked to make arrangements to leave the country.
9. There has been a significant and crucial reason why I want to seek an extension of time to seek judicial review in my matter. As deposed in my Affidavit, one of my children who returned to Fiji has been recently detained and assaulted by the military in Fiji. I have attached in my Affidavit a Fiji Police Medical Examination Report to this effect.
10. I also believe that the Tribunal erred in not considering all my claims and I humbly request the court that in the interest of the administration of justice, I be allowed an extension to substantiate my claims for a judicial review.
11. I have tried to articulate the grounds of appeal in this application and have provided the brief particulars to substantiate the same. I believe that given my claims and the lack of adequate representation by the legal representatives who took advantage of my situation, I have been victimised and have now had to seek this extension of time.
12. I am also of the believe (sic) that should my request for an extension of time be allowed by this honourable court, I will be able to seek adequate legal representation and therefore be in a position to file documents in accordance with the court rules and regulations.
13. On the basis of my son’s recent detention and assault in Fiji, I now hold grave fears for the safety of my family and myself. I humbly request this court to please allow me this request.
14. I have attached relevant documents as part of my Affidavit in support of my application.
In a supporting affidavit of 18 April 2016 the First Applicant repeated these grounds with reference to annexures, including a copy of a letter of 24 February 2014 from the solicitor he had consulted in relation to his request for Ministerial intervention. He claimed that he was “never informed by either of [his] previous legal advisers that [he] would not have an automatic right to file a court application and that [he] would have a burden to get over the time limitation and that [he] would be out of time at a later stage”. As discussed below the First Applicant was cross-examined.
In his affidavit the First Applicant also asserted generally that he believed the Tribunal had not considered all his claims. He foreshadowed filing a transcript of the Tribunal hearing.
The Act does not prescribe particular matters to be taken into account by the Court in considering whether it is satisfied that it is necessary in the interests of the administration of justice to grant an extension of time. All of the circumstances of a particular case should be considered, although certain factors are generally relevant, in particular the extent of the delay in commencing proceedings and whether there has been a reasonable or adequate explanation, the merits of the substantive application, any prejudice to the respondents, the impact on the applicants and the public interest (see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284).
I have had regard to all the circumstances and the matters raised by the Applicants in considering the application for an extension of time. I have borne in mind the principles outlined by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 and the fact that there is no right of appeal from a decision refusing an extension of time (see AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139).
I have also borne in mind that, as Mortimer J explained in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63] (referred to with approval by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110), in considering the merits of the case, the issue is whether the Applicants’ substantive case is sufficiently arguable to justify an extension of time. This has been variously expressed as whether a case is “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. It has been said that it is generally inappropriate to investigate fully the merits of the substantive case (see SZTES at [49]). In other words, the grounds relied on by the Applicants should be considered at “a reasonably impressionistic level” as discussed by Mortimer J in MZABP at [62].
In this case the “delay” in question relates to the filing of a second judicial review application in relation to the same Tribunal decision, after discontinuance of a judicial review application which did not require an extension of time. The second application was filed approximately two and a half years outside the period provided for in s.477(1) of the Act.
The First Applicant claimed that the first review application was “insufficiently prepared” by his then solicitor and did not include particulars. He made this claim notwithstanding that the first application of 30 October 2013 indicated that the Applicants were self-represented. His evidence is that a solicitor prepared that application but it was put in the First Applicant’s name and he represented himself.
Accepting, for present purposes, that the Applicant had legal advice in relation to his first application, insofar as the Applicants seek to rely on inadequacies in the grounds in the initial review application, that does not go to establish a satisfactory explanation for delay in filing this application. It would have been open to the Applicants to seek leave to file and rely on an amended application in the first judicial review proceedings had they wished to do so.
The First Applicant also claimed that while the first review application was before the Court he had sought a “second opinion” from another solicitor, Ms O’Donoghue of Immigration Solutions Lawyers, and that this solicitor:
…advised me to withdraw my court application as my family and I would have better chances in pursuing a Ministerial Intervention request rather than continuing the judicial appeal.
In support of this claim (which sought to explain the earlier discontinuance as well as the subsequent delay in initiating these proceedings) the First Applicant attached to his affidavit a copy of a letter to him dated 24 February 2014 from Ms O’Donoghue. However, contrary to the First Applicant’s claim, this letter (which referred to an earlier advice letter of 22 February 2014 which is not in evidence) stated that the First Applicant had instructed Ms O’Donoghue to act in relation to his request for Ministerial intervention as follows:
In light of your decision to proceed with a request for Ministerial Intervention under s417 of the Migration Act and instructions, we are now preparing a preliminary submission to the Minister …
9. You instructed Immigration Solutions Lawyers to advise of your prospects of success before the Minister. You instruct that you intend to request Ministerial Intervention and withdraw your pending judicial review matter if your prospects for Ministerial Intervention are reasonable.
10. Immigration Solutions Lawyers provided comprehensive advice in regards to your prospects for a Ministerial Intervention Request under s417 of the Migration Act on 22 February 2014.
11. You instructed Immigration Solutions Lawyers to proceed with making a request for Ministerial Intervention on the basis of the ‘Unique and Exceptional Circumstances’ relevant to your case (emphasis added).
Also attached to the First Applicant’s affidavit is a copy of an email from a paralegal with Immigration Solutions Lawyers (the date of which is not legible). It referred to the firm being engaged to provide the First Applicant with assistance in relation to his request for Ministerial intervention and attached an advice letter in that respect (which, it appears, may be a reference to the letter from Ms O’Donoghue dated 24 February 2014). The email also outlined the procedure for discontinuance of proceedings before this court, including advice that the case must be withdrawn by the First Applicant personally and that by withdrawing his application the First Applicant would be liable to pay the First Respondent’s costs.
In cross-examination the First Applicant conceded that these documents did not contain advice to withdraw his judicial review application, but claimed that:
With my understanding and my belief, that without her advice, I wouldn’t withdraw from – from this Federal Court of Appeal from my judiciary application (sic).
On the evidence before the Court I am not satisfied that the solicitor the First Applicant consulted in February 2014 advised him to withdraw his judicial review application or, indeed, as to the prospects of success of that application, whether compared to an application for Ministerial intervention or more generally. I accept that the solicitor was instructed to advise the First Applicant about his prospects of success in seeking Ministerial intervention and that he instructed her that he intended to request Ministerial intervention and withdraw his pending judicial review application “if [his] prospects for Ministerial Intervention are reasonable”, as the letter of 24 February 2014 stated. In other words, the evidence is that having regard to advice from Ms O’Donoghue about the prospects of success of a Ministerial intervention application, the First Applicant chose to pursue Ministerial intervention (on behalf of all the Applicants) rather than the first judicial review application. It is also clear on the First Applicant’s evidence that he understood that he had “withdrawn” his first judicial review application by discontinuance.
While in some cases an application for Ministerial intervention may occur in circumstances that amount to a satisfactory explanation for delay in seeking judicial review, in the present proceedings this is not the case. The Applicants were not unaware of their right to seek judicial review of the Tribunal decision. They exercised that right, but then discontinued the first proceedings and instead pursued an application for Ministerial intervention. They chose to pursue that avenue rather than to maintain and continue with the first application for judicial review (see MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15]). As discussed further below, they did not act as soon as reasonably practicable to initiate the present proceedings after being advised of the result of the Ministerial intervention request. Moreover, on his evidence, the First Applicant had the benefit of legal advice both in relation to initiating the first judicial review application and (separately) in relation to the application for Ministerial intervention (cf the remarks of Mortimer J in MZZGC at [15] and MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 about the difficulties which face an unrepresented person in accessing the justice system).
