WZAVH v Minister for Immigration
[2016] FCCA 1020
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1020 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file application – consideration of factors. |
| Legislation: Constitution (Cth), s.75(v) Federal Circuit Court Rules (Cth), r.44.05 Migration Act 1958 (Cth), ss.36(2), 65, 91R, 362B, 420, 425, 425A, 426A, 426B, 430, 474, 476, 477 Migration Regulations 1994 (Cth) |
| Cases cited: BZAER v Minister for Immigration & Anor [2014] FCCA 813 BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 Chen v Minister for Immigration & Anor [2014] FCCA 271 Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 141 ALD 619 Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630 MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 MZZSK v Minister for Immigration & Anor [2014] FCCA 883 SZRUG v Minister for Immigration & Anor [2013] FCCA 142 SZSZW v Minister for Immigration & Border Protection [2015] FCA 562 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Article 1A(2) |
| Applicant: | WZAVH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 408 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 June 2015 |
| Date of Last Submission: | 23 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Blades |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
Pursuant to s.477(2) of the Migration Act 1958 (Cth) the time for filing of the applicant’s application be extended to 16 December 2014.
That a writ of certiorari issue directed to the second respondent quashing its decision dated 8 October 2014.
That a writ of mandamus issue directed to the second respondent requiring it to re-consider and re-determine the application made by the applicant on 3 June 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 408 of 2014
| WZAVH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding commenced on 16 December 2014 by the applicant filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 8 October 2014, is at Court Book (“CB”) 156-162. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).
Section 477(1) of the Migration Act requires that applications seeking judicial review of a Tribunal decision must be made within a 35 day period, unless time to make the application is extended pursuant to s.477(2) of the Migration Act. The Judicial Review Application is 34 days out of time. Accordingly, the applicant requires time to be extended under s.477(2) of the Migration Act and an application to amend time was made in the Judicial Review Application (“Extension of Time Application”).
An amended Judicial Review Application was filed on 15 May 2015 (“Amended Judicial Review Application”) and in addition to amending the grounds of review, also amended the grounds of the Extension of Time Application (“Amended Extension of Time Application”). The grounds of each of the Amended Judicial Review Application and the Amended Extension of Time Application are set out below.
Affidavit evidence
The applicant has filed three affidavits, the first on 16 December 2014, the second on 10 February 2015 and the third on 15 May 2015 (respectively, the “Applicant’s First Affidavit”, “Applicant’s Second Affidavit” and “Applicant’s Third Affidavit”).
The Applicant’s First Affidavit does no more than attach a copy of the Tribunal Decision.
The Applicant’s Second Affidavit was expressly made in support of the Extension of Time Application as it then stood, and provided as follows:
2. Case for Refugees assisted me with my protection visa application.
3. The delegate from the Department of Immigration and Border Protection refused my protection visa through a letter, dated 23 May 20 14.
4. Case for Refugees filed the Refugee Review Tribunal (RRT) review application on 3 June 2014.
5. After not hearing from Case for Refugees or the RRT, I emailed Case for Refugees on 5 Nov 2014 to-find out the date for the RRT hearing. Case for Refugees told me that I needed to contact the RRT directly. A copy of the email dated 5 Nov 2014 is annexed and marked “A”.
6. I then sent an email to the RRT on 18 Nov 2014 enquiring about my hearing. A copy of the email dated 18 Nov 2014 is annexed and marked “B”.
7. I did not receive any response from the RRT.
8. On 8 Dec 2014, I called the RRT but was told my case officer was out of the office.
9. On 9 Dec 2014, I called the RRT again. This time, I spoke with the case officer and he informed me that the case was complete.
10. I asked him why the decision was made without a hearing and he said I did not attend the hearing. I told him that I was not aware of any hearing. The case officer said that they had sent the letter to 2/47 Gibson Street, Mandurah. However, at the time, I lived at 7 Bradley Way, Lockridge WA.
11. I asked for his advice on what to do, and he said he was not authorised to advise me.
12. That same day, I went to Case for Refugees for advice, where they told me they couldn't do anything.
13. I called the current tenant of 2/47 Gibson Street, Mandurah and was told that there were a few letters for me which I collected on 9 December 2014.
14. After the delegate from the Department of Immigration and Border Protection (DIBP) rejected my application for protection visa, I went through a depression. I completely overlooked the fact that I had not informed Case for Refugees or the RRT of my change of address.
15. I was also under the impression that Case for Refugees was acting for me in the RRT review application but apparently they were not.
16. I did not receive any email notification or a telephone call from the RRT. My email address and mobile number were stated in the RRT application.
17. I moved from Mandurah to Lockridge because I got a job with McDonalds in Morley. In Lockridge, I was staying with a friend in order to share the household expenses. When the lease expired, my friend and I moved to Kewdale where I currently live. During this time, life was extremely stressful, as the moving happened within a month or two of living on the premises, while searching for a job and an affordable place to stay.
18. I believe I will face persecution under the Refugee Convention and complementary protection grounds if I am returned to Pakistan.
The email sent to CASE for Refugees (“CASE”) on 5 November 2014 by the applicant was in the following terms:
Hi Bernice
I want you to please write a request to rrt for my case to open as I am mentally stressed and want to have hearing in rrt quick this time if that is possible
Thanks
[name omitted]
The email sent to the Tribunal on 18 November 2014 was in the following terms:
File number 1409887
Applicant name abdul baqi
New address 254 acton avenue kewdale 6051
Hi
I want to make this request to rrt to inform me if there is chances to held my hearingThanks
The Applicant’s Third Affidavit was also made in support of the Amended Extension of Time Application, and relevantly provided as follows:
3. After CASE filed the RRT application on 3 June 2014 and until I emailed CASE on 5 November 2014, I was waiting to hear of the hearing date from CASE or the RRT. I waited to hear from CASE because I thought they were acting for me and that they will notify me of the hearing date, and I waited to hear from RRT because I know that in the past and even now, even if the applicants have a migration agent acting for them, the RRT nevertheless sends emails and text messages to the applicants directly about the hearing dates. The RRT also sends a reminder one week before the hearing date to the applicants. However, unfortunately, I didn't receive any emails or text messages from RRT. My email address and mobile telephone number have been stated in the RRT application and they are still my current email address and mobile number.
4. I know I was wrong in not informing the change of address and I am not blaming anyone but myself. I sincerely forgot to inform the change of address and it wasn't done intentionally. I was so much under distress and depressed after the rejection of my protection visa application by Department of Immigration and Border Protection (DIBP).
5. In paragraph 13, I stated that I collected the letters on 9 December 2014 from my previous house I was renting in Mandurah. These letters included the decision record from RRT.
6. I then asked my house mate and he referred me to Ganasan Arujunan. I called Ganasan Arujunan the next day which was 10 December 2014 and he made an appointment to see me on 11 December 2014.
7. I met Ganasan Arujunan on 11 December 2014, the case was filed on 16 December 2014.
The Amended Extension of Time Application
The Amended Extension of Time Application ‑ grounds
The grounds set out in the Amended Extension of Time Application are as follows:
1. The applicant incorrectly thought that he was represented by CASE for Refugees in the proceedings before the Tribunal, and as such relied upon CASE to inform him of key dates or events.
2. As deposed to in his affidavit sworn 9 February 2015 and his further affidavit sworn 15 May 2015, the applicant did not receive notification that the Tribunal had made a decision until 9 December 2014, already 27 days outside the 35 day time limit.
3. When the applicant became aware of the RRT decision he acted expeditiously to arrange legal representation, filing an application for judicial review 16 December 2014.
4. Should time not be extended, the applicant submits that he faces significant risk of persecution on return to his home country.
The Minister submits that the Court should refuse to grant the extension as the applicant has neither adequately explained his delay nor demonstrated that the substantive case he would seek to make has reasonable prospects of success. In the present case, the Minister contends that the explanation for the delay is inadequate; the substantive merits of the application are lacking; and that none of the other factors when considered warrant in themselves either the granting or declining of the discretion to extend time.
Statutory framework
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made 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 do so.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(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) …
(b) …
(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 applicant has filed the Applicant’s Second and Third Affidavits in support of the Extension of Time Application.
