WZAUA v Minister for Immigration
[2016] FCCA 2640
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2640 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time application for filing of judicial review application – consideration of factors. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05 Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 65, 476, 476A, 477 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Cases cited: Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 SZOLM v Minister for Immigration & Anor [2011] FMCA 305 |
| Applicant: | WZAUA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 79 OF 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 15 September 2014 |
| Date of Last Submission: | 15 September 2014 |
| Delivered at: | Perth |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Price |
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 79 OF 2014
| WZAUA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application on 31 March 2014 seeking an extension of time (“Extension of Time Application”) under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to make an application for judicial review (“Proposed Judicial Review Application”), under s.476 of the Migration Act. The Proposed Judicial Review Application is of a decision of the second respondent, the then Refugee Review Tribunal (now the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth) (“TA Act”), s.3, Sch.2), made on 16 December 2013 (“Tribunal” and “2013 Tribunal Decision” respectively). The Tribunal affirmed a decision of a delegate made on 2 July 2013 (“Delegate” and “2013 Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection, (“Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship) to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The 2013 Tribunal Decision is at Court Book (“CB”) 410-432.
Background prior to the 2013 Tribunal Decision
The background prior to the 2013 Tribunal Decision is set out below.
Personal Details
The applicant:
a)is a female born on 5 July 1988: CB 138;
b)is a Zimbabwean national: CB 138; and
c)was issued with a Zimbabwean passport on 23 August 2005: CB 138.
Student visa and travel history
On 10 June 2007 the applicant was granted a higher education student visa to study in Australia: CB 101 (“Student Visa”). Thereafter:
a)on 10 July 2007 the applicant left Zimbabwe and first arrived in Australia: CB 114 at [2], 142 and 390. The Zimbabwean authorities did not stop the applicant from leaving Zimbabwe: CB 302;
b)on 23 December 2007 the applicant travelled from Australia to Zimbabwe: CB 389. The applicant was not stopped on entry to Zimbabwe by the Zimbabwean authorities: CB 302;
c)on 22 January 2008 the applicant returned to Australia from Zimbabwe: CB 389. Again, the Zimbabwean authorities did not stop the applicant from leaving: CB 302;
d)on 30 June 2009 the applicant travelled from Australia to Zimbabwe: CB 389;
e)on 21 July 2009 the applicant returned to Australia from Zimbabwe: CB 389;
f)on 25 August 2009 the Student Visa was cancelled because the applicant had failed to meet the Student Visa conditions: CB 287;
g)on 7 September 2009 the applicant applied for a revocation of the cancellation of the applicant’s student visa: CB 287;
h)on 23 September 2009 a delegate of the Minister decided not to revoke the cancellation of the Student Visa: CB 287 (“2009 Delegate’s Decision”);
i)the applicant applied to the Tribunal for a review of the 2009 Delegate’s Decision not to revoke the cancellation of the Student Visa: CB 419 at [47] (“2009 Tribunal Review Application”);
j)on 30 October 2009 the applicant attended before the Tribunal (“2009 Tribunal Hearing”). The applicant and her mother gave evidence. An audio recording was made of the 2009 Tribunal Hearing. During the 2009 Tribunal Hearing neither the applicant nor her mother gave evidence about the applicant’s fear of returning to Zimbabwe due to the applicant’s actual or imputed political opinion: CB 419 at [47];
k)on 16 March 2010 the 2009 Delegate’s Decision not to revoke the cancellation of the Student Visa was reversed by the Tribunal: CB 287 (“2010 Tribunal Decision”); and
l)on 30 March 2011 the Student Visa ceased by effluxion of time: CB 287.
Protection Visa application and 2013 Delegate’s Decision
On 27 May 2011 the applicant lodged the Protection Visa application: CB 3, 20 and 115 at [6], assisted by a solicitor from Legal Aid: CB 1, 10 at [14], 34, 47, 50, 52, 129 and 139. Thereafter:
a)the applicant made a statutory declaration (which is undated, but which appears to have been lodged with the Protection Visa application on 27 May 2011) in support of her Protection Visa application: CB 36-47 (“Applicant’s Protection Visa Statutory Declaration”);
b)on 3 June 2011 the applicant made a statutory declaration in support of a bridging visa application: CB 114-118 (“Applicant’s Bridging Visa Statutory Declaration”);
c)by a letter dated 15 June 2011 the applicant was invited to attend an interview with the Delegate on 15 July 2011 as part of the assessment of her Protection Visa application: CB 148-149;
d)on 15 July 2011 the applicant attended an interview with the Delegate: CB 159, 264 at [10] and 289 (“July 2011 Interview”);
e)the audio recording of the July 2011 Interview was lost: CB 289
f)by a letter dated 31 August 2011 the applicant’s solicitor made submissions to the Delegate: CB 159-176 (“Applicant’s August 2011 Submissions”);
g)by a letter dated 2 November 2011 the Delegate informed the applicant that the Delegate had received information from a credible source that the applicant’s Protection Visa claims were fabricated and invited the applicant to respond: CB 179 and 236 (“Delegate’s November 2011 Letter”);
h)by a letter dated 28 November 2011 the applicant’s solicitor made submissions and provided documents to the Delegate in response to the Delegate’s November 2011 Letter: CB 180-186 (“Applicant’s November 2011 Submissions”);
i)on 3 December 2012 a solicitor (who was also a registered migration agent) from CASE for Refugees began assisting the applicant in place of Legal Aid: CB 193 and 196;
j)by a letter dated 11 February 2013 the applicant was invited to attend an interview with the Delegate on 19 February 2013 (“February 2013 Interview”) as part of the assessment of her Protection Visa application, because the audio recording of the July 2011 Interview had been lost: CB 250-251 and 289;
k)on 19 February 2013:
i)another solicitor from Legal Aid began assisting the applicant in place of CASE for Refugees: CB 257 and 258; and
ii)the applicant attended the February 2013 Interview with the Delegate: CB 265 at [21];
l)by a letter dated 6 March 2013 the applicant’s solicitor made submissions and provided documents to the Delegate: CB 264-270 (“Applicant’s March 2013 Submissions”); and
m)on 2 July 2013 the 2013 Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 275, 286 and 316.
An application to the Tribunal for review of the Delegate’s Decision
On 1 August 2013 the applicant applied to the Tribunal for a review of the 2013 Delegate’s Decision: CB 368 (“Tribunal Review Application”). By that time the applicant was not assisted by a solicitor or registered migration agent: CB 370. Thereafter:
a)by a letter dated 26 July 2013 the applicant made submissions to the Tribunal (“Applicant’s July 2013 Tribunal Submissions”): CB 384-387;
b)by letter dated 12 September 2013 the Tribunal invited the applicant to appear before the Tribunal on 15 November 2013 (“November 2013 Tribunal Hearing”): CB 400;
c)by a form dated 20 September 2013 the applicant informed the Tribunal that she wished to participate in the November 2013 Tribunal Hearing and requested that the Tribunal hear evidence from two witnesses, namely, the applicant’s mother and aunt: CB 407-408;
d)the applicant attended at the November 2013 Tribunal Hearing: CB 411 at [3];
e)on 16 December 2013 the Tribunal made the Tribunal Decision affirming the Delegate’s Decision: CB 410; and
f)by a letter dated 17 December 2013 the Tribunal informed the applicant of the Tribunal Decision: CB 409.
2013 Tribunal Decision
The 2013 Tribunal Decision set out the relevant background, and noted the applicant’s claims made in the Applicant’s Protection Visa Statutory Declaration as follows at CB 412 at [13]:
a)that she will be persecuted by the Zimbabwe African National Union – Patriotic Front (“ZANU-PF”) because she is an active member of the Movement for Democratic Change (“MDC”);
b)that her “family” is a particular social group, and her mother was forced to flee Zimbabwe because she was a senior member of ZANU-PF, and that ZANU-PF, who are aware she is her mother’s daughter, will target her on the basis of her relationship with her mother and her imputed political beliefs and imputed connection with those who support the MDC;
c)that she will be persecuted because of the 2013 Zimbabwe election; and
d)that she is a single white female who will have difficulty obtaining employment because she is not a ZANU-PF member.
