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SZVDO v Minister for Immigration & Anor [2015] FCCA 2163 (14 August 2015)
Last Updated: 17 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
SZVDO v MINISTER FOR
IMMIGRATION & ANOR
|
|
Catchwords: MIGRATION – Application for
extension of time within which to bring proceedings – significant delay
– no reasonable
excuse given – allegation that Tribunal failed to
apply correct test under sub-s.91R(2)(f) of Migration Act 1958 –
application dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & BORDER
PROTECTION |
|
Date of Last Submission:
|
4 August 2015
|
REPRESENTATION
Counsel for the
Applicant: |
Ms F. Graham
|
Solicitors for the Applicant: |
Rasan T. Selliah & Associates
|
Counsel for the First Respondent: |
Mr P. Knowles
|
Solicitors for the Respondents: |
DLA Piper Australia
|
ORDERS
(1) The application for an extension of the period
within which to make an application under s.476 of the Migration Act 1958
(Cth) be dismissed.
|
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT
SYDNEY
|
SYG 2646 of
2014
Applicant
And
MINISTER FOR IMMIGRATION & BORDER
PROTECTION
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- The
applicant comes from Afghanistan and is an Hazara of the Shia faith. He made it
to Australia by boat and seeks permission in the
form of a protection visa to
stay here as a refugee. He claimed that if he were to return to Afghanistan he
would be persecuted by
the Taliban because of his ethnicity and that he had no
ability to subsist there. A delegate of the Minister refused to grant the
applicant a protection visa and he applied to the Refugee Review Tribunal for
review of that decision. The Tribunal affirmed the
delegate’s decision and
set out its reasons for that decision in a document dated 18 June
2013.
Extension of Time
- This
Court has jurisdiction to review decisions of the Tribunal; however, an
application for such review must be made within 35 days
of the date of the
decision: s.477(1) of the Migration Act 1958. The applicant made this
application on 24 September 2014, more than 14 months after the date of the
Tribunal’s decision.
- The
Court has the power to extend the period in which an application must be made on
two conditions: first, that an application for
the order has been made in
writing to the Court specifying why the applicant considers it necessary in the
interests of the administration
of justice to make the order; and secondly, the
Court is satisfied that it is necessary in the interests of the administration
of
justice to make the order.
- It
is not in issue that the first of those conditions has been satisfied. The
question, then, is whether the Court is satisfied that
it is necessary in the
interests of the administration of justice to make an order extending the period
for making an application
for judicial review.
- There
are no particular criteria specified in s.477 which must be satisfied as part of
the concept of “the interests of the administration of justice”. The
matters which
might be taken into account by the Court are at large, although
they must logically and sensibly relate to the interests of the administration
of justice: SZRIQ v Minister for Immigration & Citizenship [2013] FCA 1284; (2013) 139
ALD 252 at [46] per Foster J. The factors that are commonly relevant to this
issue are:
- the
extent of the delay;
- the
reasons for the delay;
- any
prejudice to the respondent;
- the
impact on the applicant if time is not extended;
- the
interests of the public at large;
- the
merits of the proposed judicial review application; and
- the
Court’s discretion itself.
Delay
- As
I have noted, the delay in this case is in excess of 14 months. There is no
question that that is significant. The applicant seeks
to explain his delay by
saying, in effect, that he has very limited English language skills and no
connection to broader community
support. He added that, while he was legally
represented in the course of the review by the Tribunal, his solicitors did not
give
him any advice about the Tribunal’s decision or any option that he
might have following the decision.
- The
applicant’s evidence in this respect was uncontested and I accept that he
received no advice from his lawyers after the
Tribunal’s decision.
However, in the evidence before the Court there is a document entitled
“Information about Tribunal
decisions” that follows the
Tribunal’s statement of reasons. I infer from the contents of that
document that it was sent
to the applicant’s lawyers together with the
decision record. The document, which is in English, states
relevantly:
- If you
think that the decision of the tribunal is wrong in law, you may consider
seeking judicial review in the Federal Circuit Court
of
Australia.
- The
applicant does not say in his evidence whether he received this document;
however Ms Graham, who appeared for the applicant, accepted
that it was a
possible inference that it was sent to him. In the absence of any explanation by
the applicant about this document
I am not satisfied that the applicant had no
means of knowing that one course available to him, if he was unsatisfied with
the Tribunal’s
decision, was to bring judicial review proceedings. That
said, the document only goes so far. It does not, for example, indicate
that
there is a time limit for bringing judicial review proceedings or give any
indication as to how such proceedings are to be brought.
