WZAUN v Minister for Immigration
[2019] FCCA 1681
•20 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1681 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – very substantial delay – whether adequate explanation for delay – whether prejudice – whether proposed grounds of review reasonably arguable or have reasonable prospects of success. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.425, 476, 477 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 WZANX v Minister for Immigration & Anor [2009] FMCA 1010 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 |
| Applicant: | WZAUN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 238 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 31 July 2015 |
| Date of Last Submission: | 31 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 20 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr FR Robertson |
| Solicitors for the Applicant: | SanLing Chan |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the applicant’s application for an extension of time in which to file the Originating Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 238 of 2014
| WZAUN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application seeking judicial review (“Proposed Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the former Refugee Review Tribunal (“Tribunal Decision” and “Tribunal” respectively) which affirmed a decision made by a delegate (“Second Delegate’s Decision” and “Second Delegate” respectively) of the first respondent (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). The Proposed Judicial Review Application was filed out of time and as such the applicant has made an application for an extension of time pursuant to s.477(2) of the Migration Act (“Extension of Time Application”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including the transcript of the hearing from 31 July 2015 (“Transcript”) and the materials relied upon including:
a)the Court Book (“CB”) of relevant materials, which includes the Tribunal Decision at CB 233-263;
b)the affidavits of:
i)the applicant sworn 6 August 2014 (“Applicant’s Affidavit”);
ii)the applicant’s lawyer, San Ling Chan, sworn 6 August 2014; and
iii)Julian Vaughan Thomas, affirmed 4 February 2015, filed on behalf of the applicant (“Thomas Affidavit”); and
c)the various Court documents (other than the CB), including:
i)the Proposed Judicial Review Application filed on 11 August 2014;
ii)the orders of a Registrar of this Court made on 1 October 2014;
iii)the amended Proposed Judicial Review Application (“Amended Proposed Judicial Review Application”) filed 24 February 2015;
iv)the applicant’s outline of submissions filed on 22 July 2015;
v)the Minister’s outline of submissions filed on 29 July 2015; and
vi)the Consent Orders of 30 July 2015 extending the time for submissions to be filed by both parties.
It is also relevant to note that there was no witness evidence or examination at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Extension of Time Application
Delay
Pursuant to s.477(1) of the Migration Act the applicant was required to file an application for judicial review of the Tribunal Decision, made on 12 December 2012, within 35 days, that being by 16 January 2013.
The application before this Court was not filed until 11 August 2014. This was 607 days after the Tribunal Decision, and the application is therefore 572 days outside of the 35 day period permitted by the Migration Act. The applicant has therefore made the Extension of Time Application.
In support of the Extension of Time Application, the applicant says that his application was delayed by lack of funds, limited English ability, refusals from pro bono agencies, and legal advice that his application lacked merit: Applicant’s Affidavit at [9]-[24]. The applicant otherwise relies on the claimed merit of the Amended Proposed Judicial Review Application.
Applicant’s submissions
The applicant submitted that:
a)section 477(2) of the Migration Act provides that the Court may order that the period for filing a judicial review application be extended as the Court sees appropriate, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order;
b)rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that an application must be supported by an affidavit explaining the delay and showing why it is in the interests of the administration of justice that an extension be allowed. The applicant has filed such an affidavit: see Applicant’s Affidavit;
c)on an extension of time application in migration judicial review proceedings the Court has generally considered the factors identified in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) as relevant, namely:
i)whether an acceptable explanation for the delay is being offered, and whether it would be fair and equitable in all circumstances to extend the time; and
ii)the merits of the substantive application;
d)it is generally accepted by this Court that the non-exhaustive list of factors to be considered in determining whether an extension is in the interests of the administration of justice include the following: Tang v Minister for Immigration & Citizenship [2013] FCA 824:
i)extent of any delay;
ii)reasons for the delay;
iii)prejudice to the respondents;
iv)impact on the applicant should time not be extended;
v)merits of the proposed substantive application; and
vi)general discretion of the Court; and
e)the applicant concedes that there has been a significant delay in bringing the Proposed Judicial Review Application, but submits that in the interests of the administration of justice, granting an extension is warranted because of the following key points:
i)on 17 December 2012 the applicant was informed that legal fees would be in the region of $8,000 if he was to apply for judicial review of the Tribunal Decision, but the applicant could not afford these fees, and he sought assistance from the Law Society of Western Australia (“Law Society”);
ii)on 3 May 2013 the applicant was advised by Law Access (part of the Law Society) that his case had been assessed as not having sufficient legal merit, and as a result, the applicant was refused pro bono legal assistance;
iii)in or about June 2013, the applicant visited Case for Refugees where he was advised they could not provide legal assistance for his case;
iv)after refusal from pro bono agencies, the applicant sought financial assistance from his friends and his brother, who could not assist, nor could the applicant borrow money from a bank to pay for a private lawyer;
v)on 30 July 2014, the applicant attended the offices of the Department of Immigration & Border Protection (“Department”) and was advised he would require a travel document to leave Australia by the first week of September 2014, whereupon contact was made with a private lawyer who referred him to the lawyer presently on the record for the applicant, who sought the opinion of a barrister;
vi)these practitioners have taken the applicant’s case at rates below market and below the Court’s Scale of Costs, allowing the case to proceed;
vii)the applicant has very limited English language skills and has had limited schooling;
viii)in DZAFG v Minister for Immigration & Anor [2015] FCCA 168 (“DZAFG”) the Court dealt with a longer delay, and concluded that if the applicant had been able to establish an arguable case then that would have outweighed “the inadequacy of the delay”: DZAFG at [34(a)] per Judge Harland;
ix)that, while the delay is extensive, it is adequately explained, and taking into account the circumstances of the case, the interests of justice require that an extension be allowed; and
x)while the delay is significant, it is respectfully submitted that, unlike DZAFG, there is a reasonable explanation for that delay, and well-articulated grounds of judicial review.
