SZTEN v Refugee Review Tribunal & Anor [2013] FCCA 2100

(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3) In this section:

'date of the migration decision' means:

• (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or
• (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
• (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or
• (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision."

1. The Refugee Review Tribunal ("the RRT") decision is dated 28 January 2013. In the circumstances, the applicant's application for judicial review to this Court, filed on 12 August 2013, is 196 days in excess of the 35 day time limit provided for in s.477(1) of the Act.
2. However, pursuant to s.477(2) of the Act, this Court may extend the 35 day period if an application for that order is made in writing to the Court specifying why the applicant considers it is necessary in the interests of justice to make the order, and the Court is satisfied that it is necessary in the interests of justice to make the order extending the time period.
3. In the applicant's application for judicial review, filed 29 July 2013, the applicant identified the grounds of his application for an extension of time as follows:
   • "1.My affidavit provides an explanation for the applicant's delay in making this application for the Federal Circuit Court.
   • [the affidavit attached to the application, affirmed 9 August 2013, (which is only the RRT decision record) does not address the extension of time application, nor offers any explanation as to why the application was filed late.]
   • 2. There is prejudice to the applicant if the Court does not extend time.
   • 3. There is no prejudice to the respondents if the Court extends time."
4. The applicant was represented this morning by Mr Adrian Joel. The applicant's application for an extension of time was opposed by the second respondent.
5. Mr Joel conceded that the applicant has no explanation for his delay.
6. In oral submissions to this Court, Mr Joel submitted that the applicant had unsuccessfully sought ministerial intervention pursuant to s.417 of the Act. That explanation does not satisfy the Court that an extension of time is necessary in the interests of justice.
7. I have considered below whether it would be in the interests of justice to extend time to the applicant on the basis that an arguable case has been raised.
8. The grounds of the applicant's substantive application upon which he relies in establishing jurisdictional error on the part of the RRT are as follows:
   • "[1] The First Respondent failed to address the correct question before it, namely whether the applicant was entitled to be granted a protection visa according to law.
   • PARTICULARS
   • The First Respondent concluded at paragraph 187 that considering the Applicant could not meet the refugee criterion in accordance with section 36(2)(a),this meant he could not meet the complimentary protection criterion referable to the application of s36(2)(aa). Further this rationale was applied at paragraph 188 in dismissing related claims.
   • [2] The Applicant has been denied procedural fairness in the making of the decision by the First Respondent with respect to the operation of Section 36(2)(aa) of the Migration Act and in doing so offends the application of Section 420(2)(b). Application of this provision includes the duty of the Respondent to identify to the Applicant issues which may be of determinative significance, which were not apparent from the terms and nature of the Protection Visa Application completed, nor the Department or Tribunal interviews conducted. Such duty also exists independently of statutory obligations.
   • PARTICULARS
   • a. Section 36(2)(a) provides for consideration of Convention based persecutory grounds whilst section 36(2)(aa) provides for consideration of claims with respect to complementary protection.
   • b. The First Respondent either did not apply any procedure, or any satisfactory procedure, to identify issues distinct from Convention based persecutory claims which could be relevant and determinative when considering claims based on harm, and to inform the Applicant as to the character of such issues.
   • c. The Applicant assumed the reasons provided by the Minister's Departmental Delegate for refusing to the Protection Visa identified the totality of issues that arose in relation to that decision, and proceeded with his request for review and attendance at the interview with the Tribunal on such basis.
   • d. Had the Respondents discharged the notification of obligations as to unresolved complementary issues the Applicant would have been provided with an opportunity to particularise such claims, which could include discrimination, socioeconomic deprivation and failure of Police to provide protection with respect to risk personally faced by the applicant, and other harm not falling within a Convention ground.
   • e. As at the time of completion of the application of a Protection Visa Class XA on Form 866A and the time of Departmental and tribunal interview, the Applicant remained ignorant of the evidentiary ambit of Complementary claims, in contrast to the knowledge of the Respondents as to the ambit of such claims.
   • f. The Decision record of the Respondent limits complementary consideration to a set of factual circumstances or mosaic, as conveyed with respect to persecutory claims, the effect of which has been to curtail and/or intermix the ambit of analysis contemplated with respect to the operation of section 36(2)(aa), and deprive effective consideration thereof.
   • g. Further, by virtue of the conclusion drawn as to the Applicant not being found to have suffered serious harm in the Convention context, such view has been extended to the unresolved context of complementary harm and/or also sustained the evidentiary foundation in dismissing claims of a real risk of significant harm that could have been raised.
   • [3] Error of law.
   • PARTICULARS
   • a. There is no evidence that the Respondent adopted the correct evidentiary test when considering Complementary claims, namely a real chance of real risk.
   • b. The First Respondent concluded as a result of determining the Applicant could not satisfy a Convention based ground, this therefore meant that the Applicant could not satisfy evidentiary criteria with respect to section 36(2)(aa)."