- Ms
Graham argued that, as the applicant had been legally represented, he had a
legitimate expectation that he would be given advice
about his options in
respect of the decision and that this goes some way to excusing the delay. I do
not accept that argument. First,
there is no evidence of any subjective
expectation held by the applicant; and secondly, there is no evidence of any
terms of the
applicant’s lawyers’ retainer or indeed any indication
by them that might suggest an ongoing relationship after the Tribunal’s
decision beyond sending that decision to him. In the absence of those matters I
am not prepared to infer that there was any sort
of expectation as to what his
lawyers might do and what assistance might be gained by the applicant from them.
More critically however,
the applicant had the opportunity to seek advice from
his lawyers rather than passively wait for it. The fact that he did not avail
himself of that opportunity is a matter that weighs against the applicant.
- I
should note that Ms Graham did not rely on the concept of legitimate expectation
in the sense often discussed in the authorities
(see for example, Minister of
State for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; cf.
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam
(2003) 214 CLR 1 and, in spite of the comments there, Minister for
Immigration & Border Protection v WZARH [2014] FCAFC 137) but only as
part of the way in which the applicant explained his failure to promptly bring
judicial review proceedings.
- The
applicant also gave evidence that after the 35 day time limit had expired, his
payment from the Migrant Resource Centre was stopped.
The applicant did not
explain what this payment was or what role the Migrant Resource Centre played.
However, the fact that this
Centre was paying the applicant until the time limit
for judicial review had expired suggests a number of things. Principally, it
suggests that the applicant had yet another source of information concerning his
visa status and, quite possibly, the options available
to him in relation to the
Tribunal’s decision. In spite of this, the applicant has given no evidence
as to any attempt to seek
out that information from the Centre.
- The
applicant said that, at the time of the decision, he was living in Naracoorte, a
remote area in South Australia, and that this
hindered his ability to obtain
assistance. While minds might differ as to whether Naracoorte is indeed remote,
being in the Limestone
Coast region of South Australia, he still had available
to him telephonic and electronic means of communications and, as will be
seen,
was in contact with at least one other person being a friend in Sydney.
- The
applicant says that he decided to move to Sydney because a friend of his asked
him to come. He did not explain who the friend
was or whether he asked the
friend for any assistance in respect of the Tribunal’s decision. However,
the important fact is
that, contrary to his earlier assertion, he had some
connection to broader community support in the form of a friend.
- The
applicant then says that he was told at some time, but cannot remember when,
that applying to the Minister would cost $3000. I
take this as a reference to an
application for the exercise of the Minister’s discretion under s.417 of
the Act. While he does not say so, the applicant appears to infer that he did
seek advice about his possible options and that
applying to the Minister was
expensive. However he does not say whether he also obtained advice about the
cost or availability of
seeking judicial review.
- The
applicant next said that he is suffering from lack of sleep, nightmares and
restlessness and that he is confined to the room and
does not go out. He does
not explain how long he has been so confined and I am not satisfied that even if
it were true, that he had
been closed up in a room by himself for any length of
time prior to making the application for judicial review. Importantly, the
applicant’s evidence is that he has been receiving money from the Asylum
Seekers Assistance Centre from January 2015 to June
2015. Once again, this
indicates that the applicant is able, when he wants, to obtain assistance in
connection with his status as
an asylum seeker.
- The
applicant says that he was unable to access timely legal assistance for his case
because he is unfamiliar with the Australian
legal system and the claims
assessment process and was previously unaware that he had the option to seek the
repeal of his review
outcome. It also said that he was never able to gain
employment and, together with his lack of language skills, could not seek
assistance.
I do not accept that evidence. As I have noted, on the occasion that
the applicant needed assistance he was able to get it in the
form of monetary
payments. Further, when his friend was detained by the Department of Immigration
he managed to find himself pro
bono lawyers in Sydney.
- In
summary, the applicant had available to him resources that, if he had been
interested, could have made him aware of the option
of seeking judicial review
and most probably that there was a time limit for doing so. I find that he took
no steps to avail himself
of such resources until, as he said, he was afraid
that he might be found and be taken into immigration detention. He has no
reasonable
excuse for the delay in bringing these proceedings. His actions
satisfy me that he had no desire at all to contest the Tribunal’s
decision
and that he was content with remaining in Australia without a valid visa. This
is a matter that, taken together with the
extent of the delay, weighs
significantly against the grant of an extension of the period to bring these
proceedings.
Merits
Application
- The
ground in the application is that the Tribunal failed to apply the correct test
under sub-s.91R(2)(f) of the Act. The particulars
to the ground are that the
Tribunal failed to find that the applicant would face serious harm despite
having held, at [108] of the
decision, that the applicant would face
unemployment and poverty if returned to Afghanistan. The relevant paragraph of
the decision
is:
- [108] I
have considered the applicant’s claims and the independent material
concerning his home, Kabul. His claims in regard
to the level of work there and
the amount of money he can make are quite credible when the independent material
is considered. This,
lack of employment opportunity and poverty, sadly is the
tragedy that faces many families such as his but harm of this nature, without
more, falls outside of the ambit of either the Convention or the terms of
Complementary Protection. I find on the evidence before
me that the applicant
can live in Kabul and he can subsist there.