Minister’s submissions
The Minister submitted that:
a)the delay in this case is significant and the explanation for it is unsatisfactory, and on this basis alone, the Minister opposes the application for an extension of time;
b)in WZANX v Minister for Immigration & Anor [2009] FMCA 1010 (“WZANX”) at [13] per Lucev FM it was observed, in refusing an application for extension of time, that there was “a long delay, more than twice the specified statutory period”. Here, by contrast, the delay in making the application was more than 17 times the specified statutory period;
c)section 477(2) of the Migration Act provides that the Court may, by order, extend the 35 day period if the applicant has made an application for that order in writing specifying why the applicant considers that it is “necessary in the interests of the administration of justice” to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The “interests of the administration of justice” is different to “the interests of justice”: see WZANW v Minister for Immigration & Anor [2009] FMCA 1075 (“WZANW”) at [25] per Lucev FM; WZANX at [11] per Lucev FM.
d)in Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) the High Court discussed the principles governing applications for the enlargement of time under the High Court Rules. Those principles are relevantly analogous to those that apply to applications for an extension under s.477(2) of the Migration Act. In summary, the High Court said that:
i)the grant of an enlargement of time is not automatic;
ii)a case “would need to be exceptional” before the time for commencing proceedings was enlarged by many months;
iii)an extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension;
iv)in deciding whether or not to enlarge time, the Court may take into account the explanation for the delay in commencing proceedings, and the applicant’s prospects of success in the proceedings;
v)the constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions;
vi)the “rules of court must prima facie be obeyed”; and
vii)the periods for applying for mandamus and certiorari give a person affected by an adverse decision of judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of the proceedings in this Court (emphasis added in the Minister’s submissions);
e)in a similar vein, the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”), CLR at 552-553 per McHugh J, after examining the rationale for limitation provisions, said that:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. (emphasis added in Minister’s submissions);
f)having regard to the above principles, in circumstances where the limitation period selected by the legislature in order to balance the various competing interests is just 35 days, and where an applicant has delayed in commencing proceedings for more than one and a half years, it would require an extraordinary or exceptional case before an extension of time should be granted. It would be a fundamental error if the Court was to put the length of the delay aside, and to focus primarily on the merits of the proposed challenge or on questions of prejudice to the Minister. To approach the issue in that way would ignore the balance of public interest that Parliament has struck in enacting s.477(1) of the Migration Act;
g)the length of the delay here is so great that the merits of the application are of limited significance. Limitation periods do not exist only to bar actions that would fail on the merits in any event: DZAFG at [34] per Judge Harland, relied upon by the applicant. In DZAFG the applicant was 812 days late in filing his application to review the Tribunal’s decision. In DZAFG the Court considered the delay was a significant one and the explanation inadequate, but stated that if the applicant had been able to establish an “arguable case” then that would have outweighed the inadequacy of the delay: DZAFG at [34(a)] per Judge Harland. The Court had earlier noted: DZAFG at [17], that the submission of counsel for the Minister that the applicant’s failure to give reasons for the delay meant that the application must fail without the need to go further and consider whether or not the applicant had an arguable case, and that in SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 (“SZTDM”) Judge Cameron referred to similar submissions made by the Minister in that case at [20]. In DZAFG at [19] per Judge Harland, the Court observed that in SZTDM the Court had rejected that submission, and had said that in a case where the primary application had merit, justice would require that that consideration be given priority as opposed to the delay;
h)if an “arguable case” is sufficient to outweigh very lengthy delay, then limitation periods are deprived of any meaningful effect. They become simply an additional bar to cases that would fail in any event. As such, they would do nothing more than produce additional, but ultimately pointless, legal arguments, the only effect of which would be to increase costs. That is not how limitation periods work. As was recognised in Brisbane South Regional Health Authority, where the period selected by Parliament as the appropriate limitation period is exceeded, the limitation period may often result in a “good cause of action being defeated”. A limitation period prevents a respondent from being required to litigate a claim that is brought substantially out of time, irrespective of its merits, at least unless the case is shown to be of an “exceptional” kind;
i)that is not to deny that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused: Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479. But, as was said in Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J (in refusing a request for an 18 month extension of time to challenge a visa cancellation decision):
The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time. (Emphasis added)
j)on the facts of this case, there is no satisfactory, let alone persuasive, explanation for the full extent of the delay of 572 days. Nor is this case an “exceptional” one which would warrant excusing the inordinate delay in making the application and the lack of a satisfactory explanation for that delay;
k)the applicant was not in immigration detention at the time of the Tribunal Decision, and he was advised of the negative Tribunal Decision on 17 December 2012, and a copy of the Tribunal Decision and reasons were posted to him on that date: Applicant’s Affidavit at [9] and Annexure “A”;
l)the applicant’s evidence is that after he was unable to obtain legal assistance from Law Access and Case for Refugees he “didn’t know which lawyer I could see who would charge a sum I could afford”, and that he was unable to borrow money to pay the legal fees: Applicant’s Affidavit at [20]-[24]. It is well established that reasons of this kind are not a sufficient justification for failure to lodge an application for review within time: Tran at [35] per Wigney J; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [11] per Judge Lucev;
m)a delay of the magnitude of 572 days is so inordinate that it is, by itself, a compelling reason to refuse the application for an extension of time. In Jarosek v Department of Immigration [2006] FMCA 1048 at [27] per Walters FM, the Federal Magistrates Court found that a delay of approximately 12 months in that matter was inordinate. In Tran, a delay of 18 months was found to be “excessive”, and the absence of any satisfactory explanation for the delay would “itself be a sufficient basis” to refuse the extension of time. In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [14] per Judge Lucev, the Court described a delay of 74 days in filing the application to the Court as “substantial”. In WZANW at [28] per Judge Lucev, it was said that 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) where there is no reason for the delay;
n)the delay of 572 days in filing the Proposed Judicial Review Application, in the absence of an extremely powerful explanation, is itself a sufficient basis to refuse the Extension of Time Application, and here, not only is there no such powerful explanation, there is no satisfactory explanation for this inordinate delay;
o)the Court should not accept the assertions in the applicant’s outline of submissions at [25]-[26] that the extensive delay is “adequately explained” and that there is a “reasonable explanation” for it. The evidence shows that shortly after the time of the Tribunal Decision the applicant was advised of the Tribunal Decision by his then legal representatives who provided him with a copy of the Tribunal Decision. There is, however, no evidence:
i)as to when the applicant made his unsuccessful application to Law Access for assistance with respect to the Tribunal Decision;
ii)that between June 2013 and July 2014 he “tried to borrow money”; and
iii)that on being told by the Department on 30 July 2014 that he would have to leave by the first week of September 2014 his brother “immediately contacted” a firm of lawyers (emphasis added in Minister’s submissions);
p)the applicant’s unsatisfactory explanation for a delay of such a great length, and the matter not being of an exceptional kind, has the consequence that the Court should refuse the extension of time without any need to examine the merits of the Tribunal Decision, as was the case in Tran; and
q)rule 44.05(2)(c) of the FCC Rules requires that where an extension of time is sought the supporting affidavit must include the evidence explaining the delay. The applicant’s affidavit does not provide evidence explaining the delay of 572 days.