9. The grounds of the applicant's application are almost in identical terms to a case considered by me in SZSJD v Minister for Immigration and Border Protection & Anor [2013] FCCA 1414. They are general assertions about the RRT's failure to properly consider complementary protection. They are not made out on the face of the RRT's decision record or supported by the submissions made by the applicant's solicitor to this Court.
10. The basis of the applicant's refugee visa application is his claimed fear of persecution by members of the Taliban and other military groups because of his ethnicity and being a failed asylum seeker if he were returned to Afghanistan.
11. The RRT invited the applicant to give oral evidence and present arguments at a hearing on 29 July 2012. The applicant and his representative attended a hearing before the RRT. The applicant gave evidence and his representative made both written and oral submissions on the applicant's behalf. The RRT explored the applicants claims with him in depth at the hearing and put to him matters of concern it had about his claims and inconstancies between his claims and independent country information.
12. The complaints made by the applicant to this Court appear to be that the RRT failed to make findings with respect to a complementary protection claim that the applicant would suffer degrading treatment due to a denial of socio-economic rights, such as basic services if relocated.
13. Mr Joel referred the Court to a submission dated 16 July 2012, prepared by the applicant's then migration agent. The submission referred to country information that stated that internally displaced Afghans face significant subsistence-based threats, particularly in circumstances where they are forced to relocate to refugee camps in Kabul because they are unable to afford accommodation elsewhere.
14. Mr Joel also referred to a further submission by the applicant's then migration agent, dated 2 August 2012, which referred again to various country information that Shia Hazaras are subject to persecutory treatment throughout Afghanistan; that the applicant would not be able to avail himself of effective state protection and that internal relocation is not a reasonable option for the applicant.
15. The RRT specifically referred to these claims made by the applicant in its decision record and rejected each of them.
16. The RRT found that the applicant was prepared to tailor his evidence to his advantage and that he was untruthful about various aspects of his claims in an attempt to strengthen his claim to be a refugee.
17. The RRT accepted that he is a Hazara and a Shia Muslim and was born in the Jaghori district in Afghanistan. The RRT specifically rejected the oral submissions of the applicant's migration agent at the hearing and found that no question of internal relocation arises in this case.
18. The RRT found that it was appropriate to treat the Jaghori district as the applicant's home area. The RRT found that the applicant's representative at the hearing deliberately attempted to confuse the situation in Ghazni Province with that of the applicant's own home situation in Jaghori. The RRT found that districts like Jaghori, where the Hazaras are in the majority, remain stable.
19. The applicant's claims regarding social deprivation that may lead to complementary protection claims arose only in relation to internal displacement or relocation. In light of the RRT's rejection of any need for the applicant to relocate from Jaghori, the RRT did not need to consider this claim.
20. In considering complementary protection the RRT had regard to the findings that it had made. The RRT was not satisfied that if the applicant returned to his home town in the Jaghori district, there was a real risk that he would suffer harm because he is either a Hazara or a Shia Muslim. For that reason, the RRT did not accept that there is a real risk that the applicant would suffer significant harm if he was to return to Jaghori in the reasonably foreseeable future.
21. Based on those findings, the RRT did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty would be carried out on him; that he would be subject to torture; that he would be subjected to cruel or inhuman treatment or punishment; or, that he would be subjected to degrading treatment as defined in s.36(2A) of the Act.
22. Accordingly, the RRT found that the applicant had not satisfied the complementary protection criterion. The RRT's consideration of complementary protection appears to be orthodox.
23. There is nothing on the face of the RRT's decision record to suggest that it is affected by jurisdictional error. I am not satisfied that either the grounds of the application or the submissions made by Mr Joel to this Court raise an arguable case with any prospect of success.
24. There is unquestionably a public interest in the finality of an administrative decision. I accept that there may be a prejudice to the applicant in not extending time to him to seek judicial review of the RRT's decision. However, in light of the finding I have made that the applicant has not raised an arguable case, I find the prejudice to be minimal.
25. The relevant principles are referred to in Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:
    • "15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
    • 16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy_, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court._
    • 17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment**, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.** In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned."
26. In balancing the overall interests of justice, I have had regard to the history of the matter; the conduct of the applicant; the massive delay in seeking judicial review for over 196 days without explanation; and the public interest in requiring that there be an end to litigation about the efficacy of Tribunal decisions.
27. In conclusion, in balancing the interests of justice, I am satisfied that the balance weighs in favour of refusing the applicant's application that time be extended to him to seek review of the RRT's decision.
28. Accordingly, the application to extend time by the applicant to seek judicial review of the RRT's decision should be refused with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett