CQW17 v Minister for Immigration, Citizenship and Multicultural Affairs

KATZMANN J: 1 The applicant is an Iraqi national who, for various reasons, claims to have a well-founded fear of persecution in his country of nationality. He arrived in Australia by boat in May 2013. For this reason he was an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth) (Migration Act or the Act) and barred from making a valid application for a visa (Migration Act, s 46A(1)). In November 2016, after the Minister lifted the bar, he applied for a temporary protection (subclass 785) visa in November 2016. 2 Following an interview with a delegate of the Minister, his visa application was refused. The delegate's decision was then referred to the Immigration Assessment Authority in accordance with s 473CA of the Act. The Authority affirmed the delegate's decision on 30 April 2017. The applicant successfully applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision. Orders were made quashing the Authority's decision and remitting the visa application to the Authority for reconsideration according to law. The Minister lodged an appeal. A Full Court of this Court dismissed the Minister's appeal, holding that, in spite of an error by the Federal Circuit Court in the construction and application of s 473DD, the judgment of that court should be affirmed: Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 (CQW17 2018). After the application was reconsidered by the Authority, the delegate's decision was again affirmed and again the applicant applied to the Federal Circuit Court for judicial review. On this occasion, however, the primary judge dismissed the judicial review application. More than three years later, the applicant filed an application in this Court for an extension of time to appeal. For the reasons that follow, that application must also be dismissed. 3 At the time judgment was pronounced, r 36.03 of the Federal Court Rules 2011 required a notice of appeal to be filed and served within 21 days after the date when the order or judgment was pronounced. A party wishing to apply for an extension of time must file an application in accordance with Form 67 accompanied by the judgment or orders from which the appeal is to be brought; the reasons for the judgment or orders, if published; a draft notice of appeal which complies with rr 36.01(1) and (2), and an affidavit stating briefly but specifically, the facts on which the application relies and the reasons the notice of appeal was not filed within time. 4 The principles governing applications for extensions of time are well established. First, the legislated time limits are not to be ignored. An extension should only be granted where it is proper to do so. Second, there must be an acceptable explanation for the delay. Third, prejudice to the respondent caused by the delay will militate against a grant of extension but the mere absence of prejudice is insufficient to warrant an extension. Fourth, the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension is granted. Fifth, the merits of the proposed appeal are relevant. In determining the merits for this purpose it is inappropriate to conduct a full investigation but an obvious strength or weakness in the applicant's case weighs for or against upholding the application. An extension will not be granted where the appeal has no reasonable prospects of success. Sixth, special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted, particularly if the applicant is in immigration detention, requires the assistance of an interpreter, and has limited knowledge of law and practice including the time for any appeal. If the applicant is an asylum seeker, the gravity of the consequences may be a reason for not applying the time limit too strictly. Even so, the merits remain a relevant consideration. See BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan and O'Bryan JJ) and the authorities referred to there. 5 Here, the Minister does not claim to suffer "any specifically-identifiable prejudice" but other factors weigh heavily against the grant of an extension. 6 The first is the length of the delay. 7 The primary judge delivered his judgment on 15 March 2019. That meant that the applicant was required to file and serve a notice of appeal on or before 8 April 2019. The extension of time he seeks is in the order of 3 years and two weeks. As the Minister pointed out in his submissions, that equates to more than 52 times the limitation period then in force and is properly described as extreme. 8 The second factor militating against the grant of an extension of time is the unsatisfactory nature of the explanation for the delay. 9 In general, the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195; Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Wigney J). 10 The application for extension of time was supported by an affidavit which included no explanation for the delay; it merely annexed a copy of the judgment. An explanation was provided, however, in a document entitled "Reasons of Extension of Time". The explanation reads as follows (without alteration): I WAS IN DETENTION CENTRE AT THE TIME OF FEDERAL CIRCURT COURT AND WHILE IN DETENTION I DID NOT KNOW WHAT TO AND WE HAD LITTLE RESORSES. I APPLIED FOR LEGAL AID AND WAS NOT QUALIFED FOR ASSESTANCE AND I WAS GOING THROUGH DEPRESITRION AND ANXITY AND WAS UNDER PYCOLOGIST AND PYCITRIST CARE UNTIL JUNE 2021. I AM STILL IN MEDICAL CARE FOR TREATMENT FOR SUISIDAL I WAS ADVICED BY MY IMMIGRATION CASE MANAGER AND A.B.F CASE MANAGER THAT I CAN APPLY FOR EXTENTION OF TIME. MY APPLICATION IS DONE BY IMMIGRATION CASE MANAGER AT YONGAH HILL IMMIGRATION CENTRE. 