The First Applicant claimed that he was not expressly informed by either of his previous legal advisers that he would not have an “automatic right” to file a second court application if his Ministerial intervention request was unsuccessful or that if he did so he would require an extension of time. There is no evidence from him as to whether he sought advice in this respect, although the email and letter from Immigration Solutions Lawyers invited him to contact the office if he had any queries, questions or concerns. Insofar as the First Applicant claimed that he had been victimised and had inadequate representation from legal representatives who “took advantage of [his] situation”, such claims are not made out on the evidence before the Court.
The First Applicant’s evidence in cross-examination as to his understanding of the obstacles facing a second judicial review application and how he learnt of the requirement for an extension of time in relation to any such further judicial review application was at times inconsistent and appeared evasive. It lacked clarity. His evidence was that he “withdrew” the first judicial review application. However initially he claimed in cross-examination that he had not known that he would need an extension of time if he later lodged a second review application. He subsequently agreed that when he signed the notice of discontinuance he believed that if he lodged a new application he would need an extension of time. However he later claimed that he only learnt about the need for an extension of time after he discontinued the first review application.
In submissions the First Applicant appeared to indicate that it was only after the Ministerial intervention request was refused that he found out through the Fijian community about the possibility of commencing fresh judicial review proceedings and seeking an extension of time.
Insofar as the First Applicant claimed that his understanding was that if he filed a further judicial review application it would be “a continuation” of his earlier application (despite his awareness that he had “withdrawn” the first application), he has failed to explain why, if that was so, he did not seek to reinstate the first application by seeking to have the notice of discontinuance set aside after his Ministerial intervention application was unsuccessful. Such a possibility was explained to him at the directions hearing in June 2016 and also in a subsequent letter from the Minister’s solicitor. However at the hearing he confirmed that he was not seeking to reinstate the first judicial review application, but was seeking to pursue the second application and seek an extension of time.
Even if at the time the Applicants chose to discontinue the earlier proceedings and take the alternative course of seeking Ministerial intervention they did not appreciate that if they subsequently tried to bring fresh judicial review proceedings in this court they would need an extension of time, their decision to pursue Ministerial intervention and to discontinue the first judicial review application was not consistent with an intention to pursue a right to seek judicial review.
Further, the Applicants have not provided a satisfactory explanation for the nearly 10-month delay in commencing these proceedings after they were notified of the result of their request for Ministerial intervention.
The Applicants were advised of the unsuccessful outcome of the request for Ministerial intervention around 24 June 2015. They did not commence these proceedings until 18 April 2016. That is so despite the fact that the First Applicant agreed in cross-examination that the real reason he discontinued the first review application was so he could first lodge a Ministerial intervention application and that when that was unsuccessful he had always intended to come back to the Court to lodge another review application. The Applicants have not provided a reasonable and adequate explanation for the significant delay in commencing these proceedings after notification of the refusal of the Ministerial intervention request. This period is in itself an extensive delay.
In oral submissions the First Applicant claimed that when the request for Ministerial intervention was refused they had no money to seek legal advice, but that he was later told by Fijian community members that they could apply to the Court and seek an extension of time. This general submission does not provide a reasonable and adequate explanation for the subsequent delay. It is also inconsistent with the First Applicant’s evidence that his belief was that if he filed a further judicial review application it would be a continuation of his earlier application.
In the application and the First Applicant’s affidavit he appeared to explain the delay on the basis that he had not feared returning to Fiji (to which three of the First and Second Applicants’ children had returned after the request for Ministerial intervention was refused) until circumstances changed in Fiji. It is clear that the intention of the Act is that judicial review proceedings be commenced promptly. A failure to do so (or in this case a failure to initiate further judicial review proceedings promptly) because an applicant does not fear harm in his or her home country is not a reasonable explanation such as to support a conclusion that it is necessary in the interests of the administration of justice to grant an extension of time under s.477(2) of the Act.
It was claimed, however, that at the time of the second review application the First Applicant held grave fears for the safety of his family and himself.
A change in circumstances in the Applicants’ home country does not in itself provide a satisfactory explanation for delay in seeking judicial review asserting jurisdictional error in the Tribunal decision. Rather it purports to explain why proceedings were ultimately commenced. The First Applicant provided a document said to be a copy of a Fijian Police medical examination form in support of a claim that his son was detained and assaulted at a military camp. However it is dated 3 January 2016. Taken at its highest, this claim and the medical examination form do not satisfactorily explain the delay prior to that time or the failure to seek judicial review thereafter until April 2016.
The First Applicant also claimed in his affidavit and application that he and his wife had been granted bridging visas to remain in Australia because of involvement in family law proceedings, but that their son, the Third Applicant, had unsuccessfully attempted to lodge another protection visa application on 8 March 2016. That application was determined to be invalid and their son had “now” been asked to make arrangements to leave Australia. Insofar as this circumstance is also relied upon to explain the delay, the claim about the Third Applicant seeks to explain why the Applicants eventually sought to initiate fresh judicial review proceedings in April 2016, not the prior delay.
The fact that the First and Second Applicants hold visas allowing them to remain in Australia temporarily while another family member has to return home, and/or their failure to seek review after an unsuccessful Ministerial intervention request until circumstances in their home country are seen as having adverse consequences for family members, do not (on their own or as part of all the circumstances) amount to a reasonable explanation for the delay in commencing these proceedings such as to support a conclusion that it is necessary in the interests of the administration of justice to grant an extension of time so that the Applicants can pursue a second judicial review application.
It is clear that under the Migration Act judicial review proceedings ought to be commenced promptly. However in this case the Tribunal decision was in October 2013. The Applicants chose to discontinue timely judicial review proceedings in March 2014. They then made a Ministerial intervention request. They were advised that this was unsuccessful in June 2015. They did not commence these proceedings until April 2016. I am not satisfied that the Applicants have provided a reasonable or adequate explanation for the significant delay.
It is also necessary to consider the merits of the substantive application. The First Applicant asserted generally that he believed the Tribunal had erred in not considering all his claims. The application for review contains four grounds which are as follows:
Ground One
The second respondent (the “Tribunal”) erred in law in not complying with the requirements of s.424A(1) of the Migration Act 1958, (the “Act”) which required that 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.
Particulars
The Tribunal’s Decision Record, D[33] stated that “on the basis of all the evidence before it, including the cumulative and significant concerns considered above, the Tribunal is not satisfied that the first applicant was questioned, taken to the military barracks, beaten, otherwise physically mistreated or threatened by the military in March 2012 as he claims”.
Similarly, at D [32] the Tribunal stated that “He did not identify any difficulties leaving Fiji for Australia in March 2012, compounding the Tribunal’s concerns that he has exaggerated aspects of his claims and evidence, including his claims to have been questioned and mistreated at the military barracks in March 2012”.
The Tribunal failed in its duties in not giving the applicant any relevant details as required by s.424A. The Tribunal did not give the applicant an opportunity to address the Tribunal’s concerns or even be put on notice that the Tribunal was considering a number of factors that would be adverse to the applicant. This constitutes jurisdictional error. There are several parts of the Decision Record infected with similar conclusions drawn by the Tribunal that constitute a breach of s.424A. These will be elaborated in the Amended Application when I have the benefit of legal representation and have the transcript of the proceedings conducted by the Tribunal.
Ground Two
The Tribunal also failed in its obligations under s.424AA of the Act because it failed to give to the applicant clear particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review.