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 are well-established, but not exhaustive, in this Court, and are as follows:
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)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 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; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
It is convenient to first deal with the merits of the proposed Judicial Review Application
Merits of the Amended Judicial Review Application
The background to the Amended Judicial Review Application is as follows:
a)the applicant was born on 1 January 1991 in Pakistan and lodged an application for the Protection Visa on 30 April 2013: CB 2-28;
b)in a statutory declaration submitted with the application the applicant claimed that he was fearful of returning to Pakistan as he feared harm from the family of his girlfriend and her husband due to their belief that he “disrespected their family and impugned their honour”: CB 57 at [2];
c)the applicant claimed that he and his girlfriend met in 2009, they began to talk on the phone and then fell in love. His girlfriend was, however, engaged to marry another man, and she came from an upper class family. As the applicant came from a middle class family their relationship “was not sanctioned by our families or the wider community”: CB 58 at [3]. The applicant claimed that he was told to stop seeing her when “the men” discovered what was happening, but he refused: CB 58 at [4];
d)the applicant’s girlfriend got married in late 2009. The applicant claimed that on the night of her wedding she went to his house. Her family (about 15 people) then came to his house with an AK-47 looking for her. The applicant claimed that “we both tried to run past them but when [the girlfriend] saw their weapons, she fainted and fell to the ground. Consequently, she was captured and taken to her father’s house”: CB 58 at [7];
e)the applicant claims that he was unable to remain in his village and fled to Abbotabad where he undertook further studies: CB 58 at [8];
f)the applicant claimed that he had been in contact with his girlfriend after the incident and she had told him that her husband was refusing to allow her to return to him until the applicant was captured and the applicant’s cousin (married to his girlfriend’s brother) told him that her family had paid a professional killer to murder the applicant: CB 58-59 at [8] and [10];
g)the applicant further claimed that his girlfriend’s father took the matter to a ‘Jirga’ and after a photograph of the girlfriend was posted online they decided that he was guilty and “convicted me” and his family was told to hand him over. The applicant claimed that “my brother, mother and father were thinking of the rest of the family so they told them that if they found me, they would kill me” and as a result only one of his brothers continued to assist him: CB 59 at [11];
h)the applicant claimed that in March 2010 his father arranged for him to marry his wife, however, they could not live openly together because of “the sentence on me”: CB 59 at [13]-[14];
i)in 2011 the applicant moved to Islamabad and claimed that he “would never be able to live openly in Pakistan with my wife and children. If I remained there, it would only be a matter of time before, they or me, were killed and in the meantime, I could not provide a formal life for them because of the need to remain hidden”, so he began making arrangements to come to Australia: CB 60 at [16];
j)the applicant claimed that he would be unable to seek protection from the police as his brother was told that, “in a case such as mine, any prosecution would be opposed by tradition and religion and would therefore not succeed”;
k)the applicant claimed he could not relocate to another area of Pakistan as nowhere in the country would be safe for him and he would be unable to support his family without the support of his wider family who are no longer willing or able to assist him: CB 60-61 at [17] and [21];
l)in a further statutory declaration the applicant addressed a number of concerns raised by the Delegate and elaborated on his claims stating that in March 2014 his girlfriend’s cousin shot his brother and sister-in-law because they were having a forbidden relationship: CB 108 at [7].
m)the applicant was interviewed by the Delegate on 4 March 2014. On 10 March 2014 the Delegate wrote to the applicant seeking a response to a number of issues arising from the interview: CB 100-101. On 27 March 2014 the applicant provided a response including the statutory declaration referred to above: CB 105-117;
n)on 23 May 2014 the Delegate refused the applicant’s application for the Protection Visa: CB 123-138;
o)on 3 June 2014 the applicant lodged an application for review with the Tribunal: CB 141-146;
p)in the application form handwritten amendments (to an otherwise typed form) listed the postal address where the applicant wished the Tribunal to send correspondence about his application: CB 143. An email address was also listed. The application also ticked ‘No’ to the question ‘Do you want to appoint a representative to act on your behalf and to be your authorised recipient’: CB 144;
q)by letter dated 11 June 2014 the Tribunal wrote to the applicant at the address provided in his application (the “Mandurah address”) and acknowledged receipt of the application. The letter stated (at CB 147-148):
It is important that you tell the Tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). … If you do not you might not receive an invitation to a hearing or other important information and your case may be decided without further notice.
r)by letter dated 8 September 2014 addressed to the Mandurah address the Tribunal noted that it had considered the applicant’s claims and material on the papers before it and because it could not make a favourable decision on that material invited the applicant to appear at a Tribunal hearing scheduled for 8 October 2014. The letter stated ‘If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it’: CB 149-150 and CB 160 at [50]; and
s)the applicant did not attend the Tribunal hearing on 8 October 2014: CB 151-152.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found that the applicant did not return the pro-forma hearing invitation, nor seek to postpone the hearing, nor was any communication received from the applicant prior to or on 8 October 2014: CB 161 at [51]-[53];
b)indicated that it had proceeded to make the Tribunal Decision at the close of business on the day of the Tribunal hearing: CB 161 at [54];
c)had concerns in relation to the inconsistent evidence provided by the applicant and considered that the material raised the question of whether the applicant would be able to relocate to another area if he returned to Pakistan: CB 161 at [56]-[58];
d)found that as those questions remained unresolved, it was not satisfied that the applicant’s grounds were genuine : CB 161 at [59]; and
e)found that the applicant did not satisfy either s.36(2)(a) or (2)(aa) of the Migration Act and affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
Amended Judicial Review Application
In the Amended Judicial Review Application the applicant raised four grounds of review, which are set out and considered below.
Ground 1
Ground 1 is as follows:
1. The Tribunal, by taking into account irrelevant considerations, acted unreasonably in exercising its discretion to proceed to a decision without taking further steps to allow the applicant to appear before it.
Particulars
a. In the Tribunal’s decision record, the Tribunal held that:
i. At [9] - “At issue, firstly is the credibility of the account...”
ii. At [55] -“The Tribunal has not been able to make a favourable decision as there were areas that were unresolved and of concern. The Tribunal would have raised these concerns and given the applicant the opportunity to respond.”
iii. At [57] – “Without more, this appears to be implausible.”
iv. At [59] – “As these, and other questions, remain unresolved the Tribunal is not able to be satisfied that the applicant’s claims are genuine...”
v. At [53] – “No message or phone messages had been received to explain his failure to attend.”
b. In making its decision, the Tribunal took into account perceived discrepancies in the applicant’s account, as well as an adverse finding on the credibility of the applicant.
c. The Tribunal held that should the applicant have attended a hearing it would have put these perceived discrepancies to the applicant and found it relevant that the applicant had not contacted the Tribunal to explain his failure to attend.
d. The Tribunal took into account an irrelevant consideration, being the discrepancies in the applicant’s account, as a basis for proceeding to determine the applicant’s application for review, in circumstances where the Tribunal stated that it would have sought comment from the applicant had he appeared at the hearing.
e. The Tribunal’s exercise of discretion was therefore legally unreasonable.
Applicant’s submissions
The applicant was invited by the Tribunal to a hearing on 8 October 2014. The Tribunal Hearing Record dated 8 October 2014 has noted upon it the applicant’s mobile phone number. Handwritten across the sheet are the words ‘CANCELLED’ and ‘DID NOT APPEAR’: CB 151.
The applicant submits that the inclusion of his mobile phone number on the Tribunal Hearing Record when the Tribunal had previously corresponded with him by post only supports his evidence (Applicant’s Third Affidavit) that it is general practice for the Tribunal to contact applicants by phone to confirm their hearing date and related matters.
The Tribunal held that “The applicant failed to appear and, when the Tribunal checked for any communication. No message or phone messages had been received to explain his failure to attend.”[sic] The Tribunal made no attempt to contact the applicant and no such effort is disclosed in the Court Book: CB 161 at [53].
In these circumstances, the Tribunal nonetheless went on to make a number of findings particularised in the Amended Judicial Review Application (at 1(a)(i-v) of the amended grounds). In summary, the Tribunal made adverse credibility findings and held that there were discrepancies with the applicant’s account that made it implausible.
Importantly, the Tribunal held that these credibility concerns, in the absence of any further input from the applicant, were dispositive of the applicant’s application: CB 161 at [55] and [59]:
...there were areas that were unresolved and of concern. The Tribunal would have raised these concerns and given the applicant the opportunity to respond.
As these, and other questions remain unresolved the Tribunal is not able to be satisfied that the applicant’s claims are genuine or that he has a well founded fear of persecution ...
The Tribunal’s reasons for it exercising its discretion pursuant to s.426A of the Migration Act to proceed to make a decision were:
a)the applicant failed to appear as invited: CB 157 at [3];
b)the Tribunal wrote to the applicant that it could not make a favourable decision on the papers: CB 160-161 at [50];
c)the applicant did not return the hearing invitation form or seek to postpone the hearing: CB 161 at [51];
d)the Tribunal was constituted on the date notified and a video link and interpreter were available: CB 161 at [52];
e)the applicant failed to appear, and had not contacted the Tribunal to explain a failure to attend: CB 161 at [53]; and
f)aspects of the applicant’s claims were “unresolved and of concern”, which it would have raised with the applicant had he attended the hearing: CB161 at [55].
In Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”), the High Court unanimously held that the exercise of statutory discretion, no matter how broadly expressed, is constrained by law. In particular, decision makers must exercise discretion reposed in them within the limits of reason: Li at [24] per French CJ and at [85] per Hayne, Kiefel and Bell JJ. The Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; (2014) 139 ALD 50 at [47] per Allsop CJ, Robertson and Mortimer JJ (“Singh”) held that where reasons are provided for an exercise of a power it is to those reasons that a court must look when assessing whether intelligible justification for the exercise of a power exists, and not to imply reasons by reference to extrinsic material. Where no reasons for the exercise of discretion are provided the court must focus on the outcome in the factual context: Singh at [45] per Allsop CJ, Robertson and Mortimer JJ.
An analogous situation arose in the recent case of MZZSK v Minister for Immigration & Anor [2014] FCCA 883 (“MZZSK”). As in the present matter, the Tribunal in that case sent a hearing notice that was not received, then proceeded to make a decision without taking further action to enable the applicant to appear, taking into account discrepancies in the applicant’s claims.
