SZWBI v Minister for Home Affairs
[2019] FCCA 747
•26 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 747 |
| Catchwords: COSTS – Minister conceding earlier judicial review proceedings without a hearing – costs order made against the Minister – Court requiring payment of a setting down fee two years later – setting down fee paid by the applicant – applicant entitled to reimbursement by the Minister consistently with the costs order. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| Cases cited: CQG15 v Minister for Immigration [2016] FCAFC 146 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration v Singh (2016) 244 FCR 305 Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 |
| Applicant: | SZWBI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1529 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2019 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Juarez of Minter Ellison |
INTERLOCUTORY ORDERS
The first respondent in proceedings SYG268/2015 reimburse to the applicant the setting down fee of $650 paid by him on 12 September 2017.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1529 of 2018
| SZWBI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 June 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The show cause application was lodged on 31 May 2018, very extensively outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time under s.477(2). He relies upon a proposed amended application filed on 13 September 2018. That sets out three proposed grounds with particulars:
Ground 1
1. The Tribunal made a jurisdictional error by not considering all integers of the Applicant’s claims.
Particulars
(a) Applicant claimed that his family land was taken by Muslims and the Tribunal did not consider that claim.
Ground 2
2. The Tribunal made a jurisdictional error by not considering all integers of the Applicant’s claims.
Particulars
The Tribunal did not consider the claim the Applicant’s relatives were harmed by the Muslim extremists:
(a) The Applicant’s older brother was accused and convicted of being involved in the murder of a local Muslim leader;
(b) In May 2009 a group of Muslims damaged his family’s property and tortured his parents.
Ground 3
3. The Tribunal findings on credibility were legally unreasonable which amounts to a jurisdictional error.
Particulars
(a) The Tribunal’s adverse findings on credibility were unreasonable and irrational and illogical because the Applicant provided reasonable explanations for his returns to Bangladesh;
(b) The fact that the Applicant was able to return to Bangladesh did not mean that he was not at risk of serious harm by Muslim extremists. The conclusion that he was not was illogical and irrational.
The application is supported by a number of affidavits, which I have received. The applicant himself made an affidavit which was filed on 13 September 2018 in which he deposes as to the circumstances in which he ultimately found out about the Tribunal decision and sought to deal with it in this Court. The applicant was assisted by a solicitor, Mr Turner, before the Tribunal. I received an affidavit made by Mr Turner on 17 August 2018. That affidavit contradicts the applicant’s evidence in important respects but, for reasons I will explain, is unreliable. Documents annexed to that affidavit confirm a discussion between Mr Turner and the applicant about dealing with the Tribunal decision in 2018.
The applicant was assisted by a McKenzie friend, Ms Judith Ann McLellan, who has made two affidavits. I received those affidavits. In her affidavit affirmed on 13 September 2018, Ms McLellan annexes email correspondence between her and Mr Turner. In a further affidavit made on 11 September 2018, Ms McLellan deposes that she sought further information from Mr Turner and received no reply.
I received three further affidavits annexing transcripts of the various Tribunal hearings, subject to relevance. As matters transpired, they had no relevance.
The Minister’s submissions filed on 18 March this year deal with the background to the proceedings before the Tribunal.
The applicant is a male citizen of Bangladesh who arrived in Australia on 22 January 2013.
On 20 February 2013, the applicant lodged an application for a protection visa.[1] The applicant claimed to fear harm because of his Buddhist religion, and because of a land-related dispute.[2]
[1] Court Book (CB) 1
[2] CB 394 at [11]
On 23 July 2013, the delegate refused to grant a protection visa.[3]
[3] CB 122
On 21 August 2013, the applicant applied to the Tribunal for review of the delegate's decision.[4]
[4] CB 149
On 7 October 2014, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of an interpreter in the Bengali language.[5]
[5] CB 179
On 9 January 2015, the Tribunal affirmed the delegate's decision.[6]
[6] CB 255
On 23 October 2015, the Tribunal's 9 January 2015 decision was quashed by consent and remitted by this Court to the Tribunal (SYG268/2015).[7]
[7] CB 279, 393 at [1]
On 4 November 2015, a delegate of the Minister issued a certificate to the Tribunal under s.438(1)(a) of the Migration Act.[8]
[8] CB 147
On remittal, the Tribunal was differently constituted. On 12 April 2016, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of an interpreter in the Bengali language, and accompanied by his representative.[9] The hearing was adjourned, and resumed on 26 May 2016.[10]
[9] CB 326
[10] CB 339, 393 at [2]-[5]
On 3 June 2016, the applicant's representative submitted further supporting documents to the Tribunal.[11]
[11] CB 342
On 6 June 2016, the Tribunal notified the applicant, via his representative, of its decision made on 4 June 2016, affirming the delegate's decision.[12]
[12] CB 388
Tribunal decision
The Tribunal rejected the applicant's credibility and his material factual claims.[13] The Tribunal gave no weight to the applicant's documentary evidence.[14] The Tribunal found that there was no credible evidence that land disputes had taken place in his village, or that his family was involved in such a dispute.[15] It found, on the basis of country information, that the risk of the applicant suffering harm as a Buddhist and a Buddhist monk was remote.[16]
[13] CB 402 at [52]-[55]
[14] CB 403-404 and 408 at [59], [62], [75]
[15] CB 407 at [72]
[16] CB 406 at [69]
For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act.[17] For the same reasons, the Tribunal found that the applicant failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[18]
[17] at [80]
[18] at [81]
The extension of time
The application was filed well outside the 35 day statutory timeframe under s.477(1) of the Migration Act. Consequently, the application is incompetent unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act. It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay; the explanation for the delay; any prejudice a respondent might suffer because of the delay; and themerits of the proposed application.[19]
[19] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [18]-[23]; MZABP v Minister for Immigration (2015) 242 FCR 585 at [45]-[58]
Delay
The extent of the delay is 692 days: the Tribunal's decision was made on 4 June 2016 and the application for judicial review was filed on 31 May 2018, ie 692 days after the expiry of the statutory timeframe on 9 July 2016.
Explanation for delay
The applicant's explanation for the significant delay is that his lawyer before the Tribunal, Mr Turner, gave the applicant the Tribunal's decision “last week”.
On 13 September 2018, the applicant filed seven affidavits. The four affidavits identified above appear to relate to the applicant's explanation for the significant delay in filing their application.
Three of the four affidavits support the explanation that the applicant was not notified of the Tribunal’s decision until 11 May 2018. The affidavit of Mr Turner, however, does not support that explanation, because in it Mr Turner states that he received the Tribunal’s decision on 4 June 2016 and sent it to the applicant at his last known email address that same day. However, that evidence is unsupported by any corroborative material (for example, the emails themselves), and the Tribunal’s decision is dated 6 June 2016 and was sent to Mr Turner on that day, not 4 June 2016.[20]
[20] CB 386
The Tribunal emailed its decision to Mr Turner on 6 June 2016 at 3:10pm to the email address provided on the “appointment of representative” form.[21] There is no evidence to suggest that the email was not transmitted successfully. However, an email from Mr Turner sent to the Tribunal on 11 May 2018 requesting an update on the progress of the matter and the subsequent responses to that email indicate that the Tribunal's email was never been received by Mr Turner.[22] The Tribunal responded to Mr Turner on the same day, informing him that it had made its decision and had emailed him a copy on 6 June 2016.[23] Mr Turner's response to that email indicated that the Tribunal's email had never been received, and that the decision had been provided to the applicant on 1 May 2018.[24] A screenshot of Mr Turner's email inbox was attached to his response.[25]
[21] CB 386, 292
[22] CB 410
[23] CB 411
[24] CB 412
[25] CB 413-414
Mr Turner’s evidence that he received and sent on to the applicant in 2016 the Tribunal decision cannot be accepted as Mr Turner cannot have done so prior to the decision having been made. He is presumably mistaken either as to the date or as to the matter he was dealing with.
I accept from the applicant’s affidavit and other corroborative material that he consulted Mr Turner in 2017 about payment of a setting down fee for the earlier proceedings in this Court. As I put to the applicant, it is very surprising that at that time there was, as he says, no discussion whatsoever about the second Tribunal proceeding. It is equally surprising that there was a discussion about a payment of a setting down fee at all. The setting down fee relates to the first proceedings in this Court which were resolved by Judge Barnes on 23 October 2015 by consent orders made in chambers. The Minister conceded that the decision of the Tribunal in that case was affected by jurisdictional error. Judge Barnes made orders quashing the decision and requiring redetermination before the Tribunal according to law. Importantly, order 4 made by Judge Barnes was a costs order in favour of the applicant fixed in the sum of $2,200. That, no doubt, included costs due to Mr Turner, assuming he was acting at that time. It should also have included any application fee paid by the applicant and any setting down fee payable by the applicant.
During the course of today’s hearing, my associate produced from the Court records a tax invoice receipt for the sum of $650 paid by the applicant on 12 September 2017. I am at a loss to understand why the Court issued a demand for payment of a setting down fee for a proceeding resolved nearly two years before, in which there was no hearing. The matter was resolved at an interlocutory stage and I do not understand why a setting down fee was payable at all.[26]
[26] Subsequent to my delivery of oral reasons, advice was received from the registry that a setting down fee is payable when a matter is listed for hearing, whether or not any hearing takes place. The registry was unable to locate any correspondence relating to the fee in matter number SYG268/2015.
In any event, if a setting down fee was payable, it certainly should not have been paid by the applicant, who was successful in the proceeding and received the benefit of a costs order. I will order that the first respondent in matter SYG268/2015 reimburse to the applicant the setting down fee of $650 paid by him on 12 September 2017.
There are certainly elements of truth and plausibility in the applicant’s account of his failure to find out about the Tribunal decision until 2018. Nevertheless, the delay in this matter is very significant and, in my view, the interests of the administration of justice would only require an extension of time if a legal issue of some substance were identified. In my view, no such legal issue has been identified. As I pointed out to the applicant, the grounds in his proposed amended application are very general. His oral submissions addressed the merits of the Tribunal decision but did not rise above a dispute over those merits.
The Tribunal decision clearly turned on substantial adverse credibility findings made by the Tribunal. While such findings are not immune from judicial review, in order for there to be a serious question to be tried in this case, something of substance would have needed to be advanced to impugn those credibility findings. The Minister’s submissions deal with the grounds of review proposed to be advanced. I agree with those submissions.
Grounds 1 and 2
The first and second grounds contend that the Tribunal erred by not considering the applicant's claims that “his family land was taken by Muslims”, his “older brother was accused and convicted of being involved in the murder of a local Muslim leader”, and that “in May 2009 a group of Muslims damaged his family's property and tortured his parents”.
Both grounds lack merit because the Tribunal comprehensively rejected the applicant's material factual claims.[27] In particular, the Tribunal expressly considered the applicant's claims that his family land was taken and damaged by Muslims,[28] and that his older brother was falsely accused of being involved in the murder of a local Muslim leader.[29] The Tribunal also comprehensively rejected the credibility of those claims, and the applicant's other factual claims.[30]
[27] CB 395-402 at [12]-[51]
[28] CB 396, 399 at [19], [35]
[29] CB 395, 396 at [14], [18]
[30] CB 402-404 at [52]-[62]
The Tribunal's conclusion that the applicant was not credible was a finding of fact for the Tribunal to determine.[31] There is nothing apparent in the Tribunal's reasoning in relation to the applicant's credibility that would suggest any error in its approach.[32]
[31] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[32] cf. CQG15 v Minister for Immigration [2016] FCAFC 146 at [36]–[38]
For these reasons, Grounds 1 and 2 cannot succeed.
Ground 3
The third ground contends that the Tribunal's adverse credibility findings were unreasonable, irrational and illogical “because the applicant provided reasonable explanations for his returns to Bangladesh”.
Ground 3 misrepresents the Tribunal's adverse credibility findings and, in substance, seeks to engage the Court in impermissible merits review. This is because the Tribunal's adverse credibility findings were based on a number of concerns it had with the applicant's claims and evidence, considered cumulatively, one of which was the applicant's decision to continue to return to Bangladesh during the period of time that he claimed to fear harm there.[33] It was plainly open to the Tribunal to take that concern into account in reaching its adverse findings, and its decision record sets out probative and logical reasons for those findings.[34]
[33] CB 402 at [52]
[34] CB 401-402 at [44]-[51]; Minister for Immigration v SZUXN (2016) 69 AAR 210 at [55]
The Tribunal gave comprehensive reasons for its credibility concerns, including concerns about inconsistencies in oral evidence presented at hearing, as well as inconsistencies between the applicant's written and oral evidence.[35]
[35] CB 398-404 at [31]-[64]
Non-disclosure certificate
The Minister’s submissions also deal with the question of a non‑disclosure certificate. It is plain that the certificate was invalid when issued. It is also patently clear from the affidavit of Jennifer Louise Strugnall made on 19 March 2019, which I received, that documents purported to be covered by the invalid certificate had no bearing whatsoever on the Tribunal’s review. It follows that I agree with the Minister’s submissions concerning that certificate.
On 4 November 2015, a delegate of the Minister issued a certificate to the Tribunal under s.438(1)(a) of the Migration Act.[36] The certificate purports to cover two internal checklists, one relating to the applicant's identity, and the other to the validity of his protection visa application.
[36] CB 147
The certificate is invalid on its face and also, because neither of the documents it purports to cover disclose any information of a contentious or sensitive nature, and neither is relevant to the Tribunal's decision or review.[37]
[37] see MZAFZ v Minister for Immigration (2016) 243 FCR 1; Minister for Immigration v Singh (2016) 244 FCR 305
Viewed objectively, the certificate and the documents it concerns are wholly irrelevant to the issues in review, and the Tribunal's failure to disclose the existence of the certificate was not material, as it could not have had any impact on the Tribunal's assessment of the applicant's protection claims.[38]
[38] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 at [2]-[3]
Conclusion
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case.
I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of an extension of time, the Minister seeks an order for costs consistent with the Court scale as it applied when the application was first filed. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 March 2019
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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Costs
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Natural Justice
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Procedural Fairness
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