Particulars
The Tribunal at D [31 page 11] stated: “As put to the applicant, the Tribunal considers it a matter of significant concern that such details which are now identified as central to his fears of returning to Fiji had not been disclosed earlier. These omissions suggest to the Tribunal that significant aspects of his claims and evidence are evolving in an effort to strengthen his application and may not be true”.
While the Tribunal may have put questions to the applicant during the course of the hearing, it clearly failed in its obligations under s.424AA. At no point in the decision record is there any mention by the Tribunal of obliging by the requirements of s.424AA whereby the Tribunal gave to the applicant clear particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review.
The Decision Record makes no mention of the fact that the Tribunal ensured that as far as practicable, that the applicant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision under review. At no part of the Decision Record is there any mention that the Tribunal fulfilled its obligation by advising the applicant that he may seek additional time to comment on or respond to the information.
There are other instances in the Decision record where the Tribunal failed in its duties under s.424AA and s. 424A. This constitutes jurisdictional error.
Ground Three
The Tribunal denied the applicant a meaningful opportunity to participate in the hearing as required by s.425 of the Act by failing to alert the applicant of the significance it placed on “evidence before the Tribunal”.
Particulars
The Tribunal’s Decision Record D[21] is again a clear example of the Tribunal not fulfilling its obligation under the Act. The Tribunal at D [21] stated: “However, the evidence before the Tribunal strongly suggests that this direction by the military was to preserve the status quo of disputed land pending the outcome of a High Court challenge. The Tribunal is not satisfied that the military’s threat to monitor the first applicant at that time was in reference to anything beyond the use of the disputed land or that it was essentially and significantly for a Convention reason”.
It is submitted that a miscarriage of legislative process has occurred because the applicant was not provided with clear particulars of “the evidence” by operation of s.424AA, so as to enable him to present submissions to the Tribunal which could have persuaded the Tribunal or addressed it to an important piece of evidence which could have altered its decision.
In discussing the underlying purpose of s.424A, his Honour McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 said:
The obligation to deal fairly with applications for review must continue throughout the Tribunal’s review. One aspect of that obligation is that the appellant be given the opportunity to comment upon adverse material. Because that is so, the Division should be interpreted so as to require the Tribunal to give the appellant the opportunity to comment on adverse material obtained at a hearing before the Tribunal (when the appellant or another person gives evidence).
It is submitted that in the present case, the failure of the Tribunal to provide the particulars identified with many more examples of similar failure, denied the applicant crucial opportunity to provide evidence and additional arguments against him arising from the “evidence before the Tribunal”. One therefore realises that no meaningful opportunity was provided to participate in the hearing under s. 425; and there has been a miscarriage of justice and statutory process for which s.424AA and s.424A were legislated.
Ground Four
A crucial part of the applicant’s claim was based on his descent as a Solomon Islander and this group of people of Solomon Islander descent therefore fell within a specific social group that faced persecution and discrimination in Fiji. The Tribunal did not consider the social group of the applicant and therefore failed to exercise its jurisdiction.
Particulars
The Tribunal’s Decision Record at D [7] noted that the applicant’s expressed claims included the fact that he feared harm from the Fijian military for reason of his imputed and/or actual political opinions as an opponent and/or perceived supporter of opponent (sic) of the regime, and because of his descent as a Solomon Islander.
In determining the applicant’s claims, the Tribunal only considered the business aspects of his claims and failed to take into account any aspects of the serious detriment, harm or disadvantage that the applicant faced as a result of his social group.
Previous case law has stated that to fall within the Convention, it is not necessary that the persecution be initiated by the State. All that is necessary is that persecution be for a Convention reason and that the State be unable or unwilling to stop it. Where the harm feared is not initiated by the State and is not initiated for a Convention reason, there may still be persecution within the meaning of the Convention where the State is complicit in the harm and is complicit for a Convention reason or where the State is prepared to tolerate the harm and does so for a Convention reason.
The Tribunal at D[18] put to the first applicant that, while Solomon Islanders in Fiji may generally face disadvantages compared to indigenous Fijians, it seems that he and his family have overcome many of those limitations and have lived a comfortable and successful life in Fiji. He did not dispute that and told the Tribunal that he considers his family have been lucky in that respect, but re-iterated that this is not the case for every Solomon Island descent in Fiji.
At no point did the Tribunal address directly with the applicant any aspects of his social group and what if any fears he had as a result of belonging to this group. The Tribunal asked the wrong questions and in doing so reached the wrong conclusions when dealing with the applicant’s claims of facing persecution and discrimination as a person belonging to a distinct social group, those that are of Solomon Island descent.
It is submitted that the Tribunal misunderstood the applicant’s claims and failed to make a determination of whether the narrower group or class to which the applicant claimed to belong – people of Solomon Island descent who were treated as fourth class citizens’ (sic) and who were discriminated and persecuted as a result of that class – constituted a social group for the purposes of the Convention.
The Applicants did not file any written submissions. However at the hearing of the application for an extension of time the First Applicant tendered a transcript of the first Tribunal hearing of 3 September 2013. He did so notwithstanding that directions had been made for the earlier filing of evidence, including a direction that any transcript of the Tribunal hearing be annexed to an affidavit. He did not address the relevance of the transcript to the grounds in the application.
Further, the First Applicant also indicated that he had a copy of the transcript of the Tribunal hearing of 6 September 2013 and sought to rely on it in support of the grounds in the application. In the absence of opposition from the solicitors for the First Respondent, I gave leave to the Applicants to file and serve an affidavit annexing a copy of the transcript of the Tribunal hearing on 6 September 2013. Such an affidavit was filed. Each of the transcripts was prepared by a transcription provider service.
In an endeavour to clarify the relevance of both transcripts, I also ordered that the First Respondent file written submissions after the hearing addressing the grounds in the application in light of both transcripts and for the Applicants to file submissions in reply. The parties were also given the opportunity to file post-hearing submissions addressing the manner in which the Tribunal had dealt with a request to adjourn the hearing (an issue that I had raised with the solicitor for the First Respondent). The First Respondent filed post-hearing written submissions. The Applicants did not file any post-hearing written submissions.
The Applicants are self-represented. While they did not identify the relevance of the transcripts or any part thereof to the grounds in the application, I have had regard to whether the material before the Court discloses an arguable ground such as to support the application for an extension of time.
I have borne in mind the need to adopt the approach referred to by Mortimer J in MZABP in relation to assessing the merits of the grounds of review. As her Honour observed at [62]-[63]:
“…it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27 ; 195 CLR 516 at [7]–[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable“, “reasonably arguable“, “sufficiently arguable“ or has “reasonable prospects of success“ (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284 ; 139 ALD 252 at [46]–[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”
As pointed out in MZABP, a “careful distinction” must be drawn between grounds that are “hopeless and doomed to fail” and “those which are properly described as weak” (see MZABP at [65] and SZTES at [82]-[85]).
While bearing in mind that what is in issue is whether the time for bringing the application should be extended, not whether the Applicants would ultimately be successful, for the reasons to follow I am not satisfied that the grounds in the application are sufficiently arguable to support the application for an extension of time or that the material before the Court is otherwise such as to raise any sufficiently arguable case of jurisdictional error such as to support the grant of an extension of time. The fact that there are four grounds in the application of 18 April 2016 which contain particulars and transcripts of the Tribunal hearings in evidence does not, without more, establish that the Applicants’ prospects of success are sufficiently arguable to support an extension of time. As discussed below, despite superficially detailed particulars, the grounds lack clarity. Indeed, the pleaded grounds are plainly hopeless in the sense considered in SZTES and MZABP.