The 2013 Tribunal Decision dealt with the applicant’s factual claims and:
a)accepted that the applicant’s mother may have been an MDC member, with a local area profile as a female activist and trade union leader, and that she had fled Zimbabwe in July 2002 for political reasons: CB 414 at [24];
b)accepted that a person’s family can constitute a particular social group for the purposes of the Refugees Convention; and
c)having regard to the passage of time since the applicant’s mother departed Zimbabwe in 2002, did not accept that the applicant’s mother continued to have a political profile in Zimbabwe: CB 414-415 at [27]-[28], and found that there was less than a real chance of the applicant suffering harm on return to Zimbabwe by reason of her relationship with her mother, and was likewise not satisfied that the applicant’s relationship with her mother would result in the applicant being imputed with an anti-government political opinion or a profile sufficient to give rise to a real chance of persecution, or significant harm for complementary protection purposes, under s.36(2)(a) and (aa) of the Migration Act: CB 415 at [29].
In relation to the applicant’s political opinion:
a)heard evidence about and had regard to a number of incidents involving the applicant which the applicant said occurred because of her political opinion (actual or imputed): CB 415-418 at [30]-[43];
b)noted that the applicant said she feared returning to Zimbabwe because she will not be able to get a job because she is not a ZANU-PF member: CB 415 at [30];
c)set out the detail of an incident in early 2005 in which the applicant said five people came to her house and told her that she must join “Border Gezi” said by the applicant to be “part of the ZANU-PF military” which “conscripted young people and sent them to military training camps”, in relation to which the Tribunal found that although aspects of the applicant’s evidence had been exaggerated, it accepted that a ZANU-PF supporter “attended at her house and threatened and pushed her around because she lived in an MDC area”, but further found that it was “an isolated and random incident”: CB 415-416 at [34];
d)accepted that in early 2005 ZANU-PF supporters had targeted a rally attended by MDC supporters at which the applicant was present: CB 416 at [35];
e)noted that the applicant said that in late 2006 ZANU-PF members visited her home to ask her to become a member of ZANU-PF, but she was not at home during the visits (which were reported to the applicant by her aunt), and that ZANU-PF targeted students about to finish school “to join Border Gezi”: CB 416 at [38];
f)found that the applicant’s account of an alleged incident in late March 2005 in which the applicant said she was assaulted by ZANU-PF youth to be inconsistent, vague and lacking in credibility, and did not accept that the applicant had been assaulted in her house in late March 2005, or – for similar reasons – that the applicant had been visited by ZANU-PF members in 2006: CB 417 at [42], and see also [38]-[41]; and
g)concluded that:
The Tribunal does accept, however, that ZANU PF members and/or Border Gezi would be targeting school students and MDC supporters in the lead up to elections and seeking them to become members such that the applicant may have been approached on occasion and told to join the ZANU PF an[d]/or Border Gezi especially in the lead up to the March 2005 elections. Having accepted that the ZANU PF members and/or Border Gezi were targeting school students and MDC supporters , the Tribunal has gone on to consider whether the applicant was threatened …, beaten … and slapped and kicked … during the course of these incidents and whether this gives rise to a well founded fear of persecution in the reasonable foreseeable future or satisfy the requirements of complementary protection. The Tribunal accepts the applicant’s account of being threatened, beaten and slapped because she would not join the ZANU PF. The Tribunal finds however, that according to the country information much of the violence directed at MDC supporters and/or school students in Zimbabwe is exacerbated by political tensions during election cycles. The Tribunal finds that Zimbabwean elections have already been concluded and the cycle of violence associated with the elections has dispelled. The ZANU PF have been declared the winners of both parliamentary and presidential elections. The applicant took no part in these elections. As stated above the Tribunal does not accept the applicant is a vocal political activist or member of the MDC. She has had no involvement in politics in Zimbabwe since she left in July 2007 having just turned 19 years old. Having considered the country information and the applicants’ lack of political profile in Zimbabwe the Tribunal does not consider that the fact that she is a supporter of the MDC, who refused to join the ZANU PF when she was a school girl, means that she would face a real chance of serious harm from the ZANU PF if she were to return to Zimbabwe now or in the foreseeable future. For the same reasons, the Tribunal is also not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe there is a real risk that she will suffer significant harm as defined for the purpose of s.36(2)(aa) of the Act because she is a supporter of the MDC who refuses to join the ZANU PF.
CB 417-418 at [43].
The 2013 Tribunal Decision then dealt with a number of matters as follows:
a)the applicant’s failure to maintain an involvement or interest in politics since coming to Australia in 2007, noting that the applicant said she had not taken part in any MDC activities since she left Zimbabwe: CB 418 at [44]. The Tribunal found that if the applicant were to return to Zimbabwe now or in the reasonably foreseeable future, she would not have any involvement with the MDC, and “that this is due to her lack of interest in politics and not due to her living discreetly to avoid persecution”: CB 418 at [46].
b)the applicant’s failure to raise her fear of returning to Zimbabwe due to her actual or imputed political opinion in the 2009 Tribunal Hearing concerning the cancellation of her Student Visa, and the failure to disclose any political reasons for not being able to return to Zimbabwe in in the Applicant’s July 2013 Submissions, which were matters the Tribunal would have expected to be disclosed: CB 419 at [47]-[52];
c)the applicant’s delay in applying for the Protection Visa: from July 2007 when she arrived in Australia, to May 2011 which was shortly after her Student Visa was cancelled. The Tribunal had regard to the fact that the applicant’s mother fled from Zimbabwe in 2002 and was granted political asylum in the United Kingdom in 2005, in finding that it did not accept that the applicant was not aware earlier that she could apply for a Protection Visa in Australia: CB 420 at [53]-[55];
d)the applicant’s voluntary return to Zimbabwe in December 2007, six months after she had left for Australia, and three months before the March 2008 parliamentary and presidential elections in Zimbabwe, which was found not to be consistent with a claim of a well-founded fear of persecution on the grounds of political opinion: CB 420 at [56]-[57];
e)noted that country information indicated that violence toward and intimidation of MDC supporters was concentrated at particular flashpoints wher MDC supporters could be targeted, and that there were “many parts” of Zimbabwe where people could support the MDC without being subject to harm, and that many MDC politicians and their children, some of whom had been educated at universities in Australia, “were able to lead normal lives” save for occasional intimidation and possible violence at political rallies “in sensitive areas”: CB 421 at [61];
f)noting country information concerning the 2013 elections which indicated a change in the political climate in Zimbabwe, with the election campaign being relatively peaceful with less violence than in the past, the Tribunal considered whether the applicant’s political profile was such that she would face a real chance of serious harm now or in the foreseeable future based on her actual or imputed political opinion if she returned to Zimbabwe: CB 421-425 at [62]-[71], the Tribunal went on to find that:
i)the applicant lacked a political profile in Zimbabwe;
ii)the applicant was not ever arrested, detained or questioned by Zimbabwean authorities;
iii)was an ordinary supporter of the MDC, who along with other young supporters who took part in MDC Youth Wing activities from 2004 to 2007 was caught up in threats and electoral violence generally;
iv)the applicant may have been involved in widespread political violence directed at young school students who resisted joining ZANU-PF, and it was plausible that the applicant had “been approached by random ZANU-PF/Border Gezi supporters” demanding the applicant’s attendance at a rally in 2004, and that ZANU-PF may have actively campaigned in her neighbourhood during 2005: CB 425-426 at [77];
v)given the applicant’s political profile, it was unlikely that she would targeted simply for being a supporter of MDC, and that “the majority of MDC officials and supporters were now able to conduct their activities without being harmed”: CB 426 at [78]; and
vi)given that the applicant’s mother left Zimbabwe in 2002 and has not returned, and that it was over six years since the applicant had left Zimbabwe, and having regard to country information and the applicant’s political profile and family background, the Tribunal did not consider that the applicant faced a real chance of serious harm, or a real risk of significant harm, from “ZANU-PF and/or Border Gezi” if she were to return to Zimbabwe: CB 426 at [79];
g)in relation to gender based violence in Zimbabwe, reviewed the country information: CB 426-428 at [82]-[86], and:
i)noting that the applicant spoke fluent English, had completed “O” Levels in Zimbabwe and a Diploma of Community Welfare Work in Australia, and had a support network of relatives, including her aunt and grandparents in Zimbabwe, concluded that it did not accept that the applicant would not be able to obtain employment (the employment market being more than just government jobs) in Zimbabwe, because she was a woman who did not support ZANU-PF: CB 428 at [88]; and
ii)having regard to the country information concerning violence against women, which it found was “exacerbated by political tensions and concentrated in rural areas”, and the applicant’s lack of a political profile, the fact that the applicant was a single women who was not a ZANU-PF member, did not mean that she faced a real chance of serious harm from the ZANU-PF, or a real risk of suffering significant harm, if she returned to Zimbabwe: CB 428 at [89]; and
h)having regard to the country information concerning returnees to Zimbabwe, the Tribunal concluded that the applicant was not at risk of harm by reason of having left Zimbabwe and studied in Australia, or that this would give rise to a perception that the applicant was opposed to the Zimbabwean government: CB 428 at [90] and CB 430-431 at [95]-[96], noting specifically that certain country information indicated that “many MDC politicians and their children, some of whom have returned from university education in Australia, are currently able to leads normal lives in Zimbabwe”: CB 430 at [94].