11 In oral argument the applicant referred to the effect detention has had on him, apparently attributing his current plight to his experience of immigration detention. 12 I accept that the applicant was in detention at the time the judgment was published. I also accept that his explanation for the delay is plausible. Given the length of the delay, however, the absence of evidence to support his assertions, and the fact that he was legally represented in the court below, the explanation is both unsatisfactory and unpersuasive. First, it is not evidence in that it was not contained in an affidavit. Second, the applicant does not indicate when he applied for legal aid, why he was not qualified for assistance when he was legally-aided in the court below, or when he was told he was not qualified for assistance. Third, the applicant provided no evidence to support his assertion that he was unwell, when he became unwell, when he was first seen by a psychologist or psychiatrist, or why his depression and/or anxiety prevented or inhibited him from lodging an appeal within time or applying earlier for an extension of time. Fourth, the applicant does not say when he learned he was able to apply for an extension of time. 13 The third factor militating against the grant of an extension is the apparent lack of merit in the proposed appeal. 14 The draft notice of appeal contains a single ground which reads that "[t]he primary judge erred by dismissing each and every ground of the Tribunal's decision relied upon by the then Applicant". 15 Of course, the decision to refuse the applicant's visa application was not made by "the Tribunal" but by the Authority. More importantly, no particulars are given of the errors the primary judge is alleged to have made and the applicant filed no submissions, despite a Court order requiring written submissions to be filed. 16 The Court should not be left to speculate: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15] (Flick J). That alone may be sufficient reason to dismiss the application: see, for example, CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J). It is not incumbent on the Court to independently consider whether error on the part of the primary judge or the Authority is discernible: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19] (Beach J). 17 Still, as Colvin J observed in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]: [I]t will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise. 18 At the hearing in the present case, the applicant was repeatedly invited to explain what errors he was claiming the primary judge had made. The closest he came to answering the question was to assert that what the Minister's lawyer, Mr Moss, had said "about [his] story" was untrue. But Mr Moss was referring to the material in the Authority's reasons and that material was based on statements the applicant and his then representative had made in the recorded interview with the Minister's delegate, which were not disavowed in the court below, and in a letter from Legal Aid containing "new information" conveyed on the applicant's behalf to the Authority. Mr Moss did not purport to give a complete account of the applicant's case for asylum. That was unnecessary. Unremarkably, his submissions, both oral and written, were directed to the issues raised by the judicial review application, about which the applicant appeared to have had little or no understanding. 19 Mr Moss informed the Court that the Minister had given consideration to whether the judgment of the Federal Circuit Court disclosed any reasonably arguable appealable error and submitted that none is apparent. For the following reasons, that submission should be upheld. 20 It is unnecessary to recite the history of the applicant's claim at length. It can be found in the reasons of the primary judge. It is sufficient to note that on 13 July 2018, after the visa application had been remitted to the Authority for reconsideration following the publication of CQW17 2018, Legal Aid wrote to the Authority with "credible personal information which was not previously known", attaching to its letter the applicant's "previous notification to the [Authority] on this point". One such piece of information was described in the letter as "New Raid Information". With respect to that information, the Legal Aid solicitor stated: [The applicant] confirms that his mother, father and brothers remain in Iran currently, having fled there from Iraq in 2017. Attached to this submission is [the applicant's] previous notification to the IAA on this point. [The applicant] previously submitted: My brother who is living in Iran has told me that there was a raid on my family house and my father was terribly affected and traumatised and because of that danger and the absence of law and order to follow an arrest on those raiders now my father together with my mum and the rest of my family were forced to leave Iraq and go back to Iran. This is credible personal information which was not previously known, and had it been known would have affected consideration of [the applicant's] claims. There are exceptional circumstances to justify considering this new information, in that it forms a highly significant factual development affecting [the applicant's] claims, and that news of this development needed to be relayed to [the applicant] from his family from Iran. 21 As the primary judge observed, the judicial review application raised a discrete issue, namely, whether the Authority was obliged to consider whether to exercise the power conferred by s 473DC of the Migration Act to invite the applicant to give new information, either in writing or at an interview. 