Ahx21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

AHX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 77

File number(s):	SYG 182 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	24 September 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) Visa – where the applicant filed the Originating Application 15 days late – application for an extension of time pursuant to s 477 of the Migration Act 1958 (Cth) – whether an extension of time is necessary in the interests of the administration of justice –no arguable case of jurisdictional error by the Tribunal – application for an extension of time under s 477 of the Migration Act 1958 (Cth) dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476, 477
Division:	Division 2 General Federal Law
Number of paragraphs:	34
Date of hearing:	3 August 2021
Place:	Sydney
Solicitor for the applicant:	In person
Counsel for the respondent:	Mr N Swan, of Counsel

ORDERS

SYG 182 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AHX21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 December 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Subclass 866) Visa.

   BACKGROUND

2. The applicant is a citizen of Papua New Guinea (“PNG”) who first arrived in Australia on 6 February 2010. On 17 September 2012, the applicant departed Australia, and returned again on 8 October 2012. The applicant held student visas until the final student visa was cancelled on 30 December 2013.

3. After holding several bridging visas, the applicant unsuccessfully applied for partner visas in 2015 and 2017. It was not until 18 April 2017 that the applicant applied for the Protection Visa (“the Visa”).

4. In summary, the applicant claimed to fear harm because of past or future electoral violence, his imputed political opinion due to his family’s status, name and involvement in politics, his tribal origins and tribal land disputes, being educated and in a relationship with an Australian citizen with whom he has had a child, having spent a period of time in custody in Australia, and because he fears harm from political, family and business enemies.

5. On 12 December 2017, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.

6. On 2 January 2018, the applicant applied for review by the Tribunal. On 26 November 2020, the applicant appeared before the Tribunal to give evidence and present arguments.

7. The applicant also provided post-hearing submissions, dated 2 December 2020, that were referred to and taken into account by the Tribunal.

   BEFORE THE COURT

8. These proceedings were commenced on 4 February 2021, being 15 days outside the 35-day time period under s 477 of the Act.

9. There is an application, filed on 5 July 2021, that seeks an extension of time and complies with s 477(2)(a) of the Act.

10. By orders dated 1 April 2021, the matter was listed for hearing before this Court on 3 August 2021.

11. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the explanation given by the Court.

12. The applicant unsuccessfully applied orally for an adjournment. The Court was not satisfied an adjournment was warranted in the interests of the administration of justice. In relation to the delay, the applicant identified that his circumstances were such that he was affected by the impact of a trial, his own mental and emotional state, time constraints as well as being in quarantine, as described by him.

13. The delay is not insubstantial, but the Court would not refuse to extend time under s 477 of the Act on the grounds of the applicant’s explanation for the delay. At an impressionistic level, the real issue in the present case are the merits of the substantive application.

    THE GROUNDS

14. The grounds in the originating application are as follows:

    Ground 1

    1.Identifying a wrong issue

    Ground 2

    2.Asking wrong question

    Ground 3

    3.Ignoring relevant material

    Ground 4

    4.Relying on irrelevant material

    Ground 5

    5.An incorrect interpretation and/or application to the facts of the applicable law

    P.S. Please refer to the Application letter within.

15. Without particulars, none of the Grounds are capable of identifying a reasonably arguable case of relevant error by the Tribunal.

    THE TRIBUNAL’S DECISION

16. In its decision, the Tribunal identified the background to the application for review and set out the relevant law, included in an attachment to the Tribunal’s reasons which also included country information. The Tribunal summarised the applicant’s migration history, including his travel to the United States in September 2012, as well as the substantial delay in applying for the Visa.

17. The Tribunal identified that the applicant asserted that he feared harm on return to his home in the Western Highlands Province due to a land dispute with the clan. The applicant also alleged that he now has a partner and daughter to look after, and returning to PNG would jeopardise that future. The applicant identified as being of Melanesian ethnicity and a Seventh-day Adventist, and that he came from a particular tribe which is out of about six clans. 