Having regard to the claims made by the applicant the Tribunal determined that:
a)the applicant would be able to obtain suitable employment in Zimbabwe, and that she had family support mechanisms there: CB 431 at [99];
b)that the applicant’s MDC membership card was not genuine, and given her lack of political profile, and non-participation in MDC activities since travelling to Australia, did not accept that she would become an active and vocal MDC member on return to Zimbabwe: CB 431 at [100];
c)that she did not meet the criterion for refugee status or complementary protection: CB 431-432 at [101]-[105]; and
d)affirmed the 2013 Delegate’s Decision not to grant the applicant the Protection Visa: CB 432 at [106].
Extension of Time and Proposed Judicial Review Applications
On 20 January 2014 the 35 day time limit under s.477(1) of the Migration Act within which to apply for judicial review of the Tribunal Decision expired.
On 31 March 2014 the applicant filed the Extension of Time and Proposed Judicial Review Applications. The Proposed Judicial Review Application was therefore filed 68 days out of time.
Pursuant to orders made by the Court in May and July 2014:
a)on 21 July 2014 the applicant filed an amended Extension of Time and Proposed Judicial Review Applications (“Amended Extension of Time and Proposed Judicial Review Applications”);
b)on 8 September 2014:
i)the applicant filed and served an outline of submissions (“Applicant’s Court Submissions”); and
ii)the applicant served the Minister with an unsworn affidavit (which was taken as read at hearing) of the applicant (“Applicant’s September 2014 Affidavit”) which annexes material obtained from the internet; and
c)on 12 September 2014 the Minister filed and served an outline of submissions (“Minister’s Court Submissions”).
Applicant’s September 2014 Affidavit
The Applicant’s September 2014 Affidavit is directed to the Amended Extension of Time and Proposed Judicial Review Applications, which she seeks to support with country information at Annexure A.
The Minister accepts that [1]-[5] of the Applicant’s September 2014 Affidavit may be read in support of the Amended Extension of Time Application.
The Minister objects, on the basis of relevance, to any part of the Applicant’s September 2014 Affidavit being read in support of the Proposed Judicial Review Application. Material which is irrelevant is inadmissible: Evidence Act 1995 (Cth), s.56(2) (“Evidence Act”).
[6] of the Applicant’s September 2014 Affidavit is an assertion that the applicant has never accepted the 2013 Delegate’s Decision or the 2013 Tribunal Decision, and has not given up her claim for a Protection Visa. Those are matters which might be relevant to the question of prejudice on the Amended Extension of Time Application, but are not otherwise relevant, and the Court will therefore only refer to them in relation to the Amended Extension of Time Application.
[7]-[8] of the Applicant’s September 2014 Affidavit go to the applicant’s dealings with pro-bono Counsel more than three and one half months after the filing of the Extension of Time and Proposed Judicial Review Applications on 31 March 2014. As such they are not relevant to the disposition by the Court of the Amended Extension of Time and Proposed Judicial Review Applications, and will therefore not be considered by the Court.
[9] of the Applicant’s September 2014 Affidavit is a submission as to how the applicant says the Court ought to determine the Amended Extension of Time and Proposed Judicial Review Applications, and, in its terms, is irrelevant, and inadmissible, and will therefore not be considered by the Court.
[10] of the Applicant’s September 2014 Affidavit seeks to confirm facts concerning the applicant’s MDC affiliations, which facts were in issue and which were determined by the Tribunal. This Court cannot substitute its own view in relation to the applicant’s MDC affiliations for that of the Tribunal. To undertake that task is to engage in fact-finding for the purposes of merits review, which is not a permissible task for this Court on judicial review of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). In the circumstances, [10] of the Applicant’s September 2014 Affidavit is irrelevant, and inadmissible, and will therefore not be considered by the Court.
[11] and [12] of the Applicant’s September 2014 Affidavit refer to documents annexed thereto as Annexure A (“Annexure A Documents”) said to have been provided to the applicant by pro-bono Counsel as a result of an internet search or searches. The Annexure A Documents are:
a)a less than three page extract from Wikipedia for the “National Youth Service (Zimbabwe)”, the substance of which is little more than a page;
b)a five page report on the National Youth Service in Zimbabwe published by the Immigration and Refugee Board of Canada in June 2006;
c)a one page extract from a Voice of America report concerning the National Youth Service;
d)a nine page report on youth militia activities in Zimbabwe, including those of the National Youth Service in Zimbabwe, and whether youth militia targeted supporters of the MDC, published by the Immigration and Refugee Board of Canada in May 2011;
e)a two page report from Newsday in Zimbabwe dated 3 September 2013 concerning the push for revival of the National Youth Service; and
f)a two page report from “Zimbabwe Situation” posted on 19 October 2013 concerning the possible revival of compulsory training for the Border Gezi youth militia,
which all appear to have been copied from the internet on 17 July 2014. None of these materials were before the Tribunal. The only relevance of these materials is to the applicant’s merit case, and as such they are irrelevant to the question of judicial review: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and are therefore inadmissible, and will therefore not be considered by the Court.
At [13] of the Applicant’s September 2014 Affidavit the applicant submits that she “believe[s] that the Tribunal should have examined the ongoing situation with Border Gezi and the National Youth Service in Zimbabwe”. As evidence [13] of the Applicant’s September 2014 Affidavit is inadmissible as a statement of belief and will not be considered by the Court, but it will be considered as a submission.
[1]-[5] of the Applicant’s September 2014 Affidavit are not objected to insofar as they support the Amended Extension of Time Application, and [6] and [13] of the Applicant’s September 2014 Affidavit can be considered as submissions. Otherwise, the Applicant’s September 2014 Affidavit is not relevant to any issue before the Court, and the Court will therefore not have regard to it other than as indicated above.
For reasons further outlined below: see [74] below, the Court will not have regard to the Annexure A Documents as the issues raised by them were not claims made, or clearly made, by the applicant before the Tribunal (or, indeed, to the extent that it might be relevant, before the Delegate).
