Federal Court of Australia

GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The first and second applicants pay the first respondent's costs of the application fixed in the sum of $4,500 within eight weeks of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J

1    The applicants seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Federal Circuit Court dismissing their application for an extension of time under s 477(2) of the Migration Act 1958 (Cth): GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2844. The application before the primary judge related to a decision of the Immigration Assessment Authority which affirmed a decision of the delegate of the Minister to refuse to grant to the first applicant a safe haven enterprise visa. Only the first applicant sought a protection visa.

2    The first and second applicants are Vietnamese citizens who arrived in Australia as unauthorised maritime arrivals in May 2013. The second applicant is the wife of the first applicant. The third and fourth applicants are their children. The children were born in Australia.

3    On 1 September 2017 the first applicant applied for a safe haven enterprise visa. His wife and children joined in the application as part of the same family unit but did not maintain separate protection claims.

4    On 3 August 2018 a delegate of the Minister notified the applicants that their visa applications had been refused and attached reasons for refusal.

5    In accordance with the Part 7AA fast track regime, the delegate's decision was referred to the Authority. On 1 November 2018 the Authority affirmed the delegate's decision not to grant the visa.

Protection claim before the Authority

6    The first applicant claims to fear harm due to his religion and his status as a failed asylum seeker.

7    The Authority summarised the first applicant's protection claim as follows:

(1)    There is no freedom of religion in Vietnam. He had to flee Vietnam because of the persecution he and his family were facing from the Vietnamese authorities because they are Catholics.

(2)    In July 2012 he attended a protest against the Vietnamese authorities' oppression of Catholics. He was arrested, detained and beaten. After signing a document stating he had not been beaten he was released and subsequently fled the country. The police sought him at his home on several occasions. He, his wife and younger brother then left Vietnam.

(3)    Because he left Vietnam without permission the authorities will consider that he has betrayed his country in a time of peace.

(4)    The first applicant wants the international community to be aware of the human rights abuses in Vietnam. Since his release from immigration detention he has been posting material online and sharing articles including as to arrests, deaths in custody and lack of freedom of speech in Vietnam. He attended two protests in early 2018 and attends cultural events organised by the Vietnamese community.

The Authority's findings

8    The Authority found that the first applicant is from Vietnam, of Kinh ethnicity, and is of Catholic faith. He and his wife left Vietnam using their legally issued passports.

9    Although the Authority accepted that the first applicant is Catholic and attends church services every week, the Authority did not accept that he attended church services at a particular place (Con Cuong) some three hour drive from his home. The relevance of the Authority's finding that it was not satisfied that he attended church at Con Cuong is that a well-known incident occurred at a mass at Con Cuong which is frequently quoted as an example of mistreatment by the Vietnamese police and/or authorities of a Catholic congregation.

10    The Authority said that the first applicant's evidence regarding the incident at Con Cuong had varied considerably and is generally inconsistent with the facts of the actual incident. It said that media reports of the actual incident state it occurred on 1 July 2012 and was followed by demonstrations on 15 July 2012 in various areas across Vietnam. The Authority was not satisfied by the first applicant's evidence that he was at the mass when it was disrupted or that he took place in the rallies that protested against this. The Authority found that his claim was entirely fabricated and concluded that he was not a witness of truth.

11    The Authority found that the first applicant shared articles and posts on social media about Vietnam, but it was not satisfied that he would be identified by his Facebook page.

12    The Authority accepted that the first applicant had attended some community events in Australia as well as two recent protests or rallies, but was satisfied that he was neither a speaker at any of the rallies nor involved in their organisation. The Authority was also satisfied, based on the evidence before it, that those events were not monitored by the Vietnamese government, that they were not reported in Vietnam, or that the participants would be imputed with a particular opinion on return to Vietnam. The first applicant had not claimed to be part of a member of any political party and so the Authority was not satisfied the first applicant would have any interest in participating in activities against the State on return to Vietnam.

13    The Authority did not accept that the first applicant would face punishment should he return to Vietnam due to him leaving without permission. Rather, the Authority considered that the evidence - namely, that they (relevantly, the first and second applicants) travelled legally to Thailand where they then boarded a people smuggler's boat - established that they were permitted to leave Vietnam.