I note first that, while grounds are to be considered at a “reasonably impressionistic level” (see MZABP at [62]), in this case the number and length of the grounds, the extent of the material before the Court, and the fact that the Applicants are self-represented and have not provided any meaningful submissions means that this threshold assessment is more time-consuming than might otherwise be the case.
In considering the grounds in the application and the material before the Court, it is relevant in this case to have regard to the Tribunal reasons for decision. The Tribunal reasons are detailed. With one exception, the grounds of review in the application do not suggest that the Tribunal fell into jurisdictional error in its reasons for decision. Rather it is asserted that the Tribunal failed to comply with s.424A (ground 1), s.424AA (ground 2) and s.425 (ground 3) of the Act. However, ground 4 (which involves a contention that the Tribunal failed to consider a particular social group of “people of Solomon Island descent”) takes specific issue with the Tribunal decision. In addition the First Applicant also asserted generally that the Tribunal failed to consider all his claims, although he did not identify any particular integer or integers of his claims that were not considered by the Tribunal.
As indicated, the six visa applicants applied for protection visas in May 2012. The First Applicant claimed he would suffer harm if he returned to Fiji because he would be racially discriminated against as a person of Solomon Islander descent and also that he would be imprisoned or mistreated by the Fijian military because of his involvement in a court case against a public office holder, because he had written letters critical of the government, and because of his perceived political connections. Only the First Applicant made substantive claims. The second to sixth-named visa applicants applied for protection visas as members of his family unit. The application was refused and the six visa applicants sought review by the Tribunal.
In its reasons for decision dated 2 October 2013 the Tribunal noted that the First Applicant’s claims had expanded over time, but that the totality of his claims was largely set out in his representative’s written submission dated 2 September 2013. It summarised his claims to have experienced discrimination as a person of Solomon Islander descent. He claimed that he held a particular office in a named association of persons of Solomon Islander descent; that his business had suffered a large financial loss due to racial discrimination; that he had been detained and intimidated by the Fijian military in March 2012 in connection with a court case he was conducting against a particular public office holder in Fiji; and that he feared being imprisoned and/or mistreated by the military regime in connection with that case on the basis that he would be viewed as an enemy of the Fijian state. The Tribunal recorded that the First Applicant also claimed to fear that he would not be treated fairly by the Fijian judiciary.
The Tribunal described the First Applicant’s claims that he had drafted two open letters critical of government entities and sent them to Fijian news outlets and/or human rights groups for publication. It acknowledged that the First Applicant had not claimed that such letters had been published, but claimed that the letters and the intended publication had come to the knowledge of the military who were said to have harmed him in the past. The First Applicant claimed that the military would continue to target him adversely if he returned to Fiji. He claimed to fear he would be placed on a watch list and would not be able to leave Fiji if he returned and that he would be unable to support his family financially.
The Tribunal recorded that the First Applicant also claimed that he had been, and would continue to be, harmed for his perceived connection to two named known political opponents of the regime (referred to for convenience as A and B).
The Tribunal also set out in some detail the First Applicant’s claims about prior adverse encounters with the military, including in January 2010 in relation to a subdivision of land. He claimed he had been directed to stop working on the land pending resolution of a legal challenge which remained on foot. He also claimed he had been questioned on two occasions in June and July 2011 regarding political graffiti and that in March 2012 he was questioned and intimidated for reasons given variously as his known intention to publish an open letter revealing discrimination by government bodies or for pursuing a court case against a particular public office holder in Fiji. There is no suggestion from the Applicants that the Tribunal’s summary of their claims was incomplete.
Before considering the First Applicant’s claims, the Tribunal addressed the fact that he had raised what were said to be interpretation difficulties in connection with his first appearance (on 3 September 2013) before the Tribunal and also mental health concerns said to be evidenced by a report from a clinical psychologist provided in support of the application.
In relation to the claimed interpretation difficulties, the Tribunal had regard to the fact that it held a second Tribunal hearing (the hearing of 6 September 2013) which had been conducted with the assistance of a different interpreter at which it had discussed these issues with the First Applicant. The Tribunal recorded that it had asked the First Applicant to confirm that its understanding of particular evidence given at the first hearing was correct. The First Applicant had confirmed, varied and expanded on his evidence. The Tribunal was satisfied that the totality of the First Applicant’s claims and evidence had been accurately communicated to and understood by it.
The Tribunal accepted the psychologist’s observations regarding the First Applicant’s stress and depression. It stated that it had been mindful of this in conducting the review and assessing the evidence. However it had regard to the fact that the psychologist’s report made no suggestion that the First Applicant had any difficulty in being able to communicate his claimed circumstances or fears, that it appeared to be based largely on information he had himself put forward, and that it had described him as “cognitively intact”. This impressed the Tribunal as consistent with the First Applicant’s demonstrated ability to recall and communicate specific incidents to it and to give detailed responses to questions, including dates.
On all the evidence before it, the Tribunal was satisfied that the First Applicant had had a meaningful opportunity to participate in the review process. It was not satisfied that his mental health and emotional difficulties had adversely impacted his ability to communicate his claims and evidence or that those difficulties overcame or explained the specific concerns subsequently addressed by the Tribunal. The Applicant did not take issue with these aspects of the Tribunal’s decision and the tendered transcripts do not support any claim that the Tribunal failed to consider the issues raised by the Applicants or to meet its obligations under s.425 of the Act.
The Tribunal was not satisfied that the First Applicant’s capacity to subsist in Fiji was threatened, whether for reasons of his descent (as a Solomon Islander) or because of the economic conditions in Fiji. In reaching this conclusion it had regard to the fact that he had demonstrated a strong ability to pursue and create successful business opportunities and to accumulate family resources and assets and to the fact that he and members of his family were educated and skilled. The Tribunal considered that any impediments or difficulties he may experience in the reasonably foreseeable future in respect of access to basic services and an ability to earn a livelihood and any economic difficulties he had faced or may face in the future would not threaten his capacity to subsist. It was not satisfied that the fears the First Applicant held regarding his and his family’s economic circumstances in Fiji, including those he said related to discrimination against those of Solomon Islander descent, singularly or cumulatively gave rise to a real chance of serious harm amounting to persecution under the Migration Act.
The Tribunal considered the First Applicant’s claims about past adverse treatment and threats from the military in connection with a court case regarding the subdivision of land to which he was a party. Having regard to the documentary evidence submitted, it accepted that the First Applicant was involved in certain property transactions and that he had been involved in Fijian court proceedings from December 2000 on in relation to a property development. It accepted that due to later court proceedings (which, according to the First Applicant, had not been resolved at the time of the Tribunal hearing) a community organisation of which the First Applicant was a member had been unable to continue subdividing the land in question. However the Tribunal was not satisfied that this evidence constituted or gave rise to serious or significant harm within the Migration Act.
The Tribunal also accepted that the First Applicant had met with the military in 2010 and that he was instructed (in a manner he considered intimidating) not to do any further work subdividing the land. However it was not satisfied that such threat was a reference to anything beyond the use of the disputed land or that it was essentially and significantly for a Convention reason. The Tribunal was of the view that the evidence strongly suggested that this direction was to preserve the status quo of disputed land pending the outcome of proceedings in the Fijian courts.
The Tribunal was not satisfied on the evidence before it that being warned or monitored by the military regime in relation to the use of the disputed land or being involved in the court challenges (which it described) in respect of the disputed land constituted serious or significant harm within the Migration Act. Nor was the Tribunal satisfied on the evidence before it that the First Applicant had in the past, or currently had, a profile in connection with his role on Solomon Islander bodies in connection with the disputed land such as to give rise to a real chance of serious harm or real risk of significant harm, even when considered cumulatively with what was accepted of his circumstances.