Applicant’s submissions – extension of time
The applicant submitted that:
a)the 35 day time limit for filing the Proposed Judicial Review Application expired on 20 January 2014;
b)she was detained on 13 February 2014, preceding which arrangements had been made by the Department of Immigration and Border Protection (“Department”) for her departure from Australia on 10 February 2014: CB 317-322;
c)she lacked the financial capacity to source legal advice: see the Departmental email of 4 February 2014 at CB 319;
d)the Applicant’s September 2014 Affidavit refers to the applicant's initial lack of understanding that she could represent herself before the Court, which was dispelled on speaking to fellow detainees after 13 February 2014;
e)she signed the Extension of Time and Proposed Judicial Review Application on 21 February 2014. It appears, from the facsimile machine imprints on the Extension of Time and Proposed Judicial Review Application, that the process of filing the Extension of Time and Proposed Judicial Review Application in the Registry commenced on 24 March 2014 and the Extension of Time and Proposed Judicial Review Application was marked by the Registry as filed on 31 March 2014. The the Extension of Time and Proposed Judicial Review Application were therefore between 62 and 69 days out of time;
f)there is a reasonable explanation for the applicant's delay, and in the circumstances the extent of the delay is far from substantial and unacceptable; and
g)the Proposed Judicial Review Application has merit: a reviewable error is identified and there is sufficient doubt that the Tribunal Decision is affected by jurisdictional error. For that reason an extension of time to seek review ought to be granted: Deighton v Telstra Corporation Ltd (Unreported, Full Court Federal Court of Australia, WAG 74 of 1997, 17 October 1997); Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; (1991) 104 ALR 621; FCR at 398-400.
Minister’s submissions – extension of time
The Minister submitted that:
a)the Proposed Judicial Review Application was filed 68 days late;
b)the following are the grounds in support of the Amended Extension of Time Application:
i)the applicant applied for judicial review without legal help;
ii)the applicant was unaware of the 35 day time limit;
iii)by the time the applicant “saw [the Tribunal Decision] a lot of time had passed and [the applicant] did not have enough time to gather together all [her] documents for the review”; and
iv)there is reasonable doubt that the Tribunal Decision is affected by jurisdictional error;
c)the applicant concedes she received the Tribunal Decision on 17 December 2013: Applicant’s September 2014 Affidavit at [2];
d)the Applicant’s September 2014 Affidavit provides some evidence in respect of the Amended Extension of Time Application: Applicant’s September 2014 Affidavit at [3] and [4];
e)the Applicant’s September 2014 Affidavit at [4] and [5] does not support, and is inconsistent with the applicant’s statement that by the time she saw the Tribunal Decision a lot of time had passed and the applicant did not have enough time to gather together all her documents for the review;
f)the Court is not obliged to accept uncritically a statement in an affidavit which is equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 per McLelland J;
g)the perception referred to in [4] of the Applicant’s September 2014 Affidavit is inherently unlikely, and is inconsistent with the applicant’s application dated 16 February 2014 for a bridging visa: see CB 332 and 334;
h)in any event, having regard to the extent of the delay, the matters referred to above do not justify an extension of time; and
i)the Proposed Judicial Review Application is without merit.
Consideration – extension of time application
Legislative provisions – pre-requisite requirements
Section 477 of the Migration Act relevantly provides that:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) 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 application was lodged 68 days outside the time period set by s.477(1) of the Migration Act. The application is therefore incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act. There is no discretion under s.477(1) of the Migration Act to extend the 35 day time limit provided for therein: SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [39] per Nicholls FM. The relevant discretion arises under s.477(2) of the Migration Act.
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [10]-[12] per Judge Lucev (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
11 … It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s 477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor: … [[2012] FMCA 384 (“SZRBN”)]
“[28] In my view the language of s 477(2) is plain. The relationship between its constituent parts, s 477(2)(a) and s 477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the court to consider the matter in s 477(2)(b) without an application pursuant to s 477(2)(a). This is not a matter as elsewhere in the Act where the court may act on its own motion (see for example s 486F(3)(a)).
[29] The application to the court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the court to extend time is contained in s 477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s 477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s 477(2)(a) of the Act.
[30] The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent. … [SZRBN at [28]-[30] per Nicholls FM] ”
12 In the absence of an application meeting the requirements of s 477(2) of the Migration Act 1958 an application for an extension of time under s 477(1) of the Migration Act 1958 is incompetent.
(An application for leave to appeal against SZRBN & Ors v Minister for Immigration & Anor [2012] FMCA 384 was dismissed by the Federal Court: SZRBN v Minister for Immigration & Citizenship [2012] FCA 984).
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [16]-[26] per Judge Lucev the history of amendments to s.477 of the Migration Act and r.44.05(2)(c) of the FCC Rules, and the enactment and amendment of the latter at the same time as related amendments to the Migration Act, was examined, and demonstrate that its purpose is to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act, and that the interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a)if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b)any waiver under r.1.06(1) of the FCC Rules of compliance with the requirements of r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ; SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c)the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i)the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii)the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii)an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv)the alleged jurisdictional error is either established (as in SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time, for example, issues such as the explanation for the delay and prejudice to the respondent, subject to what was said by the High Court concerning the general principles in relation to extending time for prerogative relief applications, as to which see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”) and Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”).
In this case there is an explanation for the delay, and the Minister accepts that the reason for the explanation for the delay in the application for an extension of time also constitutes the applicant’s explanation as to why the interests of the administration of justice make it necessary for the Court to grant an extension of time. Therefore the procedural requirements of s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules have both been met by the applicant.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act in this Court are well-established, and are derived from the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 adapted to fit the particular requirements of s.477(2) of the Migration Act. Those factors include the following factors (which are not exhaustive):
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)whether the merits of the proposed judicial review application are arguable, or have reasonable prospects of success; and
g)any overriding general exercise of the Court’s discretion.
The above factors have been frequently applied by this Court: see, for example, SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Delay – extent and reasons
The law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought in this Court under the Migration Act, must have regard to the judgments of the High Court in Marks and Brisbane South Regional Health Authority. The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, in all but “very exceptional cases”, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 at [35] per Gilmour J (dismissing application to extend time to appeal where two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ. The summary also demonstrates the error in the observations made in cases such as DZAFG v Minister for Immigration & Anor [2015] FCCA 168, SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 and SZOLM v Minister for Immigration & Anor [2011] FMCA 305, where this Court (or its predecessor the Federal Magistrates Court) made observations that time might be extended notwithstanding extensive delay merely because the application for judicial review had arguable merit. That is not the law, and as Marks at [16] per McHugh J observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated.
A further observation may be made: in Marks consideration was being given to the application of rules of court, whereas in s.477(1) of the Migration Act it is the Parliament which has specifically legislated the relevant time limit, representing therefore the judgment of Parliament as to how the welfare of society is best to be served: Brisbane South Regional Health Authority CLR at 553 per McHugh J. This must be afforded proper and due regard, for as much as rules of court must be obeyed: Marks at [16] per McHugh J, the rationale for obeying legislation enacted by Parliament representing the people as a whole must carry even more weight.
The Court must not only look at the explanation for the delay, but also at the extent of the delay: SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14] per Scarlett FM. The extent of the delay must be balanced against the reason for the delay: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29] per Lucev FM (“WZANW”). A delay of 54 days after the 35 day time limit prescribed by s.477(1) of the Migration Act is likely to be fatal to an application for an extension of time under s.477(2) of the Migration Act where there is no reason for the delay: WZANW at [28] per Lucev FM.
It is generally recognised that the longer the delay the more persuasive an explanation needs to be in order to justify an extension of time: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J (“Tran”).
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”); WZASQ at [15] per Judge Lucev. As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
There being no absolute right to legal representation for an applicant in Migration Act proceedings, lack of legal advice, or a lack of positive legal advice, is not of itself a sufficient excuse for failure to lodge an application for review within time: Tran at [35] per Wigney J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev.
The Court notes that the applicant speaks fluent English: CB 428 at [88], and does not assert that she was not aware of the relevant time limit, but relies upon factors in relation to her belief that she could not represent herself, a belief she says she held until otherwise apprised by other detainees at some time after she went into immigration detention on 13 February 2014. The fact that the applicant was in immigration detention and might have had difficulty accessing the internet and relevant materials does not specifically appear to be part of the applicant’s explanation for the delay, but even if it were, immigration detention puts her in no different a position to any other person in immigration detention applying for a protection visa, the majority of whom (and on the Court’s observation the vast majority of whom) make application within the legislated limitation period. In this case, that limitation period had already expired some 24 days prior to the applicant being taken into immigration detention. When the applicant went into immigration detention on 14 February 2014 it would appear that she indicated that she intended to lodge a “substantive visa application” and that she was “informed of timeframes”, but at the end of the interview she was “undecided”: CB 328. The applicant seemingly only remained undecided for two days, because on 16 February 2014 she made an application for a Bridging visa E-subclause 050: CB 330-334, in which she indicated as follows:
I intend to proceed with the judicial review to resolve my immigration status. I need to have a bridging visa so that I can have access to legal help that will assist me with my case for Judicial review.