The Tribunal was characterised as having “decided to make its decision without taking further action to allow or enable the applicant to appear before it, taking into account: the discrepancies of the applicant’s claims; and the absence of any material to support those claims”: MZZSK at [54] per Judge Jones. Further, in MZZSK at [55]-[56] per Judge Jones, it was held that:
In its decision record, the Tribunal found that the applicant was not a homosexual male based on discrepancies in the applicant’s evidence....I am satisfied that the discrepancies in the applicant’s claims were not a relevant consideration to the Tribunal’s discretion under s426A(1)(b).
...
Manifestly, the critical issue identified by the Tribunal arising in relation to the decision under review was the discrepancies in the applicant’s claim that he was a homosexual male. To take into account these discrepancies as a basis for proceeding to determine the applicant’s application for review without taking further action to allow or enable the applicant to appear before it is, in my opinion, inconsistent with the purpose of the statute conferring the discretion. For these reasons, in my opinion, the Tribunal took into account an irrelevant consideration.
The applicant submits that, to the extent that the Tribunal discloses reasons for exercising its discretion under s.426A of the Migration Act to proceed to make a decision on the papers, that reasoning is illogical or unreasonable as it takes into account irrelevant considerations: namely, that in the opinion of the Tribunal there were discrepancies in the applicant’s account.
The Tribunal further acted unreasonably in exercising its discretion because there were unresolved areas of concern to the Tribunal which it failed to take any steps to resolve by contacting the applicant on the day of the hearing and inviting him to appear.
Minister’s submissions
The Minister submits that:
a)pursuant to s.426A(2) of the Migration Act the Tribunal has the power to reschedule the applicant’s appearance before it, or to delay its decision on the review in order to enable the applicant’s appearance before it to be rescheduled;
b)whether or not the exercise of the discretion under s.426A(2) was exercised reasonably is to be determined having regard to the circumstances of the particular case: Li; Singh v Minister for Immigration & Citizenship [2013] FCA 669;
c)in Li at [63]-[76] per Hayne, Kiefel and Bell JJ, the High Court considered the discretionary power of a tribunal to adjourn a hearing and determined that such power must be exercised reasonably. The High Court observed that the tribunal is to act with some efficiency, but any such consideration would need to be weighed against the countervailing consideration of the purpose of the review provisions of the Migration Act. However, at [82] per Hayne, Kiefel and Bell JJ the Court noted:
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that ‘enough is enough’.
d)in considering the exercise of the discretion under s.426A(2) of the Migration Act, it important to note:
i)the Tribunal is not required, where there is compliance with ss.425 and 425A of the Migration Act to make further enquiries if the applicant fails to attend the review hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439; (2006) 231 ALR 630, [2006] ALMD 5900 at [38]-[39] per Spender, French and Cowdroy JJ (“SZFHC”); compare Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 141 ALD 619 (“Kaur”);
ii)the Tribunal is not required to give reasons for its exercise of the discretion under s.426A of the Migration Act: SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295 (“SZHSQ”); and
iii)the range of factors which the Tribunal may have regard to in the exercise of its discretion is unconfined except insofar as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision-maker may have regard: SZHSQ at [49] per Rares J; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 40 per Mason J; and
e)having regard to those issues it is incorrect to contend that ‘a basis for proceeding to determine the applicant’s application for review’ was because there were discrepancies in the applicant’s account. To the extent that reasons are provided by the Tribunal for proceeding to determine the matter, they are set out at paragraphs [51]-[53] of the Tribunal Decision. Nowhere in the Tribunal Decision does it indicate that it decided not to exercise the discretion under s.426A of the Migration Act because of the discrepancies in the applicant’s account. This construction alleged by the applicant appears to be an attempt to have the matter match the circumstances which arose in MZZSK.
Ground 1 – consideration
Section 426A of the Migration Act relevantly provides as follows:
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
…
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
Sections 425(1) and 425A respectively of the Migration Act provide as follows:
425 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
425A (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
It is also relevant to note s.420 of the Migration Act which provides as follows:
The Tribunal, in reviewing a Part 7-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Section 362B of the Migration Act is the equivalent, for non-refugee claims for review, of s.426B of the Migration Act. In Kaur the Federal Court observed as follows:
119. … Where there are no reasons, as the Full Court in Singh said, a reviewing court is left with the outcome of the exercise of power, to be assessed in the factual and legal context as disclosed by the evidence.
120. In the present case, the effect of s 379C(4) is not part of that context. Rather, its effect is the precondition to the exercise of power in s 362B arising. It says nothing, in my opinion, about how the power might be exercised in a given case. That is a question for the Tribunal in the factual circumstances as they are presented, and the legal reasonableness of the Tribunal’s answer to that question is a matter for a supervising court.
121. The Minister’s submissions relied heavily on the operation of s 379A(4), read with s 379C(4), in the circumstances of the second hearing invitation. He submitted that, because of the deeming effect of that provision, a “legal fact” existed: namely, that the appellants received the second hearing invitation. It was not possible, the Minister’s submissions continued, in the face of such a legal fact, for the Tribunal’s exercise of discretion to be characterised as legally unreasonable. Put another way, as I understood the submissions, the “legal fact” for which s 379C(4) provided meant that there was an intelligible justification for the Tribunal’s exercise of discretion.
122. The term “legal fact” is unhelpful in this analysis, and places a gloss on the operation of s 379A, read with s 379C(4). The purpose of s 379C is at least twofold. First to remove ambiguities surrounding receipt by applicants for review of communications from the Tribunal, so that time limits imposed by the Act (see for example s 368A) or indeed those imposed administratively by the Tribunal (for example, pursuant to s 359) operate with certainty. The certainty chosen by the legislature is deemed rather than actual receipt. Second, and related to the first purpose, to give provisions such as s 362B an operation which is certain. It was implicit if not express in the Minister’s submissions, and should be accepted, that where the precondition in s 362B speaks of an applicant being “invited under s 360 to appear before the Tribunal”, that should be construed as the giving of an invitation under s 360 which is taken to have been received by operation of s 379C. The “deemed receipt” provisions operate to allow the discretion in s 362B to arise for consideration by the Tribunal after a defined period of time: see Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [33] (dealing with s 441A, the corresponding provision with respect to the Refugee Review Tribunal).
123. They do not however, govern or determine the outcome of the consideration by the Tribunal of how to exercise that discretion. This aspect of the Minister’s submission should be rejected. The effect of the Minister’s submissions is to immunise the exercise of discretion under s 362B and to permit the discretion to be exercised outside the boundaries set by the High Court in Li. Express or implicit knowledge by the Tribunal that, by reason of the operation of s 379C, an applicant is deemed to have received a hearing invitation, provides the occasion for the exercise of discretion under s 362B but does not determine how the discretion should be exercised. How the discretion should be exercised will fall to be decided by the Tribunal, in accordance with its functions under Part 5 and taking into account matters such as the facts and circumstances of the individual review applicant, the course of the particular review and what is at stake for the review applicant.
124. …
125. The Minister also submitted that the Tribunal’s exercise of discretion could not be characterised as legally unreasonable in circumstances where the authorities established it was under no obligation to make inquiries. The Minister relied in particular on the Full Court’s decision in SZFHC 150 FCR 439; [2006] FCAFC 73 at [39]. The Minister also pointed, in his supplementary written submissions, to a number of cases including Full Court cases, where the deemed receipt provisions (such as s 379C) had been held to “bind the courts in the disposition of any application for judicial review or appeal”.
126. I deal with SZFHC in more detail below. As for the other authorities relied on by the Minister, the propositions for which he contends are too broadly stated and the circumstances of those authorities do not support propositions of that breadth.
127. The Minister refers to the statement of the Full Court in SBSC [2006] FCAFC 77 at [15]- [17] as authority for the proposition that the fact a hearing invitation is returned to the Tribunal is of “no legal relevance”. That is not what those passages say at all. Rather, at [16], what is said by the Full Court to be of no “legal relevance” is the statement by the appellant in that case that he was unaware of the Refugee Review Tribunal hearing. It is clear the Full Court is referring to the disconformity between the operation of provisions such as ss 379A and 379C as setting out the Tribunal’s statutory obligations and the effect of compliance with them, and the lay understanding of an applicant about the relevance of the fact that he did not know about the scheduled hearing.
128. …
129. …
130. SZFHC 150 FCR 439; [2006] FCAFC 73 concerned the review of a decision of the Refugee Review Tribunal, where the Tribunal had proceeded to determine the applicant’s review under s 426A of the Act after having invited the applicant to a hearing, having had no response to the hearing invitation and the applicant having not appeared at the appointed time for the hearing. The Court’s reasons disclose that letters were sent both to the applicant’s migration agent and directly to the applicant at his home address, and that it was not possible to ascertain on the evidence which letter was returned to the Tribunal, although the Court inferred it might have been the one sent to the applicant’s residential address. There was, on the facts, a “past history” as the Court described it, of letters to the applicant’s residential address being returned.
131. As the Full Court’s reasons disclose, the central issue on the appeal was the content and scope of the Tribunal’s obligation under the then s 425 of the Act (the equivalent of s 360), and the role that the invitation provisions in s 425A (the equivalent of s 360A) played in determining that content and scope. The Full Court rejected the review applicant’s submissions that s 425 required the Tribunal to give an applicant a “real” opportunity to appear and that this obligation compelled the Tribunal to take further steps to contact the review applicant, in addition to giving notice under s 425A. The review applicant relied on an earlier decision of Hely J in Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243; [1999] FCA 1041 at [30], which the Full Court distinguished in part because of a change in language in s 425, from an obligation imposed on the Tribunal to give the applicant an opportunity to appear to an obligation to give an applicant an invitation to appear. The Full Court held at [39]:
The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.
