SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1165
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165
File number(s): SYG 2840 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 8 December 2023 Catchwords: PRACTICE AND PROCEDURE – inconsistent calibration of descriptors used for period of delay in applications for extension of time – duty of Minister to act as model litigant
MIGRATION – application for extension of time
Legislation: Judiciary Act 1903 (Cth) ss 2, 55N, 55ZG
Migration Act 1958 (Cth) ss 36, 379C, 430A, 441A, 441C, 477
Cases cited: AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924
AEI22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 906
BMF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 380
BTI15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 49
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023
DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564
EEQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 230
EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514
FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 323
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38]
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 7 August 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr T Young, Minter Ellison ORDERS
SYG 2840 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZUSZ
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time made on 13 September 2017, is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application made on 13 September 2017 by which the applicant seeks an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent to refuse to grant him a Protection (Class XA) (subclass 866) visa (visa).
BACKGROUND
The background to the matter is taken from the Court file and the first respondent’s written submissions. Unless otherwise indicated, it does not appear to be in dispute.
The applicant is a citizen of Pakistan, who first arrived in Australia on 15 November 2012 travelling on a Business (Short Stay) (subclass 456) visa. On 12 December 2012, the applicant applied for the visa (Court Book (CB) 1 to 65). On 17 January 2023, a delegate of the first respondent refused to grant the applicant that visa (CB 127 to 134).
The applicant claimed that:
(a)on 12 March 2012, he converted from Sunni to Shia Islam. On 5 October 2012, a person in his village discovered his conversion and, on 6 October 2012, a group of 8 to 10 people came to his house with stakes and shotguns. The group of people threatened the applicant and accused him of adopting an “infidel” religion;
(b)on 13 November 2012, he departed Pakistan because he feared persecution by the “fanatical” Wahhabi and Deobandi Muslims because of his conversion to Shia Islam;
(c)he fears that, if he returns to Pakistan, he may be persecuted or even killed by the Wahhabi and Deobandi Muslims;
(d)neither the police nor the government would protect the applicant because they themselves support Sunni Muslims in preference to Shia Muslims; and
(e)relocation within Pakistan is not an option for him because the Sunni Muslims have complete control of Pakistan.
On 31 July 2013, the applicant made an application for review of the delegate's decision to the (then Refugee Review Tribunal (being the predecessor to the)) Tribunal (CB 137 to 142).
At the time the application to the Tribunal was made, the applicant provided the Tribunal with the following contact details:
(a)a particular street address in Ashcroft, New South Wales, as being his address for service (CB 140) (original address); and
(b)a particular yahoo email address as being his email address for service (yahoo address) (CB 140).
The applicant did not appear at the scheduled hearing before the Tribunal. On 18 June 2014, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa (CB 171 to 175).
The applicant made an application for judicial review of the Tribunal's decision to the (then) Federal Circuit Court of Australia (FCCA) (first judicial review application). On 28 April 2016, the FCCA remitted the matter by consent to the Tribunal for reconsideration on the basis that there was no evidence the applicant had been properly invited to a hearing of the Tribunal pursuant to ss 425A and 441A of the Migration Act 1958 (Cth) (Act) (CB 178 to 179).
Upon remittal, an invitation to hearing was sent to the applicant to the original address (CB 140 and 181).
A Tribunal case note indicates that on 7 September 2016, the applicant telephoned the Tribunal to say that, while he had received the invitation to hearing letter, he had a new address and mobile telephone number, which he gave verbally (first new address) (CB 203). The case note records the applicant being asked to provide the new address details in writing.
Several minutes after the telephone call referred to in the previous paragraph, the applicant wrote to the Tribunal by email (September email). While the September email gave the same mobile telephone number as recorded in the case note above, the street address provided was different to that recorded by the case note. The name of the street was spelt differently (and mis-capitalised, commencing with a lowercase and with a capital letter midway through) (second new address).
The September email was sent from the yahoo address which had initially been given as an email address for service in connection with the review. Without having been replaced expressly by the September email in the process of giving his new contact details (or abandoned), the yahoo address remained the last email address provided to the Tribunal by the applicant in connection with the review for the purposes of s 441A(5)(d) of the Act.