I cannot access the required legal help I need if I am detention, this bridging visa will help me look for what I need.
CB 332 (transcribed verbatim).
On the basis of the Bridging visa E application it is plain that the applicant was aware, at least by 16 February 2014, that she needed to apply for judicial review, but still perceived that she could not access what she perceived to be “required legal help” whilst in detention.
It was 43 days after the applicant’s statement in her Bridging visa application, or a period in excess of six weeks, before the Extension of Time Application and Proposed Judicial Review Application were filed.
There is a lack of evidence, both specifically and generally as to any difficulties said to have faced the applicant in the process of preparing Extension of Time and Proposed Judicial Review Application whilst in immigration detention. There is no explanation of why a further period of 46 days, that is, in excess of six weeks was necessary to prepare the Extension of Time Application and Proposed Judicial Review Application, particularly where there is no explanation of the process followed by the applicant or the difficulties encountered by her in following that process.
In all of the above circumstances the Court is of the view that there is no satisfactory explanation by the applicant for the delay of 68 days (or almost twice the relevant limitation period), and that the length of the delay, is such that it requires a satisfactory explanation of the delay. The absence of a satisfactory explanation weighs against the grant of an extension of time in which to file the Proposed Judicial Review Application.
Prejudice to the Minister and impact upon the applicant
There must be some prejudice arising in this case from the fact that the Minister might rightfully have thought that the applicant’s right to review the Tribunal Decision was at an end by reason of the limitation period having expired. In conventional parlance, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his.
The impact on the applicant of a failure to extend time for making the application is arguably considerable if the applicant establishes an arguable case of jurisdictional error, because a failure by the Tribunal to properly determine the application to it according to law may, if there are valid grounds for granting a Protection Visa (which is matter for the Tribunal), expose the applicant to a risk of persecution in her home country. In this case, for reasons set out below, there is not an arguable, or sufficiently arguable, case of jurisdictional error in the Tribunal Decision, and therefore there is no prejudice to the applicant from a failure to extend time.
It follows that to the extent that there is prejudice to the Minister, and no prejudice to the applicant, this factor does not weigh in favour of an extension of time in which to file the Proposed Judicial Review Application.
Public interest and discretion otherwise
Although the interests of the Australian public at large are not served by refoulment of a refugee to a country of claimed persecution, that factor does not carry weight where the attack on the Tribunal Decision lacks merit: SZMFJ at [194] per Nicholls FM; WZANW at [110]-[111] per Lucev FM, as it does here, where for reasons set out below there is not an arguable, or sufficiently arguable, case of jurisdictional error in the Tribunal Decision.
As to the interests of the public at large, there is nothing in the matter liable to excite the interests of the public at large, or which might otherwise warrant the exceptional exercise of the Court’s discretion to extend time for the making of the Proposed Judicial Review Application.
It follows from the above that neither the public interest nor broader discretionary factors favour the grant of an extension of time in which to file the Proposed Judicial Review Application.
Whether merits of Amended Proposed Judicial Review Application arguable
The grounds of review set out in the Amended Proposed Judicial Review Application are as follows:
a)ground 1: the Tribunal made errors of law;
b)ground 2: the Tribunal did not take unspecified matters into account;
c)ground 3: the Tribunal made a jurisdictional error in the exercise of its statutory power by failing to assess the applicant’s claim of a well-founded fear of persecution according to law; and
d)ground 4: without limiting the extent of ground 3, the Tribunal failed to give proper genuine and realistic consideration to the whole of the applicant’s claim by failing to consider whether the applicant had a well-founded fear of suffering serious harm in Zimbabwe in the foreseeable future because she is a supporter of the MDC and as a female under 30 years is eligible for National Youth Service.
The particulars to ground 4 of the Amended Proposed Judicial Review Application are as follows
a)the applicant claimed that in Zimbabwe she had been intimidated verbally and physically by the Border Gezi to join and had refused: CB 41 at [23], 43 at [32] and CB 163-164;
b)in its findings the Tribunal accepted that the applicant was a supporter of the MDC and took part in its youth wing activities and had been approached by the Border Gezi to join and physically mistreated because she would not: CB 417-418 at [43] and 425-426 at [76]-[79];
c)youth of the ages 10 to 30 are subject to National Youth Service in Zimbabwe (which includes Border Gezi, the name of a deceased youth minister of the ruling ZANU-PF party and the name of a foundation youth training centre established by the Government of Zimbabwe in 2001);
d)country information reports that completing National Youth Service had become a requirement for those wishing to pursue post-secondary education or wishing to obtain a job in the public sector;
e)country information reports sexual abuse of girls and women in National Youth Service training centres;
f)country information reports use of the National Youth Service to indoctrinate loyalty to ZANU-PF and use of the training centres to harm perceived opponents such as MDC supporters;
g)National Youth Service was suspended in 2007/2008 and the 2008 Global Political Agreement for a power sharing government in Zimbabwe called for a new national youth service to replace the existing National Youth Service;
h)in the harmonised general election held on 31 July 2013, President Mugabe’s ZANU-PF party received more than a two-thirds majority in the Eighth Parliament sworn in on 17 September 2013; and
i)country information reports that in February 2011 that draft documents for revival of the existing National Youth Service scheme had been prepared for Cabinet; and in October 2013 that the Minister for Youth Development, Indigenisation and Empowerment had announced publicly that the program was to be resuscitated soon and would be compulsory.