132. Some care must be taken, in my respectful opinion, not to overreach the propositions for which SZFHC can be taken to stand. The High Court and Full Court of this Court have held now on several occasions that, on the current statutory language involving an invitation to appear, both ss 360 and 425 impose on the Tribunal an obligation to give an applicant a meaningful opportunity to appear and present evidence and arguments in support of her or his review application: see, eg, Li 249 CLR 332; [2013] HCA 18 at [61] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38] per Kenny and Lander JJ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]; Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37]. As the plurality in the High Court pointed out in Li (see [143] below), there is a connection between the content of the obligation in s 360 and the reasonable exercise of discretions conferred by Part 5 of the Act on the Tribunal. The manner in which the Tribunal exercises the discretions conferred upon it (such as those in s 362B and s 363(1)(b)) must not frustrate the purpose of the obligation in s 360.
133. There is, however, no difficulty in accepting the proposition which also emerges from SZFHC that, having complied with its obligations under s 425A (or, here, s 360A) there cannot be discerned from ss 425 and 425A read together (or, here, ss 360 and 360A read together) any freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to search its records, or those of the Department, to discover if there might be another way of communicating with the applicant. To imply such an obligation would be to constrain the discretions in s 362B and s 426A in a way the legislative scheme does not suggest is justified.
134. The reconciliation of that proposition with the proposition that the discretions in s 362B (and s 426A) must be exercised reasonably is, as both Li and Singh recognise, not found in some checklist approach, but in a consideration of the factual circumstances in which the particular discretion was exercised in respect of a particular review and particular review applicant.
135. I see nothing in the Full Court decisions to which the Minister refers which compels the Court to find that the exercise of discretion under s 362B can never be legally unreasonable if a hearing invitation has been sent in accordance with s 379A(4) and deemed by s 379C(4) to have been received. Such a proposition would also be inconsistent in my opinion with the approach taken by the High Court in Li, and the concession made by the Minister in the present case that the s 362B discretion is conditioned by a requirement that it be exercised reasonably. This proposition is also inconsistent with the terms of s 362B itself, especially s 362B(2), which expressly contemplates there will be matters the Tribunal may take account of to reschedule a hearing. Obviously one such matter might be the fact that a review applicant did not receive a hearing invitation. Indeed, as I have found on the facts of this case, it seems highly probable that, if the Tribunal’s attention had been drawn to the fact the first appellant did not receive the invitation, given the history of the review to date, the Tribunal is likely to have rescheduled the hearing.
136. …
137. … The question is whether a Tribunal acting reasonably, in the particular factual context of this review, could have proceeded to determine the review without any attempt to contact the first appellant.
Kaur at [119]-[137] per Mortimer J.
The Federal Court observed that the relevant non-attendance in Kaur was “given her past behaviour, out of character” for the applicant: Kaur at [140] per Mortimer J, and went on to say that:
140. … So much should have been obvious to the Tribunal officers and to the Tribunal member. A tribunal acting fairly, according to substantial justice and the merits of this applicant’s case, would have taken some step to find out what had happened. A tribunal acting fairly, according to substantial justice and the merits of this applicant’s case, would have done what this Tribunal, and its officers, had been doing with this review applicant for the past five months: telephoned or emailed her. Subsequent events, as disclosed by the evidence, demonstrate that, when those methods of communication were used with the first appellant after the Tribunal decision, she was responsive in a timely way. There is no basis to conclude she would have been otherwise if telephoned or emailed either by the Tribunal officer who filled in the “no response” to hearing invitation form, or by the Tribunal member herself. In keeping with the conduct to that point, a simple telephone call or email after the “no response” form was filled in would, I find, most probably have resulted in the first appellant attending the second hearing.
141. The Tribunal’s exercise of power under s 362B(1) was legally unreasonable and therefore exceeded its jurisdiction. It was, as I observed earlier, inexplicable in the circumstances. Its decision on review should be set aside.
Kaur at [140]-[141] per Mortimer J.
This Court adopts what was said by the Federal Court in Kaur as a correct statement and application of the relevant principles of legal unreasonableness in immigration judicial review cases.
Post the hearing of this matter, but consistent with the submissions of the applicant, is the outcome of the Federal Court’s judgment in AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383 (“AZAFB”). The Federal Court having referred to s.426A of the Migration Act as conferring a discretionary power which it presumed the legislature intended to be exercised reasonably, and having referred to the relevant passages in Li: AZAFB at [18]-[20] per North ACJ, went on to consider the particular circumstances of the case, and to make findings in relation thereto, as follows:
22. In the present case the Tribunal explained why it proceeded in the absence of the appellant. It said that the appellant was invited to appear and did not respond to the invitation. The Tribunal also said at [4]:
That letter was addressed to his last given address, provided by himself, which was the same address used by the by the [sic] department. A check was made to see if any change of address had been notified and, none has been.
23. Thus the Tribunal checked the address on the letter of invitation with the address previously used by the Department, and checked, presumably in its own records, to see whether there was any indication of any notification of a change of address. These steps were taken by the Tribunal to determine whether the applicant may not have received the invitation to the hearing. That was, of course, an obvious thing to do in the circumstances.
24. The steps were obvious in the circumstances because, as was known to the Tribunal, the appellant had appeared at the hearing before the delegate, and had filed a substantial and serious written submission in the Tribunal. These factors suggested that the appellant intended to pursue the application for a visa and to attend the hearing. Further, the nature of the application demonstrated that if the claims made were established the appellant was at risk of serious harm if returned to Sri Lanka.
25. The Tribunal had in its own records in the application for review the mobile phone number of the appellant.
26. Further, for the purpose of the hearing the Tribunal created a document entitled “Hearing Record”. The document recorded all the details relevant to the hearing such as the place and time of the hearing. The document listed the witnesses to be called and the name of the member conducting the hearing. It seems to have been prepared in advance of the hearing so that the details of what occurred on the day could be inserted. The document included the name of the appellant and his mobile phone number written opposite his name. The obvious purpose of recording the mobile phone number was to provide a method which would allow the Tribunal to contact the appellant. Elementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number which it had in its records. To fail to do so was legally unreasonable. The Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given the Tribunal.
27. The primary judge set out in his judgment the particulars of the grounds of application for review. The particulars included an assertion that the appellant provided the Tribunal with his mobile phone number. The primary judge did not deal with this factor. It was the critical factor which rendered the exercise of discretion unreasonable. It was determinative of the case.
AZAFB at [22]-[27] per North ACJ.
There is no question that in this case the requirements of ss.425 and 425A of the Migration Act were complied with by the Tribunal. When the applicant did not appear at the Tribunal hearing the Tribunal was under s.426A(1A)(a) of the Migration Act legally entitled to make the Tribunal Decision without taking any further action to allow or enable the applicant to appear before it. It is plain however that whether to do so might have been legally unreasonable is a distinct and discrete issue: Kaur at [123] and [140] per Mortimer J; AZAFB at [18]-[20] and [26] per North ACJ.
In the Court’s view it is relevant to observe that:
a)the applicant was represented by CASE before the Delegate;
b)the application for review by the Tribunal was seemingly faxed to the Tribunal by CASE on behalf of the applicant;
c)notwithstanding the fact that CASE faxed the application for review to the Tribunal, the application for review to the Tribunal indicated that the applicant did not want to appoint a representative to act on his behalf or to be his authorised representative: CB 144;
d)in response to a part of the application for review form which sought “Your contact details in Australia” the applicant provided the address in Australia where he currently lived, namely a street address in Morley, and a contact mobile phone number under the heading “Contact numbers in Australia”, in relation to which the form bears a note as follows:
Note: Please provide as many contact numbers as possible.
The applicant also provided an email address in response to that part of the form which asked for “Your email address”; and
e)in that part of the form for the application for review to the Tribunal which sought details of where the Tribunal was to send correspondence about the application (and this part was to only be completed if a represented was not appointed by the applicant) the applicant provided an address in Mandurah.
The Court also observes that the declaration in the application for review to the Tribunal signed by the applicant that the applicant declares that he understands that if he changes his contact details and does not inform the Tribunal of his new address the Tribunal may proceed to make a decision about his case “even if it cannot contact me”: CB 145.
The Court notes that the application for review to the Tribunal indicates that the applicant needs an interpreter when communicating with the Tribunal: CB 141, but nowhere on the application for review form as it appears in the CB is there any indication that the application for review form was interpreted for the applicant before he signed it.
The Tribunal sent the acknowledgement of the application for review to the Mandurah address on 11 June 2014, and the invitation to appear at the Tribunal hearing to the Mandurah address on 8 September 2014. The Tribunal Hearing Record form is a pre-printed form, upon which certain details of the anticipated hearing are obviously entered prior to the hearing. Relevantly, in this case, under the heading “In attendance” there appears the name of the applicant, his role, described as “Primary review applicant” and under the heading “Phone” his mobile phone number. Other details appear including hearing room, times, interpreter’s details, and video details, many of which were pre-completed in this case: CB 151-152.
The Tribunal Hearing Record is over-scored with a set of lines between which the word “CANCELLED” is written, and next to which the words “DID NOT APPEAR” followed by a set of initials and the date appear: CB 151.