14    The Authority also found that a data breach in February 2014 unintentionally enabled access to certain information of people who were in immigration detention, including the first applicant (a matter not raised by the first applicant). The breach was remedied some eight days later. Despite the data breach the details of the first applicant's claims for protection would not have been available. There was no evidence before the Authority that suggested the information was accessed by the Vietnamese authorities or that the first applicant may be identifiable on re-entry as a person who sought asylum in Australia.

15    Having regard to those findings, the Authority then considered whether the first applicant had a well-founded fear of persecution within the meaning of s 5J of the Migration Act. Having considered country information relating to Vietnam and its treatment of Catholics and relating to penalties associated with being a failed asylum seeker, the Authority did not accept that there is any real chance that the first applicant would be prevented from practising his religion in the future; that he faces a real chance of harm on the basis that he would be considered a political activist; or that there is a reasonable chance he or his family face persecution on the basis that they have spent time in Australia or that they have unsuccessfully sought asylum. The Authority concluded that the first applicant's claims, considered cumulatively, did not raise to a level that he or his family face a real chance of serious harm in Vietnam and so they do not meet the requirements of a refugee in s 5H(1).

16    For similar reasons, it concluded that the first applicant did not meet the requirements of the complementary protection assessment under s 36(2)(aa) of the Migration Act.

Before the Federal Circuit Court

17    The application for review before the Federal Circuit Court was filed four days outside the 35 day statutory time limited imposed by s 477(1) of the Migration Act. The applicants therefore sought an extension of time under s 477(2). An extension may be granted if an applicant makes an application in writing specifying why they consider it is necessary in the interests of the administration of justice to make the order extending time and if the Federal Circuit Court considers that it is necessary in the interests of the administration of justice to make the order.

18    The second applicant appeared at the hearing of the application before the Federal Circuit Court. The primary judge said in his reasons that the applicants were not legally represented, but that the second applicant spoke on behalf of herself and the other applicants with the assistance of a Vietnamese interpreter.

19    The applicants did not file any affidavit in support of the extension application and the only proposed ground of review in the substantive judicial review application was that 'the assessment was unfair'.

20    The applicants had been given the opportunity to file an amended application, further affidavit evidence and an outline of submissions prior to the hearing but did not do so.

21    The primary judge's reasons record the following:

[41]    At the hearing of this matter, the Court explained to the second applicant that the factors to be considered in relation to the question of the extension of time are not exhaustive. However, in determining whether the Court will grant an extension of time, the Court will generally look at the following factors:

a)    length of delay and prejudice;

b)    whether the explanation for the delay is adequate; and

c)    whether the proposed substantive application for judicial review has merit.

(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)

22    The primary judge noted that the only explanation given for the extension of time was that the applicants '[don't] understand'.

23    The primary judge commenced his consideration of the extension application by noting that there was only a four day delay, and that the applicants said it occurred because they did not understand what was required of them due to poor English and stress associated with their daughter's health. The primary judge accepted this explanation for the delay and said that it weighed in favour of the extension.

24    The Minister did not claim there was any particular prejudice, and the primary judge said that this also weighed in favour of granting an extension of time.

25    The primary judge then turned to the merits of the judicial review application, noting that it will often be the determinative factor.

26    The primary judge noted the Minister's submission that, absent particulars, the review application should be dismissed. However, the primary judge noted the remarks in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[9] to the effect that unrepresented protection visa applicants should be given the opportunity to explain orally the matters said to give rise to their application. The primary judge said that he accorded the applicants an opportunity to explain orally what they think the Authority 'did wrong' and why they think the Authority's 'assessment was unfair'.

27    The primary judge said that he explained to the applicants that they could expand on their ground of review and identified several different types of jurisdictional errors as to which the applicants could make submissions and explained that he cannot undertake a review of the merits of the Authority's decision.

28    In response to the primary judge's explanation and question as to what the second applicant thought the Authority 'did wrong' and what they meant when they said the Authority's 'assessment was unfair', the second applicant said, 'she did not know'.