18. It is apparent on the material before the Court that the applicant’s family relocated to Port Moresby, where the applicant completed his schooling and commenced his study in a Bachelor of Science. The applicant has five siblings, four living in Port Moresby and one who is living in the Western Highland Province. The Tribunal took into account that the tribal disputes referred to by the applicant were ones in the Highlands, and that his family has been living in Port Moresby since 2007.

19. The Tribunal explored with the applicant his delay in relation to the lodging of the Visa application. The Tribunal did not accept that the applicant would return to the Western Highlands Province, and found that the applicant has no personal involvement in any tribal land disputes in the Western Highland Province.

20. The Tribunal found that the applicant would settle in Port Moresby. The Tribunal identified that the applicant’s family had relocated to Port Moresby, where the applicant completed his final year of schooling. The Tribunal found that the applicant did not depart Port Moresby because he was escaping electoral violence or tribal violence. The Tribunal was not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby because of his tribal origin, race, tribal land disputes, membership of a particular social group, or as a male member of families targeted for retribution of tribal violence. The Tribunal found the applicant’s explanations in relation to electoral violence and the release of a particular person to be vague and speculative. 

21. The Tribunal was not satisfied that there is a real chance that the applicant would face serious harm if returned to Port Moresby because of past or future electoral violence, or because of his imputed political opinion due to his family’s or tribe’s activity in the Western Highlands.

22. The Tribunal referred to the applicant returning with a child and an Australian citizen. The Tribunal was not satisfied that there is a real chance that the applicant would face serious harm if he returns to PNG because people would be jealous and vengeful of him because he is an educated person who has been living in a western country, or because he has a white Australian partner with him and a child with her.

23. The Tribunal referred to the applicant’s claim to fear harm by reason of being in custody for 22 months in Australia. The Tribunal accepted that it would bring some embarrassment, but found that this would not amount to serious harm or significant harm. The Tribunal expressly took into account the applicant’s delay, which the Tribunal found to be significant.

24. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby because of past or future electoral violence, his imputed political opinion due to his family status, name and involvement in politics, his tribal origins or tribal land disputes. Further, the Tribunal was not satisfied that there is a real chance that the applicant would face serious harm if he was to return to Port Moresby, because he is educated and in a relationship with an Australian citizen with whom he has a child, because he spent a period of time in remand, or because he fears harm from political, family, and business enemies.

25. The Tribunal found that the applicant does not have a well-founded fear of persecution. The Tribunal found that the applicant does not satisfy the requirements of s 36(2)(a) of the Act. The Tribunal found that the applicant does not meet the criteria in respect of complementary protection under s 36(2)(aa) of the Act. Consequently, the Tribunal affirmed the decision of the delegate under review. 

    THE APPLICANT’S SUBMISSIONS

26. The applicant contended that he had obtained further material that he wished to advance going to the merits of his claim. Those are not matters that would be relevant or admissible before this Court and do not identify any arguable case or relevant error by the Tribunal.

27. The applicant maintained that he wanted legal representation. The Court had earlier identified that the applicant was not entitled to legal representation and the applicant’s oral request for an adjournment was refused.

28. The applicant maintained that he feared harm if returned to PNG which, in substance, invited the Court to engage in impermissible merits review. Nothing said by the applicant identified, at an impressionistic level, any arguable case of relevant error by the Tribunal. The Grounds in the application, as indicated above, without particulars are meaningless and do not identify an arguable case of relevant error. 

    GROUNDS 1 AND 2

29. Grounds 1 and 2 provide no explanation in relation to the alleged wrong issue or wrong question and do not disclose an arguable case.

    GROUNDS 3 AND 4

30. Grounds 3 and 4, which refer to ignoring relevant material and taking into account irrelevant material, without particulars do not identify any arguable case. 

    GROUND 5

31. Ground 5 is, again, an allegation of an incorrect interpretation or application of the law which, without particulars, does not identify an arguable case on an impressionistic level.

32. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and made adverse findings that were open for the reasons given by the Tribunal as summarised above.

33. The Court is not satisfied at an impressionistic level that the applicant has identified a sufficiently arguable case whereby it is necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act. Having taken into account the applicant’s explanation for the delay and the want of merits in the Grounds identified in the originating application, the Court is not satisfied that it is necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act.

34. Accordingly, the application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 September 2021