There is no evidence, and indeed it appears to be common ground, that the Tribunal made no effort to use the applicant’s mobile phone number which appeared in his application for review to the Tribunal, and which also appeared on the Tribunal Hearing Record, to contact the applicant.
It is true that the Tribunal is not under an obligation to afford “every opportunity” to an applicant for review to present their case, and it is open to a Tribunal to determine that “enough is enough”: Li at [82] per Hayne, Kiefel and Bell JJ. In this case, however, the Tribunal did nothing to afford the applicant a meaningful opportunity to present his case, save for sending the invitation to the Tribunal hearing. Whilst that action complied with the requirements of s.426A of the Migration Act, the exercise of the discretion to proceed to make the Tribunal Decision under s.430 of the Migration Act without taking any further action to allow or enable the applicant to appear before it was in this Court’s view, in all the circumstances, unreasonable. The basic reason for that is that the Tribunal had immediately before it, and at its behest, a mobile telephone number which it could have, but did not, use in an endeavour to contact the applicant. That mobile phone number was provided by reason of the terms of the application for review to the Tribunal which sought contact numbers, and not just one contact number, but “as many contact numbers as possible”. The fact that the applicant only provided one contact number, being a mobile, does not detract from the fact that the Tribunal seeks as many contact numbers as possible, the obvious purpose of providing as many contact numbers as possible being to provide means of contacting the applicant. Thus daytime, evening, mobile and fax numbers are sought in the application for review form, in addition to a current residential address and an email address. The request to provide such details must have a purpose, and it cannot be that the purpose is to allow Tribunal and Departmental officers to contact the applicant prior to a hearing, but not to provide for the Tribunal to contact the applicant at the time of a hearing if the applicant does not appear. It is entirely reasonable (and common sense as was pointed out in AZAFB) for the Tribunal to endeavour to contact an applicant who has provided the relevant contact details, including a telephone number, especially where that telephone number appears on the Tribunal’s Hearing Record. Dependent upon the circumstances, it may be reasonable for the Tribunal, having endeavoured to contact an applicant, to proceed under s.426A(1A)(a) of the Migration Act, but it is not reasonable to so proceed without making that endeavour when an obvious means of contact is available. That the Tribunal would endeavour to use the contact details provided (including a telephone number) before making a decision on the review under s.426A(1A)(a) of the Migration Act is implicit in the terms of the declaration signed by the applicant which provides that if he changes his contact details and does not inform the Tribunal of his new address the Tribunal may proceed to make a decision about his case “even if it cannot contact me”. It must be inferred from the terms of the declaration that the Tribunal will make endeavours to contact the applicant by means of the contact details provided, and not simply proceed to make a decision without endeavouring to contact the applicant, as occurred here. As indicated above, if the Tribunal had used the mobile telephone number of the applicant in an endeavour to contact him, and had failed to contact him, or had contacted him and he had elected not to proceed, it would have been reasonable for the Tribunal to proceed in the manner that it did under s.426A(1A)(a) of the Migration Act. In this case, there was however, no such endeavour by the Tribunal.
For the above reasons, the Court considers that the Tribunal committed a jurisdictional error, and that ground 1 must succeed insofar as it alleges jurisdictional error by reason of the Tribunal acting unreasonably in exercising its discretion to proceed to make the Tribunal Decision without taking further steps which might have allowed the applicant to appear before it.
Insofar as ground 1 of the Amended Judicial Review Application asserts that the Tribunal acted in a legally unreasonable way by, as is alleged, taking into account the discrepancies in the applicant’s account of events as a basis for proceeding to determine the applicant’s review, that part of ground 1 is in the Court’s view based on a false premise. In the Court’s view the Tribunal did at is was entitled to do under s.426A(1) of the Migration Act in proceeding to make a decision on the review in the absence of an appearance from the applicant, and then further making that decision by way of a written statement without taking any further action to allow or enable the applicant to appear before it: Migration Act, ss.426A(1)(a) and 430. The two did not however overlap, and in making a decision on the review the Tribunal dealt with the merits of the application so far as it perceived that it could, but did so separately from its decision to proceed to make a decision on the application for review. Thus, unlike in MZZSK, the determination to make a decision, and the actual decision being made, were not intertwined. The Tribunal did not give reasons for its exercise of discretion under s.426A of the Migration Act, consistent with SZHSQ, and proceeded quite separately to deal, as part of its determination of the merits of the application for review, with what it perceived to be the discrepancies in the applicant’s account of events in Pakistan. There was, therefore, no jurisdictional error in relation to that part of ground 1 of the Amended Judicial Review Application which asserts that the Tribunal took into account an irrelevant consideration, namely the discrepancies in the applicant’s account, in determining whether or not to exercise its discretion under s.426A of the Migration Act.
Ground 2
Ground 2 is as follows:
2. The Tribunal failed to consider an integer of the applicant’s claims for protection, namely the explanation given for the escape of the young woman given in statutory declarations given at CD58 [sic] and CB108, leading it to conclude that the applicant’s account was ‘implausible’ and draws adverse inferences about his credibility.
Particulars
a. At [57], the Tribunal held “The applicant claimed that the woman’s family had surrounded and entered his house and were carrying AK47 weapons. He claimed to have been able to leave through the back door and make an escape while the young woman was caught. Without more, this appears to be implausible.”
b. At statutory declarations at CB58 and at CB108 the applicant explained that the young woman he was with fainted during their escape. This information was before the Tribunal in making its decision, was recognised by the Tribunal at [16], and was materially relevant to the plausibility of his escaping while she was captured.
Applicant’s submissions
In the Tribunal Decision one of the specific matters identified by the Tribunal as being dispositive of the applicant’s claims was that his account of escaping persecution at the hands of the young woman’s family was implausible: CB 161 at [59].
The Tribunal held that “...the applicant claimed that the woman’s family had surrounded and entered his house and were carrying AK47 weapons. He claimed to have been able to leave through the back door and make an escape while the young woman was caught. Without more, this appears to be implausible”: CB 161 at [57].
The Tribunal referred to this incident earlier where it held that “The applicant and … [the woman] went out the back door and “both tried to run past them” but when … [the woman] saw the guns she fainted and was caught and taken to her father’s house.”, and later at [45] where it held “He claimed the family of … [the woman] came and “entered” his house and surrounded it. Although they had AK47 guns he was able to escape while she was not”: CB 158 at [16].
The applicant provided by way of statutory declaration a detailed account of the particular incident, including:
a)that the young woman came to his house and he took her into a separate room so that his parents would not realise she was there, that the armed men knew she was at his house as her husband called her family and inquired as to her whereabouts, and that the armed men had surrounded his house: CB 58; and
b)that the applicant did not confront the armed men, that they initially took only the young woman, and that it was only when the armed men returned later that night that he fled his house and hid before fleeing his home village: CB 108.
This information was before the Tribunal, was at least partially recognised by the Tribunal: CB 158 at [16], and was materially relevant to the plausibility or otherwise of the applicant’s claims.
In holding that it required ‘more’ of the applicant to be satisfied of the plausibility of events, thus drawing adverse inferences as to the applicant’s credibility, when more material was before the Tribunal and the Tribunal did not express an opinion on what was missing or deficient from that material, the applicant submits that the Tribunal failed to have regard to an integer of his claims for protection.
Minister’s submissions
The Minister submits that:
a)in the Tribunal Decision at CB 160 at [43] the Tribunal identified what the applicant’s ‘main claim’ for protection was:
By his own account the main claim is that he fell in love with a young woman from his home village who is in an arranged marriage with another man and this resulted in serious problems when the young woman came to his house on her wedding night and her family found her there. Later taking out a contract to kill the applicant.
b)the ‘integer’ of that ‘main claim’ was the events of the night of the woman’s wedding. The Tribunal referred to the applicant’s evidence about those events in the Tribunal Decision at CB 158 at [15], [16] and CB 160 at [45]. It cannot be said that the Tribunal did not have regard to the applicant’s explanations of the ‘integer of the claim’. What the Tribunal concluded, was that it found the explanation implausible and therefore could not be satisfied to the requisite degree that the claim for protection on this basis was established;
c)the distinction must be drawn between a failure to address a claim and its integers, on the one hand and errant fact finding on the other hand. It is the former and not the latter which gives rise to jurisdictional error: SZQRW v Minister for Immigration & Citizenship [2012] FCAFC 164 (2012) 134 ALD 454; SZSZW v Minister for Immigration & Border Protection [2015] FCA 562;
d)this ground seeks impermissibly to scrutinise the decision with ‘an eye keenly attuned to error’: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, [2004] ALMD 2002. It is of no consequence that the Tribunal, at CB 161 at [57] did not again refer to the woman fainting; and
e)it is clear, as outlined above, that the Tribunal was aware of, and understood the applicant’s claims and as such a Court should not readily draw the inference that the Tribunal failed to consider the aspect of the claim that the woman had fainted.
Ground 2 – consideration
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s ability to be satisfied or otherwise of the applicant’s claims, are matters for the Tribunal to determine on the evidence before the Tribunal: 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 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal set out the gist of the applicant’s claims in this respect as follows:
11. In a statutory declaration attached to the application the applicant stated. “My main reason for seeking the protection of the Australian Government is based on fear of harm at the hands of the family of … [the woman] and her husband … [name omitted], on account of their belief I have disrespected their family and impugned their honour.”