Consideration – Extension of Time Application
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
a)the length or extent of delay;
b)the reason for the delay;
c)any prejudice to the opposing party; and
d)the merits of the proposed application.
Hunter Valley Developments, FCR at 348-349 per Wilcox J.
Under s.477(1) of the Migration Act an application to this Court for judicial review must be made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 12 December 2012, and therefore the applicant was required to file his Proposed Judicial Review Application by 16 January 2013. Having not lodged his Proposed Judicial Review Application until 11 August 2014 the applicant is 572 days out of time.
The Court may make an order extending the 35 day time limit in which to accept the Proposed Judicial Review Application if, pursuant to s.477(2) of the Migration Act:
(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.
Regard must be had to r.44.05(2) of the FCC Rules which states that:
(2) An application must be supported by an affidavit including:
(a) …; and
(b) …; 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.
Length of and reason for the delay
In considering the length of the delay in making the Proposed Judicial Review Application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, the Court 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 (“SZOBL”) at [35] per Gilmour J (dismissing an 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 (“SZANS”) 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 (“Suh”) at [29] per Spender, Buchanan and Perram JJ. The summary demonstrates the error in the observations made in cases such as DZAFG and SZTDM, where, as the applicant’s submissions suggest, this Court has made observations that time might be extended notwithstanding extensive delay merely because a proposed application for judicial review had arguable merit. That is not the law, and as Marks 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, and so, as Tran observes, delay alone may defeat some claims.
The Court also notes that both DZAFG and SZTDM were extempore decisions given in relation to injunction applications to prevent a person being removed from the Commonwealth, and in DZAFG in circumstances where no application for review had been considered by the then Refugee Review Tribunal. In neither DZAFG nor SZTDM was any reference made to Marks or Brisbane South Regional Health Authority. The observation in both SZTDM at [20] per Judge Cameron and DZAFG at [34(a)] per Judge Harland to the effect that because a proposed application for judicial review has merit, justice would require that consideration of the merit be given priority over the question of delay, runs directly counter to the observations of the High Court in both Marks and Brisbane South Regional Health Authority, and ought not to be followed, as in the Court’s view, those observations are plainly wrong. For the above reasons, the Court will not follow what was decided in DZAFG or SZTDM. Indeed, the Court is bound not to, but rather to follow otherwise binding High Court and Federal Court authority: see SZANS; Suh, that authority being the cases set out above: see Marks, Brisbane South Regional Health Authority, Tran and SZOBL.
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.
This is a case in which, in the Court’s view, the delay alone in bringing the Proposed Judicial Review Application is so lengthy that, of itself, it justifies not granting the Extension of Time Application.
The applicant’s failure to make an application for judicial review to this Court earlier is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, the application for an extension of time proceeds on a false premise which is again inconsistent with previous authority of the High Court, the Federal Court and this Court.
In Marks at [17] per McHugh J the High Court observed as follows:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that:
… there is no right to legal representation in migration proceedings in this Court. …
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J.
Albeit that it was not a protection visa case, there are some similarities between this case and Tran where the Federal Court found the explanation for the delay to be neither adequate nor satisfactory: Tran at [35] per Wigney J. In Tran the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:
33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].
38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
The facts in Tran are so similar to those in this case that the above passages in Tran can readily be applied to the present case. It follows therefore that the inability to obtain legal advice or legal representation in relation to the Tribunal Decision, and whether an application for judicial review ought to be lodged, does not explain the delay in this case. It certainly does not explain the length of the delay in this case. In any event, the applicant did receive legal advice from Law Access within six months of the Tribunal Decision being made to the effect that his claims had “insufficient prospects of success”.
It also needs to be borne in mind that the applicant was sent an information sheet by the Tribunal headed “Information about Tribunal Decisions”, together with the notification of the Tribunal Decision dated 13 December 2012, in which it was indicated that if he thought the Tribunal Decision was wrong in law he may seek judicial review in the then Federal Magistrates Court: CB 267.
In this case, the applicant knew that the Tribunal Decision was not to grant him the Protection Visa, even if he did not understand the reasons for the refusal to grant the Protection Visa. Furthermore, the applicant was advised by the Tribunal at the time of sending the Tribunal Decision that he could seek judicial review, and it can be inferred that he understood that because he then sought advice from Law Access. The applicant does not recall “the exact date”: Applicant’s Affidavit at [14], on which “the form for pro bono assistance”: Applicant’s Affidavit at [13], was sent to Law Access, but the applicant does not give evidence as to an approximate time at which that form was sent. It is thus not discernible when the applicant (who was being assisted by his brother, a permanent resident of Australia: Applicant’s Affidavit at [6] and [13]) actually made the approach to Law Access, and whether it was made promptly. Following the advice and the refusal of assistance from Law Access on 3 May 2013, the applicant was further advised that it was possible to apply for judicial review of the Tribunal Decision. He was advised to that effect by Law Access when refusing his application for assistance, the Law Access letter of 3 May 2013 making it plain that the applicant had the options of making his own application to this Court for judicial review or of hiring a lawyer at his own expense to assist him: Applicant’s Affidavit at Annexure A. The applicant, with the assistance of his brother, was then driven to Case for Refugees in or about June 2013, and thus, depending on when in June 2013 this was done, there was a further delay of between one and two months approximately before approaching Case for Refugees. Case for Refugees, having looked at the Tribunal Decision, indicated they could not accept the applicant’s case, and did so in circumstances where they said they were already aware of the case as they had been contacted by another lawyer about it: Applicant’s Affidavit at [17]-[18]. There then follows a long period, of approximately 13 months, between June 2013 and July 2014, when the applicant says that he tried to borrow money from a few Afghanis, and that it was not possible for him to approach a bank to borrow the money, and that his brother did not have the money, so he could not fund a lawyer to run his case: Applicant’s Affidavit at [21]-[24]. There was no further endeavour, or contact with, a lawyer until the Department began to make arrangements to remove the applicant from Australia, and even then the initial contact with lawyers was made by the applicant’s brother: Applicant’s Affidavit at [26]. There was, therefore, effectively a period of approximately 13 months when the applicant did little to nothing but try to borrow an unspecified sum of money from “a few [unspecified] Afghanis”: Applicant’s Affidavit at [22].
