BZAHN v Minister for Immigration and Border Protection

Ground 1 41 The first ground of the originating application alleges that the primary judge "misapprehended the test to be applied under s 477(2)(b) of the Migration Act…in determining whether there was a discretion to extend the time". As there is dissonance between that ground and the particulars of the ground that follow, I propose to treat the particulars as separate grounds. 42 The applicant was represented by a solicitor at the hearing of the present application, but the solicitor did not make any oral submissions, preferring to rely only on his written submissions. The applicant's written submissions do not address how it is that the primary judge is said to have "misapprehended the test to be applied under s 477(2)(b)." 43 Section 477(2) of the Act allows the Federal Circuit Court to extend the time for filing an application for constitutional writs in respect of a Tribunal's decision. There are two conditions that must be met before that power is enlivened: firstly, a written application specifying why it is in the interests of the administration of justice to extend time; and secondly, that the Court is satisfied that it is necessary in the interests of the administration of justice to extend time. It is the second condition upon which the applicant failed. 44 The primary judge set out a number of factors that bore upon paragraph (b) of s 477(2). Those matters included the length of delay, the reasons for delay, any prejudice to the parties as a result of the delay, the consequences if the extension were refused and the merits of the substantive application. 45 As to the length of the delay, the applicant submitted before the primary judge that the delay was 49 days. The applicant calculated that period from the date on which he was advised that his request under s 417 of the Act had been refused. Section 477(1) requires any application for judicial review to be filed within 35 days of the "date of the migration decision". As is made plain by ss 477(3) and 430(2) of the Act, the "date of the migration decision" means the date of the Tribunal's decision. The primary judge was correct in calculating the length of delay as 126 days. 46 His Honour found the applicant's explanation for the delay to be inadequate. As to the consequences of refusing the extension, the primary judge noted that the applicant would have no further avenue by which to seek protection in Australia. 47 Finally, as to the merits of the substantive application, his Honour concluded that the application did not raise any arguable case of jurisdictional error. His Honour accordingly dismissed the application for an extension of time. 48 There is no discernible basis for the applicant's assertion that the primary judge misapprehended the test to be applied under s 477(2) of the Act. 49 Paragraph (a) of the particulars of the applicant's first ground before this Court is that the primary judge "erred in law by not considering that there is strong merit in the grounds in the application such as to establish jurisdictional error". This requires consideration of whether his Honour erred in his assessment of the legal merit, or lack of merit, of the applicant's proposed application for constitutional writs. 50 Before the Federal Circuit Court, the sole ground of the applicant's proposed application for constitutional writs was the Tribunal had "breached its statutory obligation under s 36(2)(aa) of the Act", as it "failed to analyse and or examine the relevant information or facts". The primary judge held that this ground failed because s 36(2)(aa) of the Act did not impose any statutory obligation. His Honour was correcting in deciding s 36(2)(aa) imposes no specific obligation distinct from or additional to the Tribunal's general duty to review under s 414(1) of the Act. 51 The primary judge then took an approach favourable to the applicant by considering the particulars of the ground of the applicant's proposed application as if they were separate grounds. The first two paragraphs of the particulars did not identify or allege any error of law but simply recited facts. The third paragraph claimed the Tribunal failed to "fully investigate and make findings" in assessing the applicant's fear of harm of returning to Vietnam. 52 The claim that the Tribunal failed to fully investigate was underpinned by an assumption that the Tribunal was under a duty to investigate. Before this Court, the applicant submitted in his written submissions that "the Tribunal has clearly failed its statutory duty to make inquiries" and the Tribunal was required "to make proper inquiries into the situation of Catholics in Vietnam". However, the Tribunal is under no general duty to make inquiries. The duty imposed upon the Tribunal, elucidated in SZIAI at [18]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), is a "duty to review, not necessarily a duty to make inquiries." The exception is that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, may constitute a failure to review. 53 In Jahangir v Minister for Immigration and Border Protection (2014) 222 FCR 91 at [56], Katzmann J held that the exception in SZIAI is: …concerned with situations in which there is insufficient information or material before a decision-maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error. 54 In this case, there is no suggestion that the Tribunal had insufficient information or material before it to make a decision. The applicant's written submissions focus on the Tribunal's allegedly incorrect interpretation of country information and its allegedly incorrect weighting of aspects of such information. The applicant's case does not fall within the exception articulated in SZIAI. His Honour's rejection of the third paragraph of the particulars was correct. 55 In the proposed application before the primary judge, and in the applicant's written submissions before this Court, the applicant alleged that the Tribunal "wrongly interpreted country information to make an erroneous finding that the Catholics' situation has greatly improved since [the] Applicant's departure". 56 The Tribunal found, on the basis of country information from the US Department of State, a 2013 Report of the US Commission on International Religious Freedom and the Catholic Hierarchy website, that "the situation for Catholics in Vietnam generally and in the Diocese of Nha Trang specifically has greatly improved since the 1980s and early 1990s." That conclusion was open to the Tribunal from the information before it. The allegation that the Tribunal misunderstood that information is an allegation that the Tribunal made a factual error - it is not an allegation of jurisdictional error: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ) ("NAHI"). 57 In response to the applicant's submission that the inclusion of extracts of country information in the Tribunal's reasons showed a failure to consider the reports as a whole, the primary judge stated that: …there is no basis to reasonably infer that the tribunal did not consider the entirety of the relevant report merely because certain aspects of it were extracted in the tribunal's decision. The tribunal…extracted what it considered to be a pertinent extract. That does not indicate that the tribunal failed to "adequately consider" the entirety of the report. 