Ahe17 v Minister for Immigration and Border Protection
[2018] FCA 196
•15 February 2018
FEDERAL COURT OF AUSTRALIA
AHE17 v Minister for Immigration and Border Protection [2018] FCA 196
Appeal from: Application for extension of time: AHE17 v Minister for Immigration & Anor [2017] FCCA 2017 File number: QUD 421 of 2017 Judge: LOGAN J Date of judgment: 15 February 2018 Catchwords: MIGRATION – application dismissed by primary judge – application for extension of time and leave to appeal – where delay is in the order of 3 days – accepted reasons for delay – no reasonable prospects of success – extension of time refused – application dismissed. Legislation: Migration Act 1958 (Cth)
Federal Court Rules r 26.05
Date of hearing: 15 February 2018 Date of last submissions: 8 February 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Minter Ellison ORDERS
QUD 421 of 2017 BETWEEN: AHE17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
15 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs, of and incidental to the application, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)LOGAN J:
The applicant is a citizen of India. He came to Australia on 27 November 2007, on a Student (Temporary) (Class TU) visa. He made, later, applications for a skilled (subclass 457) visa. These applications were not successful, with the result that on 17 September 2010, his bridging visa ceased to be in force. He remained in Australia nonetheless.
On 5 December 2014, the applicant made application for that class of visa under the Migration Act 1958 (Cth) known as a protection visa. On 20 October 2015, a delegate for the Minister for Immigration and Border Protection refused to grant to the applicant a protection visa. The applicant then sought a review on the merits of that decision by the Administrative Appeals Tribunal (the Tribunal). On 19 December 2016, for reasons which were set out in writing, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the applicant a protection visa. The applicant then sought the judicial review of that decision by the Federal Circuit Court. On 4 August 2017, for reasons delivered that day orally, that court dismissed, with costs, the applicant’s judicial review application.
The applicant did not file a notice of appeal against that order of dismissal within the time prescribed by the Federal Court Rules (the Rules). On 28 August 2017, he filed an application for an extension of time within which to appeal, pursuant to r 36.05 of the Rules. The applicant missed by three days the prescribed time for the filing of a notice of appeal. He has, in his affidavit, explained that he had some difficulty in ascertaining the correct time within which to file the notice of appeal.
The Minister accepts the accuracy of the explanation given by the applicant in his affidavit. Very fairly, the Minister concedes that, were there reasonable prospects of success in relation to the proposed appeal, then, given the quite short time lapse and the explanation, the case would be one for the granting of an extension of time. The adequacy or otherwise of an explanation for delay, the length of delay, and prospective merits of the proposed appeal are always relevant in relation to an extension of time application; and those considerations can interplay. Prejudice to a prospective respondent to an appeal can also be a relevant consideration, but it is not necessary, in this case, to dwell on that. Instead, the question is very much whether, having regard to the proposed grounds of appeal, the proposed appeal is attended with sufficient prospects of success to warrant the granting of an extension of time.
The proposed grounds of appeal, as set out in the draft notice of appeal, should now be stated. They are:
Grounds of appeal
1.I am not satisfied with the decision of Federal Circuit Court. The department lawyers told judge about the condition of India that is not ground reality.
2.I want to take my application further in Federal Court and need decision.
Orders sought
1.I want to put review in Federal Court because previous court did not hear my point of view and description about the circumstances happens in Indian which are dangerous for my further life there.
In his reference to ground “reality”, the applicant has taken up a sentiment voiced by him in his grounds of review before the Federal Circuit Court. It is necessary to remember that the jurisdiction of this Court, which the appellant seeks to invoke, is appellate, not original, jurisdiction. Error on the part of the Federal Circuit Court must be demonstrated.
In turn, the jurisdiction exercised by the Federal Circuit Court was that of judicial review, not merits review. The Federal Circuit Court’s role was to decide whether the Tribunal’s decision was rendered invalid by a jurisdictional error. If that court failed to do that, then there would be occasion for the allowing of an appeal; but it was not that court’s role to decide afresh, upon evaluation, the merits of whether to accept the applicant’s account of events in India in preference to other information to hand.
That type of evaluation was a matter for the Tribunal in discharging its merits review function. The applicant made the point, which is, with respect, logical enough, that the Tribunal ought to have preferred his account, as a person on the ground, who had seen events, in preference to accounts of the situation as disclosed in diplomatic country information reports which were before the Tribunal.
It is necessary, though, to recall that evaluation of competing merits, and the weight to give to competing items of information, is for the Tribunal. Jurisdictional error is not to be found in disagreement, even as I am quite sure is present with the applicant, genuine and emphatic disagreement, with factual conclusions reached after such evaluation by the Tribunal.
The applicant had claimed to fear arrest, if returned to India, by the police in relation to the attempted murder of two brothers in his hometown in the Punjab. He also claimed to fear harm from those brothers and their families, on the basis that they wanted revenge. The Tribunal engaged with the basis of the applicant’s protection visa claim. So much is quite apparent from the Tribunal’s reasons. The Tribunal did reach some conclusions about the claim in the applicant’s favour. It also made very particular findings about the internal information sharing networks or lack thereof within the police generally in India. Even allowing for findings of fact made in the applicant’s favour, the Tribunal made particular findings in relation to his ability with his particular language and education skills and ethnic background and religious beliefs to relocate within India. In doing that, the Tribunal made particular findings about the level of unemployment and the availability of work if the applicant were returned to India.
The Tribunal’s reasons disclosed that before making such findings, items of information on these subjects as contained in diplomatic country information reports were put to the applicant for his comment. The Tribunal’s reasons disclosed that it took such information as well as the applicant’s responses into account. The Tribunal’s conclusion was that it would be open to the applicant to relocate were he to be returned to India. The reasons disclose no error of principle in relation to the concept of internal relocation, nor in relation to preferential value judgments in respect of the information before the Tribunal. So much was appreciated by the learned Federal Circuit Court judge in deciding to dismiss the judicial review application. As his Honour stated at paragraph 11:
The applicant’s grounds of review are rudimentary to say the least. That is no criticism; it is simply an observation which is designed to demonstrate that the grounds themselves do not identify any particular jurisdictional error in the Tribunal’s decision. His oral submissions to me today confirm that the applicant’s real argument with the Tribunal’s decision is that it did not believe him. As I have attempted to demonstrate in these reasons, however, the Tribunal did believe some of what the applicant said; just not all of it.
The grounds themselves do not identify any particular jurisdictional error in the Tribunal’s decision.
His oral submissions to me today confirm that the applicant’s real argument with the Tribunal’s decision is that it did not believe him. As to this, the Federal Circuit Court judge concluded that the findings which the Tribunal made were neither illogical, nor irrational, nor were they unreasonable in any relevant sense. Observations similar to those made by the learned Federal Circuit Court judge may also be made in relation to the proposed grounds of appeal and the applicant’s oral submissions today. The proposed grounds of appeal do not engage with why it was wrong in law for the Federal Circuit Court to have reached the conclusions which I have mentioned. Further, that the Federal Circuit Court reached such conclusions is not evidence of bias or even an appearance of bias, only the correct application of the legal principle to the case at hand.
The Tribunal was an administrative forum not bound by the rules of evidence and charged with making evaluations on the merits of the information before it. The Tribunal could have accepted everything of the applicant’s account in preference to other information, but it was not bound to do this. The result is that even on a generous reading of the proposed grounds of appeal, they are not attended with sufficient prospects of success such as to warrant the granting of an extension of time, short though that period is. For these reasons, the application is dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 28 February 2018
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