Insofar as the applicant complains that he does not understand English, that is not uncommon, and indeed probably more common than not, in applications to this Court for judicial review of decisions of the Tribunal concerning protection visa applications involving self-represented litigants. In relation to the applicant’s English language skills there is no evidence that the applicant is in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. Notwithstanding the fact that the applicant has limited English ability, and did not initially have the services of a lawyer, and that these are matters which require some consideration: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J, they do not of themselves explain the delay, and the Court nevertheless needs to be cautious in placing too much reliance on matters like these lest too ready an acceptance of them makes an extension of time the rule, and not the exception, on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority CLR at 553 per McHugh J. Further, it needs to be remembered that upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of that decision: Marks at [17] per McHugh J. In this case that is a very significant factor where the delay in making the Proposed Judicial Review Application is 572 days, being more than 16 times the statutory limitation period. That is a very significant factor when regard is had to the fact that it appears the applicant was made aware by the lawyers who represented him at the Tribunal Hearing of the time limitation period, or at least the availability of judicial review in this Court, from 17 December 2012 (just five days after the making of the Tribunal Decision): Applicant’s Affidavit at [10]-[12] and Annexure A. Likewise, the advice from Law Access was that the applicant could file an application himself (albeit that it referred to the Federal Court rather than this Court), and that advice was given on 3 May 2013: Applicant’s Affidavit at [15]-[16] at Annexure B.
Ignorance of time limits is seemingly not pleaded here, but, in any event, without any further justification, it is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 (“SZSDA”) at [38] per Foster J. As the Federal Court observed in SZSDA at [38] per Foster J:
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…
There is simply no explanation as to why the applicant did not, as many others do, file a judicial review application without the assistance of a lawyer. Furthermore, there was no explanation as to why his brother, a permanent resident of Australia, was not able to assist him to do so. There is, after the advice from Law Access and Case for Refugees, a significant period of approximately 13 months in which no action was taken, and in which no discernible sense of urgency in relation to the applicant’s situation was exhibited by the applicant. During almost the entirety of the period of delay, the applicant was aware, or should have been aware, that he was able to file a judicial review application himself: CB 267; Applicant’s Affidavit, Annexure A. It was not until the applicant was told that arrangements were being made to remove him from Australia that the applicant was moved to take more urgent action.
It is also relevant to observe that the applicant was not in immigration detention during the relevant period: Transcript, page 4, and was thus free to make such enquiries as he saw fit with respect to the issue of his immigration status.
Having regard to the matters set out immediately above the Court considers that a lack of legal representation, a lack of access to legal advice, and being non-English speaking, does not constitute a proper explanation for delay, and certainly not a delay of 572 days in making the Proposed Judicial Review Application. Further, there is simply not the necessary degree of persuasiveness in the explanation sufficient to explain such an excessive delay: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185 at 195 per Lockhart, Sheppard and Burchett JJ.
The length of the delay in this case is sufficient of itself in the Court’s view to warrant not exercising the discretion to extend time, but the length of the delay and the failure to provide an adequate explanation for the whole, or at least a very significant part of the delay, also warrants the Court not exercising the discretion to extend time.
Prejudice to the Minister
There is prejudice to the Minister arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the Proposed Judicial Review Application. The Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his, or, more formally that the Minister had “a vested right to retain the judgment or decision”: Marks at [17] per McHugh J. In those circumstances there is additional prejudice to the Minister by reason of the costs incurred as a consequence of the filing of the Proposed Judicial Review Application, and the Amended Proposed Judicial Review Application, and consequent hearing on 31 July 2015. There is no evidence that the applicant is in funds to meet any award of costs against him, and the Court infers from the Applicant’s Affidavit and the evidence there given of the applicant’s relative impecuniosity that any award of costs would likely not be met by the applicant.
In the above circumstances the prejudice to the Minister weighs against the grant of the Extension of Time Application.
Merits of the Amended Proposed Judicial Review Application
On 4 February 2015 the applicant filed the Amended Proposed Judicial Review Application containing grounds 1-4, 4A, 5 and 6. At hearing grounds 5 and 6 were not pressed: Transcript, p.12. Grounds 1-4 and 4A are set out below.
Ground 1
1. The Tribunal made a jurisdictional error by finding that the applicant does not face a real chance of serious harm in Afghanistan without considering the applicant's claim that he faced a real chance of persecution in Afghanistan generally through working as a truck driver.
Ground 2
2. The Tribunal made a jurisdictional error as identified in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 by failing to consider the question whether the applicant could reasonably be expected to remain in Kabul and not drive on the roads out of Kabul in the course of his employment.
Ground 3
3. The Tribunal failed to consider an integer of the applicant's claim for protection under the Convention: that his claim of fearing persecution in Afghanistan by reason of his Hazara ethnicity was aggravated by the risk that he would be persecuted for having worked for an NGO as a truck driver.
Ground 4
4. The Tribunal made a jurisdictional error by finding that the applicant 'has an established social network in Kabul' ([117]), and, 'is a resourceful man with assets and experience in the construction industry, with contacts and networks that will be able to provide him with appropriate support’, without having received from the applicant any evidence on those points, or having asked him to provide any such evidence, particularly in relation to the question whether the applicant would be able to secure non-truck driving work in Kabul.
Ground 4A
4A. In the alternative to Ground 4, the Tribunal denied the applicant procedural fairness by finding that the applicant 'has an established social network in Kabul' ([117]), and, 'is a resourceful man with assets and experience in the construction industry, with contacts and networks that will be able to provide him with appropriate support' ([118]) in relation to his employment, without putting those propositions to the applicant for comment.