The Tribunal addressed the First Applicant’s claims that he had experienced discrimination at the hands of a Fijian government authority in relation to obtaining space to berth a boat on a slipway and obtaining a certificate of seaworthiness. For reasons which it gave, on the evidence before it the Tribunal was not satisfied that any Convention reason was the essential and significant reason for delays in slipping the boat or issuing a certificate of seaworthiness or that claimed loss of commercial opportunities and economic losses in relation to the First Applicant’s economic situation involved, amounted to or gave rise to a real chance of serious harm or real risk of significant harm within the Migration Act.
The Tribunal considered in some detail the First Applicant’s claims that he also faced harm from the military regime for pursuing a court case in which he challenged agencies of the military regime (in particular a specified public office holder) and which he claimed exposed discriminatory practices within government agencies dealing with him.
As evidenced by extensive documentation provided, the Tribunal accepted that the First Applicant had been involved in certain commercial matters. It summarised the evidence in relation to aspects of his claims in this respect, but found that the dismissal of his claims by a Fijian court appeared to be based on its application of Fijian company law and on its face did not suggest that the outcome was influenced essentially and significantly by any Convention reason.
The Tribunal considered the First Applicant’s “insistence” that the Fijian judiciary was not independent and speculation that he would not receive a fair hearing because the government protected its own interests and agencies and because of his links with known political opponents of the regime (in particular persons A and B). It referred to supporting statements to that effect. However the Tribunal found that the First Applicant’s evidence overall revealed that, as he had in the past, he continued to engage actively in legal and court processes in Fiji. It found that this demonstrated a level of confidence in the Fijian legal and judicial system. The Tribunal also found that the First Applicant’s claim that the outcome of a particular court case was motivated by a desire on the part of the military regime to harm him for his connections with known political opponents and/or his Solomon Islander descent was speculation that was unsupported by the totality of the evidence.
The Tribunal was not satisfied that the First Applicant’s perceived political opinions, links with particular people, his Solomon Islander descent or his role within the community, singularly or cumulatively amounted to the essential and significant reason for the difficulty he faced in succeeding in his court challenge. It accepted that he had incurred significant financial losses which he may not be able to recover through the Fijian legal system, or at all. However, having regard to its earlier findings, the Tribunal was not satisfied that any financial losses the First Applicant had faced, including in respect of issues relating to his boat, and that he may continue to face in the reasonably foreseeable future, amounted to serious or significant harm within the Migration Act.
In addition, for reasons which it set out in some detail, the Tribunal was not satisfied that the First Applicant was questioned, taken to military barracks, beaten or otherwise physically mistreated or threatened by the military in March 2012 as he claimed. It found his evidence in that respect to be problematic for several reasons, including the fact that it had changed significantly over time and had evolved during the course of his oral evidence (as the Tribunal described). The Tribunal was of the view that such evidence gave the impression that the First Applicant was attempting to embellish aspects of his claims and evidence to strengthen his application.
The Tribunal considered it significant that details that were later identified as central to the First Applicant’s fears of returning to Fiji had not been disclosed earlier. It did not accept his explanations for such late detailed claims. It found that these matters cast significant doubt on the truth of significant aspects of this part of the claims. The Tribunal also had regard to the fact that while the First Applicant said that it was only because he promised to discontinue a court case that the beatings stopped and he was released by the military in 2012, he had not in fact discontinued the court case. In addition, he had subsequently been issued with an Immigration Department certificate which stated that he had no adverse record or travel restriction. He had not identified any difficulties leaving Fiji for Australia after the claimed 2012 events involving the military. The Tribunal found that these matters compounded its concerns that the First Applicant had exaggerated aspects of his claims and evidence, including about being questioned and mistreated by the military in March 2012, the level of adverse interest the Fijian military had in him, and the nature and risk of any harm he faced in the future.
The Tribunal addressed the First Applicant’s claims that part of the reason he had been questioned and mistreated was because he was known by the military to have drafted an open letter he sent to a Fijian newspaper for publication. The Tribunal had regard to the fact that the letter had not been published, that at the time the First Applicant claimed he wrote it he had not commenced legal proceedings against the public officer holder (which it found raised doubts that he had any interest in blatantly exposing himself at that time as a critic of government entities) and that he had not provided any independent verification that the letter was submitted to any press agency in Fiji. The Tribunal was not satisfied on the evidence before it that the First Applicant had actually submitted such a letter for publication in the Fijian media or elsewhere in November 2011 or in connection with his claims relating to his boat as he claimed.
The Tribunal also considered the First Applicant’s claim that he had submitted a more recent open letter to a Fijian media outlet and to a range of human rights entities for publication. It found that the same concerns applied. It was not satisfied that he would have circulated a document for publication which could potentially compromise his business, family and ongoing interest in a matter before the Fijian courts. It was not satisfied that any such correspondence or proposed media exposure by the First Applicant had come to the attention of the Fijian military as claimed.
The Tribunal found that notwithstanding the First Applicant’s involvement in court cases involving Fijian government bodies and sensitive issues for many years, his evidence did not reveal that he had been harmed in any way involving serious or significant harm in connection with such prior court matters. It concluded that this did not support his claims to fear harm amounting to serious or significant harm in the reasonably foreseeable future in connection with his case against a public office holder.
The Tribunal addressed the First Applicant’s claims that his risk of harm in the future and his adverse treatment in the past were compounded and influenced by his actual and perceived connections with a named high profile political opponent of the regime (A). The Tribunal accepted that A had been and remained a high profile political opponent of the Fijian military regime. Consistent with a written statement from A, the Tribunal accepted that certain transactions involving the First Applicant and his family members in relation to a motor vehicle previously owned by A had taken place. However it had regard to the absence of any evidence as to past harm on this basis. It was not satisfied that such a transaction or link gave rise to a real chance or real risk of any harm to the First Applicant or to any of his family members for any reason in the reasonably foreseeable future.
The Tribunal accepted that the First Applicant had provided some business assistance to A prior to 2009 (when A left Fiji). However it had regard to the fact that since that time the First Applicant had travelled to Australia and returned to Fiji without any demonstrated difficulty and had not previously sought asylum and also to the fact that while A had left Fiji by 2009, the First Applicant did not claim he had experienced any harm for his association with A prior to March 2012. He also first made such claim to the Tribunal. The Tribunal expressed doubt about the First Applicant’s claim that he was directly questioned or harmed by the military in 2012 in connection with A and found that his evidence about subsequent ongoing business transactions with the government was not supportive of this claim.
The Tribunal concluded that while the First Applicant had some ties with A, these had not in the past and would not in the future give rise to a real chance of serious harm or a real risk of significant harm, either on their own or when assessed cumulatively with what was accepted of the First Applicant’s claimed circumstances.
In addition, the Tribunal addressed the First Applicant’s claim that he had an association with another perceived opponent of the Fijian authorities (B). In particular he claimed that he had employed B. The Tribunal accepted that B had an adverse profile with the regime. While it accepted that the First Applicant was questioned at military barracks on two occasions in mid-2011 in relation to political graffiti, it was not satisfied that this involved serious or significant harm or that the First Applicant’s evidence identified any ongoing adverse treatment in connection with the graffiti or his employment or other links to B, either singularly or cumulatively when considered with the First Applicant’s other circumstances. It also considered that the fact the First Applicant had not mentioned these incidents at any time prior to his Tribunal review was strong evidence that he did not have a subjective fear of serious or significant harm in connection with B or the graffiti incident.