A Tribunal case note dated 27 October 2016 indicates that the applicant telephoned the Tribunal on that date (CB 208). The case note records that the:
Applicant called to request a copy of his statement of claims as he does not have any documents regarding his case. He said that all the documents were given to his previous representative and as he does not have the financial capacity to appoint the rep, he is not being able to get any documents from the rep.
On 31 October 2016, at approximately 11:19am, the Tribunal wrote to the applicant by email attaching a copy of the document requested by him. By reply email sent later the same day from the yahoo address, the applicant wrote to the Tribunal to say the following (errors in original):
Dear sir, madam
This is [SZUSZ].
I have interview on 3rd November 2017.
As I Spoke to you that my all documents related to interview all with my lawyer. I contacted to him but he demanding money but I can’t pay him now so please send me the statuary declaration statement.
On 3 November 2016, the applicant appeared before the Tribunal at a hearing to give evidence and present arguments in relation to his review, with the assistance of an interpreter in the Urdu language (CB 211). The applicant provided a copy of his passport at the hearing, but no other documents (CB 212 to 221).
On 2 March 2017, the Tribunal notified the applicant of its decision to affirm the decision under review made on 1 March 2017 (CB 222 to 232). The Tribunal’s decision was sent to the applicant at the first new address.
TRIBUNAL DECISION
The Tribunal recorded that it had considered the applicant's statement (CB 227 at [8]) and the documentary evidence given by him in support of his application, being passport extracts, an identity card, a letter from Imam Bargha (untranslated) and media articles about killings of Shias in Pakistan (CB 228 at [9]).
The Tribunal accepted that the applicant is a national of Pakistan (CB 228 at [14]).
The Tribunal did not accept that the applicant was a truthful and credible witness about his experiences in Pakistan and the reasons he claimed to fear harm there (CB 228 at [17]). The Tribunal set out a number of concerns about the applicant's claims and evidence (CB 228 to 230 at [18] to [24]).
Considered together, those concerns led the Tribunal to not be satisfied that the applicant was ever an adherent of Wahhabi or Deobandi Islam who had later converted to Shia Islam. Rather, it took the view that the applicant had always been a Shia Muslim (CB 230 at [25]). As such, the Tribunal rejected all of the applicant's consequential claims (CB 230 at [25]).
Having rejected the material claims at a factual level, the Tribunal was not satisfied that the applicant satisfied either the refugee criterion or the complementary protection criterion. The Tribunal also considered whether the applicant would face harm as a Shia Muslim, but found that he would not (CB 230 at [26]).
APPLICATION TO THIS COURT
Pursuant to s 477 of the Act, any application to this Court for judicial review was required to be made within 35 days of the date of the Tribunal’s decision: see EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514. By reference to the decision date of 1 March 2017, any application ought to have been made to this Court by
5 April 2017. The applicant commenced the instant proceedings by an application for extension of time which was both made and accepted for filing[1] on 13 September 2017. Accordingly, it was 161 days out of time.[1] See EIW20 (supra)
The applicant was unrepresented at the time the proceedings were commenced. On 30 November 2017, a Registrar of the Court made orders for the conduct of the matter which included leave to the applicant to file an amended application by 22 March 2018. The matter was next listed for callover on 21 June 2018, on which date it was further adjourned to a callover on a date and time to be advised administratively. The matter was later placed in the central migration docket. On 22 December 2022, the proceedings were called over before a Registrar of the Court. On 15 March 2023, the proceedings were docketed to me, and I made orders on the same date for the preparation of them for hearing. Those orders included a further grant of leave to the applicant to file an amended application on or by17 April 2023. The hearing was initially listed on 9 May 2023 (first hearing).
At hearing on 9 May 2023, the applicant was represented by Counsel. The first respondent was represented by a solicitor. Counsel for the applicant indicated that he had only been retained across the preceding weekend. Counsel for the applicant in essence sought that the matter adjourn, in particular to enable time to the applicant to have a transcript of the Tribunal hearing prepared and filed, and to file an amended application. After some discourse, the Court adjourned briefly to enable the parties’ respective legal representatives to discuss a potential regime for the adjournment and relisting of the matter, including the question of the first respondent’s costs thrown away.
When the hearing resumed, I made orders inter alia relisting the matter, with leave granted to the applicant to file any additional evidence and an amended application by 13 June 2023. The applicant was ordered to pay the first respondent’s costs thrown away, occasioned by the adjournment and any amendment (May Orders).
