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[2007] FCA 1269
Federal Court of Australia
2007-08-20
Mansfield J, Stone J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for an extension of time to appeal from a judgment of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal: SZJSL v Minister for Immigration & Anor [2007] FMCA 313. His Honour delivered judgment on 19 February 2007. Under O 52 r 15 of the Federal Court Rules, the applicant was required to file any notice of appeal within 21 days of that date. He did not do so. Rather, he filed an application for extension of time to file and serve a notice of appeal on 2 July 2007, more than 100 days out of time. Order 52 r 15(2) provides that I can grant an appropriate extension of time if I am satisfied that there are "special reasons" for doing so. 2 In considering whether there are special reasons for extending the normal time limits the main factors are: the reason for the delay, the merits of the appeal and any prejudice to the respondent in defending the proceedings that might be occasioned by allowing the appeal after the delay; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. 3 In support of the present application the applicant has filed an affidavit in which he states that he is of Pakistani origin and has been detained in the Villawood Detention Centre since January 2005. He states that he has recently become aware of plans to deport him, but has also recently received assistance and advice from various community groups which has revealed to him potential new grounds for challenging the Tribunal's decision. He also states that he has been battling with drug dependence for some time. The applicant also refers to the difficulties he encountered in not being legally represented before the Federal Magistrate and expressed the hope that he would be able to obtain such representation. Obviously he was successful as he had the assistance of legal counsel at the hearing of the present application. 4 It is necessary that the applicant provide acceptable reasons for his delay in seeking to appeal from the Federal Magistrate's decision. I do not accept that the applicant becoming aware of plans to deport him falls into this category nevertheless I am inclined to the view that the other reasons given meet this standard. In forming this view I regard the comments of Mansfield J in Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14] as applicable here. His Honour said: But, in addition, in my view it is proper to weigh in the balance the facts that the applicant at material times has been in immigration detention, that he required the assistance of an interpreter during the hearing, and that he had limited knowledge of law and practice, including it appears no awareness that the time for any appeal ran from the date judgment was pronounced rather than from the date he received the written copy of the reasons for decision. Those matters, in my view, remove the case from the usual course. The circumstances to which I refer, in my view, do amount to "special reasons" within the meaning of 052 r 15(2) 5 I am also satisfied that, in the circumstances, any prejudice that would be occasioned to the first respondent by allowing an appeal to proceed at this late stage is outweighed by what is at stake for the applicant. I am satisfied that any such prejudice is not a sufficient reason for me to deny the extension of time. 6 Ultimately the issue comes down to considering the merits of the proposed appeal. If I were to be convinced that the applicant would have no real prospect of succeeding in his appeal then it would be appropriate to reject the application on the basis that the appeal would likely be futile; Atkinson v Commissioner of Taxation (2000) 45 ATR 1; and on appeal: Atkinson v Commissioner of Taxation (2000) 46 ATR 32; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936; Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385; and Howard v Australian Electoral Commission [2000] FCA 1767. 7 In considering this issue I am conscious that this is an application for an extension of time and not an appeal. It is neither necessary nor appropriate that I give detailed consideration to the claims made on either side nevertheless a brief outline of the claims made by the applicant is appropriate. 8 In May 2006 the applicant applied for a protection (Class XA) visa. The applicant claimed to have a well-founded fear of persecution in Pakistan should he be returned there for reasons which included his claim to be bisexual and his recent conversion to Christianity. 9 The applicant initially came to Australia as a student but, apparently, ceased attending university in 2003 and worked as a cleaner before being taken into immigration detention on 5 January 2005. He has been in immigration detention since then. The applicant claims he became interested in Christianity before he came to Australia but became more involved after the events of 11 September 2001 and converted to that faith while in detention. He claims to fear persecution from his family should he return to Pakistan because his family are strict Muslims who view his conversion as a disgrace to the family. He also claims that he would be in danger from the Pakistani government and police. 