The Tribunal was not satisfied on all the evidence before it that the First Applicant faced a real chance of serious or significant harm in connection with his employment of or links with B or graffiti he was questioned about in 2011.
Based on all of these matters, the Tribunal was not satisfied that the First Applicant met the Refugees’ Convention criterion. It noted that no claims had been made that any of the other Applicants faced a real chance of persecution involving serious harm in Fiji. On the evidence before it the Tribunal was not satisfied that any of the Applicants had a well-founded fear of persecution in Fiji for a Convention reason.
The Tribunal also considered the complementary protection criterion. Based on its earlier consideration and findings of fact it was not satisfied on the evidence before it that the First Applicant faced a real risk of the death penalty being carried out on him or that he would be arbitrarily deprived of his life in Fiji. Nor was it satisfied that the military regime, police, any agent of the regime in Fiji or any other person or entity in Fiji had or would have the requisite intention to inflict any harm on the First Applicant. The Tribunal was not satisfied that the First Applicant faced a real risk of being subjected to torture or cruel or inhuman treatment or punishment within the definitions in s.5 of the Act and also found that the evidence before it did not indicate that any harm or hardship the First Applicant feared in the reasonably foreseeable future in Fiji would be intended to cause extreme humiliation which was unreasonable. The Tribunal was not satisfied on the evidence before it that the First Applicant faced a real risk of being subjected to degrading treatment or punishment in the reasonably foreseeable future. It found that he did not meet the complementary protection criterion. It observed that no claim had been made that any of the remaining Applicants did so and also found that they did not meet the complementary protection criterion.
Nor was the Tribunal satisfied that any of the Applicants met the family unit criterion.
The Tribunal affirmed the decision under review.
The Tribunal’s detailed consideration of the Applicants’ claims does not reveal an arguable failure to consider any integer of the claims. Nor, as discussed below, does it provide any support for a contention that the Tribunal failed to consider the Applicants’ claims based on membership of a particular social group in a manner constituting jurisdictional error.
As indicated, ground one in the application asserts a failure by the Tribunal to comply with s.424A(1) of the Act by failing to give the First Applicant the opportunity to address its concerns about his March 2012 claims or to put him on notice that it was considering a number of adverse factors.
First, on its face and as pleaded (as a failure to comply with s.424A of the Act), this ground is plainly hopeless (see MZABP per Mortimer J at [62]). The paragraphs of the Tribunal decision referred to in the particulars to this ground (paragraphs 32 and 33) do not identify information which may in any sense be seen as arguably falling within the concept of “information” such as to enliven the s.424A(1) obligation. In paragraph 32 the Tribunal referred to matters which compounded its concerns about whether the First Applicant was subject to mistreatment by the military in 2012 as he claimed. In that context it had regard to the fact he had not identified any difficulties leaving Fiji in 2012 (despite his claims that the military had an adverse interest in him). Paragraph 33 sets out the Tribunal’s conclusion in relation to the First Applicant’s claims about mistreatment by the military in 2012.
Insofar as this ground takes issue with the Tribunal’s lack of satisfaction about particular aspects of the First Applicant’s claims, the Tribunal is not obliged to put its provisional reasoning or inadequacies in the evidence before it to an applicant under s.424A of the Act. As is made clear in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [18], the concept of “information” within s.424A(1) of the Act does not include the Tribunal’s disbelief of the Applicant’s evidence arising from inconsistencies therein or gaps in his evidence.
The particulars to this ground state that other asserted s.424A issues would be elaborated on in an amended application. The Applicants were given the opportunity to file an amended application before the hearing of the application for an extension of time. They did not do so. The Applicants did not elaborate on the particulars or identify, either in the application or in submissions, any information that would possibly enliven the Tribunal’s obligation under s.424A of the Act. Rather, the First Applicant suggested that he was not given a chance to explain himself at the Tribunal hearing.
I am not satisfied that it is reasonably arguable that the Tribunal failed to comply with s.424A of the Act in the manner contended for by the Applicants such as to support the application for an extension of time.
At the hearing the solicitor for the First Respondent acknowledged that this ground (as well as the next two grounds in the application for review) could be seen as in effect an argument that the Applicants were not given a meaningful opportunity to present their claims or to comment on the Tribunal’s concerns in relation to the claims.
The First Respondent addressed the possibility of a failure to afford the hearing required under s.425 of the Act in light of the transcripts of the Tribunal hearings.
On this basis, the crux of ground 1 could be seen as a contention that the Tribunal did not give the Applicants the opportunity to address the Tribunal’s concerns and that in this sense it failed to raise dispositive issues with the Applicants, in particular in relation to the matters considered in paragraphs 32 and 33 of its reasons, at the Tribunal hearings (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).
The Applicants were invited to and attended two hearings before the Tribunal with their representative. The Tribunal acknowledged that the First Applicant had stated that he had some interpreting difficulties at the first hearing. To address this concern, it clarified the content of his evidence through a different interpreter at the second hearing. It was satisfied that its understanding of the totality of his claims were accurately communicated and understood. The First Applicant takes no issue with the Tribunal’s understanding of his claims. The Tribunal also considered the psychological report in relation to the First Applicant. No issue is now taken, and nor is any apparent, with these aspects of the Tribunal’s reasons or its approach at the hearings.
As the solicitor for the First Respondent pointed out, the Tribunal considered the Applicants’ claims in five broad categories. Issues in relation to each of these categories of claim were raised with the First Applicant in some detail during the hearings. For example, he was specifically asked to comment on his claim about the limited educational and business opportunities for people of Solomon Islander descent in Fiji. The Tribunal discussed with him his claims about economic hardship and whether he would face harm as a result or whether his family’s future capacity to subsist in Fiji would be affected. In seeking comment, the Tribunal indicated to the First Applicant that it accepted that Solomon Islanders faced disadvantage, but pointed out that the question before it was, having regard to the discrimination, “whether or not any economic hardship you may face in the future or any limitations to your ability to earn a living or access services would threaten your capacity to subsist”. The First Applicant commented, acknowledging his luck in surviving discrimination. He suggested that was not the case for others in the community (which the Tribunal accepted).
The Tribunal also discussed with the First Applicant issues in relation to his claim to have suffered discrimination when his boat was denied space on a slipway and raised issues in that respect. In that context the First Applicant clarified that his concern was not so much about race, but about business discrimination. The Tribunal addressed these issues.
Similarly, at the second hearing the First Applicant was given the opportunity to elaborate on his claims in relation to the delayed slipping of his boat and asked to comment on whether there was a reason for the delay other than his claims about racial discrimination. The Tribunal raised concerns with him about why he would have continued to get government contracts if the government was discriminating against him. He was also asked to give evidence of how any financial losses or harm in relation to his case against a public official were relevant to his claims for protection.
In addition, at both hearings the Tribunal raised with the First Applicant issues in relation to his claims about adverse treatment by the military, including in connection with a court dispute regarding subdivision of land. At the second hearing it gave him the opportunity to clarify and add to his evidence relating to a claimed meeting with the military in 2010. Indeed the Tribunal ultimately accepted much of the First Applicant’s evidence regarding those events, however it concluded that the events did not give rise to serious or significant harm.