Nothing further was filed for the applicant in accordance with the May Orders, nor was any Notice of Address for Service filed to reflect the applicant being legally represented.
On 7 August 2023, the matter came back before the Court for hearing (second hearing). Despite the events of the first hearing and the making of the May Orders, the applicant was unrepresented. By reason of there having been no compliance with the May Orders, and no further Notice of Address for Service filed, the Court had arranged for an interpreter in the Urdu language to be present for the second hearing.
The circumstances surrounding the applicant being unrepresented were discussed with him. The applicant indicated that he had been unable to pay his preferred legal representatives and/or to pay for preparation of any additional evidence. The applicant sought another adjournment to enable him to “hire a lawyer again from start”. The solicitor for the first respondent opposed any further adjournment.
The adjournment request was refused for a number of reasons which were explained to the applicant at the second hearing. These included that the proceedings had been on foot for almost six years and that the applicant appeared to have waited until only four days before the first hearing to take steps to obtain legal representation. The Court was not satisfied, against that background, that there would be utility in granting the applicant a further adjournment for him to recommence a search process for representation. Accordingly, the hearing continued with the assistance of the interpreter.
Evidence
At hearing the applicant sought to read the following Affidavits made by the applicant on each of:
(a)13 September 2017 (applicant’s first Affidavit); and
(b)4 May 2023 (applicant’s second Affidavit).
In relation to each of the applicant’s Affidavits, the solicitor for the first respondent objected to the paragraph thereof by which the applicant advanced his explanation for having failed to apply to the Court in time. The objection was that the statements “would support the applicant’s extension of time application should that be accepted as an uncontested fact before this Court.”[2]
[2] Transcript 7 August 2023 at T7.34 to 7.36
No proper evidential basis was advanced in objecting to that Affidavit. Rather, the objection appeared to be that the first respondent either did not like, or did not accept, the explanation. The objections were overruled and, despite the submissions about the Affidavits advancing “uncontested facts”, curiously, the applicant was not required for cross-examination.
For the first respondent the Court Book was tendered and marked Exhibit “1R”. The following Affidavits were read for the first respondent, without objection:
(a)Affidavit of Gabrielle Gutmann affirmed 24 April 2023;
(b)Affidavit of Liam Michael Dennis, affirmed 2 May 2023 (Dennis Affidavit);
(c)Affidavit of Gabrielle Gutmann, affirmed 5 May 2023;
(d)Affidavit of Charlotte Elizabeth Saunders, affirmed 3 August 2023; and
(e)Affidavit of Taylor Anthony Young, affirmed 3 August 2023.
Extension of time
Section 477(2) of the Act empowers this Court to extend the 35-day time limit if satisfied that it is necessary in the interests of the administration of justice to do so. There are no prescribed factors which mandatorily fall for consideration in determining whether to exercise that discretion: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [24] per Logan J. It is well-established that when assessing whether to extend time, the Court must evaluate all relevant circumstances of a case to decide if it is satisfied that the extension is necessary in the interests of the administration of justice: see BTI15 (supra) at [40] per Jagot and Halley JJ. In the absence of prescribed factors for assessment, the following matters regularly arise for consideration and are relevant in the instant case:
(a)the length of delay;
(b)the explanation for the delay;
(c)balancing of the interests of the parties, namely the relative prejudice to the Minister (and public interest) as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be (usually) taken at a reasonably impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [45] per Collier, Rangiah and Derrington JJ, MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was), Jackamarra (an infant) v Krakouer (1998) 195 CLR 516 at [7] to [9] per Brennan CJ and McHugh J, BTI15 (supra) at [25] to [26] per Logan J and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
There will also be some cases in which a closer examination of the merits is appropriate: see Katoa (supra) at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
When the Court examines the relative merits of a proposed substantive application at an impressionistic level, the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, has a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] per Foster J and Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349 per Wilcox J.
The first respondent opposes time being extended on the basis that the proposed grounds of review lack merit.
Delay length and explanation
The application made was 161 days out of time by reference to the date of the migration decision, which is the requisite date from which time is reckoned for the purposes of s 477 of the Act.
In this case, the first respondent describes the 161-day period of delay (before regard is had to the explanation) as being “moderate”.