- In
his written submissions the applicant explained that the Tribunal’s error
was that it failed to engage in a qualitative assessment
as to the degree of
threat the situation in Kabul would pose to the applicant’s capacity to
subsist. He went on to argue that
there had been no attempt by the Tribunal to
engage in an analysis of the risks posed to his substances by factors such as
war. Further,
he argued that by directing itself to the question of whether the
applicant could subsist, the Tribunal failed to ask the correct question,
namely, whether the applicant’s economic circumstances in Kabul would
threaten the applicant’s capacity to subsist.
- In
her oral submissions Ms Graham added that the Tribunal had asked itself the
wrong question in determining whether the Taliban might
retake control of Kabul.
The passage upon which she relied was:
- [129] Having
given consideration to the evidence before me I find that any attempt to make
findings to the effect that Taleban will take control and that Hazaras or
Shias will face a real chance of persecution in the reasonably
foreseeable future based on the NATO withdrawal are mere unfounded speculation
and do not lead to a finding that there is a “real and substantial
risk” or one which is neither remote nor insubstantial
such that it
constitutes a real chance of serious harm to the Hazara in Kabul in the
reasonably foreseeable future.
(Emphasis added)
- In
determining the question of the merits of any substantive application is
important to recall that this is only to be done as part
of the process of
weighing up factors relevant to the best interests of the administration of
justice. For that reason it is not
necessary for present purposes to come to any
concluded view about those merits.
- At
one level, the merits of these arguments depends upon the view taken of the
particular words used by the Tribunal in two paragraphs
of its statement of
reasons. That view will necessarily be determined by having regard to the
context of those words which will include
all of the claims made by the
applicant, the material before the Tribunal and all of its other reasons. For
the reasons that I set
out in more detail below, my view for present purposes is
that the grounds are likely to fail at any substantive hearing.
- However,
that is not to say that they are without any merit. For instance, the use by the
Tribunal of the word “will”
in [129] of its reasons suggests that it
may not have been assessing the future possibility of events, that is the risk
that such
events would take place, but rather the more concrete question of
whether events will or will not occur. If that were accepted, then,
subject to
any other argument, the Tribunal would have fallen into jurisdictional error.
Thus, I need only go so far as to say that
in my view there are some merits in
the application but that those merits are insufficient to outweigh the
significant delay and
the lack of reasonable excuse for that delay. That
statement should not be read as though I have taken these matters into account
in isolation from all the other considerations which I will deal with after
having set out my brief reasons as to the weaknesses
in the arguments on the
merits of the case.
- Dealing
first with the argument concerning the ability to subsist at [108] of the
Tribunal’s reasons, the first difficulty with
the applicant’s
argument is that there must be a Convention nexus to any harm that may be
suffered by a putative refugee. It
is important to remember that the definition
of “refugee” in Art.1A (2) of the Refugees
Convention[1] contains four cumulative
elements, one of which is that any persecution feared must be “for reasons
of race, religion, nationality,
membership of a particular social group or
political opinion”: Minister for Immigration & Border Protection v
SZSCA [2014] HCA 45; (2014) 89 ALJR 47 at 54 [35] per Gageler J. Although Ms Graham argued
that the applicant’s claims always included a connection between the
feared harm at
the hands of the Taliban and the threat to the applicant’s
ability to subsist, nowhere in the material before the Tribunal
was that
connection ever made explicit nor sufficiently obvious to require the Tribunal
to give express consideration to it: cf NABE v Minister for Immigration &
Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1. Thus, even
if the Tribunal erred in the manner suggested by the applicant it would not have
been material to its decision.
- Secondly,
contrary to the applicant’s primary argument, it is more than arguable
that the Tribunal did engage in a qualitative
assessment of the threat to the
applicant’s ability to subsist. Although the Tribunal’s reasons are
stated quite briefly,
that must be seen in light of its earlier consideration of
the applicant’s evidence concerning the amount of work that he conducted
in the complaints that he had in connection with his financial circumstances. It
may be noted in particular that the applicant himself
said that the real issue
of concern for him was the security situation in Kabul. Further, in finding that
the applicant “can
subsist” in Kabul the Tribunal dealt effectively
with any threat to his ability to subsist. Effectively it found that there
was
no such threat.
- For
those reasons, the arguments articulated by the applicant in support of the
ground articulated in the application is not likely
to succeed.