Of relevance to the claimed events of 2012 considered in paragraphs 32 and 33 of the Tribunal’s reasons, the Tribunal also raised concerns with the First Applicant (and asked for comment) in relation to his claims about sending letters to the Fijian media. He was also questioned at length on his claims regarding his association with the two persons said to be political opponents of the regime in Fiji. Again, the Tribunal sought clarification of the First Applicant’s evidence at the second hearing, including (relevantly) affording him opportunities to explain why he would have experienced harm from the military in 2012 for his connection to one of the two persons, when the assistance the First Applicant gave that person (A) was in 2008. It is apparent that on several occasions the Tribunal endeavoured to ensure that the First Applicant understood these concerns.
The Tribunal also put to the First Applicant its concern that from the information he had given about his direct encounters with the military there did not appear to be any suggestion that he had been questioned or mistreated because of his connections with A at any point. In that context the Tribunal accepted that the First Applicant had some ties with A, but was not satisfied that he faced a real chance of serious or significant harm.
Similarly, at both the first hearing and as clarified at the second hearing the First Applicant was given the opportunity to comment on his claims regarding a connection with person B, who said to be an opponent of the regime. The Tribunal accepted aspects of these claims, albeit not the First Applicant’s claim to fear harm on that basis.
Notably (having regard to the particulars to ground one), early in the second hearing the Tribunal referred to the fact that at the first hearing it had raised some concerns with the First Applicant about the claimed March 2012 incident. It then went on to again raise matters of concern in relation to that claim, including the First Applicant’s failure to mention his ultimate claim that he was physically mistreated by the military in March 2012 when he was interviewed by the delegate and its failure to understand why he had not mentioned this claim and also his claim that he was taken to the barracks in mid-2011 at an earlier time. The Tribunal gave the First Applicant the opportunity to comment. It also raised with him, in fairly direct terms, various other concerns, including the fact that from the information he had given about his direct encounters with the military, there did not seem to be any suggestion that he had been questioned or mistreated for his connections with A at any point prior to 2012, stating:
…so that makes me wonder why the military would question you about your connection to [A] in… March 2012.
In the hearing the Tribunal pursued this point and its concerns about the credibility of the First Applicant’s claims about events of March 2012 in some detail. The Tribunal also put to him its concern about the fact that he was given a Fijian immigration document entitling him to travel at a time when he claimed he was worried about being placed on an airport watch list.
I also note that the Tribunal concluded the second hearing by asking the First Applicant’s representative if there were any other questions he would like the Tribunal to ask the Applicant. After noting that the Tribunal had clarified certain points, the representative indicated that there were no such questions.
The fact that in its reasons for decision the Tribunal referred to the First Applicant’s failure to identify any difficulties leaving Fiji for Australia in March 2012 in circumstances where he had an extensive hearing with every opportunity to raise issues he wished to put before the Tribunal, is not indicative of an arguable failure by the Tribunal to raise dispositive issues with him such as to establish any basis on which a failure to comply with s.425 of the Act could be said to be reasonably arguable.
It is apparent that the Tribunal raised with the First Applicant its varied and significant concerns in relation to his claims (not only the issue of whether the military had an adverse interest in him). It gave him the opportunity to elaborate and comment on issues in relation to various aspects of his claims.
There is no arguable basis for ground 1, whether seen in terms of s.424A or s.425 of the Act. In particular, it cannot be said that it is arguable that the Tribunal did not give the First Applicant an opportunity to address its concerns or that it failed to put him on notice that the Tribunal was considering a number of factors adverse to him in a manner constituting jurisdictional error.
Ground 2 asserts a failure by the Tribunal to comply with “obligations” under s.424AA of the Act because it failed to give the Applicant clear particulars of any information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The particulars to this ground refer to the Tribunal’s concern (in paragraph 31 of its decision) that central details of the First Applicant’s claims about his alleged mistreatment by the military in 2012 had not been raised earlier. The particulars also assert that there were other, unspecified, failures to comply with s.424AA or s.424A of the Act.
As pleaded, this ground is plainly hopeless. Apart from the technical problem that non-compliance with s.424AA is not a jurisdictional error in itself (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 per Moore J at [74]-[75]), as pointed out in relation to ground 1, no information has been identified and nor is any apparent which would arguably enliven s.424A of the Act such as to enable the Tribunal to rely on the procedure under s.424AA of the Act. In such circumstances it is not arguable that the Tribunal fell into jurisdictional error by failing to follow the procedure in s.424AA during either hearing or to give clear particulars of “information” within s.424A(1) to the Applicant.
It is the case that in its reasons the Tribunal had regard to the fact that certain matters of significance were not raised earlier. However such concerns are not such as to arguably enliven s.424A of the Act as “information” that would be the reason or part of the reason for affirming the decision under review. As indicated, the Tribunal’s provisional reasoning does not constitute “information” within s.424A(1) of the Act (see Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594; [2011] HCA 1 per French CJ and Kiefel J at [9]).
Moreover, insofar as this ground may be seen as raising a s.425 issue, as referred to above the Tribunal did raise with the First Applicant in the hearing its concern about the fact that certain aspects of his claims (including those referred to in paragraph 31 of the Tribunal reasons) were raised late.
Even if this ground is to be seen as reflecting a concern as to whether the Applicants were given a meaningful opportunity to present their claims or comment on the Tribunal’s concerns in relation to claims at the Tribunal hearings, for the reasons given above, it is not sufficiently arguable to support the application for an extension of time.
Ground 3 is expressed as a claim that the Tribunal denied the Applicants a meaningful opportunity to participate in the hearing as required by s.425 of the Act, by failing to alert them of the significance it placed on “evidence before the Tribunal”. It refers to the Tribunal’s finding about the nature of the direction from the military in 2010 having regard to “the evidence before [it]”. However, somewhat confusingly, the particulars to this ground then revert to an assertion of a failure by the Tribunal to comply with s.424A or to meet its obligations under s.424AA of the Act by providing the Applicants with clear particulars of “the evidence”. There is also an unparticularised reference to other similar failures. The Applicants did not address this ground in submissions, beyond relying generally on the transcripts of the Tribunal hearing.
Insofar as this ground is to be seen as an assertion of a failure to comply with s.425 of the Act, as discussed above it is not reasonably arguable on the material before the Court that the Tribunal denied the Applicants a meaningful opportunity to participate in the hearing as required by s.425 of the Act such as to support the application for an extension of time. The Applicants were invited to and attended two hearings. The Tribunal ensured that it clarified any evidence given by the First Applicant at the first hearing. Only the First Applicant advanced claims to fear serious or significant harm in Fiji. The other Applicants applied only as members of his family unit.
The Tribunal gave the First Applicant the opportunity to elaborate on the bases for his claims, including his claims about the land transaction and court case about the disputed land, the meeting with the military in 2010, and the direction not to do any further work subdividing the land.
It is not entirely clear what is intended by the assertion that the Tribunal failed to alert the Applicants to the significance it placed on “the evidence” before the Tribunal. It is apparent that the Tribunal was considering the evidence the Applicants had put before it. The Tribunal accepted that the 2010 meeting with the military and instruction to the First Applicant not to do further work subdividing the land had occurred. If this is a contention that the Tribunal should have put its provisional reasoning to the Applicants, there was no such obligation.
