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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

REPRESENTATION

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.

SYG 2646 of 2014

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

1. 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

2. 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.
3. 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.
4. 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.
5. 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:
   1. the extent of the delay;
   2. the reasons for the delay;
   100. any prejudice to the respondent;
   4. the impact on the applicant if time is not extended;
   5. the interests of the public at large;
   6. the merits of the proposed judicial review application; and
   7. the Court’s discretion itself.

Delay

6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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

18. 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.
19. 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.
20. 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)

21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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

27. 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.
28. 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)

29. 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”.
30. 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.
31. 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

32. 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.
33. 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].
34. 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.
35. 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

36. 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.
37. 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