22 Section 473DC provides: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 23 Section 473DD provides that the Authority must not consider any "new information" unless it is satisfied that (a) there are "exceptional circumstances" to justify considering it and (b) the referred applicant satisfies the Authority that (i) the new information was not, and could not have been, provided to the Minister before the original decision was made or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 24 When the applicant's visa application was first referred to the Authority, it declined to consider any of the new information on the ground that it was not satisfied that there were exceptional circumstances for doing so. In CQW17 2018 at [36]-[37], the Full Court held that it was plain that the conditions for considering "new information" prescribed by s 473DD are cumulative and the Authority erred because it did not consider whether the New Raid Information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant's claims. The Full Court held (at [47]-[51]) that the Authority took an inappropriately narrow view of the breadth of the expression "exceptional circumstances" because it "did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was capable of informing its satisfaction as to the existence of exceptional circumstances". The Full Court rejected the Minister's submission that the New Raid Information was "peripheral, too vague or insufficiently cogent to be rationally probative in the Authority's reasoning" (at [52]). And at [54] the Full Court held: It is not for the Court to decide the credibility of the New Raid Information but, on its face, it is cogent and has a logical bearing on the risks he would face if returned to Iraq. It is therefore capable of affecting the Authority's decision as to whether CQW17 has a well-founded fear of persecution or that there is a real risk he will suffer significant harm in Iraq, his country of origin. Had the Authority properly undertaken its task under s 473DD it would have: (a) turned its mind to whether the information was credible information which may properly have affected the consideration of his claims in that regard; and (b) would have dealt with the New Raid Information that related to Iraq as potentially relevant to its decision. 25 Relevantly, when the Authority considered the visa application afresh, it accepted that the New Raid Information satisfied the conditions in s 473DD and considered it. But it did not accept the applicant's claim that his brother (referred to as "M" by the Authority and the primary judge) returned to Iran. It did not do so because of inconsistencies in the applicant's accounts and the inconsistency of the claim with country information about residence and passage between Iran and Iraq. 26 As the primary judge noted at [14] of his reasons, the Authority relied on a number of matters: in his arrival interview in 2013 and visa application, the applicant indicated that his brother M was in Iraq, not Iran; at the interview with the delegate the applicant had said that his brother M had gone to Iran in 2015, which was inconsistent with what he had said in the statement he made in support of his visa application that his brother M had gone to Iran before he (the applicant) left Iraq (in 2013); and there were a number of problems in relation to the applicant's claim that his brother M entered Iran by using a green card, including that on 21 March 2003 Iran had rendered green cards invalid. 27 After discussing these matters, the Authority said (at [22] of the decision record) that it did not accept the claim made in the "new information" that the applicant's brother had told him there had been a raid on the family home and the family were forced to flee Iraq and return to Iran. It continued: Such a claim amounts to more than bare assertion given that the information the applicant provided identified the source of the information (his brother), the event (a raid on his family home), the consequences (that his family fled the country) and the reasons they had done so (that there was an absence of law and order that meant the raiders were unlikely to be arrested). However, for the reasons already given above I do not accept that applicant's brother, Mr M, has been living in Iran and I therefore find it implausible that the applicant could have been informed of such a matter by his brother who is living in Iran. Moreover, and although the claim amounts [to] more than bare assertion, this is not to say that it amounts to compelling probative evidence. The