AIS18 v Minister for Home Affairs

[2019] FCCA 3005

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIS18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3005

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection (Class XA) (Subclass 866) visa application – application for judicial review of decision of Administrative Appeals Tribunal not to grant to the applicant Protection visa – applicant needed a 148 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make her application to this Court – no reasonable prospects of success for proposed substantive grounds – application for extension refused.

Legislation:
Migration Act 1958 (Cth), ss.5, 36, 65, 424A, 477

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

Applicant: AIS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 197 of 2018

Judgment of: Judge Dowdy

Hearing date: 9 October 2019

Delivered at: Sydney

Delivered on: 9 October 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms K. Evans

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 January 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 197 of 2018

AIS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant in this proceeding is a female citizen of Malaysia aged 36 years, having been born on 29 December 1982. 

2. By Application filed in this Court on 24 January 2018, she seeks: 

   a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 148 days, nearly 5 months, outside the 35 day time limit prescribed by s.477(1) to make her substantive application for judicial review to this Court; and

   b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 25 July 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 9 March 2017, refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background and Claims to Protection

1. The Applicant arrived in Australia on 17 March 2016 on a Tourist (Class TR) (Subclass 676) visa which expired on 17 June 2016. She then applied for the Protection visa on 15 December 2016.

2. In her Protection visa application form, she stated that she spoke, read and wrote the English language and, in summary, claimed to be part of the Sabah Sarawak Union – United Kingdom (SSU-UK) as a volunteer, for which she had been collecting signatures on a petition to request the British Government to review the 1963 Malaysian Agreement.

3. The Applicant claimed to have been threatened by the Malaysian Government and that other volunteers had been charged and accused under the Sedition Act 1948 (Sedition Act) for trying to educate and spread the truth about the SSU-UK.

4. The Applicant’s claims as made in her Protection visa application were as follows:

   I am an asylum seeker, for being part of Sabah Sarawak Union United Kingdom as the volunteers being threatened and will be accused with Sedition Act 1948. It is not relevant to threaten the volunteers with Sedition Act 1948 just because we educating our people with the truth and the right that we supposed to claim. We are in a process to claim our rights by collecting a sign petition to be send to the United Nation, and get the British government to review the validation of the Malaysia Agreement 1963. We’ve been threatened for claiming Sabah Sarawak rights and will be accused for being a secessionist, but all we want is justice. We try to seek international authority to involve by law and to justify that the Malaysia has breached the contract of the Malaysia Agreement 1963. Long-term human rights being abused in North Borneo, Sabah and Sarawak by the Malay after the agreement being violated and we’re struggling for justice.

   All the volunteers for Sabah Sarawak Union-United Kingdom (SSU-UK) have been threatened and some of the volunteers has been charged and accused with Sedition Act 1948 which is not relevant in the Federation, since it is the Act being used during the British colonial on Malaya. Sabah and Sarawak not supposed to be treated like we are under colonial of Malaya. The Malaysia government mentally colonising Sabah and Sarawak by oppressed the people and manipulating the history in the educational school, and the Malaysia government also disrespect the native people in Sabah by saying that the Kadazan Dusun Murut Rungus natives are all from China and not belong from Borneo. The British found the native people in Borneo in 1880 during their govern Borneo. But the Malay disgrace and eroded our dignity with these kind of discrimination. There’s no strong human rights organisation in Malaysia. And we might lose our land if we stop fighting.

   Criminal issues in Sabah are increased since the Malaysia government giving away a fake identity card and citizenship to illegal immigrants from Sulu Philippines, Indonesia and Bangladesh. But they must vote for the Malaysia government political party every election day, and they also must convert to Islam. This is how the dirty political benefits done by the Malaysia. Sabah are no longer safe because the local and tourist are exposed with various criminal issues such as robbing, fighting, sexual abuses and the worst is the kidnapping issues that never comes to end. I experienced being robbed and attack in the public during daytime. Everyone get affected from the demographic structure done by the Malaysian government.

   Every time there’s criminal incident happened caused by the illegal immigrants, we make a police report, with the hope that these issues will be solve. But the number of the illegal immigrants keep on increasing, and they are everywhere with wearing the political party t shirt of Barisan Nasional UMNO. It is obvious that their presence are for the political benefits.

   Moving to another part of Malaysia is the worst decision, because in Malaya, the racist sentiment are the worst and depressing. Malaysia stated that Malay race are the boss (system Ketuanan Melayu) making that the Malays race will get the immunity and more benefits from the Malaysia government just because they are Malay by race. Other races been discriminated just because they’re not Malay by race. The people of Sabah and Sarawak who lived in Malaya being discriminated because we’re Christian religion and not Malay race.

