Agx17 v Minister for Immigration

[2019] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGX17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2938

Catchwords:
MIGRATION – Application for an extension of time – whether leave to file should be granted – whether it is in the interests of the administration of justice to grant an extension of time.

Legislation:

Migration Act 1958 (Cth), ss.5J(5), 36(2)(a), 36(2)(aa), 477(2)

Cases cited:

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: AGX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 124 of 2017

Judgment of: Judge McNab

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Melbourne

Delivered on: 9 October 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Ms Elliott

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application filed 19 January 2017 be dismissed and such order becomes operative from the date written Reasons are published.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

AND THE COURT NOTES THAT:

1. Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 124 of 2017

AGX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. By an application filed on 19 January 2017, the applicant seeks an extension of time in which to seek judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 6 December 2016 pursuant to section 477(2) of the Migration Act 1958 (Cth) (‘the Act’). The application for judicial review was filed 10 days out of time. The Minister opposes the grant of an extension of time.

2. The decision the applicant wishes to review is the Tribunal’s decision to affirm a decision of the delegate (‘Delegate’) of the First Respondent (‘the Minister’) to refuse to grant the applicant a Protection (Class XA) visa (‘the Visa’).

Background

1. I adopt the background which has been provided by the Minister’s written submissions at [3] to [8]:

   3. The applicant, a citizen of Malaysia, arrived in Australia on 24 April 2013.

   4 On 15 January 2016, the applicant applied for the visa. The applicant’s claims for protection were contained in her visa application. In summary, she claimed that she was a member of the Bersih group, and the Malaysian government were tracking Bersih group members. She feared returning to Malaysia because she would be caught by the police and imprisoned.

   5 On 10 March 2016, the delegate refused to grant the visa.

   6 On 24 March 2016, the applicant applied to the Tribunal for review of the delegate’s decision. On 7 November 2016, the Tribunal invited the applicant to attend a hearing before it on 5 December 2016. The applicant subsequently provided a response to hearing invitation, requesting that the Tribunal take evidence from her husband Mmohammad Nazum.

   7 On 5 December 2016, the applicant attended the hearing before the Tribunal, which was conducted with the assistance of an interpreter in the Malay and English languages.

   8 On 6 December 2016, the Tribunal affirmed the decision under review.

   (citations omitted)

The Tribunal’s decision

1. The Tribunal did not accept the applicant’s evidence regarding her involvement with the Bersih group and found her evidence to be vague and generalised. At [13] and [14] of the Tribunal’s decision record, the Tribunal gives examples of why it found that evidence to be vague and generalised. The Tribunal, at [15] of the decision record, found that the applicant’s evidence had displayed a limited and incorrect knowledge about the Bersih movement and the group’s objectives. It made that finding based on reference to country information.

2. Through [16] to [18] of the decision record, the Tribunal gives detailed reasons as to why it found the applicant’s knowledge of the movement and her purported involvement in the movement to be lacking in credibility. At [20] of the decision record, the Tribunal concluded, in relation to her involvement with the Bersih group, that:

   the Tribunal does not accept that the applicant was ever asked or persuaded to join the Bersih movement or group by a friend, Mohammad lzwan, and does not accept either the applicant or her friend are or were 'Bersih group members'.

3. The Tribunal, at [22] of the decision record, did not accept that the applicant had left Malaysia because of fears related to Bersih and did not accept that she faces a real chance or risk of her name being given to police or being imprisoned for any Bersih related activities.

4. At [23] of the decision record, the Tribunal did not accept that the applicant faced a real or significant risk of harm due to any political activities or support if she returned to Malaysia.

5. The Tribunal considered the applicant’s family situation at [24] to [28] of the decision record. At the time of the hearing, the applicant had one child, a son born in January 2016. It also noted that the applicant had entered into a religious marriage with her husband in February 2015.

6. At [26] of the decision record, the Tribunal stated the applicant’s evidence regarding her husband’s legal status in Australia was somewhat unclear. According to her, he is an ethnic Rohingya and has applied for temporary protection. From the applicant’s evidence, it appears that his claim has not been finally determined. Their son is included in her husband’s visa process. She stated that her husband has a lawyer assisting him.

7. At [27] of the decision record, the Tribunal recorded that the applicant gave limited evidence about her the family situation at the hearing. However, the Tribunal acknowledged that separation from her husband and child will be difficult for the applicant and cause her distress. The Tribunal did not accept that the applicant’s separation from her husband and child, if she was to return to Malaysia after the refusal of her protection visa, amounts to serious harm as contemplated by section 5J(5) of the Act.

8. At [28] of the decision record, the Tribunal did not accept that the distress arising from that situation amounted to significant harm as defined in section 36(2)(a) of the Act. The Tribunal found this on the basis that there was no intention on the part of the Australian authorities or anyone else to inflict upon the applicant pain or suffering or extreme humiliation.

9. There was a question as to whether the husband would give evidence before the Tribunal. At [19] of the decision record, the Tribunal noted that any evidence given by the husband would be based on matters related to the husband by the wife and consequently, be of little weight. The Tribunal then noted at [19] of the decision record that:

   The applicant then advised the Tribunal that she did not wish for her husband to give evidence. Given the significant discrepancies in the applicant's evidence and her acknowledgment that any evidence from her husband would only be based on what she has told him, the Tribunal does not accept that any evidence that would have been provided by the applicant's husband would have outweighed its concerns.