applicant is in contact with his family but he has never provided, nor has he indicated that he has ever requested, any information about what the nature of this "raid" was in terms of what occurred, when exactly it occurred during 2017, and anything that might be known or suspected about who the perpetrators; or anything about when in 2017 and by what means his family were able to enter Iran, and where it is in Iran his family have gone to. I find it implausible that the applicant would not have sought such information if such an event had actually taken place. Given this, and given that I do not accept that the applicant's brother Mr M has been living in Iran, and given the manner in which I have found that the applicant is not a credible source of evidence about his family's movements more broadly, I do not accept that any of the applicant's immediate family members have gone to Iran. 28 In the court below, a single ground of review was pleaded (without alteration): The review by the Second Respondent (the Authority) under s.473CC of the Migration Act 1958 (Cth) miscarried for jurisdictional error: a. The Authority's statutory power in s.473DC of the Migration Act is to be exercised reasonably. b. It was legally unreasonable for the Authority not to consider getting information from the respondent where it knew that it did not have, but the applicant was likely to have, information on the raid on the applicant's family home and how this forced his family to flee Iraq and return to Iran. c. The Authority did not have that information because it was provided to the Authority subsequent to Delegate's decision. d. The Authority's failure to consider the exercise of that discretionary power meant that it was disabled itself from giving a proper, genuine and realistic consideration to whether the applicant has a well-founded fear of persecution if he were returned to Iraq or whether there is a real risk he would suffer significant harm in Iraq. 29 At the hearing in the Federal Circuit Court the applicant's counsel, Ms Baw, raised an additional ground: that the Authority erred by failing to exercise the power in s 473DC(3) to invite the applicant to comment on the perceived inconsistencies in his claims about his brother's departure from Iran. The primary judge permitted her to do so without requiring her to formally amend the application. 30 The primary judge summarised counsel's submissions at [29]-[34] of his reasons. What follows below is drawn from that summary. 31 Ms Baw submitted that the circumstances of this case were not materially distinguishable from those in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 in which Barker J allowed an appeal from the Federal Circuit Court. In that case, the Authority evidently failed to consider whether to exercise its power to invite the appellant to give new information on the basis that it was legally unreasonable in the particular circumstances not to. In this case, Ms Baw argued that the Authority should have invited the applicant to comment on the "alleged inconsistencies" in his account in order to resolve any doubt it had about his brother's whereabouts at the time he said there had been a raid on his parents' house in Iran, particularly because the "alleged inconsistencies are difficult to follow … and may not in fact be an accurate account or chronology of the evidence" (see judgment below at [30]). Ms Baw relied on the observation by the Full Court in CQW17 2018 at [54], in the passage extracted above at [24]. She submitted that the observation that the New Raid Information was "cogent and has a logical bearing on the risks [the applicant] would face if he returned to Iraq" effectively required the Authority to at least consider whether to invite the applicant to provide "the further detail it required" (at [45]). She also argued that, "given the [d]elegate's decision", the applicant was entitled to assume that the Authority accepted his brother was in Iran. And she contended that the applicant was not on notice that his evidence of his family's movements was not generally credible. 32 A decision of the Authority may be quashed for jurisdictional error as legally unreasonable if the decision lacks an "intelligible justification" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]) or the Authority reaches its decision through an unintelligible decision-making process (Li at [105]): ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [19]-[20]. That is because the duty of the Authority to review a referred decision is imposed on the implied condition that the duty is performed within the bounds of reasonableness: ABT17 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). In Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, upon which Ms Baw relied, the Full Court (Robertson, Murphy and Kerr JJ) held that it was legally unreasonable in the circumstances not to consider getting documents or information from the visa applicant and, as a result, the review by the Authority "miscarried for jurisdictional error". The Full Court reasoned at [82]: The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. 33 Whether a decision is legally unreasonable, however, "is invariably fact dependent and requires evaluation of the evidence" in the particular case: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84] (Nettle and Gordon JJ). 