Applicant’s submissions
The applicant contends that the Tribunal Decision is affected by jurisdictional error, in that the Tribunal failed to consider the whole of her claim that she had a well-founded fear of persecution on her return to Zimbabwe, and further submits that:
a)the applicant is a young woman of 26 years of age and claims:
i)that the basis for her fear on returning to Zimbabwe is that in Zimbabwe she and members of her family are supporters of the MDC and do not support the ruling ZANU-PF party; and
ii)that in Zimbabwe she was subject to intimidation to join Border Gezi and mistreated when she refused;
b)while the Tribunal accepted the applicant was a supporter of the MDC and in Zimbabwe had taken part in its youth wing activities, the Tribunal confined itself to considering whether the applicant would be politically active on her return to Zimbabwe, concluding that she would not and therefore was not at risk as an ordinary MDC supporter “from the ZANU-PF and/ or the Border Gezi”: CB 426 at [79];
c)the Tribunal did not properly engage on the nature of Border Gezi, youth militia and youth training in Zimbabwe. As a result the Tribunal failed to consider the position of the applicant as an MDC supporter returning to Zimbabwe as a young woman under 30 years of age and by age eligible for compulsory induction into National Youth Service training in Zimbabwe with consequential exposure to Border Gezi, whether or not she chooses to be politically active in Zimbabwe;
d)in the Tribunal Decision the Tribunal states that the applicant said: “that the Border Gezi youth was part of the ZANU-PF military and conscripted young people and sent them to military training camps”: see CB 416 at [34] and “that the ZANU-PF would target students who are about to finish school to join the Border Gezi”: CB 416 at [38];
e)the applicant's statutory declaration in support of her Protection Visa application refers to her being approached by three men wearing Border Gezi t-shirts during school holidays in 2005 and told: “... that I was required to join the Border Gezi. They said it was my national duty and that it would help build the nation. It was well known that the Border Gezi was created solely to abusively train all youth to fight the MDC on behalf of the ZANU-PF”: CB 41 at [23];
f)the applicant also declared that fear of being forced to join Border Gezi was reason for her to leave Zimbabwe and seek education and citizenship elsewhere, firstly in the United Kingdom where she was refused a visa, and then in Australia: CB 43 at [32]-[33] and CB 417 at [41];
g)the Tribunal accepted:
i)the applicant is a single female who is not a ZANU-PF supporter: CB 428 at [87][89];
ii)the applicant is an ordinary MDC supporter who has not participated in any MDC activities or elections since she travelled to Australia in July 2007: CB 428 at [89] and CB 431 at [100];
iii)in Zimbabwe the applicant was an ordinary supporter of the MDC and from 2004 until she departed Zimbabwe in 2007 to study in Australia she took part in activities organised by the MDC Youth Wing along with other young Zimbabwean people who were opposed to the ZANU-PF: CB 425 at [76];
iv)in Zimbabwe the applicant may have been involved in widespread political violence directed at school students who were resistant to joining the ZANU-PF: CB 425 at [77];
v)ZANU-PF members and/or Border Gezi would be targeting school students and MDC supporters in the lead up to elections and seeking them to become members such that the applicant may have been approached on occasion and told to join the ZANU-PF or Border Gezi especially in the lead up to the March 2005 elections: CB 417 at [43]; and
vi)the applicant's account of being threatened, beaten and slapped because she would not join the ZANU-PF: CB 417-418 at [43];
h)the Tribunal made findings that:
i)on the country information, that “much of the violence directed at MDC supporters and/or school students in Zimbabwe is exacerbated by political tensions in election cycles”;
ii)the applicant lacked a political profile in Zimbabwe concluding: “The Tribunal does not consider the fact she is a supporter of the MDC, who refused to join the ZANU-PF when she was a school girl, means that she would face a real chance of serious harm from the ZANU PF if she were to return to Zimbabwe now or in the foreseeable future”: CB 418 at [43];
iii)for the purposes of s.36(2)(aa) of the Migration Act that it was not satisfied the applicant will suffer significant harm “because she is a supporter of the MDC who refuses to join the ZANUPF”: CB 418 at [43],
which findings are indicative of the Tribunal not engaging on the nature of the Border Gezi in Zimbabwe and what it was that the applicant and other young people in Zimbabwe were being intimidated into joining;
i)the country information set out in the Tribunal Decision does not discuss Border Gezi and its connection to the National Youth Service in Zimbabwe;
j)the country information provided in the Annexure A Documents states that:
i)the Border Gezi Training Institute was the first training centre of the National Youth Service of Zimbabwe: at page 12;
ii)the National Youth Service is a programme of the Zimbabwean Government for Zimbabweans of the ages 10 to 30 and was authorised under the 1979 National Service Act: at page 3;
iii)the National Youth Service programme was launched in 2001 by the Youth Minister of the ZANU-PF the late Border Gezi: at pages 21-22;
iv)the National Youth Service was condemned by many because, it was said: members were taught exclusively from ZANU-PF campaign materials and speeches, the service indoctrinated members with absolute loyalty to ZANU-PF, members were trained for military operations to enforce ZANU-PF dominance and conditions in the service training facilities were reported to include poor construction, frequent hunger and sexual abuse of trainee girls and women: at pages 3-4 and 24;
v)many youths trained in the National Youth Service joined ZANU-PF affiliated youth militias and the government used these youth militias to carry out political violence, for instance in the 2008 election period: at page 12;
vi)the National Youth Service was described on the website of the Ministry for Youth Development and Employment Creation as voluntary, but it was reported that a sizeable number were coerced into training. It was also reported that the program had become a requirement for those wishing to pursue post-secondary education or wishing to obtain a public sector job. Deserters and defectors faced retribution. Those who were traumatised after completing the training or who wished to avoid completing the training often fled: at pages 7-9 and 12-13;
vii)the National Youth Service is reported to have taken in its last intake in 2005 and the training camps across Zimbabwe shut down by May 2006: at page 7;
viii)the ZANU-PF affiliated youth militias containing graduates of the National Youth Service continued to operate: at pages 13-17;
ix)a Voice of America report of 24 March 2010 states that:
A.the 2008 Global Political Agreement for power sharing between the ZANU-PF and the MDC called for a new youth service reshaped into a non-partisan program to replace the so-called Border Gezi militia;
B.that the Deputy Youth Development, Indigenization and Empowerment Minister was consulting with stakeholders on the new service; and
C.“many Zimbabweans speak of the “youth militia” rather than the national youth service”: at page 11;
x)Refworld published on 17 May 2011 that media sources had reported in February 2011 that a Ministry of Youth Development, Indigenization and Empowerment draft document titled “National Youth Service Programme in Zimbabwe” proposed to revive the National Youth Service and to train approximately 300,000 youths per year, but the document was rejected by Cabinet and the Ministry was asked by Cabinet to conduct more regional and local consultations before reintroducing the National Youth Service: at page 13;
xi)on 3 September 2013 Zimbabwean media sources reported the ZANU-PF youth network had called for the revival of the National Youth Service: at pages 21-22; and
xii)on 19 October 2013 the Minister for Youth Development, Indigenization and Empowerment is reported via RadioVOP to have stated that the National Youth Training programme would be resuscitated soon and will be compulsory, it having been stopped only because the MDC party that partnered ZANU-PF in the coalition government complained about the program: at pages 23-24;
k)Border Gezi is spoken of in Zimbabwe, and by the applicant, as youth militia rather than the National Youth Service;
l)the Tribunal in its Statement of Decision and Reasons at CB 423 at [67] stated that at the elections held in Zimbabwe on 31 July 2013: “ZANU-PF won the parliamentary and presidential elections in a landslide victory ... The elections brought to an end over 4 years of the power-sharing Government of National Unity between ZANU-PF and the MDC.”;
m)as the country information in the Annexure A Documents indicates the proposed resuscitation of the National Youth Service in Zimbabwe in the near future is likely to be on a partisan basis and on the basis of a compulsory service. This has the potential to render the applicant at risk of future harm in Zimbabwe as a female MDC supporter who is not willing to embrace the ideology of the ZANU-PF and is vulnerable to sexual and other physical abuse in National Youth Service training camps and elsewhere in Zimbabwe;
n)by focusing on the use by ZANU-PF of affiliated youth militias to cause political violence and unrest at election times, the Tribunal failed to examine whether on return to Zimbabwe the applicant faces a real risk of serious harm in the foreseeable future from the Border Gezi clothed as the National Youth Service of Zimbabwe: see CB 425 at [77] and CB 426 at [79];
o)despite the applicant's claims in relation to the Border Gezi, there is no evidence in the Tribunal Decision of the Tribunal considering recent country information available on national youth training and youth militia in Zimbabwe. Nor is there evidence of a careful and active intellectual engagement with the nature of national youth training and youth militia in Zimbabwe and the risk of harm to the applicant from this source in the foreseeable future. The indications are that the Tribunal simply bundled ZANU-PF with ZANU-PF affiliated youth militias, the latter being described as Border Gezi and an instrument of ZANU-PF election violence;
p)by this failure the Tribunal disabled itself in the exercise of its jurisdiction and did not consider all the applicant's claims, thereby affecting its decision on the statutory questions upon which it needed to reach satisfaction; and
q)the relevant matter left unaddressed by the Tribunal is not a futile issue, it is a real ground for considering whether the applicant is at risk of persecution on return to Zimbabwe, following which the Tribunal may reach a different conclusion as to whether or not the applicant satisfies the statutory criteria in ss.36(2)(a) and (aa) of the Migration Act.