29    The primary judge concluded that absent further assistance from the applicants, he understood the applicants' sole ground of review to be an allegation that the Authority breached the obligations of procedural fairness such that the assessment was 'unfair'. He then reviewed the Authority's processes and reasons. The primary judge was satisfied that the Authority adhered to the procedural fairness obligations dictated by Part 7AA of the Migration Act and conducted a fair assessment of the materials before it. His Honour noted that the Authority said it had received the materials from the Secretary pursuant to s 473CB of the Migration Act; that there was no requirement that the Authority request or obtain new information; that the applicants were provided with a letter in which the scope of the Authority's review was outlined; and that no further information was provided to the Authority by the applicants.

30    The primary judge also considered, noting AZZ18 v Minister for Home Affairs [2019] FCA 844, whether there was any information before the Authority that could give rise to a reasonable apprehension on the part of a fair-minded and fully informed lay observer that information before the Authority was prejudicial, raising concerns as to bias. The primary judge found there was no such information.

31    The primary judge concluded that he was satisfied that the Authority adhered to the procedural fairness obligations dictated by Part 7AA of the Migration Act and conducted a fair assessment of the materials before it. His Honour found no errors on the face of the Authority's decision.

32    The lack of merit in the substantive application for judicial review of the Authority's decision was said to weigh heavily against granting an extension of time, and on that basis an application for an extension of time was denied.

33    Separately, a costs order was made requiring the applicants to pay the Minister's costs.

Grounds of appeal before this Court

34    The applicants' application was supported by an affidavit of the first applicant. No grounds were set out in the application, but the affidavit sets out the following (unedited):

1.    I am the first appellant and I am authorised to make this affidavit on behalf of my family, all the applicants in this appeal.

 2.    I am currently unemployed and cannot afford to pay the court fees.

 3.    I wish to appeal from the decision of the Federal Circuit Court of Australia.

4.    I have not received a copy of the reasons for decision by the Federal Circuit Court of Australia on 23 September 2019 and I intend to provide an amended application in the future and any supplementary affidavit in support of my appeal.

5.    In short, I believe the Federal Circuit Court did not properly consider my application by failing to give me an opportunity to present my case and consider the evidence in its entirety.

35    The applicants seek an order in the nature of certiorari.

Authorities

36    No appeal lies to the Federal Court from a judgment of the Federal Circuit Court refusing an application for an extension of time: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [1], [10]-[11]. However, this Court may entertain an application under s 39B of the Judiciary Act. There is no time limit as to when such an application may be brought.

37    The Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 recently made four observations, based on a review of some of the more relevant decisions in the area, as to where an error might occur in the exercise of power under s 477(2) by the Federal Circuit Court:

[65]    First, it seems to be fairly well established that the discretion is not confined by any obligation on the FCC to take into account or to ignore any particular matter. The nature, scope and purpose of the section does not identify any mandatory relevant consideration nor any consideration which must be excluded. That is subject to the requirement that the court must ascertain whether it is in the interests of justice to extend time for the making of a review application. Rather than regarding that as a relevant consideration of any kind it is more properly seen as the object of the exercise of power.

[66]    Second, it follows that a failure to take into account certain factors which are often relevant to the exercise of power, such as any explanation for delay or any prejudice or absence of prejudice to the Minister, will not, per se, result in a jurisdictional error of failing to take into consideration a relevant circumstance. The same might be said of a failure to take into account the merits of the appellants' proposed grounds of review.

[67]    Third, however, depending upon the circumstances, evidence that the FCC omitted to take into account the merits of the appellants' proposed grounds of review could evidence that it has acted upon a misconception of its function or a misunderstanding of its power and thereby committed a jurisdictional error. Whilst there may be cases where any relevant delay has been contumelious or contumacious and the prejudice to the Minister so great that an omission to consider the merits of the proposed grounds of review may not suggest a misunderstanding of function or power such cases would necessarily be rare. However, there is no need to reach any conclusion on that issue.