10 The applicant says that since he has been in Australia he has realised that he is "not entirely homosexual, but … bisexual". He claims to have formed a serious relationship with a male inmate of the detention centre and that they wish to "marry". The Tribunal records the applicant as making the following claim: He said that if he were to return to Pakistan without his partner he would seek out other men for sexual relationships. He said that he would constantly fear being caught. He repeated that his father wanted to kill him because he had ruined the family's honour. He said that he had told his father about his relationship with the man in the detention centre. He said that he had wanted to see his father's reaction to the possibility that he would be bringing a man home from overseas. He said that he had first told his father about his sexuality before he had been detained but he had not told him that he wanted to marry a man or bring a man home. He said that he had merely told his father that he was bisexual. He said that his father had been upset. 11 The applicant claims that either his conversion to Christianity or his confession of bisexuality is sufficient to prompt his father to kill him. 12 Following an invitation from the Tribunal, the applicant attended a hearing before the Tribunal on 6 September 2006. In its written reasons the Tribunal gave a detailed account of the claims and evidence provided by the applicant. Following the hearing the Tribunal sent a four-page letter, dated 11 September 2006, to the applicant setting out in considerable detail information that it said, subject to the applicant's comments, would be the reason or part of the reason for rejecting the application for a protection visa. The Tribunal referred to this letter as the 'section 424A letter'. The letter dealt with both aspects of the applicant's claim to fear persecution, namely, his claimed conversion to Christianity and his bisexuality. It contrasted statements made in the applicant's initial protection visa application, in an interview with a Departmental officer and in a further statement dated 30 May 2006, with statements made at the hearing before the Tribunal on 6 September 2006 and drew attention to inconsistencies between the various statements. 13 In the letter the Tribunal also advised the applicant that the reason the information on both counts was relevant was because of the Tribunal's obligation under s 91R(3) of the Migration Act 1958 (Cth) to disregard conduct engaged in by a person in Australia unless it is satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee. 14 The applicant's Migration Advisor, Ms Beatriz Stotz, provided a detailed response to the Tribunal's letter. As well as responding to the issues raised in the letter, Ms Stotz urged the Tribunal to have regard to the applicant's mental and emotional health and the way in which detention had affected him. The letter also raised some additional issues including information that had been provided anonymously to the Tribunal and which was adverse to the applicant's claims. 15 In its written reasons the Tribunal discussed in detail the applicant's claims and his response to its letter of 11 September. The Tribunal noted that it did not refer in its letter to the anonymous communication received by the Tribunal because, as it had told the applicant at the hearing, it did not propose to give any weight to that information. It is clear from the Tribunal's discussion that the concerns it expressed in its letter to the applicant were not assuaged by the response provided by Ms Stotz. The Tribunal concluded that, in relevant parts of his evidence, the applicant had not told the truth. Although it took into account his personal issues and drug dependence, it did not accept that the applicant's conversion to Christianity was genuine. In part this scepticism resulted from the inconsistencies that the Tribunal referred to in its letter of 11 September. The Tribunal disregarded the applicant's claimed conversion to Christianity because it was not satisfied that this conduct had been engaged in for a purpose other than strengthening his claim to be a refugee; s 91R(3). The Tribunal also rejected the applicant's claim to be bisexual and, pursuant to s 91R(3) disregarded his conduct in telling his family in Pakistan about his claimed bisexuality. 16 In considering the application for judicial review the Federal Magistrate considered a number of grounds put forward by the applicant. They included alleged errors of fact and unreasonable rejection of aspects of the applicant's claims. The Federal Magistrate rejected all the grounds put forward by the applicant. 17 The draft notice of appeal attached to the application for an extension of time listed various jurisdictional errors said to have been made by the Tribunal. These may be summarised as follows: (1) failure to provide adequate written notice prior to the hearing as required by s 425 of the Migration Act; (2) failure to comply with s 424A of the Migration Act, specifically in relation to the anonymous letter and the applicant's knowledge of Christianity; (3) failure to consider the effects of the applicant's drug dependency on his ability to present his case at hearing; (4) failure to take into account a relevant consideration, namely that those instructing the applicant in Christian doctrine may themselves have been in error as to specific facts; (5) failure to accord the applicant natural justice, for example, in failing to take evidence from the person who read the Bible to the applicant in spite of a post-hearing request to do so; and (6) bias. 18 In my view none of these grounds have any realistic hope of being substantiated. The Tribunal invited the applicant to a hearing and the applicant attended. The Tribunal expressly said that it attached no weight to the anonymous communication therefore s 424A did not require the Tribunal to raise this with the applicant. The Tribunal considered the claim that the applicant's drug dependence and emotional state affected his ability to put his case at the hearing. There is, however, no evidence to suggest that these issues created any difficulty for the applicant in putting his case to the Tribunal. In this regard I note that throughout the process the applicant had the assistance of a migration agent, Ms Stotz, whose submissions were comprehensive and cogent. Finally there is no evidence that the Tribunal was biased. The letter of 11 September was unusually detailed in setting out the Tribunal's concerns and inviting the applicant's comments. 