It is not necessary for the applicant to positively establish that he will succeed on the Amended Proposed Judicial Review Application at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the Amended Proposed Judicial Review Application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J, 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 at [6] per Mortimer J; SZSDA at [39] per Foster J. 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, reveal 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 merit: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: 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 J. This Court does not have the jurisdiction to review the merits of the Tribunal Decision or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (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.
The applicant submits that the merits of the Amended Proposed Judicial Review Application are such that the Extension of Time Application ought to be granted. The Court has considered below the grounds of review in the Amended Proposed Judicial Review Application for the purposes of determining whether the Extension of Time Application ought to be granted in accordance with the principles referred to at [38] above.
Ground 1
Particulars (b)-(f) of ground 1 simply set out various findings of the Tribunal at CB 256-257 at [104]-[106], 260 at [118] and 261 at [126], whilst particulars (a) and (g) are as follows:
(a) In his protection visa application the applicant claimed that he could not work in anywhere in Afghanistan as a truck driver following the incident involving Taliban on the road in … [name of area deleted] and the confiscation by the Taliban of the applicant’s truck and drivers licence;
(g) However, the Tribunal failed to consider and make any finding on the applicant’s claim that, for Convention-based reasons, he was unable to return to his usual employment as a truck driver in any town or district in Afghanistan, including Kabul.
Applicant’s submissions
In relation to ground 1 the applicant submitted that:
a)the Tribunal, when making the Tribunal Decision, dismissed the applicant’s evidence that he believed that the Taliban had spies watching him and that the Taliban were targeting him, and instead, the Tribunal found it was more likely that the Taliban was interested in the truck (and presumably its contents), rather than the applicant. Consequently, the Tribunal found that the applicant was not personally targeted by the Taliban: CB 257 at [105];
b)a finding that the Taliban were more interested in the truck, rather than the applicant, raises serious concern about whether the mere driving of a truck in that region of Afghanistan is dangerous and would expose the applicant to a risk of harm from the Taliban; and
c)consequently, it was incumbent on the Tribunal to consider whether the applicant was at risk on account of his work driving trucks where that claim would be consistent with the Tribunal’s findings that the applicant was not personally targeted on the day in issue but rather was targeted on account of his being the driver of a truck driving through the area concerned.
At the hearing the applicant made further submissions that:
a)the applicant expressed a desire or wish not to return to truck driving, but because he lacked skills he may have to return to truck driving; and
b)the applicant’s statements to the Tribunal and in his submissions should not have been taken as a categorical denial of his intentions or future conduct.
Minister’s submissions
The Minister submitted that:
a)there is no substance to this ground of review;
b)in the written submissions filed on behalf of the applicant and in his oral evidence at the Tribunal hearing, the applicant expressly stated that he had lost his truck and would not return to truck driving: CB 184 and 241 [42]-[43]; Thomas Affidavit, Annexure A, page 21;
c)the applicant did not advance a claim to have a well-founded fear of persecution in Afghanistan generally “through working as a truck driver”. In the submission document provided to the Tribunal by the applicant’s lawyers, it was submitted that the applicant feared persecution arising from his Shia religion, his ethnicity as a Hazara, his membership of particular social groups, namely as a physically identifiable Hazara Shia, and as an asylum seeker in Australia, and arising from an imputed political opinion because he will be deemed by the Taliban to have worked for a pro-western NGO associated with the rebuilding aims of the central Government: CB 167-174;
d)the Tribunal was not required to consider and make findings as to whether the applicant would face a real chance of persecution in Afghanistan generally through working as a truck driver if he was to return to Afghanistan;
e)in any event, the Tribunal did consider whether the applicant would face a real chance of persecution in Afghanistan through working as a truck driver in the future. Although the Tribunal did not make any specific findings in relation to the risk to the applicant if he continued to work as a truck driver, it referred to and considered country information reports in relation to the position of truck drivers generally, and specifically in driving a truck for an NGO or an Afghan government associated entity, in considering the applicant’s claims in relation to imputed political opinion as a result of his truck driving work for an NGO or Afghan company with a government contract. The Tribunal made findings that the Taliban are not seeking to locate the applicant for this reason, and that he does not face a real chance of serious harm for this reason, and therefore does not have a well-founded fear of persecution on the basis of an imputed political opinion: CB 255 [101] and 259 [113]-[115];
f)particular (g) of ground 1, contends that the Tribunal failed to consider and make any finding on the applicant’s claim that, for Convention-based reasons, he was unable to return to his usual employment as a truck driver in any town or district in Afghanistan, including Kabul. This is a different claim to that raised in Ground 1 itself;
g)in any event, no jurisdictional error is established in relation to particular (g). The applicant did not claim that being unable to return to his usual occupation as a truck driver, in itself, constituted persecution for a Convention reason. He did, however, contend that he could experience severe financial hardship if returned to Afghanistan for a number of reasons, including his unwillingness to return to driving: CB 184. Those claims were considered and addressed by the Tribunal at CB 241 at [43], 260 at [118] and 262 at [130]; and
h)alternatively, even if the applicant could be said to have made a claim that being unable to return to his usual occupation as a truck driver, in itself, constituted persecution for a Convention reason, such a claim was clearly rejected by the Tribunal in dealing with the applicant’s claim based on imputed political opinion by reason of his driving a truck for an NGO or Afghan company: CB 259 at [115].
Consideration – ground 1
The applicant told the Tribunal that he would not drive trucks if he returned to Afghanistan: CB 184 and 241 at [42]-[43]; Thomas Affidavit, Annexure A, pages 21 and 23. Further, the applicant’s position that he would not drive trucks in Afghanistan in the future formed the basis of one of his express claims that the Tribunal should not consider whether or not he could return to Kabul: CB 179 and 184. The Tribunal was therefore under no obligation to consider the applicant’s chance of persecution because of his work as a truck driver because he did not make that claim. In the circumstances, and for the purposes of the Extension of Time Application, it follows in the Court’s view that this aspect of ground 1 is not reasonably arguable and has no reasonable prospect of success.
To the extent that the Tribunal considered the applicant may have made a claim in relation to being unable to return to his usual occupation as a truck driver, the Tribunal’s reasoning in relation to the applicant’s claim based on imputed political opinion by reason of his truck driving is sufficient to find that particular (g) of ground 1 is not reasonably arguable or has no reasonable prospect of success, the Tribunal’s finding in that respect being one that was open to it on the facts established at the Tribunal Hearing. It is plain in any event that to the extent that it considered whether or not the applicant might return to his usual occupation as a truck driver, that the Tribunal rejected that any suggestion that doing so would give rise to a well-founded fear of persecution for a Convention reason, and in particular, a political opinion imputed to the applicant because he was a truck driver for an NGO or an Afghan company: CB 259 at [115].