12. He went on to state that he lived in a small village of 100 houses and had gone to study in Karachi, returning to his village in 2006.
13. In 2009 he claimed he met a young woman named … [name omitted] and they began to be friends, talking on the phone and walking to school. They fell in love and wanted to marry but, … [the woman] was already promised in marriage to another man. Further to this she was from an upper class family.
14. Although some of the women in both families were aware of the relationship the men were not.
15. Late in 2009 … [the woman] married and, on the wedding night she came to his house saying that she wanted to find a way to divorce her husband. He took her inside to talk and, while they were there her family came looking for her. They entered and surrounded the house and had AK47 arms with them.
16. The applicant and … [the woman] went out the back door and “both tried to run past them” but when … [the woman] saw the guns she fainted and was caught and taken to her father's house.
17. The applicant escaped and went to study in Abbottabad.
CB 156 at [11]-[17].
In his first statutory declaration dated 26 April 2013 the applicant said as follows:
6. In late 2009 she was married to Emad. That evening, I was at home when … [the woman] called me. She was crying and saying she couldn't be with her husband; She then came to my house. I took her into another room, so my parents did not see her. She told me she wanted to find a way to be with me and divorce her husband. I was confused about what to do and considered running away with her but I was also afraid because to leave her husband on her wedding night and come to me is such a terrible social taboo and was sure to put us both in mortal danger.
7. When … [the woman’s husband] could not find her, he called her family. They realised that she must be with me, and came to our house to demand she return to her husband. They entered our house and my father later told me that they had an AK-47. They were about fifteen people. … [the woman] and I ran out the back door but we then realised that they had surrounded the house. We both tried to run past them but when … [the woman] saw their weapons, she fainted and fell to the ground. Consequently, she was captured and taken to her father's house.
8. After this, with … [the woman’s] family searching for me, I was unable to remain in … [the village]. ….
CB 58 at [6]-[8].
In his second statutory declaration of 20 March 2014 the applicant said as follows:
10. I also have concerns that the Case Officer may have misunderstood my account of what happened on the night of … [the woman’s] wedding. In paragraphs 6 and 7 of my statement of claims, I describe … [the woman] coming to my house and being taken back to her father's. This account is correct I did not confront them at that time. I saw their torches and ran outside with … [the woman]. They entered the house and took … [the woman] when she fainted. Early the next morning, before first light, they came back again. That was when I fled, hid for a time and then caught a bus to … [name omitted]. I did not return home after that.
CB 108 at [10].
The Tribunal set out, and to that extent, engaged with the claim made by the applicant in relation to the woman and the events at the applicant’s home on the wedding night in 2009, as follows:
43. By his own account the main claim is that he fell in love with a young woman from his home village who was in an arranged marriage with another man and this resulted in a serious problems when the young woman came to his house on her wedding night and her family found her there. Later taking out a contract to kill the applicant.
44. On the night of the wedding, “late in 2009” she came to his home and asked him to help her divorce and to go away with him.
45. He claimed the family of the girl came and “entered” his house and surrounded it. Although they had AK 47 guns he was able to escape while she was not.
46. He left and went to Abbottabad where he claimed he stayed for over two years, studying without incident, (see, previous addresses for form 866 and form 80 attachments held at folio 37 of the departmental file).
CB 160 at [43]-[46].
The Tribunal drew a conclusion in relation to the claim at CB 161 at [57] where it observed that:
Secondly, the applicant claimed that the woman's family had surrounded and entered his house and were carrying AK 47 weapons. He claimed to have been able to leave through the back door and make an escape while the young woman was caught. Without more, this appears to be implausible.
When what is said in the two statutory declarations is examined, it is:
a)apparent that both the applicant and the woman ran outside;
b)apparent that they realised when they ran outside that the house was surrounded;
c)apparent that the husband’s supporters entered the house and took the woman;
d)not apparent whether the woman fainted outside or inside, although from the first statutory declaration it would appear that she did faint outside and fall to the ground, but neither statutory declaration expressly says that she was then taken back into the house, but rather the first statutory declaration suggests that she was captured when she fell to the ground, and the second statutory declaration suggests that the husband’s supporters entered the house and took the woman when she fainted, which is equivocal as to when or where they took the woman; and
e)not apparent that the applicant re-entered his house, the first statutory declaration not saying that, but rather indicating that he was unable to remain in the village while the woman’s family were searching for him, and the second statutory declaration saying that he fled when the husband’s supporters came back early the next morning, and that he then hid and caught a bus out of the village and did not return home thereafter.
Assessing the above facts objectively it might easily be said that it is not apparent how it was that the applicant escaped from a house surrounded by the husband’s supporters, at least one of whom was brandishing an AK47, or why if the applicant re-entered the house, he was left there by the husband’s supporters. In the circumstances, it was open on the evidence for the Tribunal to describe the applicant’s account of his “escape” as implausible, and if in so doing it meant that adverse inferences as to the applicant’s credibility arose, then that was a matter for the Tribunal par excellence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J.
Thus, in its terms, ground 2 does not give rise to jurisdictional error. It does however highlight why it would have been reasonable to make contact with the applicant on the telephone number provided by him, and to have offered the applicant a meaningful opportunity to have a hearing, because it would have enabled the Tribunal to deal with such issues.
In the circumstances, ground 2 is not made out, and does not give rise to jurisdictional error.
Ground 3
Ground 3 is as follows:
3. The Tribunal failed to make a finding on whether the applicant had a well-founded fear of persecution for reason of his belonging to particular social group (being individuals subject to an adverse finding under the Pashtun honour code) in (A) his home area of … [name omitted] village, Khyber-Paktunwa autonomous region, or (B) Pakistan generally.
Particulars
a. In his application for a protection visa the applicant stated that he feared harm in his home village of … [name omitted] (CB57-58; at paragraphs 1, 2, and 8) and in Pakistan generally (CB 61; at paragraph 21).
b. At [8] and [11], the Tribunal recognised that the home area of the applicant and the region to which his claims related was … [name omitted] village.
c. At [55] the Tribunal held that it was “not able to make a favourable decision”, and at [59] the Tribunal held that it was “not able to be satisfied that the applicant’s claims were genuine, or that he had a well-founded fear of persecution for a Convention reason”.
d. In making these findings the Tribunal therefore failed to engage with, and decide upon, the specific claims advanced by the applicant and which were enlivened on the material before it.
Applicant’s submissions
The claims made by the applicant and before the Tribunal were that he feared harm as a result of belonging to a particular social group, that is, individuals subject to an adverse finding under the Pashtun honour code: CB 57-58 at 61 and 106. The applicant claimed to fear harm both within his village’s home region, the Khyber-Paktunwa autonomous region, and Pakistan generally.
In the Tribunal Decision the Tribunal made a general finding that, at CB 161 at [55], it was “not able to make a favourable decision”, and later at CB 161 at [59] that it was “not able to be satisfied that the applicant’s claims were genuine, or that he has a well-founded fear of persecution for a Convention reason.”
The specific findings made by the Tribunal underpinning its critical finding at CB 161 at [59] that the applicant did not invoke protection obligations under the Convention are set out at CB 161 at [56]-[58], where [56] and [57] relate to credibility issues, and [58] relates to relocation.
While specific claims may be encompassed and dealt with by means of general findings, the role of the Tribunal is to review the Delegate’s Decision, have regard to all the issues and make findings in relation to the claims raised by the applicant and put before it.
The Tribunal Decision does not disclose that the Tribunal engaged with and made findings in relation to the claims actually raised by the applicant, beyond generally impugning his credibility and holding that it would have raised issues going to his credibility and the plausibility of his account had he appeared at the Tribunal hearing.
Minister’s submissions
The Minister submits that:
a)the relevant statutory scheme (ss.65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criteria set out, relevantly in s.36(2) of the Migration Act. That is, effectively, that the applicant meets the definition of a ‘refugee’, such that in the circumstances a protection visa must be granted: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225;
b)the applicant’s claims that he feared harm in his home village and Pakistan generally as an individual subject to an adverse finding under the Pashtun honour code hinged upon his claims in relation to his relationship with the woman and the events on her wedding night;
c)in considering the applicant’s claims the Tribunal noted that there were a number of areas that were ‘unresolved’ and ‘of concern’: CB 161 at [55], and as a result of the unresolved questions, the Tribunal was unable to be satisfied that the applicant’s claims were genuine or that the applicant had a well-founded fear of persecution for a Convention ground: CB 161 at [59]; and
d)it cannot be maintained that the Tribunal failed to engage with the specific claims advanced by the applicant, and contrary to the applicant’s submissions, the findings in relation to the claimed harm in the two areas were subsumed in the Tribunal’s finding of a greater generality: CB 161 at [59].
Ground 3 – consideration
It is plain that the applicant made a claim that he had a well-founded fear of persecution by reason of being a member of a particular social group, namely “people who have infringed the Pashtun honour code”: CB 106. The claim arose on the materials before the Tribunal.
In the first statutory declaration by the applicant at CB 57 at [2] and [4] he said as follows:
2. I respectfully request that the Australian Government grant me protection from the harm that I fear in Pakistan. My main reasons for seeking the protection of the Australian Government are based on fear of harm at the hands of the family of … [the woman] and her husband [name omitted], on account of their belief that I have disrespected their family and impugned their honour.