Matters raised at hearing
- The
question arose at the hearing of the application as to whether a Convention
nexus might have been established in the following
way: the applicant claimed
that he would not work outside of Kabul because it was dangerous; arguably it
was dangerous because the
Taliban, who were in control of large areas outside of
Kabul, targeted Hazaras; as a consequence, the only place in which the applicant
could even attempt to find work was in Kabul; thus, if there were no work in
Kabul the consequent poverty would have been as a direct
result of the threat
posed by the Taliban outside Kabul. I accept the response to this by
Mr Knowles, who appeared for the Minister,
namely that it was strongly
arguable that this was not a claim articulated by the applicant or one that was
obvious on the face of
the material.
- The
next argument , as I have mentioned above, is that the Tribunal did not address
the correct question in respect of the possibility
that the Taliban might retake
control of Kabul. The difficulty with this argument is that it relies on the use
of a single word without
regard to the context of that word. The first important
matter to note is that paragraph [129] of the Tribunal’s reasons is
rather
awkwardly expressed. The Tribunal’s first finding is addressed to
“any attempt to make findings to the effect
that Taleban will take
control...”. In my view this is no more than an infelicitous way of
expressing the argument that had
been made by the agents for the applicant and
which was set out at [127] of the Tribunal’s reasons:
- [127] It
has been submitted that the nature of the ongoing conflict between the Afghan
government and Taleban may be relevant to
a submission that the country
could fall into the hands of the Taleban after the NATO forces leave in
2014 and that the situation could change in the reasonably foreseeable
future. I have discussed this below.
(Emphasis added)
- The
Tribunal uses the word “could” twice in that paragraph. This
suggests that the Tribunal was well aware of the correct
test. In light of that,
it is, in my view, a stretch to say that in the space of two paragraphs Tribunal
has forgotten that test
as revealed by the use of the word
“will”.
- Further,
within paragraph [129] itself, the Tribunal refers to both “a real and
substantial risk” and a “real chance
of serious harm”
revealing a proper understanding of the meaning of a “refugee” in
the Refugee Convention.
- For
those reasons I consider that the second argument raised at the hearing of the
application is also unlikely to succeed on a final
hearing.
Other considerations
- The
Minister did not rely on any prejudice that might flow from an extension of time
to bring proceedings but points to the public
interest in the early
determination of the validity of administrative decisions in the interests of
certainty and finality.
- The
applicant suggested that it was relevant to consider that one of the
consequences of a refusal to extend the time within which
to make an application
was that he would be sent back to Kabul where he would live without personal
safety and, as found by the Tribunal
at least in some degree of poverty. The
Minister argued that that was not a relevant consideration. He said that while
it was important
the decisions made according to law, and that would be the
focus of any judicial review if an extension of time were grant, it would
not be
the direct consequence of a refusal of the application extend time that the
applicant be returned to Kabul and live in poverty
and relative insecurity. I
agree with the Minister’s submission. It must be remembered that the focus
of the present enquiry
is whether the Court is satisfied that an extension of
time is in the interests of the administration of justice. It is for that
reason
that Foster J explained that, while the matters that the Court may take into
account do not have any fixed boundary, they
must logically and sensibly relate
to the interests of the administration of justice: SZRIQ at [46].
- In
my view, while the return of any putative refugee to a country where he or she
may be a significant risk of poverty, physical danger
or other trying
circumstances, those matters are not logically connected to the administration
of justice so that they must be taken
into account in deciding whether to
exercise a power under s.477(2) of the Act.
- On
the other hand, the fact that there is no right of appeal from a judgment
refusing to extend time under s 477(2) is a matter that is relevant and I have
taken that into account. Although this Court is always subject to the
supervisory jurisdiction
of the Federal Court and the High Court, that often
provides a more difficult route to review of an adverse decision than an
appeal.
Conclusion
- In
this matter the most significant consideration in my view is that the applicant
has not given any reasonable excuse for the significant
delay in making this
application. In light of that, as well as the general public interest in the
certainty and finality of administrative
decision-making, although there is some
merit in the grounds raised by the applicant, they are insufficient to warrant
an extension
of time within which to bring the proceedings. Accordingly, I am
not satisfied that it is in the best interests of the administration
of justice
that there be an extension of time. For that reason, the second precondition to
the Court’s power to grant such
an extension is not an established and the
application must be dismissed.
- I
thank both counsel for their submissions and in particular Ms Graham who
appeared pro bono for the applicant. It is always of great
assistance to the
Court that litigants be well-represented.
I certify that the
preceding thirty-seven (37) paragraphs are a true copy of the reasons for
judgment of Judge Smith
Associate:
Date: 14 August 2015
[1] Convention relating to the
Status of Refugees done at Geneva in 1951 as amended by the Protocol relating to
the Status of Refugees
done at New York in 1967
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