In the above circumstances, for the purposes of the Extension of Time Application, the Court is of the view that ground 1 is not reasonably arguable and has no reasonable prospect of success.
Ground 2
Particulars (a) and (b) set out the evidence that the applicant gave to the Tribunal, as recited by the Tribunal at CB 241 at [42] and [43], and at particular (c) it is said that:
The Tribunal failed to consider whether it was reasonable for the applicant to remain and work in Kabul, having regard to the circumstances in which that would place him.
The Tribunal Decision at CB 241 at [42] and [43] as referred to in particulars (a) and (b) is as follows:
42. The Tribunal asked the applicant about the submission that he would not return to driving in Kabul. The applicant stated that he had lost his truck and that he feared returning to Kabul, the Taliban had spies in Kabul and he did not want to draw attention to himself by driving around.
43. The applicant’s advisor made a submission to the difficulties for the applicant on return to Kabul. He stated that the applicant wanted to take his family out of Kabul but that the applicant’s children's age and lack of support from his family made it difficult to move them. He stated that the applicant did not return to driving, that he lacked experience and has limited schooling to do other work, and that due to the saturation of the labour force the applicant would not be able to provide [for] his family. The advisor stated that financial difficulties had led to the applicant taking on more dangerous work for the company, and so the loss of truck on this opportunity made things even more difficult. He stated that the applicant had sold half his land to leave and this created further financial strains. He stated that the culture in Kabul meant that if the applicant returned information that he had been in Australia be spread amongst the local population and that he would face a risk as a returnee from the Taliban.
Applicant’s submissions
The applicant submitted that:
a)the evidence before the Tribunal was that the applicant was a truck driver, and it is therefore to be expected that he would be likely to travel outside of Kabul in the course of his employment as the applicant had done for a number of years;
b)in this case, the Tribunal gave no consideration to:
i)whether the applicant could be reasonably expected to remain inside Kabul and not drive on roads outside of Kabul; or
ii)what the effects of confining the applicant to Kabul would have been, and nor does it appear that the Tribunal put such a proposition to the applicant;
c)had these issues been addressed properly, they may have raised various other issues for the Tribunal’s consideration. In this case, much like in Minister for Immigration & Border Protection v SZSCA & Anor [2014] HCA 45; (2014) 254 CLR 317; (2014) 89 ALJR 47; (2014) 314 ALR 514 (“SZSCA”), the question of the applicant’s ability to earn an income from other sources to meet his needs and those of his family arises: SZSCA at [31] per French CJ, Hayne, Kiefel and Keane JJ; and
d)the failure by the Tribunal is not merely one of procedural fairness, but meant that the Tribunal could not make a final determination as to whether there was a well-founded fear of persecution, which is an error of law: SZSCA at [33] per French CJ, Hayne, Kiefel and Keane JJ.
Minister’s submissions
In contending that this ground is not made out the Minister submitted that:
a)the Tribunal, at CB 262 at [130], expressly stated that it was “reasonable to expect that the applicant will return to work in Kabul and thus would not be at risk on the roads out of Kabul, as he has described in the loss of his truck”;
b)the applicant here, unlike the respondent in SZSCA, appears to have worked as a truck driver outside Kabul for only a short period of less than a week in June 2011 (contrary to the claim in paragraph 36 of the applicant’s outline of submissions that it was to be expected that the applicant would be likely to travel outside of Kabul in the course of his employment as a truck driver “as the applicant had done for a number of years”). There is no evidence that the applicant was regularly employed outside Kabul, and it was clearly open to the Tribunal to consider it reasonable that the applicant would return to work in Kabul where he had previously worked as a taxi driver and a truck driver: CB 238-239 at [28]-[29]; Thomas Affidavit, Annexure A at pages 9-11; and
c)in SZSCA the Tribunal had accepted that a Taliban letter that threatened the respondent was genuine, and that he was threatened by it, and that if the respondent was again intercepted by the Taliban on the roads on which he usually travelled (in his work as a self-employed truck driver) he would face a real chance of serious harm and even death for a reason specified in the Refugees Convention: SZSCA at [9] per French CJ, Hayne, Kiefel and Keane JJ. By contrast here, the Tribunal made no such finding, and to the contrary, found that the Taliban were not seeking to locate the applicant due to his driving of a vehicle for an NGO or Afghan company with a government contract, and that he did not face serious harm for this reason: CB 259 at [115].
Consideration – ground 2
Ground 2 relates to whether the Tribunal failed to consider whether the applicant could reasonably be expected to remain in Kabul and not drive on the roads out of Kabul in the course of his employment, and contends that the Tribunal failed to consider that question. This ground is based on the High Court judgment in SZSCA.
It cannot be said that the Tribunal did not, firstly, seek information from the applicant as to what he would do if he did not return to driving in Kabul, and, secondly, did not make factual findings concerning the work that the applicant might undertake if he returned to Kabul. In that regard, it is relevant to observe that:
a)the Tribunal asked the applicant about not returning to driving in Kabul, and the applicant’s fears in that regard: CB 241 at [42];
b)the applicant’s lawyers made a submission about the difficulties for the applicant if he were to return to Kabul, including his non-return to driving and the possibility that he would not be able to provide for his family: CB 241 at [43];
c)the Tribunal specifically considered the foregoing issues in the context of “where the applicant would be returning to” at CB 260 at [117], noting that he had been “a long term resident of Kabul, owns land there, and has been employed in a number of different positions, and worked, as a contractor, across a number of construction sites until just before leaving Afghanistan”, and further that he had “an established social network in Kabul”;
d)the Tribunal specifically considered the question of whether the applicant would be able to support himself and his family adequately on his return, noting that it considered the applicant was “a resourceful man with assets and experience in the construction industry, with contacts and networks that will be able to provide him with appropriate support”: CB 260 at [118];
e)the Tribunal noted that the applicant would be “returning to Kabul, where he has lived and worked for a significant period of his life”, and that he “does not have a vehicle, and in the evidence that the applicant, does not want to return to such a job [that is, truck driving]”: CB 262 at [130]; and
f)the Tribunal found that the applicant would be able to return to Kabul, where he “has a significant connection … having worked and lived in Kabul for a significant number of years” and where he “owns land … where he has a house” and “has worked with a number of different people who will be able to provide him with further opportunities for employment” and in respect of which “over the time he has lived in Kabul the applicant would have developed an extensive network of contacts and social interaction, which he would be able to rely upon on return to Kabul”: CB 261 at [133].