Minister’s submissions
The Minister made some general submissions related to the arguability of the merits of the Amended Proposed Judicial Review Application as follows:
a)the onus is on the applicant to make out the factual basis of her Protection Visa application: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”);
b)the Tribunal is not obliged to make out an applicant’s case: see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549; FCR at 169-170 per Wilcox J;
c)the Tribunal’s only obligation is to conduct a review of the Delegate’s Decision: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429 at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ;
d)the Tribunal Decision should be read fairly, and hence holistically, with each constituent part understood in context: Shrestha v Minister for Immigration & Anor [2013] FCCA 710 at [37] per Judge Nicholls;
e)a failure to take into account a particular piece of evidence does not give rise to a jurisdictional error: see WZAND v Minister for Immigration & Anor [2009] FMCA 26 at [57] per Lucev FM (“WZAND”), referring to Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed) (“Li Shi Ping”);
f)section 65 of the Migration Act requires the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the Protection Visa before the Protection Visa can be granted;
g)the Tribunal is not required to disprove an applicant’s claims, or to find and then rely on any rebutting evidence before the Tribunal finds that it cannot accept a particular factual assertion made by an applicant: SZTKA v Minister for Immigration & Anor [2014] FCCA 1791 at [36] per Judge Nicholls (“SZTKA”);
h)the Tribunal may reject an applicant’s claims on the basis of inherent unlikelihood of the applicant’s narrative: SZKOK v Minister for Immigration & Anor [2010] FMCA 90 at [30] per Smith FM;
i)the Tribunal is not required to hold a positive state of disbelief before making credibility findings against a visa applicant: WZANW at [98] per Lucev FM;
j)the choice and assessment of country information is a factual matter for the Tribunal: SZEUZ v Minister for Immigration & Multicultural Affairs [2006] FMCA 1032 at [7] per Driver FM. The weight that the Tribunal gives to country information is a matter for the Tribunal and not this Court: SZJTQ & Ors v Minister for Immigration & Anor [2008] FMCA 1188 at [52] per Barnes FM (“SZJTQ”). The question of the accuracy of country information is a matter for the Tribunal and not this Court: SZJTQ at [52] per Barnes FM. There is no jurisdictional error in the Tribunal basing a decision on country information that is not true: SZJTQ at [52] per Barnes FM; and
k)in the absence of evidence (such as a transcript) to the contrary, this Court is obliged to accept the statements of fact recorded in the Tribunal Decision on matters such as to what was said by the applicant to the Tribunal Member, and the general course of the hearing: SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at [13] per Collier J; SZTKA at [44] per Judge Nicholls.
As to grounds 1, 2 and 3 of the Amended Proposed Judicial Review Application the Minister submitted that each was a bald assertion unsupported by any kind of particulars, detail or explanation: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [19] per Emmett FM (“SZELX”), and should therefore be summarily rejected because they do not disclose error by the Tribunal capable of review by this Court: SZELX at [18] per Emmett FM, save to the extent that ground 3 relies on ground 4.
In relation to ground 4 the Minister submits that:
a)this ground alleges that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s review application in the following respects:
i)firstly, that the Tribunal failed to consider whether the applicant had a well-founded fear of suffering serious harm in Zimbabwe in the foreseeable future because the applicant is a MDC supporter; and
ii)secondly, that the Tribunal failed to consider whether the applicant had a well-founded fear of suffering serious harm in Zimbabwe in the foreseeable future because the applicant is a female under 30 years of age who is eligible for National Youth Service,
but the particulars only seem to relate to the second issue raised;
b)the Tribunal Decision plainly addressed the applicant’s claims to the extent that those claims were based on her alleged association with and support of the MDC. The Tribunal is not required to give a line-by-line refutation of the applicant’s evidence either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. The absence of a line-by-line refutation does not indicate that the Tribunal did not consider the relevant materials before it: see MZYXP v Minister for Immigration & Border Protection [2013] FCA 1352; (2013) 137 ALD 348 at [100] per Kenny J;
c)the failure of the Tribunal to refer to, or even to overlook, evidence is not in itself jurisdictional error: SZSUY v Minister for Immigration & Anor [2014] FCCA 1 at [48] per Judge Driver;
d)the expression “proper, realistic and genuine consideration” is, however, no substitute for the text of the Migration Act: see Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426; (2001) 192 ALR 256; (2001) 65 ALD 346 at [36]-[66] per Heerey, Goldberg and Weinberg JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [52]-[54] per Black CJ, French and Selway JJ (“NABE (No. 2)”); Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [26]-[32] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ;
e)one needs to be alert to the risk that the words “proper”, “genuine” and “realistic” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process: SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 at [24] per Siopis, Perram and Davies JJ;
f)the particulars to ground 4 relate to the Border Gezi organisation and the eligibility of females under 30 years of age for National Youth Service;
g)the applicant carries the burden of persuading the Court to draw an inference that the failure to deal with a submission which the Tribunal was obliged to consider amounts to a jurisdictional error: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [53] per Kenny, Griffiths and Mortimer JJ;
h)the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before the Tribunal: MZZKA v Minister for Immigration & Border Protection [2014] FCA 633 at [10] per Bromberg J (“MZZKA”);
i)the articulated claim must arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence: MZZKA at [10] per Bromberg J;
j)the Tribunal’s task is to assess the claims by reference to all the material before it, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then to subject them to further analysis to assess their legitimacy. Hence, a practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself: NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J (“NAVK”);
k)the applicant’s case, both before the Delegate and Tribunal was based on her alleged association with and support of the MDC: see, for example, CB 116 at [22] (last sentence), 160 (1st para), 161 (1st para), 167 (4th para), 172, 175-176 and 180 at [2], 385 (last para), 386 (1st para) and 426 at [80];
l)the only references in the applicant’s evidence and materials to “Border Gezi” were made in the context of being and/or perceived to be a MDC supporter: see CB 41 at [23], 42 at [30], 43 at [32], 163 (1st para), 164 (2nd and 3rd paras), 184, 291 (3rd bullet point), 292 (4th bullet point), 301 (5th para), 415 at [34], 416 at [34], 416 at [38], 417 at [43], 425 at [77] and 426 at [79];
m)in the Delegate’s Decision there were only fleeting references to “Border Gezi”: CB 291 (3rd bullet point), 292 (4th bullet point) and 301 (5th para);
n)if the applicant wanted to give a “Border Gezi focus” to her case before the Tribunal, one would have expected the applicant’s letter dated 26 July 2013 to deal in detail with that issue. The letter does not mention “Border Gezi”: CB 384-387;
o)if the applicant wanted to give a “female under 30 National Youth Service focus” to her case before the Tribunal, one would have expected the applicant’s letter dated 26 July 2013 to deal in detail with that issue. The letter does not mention the issue: see CB 384-387; and
p)the Tribunal therefore properly addressed the applicant’s case as put. Cases such as Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [53]-[59] per Katzmann, Griffiths and Wigney JJ and SZSSC v Minister for Immigration & Border Protection [2014] FCA 863; (2014) 317 ALR 365; (2014) 142 ALD 150 at [75]-[81] per Griffiths J, which deal with the distinction (if any) between “a claim or an integer of a claim” and “evidence”, therefore have no application.
Consideration
In determining whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. In an extension of time context, an assessment of the merit of the case is broad. Such an assessment involves a consideration of the outline of the case in relation to which the applicant for an extension bears the burden of persuasion: WZANW at [37] per Lucev FM.
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In conducting a review the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant or which arise clearly from the material provided: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321 at [23]-[25] and [32]-[34] per Gummow and Callinan JJ (“Dranichnikov”); Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”).
The law as identified in Dranichnikov and Htun gives rise to two questions which a Tribunal must determine on the facts of each case, namely:
a)was the relevant claim actually made and clearly articulated, or clearly discernible from the claim made; and
b)was the claim identified and considered by the Tribunal?