[68]    Fourth, the fact that, on an application under s 477(2), the FCC has engaged in more than an impressionistic evaluation of the appellant's proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction. That seems to follow from the observations in a number of the cases considered above. Although Ms Graycar's submission that there is no binding authority to that effect should be accepted, there is no doubt that the overwhelming weight of opinion supports the proposition. As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. Where the proposed grounds are examined for the purposes of ascertaining whether they would succeed were an extension granted, it is apparent that the power and the function to be performed are misunderstood.

[69]    This fourth conclusion is coherent with the historical and prevailing attitude of the common law not to deny access to the courts to litigants who have some arguable claim. In this respect, an important consideration is that s 477(2) enables the FCC to extend the time in which a person may seek review in circumstances where no other avenue of redress exists. For the intending applicant it is clear that the consequences of a refusal to extend time are legally and practically significant. In relation to the former, their access to the courts for the purposes of ventilating their claimed rights will be terminated. In respect of the latter, it is regularly said that the gravity of the consequences to a bona fide asylum seeker of being denied access to the Courts may, of itself, be a real reason for granting an extension: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.

38    The matters raised by the applicants are to be viewed against that backdrop. The matters numbered 1-3 in the first applicant's affidavit are not grounds of review. As to the fourth, the ex tempore decision of the Federal Circuit Court was delivered on 23 September 2019 and written reasons were published on 16 October 2019. The application to this Court was filed on 18 October 2019. However, I am not persuaded that there was any real prejudice to the applicants flowing from the (relatively short) period of time that elapsed, in circumstances where there was no time limit within which the applicants were required to lodge an application under s 39B. Further, the applicants were afforded the opportunity by this Court some months prior to the hearing to file any amended application giving full particulars of each ground, any additional affidavit evidence and written submissions. No further documents were received.

39    As to the claimed failure by the primary judge to provide the applicants with an opportunity to present their case, there is no evidence to establish that the applicants were denied an opportunity to participate meaningfully in the hearing. The first applicant said before me that he was incarcerated at the time of the Federal Circuit Court hearing and so could not attend. However, there is no evidence that the Federal Circuit Court was informed of this or was informed that the first applicant wished to be heard, rather than being represented by the second applicant. The second applicant accepted that she did not tell the primary judge of the first applicant's unavailability. The second applicant spoke on behalf of the applicants and there is no evidence that the applicants sought an adjournment or sought any opportunity to make additional submissions.

40    The second applicant submitted before me that she was stressed and unable to explain the applicants' case before the Federal Circuit Court. There was no evidence to suggest that the second applicant was inhibited by stress or other health issues to the point that she was unable to present properly her case. I have no difficulty assuming that the circumstances of appearing before the Federal Circuit Court were stressful for the second applicant. However, the primary judge appears to have made fulsome efforts to ensure the second applicant had every opportunity to present the applicants' case. Relevantly, as the reasons indicate:

(a)    the second applicant did not have copies of the material that had been filed and served (the Court Book and Minister's written submissions) with her at the hearing so copies were provided and the submissions were translated to her prior to the commencement of the hearing;

(b)    the applicants had an opportunity to file a proposed amended application, further affidavit evidence and an outline of submissions in the Federal Circuit Court but did not do so;

(c)    the primary judge explained to the second applicant the factors generally considered in determining extension of time applications and categories of jurisdictional error; and

(d)    the second applicant made submissions relating to the explanation of delay and was invited to explain why it was said that the Authority's assessment was unfair.

41    As to the claim that the primary judge failed to consider the evidence in its entirety, the primary judge referred to all of the evidence before it, including the application, the Court Book and the Minister's submissions. As is usual, the Court Book included documents relating to the first applicant's visa application including records of interviews, correspondence with the Department, communications with the Authority and the Authority's decision record.

42    It is apparent from the manner in which the primary judge considered the Authority's reasons that it considered at the impressionistic level required of it the merits of any argument as to jurisdictional error and the relevant evidence.

43    During the hearing before me I asked both the first applicant and the second applicant if there were matters they wished to raise with me as to the manner in which the Authority or the primary judge dealt with their applications.