58 The Tribunal was not required to refer to each piece of evidence, but only those that it considered relevant to its findings: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] (Gleeson CJ), [33] (Gaudron J), [68] (McHugh, Gummow and Hayne JJ), NAHI at [14]. There is no error in his Honour's reasoning. 59 The applicant alleged in his application to the Federal Circuit Court that an undue burden was placed on him to produce independent material. The primary judge held that the Tribunal "placed no burden upon the applicant". His Honour stated that in making its findings, the Tribunal simply assessed the evidence before it and that the Tribunal preferred the independent country information with respect to the current situation for Catholics in Vietnam over the applicant's "unsupported" assertion that the present situation in Vietnam was the same as it was in 1992. His Honour's conclusion was correct. When the Tribunal noted that the applicant was unable to produce any independent information to support his claim that local authorities in his area continued to behave in a harsh way, the Tribunal was merely summarising the state of the evidence before it, rather than imposing any onus of proof on the applicant. 60 In his written submissions to this Court, the applicant submits that it was plainly wrong for the primary judge to label his claim as "unsupported", as the country information supports his assertion. The Tribunal noted that particular groups of Catholics continue to face problems in some areas of Vietnam, but that the Tribunal was "unable to locate any reports of problems for Catholics in the area in which the applicant's family lives at least in the last decade." The evidence of the applicant which the primary judge described as unsupported was the claim that the present situation in Vietnam, in particular his local area, was the same as it was in 1992. I consider that the primary judge was correct in this conclusion. 61 As to the allegation that the Tribunal placed "too heavy a weight" on some facts or evidence, the primary judge correctly stated that "matters of weight are matters within the exclusive province of the tribunal": see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), NAHI at [11]. 62 The applicant's reliance on the "household registration" allegation in the applicant's proposed application before the primary judge appears to have been abandoned as it is not re-agitated in the written submissions before this Court. His Honour was also correct in his characterisation of this allegation as impermissibly seeking merits review. 63 The applicant' assertion in paragraph (a) of the particulars of Ground 1 of the application before this Court that the primary judge erred in law by not considering that there is strong merit in the grounds of the application such as to establish jurisdictional error is not established. 64 In paragraph (b) of the particulars of Ground 1. The applicant asserts that the primary judge "erroneously concluded that the grounds in the review application sought merits review." This assertion was not developed in written submissions. His Honour concluded that each of the three particulars of the applicant's proposed ground impermissibly sought merits review of the Tribunal's decision. His Honour was plainly correct in that assessment.

Ground 2 65 The applicant claims in his second ground before this Court that the primary judge made an error of law by not recognising that the Tribunal "did not assess the Applicant's claims under s 36(2)(aa) of the Act." This ground is particularised. The first particular is that his Honour failed to recognise that the Tribunal "did not consider that as a perceived Catholic who has sought asylum in Australia, and as a person who was subjected to imprisonment and torture for 8 months, the Applicant faces a real risk of significant harm upon return". 66 In its reasons, the Tribunal referred to s 36(2)(aa) of the Act. The Tribunal then referred to its earlier finding that there was no real chance that the applicant would face persecution in Vietnam. The Tribunal concluded that it was "not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm." 67 The primary judge found that the Tribunal was alive to the requirements of s 36(2)(aa) and addressed them in the context of its factual and other findings. The matters which the applicant claims the Tribunal did not consider were in fact considered by the Tribunal in its discussion of the criteria under s 36(2)(a) and then relied upon by the Tribunal in its discussion of s 36(2)(aa). The applicant has therefore failed to demonstrate the error alleged in the first particular of Ground 2. 68 The second particular of Ground 2 is that his Honour "failed to recognise that the Tribunal made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of Refugees Convention Claim, but made no attempt to distinguish the different tests posed by s 36(2)(a) and s 36(2)(aa) of the Act". 69 On a fair reading of the Tribunal's reasons there is no indication that the Tribunal failed to distinguish between ss 36(2)(a) and 36(2)(aa). Further, it is not correct to say that the Tribunal failed to consider the complementary protection criteria simply because it did not repeat the factual basis on which its conclusion was based. The Tribunal said that its conclusion was made on the basis of "the findings set out above". Whilst two distinct statutory provisions were identified and applied, the factual findings of the Tribunal were relevant with respect to both ss 36(2)(a) and 36(2)(aa). In particular, the Tribunal found, with respect to s 36(2)(a) of the Act, that there was no real chance that the applicant would face persecution if he were to return to Vietnam. This finding and the factual findings on which it was based informed the assessment, under s 36(2)(aa) of the Act, as to whether, as a necessary and foreseeable consequence of his return to Vietnam, there is a real risk that the applicant will suffer significant harm. 70 As to particular (c) of Ground 2, it is unclear what evidence and materials the applicant asserts were not considered by the Tribunal. On my reading, the Tribunal considered all of the applicant's claims and the evidence before it. The applicant's real complaint seems to be that the Tribunal should have assessed the material differently and made a different decision. That is an attempt at merits review, not an allegation of jurisdictional error. 71 For these reasons, the applicant has not established that primary judge committed any error of law in dismissing the applicant's application for an extension of time under s 477(2) of the Act. It follows that the primary judge has not committed any jurisdictional error. Therefore, the applicant's application must be dismissed with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.