This description is someone perplexing given that in other cases in which an extension of time has been sought in this Court, with delays which were shorter than in the instance case, the first respondent has variously advanced those periods as being the following:
(a)24 days: moderate;[3]
(b)33 days: significant;[4]
(c)36 days: not trivial;[5]
(d)41 days: inordinate;[6]
(e)83 days: unwarrantable;[7]
(f)137 days and 153 days (from non-appearance and confirmation decisions, respectively): significant;[8] and
(g)160 days: significant.[9]
[3] BMF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 380 at [27] per Judge Young
[4] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 879 at [46] to [47] per Judge Ladhams
[5] AEI22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 906 at [79] per Deputy Chief Judge Mercuri
[6] DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 at [125]
[7] AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924 at [26]
[8] EEQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 230 at [37] to [38] per Judge Kendall
[9]FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 323 at [51] per Judge Forbes
By Appendix B to the Legal Services Directions 2017 (Cth), the first respondent[10] has an obligation to conduct himself as a model litigant, including by “acting consistently in the handling of litigation”.[11] Care should be taken by the Minister in making submissions to the Court whereby inconsistent contentions are advanced in relation to an objectively binary factor. The Minister, and those who represent him, should take care to calibrate their descriptions of delay so as to avoid advancing inconsistent submissions as to the length of delay. That is particularly because it is well established that the longer the delay, the more persuasive the explanation for it needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J.
[10] See s 55ZG(1)(a) and (f) read with ss 2 and 55N(1) of the Judiciary Act 1903 (Cth)
[11] See paragraph [2(c)] of Appendix B to the Legal Services Directions 2017 (Cth)
In the exercise of its discretion as to whether to extend time, the Court is charged with the assessment of persuasiveness of explanation relative to the period of delay. Yet, in individual cases the Minister contends that a moderate delay is 24 days (see [38(a)] above) but also 161 days (as in this case), and a significant delay is 33 days (see [38(b)] above) yet also 160 days (see [38(g)] above). It seems difficult to see how a relative assessment of length of delay contrasted with the persuasiveness of explanation could not be influenced by the qualitative descriptor advanced by the Minister which, from case to case, appears to be indiscriminately formulated and, on any view, inconsistent.
In the present matter, the delay of 161 days is not moderate, it is relatively significant.
The applicant’s explanation for the delay was provided by each of his Affidavits and, as noted above, he was not cross-examined about those explanations. By the applicant’s first Affidavit he says the following:
I got delayed in applying to the court because I was not informed of the Second Respondent’s decision on time. I only came to know that my application has been rejected when my migration agent contacted the Tribunal to enquire about it.
By the applicant’s second Affidavit the applicant additionally advanced the following explanation:
I say that I could not apply on time to the court due to no fault of mine. I applied for a merits review of the refusal of my protection visa application to the Administrative Appeals Tribunal (Tribunal) on 31 July 2013. As it was taking a long time for the decision of the Tribunal to arrive, I requested my then-migration agent to contact the Tribunal and enquire about my matter in August 2017. As such, my agent informed me that the Tribunal had already made a decision on my matter on the 1st March 2017. Pursuant to the conversation and shortly thereafter I received correspondence on the 31st August 2017 with various documents attached, amongst which was the decision record from the 1st March 2017 refusing the protection visa application attached herewith as Exhibit A (Exhibit A "Email from AAT sent to Adnan Manzoor on 31/08/2017") , This communication received on the 31st August 2017 was the first instance where I had been notified by the Tribunal relating to my application, contrary to their claims that the documents had been provided in the past once before. As such, when I received a copy of the decision at this time, the time to apply to the tribunal for an of their decision had lapsed. I confirm that I never received the decision sent to my home address.
The above explanations of the applicant are generally consistent with one another, albeit greater detail is provided by the applicant’s second Affidavit. That is unsurprising given that the latter Affidavit was prepared with the assistance of a lawyer. In essence, the applicant says he did not receive notification of the Tribunal’s decision at his home address. He says the first time he became aware of the decision was when he asked his migration agent (albeit there is no material before the Court to corroborate the alleged involvement of such an agent during the Tribunal proceedings) for a status update about the review in August 2017. The agent is said to have contacted the Tribunal to enquire as to the process of the decision, which resulted in a copy of the Tribunal’s decision being made available to the applicant. There is no evidence before the Court (for example Tribunal case note, additional postal log or covering email) to evidence any such enquiry being made by the applicant, or any representative on his behalf, to seek information about, or an additional copy of, the Tribunal’s decision. Nor is there any evidence of subsequent dispatch.