   We’ve been accused and threatened if we become part of the SSU/UK volunteers to collect the sign petition for Sabah’s Sarawak rights. The Malaysia government ignored the human rights that we claimed according to the agreement agreed during the formation of Malaysia 1963. The Malaysia Agreement 1963 is void after Singapore left the Federation, and SSU/UK try to get the Malaysia Agreement 1963 to be review. But fighting for our rights and knowing that the Malaysia government is wrong can be accused like we are doing a deadly criminal act in Malaysia. We’re democracy country but we don’t have freedom of speech, freedom of expression, freedom to write, freedom to read. North Borneo Sabah and Sarawak need justice from the higher authority and International and other Commonwealth countries involvement.

   The authority in Malaysia will never protect those who against the Malaysia government, even though the Malaysia government knows that they’re doing wrong and against human rights, especially when it involves with the Malaysia Agreement 1963 to be questioned, anyone can be accused and being threatened for knowing the truth behind Malaysia’s lies and wrongdoing.

   Part of the integrity of human rights is not just a civic and political rights. It also includes economic, social and cultural rights; the rights to food, to education, to health. Extreme poverty is the worst violation of human rights happened in Sabah and Sarawak. Where the land is rich with oil and gas resources, but the people still living in high poverty. It is not safe to claim our rights, to educate our people and to collect sign petition within Malaysia.

   (see reason for emphasis at [13] below)

Relevant Criteria and Law Application to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. In his Decision Record dated 9 March 2017 the Delegate considered a body of country information in relation to the political structure and situation in Malaysia and the use of the Sedition Act. The Delegate then recorded that the Applicant’s claims were:

   …extremely similar or identical to the claims made by numerous other recent Protection visa applicants from Malaysia, suggesting that she has relied on pro-forma claims, rather than advancing her own legitimate claims.

   The applicant’s claims contain few personal details, and limited information in relation to her own political activities and past problems, and she has provided no evidence to support her claim that she was politically active in Malaysia, and was subjected to persecution.

   Further, the applicant was able to obtain a passport in September 2015 and depart Malaysia in March 2016 without hindrance from the authorities which suggests that she does not have a political profile and is not of adverse interest to the Malaysian authorities. Overall I am satisfied the applicant is not at risk of harm from the Malaysian authorities or anyone else in Malaysia for reasons of her claimed political activities or for any other reason.

2. In the result the Delegate found that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 15 March 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.  The Applicant then appeared at a hearing before the Tribunal on 23 June 2017 to give evidence and present arguments.

2. At [2] of its Decision Record the Tribunal set out the Applicant’s claims to protection. At [5] it recorded that the Applicant had stated that she had worked in Malaysia for an investment bank from 2006 to 2014 as a secretary and had then been retrenched, had not looked for work since that time and that the Malaysian “economy was down”.

3. At [7] and [8] of its Decision Record the Tribunal stated as follows:

   [7] The Tribunal put to her that she did not seem to have knowledge consistent with someone who was a member of Sabah Sarawak Union. She chose not to comment.

   [8] The Tribunal also put to her that her claims were similar to or identical to the claims in another protection visa application. The applicant chose not to comment.

4. At [9] of its Decision Record the Tribunal recorded that after the Tribunal hearing it had sent to the Applicant a letter under s.424A of the Act dated 26 June 2017 (s.424A invitation), which invited her to comment on the following:

   a)that claims identical or nearly identical to hers that had been made in another Protection visa application; and

   b)the delay between her arrival in Australia on 17 March 2016 and her application for the Protection visa on 15 December 2016.

   I have identified at [6] above the content of the identical or nearly identical claim in the other Protection visa application appearing in the Applicant’s Protection visa application. At [10] of its Decision Record the Tribunal recorded that the Applicant did not respond to its s.424A invitation.

5. At [19] of its Decision Record the Tribunal stated and found as follows:

   [19] The applicant has stated that she cannot return to Malaysia because she was part of Sabah Sarawak Union United Kingdom and has been collecting signatures for the Sabah Sarawak Union petition since around 2014. She claims that she will be accused under the Sedition Act 1948, however the Tribunal finds that at hearing, she did not know when Doris Jones formed the Sabah Sarawak Union United Kingdom movement, when the government decided to prosecute Doris Jones or the Malaysian government’s response to the movement. In addition, she did not know what the petition asked for in relation to religion. The Tribunal finds it is not satisfied that the applicant displayed at hearing knowledge of Doris Jones or the government’s response to the SSU-UK movement that is consistent with someone who was part of Sabah Sarawak Union United Kingdom. The Tribunal also finds she did not display knowledge of the petition that is consistent with someone who was involved with collecting signatures for the Sabah Sarawak Union petition since 2014. In addition, she delayed in applying for a protection visa which the Tribunal finds is not consistent with her alleged fear of returning to Malaysia.

6. At [20] of its Decision Record the Tribunal found that, although at the Tribunal hearing the Applicant had said that she had completed her Protection visa application herself and had not shown it to anyone, her “claims and the claims in another Protection visa application (AAT file number 1705335) are similar in the way they are expressed, with nearly identical paragraphs or phrases used. When the Tribunal put this information to the Applicant during the course of the hearing before it she chose not to comment.” 