34 The primary judge was cognisant of the legal principles and evaluated the evidence before the court in the light of those principles. 35 His Honour accepted that it was established by CRY16 that, although the Authority is under no obligation to obtain information under s 473DC(1), it may "in the particular circumstances of a case" come under a duty to consider exercising the power to do so, and that in considering whether to exercise the power it must act reasonably (at [23]). 36 In relation to the allegation that it was legally unreasonable not to invite the applicant to explain the inconsistent accounts about when his brother M was in Iran, the primary judge accepted that there was no reference in the delegate's reasons to M leaving for Iran before the applicant left Iraq and that the delegate made no finding about this aspect of the applicant's claim (at [39]). His Honour noted that the applicant had not put in evidence the transcript of the applicant's interview with the delegate but observed that there was some evidence of what occurred at the interview in the Authority's reasons (also at [39]). His Honour pointed to the following matters (at [40]): a) the delegate having asked the applicant about when brother M had departed for Iran, in response to which the applicant said this happened in 2015, stating that brother M had entered Iran using a green card [at [20]]; b) the delegate having asked the applicant why brother M had entered Iran using a green ca[r]d when the applicant had used his passport to enter Iran in 2011, in response to which the applicant said that this was because the laws had changed in 2011 [at [21]]; and c) the applicant's representative indicating that a green card could not have been used to enter Iran, and submitting the "applicant was simply not properly informed about green cards" [at [21]]. 37 Having regard to these matters, the primary judge was not satisfied that the applicant was not on notice that his claim that M had left Iraq before he did might not be accepted by the Authority (at [41]). Indeed, his Honour was satisfied that the applicant was on notice that the Authority might not accept this part of his claim, even if the delegate did not put the inconsistent statements to him and made no finding about this aspect of the claim (also at [41]). 38 His Honour distinguished DFW16 on the basis that, in that case, it was unclear what grounds the Authority relied on for not accepting the applicant's claims as credible, whereas in this case the Authority made it clear that, in rejecting the applicant's claim, it was relying on the inconsistencies in the applicant's accounts and the implausibility of the applicant's claim (at [42]). 39 In relation to the applicant's claim that his family's house was raided, the primary judge held that the Authority was entitled to consider claims and not accept them (at [45]). His Honour rejected the submission that the observation by the Full Court in CQW17 2018 at [54] (that the claim in the New Raid Information was "cogent" on its face and had "a logical bearing on the risks [the applicant] would face if he returned to Iraq") meant that the Authority's failure to consider whether to ask the applicant for more information was legally unreasonable. His Honour held at [45] that: [This] finding, however, goes no further than stating that the claim on its face is cogent, and warranted consideration. That is what the Authority did; it considered the claim and, for the reasons it gave, did not accept it. The Full Federal Court's finding does not imply that when considering the claim the Authority was required to consider whether it should invite the applicant to give information about it. 40 His Honour also held (at [46]) that the Authority was not obliged to consider whether it should ask the applicant to provide further information since he was not interviewed by the delegate about the raid because he had had "every opportunity to put to the Authority information relevant to the claim, and in particular, information the Authority found it was reasonable to expect the applicant would have provided had the applicant's parents' house been raided, as the applicant claimed.", applying DYK16 at [71]. 41 There is no reason to doubt the correctness of the primary judge's decision. It is apparent that there was an intelligible justification for the Authority's decision in relation to the matters raised in the judicial review application and its decision-making process was not unintelligible. 42 The primary judge proceeded to make some remarks going to the question of materiality, that is to say, whether, even if the Authority had erred as alleged, there was a realistic possibility of a different outcome. While there is reason to think that those remarks were based on an erroneous view of the law, particularly in the light of the High Court's recent judgment in Nathanson v Minister for Home Affairs [2022] HCA 26, they had no bearing on his Honour's disposition of the appeal. 43 For all these reasons, the application for extension of time should be refused. Costs should follow the event. There will be orders accordingly. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

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