In determining this matter the Court must have regard to the proper nature of judicial review. That encompasses a number of matters which bear upon the Court’s considerations, including the following (as outlined in WZAOF & Anor v Minister for Immigration & Anor [2012] FMCA 668):
a)there is no error of law, and hence no jurisdictional error, in the Tribunal making a wrong finding of fact: NABE (No. 2) at [52]-[54] per Black CJ, French and Selway JJ; SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J;
b)so long as a particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272; (2008) 249 ALR 762at [97]-[99] per Greenwood J;
c)a misconception by the Tribunal of a visa applicant’s evidence does not constitute a jurisdictional error: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ; WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at [7] per Lee J;
d)there may be cases where the Tribunal’s statements or questions during the hearing sufficiently indicate to an applicant that everything said in support of the application is in issue. That indication may be given in various ways and it is not necessary, and often would be inappropriate, for the Tribunal to put to an applicant, in so many words, that they are lying, that they may not be accepted as a witness of truth, or that they may be thought to be embellishing an account of certain events. The proceedings are not adversarial, and the Tribunal does not adopt the position of a contradictor: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”);
e)where there are specific aspects of an applicant’s account which the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal need only ask an applicant to expand upon those aspects of the account and ask an applicant to explain why the account should be accepted: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
f)procedural fairness does not require:
i)the Tribunal to continuously disclose its process of reasoning or reactions so as to enable the parties a further opportunity of criticising them before a final decision is reached: SZBEL at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
ii)there is no necessity for the Tribunal to provide a running commentary upon what it thinks about the evidence as it is given, and to do so might carry a serious risk of conveying an impression of prejudgment: SZBEL at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
g)it is important not to confuse taking into account relevant considerations with taking into account particular pieces of evidence, and a failure to take into account a particular piece of evidence does not necessarily give rise to jurisdictional error: Li Shi Ping at 236-237 per Carr J (with whom Sheppard & Gummow JJ agreed); WZAND at [57] per Lucev FM;
h)a Court conducting judicial review must be astute not to turn judicial review into merits review, and it is not appropriate to analyse the Tribunal Decision minutely and with a focus upon perceiving error: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; CLR at 623-624 per Gummow A-CJ and Kiefel J, at 634, footnote 73 per Heydon J; at [35] per Gummow A-CJ and Kiefel J, at [85], footnote 73 per Heydon J; Wu Shan Liang & Ors CLR at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [23] per Gleeson CJ and Hayne J;
i)in deciding to grant or refuse a protection visa the Tribunal must decide if it is satisfied an applicant is a refugee under the Convention: Migration Act, s.36(2)(a); NABE (No. 2) at [44] per Black CJ, French and Selway JJ;
j)the onus is on an applicant to make out the factual basis of an application for review of a decision not to grant a protection visa: Selvadurai at 348 per Heerey J; and
k)findings of fact, including the making of credibility findings, are matters par excellence for the Tribunal: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ.
As to grounds 1, 2 and 3 (save to the extent that ground 3 might overlap with ground 4) they raise no arguable grounds of review, being no more than unparticularised assertions of jurisdictional error by the Tribunal. An unparticularised assertion of jurisdictional error cannot succeed: SZELX at [18]-[19] per Emmett FM, and see now WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited).
As to ground 4, insofar as it asserts that the Tribunal did not consider a claim by the applicant of a well-founded fear of persecution in Zimbabwe by way of suffering serious harm in the foreseeable future because she was an MDC supporter, that claim cannot succeed. The Tribunal clearly set out the claims made by the applicant in that regard and considered those claims, and made findings upon them: see [8]-[12] above.
Otherwise ground 4 raises an alleged failure by the Tribunal to consider whether the applicant had a well-founded fear of persecution by reason of suffering serious harm in the foreseeable future in the event of the applicant’s return to Zimbabwe. In this regard, it is said that the fear of persecution by way of suffering serious harm arises in the context of the applicant being a female under 30 years of age eligible for membership of the National Youth Service.
The difficulty with the claim now made with respect to the applicant being a female under 30 years of age eligible for membership of the National Youth Service is that that was not a claim either made, or if it was made, clearly articulated, or one which arose from the materials put before the Tribunal by the applicant (or otherwise arising on those materials): see Dranichnikov and Htun.
The Applicant’s July 2013 Tribunal Submissions are personal, and detailed and deal with the applicant’s feared harm due to her mother’s and grandparents’ profile, incidents in 2005 and 2006, returning to Zimbabwe in 2007 and the delay in making an application for the Protection Visa: CB 384-387. In conclusion, the applicant says that whilst she “may not have a particularly high profile as an MDC activist, my profile is significant enough to attract the attention of the ZANU PF” and goes on to deal with the interactions between ZANU PF and the MDC, but does not raise the fact that she is a female under 30, or that she is eligible for membership of the National Youth Service. Nor does the letter mention Border Gezi, which it appears the applicant now argues is the umbrella organisation for the National Youth Service: see “Conclusion” at CB 387, and CB 384-387 generally. Thus, the applicant’s own final submission to the Tribunal does not mention the National Youth Service.
As the Minister’s submissions point out the references to “Border Gezi” in the claims made by the applicant are all made against a background of the applicant being an MDC supporter, but do not mention the National Youth Service, or link in any clearly articulated way a claim that the applicant as a female under 30 would be eligible for membership of the National Youth Service upon return to Zimbabwe. It does not appear that a claim of that type was made on the applicant’s behalf before the Delegate’s Decision was made: see Applicant’s August 2011 Submissions at CB 159-176. Likewise, the submission from Legal Aid Western Australia does not specifically raise, or clearly articulate, or refer to any country information from which a claim of a fear of serious harm giving rise to a well-founded fear of persecution on the basis of the applicant being a female under 30 eligible for membership of the National Youth Service might arise: CB 264-270. The claims made before the Delegate, as set out in the Delegate’s Decision go to the applicant’s fear of harm based upon her membership of the MDC, and the MDC’s opposition to ZANU PF, and not the claim now made with respect to eligibility for membership of the National Youth Service: CB 289-293.
To the extent that the above materials refer to the applicant joining Border Gezi, or that Border Gezi was used to train youth to fight the MDC on behalf of ZANU PF, that is a claim which the Tribunal understood, and dealt with in its terms: CB 415-416 at [34]; CB 416 at [38]; CB 425 at [76]-[77]; CB 426 at [79]. To the extent that the applicant made claims based upon being a single female, those claims were made in the context of difficulty in obtaining employment because she was not a ZANU PF member: CB 412 at [13], and not that she was a single female aged under 30 eligible for membership of the National Youth Service: see also CB 415 at [30] and CB 426 at [80], a claim then dealt with at CB 428 at [89].
The claim now made with respect to the applicant being a female aged under 30 eligible for membership of the National Youth Service was not a claim which was made or clearly articulated before the Tribunal. Nor does the applicant point to any country information which was put before the Tribunal upon which it can be said that the claim clearly arose, or to any country information which was considered by the Tribunal in which this issue arose, and which was ignored by the Tribunal. This case was simply not made before the Tribunal.
The case now depends upon the country information sought to be put before the Court by way of the Annexure A Documents. The Annexure A Documents were not before the Tribunal, and as outlined above, the case now sought to be made by reference to them was not one that was sought to be made before the Tribunal. That case was one for the applicant to make, not for the Tribunal to discover of its own volition: NAVK at [15] per Allsop J. In the circumstances, the case now being sought to be made not being one that was made before the Tribunal, it cannot be made upon judicial review to this Court. It follows, therefore, that the Annexure A Documents are irrelevant and inadmissible: Evidence Act, s.56(2). It further follows, that the claim that the Tribunal failed to consider the applicant’s claim of persecution based upon her being a female aged under 30 eligible for membership of the National Youth Service is not one which is clearly arguable.
It follows from the above, with ground 4 being the only ground of any substance, and it not being a ground clearly arguable on the merits of the Amended Proposed Judicial Review Application, that the merits of the Amended Proposed Judicial Review Application do not weigh in favour of an extension of time.
Conclusions and orders
The length of the delay (68 days) in making the application, and the failure to satisfactorily explain that delay, is such in this case that the delay alone is a sufficient basis for dismissal of the Extension of Time Application. It follows that there should be an order that the applicant’s application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
Even if the length of, and failure to explain, the delay were alone not enough to warrant the dismissal of the Extension of Time Application, the effect of a consideration of the other factors leads to the same result, because:
a)there is prejudice to the Minister;
b)there is no public interest in the matter; and
c)the failure of the applicant to make out any proposed ground of review which has arguable merit effectively means that such an application would have no prospect of success, and the Court should not therefore extend time.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Amended Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: TA Act, s.3, Sch 2.
The Court will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 30 November 2016
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