The particulars to this ground take issue with the Tribunal’s finding that the evidence before it strongly suggested that the 2010 direction by the military that the First Applicant should stop developing land that was the subject of a court challenge “was to preserve the status quo of disputed land pending the outcome of a … Court challenge”. The Tribunal was not satisfied that the military’s threat to monitor the First Applicant at that time was in reference to anything beyond the use of the disputed land or that it was essentially and significantly for a Convention reason. It is apparent that in its reasons the Tribunal considered in some detail the First Applicant’s own evidence to it in this regard and the documents and correspondence he had put before it. It is not arguable that the Tribunal’s provisional reasoning in relation to what the evidence and documentation established and whether there was a Convention reason for the threat from the military (as distinct from maintaining the status quo while legal proceedings were ongoing) constituted “information” enlivening s.424A(1) of the Act. In effect, the Applicants seem to contend that the Tribunal should have put to them (or at least to the First Applicant) its proposed conclusions for comment under s.424A (or utilising the procedure in s.424AA) of the Act. Such proposed conclusions do not constitute “information” (see SZGUR at [9]). There is no arguable claim of failure to comply with s.424A(1) of the Act on this basis.
Insofar as the particulars to this ground appear to assert that the Applicant should have had the opportunity to provide additional evidence and arguments on particular matters and that the absence of an opportunity to do so demonstrated a failure to comply with s.425 of the Act, it is well-established that it is for an applicant to put his claims and evidence before the Tribunal and for the Tribunal to determine whether he meets the criteria for a protection visa (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 per Gummow and Hayne JJ at [187]). The Tribunal is not obliged to prompt or stimulate the provision of further evidence or documentation (see Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 per Allsop, Jacobson and Graham JJ at [26]). In this case it is clear that the Applicants had ample opportunity to put whatever evidence or claims they wished to put before the Tribunal. There is no arguable claim made out that the Tribunal failed to raise dispositive issues at the hearing. Ground 3 is not sufficiently arguable to support the application for an extension of time.
Ground 4 of the application asserts that the Tribunal did not consider the particular social group of which the First Applicant was a member and misunderstood his claims. The ground refers to a particular social group of “people of Solomon Islander descent”. However in the particulars it was contended that the Tribunal failed to consider whether there was a narrower particular social group to which the First Applicant claimed to belong, being “people of Solomon Island descent who were treated as fourth class citizens’ and who were discriminated and persecuted as a result of that class”. In submissions the First Applicant had nothing to say in relation to this ground.
This ground is plainly hopeless. Under the heading “Disadvantages for Solomon Islanders and their descendants” the Tribunal expressly considered the First Applicant’s evidence and claims to fear harm as a person of Solomon Islander descent. The Tribunal did not confine itself to consideration of business or financial aspects of the First Applicant’s claims in this respect. It was reasonably open to it to reject what it determined to be the basis for the claim, in particular that the First Applicant had suffered financial losses and other difficulties because of his ancestry, including discrimination. While the Tribunal acknowledged that Solomon Islanders in Fiji may generally face disadvantages compared to indigenous Fijians it found that the First Applicant and his family seemed to have overcome many of those limitations and that they lived a comfortable and successful life in Fiji. It also considered the First Applicant’s anxiety about his financial circumstances, accepted that he faced an economic reality in Fiji that was less prosperous than he hoped for, but was not satisfied that the fears he held as a member of such a particular social group could singularly or cumulatively give rise to a real chance of serious harm. The Tribunal also considered the relevance of the Applicant’s racial background in the context of addressing other aspects of his claims.
Given the manner in which the Tribunal proceeded, there was no requirement for the Tribunal to reach a positive conclusion about the existence of the claimed particular social group of people of Solomon Islander descent (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 194 ALR 389; [2003] HCA 26 and see MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [25]-[29]).
Further, there is no evidence that the First Applicant claimed to belong to the “narrower” social group suggested in the particulars to ground 4 or that it is reasonably arguable that the material before the Tribunal clearly raised such a posited social group (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263). Hence it cannot be said to be reasonably arguable that the Tribunal failed to consider the attempted re-characterisation of a particular social group in a manner constituting or demonstrating jurisdictional error. This ground is not sufficiently arguable to support the application for an extension of time.
Nor, as indicated, is the First Applicant’s general and unparticularised assertion that the Tribunal did not consider all his claims reasonably arguable. No particular claim or integer was identified. None is apparent.
Finally the First Applicant submitted generally that he was not given a chance to explain himself at the Tribunal hearings. He did not identify specific concerns in this aspect. The evidence is to the contrary. There is no reasonably arguable jurisdictional error on this basis.
Having considered all of the grounds raised by the Applicants or arising on the material before me, I am not satisfied that the Applicants have a sufficiently arguable case such as to support the application for an extension of time.
At the time of the hearing I was also concerned to ensure that any issue as to whether there was an arguable claim that the Tribunal had failed to exercise a discretion reasonably was addressed (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1). In the response to hearing invitation the Applicants had asked the Tribunal to take evidence from A. In a faxed letter to the Tribunal of 6 September 2013, the date of the second hearing, the Applicant’s representative addressed issues about the interpretation at the first Tribunal hearing and the First Applicant’s mental health and also sought an adjournment of the second hearing, including on the basis that A, one of the people the First Applicant wished to give evidence on his behalf, was not available to do so at the time of the proposed hearing. The representative asked if A’s evidence could be provided at a later time in the next week if possible. The letter explained the relevance of this evidence to the Applicants’ claims.
The issue of an adjournment and/or the unavailability of A was not addressed in the Tribunal’s reasons for decision (although the Tribunal did address the issues about interpreting and mental health concerns).
However, as pointed out in the First Respondent’s post-hearing submissions, during the hearing of 6 September 2013 the Tribunal acknowledged and addressed the representative’s request that the hearing as a whole should be adjourned so that, among other things, the evidence of A could be heard in the same hearing as the First Applicant’s evidence. The Tribunal referred to the fact that details of witness A had been provided and acknowledged that it had been suggested that the Tribunal might like to contact A. The Tribunal considered the First Applicant’s request but indicated that it was of the view that A could provide evidence by statutory declaration. It provided an oral explanation as follows:
I think that given your representative has been present throughout all of our conversations, any evidence that you think would assist from [A] can be provided in a statutory declaration.
The Applicants’ representative agreed to adopt this procedure, although he indicated that there may be some difficulty (in relation to time) given A’s whereabouts. In response, the Tribunal provided additional time. A written statement from A was provided, albeit after the deadline set by the Tribunal. Despite this, the Tribunal took it into consideration before arriving at its decision. As discussed above, the Tribunal accepted that the First Applicant had personal ties to A as claimed, but was not satisfied that they gave rise to a real chance of serious or significant harm. In other words A’s evidence was not questioned. Nor was it dispositive of the review.
In these circumstances, my initial concern about whether there was a reasonably arguable contention that the Tribunal had failed to exercise its discretion not to adjourn the hearing or not to take oral evidence from A “reasonably” was allayed. This is not a case in which there is a sufficiently arguable ground based on the reasonableness of the exercise of a discretion by the Tribunal such as to support an extension of time.
In considering the application for an extension of time, I have had regard to all of the circumstances, including the absence of any claimed prejudice to the Minister resulting from the grant of an extension of time and, as indicated, the fact that there is no right of appeal from a decision refusing an extension of time. I have also considered the impact on the Applicants, who say they now do not wish to return to Fiji and fear harm on a fresh basis, and the public interest in having the decisions of administrative bodies such as the Tribunal finalised. There was a significant delay on the part of the Applicants in commencing these proceedings in circumstances where they had discontinued a prior judicial review application, sought Ministerial intervention and then did not commence the second proceedings until nearly ten months after they were advised of the unsuccessful outcome of the request for Ministerial intervention. They have not provided a satisfactory explanation for the delay. The grounds as expressed and as raised in submissions are hopeless and not reasonably arguable.
Having regard to all of the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time. Accordingly the application for an extension of time should be refused.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 30 June 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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