19 If the applicant proposed to base his appeal only on the above grounds I would have no difficulty in concluding that the appeal was doomed to failure and that an extension of time should not be granted. At the hearing of the present application however counsel for the applicant raised one further ground that requires further discussion. 20 In short the applicant claimed that, despite the detailed letter of 11 September the Tribunal had sent to the applicant, it was in breach of s 424A of the Migration Act in not giving notice under that section before the hearing. Underlying this submission is the proposition that s 424A requires the information to which it refers to be given to the applicant before any hearing conducted pursuant to s 425 and that a subsequent letter cannot remedy an omission to do so. Although counsel for the applicant, Mr de Robillard, was not aware of the High Court's recent decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, the case provides some support for his submission. 21 To understand the issue it is necessary to go back to the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. In SAAP the issue concerned evidence given by a third party at the Tribunal hearing in the absence of the appellants. The information given by the third party was raised with the appellants at the hearing without the appellants previously being given written particulars of that information or an explanation of its relevance to the review. The Tribunal relied on that information as part of the reason to affirm the decision under review. 22 The High Court (McHugh, Kirby and Hayne JJ, Gleeson CJ and Gummow J dissenting) held that the Tribunal was obliged by s 424A to give written notice of this information to the appellants and therefore it was in breach of a mandatory obligation imposed by the Migration Act. This was a jurisdictional error that rendered the Tribunal's decision invalid. 23 In SAAP there was some discussion about the order in which the Tribunal should perform the mandatory steps in the review process provided in the Migration Act, in particular the giving of a notice pursuant to s 424A. Hayne J made the following observation at [202]: … given the nature of the power to be exercised by the tribunal, there is no reason to read the Act as defining the order in which the tribunal should set about undertaking its task of reviewing a decision. It may be necessary to read it in that way if the appearance were the point at which issues joined between contesting parties were to be resolved. But there is no joinder of issue between contesting parties. And it is not necessary to read the provisions as providing for an invariable order of events if, as I consider to be the better view of the provisions, the appearance before the tribunal is no more than one of several different steps to be taken in the course of the review. 24 Kirby J, at [154] agreed with these comments and with Hayne J's analysis of the point. His Honour, commenting on the proposition that the sequence of provisions in a statute might indicate the order in which those provisions should be applied, added at [156]: Ordinarily, at least in the absence of clear provisions demanding a strictly sequential operation, it should not be assumed that an unyielding sequence was intended. Such an approach would restrict the ambit of the operation of the provisions of an enactment in a way that would circumscribe the operation of the law. It would reduce the capacity of the law to apply to the multitude of cases to which, by its terms, it may otherwise apply. It would do so for no reason better than the arrangement of the statutory provisions. Yet that arrangement may have another logical explanation, quite different from sequential operation of those provisions. 25 McHugh J expressed a similar view at [60]: … the Division does not necessarily compel a sequential process, so that once the s 425 procedure has commenced or is in progress, s 424A no longer has any role to play. The obligation to deal fairly with applications for review must continue throughout the tribunal's review. One aspect of that obligation is that the applicant be given the opportunity to comment on adverse material. Because that is so, the Division should be interpreted so as to require the tribunal to give the applicant the opportunity to comment on adverse material obtained at a hearing before the tribunal (when the applicant or another person gives evidence). 26 The decision in SAAP shows that the Tribunal will be under an obligation to give a notice under s 424A at or after the hearing if the circumstances that otherwise enliven it exist. This view was not shared by Gleeson CJ or by Gummow J. Gleeson CJ, at [16], expressed the view that s 424A was not intended to apply to information, that emerges during the hearing contemplated by ss 425, 425A, 427, 429 and 429A, being information upon which, as part of the process of hearing, the applicant can be, and is, fairly invited to comment. According to the Chief Justice, at [18] - [19], the section is to be understood as one of a series of provisions that govern the process by which the Tribunal reviews the decision of the Minister's delegate: It follows s 424, which empowers the tribunal to seek additional information. It relates to inviting comment from the applicant on potentially adverse information. If the applicant fails to comment, the tribunal may proceed to make a decision: s 424C. The way in which the tribunal does that is governed by s 425 and the following provisions, which, in cases where a hearing is required by the legislation, deal with the hearing. The question whether there is to be a hearing pursuant to s 425 is likely to be affected by what has already occurred under s 424A. … The need for a hearing under s 425 will be governed in many cases by whether or not the applicant has responded within time to the s 424A invitation, and by the substance of any response. Furthermore, the purpose of the s 425 hearing is to receive evidence and arguments relating to the issues arising in relation to the decision under review. Those issues will often be influenced by the applicant's comments in response to a s 424A invitation. 27 Gummow J also held that the section is limited to a time before s 425 is engaged adding, at [124] that the section would not be enlivened by events after the conclusion of the hearing and before the recording of the Tribunal's decision: Section 424A operates at a time before and may operate to qualify the discharge by the RRT of its obligation under s 425(1) to invite the applicant to appear to give evidence and present arguments.
28 In SZBYR, the majority of the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said at [13] that SAAP determined two points about s 424A: [F]irst, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; second, that its temporal effect was not limited to the pre-hearing stage. Their Honours added at [14]: Had the second point in SAAP been decided differently, the present case would have been simpler to resolve: the scope for the operation of s 424A would have been exhausted once the appellants were invited to appear before the Tribunal pursuant to s 425 of the Act. 29 The claim in this case differs from those in SAAP and in SZBYR in that, in both those cases, no notice was given pursuant to s 424A. In this case, notice was given but after, rather than before, the hearing. The applicant claims that failure to give notice before the hearing is a jurisdictional error, on the basis that SAAP and SZBYR establish: (a) compliance with s 424A is mandatory; (b) it requires that notice under the section be given before the hearing held pursuant to s 425 of the Migration Act; and (c) giving notice after the hearing cannot cure the omission to give notice before the hearing, 30 There may be merit in these submissions as far as they go however I do not have to decide that issue. The applicant's submissions ignore an essential precondition to the obligation of the Tribunal to give notice under s 424A. The present applicant, like the appellants in SZBYR, has "assumed but did not demonstrate" that the information given in his initial visa application and in the further statement submitted to the Tribunal would be "the reason, or part of the reason, for affirming the decision that is under review"; SZBYR at [17]. 31 The applicant has not pointed to any information that was contained in his initial visa application or the further statement that would be adverse to his claim. The Tribunal rejected the applicant's claims because it did not believe him. It reached this conclusion partly because of the inconsistencies to which it referred in its letter of 11 September. Those inconsistencies included inconsistencies between the claims made by the applicant in his visa application and further statement and evidence given in an interview with an officer of the first respondent's department. It is those inconsistencies rather than the nature of the information that is the reason or part of the reason for the Tribunal's decision. As the High Court observed in SZBYR at [18]: [I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). … Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information". "does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc". If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 32 The position of the present applicant is the same as that of the appellants in SZBYR. I am satisfied therefore that it would be futile to grant the applicant the extension of time he seeks as the appeal would be bound to fail. Even if I am wrong in concluding that there was no breach of s 424A, I am satisfied that there was no injustice to the applicant. All of the contentious issues were raised in the Tribunal's letter to the applicant and his migration agent's detailed response was considered. In the circumstances, I would, as a matter of discretion refuse to grant the extension. 33 For these reasons the application must be dismissed. There is no reason why the usual rule that costs follow the event should not apply and therefore the applicant must bear the costs of the first respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Associate: Dated: 20 August 2007 Counsel for the Applicant: CR de Robillard Solicitor for the Respondents: Clayton Utz Date of Hearing: 15 August 2007 Date of Judgment: 20 August 2007
SZJSL
Minister for Immigration and Citizenship
[2007] FMCA 313
(1984) 3 FCR 344
(2005) 215 ALR 162