It follows from what is set out immediately above that there was no failure by the Tribunal to consider whether the applicant could reasonably be expected to remain in Kabul for the purposes of employment if he returned to Afghanistan.
In relation to the reliance on SZSCA, it suffices to observe that SZSCA is distinguishable because:
a)it was based on a different factual foundation, and in particular a finding by the Tribunal that the applicant would face a real chance of serious harm, and possibly death, for a reason specified in the Refugees Convention if the applicant in SZSCA was again found by the Taliban on the roads outside of Kabul, whereas here the Tribunal has made a finding, open to it on the facts, that there is no such real chance of serious harm to the applicant: CB 260 at [120]; and
b)there was plainly enough material before the Tribunal in relation to the applicant’s wife, who lived in Kabul, his children who went to school in Kabul, and the applicant’s work, particularly in the construction and transport industries, for the Tribunal to conclude that the applicant had social networks which would facilitate his employment in Kabul.
In all of the above circumstances, and for the purposes of the Extension of Time Application, the Court is of the view that ground 2 is not reasonably arguable and has no reasonable prospect of success.
Ground 3
The particulars to ground 3 are as follows:
(a) The applicant claimed protection on the basis of his Hazara ethnicity;
(b) The submission to the Tribunal prepared for the applicant by BMA Lawyers dated 16/11/2012 referred to the applicant’s prior work with an NGO as an additional risk factor to the applicant’s profile (p 8, 13);
(c) The Tribunal considered the applicant’s ‘Hazara Shia’ and ‘Working for an NGO/Afghan Company’ claims under separate headings (p 25-26);
(d) The Tribunal did not consider under the above headings whether the applicant’s Hazara Ethnicity posed an additional risk for the applicant in his employment as a truck driver in Afghanistan working for an NGO/private company.
Applicant’s submissions
The applicant submitted that:
a)the applicant claimed protection on the basis of his ethnicity, Hazara (along with his religion, Shia), and also claimed that his fear of persecution was increased or aggravated by his working for an NGO in Afghanistan;
b)in particular, the applicant made the following submission to the Tribunal at CB 173:
In accordance with the country information stated herein it confirms that being part of a minority ethnic group, which has had a history of discrimination, makes the Applicant a primary target for attack. These groups target Hazaras with impunity, knowing that Hazaras do not have any recourse and will not be given any assistance from the authorities. It is especially so if there is a certain profile that the individual holds, such as, in this case, prior work with an NGO.
c)the Tribunal dealt with the applicant’s claim of a fear of persecution on the basis of his ethnicity at CB 257-258 at [107]-[110] where it found:
The overall weight of the country information indicates that there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis. (emphasis added)
d)the use of the words “general campaign” is of particular relevance: the applicant’s claims included a claim that his fear of persecution, on account of his ethnicity, was aggravated by reason of his work for the NGO, and for that reason, his claim was more than a fear of persecution based on a general campaign by the Taliban towards persons who are Hazara. Rather, a clearly articulated integer of the applicant’s claim was that he was more likely to be targeted on account of a combination of his ethnicity and his NGO work; and
e)on the face of the Tribunal Decision, this claim was not considered. That is a failure which the applicant contends constitutes a jurisdictional error.
Minister’s submissions
The Minister submitted that:
a)while the Tribunal does not appear to have made an express finding in respect of this issue, a fair reading of the Tribunal Decision, including its findings on the applicant’s claims cumulatively, demonstrates that the Tribunal considered all of the applicant’s relevant circumstances, including his history of driving for the NGO for four days in conjunction with his Hazara ethnicity: CB 260 at [120]; and
b)the Tribunal findings that the Taliban now tend to accept NGO involvement in such projects, and would not therefore have any interest in someone with such low level involvement in those projects, and would not therefore have any ongoing interest in the applicant by reason of his driving a truck for road building purposes, impliedly reject this claim: CB 259 at [113] and [115].
Consideration – ground 3
Ground 3 alleges that the Tribunal failed to consider an integer of the applicant’s Hazara race claim, namely that the risk of harm to him by reason of his Hazara ethnicity would be increased by reason of having worked for a NGO as a truck driver.
It is plain that the Tribunal understood that the applicant was a Shia Hazara, and that before the Second Delegate it had been found that there was no evidence of targeting of Shia Hazaras on a systematic and discriminatory basis in areas where there were substantial populations of Hazara, such as Kabul: CB 236 at [20] and 237 at [22]. The Court notes that the Tribunal asked the applicant if he had been threatened in Kabul, and the applicant had said that he had not been, and that since he had left he had not heard of any other threats made to his family: CB 240 at [39].
The Tribunal dealt extensively with country information concerning Hazaras in Afghanistan generally: CB 241-244 at [44]-[58], and the position with respect to Hazaras, including Shia Hazaras, in Kabul: CB 244-247 at [59]-[61]. The Tribunal also dealt extensively with the issue of whether or not an association with an NGO might place a person at risk from reprisal by the Taliban: CB 254-255 at [92]-[100], and in that regard, there was significant country information from the Danish Immigration Service, the European Asylum Support Office and the Afghan NGO Safety Office which indicated that the Taliban no longer opposed NGO activities and that there was a general acceptance of NGOs at a field level in most regions of Afghanistan: CB 254-255 at [92]-[96], and that in relation to Kabul an NGO that contacted the Taliban can be allowed to operate by the Taliban: CB 255 at [100].