7. In the balance of [20] and [21] of its Decision Record the Tribunal found as follows:

   [20] …The Tribunal finds that it is not satisfied that the applicant’s claims in her protection visa application have been written by her or are personal to her. In addition, given her lack of knowledge as displayed at hearing about when the government decided to prosecute Doris Jones or the Malaysian government’s response to the movement or what the petition asked for in relation to religion, the Tribunal is not satisfied that the applicant is part of Sabah Sarawak Union United Kingdom or that she collected signatures for their petition. Neither does the Tribunal accept that the applicant holds an anti-government political opinion consistent with Sabah Sarawak Union United Kingdom, or that she has or will express anti-government opinions in the future. The Tribunal is therefore not satisfied, that there is a real chance that the applicant will be persecuted for reasons of her political views.

   [21] The Tribunal also finds that given that the applicant has worked in Malaysia, there is nothing in the applicant's past employment that suggests that she has been discriminated against because will be denied employment opportunities commensurate with her experience. Or that there is a real chance that the applicant will be denied access to work for reasons of her race, religion, gender, age, political views or for any other reason.

8. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant. 

Grounds of Extension Application

1. The Applicant’s Grounds for extension are verbatim as follows:

   1. I was not represented by any solicitor and not aware of the time limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness and the Tribunal member inadvertently failed to discharge its statutory duty.

   2. The Applicant met the key elements of the Subclass 866 visa but the Tribunal member did not consider and therefore committed factual and legal error.

2. In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the courts have developed non-exhaustive guidelines as to the factors which are to be taken in to account. Those factors include:

   a)whether there has been a reasonable and adequate explanation for an applicant’s delay and the extent of the delay;

   b)whether there is any prejudice to the Minister; and

   c)whether an applicant’s substantive case for judicial review is reasonably arguable, or has reasonable prospects of success.

3. In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive grounds on a “reasonably impressionistic level”. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Mortimer J said at 597 – 598 [62] – [63], with respect to applications for an extension of time under s.477(2) of the Act, as follows:

   [62] As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

1. The delay of nearly 5 months is, in my view, considerable. Although there has been no real or actual prejudice to the Minister resulting from it, that fact does not in itself militate in favour of an extension.

2. In my view, the Applicant has not provided a reasonable or adequate explanation for the delay of 148 days. Many applicants for Protection visas do not have the advantage of being represented by a solicitor, and in this instance the Applicant speaks, reads and writes the English language, and did not seek an interpreter in this Court, as evidenced by her Application to this Court and as she expressly told me at the first directions hearing in this Court and further confirmed at the final hearing today.

3. However, I now turn to the most important issue, being whether or not there is any arguable basis for the Applicant’s proposed substantive Grounds.

Proposed Substantive Grounds

1. The proposed substantive Grounds relied upon by the Applicant are verbatim as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia by government authorities.

   2. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.

   3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

Consideration

Proposed Substantive Ground 1

1. This proposed Ground in effect asserts that the Tribunal “misconstrued” the complementary protection criterion, and otherwise appears to seek merits review of the Tribunal’s finding at [25] of its Decision Record that the Applicant did not face ““a real risk of” significant harm as defined in s.36(2A) and s.5(1) because of her political views or for any other reason”.

2. In my view, the Tribunal did not misconstrue the meaning or effect of the complementary protection criterion. The relevant criteria for the grant of a Protection visa were set out in its Decision Record from [11] – [15], with the terms of the relevant provisions of the Act attached to the Decision Record itself.

3. Merits review of the Tribunal’s decision is not available in this Court and this proposed Ground would not be made out.

Proposed Substantive Ground 2

1. This proposed Ground is generalised and unparticularised. It does not identify how it is proposed to be said that the Tribunal misinformed itself, appears to merely argue with the merits of the Tribunal’s findings and would also not be made out.

Proposed Substantive Ground 3

1. This proposed Ground, again, appears to argue with, and seek impermissible merits review of, the decision of the Tribunal. Under s.65(1)(b) of the Act the Delegate was bound to refuse to grant the Protection visa to the Applicant, unless he was satisfied that the criteria for its grant under s.36(2)(a) or s.36(2)(aa) had been met. The Tribunal, whose role in the process had been invoked by the Applicant, clearly had jurisdiction under s.414 of the Act to review the Delegate’s decision and this proposed Ground would not be made out.

2. Finally, in terms of Grounds 1 and 2 of the extension of time application (see [18] above), in my view no procedural unfairness has been established. No inadvertent failure of the Tribunal member to discharge her statutory duty would be made out, nor is there any reason to believe that the Tribunal member committed any relevant factual or legal error. Ms Evans, who appears for the Minister today as a model litigant, confirms that the Minister has not been able to identify any other ground of arguable jurisdictional error of which the Applicant would have been able to avail herself.

Conclusion

1. Accordingly, in my view, the proposed substantive Grounds which would be relied upon by the Applicant are not reasonably arguable, do not have reasonable prospects of success and would not provide a basis for a finding of jurisdictional error on the part of the Tribunal. 

2. I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding, and accordingly the application for an extension of time within which to do so will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  21 October 2019