44    Taken at their highest, the first and second applicants' oral submissions can be understood to disclose the following grounds of review (in addition to those addressed by way of the written grounds):

(a)    the Authority failed to consider the effect on the applicants of being returned to Vietnam;

(b)    the Authority failed to consider specifically the effect on the children (now aged 4 and 7 years old) of a return to Vietnam as they do not speak Vietnamese;

(c)    the Authority failed to consider the claims of the applicants at a sufficiently specific level;

(d)    the Authority had issues with the first applicant's credibility because it sees lots of people with credibility issues and assumed he similarly should not be believed and assumed that asylum applicants are likely to commit crimes; and

(e)    the first applicant was unable to produce documents that were relevant to his identification because they were lost, and the Authority failed to take this into account.

45    As to the first matter, the Authority was concerned with the first applicant's protection claim and its reasons reveal it considered those claims (see [8]-[16] above). The first applicant was not able to point to anything in particular that had not been considered.

46    As to the second matter, any difficulties faced by the children with language due to the passage of time that the family has remained in Australia would be diminished by the fact that their parents speak Vietnamese: but that is not to the point. The children brought no separate protection claim. There is no evidence that such difficulties that the children might face were raised before the Authority or the primary judge. No error is disclosed by any failure on the part of the Authority to take that matter into account or the primary judge's failure to consider it in the context of the extension application.

47    As to the third matter, the applicants were unable to point to particular matters that the Authority had not considered. The first applicant said that he was a refugee seeking asylum and he expected his claim to be accepted. He said the Authority did not think about his situation. The Authority's reasons, however, indicate that it did assess his claims. The Authority rejected aspects of his claims based on inconsistencies in his evidence. It noted those inconsistencies and how it said they arose. Its approach to inconsistencies in the context of credibility findings was consistent with the guidance provided by AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [22]-[28]. Otherwise, the Authority accepted parts of his evidence but having regard to country information did not consider he would face a real chance of harm based on his Catholic faith and did not consider that the first applicant would participate in any conduct from which he would be perceived to be an activist upon return to Vietnam. It is not apparent that the Authority failed to have regard to any relevant representation and the primary judge accordingly did nor err in his assessment as to the lack of merit in the applicants' claims.

48    As to the fourth matter, while findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [37]-[38]. However, I do not discern anything in the Authority's reasons that suggest it was biased or made a generalised assumption as to the first applicant's credibility. Rather, it rejected his claims having regard to the nature of the evidence he gave and his particular claims.

49    As to the fifth matter, the Authority accepted the applicants' identity and so the lack of access to any identity documents was not a matter that impacted on the outcome of the Authority's decision. Nor is there evidence that the applicants raised this issue with the Authority.

50    Finally, I note that the first applicant asked that I make an order permitting him to pay the costs in the Federal Circuit Court by instalments. I do not have the power to make such an order in this application. In any event, it seems to me that is something that the applicants might take up with the Minister's solicitors by correspondence.

51    The first applicant also asked that he have time to pay any costs order that I might make against the applicants by instalments over time, although he was unsure how much time he would require.

Conclusion

52    The applicants have not established any basis upon which the primary judge erred in his application of s 477(2) to refuse an extension of time. His Honour considered the issue of merit within the confines of only very generalised submissions from the applicants and found there was a 'lack of merit in the substantial application that weighed against the application'. He did not purport to determine the merits of the substantive application. The primary judge also considered carefully the question of procedural fairness, again having regard to the limited submissions made by the applicants. Neither the matters raised by the applicants nor my review of the primary judge's reasons disclose error by the primary judge. In those circumstances, the application under s 39B of the Judiciary Act must be dismissed with costs.

53    The Minister seeks an order that costs be fixed in the sum of $4,500, being an amount less than the costs that can be claimed in a short form bill for an application involving a migration decision (Federal Court Rules 2011 (Cth), Item 15 of Schedule 3). This is a suitable matter for the imposition of a fixed costs order. The applicants made no submissions as to the quantum of any fixed costs order. Having regard to the first applicant's request for time to pay, I will order that they pay the costs of the application in the sum of $4,500 within eight weeks. That order has the benefit of being clear and certain in circumstances where the applicants were unable to describe the type of instalment payment regime they might have preferred.

Associate:

Dated:    6 August 2020