10. By way of conclusion, the Tribunal found that the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under sections 36(2)(a) or 36(2)(aa) of the Act.

The grounds of review

1. The applicant’s grounds of review are:

   (a) That the Tribunal made a legal mistake when it made my decision.

   (b) I will ask Victoria Legal Aid to assist me.

2. The applicant appeared before the Court with the assistance of an interpreter from Bahasa Malaysia to English and, when asked to outline her concerns in relation to the decision or why she thought that the decision was wrong, she raised that she thought there was a failure on the part of the interpreter before the Tribunal.

3. She said that her mother was a refugee in Malaysia from Cambodia, and that she had been born in Malaysia. She said that the Tribunal was confused about her citizenship in Malaysia, and that there was a question at the hearing about whether she was a Malaysian citizen. I understood that she was putting that that confusion arose as a result of some error in interpretation from Bahasa to English.

4. At [11] of the decision record, the Tribunal noted that the applicant had advised that her parents were Cambodian refugees in Malaysia and had only recently acquired Malaysian citizenship. The Tribunal also noted that, whilst the applicant’s evidence was a bit unclear about the manner in which her citizenship was obtained, there was no evidence before the Tribunal to doubt her claims about this issue. The Tribunal found that the applicant is a Malaysian national and has assessed her claims against that country.

5. The applicant did not point to any other matter or issue in the Tribunal’s decision which was said to be affected by some error in interpretation. Further, I note that the applicant did not raise before the Tribunal any issue in relation to interpretation and has not filed any evidence before the Court in relation to that issue.

Consideration

1. The Court may extend the 35-day period in which to file an application if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order. The Court, in assessing whether it is necessary in the interests of the administration of justice to make the order, has regard to the extent of the delay, the explanation for the delay, any prejudice to the respondents, the impact on the applicant, the interests of the public at large, and the merits of the substantive application.

2. The applicant, by an affidavit affirmed in support of her application on 19 January 2017 states that:

   4. I am sorry that I could not file my application on time. I did not have a lawyer to help me with my Tribunal case and I did not know that I could go to court to have my decision reviewed. I did not know until today about court or about a deadline to apply to court.

   5. My English is medium/good but I still do not understand complicated legal processes and I did not know about the next part of the process for me.

   6. It was not until I went to the Department of Immigration and Border Protection to ask about my Bridging visa that they told me I should ask for legal advice about what to do next. I went to the Department on 13 January 2017.

   7. I went to see Refugee Legal on 18 January 2017 however they told me that they could not help me. I then went to see the Asylum Seeker Resource Centre on the same day. They told me that I can apply to the Federal Circuit Court to have my decision reviewed.

   8. Once I knew that I should get legal advice, I acted as quickly as I could. I have a baby boy who is 1 year old. It has been difficult to try and deal with my legal situation while caring for my baby.

3. She also stated that she would ask Legal Aid to assist her and assess her case.

4. The general ignorance of time limits and ability to bring judicial review proceedings is, without further justification, an unsatisfactory explanation for delay: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]. The Court does have sympathy for the applicant as English is not her first language and she may not be familiar with the legal processes and she had the care of a young child. However, in my view, the explanation does not satisfactorily explain the delay in this matter.

5. She was involved in the hearing before the Tribunal and she knew that the purpose of the review process was to overturn a decision of the Delegate so that she could remain in Australia.

6. I accept that there is no particular prejudice suffered by the Minister if the application was granted.

7. I must, however, consider, not in an overly detailed way but for the purposes of assessing whether or not to grant an extension of time, the merits of the claim before the Court in the substantive application. As noted, the grounds of review are that ‘the Tribunal made a legal mistake when it made my decision’. A review of the Tribunal’s decision indicates that the Tribunal made specific reference to the applicant’s claims, investigated those claims for the purposes of determining whether or not there was substance to the application, and set out in detail its reasons for its decision. There is no apparent error in the Tribunal’s reasoning process and the findings that were made were open to the Tribunal on the evidence available to it.

8. In relation to the conduct of the hearing, the applicant was invited to attend the hearing and she did so with the assistance of a Malay interpreter. The applicant was aware of the issues that were before the Tribunal, having regard to the fact that she was on notice from the Delegate’s decision.

9. There is no error apparent in the Tribunal’s findings at [27] and [28] of the decision record in relation to hardship that may follow from the applicant’s removal from Australia because of a separation from her child and husband. In that regard I refer to the decision of the plurality of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [26] and [27].

10. As a final note, the applicant did say that she wanted more time to prepare for her application here today. I am aware that the applicant is the mother of two young children and she has said from the bar table that her eldest child has some health issues. However, the Court is of the view that the applicant has had ample time – since 9 January 2017 –to prepare for this hearing and obtain legal assistance if that was available.

11. I have sympathy for the applicant’s situation, however, there is no arguable claim raised by the applicant in relation to the decision of the Tribunal.

Conclusion

1. On that basis, the Court is of the view that the interests of justice would not be served by extending the time to file the application.

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

Associate:

Date: 17 October 2019