However, based on the material before the Court, I am satisfied that the Tribunal initially sent its decision in this case to an incorrect address.
Pursuant to s 430A of the Act, the Tribunal was required to notify the applicant of its decision by giving him a written copy of it within 14 days of the date on which it was made and by one of the methods prescribed by s 441A of the Act, relevantly in this case to either the yahoo email address (which had never been expressly abandoned as an address for service (see [11] above)) or to the second new address because it was the last address for service provided to the Tribunal by the applicant in connection with the review: see s 441A(c)(i) of the Act.
The first respondent says that by the September email the applicant sent “the same address with minor typographical errors from his mobile telephone”. However, the fact remains that the second new address was not the same address. While the explanation for that may be that the applicant mistyped the address, it is not for the Tribunal to second guess it. If, going forward, the Tribunal was to send correspondence to the applicant by post, it was to the second new address exactly as provided by the applicant, that mail was to be addressed. If the Tribunal thought it necessary to clarify and/or correct the address it ought to have contacted the applicant. Otherwise, to the extent that the applicant did not provide an address with a correct spelling, that was a matter for him. As a result, it was not open to the Tribunal to unilaterally “correct” the address.
The first respondent makes the above submission, namely that the Tribunal corrected the address in pursuit of a submission that the applicant should be deemed to have received the Tribunal’s decision within seven working days after its dispatch, “pursuant to s 379C(4) of the Act” (which I will take to have been intended to be a reference to the correct, Part 7 equivalent: s 441C(4) of the Act).
In support thereof, a postal log is annexed to the Dennis Affidavit.[12] The difficulty with that evidence is that the postal log records mail being sent to the applicant on 2 March 2017 to an address with a third (mis)spelling of the applicant’s street address (including an “m” instead of an “n”). Accordingly, the extent the Court is asked to infer that the Tribunal corrected the second new address to reflect the first new address, it would have been in error to do so and ought to have sent the letter to the second new address. To the postal log is advanced by the Minister to show that the Tribunal sent the correspondence, it appears to have done so incorrectly in any event.
[12] Annexure “LD1”, albeit using an incorrect annexure certificate
It is also curious that the Tribunal sent the notification letter by post only, and not under cover of email to the yahoo address given that it had most recently sent the invitation to hearing[13] by that method, and then corresponded with the applicant in relation to his addresses, by email. However, it is a matter for the Tribunal as to which method it uses to send documents, provided it is a method prescribed by s 441A of the Act.
[13] CB 194
For the foregoing reasons, the Tribunal failed to properly notify the applicant of its decision made on 1 March 2017. Pursuant to s 430A(3) of the Act, that failure does not affect the validity of the decision. It does, however, contribute a plausible explanation for why it may be that the applicant did not seek judicial review within the requisite timeframe. There remains a question as to how the decision did come to his attention because, in the absence of any proof that any enquiry was made by a migration agent of the Tribunal in August 2017, or any subsequent re-sending of the Tribunal’s decision, it is open to infer that somehow the correspondence which was mis-addressed in March 2017 somehow made it into the applicant’s hands nonetheless. I find it unnecessary to resolve that question, although if it could be established it might account for a considerable period of the applicant’s delay in applying to the Court for review.
That is because s 441C(7) of the Act provides as follows:
441C When a person other than the Secretary is taken to have received a document from the Tribunal
…
Document not given effectively
(7) If:
(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 441A (including in a case covered by section 441AA) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
The applicant has asserted, but not shown for the purposes of s 441C(7) of the Act, that he received the Tribunal’s decision at a later time such that the Court can be satisfied and reckon the period of delay (if any) as commencing from that date. However, I am sufficiently satisfied that something went awry in the manner in which the Tribunal dispatched and notified its decision to the applicant that I am prepared to give the applicant the benefit of the doubt that the haphazard way in which that process took place, contributed to him not having received the decision at least in a timely fashion.
In the absence of s 441C(7) being satisfied, I will continue to consider the period in question as 161 days, and find it significant. However, because of the the manifold mistakes involved in the dispatch of the decision, I find that the delay is in part explained. This weighs in favour of time being extended.
Prejudice
The first respondent does not suggest that he would suffer substantial prejudice if the Court granted an extension of time, while noting that delay itself naturally causes some prejudice, citing Makarov v Minister for Home Affairs (No. 3) [2020] FCA 1655 at [128] per Katzmann J. Conversely, the first respondent says that the absence of prejudice does not, without more, suffice to justify the grant of an extension: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18] per Beach J.
If time were not to be extended, the applicant would be shut out from judicial review of the Tribunal’s decision, with there being no right of appeal to the Federal Court of Australia pursuant to s 476A(3) of the Act. I consider that in the instant case the prejudice to the parties is balanced sufficiently to be neutral, subject to any adjustment to that assessment following consideration of the merit of the applicant’s proposed grounds of review. That is because the prejudice to the applicant of being denied the opportunity of judicial review on a final basis would be more significant if the grounds he was seeking to agitate have merit.
Merits
Despite multiple orders granting leave to him to file an amended application, the applicant has not availed himself of any such opportunity. Accordingly, the grounds which fall for assessment are those continued in the originating application as follows:
1. Tribunal decision was affected by jurisdictional error by not considering a claim or component integer thereof, in that the Tribunal misconstrued and misapplied the criterion for protection under the Migration Act, namely sections 36(2)(a) and 36(2)(aa) as applicable to the applicant;
2. The Tribunal wilfully ignored relevant material in a way that affected the exercise of powers vested in it that amounted to a jurisdictional error.
Particulars
The applicant provided substantial evidence in relation to his protection claim orally, and in writing. He substantiated his claims with the provision of documentary evidence. The Tribunal failed in its duty to properly consider the relevant material significant to his claim of protection in a way that affected the exercise of its powers.
3. The applicant claims bias towards him, in that the Tribunal did not consider evidence presented by him merely citing he is not a credible witness.
Each of the grounds was interpreted to the applicant at hearing in turn, and he was invited to tell the Court what he wished in respect of the errors he alleges.
Ground 1
By ground one, the applicant appears to allege that the Tribunal failed to consider a claim or integer of a claim, and misapplied/misconstrued ss 36(2)(a) and (aa) of the Act.
When asked to speak to this ground, specifically what claims or integers the Tribunal failed to consider, the applicant responded (sic) “whatever…happen in [Pakistan]” and “how I survive and how I come [to Australia]”. The Court sought to clarify whether the applicant’s complaint was not that his claims had gone unconsidered by the Tribunal, but rather that they had not been accepted by the Tribunal. The applicant said yes.
A review of the Tribunal's reasons appears to show that all relevant claims (and integers thereof) were considered. In particular, I accept the first respondent’s submissions that the Tribunal:
(a)accepted that the applicant is a national of Pakistan (CB 228 at [14]);
(b)recorded that it had considered the applicant's claims to fear persecution from the Sunni (Wahhabi Deobandi) Muslims after he converted to Shia Islam (CB 227 and 228 at [8] and [18]) and recorded that it had regard to material relating to Pakistan and Shia Muslims in that country, including information prepared by the Department of Foreign Affairs and Trade (CB 228 at [16]);
(c)did not accept that the applicant was a truthful and credible witness about his experiences in Pakistan and the reasons he fears harm there (CB 228 at [17]), and set out its reasons for that finding (at CB 228 to 230 [18] to [24]);
(d)was not satisfied on the material before it that the applicant satisfied s 36(2)(a) of the Act (CB 230 at [27]) and, similarly, was not satisfied that the applicant satisfied s 36(2)(aa) of the Act (CB 231 at [29]); and
(e)noted that there was no suggestion that the applicant was a member of the same family unit as a person who satisfied ss 36(2)(a) or (aa) of the Act. Therefore, the Tribunal was not satisfied that the applicant satisfied sub-s 36(2) of the Act.
On an impressionistic evaluation of this ground, and having regard to the applicant’s concession at hearing that he is unhappy that the Tribunal did not accept his claims, the first ground can really be taken as an expression of disagreement with the merits of the Tribunal’s decision and constitutes an invitation to the court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 at [31] per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ. As such, I am not satisfied there is any error raised by ground 1 sufficiently arguable to warrant time being extended such that it could be considered on a final basis.
Ground 2
The second ground alleges that the Tribunal wilfully “ignored relevant material in a way that affected the exercise of powers vested in it”. The particulars to this ground again allege a failure to consider material.
When asked to speak to this ground, the applicant said that the Tribunal wilfully ignored his conversion from Sunni to Shia. The applicant said he could have given more details about this claim, and that he had pictures to provide, but was not asked to. The applicant said the Tribunal did not delve into his reasons for converting. After clarification at hearing before me, it became apparent that the applicant was saying that the Tribunal didn’t investigate his claims, or more specifically failed to probe his evidence in a way that would have caused him to then give more detailed evidence. The applicant said that he had “deeply” wanted to explain himself:
it didn’t happen. It’s just, like, the question what they ask me, I explained, but deeply – like, what I were and why I – I am, they didn’t ask me anything about that.
The Court explained to the applicant that it was a matter for him to provide what evidence he wished to the Tribunal and that it did not have a general duty to investigate the applicant’s claims.
The first respondent submits that it is clear from the Tribunal's decision that it considered all of the applicant's documentary and oral evidence. In particular, the first respondent submits that the Tribunal:
(a)accurately set out the documentary evidence provided by the applicant to the Tribunal for the purpose of the application (CB 227 to 228 at [8] to [9]) and recorded its consideration of the same (at CB 228 at [15]);
(b)expressly recorded its consideration of the applicant's identity documents at (CB 228 at [14]) and its consideration of the applicant's statement and the claims contained therein (CB 227 and [229] at [8] and [18]); and
(c)recorded its consideration of the applicant's oral evidence (CB 229 to 231 at [19] to [24], [26] and [30]).
A review of the Tribunal’s reasons for decision does not, on an impressionistic level, give arguable credence to the allegation made by ground 2. As was explained to the applicant, it was for him to satisfy the Tribunal as to his claims and there is nothing to support a conclusion that the Tribunal somehow overlooked his claim to have converted. I am not persuaded that ground 2 has a reasonable prospect of success such that time should be extended to enable it to be more fully ventilated and determined at final hearing.
Ground 3
By the final proposed ground of review, the applicant contends that the Tribunal was biased and failed to consider his evidence when finding that he was not a credible witness.
When invited to speak to this ground, the applicant confirmed that the particulars to this ground were similar to his submissions in respect of ground 2. The applicant said that whatever the Tribunal had asked him he had answered, but that he had expected the Tribunal to ask him more.
The applicant has not particularised whether his allegation is of actual or apprehended bias.
It is well established that an allegation of actual bias is serious and must be “distinctly made and clearly proved”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow JJ. The applicant has filed no material to meet that high bar, nor did he seek to provide any detail (beyond having not had his claims accepted) at hearing. The first respondent correctly submits that as a result there is no material before the court to suggest that the Tribunal had prejudged the applicant's case.
If the applicant intends to allege that the Tribunal’s decision is affected by an apprehension of bias, there is nothing before the Court which even on an impressionistic level would lead a fair-minded, lay observer who was properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, to reasonably apprehend that it had not brought an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [31] per Gleeson CJ, Gaudron and Gummow JJ. It is a rare case in which apprehended bias can be made out on the basis of the Tribunal's reasons alone: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [18] per North and Lander JJ.
Overall, it was apparent to the Court from the applicant’s submissions at hearing that the applicant’s true complaint is not one of bias, but rather that his claims were not accepted. As with grounds 1 and 2, this ground does not have a reasonable prospect of success, even at the requisite low level.
Additional issue
The Minister raised an additional issue in relation to a non-disclosure certificate. The applicant has not raised any matter in that regard, despite having the first respondent’s detailed submissions in relation to the issue. Having considered the first respondent’s submissions, I am of the view that nothing arising which would additionally warrant time being extended so that the non-disclosure certificate could be further explored at a final hearing.
CONCLUSION
While accepting there is some basis to the applicant’s explanation for delay, but where the merits of the proposed grounds of review are such that even at an impressionistic level the application does not enjoy a reasonable prospect of success, those matters on balance weigh against time being extended. The question of prejudice was initially weighed neutrally and by reason of my findings as to the lack of merit, that assessment has not altered. As such that also weighs against time being extended.
Accordingly, it is not necessary in the interests of the administration of justice that time be extended, and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 8 December 2023
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