4. In 2009, … [the woman] and I met while we were walking to school. We liked each other and began to talk on the phone as well. We continued to grow closer and we fell in love. We wanted to marry but … [the woman] was engaged to marry another man, who had been chosen by her family. Another difficulty was that she came from an upper class family, whereas my family was middle class. For these reasons, our relationship was not sanctioned by our families or the wider community.
CB 57 at [2] and [4].
The applicant’s then migration agent made submissions to the Delegate on behalf of the applicant which included detailed submissions about the role of Jirgas which referred to women being put to death for honour-related crimes in Pashtun areas, and that:
Under the pashtunwali code of conduct a man, his family, and his tribe are obligated to take revenge for wrongs, real or perceived, to redeem their honour. Frequently disputes arose over women and land. They often resulted in violence.
The above quote from the migration agent’s submissions at CB 106 is itself a direct quote from the US State Department Country Report on Human Rights Practices for 2012 in Pakistan.
The migration agent’s submissions go on at CB 106 to quote from an Asian Human Rights Commission report on human rights in Pakistan from 2009 which refers to the Jirga-sanctioned murders of 4000 people in the previous six years, two thirds of whom have been women (and by inference one third men), many of whom were charged with having a relationship outside of their marriage.
The migration agent’s submissions specifically put on behalf of the applicant that:
… He has well-founded fear of persecution of being persecuted in Pakistan, on account of his membership of the particular social group of ‘people who have infringed the Pushtan honour code’. He also faces a real risk of significant harm in the form of arbitrary deprivation of life.
His fears are genuine and well-founded. They are supported by the country information above and the documentary evidence enclosed, both of which reflect the real risk of persecution faced by people with profiles such as his, as well as the absence of effective state protection.
CB 106.
In the applicant’s second statutory declaration the applicant refers to Jirgas in his area handing out “punishments for moral crimes”, and thereby giving “permission” to others to kill the person whom the Jirga has found committed the moral crime: CB 108 at [8].
There were also various statements provided in English translation, including one from the Court of a judicial magistrate for the relevant district, and another said to be a police statement, which reinforced the claim that the woman’s family were a respectable or noble family whose honour had been impugned by what had occurred: CB 51-54.
In Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice. In Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN”) the High Court expressed its agreement with the approach of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 (“SZTEQ”) wherein the Full Court said that s.91R(2)(a) of the Migration Act was not to be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s.91R(1)(b) of the Migration Act and Article 1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967): WZAPN at [4]-[5] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100], referring to SZTEQ at [59] and [154] per Robertson, Griffiths and Mortimer JJ, and that what is called for is a qualitative judgment to determine the nature and gravity of the alleged serious harm in each case: WZAPN at [35], [41] and [45] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100].
In 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 Federal Court observed that:
… To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on….
Put differently, what is required of the decision-maker in practical terms was described in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 where the Federal Magistrates Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims” and of “a specific consideration of the claim”: MZXIV (No. 2) at [44] and [45] per Riley FM.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”) the Full Court of the Federal Court observed that:
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
WAEE at [47] per French, Sackville and Hely JJ.
In its terms the Tribunal Decision cannot be said to be comprehensive, because it acknowledges that there are questions which are unresolved.
The Tribunal set out the claim that the woman’s family believed that the applicant had disrespected their family and impugned their honour, and referred to the Departmental file holding various documents, including a letter from the applicant’s brother, and documents purporting to be from the Jirga, police reports and court statements, and newspaper articles concerning an honour killing in the district in which a man killed his brother and sister-in-law.
The Tribunal does not however in its consideration of the claims deal specifically with the claim that the applicant was a member of a particular social group who had a well-founded fear of persecution by reason of being a member of that social group, that is individuals subject to an adverse finding under the Pashtun honour code. There is simply no engagement with the claim, examination of the documents, analysis of the content of the documents or claims, and no judgment, qualitative or otherwise, in relation to the specific claim. Nor does the Tribunal engage with any country information concerning claims of this type, including the country information referred to in the migration agent’s submissions to the Delegate – which is mentioned but not analysed: CB 159 at [30].
The assertion that this issue is subsumed by a finding of greater generality, that being that at CB 161 at [59] where the Tribunal found that it was not able to be satisfied that the applicant’s claims were genuine or that he had a well-founded fear of persecution for a Convention ground cannot stand where there has been no engagement, analysis or judgment of the claim at all, or of any particular factual issues which would justify the claim being subsumed by the more general finding set out above. Nor is there any finding that the various documents relied upon are false, or ought to be afforded no weight. Those documents are simply not dealt with at all.
For the above reasons the Court is satisfied that the allegation that the applicant had a well-founded fear of persecution by reason of membership of a particular social group was one which was actually made and clearly articulated by the applicant, and identified by the Tribunal, but not considered by the Tribunal. The Court considers that the Tribunal did not engage with the applicant’s claim based on his membership of a particular social group, and in respect of which the materials before the Tribunal demonstrated a subjective fear of persecution, which the Tribunal ought to have considered. In the circumstances, there is an error of the type identified in Dranichnikov and Htun, and that is a jurisdictional error. Ground 3 is therefore made out, and establishes jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 is as follows:
4. The Tribunal, having come to the conclusion that it needed to make a finding in regard to potential relocation by the applicant to Islamabad, Abbottabad or some other region, failed to consider whether relocation was reasonable in the sense that it was practicable.
Particulars
a. At [58] the Tribunal held that “The applicant was able to relocate to Abbotabad for two years and Islamabad for eight months without facing any harm or adverse consequences. This raises the question as to whether relocation, which has appeared to have been reasonable in the sense that it was practicable, could be employed if he returned to Pakistan.”
b. In his statutory declaration laying out his claims for protection (CB59-60; at paragraph 15) the applicant stated that he lived in a hostel in Abbotabad while undertaking his studies, that when he finished his studies he was not able to move to another region of Pakistan as his family did not wish him to live near them, and that his family wished him to leave Pakistan.
c. In a further statutory declaration (CB107; at paragraph 5) the applicant further stated that the hostel was a college hostel and his residence there was paid for by his brother.
d. As recorded in the delegate’s decision (CB131), the applicant’s residence in Islamabad was merely for the purposes of undertaking his IELTS test.
e. The Tribunal was therefore aware of facts that were materially relevant to the practicality of the applicant relocating to another area of Pakistan, namely that his residence in Abbotabad was contingent upon his continued studies there and the financial support of his brother to do so, and that his family wished him to leave Pakistan, but failed to engage with or make any finding on these issues.
Applicant’s submissions
Although the reasoning of the Tribunal appears to consider it relevant to issues of credibility and the failure of the applicant to appear at the hearing, the Tribunal nonetheless at CB 161 at [58] felt it needed to make findings on the potential for the applicant to relocate within his home country. Having come to this conclusion, the Tribunal found that:
The applicant was able to relocate to Abbotabad for two years and Islamabad for eight months without facing any harm or adverse consequences. This raises the questions as to whether relocation, which has appeared to have been reasonable in the sense that it was practicable, could be employed if he returned to Pakistan.
In statutory declarations made by the applicant and before the Tribunal, particularised in the Amended Judicial Review Application at ground 4(b) and (c), the applicant explained why he could not relocate to Abbotabad or Islamabad.
The Tribunal was therefore aware of, but did not engage with, material that was materially relevant to the practicalities of relocation elsewhere in Pakistan.
Minister’s submissions
The Minister submits that:
a)contrary to the applicant’s contention in ground 4, the Tribunal did raise the issue of whether relocation was reasonable in the sense that it was practicable: CB 161 at [59]. However, it found that question was not necessary to resolve;
b)the Tribunal did not make a finding that it was reasonable for the applicant to relocate, but approached the issue, in circumstances where it was not satisfied that the applicant’s claims were genuine, that even if his claims were genuine the applicant’s potential for relocation was a matter that would have required further consideration. The Tribunal was clear that the issue was unresolved;
c)the Tribunal was not, having been unable to be satisfied that the claims were genuine, required to engage with, or make specific findings, in relation to the applicant’s potential for relocation; and
d)additionally, even if jurisdictional error was established with respect to ground 4, which is not conceded, in the absence of successfully establishing jurisdictional error on any of grounds 1 to 3, the ultimate outcome in respect of the Tribunal’s findings about the claims for protection would be no different.
Ground 4 – consideration
Because the Court has identified jurisdictional error in the Tribunal Decision in respect of part of ground 1, and in particular, ground 3, and in circumstances where the Minister relies upon similar submissions in respect of ground 3 and 4, it follows that those grounds which are summarised at (a), (b) and (c) of [95] above, must fail. As indicated in (d) of [95] above, the successful establishment of jurisdictional error on grounds 1 and 3 would affect the ultimate outcome of the Tribunal’s findings with respect to the issue of relocation. It follows that the Tribunal was obliged to consider the issue of relocation, it having been raised by the applicant and by the Tribunal Decision, but not resolved by the latter. The Tribunal’s failure to do so was therefore a failure to consider an essential part of the applicant’s claim, and was therefore a jurisdictional error of the type identified in Dranichnikov and Htun.
In the circumstances, ground 4 therefore establishes jurisdictional error.
Conclusion on merits of Amended Judicial Review Application
Having regard to the foregoing reasons the applicant has established that jurisdictional error occurred in relation to the Tribunal Decision on the basis of part of ground 1, and grounds 3 and 4, of the Amended Judicial Review Application. The fact that there is merit in three of the four grounds of review, and that they establish jurisdictional error in the Tribunal Decision, weighs significantly in favour of an extension of time in which to file the Judicial Review Application.
Delay – extent and reasons
Ignorance of time limits or Court processes, 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”). 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.
The applicant claims in the Applicant’s Second and Third Affidavits that he had moved house and did not receive the notification of the Tribunal hearing date or the Tribunal Decision. The applicant also seeks to explain the delay by saying he was depressed following the Delegate’s Decision.
The applicant submits that:
a)the delay in this case has been short, being approximately one month. In all the circumstances of the case, the applicant further submits that the interests of the administration of justice warrant an extension being granted;
b)the first the applicant became aware of a decision being made in this matter is when, after making inquiries with CASE and the Tribunal as to the status of his application, he approached the new residents at the Mandurah address and obtained the Tribunal Decision that the Tribunal had posted to that address. At the time that the applicant became aware the Tribunal Decision had been made in the matter the applicant was thus already 27 days outside of the prescribed time limit;
c)the applicant:
i)was under the impression that CASE was acting on his behalf, and would inform him of any developments in the matter;
ii)understood from the refugee and migrant community that it was normal practice for the Tribunal to attempt to make contact with applicants by means of text messages or emails in advance of a hearing; and
iii)was facing a period of financial stress and mental health issues at the time, which contributed to his failure to notify the Tribunal of his change of address;
d)points to the evidence that:
i)the application for review of the Delegate’s Decision was faxed to the Tribunal by CASE, under a CASE coversheet and expressed as being ‘To: RRT” “From: CASE for Refugees”: CB 139;
ii)the words “CASE for Refugees” appear at the top of every page faxed to the Tribunal: CB 139-146; and
iii)the application for review of the Delegate’s Decision has been filled by electronic typing, except for a handwritten correction at CB 143, consistent with the applicant’s evidence that CASE prepared his application: CB 141-146; and
e)since receiving notice of the Tribunal Decision, the applicant has acted expeditiously to arrange legal representation and file the present application.
The Minister contends that this does not amount to an adequate explanation for the delay for the following reasons:
a)the application to the Tribunal indicated that the applicant did not want to appoint a representative: CB 144. No explanation is provided in the applicant’s affidavit as to why he thought that CASE were acting for him: Applicant’s Third Affidavit at [4]. No supporting evidence has been provided from CASE to explain the basis for this assertion;
b)no evidence has been provided to support the assertion that the applicant’s failure to notify the Tribunal of the change of address was because of depression. Additionally, the acknowledgment of the failure to notify the Tribunal of the change of address seems inconsistent with the assertion that the applicant considered that CASE was handling his application;
c)no explanation is provided as to why the applicant waited five months before apparently contacting CASE to enquire about his Tribunal matter;
d)no explanation is provided as to why the applicant took nearly a further two weeks to email the Tribunal, nor is any explanation provided as to how the applicant knew his Tribunal file number if he had not received any correspondence from the Tribunal (Annexure ‘B’ to Applicant’s Second Affidavit); and
e)no evidence is provided to establish when the applicant moved from the Mandurah address to support the assertion that he was no longer residing at that address at the time at which the Tribunal’s correspondence was sent.
The Minister contends that the applicant has not provided an adequate explanation for the delay.
In this case the delay is not insignificant. The application is 34 days out of time. In those circumstances, good reasons for the delay, or proper considerations arising from the other factors for consideration in extending time, would generally need to be present before the Amended Extension of Time Application would be granted.
The circumstances of this case are not without difficulty in assessing whether there is a satisfactory explanation for the delay. It is not difficult to understand why an applicant with limited English, and in the circumstances of being an applicant for a Protection Visa in a foreign country, might, in circumstances where CASE had acted for him before the Delegate, and had submitted the application for review to the Tribunal on his behalf, understand that CASE was acting for him, notwithstanding that he had indicated that no representative was acting for him on the application for review form. Given that there is no indication that the application for review form was interpreted to the applicant the Court could not be sure that the applicant understood all of the elements of the application for review to the Tribunal. Significantly, as soon as the applicant found out that his case had already been decided by the Tribunal he approached CASE, which would seem to indicate that he thought that they were acting: Applicant’s Second Affidavit at [12]. When CASE indicated that they were unable to act he very quickly found a lawyer who filed the Judicial Review Application within a matter of days: Applicant’s Third Affidavit at [6]. The Court notes that the applicant does not explain how he obtained the Tribunal’s reference number for his case, but does not place much weight on his failure to explain how he obtained it, it being quite conceivable, for example, that he obtained it from CASE when he made enquiries of them, or that they obtained it on his behalf. In any event, the Tribunal reference number issue is not a matter of great moment in the broader context of the Amended Extension of Time Application.
There is, however, no explanation as to why the applicant delayed for so long before making enquiries of CASE, or why he failed to notify the change of address to the Tribunal, or, perhaps more pertinently in the circumstances given his assertions, to CASE. In assessing whether there is a satisfactory explanation for delay those matters do count against the applicant.
The applicant’s assertion that he expected to receive a telephone call or message from the Tribunal ought not be doubted, as the sending by the Tribunal of SMS messages and attempts to contact applicants by telephone on numbers provided by them have been the basis for rejecting arguments that the Tribunal’s proceeding to make a decision in the absence of an applicant was legally unreasonable: CER15 vMinister for Immigration& Anor [2016] FCCA 329 at [20] per Judge Street; Kaurv Minister for Immigration & Border Protection [2016] FCA 132 at [25] per Perry J. Those judgments lend some support to the proposition that, at least on some occasions, the Tribunal has endeavoured to contact applicants by telephone or SMS message to advise of Tribunal hearing dates, and that the applicant might have expected the Tribunal to do so in his case.
The Tribunal noted, but makes no finding, as to the applicant’s alleged depression, or its effects. In order to do so there would need to be some credible medical evidence, or evidence of a history of medical attendances on the basis of depression, before the Court could attribute any delay to any alleged depression on the part of the applicant.
In the Court’s view there is some basis for understanding why it is that the applicant delayed in making the application for review to the Tribunal, and other factors which do not explain the delay. The most that can be concluded in the Court’s view is that the delay is not entirely satisfactorily explained. The Court does not consider that the delay, although not entirely satisfactorily explained, is such that it would not be in the interests of the administration of justice to grant an extension of time. Overall, the delay is probably a neutral factor.
Prejudice to the Minister
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. The degree of prejudice must, however, remain minimal in the context of proceedings where it is necessary to give consideration to the merit of the Amended Judicial Review Application as one of the factors in determining whether to extend time. Further, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett.
The extent of any prejudice to the Minister in this case is not such as to be a significant factor against an extension of time being granted, and even more so where there is significant merit in the Amended Judicial Review Application for reasons set out above.
Impact on the applicant
The impact on the applicant of a failure to extend time for making the Judicial Review Application will be considerable, as, for reasons set out above, the Tribunal Decision is affected by jurisdictional error. The jurisdictional error in relation to part of ground 1 had the effect of denying the applicant a hearing before the Tribunal, and therefore an opportunity to put his case. The possibility cannot be precluded that, had the applicant been able to appear before the Tribunal and give evidence and put materials before it, he may have been able to persuade the Tribunal that he was entitled to the Protection Visa. In saying that, the Court is saying nothing concerning the actual merits of the case as it was before the Tribunal without the benefit of the applicant appearing, or expressing any likely view as to what the outcome would have been if the applicant had appeared, but rather merely observes that a positive outcome for the applicant cannot be precluded had he appeared before the Tribunal.
Given that the effect of time not being extended in which to file the Judicial Review Application is that the applicant will not have his case remitted to the Tribunal for further consideration, in circumstances where the Court has concluded that the Tribunal Decision is affected by jurisdictional error, and thus the applicant would be denied the opportunity to be granted a Protection Visa, in circumstances where he asserts a well-founded fear of persecution or significant harm upon return to Pakistan, the possible impact on the applicant of a refusal to extend time is such that it weighs in favour of an extension of time in which to file the Judicial Review Application.
Public interest
As to the interests of the public at large, this matter is determinable on existing well understood and explained provisions in the Migration Act and under the Migration Regulations 1994 (Cth), and on established applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Conclusions and orders
Having regard to each of the factors considered above in relation to whether the applicant ought to be granted an extension of time on his Amended Extension of Time Application, the Court is of the view that time ought to be extended. In particular, the Court considers that the jurisdictional error which has been established in the Tribunal Decision on the basis of part of ground 1, and grounds 3 and 4, is, together with the impact on the applicant, sufficient to warrant an extension of time notwithstanding that the delay is not insignificant and not altogether satisfactorily explained. There will therefore be an order that pursuant to s.477(2) of the Migration Act the time in which to file the Judicial Review Application be extended to the time at which it was filed, on 16 December 2014.
The Court has concluded that jurisdictional error has been established in relation to the Tribunal Decision on the basis of part of ground 1, and grounds 3 and 4, of the Amended Judicial Review Application. It follows that prerogative relief ought to be granted by way of a writ of certiorari directed to the Tribunal quashing the Tribunal Decision, and a writ of mandamus issued to the Tribunal requiring it to re-consider and re-determine the applicant’s application for review to the Tribunal according to law.
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 one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 May 2016
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