In its findings and reasons the Tribunal dealt with the applicant’s claims with respect to his being an Hazara Shia and at CB 257 at [107] found that there was no evidence of a general campaign by the Taliban insurgency to target Hazara Shias, or that Hazara’s are being persecuted on a consistent basis. Further, the Tribunal found that the treatment of Hazara Shias by the Taliban did not involve systematic and discriminatory conduct amounting to persecution, and that the applicant would not face a real chance of persecution by reason of being a Hazara, a Shia, or for any imputed political opinion arising out of being a Hazara or Shia, or for the reason of being a member of a particular social group, that being a Hazara Shia: CB 258 at [109]-[110]. The Tribunal also found that the applicant did not face a real chance of serious harm on the basis that the Taliban were seeking to locate the applicant due to his driving of a vehicle for an NGO or an Afghan company with a government contract: CB 259 at [115], and ultimately found that individually and cumulatively the applicant did not have a real chance of serious harm on return to Afghanistan and did not have a well-founded fear of persecution for a Convention reason: CB 260 at [120].
In circumstances where the Tribunal has rejected any prospect that the applicant has a real chance of serious harm on the basis of his being a Hazara, his having worked for an NGO, and being a Hazara Shia living and working in Kabul, the Court considers that the Tribunal can be said to have impliedly rejected the applicant’s claim that he was more likely to be targeted because of his Hazara ethnicity and his NGO work. Further, and in any event, the Court is of the view that the findings that there was no real chance of serious harm arising from the applicant’s Hazara ethnicity, NGO work, or his living and working in Kabul, are findings of greater generality which subsume the specific claim the subject of ground 3: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
In the above circumstances, and for the purposes of the Extension of Time Application, the Court considers that ground 3 is not reasonably arguable and does not have reasonable prospects of success.
Grounds 4 and 4A
There are no particulars to ground 4 or 4A.
Applicant’s submissions
The applicant submitted that:
a)the central thrust of both grounds is that the findings in the Tribunal Decision that the applicant:
i)“has an established social network in Kabul”;
ii)“is a resourceful man with assets and experience in the construction industry, with contacts and networks that will be able to provide him with appropriate support”; and
iii)“will be able to support himself and his family adequately on return”,
were findings that were made without those propositions being put to the applicant for comment or without the applicant being on notice of the likelihood of findings in those terms;
b)if regard is had to the Tribunal hearing transcript: Thomas Affidavit, Annexure A at page 10, the Tribunal questions the applicant about how he could afford his truck and the work he carried out with it, to which the applicant responds that he sold his car and borrowed some money from friends;
c)at the conclusion of the Tribunal hearing: Thomas Affidavit, Annexure A at page 22 and following, the applicant’s submissions refer to the difficulties said to be faced by the applicant, as follows:
as previously indicated, he wouldn’t return to driving, not considering that line of work, and that he would need to consider other types of work, but I submit that his lack of experience with other type of work and his very limited schooling, up to age, to grade three, mean that along with the points in the submission about the saturation of the labour force, and the difficulties in getting employment in Kabul, add to the fact that he wouldn’t be able to provide for himself and his family.
and
It bearing outlining that he has previously mentioned that he was struggling to support his family prior to getting a job with the private company, and that was really what spurred him on in going down that path…
(Thomas Affidavit, Annexure A at page 23);
d)the matters put to the applicant do not, without more, satisfy the requirements of procedural fairness, to justify the findings made in the Tribunal Decision; and
e)the findings ultimately made in the Tribunal Decision are significant findings, which should have been put to the applicant for comment. The Tribunal failed to put those propositions to the applicant but nevertheless made those findings anyway, and that failure is a denial of procedural fairness.
Minister’s submissions
The Minister submitted that:
a)the allegation that the findings in the Tribunal Decision about the applicant’s assets, experience and network in Afghanistan were made without evidence is misconceived. Those findings were based on evidence from the applicant himself as to his history and his move to Kabul. This included evidence that prior to driving a truck in Kabul, he had worked in Kabul as a taxi driver, which had enabled him to accumulate enough money to finance a truck: CB 238-239 at [28]-[29]; Thomas Affidavit, Annexure A at pages 9-10; and
b)the complaint in Ground 4A as to an alleged failure to afford the applicant a hearing on an issue in the review: Migration Act, s.425, is likewise misconceived. The applicant’s ability to find work on his return to Afghanistan was an issue raised on his own claims.
Consideration – grounds 4 and 4A
Both ground 4 and ground 4A are similar. They both allege a failure to accord procedural fairness, albeit manifesting in a different way.
The factual matters the subject of this submission as set out at [66] above are, for the reasons set out at [52] above, all matters which were either:
a)the subject of the applicant’s own evidence, and therefore not susceptible to a denial of procedural fairness; or
b)matters which were put to the applicant in the course of the Tribunal Hearing, as noted in the Tribunal Decision.
In those circumstances, there was no denial of procedural fairness or failure to afford the applicant a hearing for the purposes of s.425 of the Migration Act, or otherwise. It follows that grounds 4 and 4A are not reasonably arguable and do not have reasonable prospects of success.
Conclusions and orders
The Court has concluded that:
a)the length of the 572 day delay in making the Proposed Judicial Review Application, is such that the delay alone in this case is a sufficient basis for dismissal of the Extension of Time Application;
b)the length of the delay in making the Proposed Judicial Review Application, together with the failure to adequately explain that delay, are taken together, also a sufficient basis for dismissal of the Extension of Time Application;
c)the length of the delay in making the Proposed Judicial Review Application, together with the failure to provide an adequate explanation for that delay, and the very significant prejudice to the Minister, are taken together, also a sufficient basis for dismissal of the Extension of Time Application;
d)the grounds of the Proposed Judicial Review Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore extend time: SZSDA at [39] per Foster J; MZZIV at [5] per Mortimer J, but, even if the Proposed Judicial Review Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.477(2) of the Migration Act, finds that the combination of factors referred to in (a), (b) and (c) of this paragraph, would warrant dismissal of the Extension of Time Application in any event, and thus even if the applicant had a good case it would be defeated by the time limitation: Brisbane South Regional Health Authority CLR at 553 per McHugh J; Tran at [38] per Wigney J; and
e)further, the Court is not persuaded, and particularly so having regard to the findings in (a), (b) and (c) of this paragraph, and the notoriously heavy and ongoing case load in the Perth Registry of this Court, that it would be in the interests of the administration of justice under s.477(2) of the Migration Act to extend time in this case.
It follows that there should be an order that the applicant’s Extension of Time Application under s.477(2) of the Migration Act be dismissed.
In circumstances where the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 20 June 2019
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