AJH17 v Minister for Immigration and Border Protection
[2018] FCA 718
•21 May 2018
FEDERAL COURT OF AUSTRALIA
AJH17 v Minister for Immigration and Border Protection [2018] FCA 718
Appeal from: Application for extension of time: AJH17 & Anor v Minister for Immigration & Anor [2017] FCCA 2681 File number: QUD 673 of 2017 Judge: COLLIER J Date of judgment: 21 May 2018 Catchwords: MIGRATION – application for extension of time to appeal from decision of the Federal Circuit Court of Australia – protection visa – where reasons for delay unsatisfactory – where ground or grounds of appeal lack merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424A
Federal Court Rules 2011 (Cth) rr 9.63, 36.03(a)(i)
Cases cited: AJH17 & Anor v Minister For Immigration & Anor [2017] FCCA 2681
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Date of hearing: 21 May 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicants: The Applicants did not appear Solicitor for the Respondents: Ms B Rayment of Sparke Helmore ORDERS
QUD 673 of 2017 BETWEEN: AJH17
First Applicant
AJI17
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
21 MAY 2018
THE COURT ORDERS THAT:
1.The application for extension of time filed on 1 December 2017 be dismissed.
2.The First Applicant pay the costs of the First Respondent of and incidental to this application, such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
BACKGROUND
This is an application for extension of time to appeal from the decision of the Federal Circuit Court of Australia in AJH17 & Anor v Minister For Immigration & Anor [2017] FCCA 2681 in which the primary Judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The decision of the IAA had, in turn, affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (Minister) refusing the applicants Temporary Protection Visas (Class XD) (Subclass 785) (protection visas).
It is not in dispute that the applicants are out of time in seeking to appeal the decision of the primary Judge, and that in order to prosecute an appeal they require an extension of time.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J set out relevant principles in relation to granting an extension of time, including that a satisfactory explanation for the delay in filing the notice of appeal has been provided by the applicant, the circumstances of the respondent and whether it would suffer prejudice in the event that the extension of time is granted, and the merits of the substantive application. I respectfully adopt these principles in this case. In doing so I note that:
(1)The applicants have made no submissions on any aspect of the case.
(2)An explanation for the delay in filing is offered in an affidavit of Lorraine Brosnan sworn/affirmed 29 November 2017
(3)The other supporting affidavit in this proceeding was sworn by the second applicant. In that affidavit the second applicant deposed that she sought to appeal because she disagreed with the primary Judge’s decision.
(4)The Minister concedes that he would suffer no prejudice in the event that the Court granted an extension of time to file a notice of appeal.
(5)The only ground of appeal in the draft notice of appeal attached to the second applicant’s affidavit was:
1.The learned Judge at first instance erred in finding that the Immigration Assessment Authority did not make a jurisdictional error.
HEARING OF THE APPEAL
At the hearing of the appeal this afternoon there was no appearance by either appellant. I do not understand there to have been any communication from the applicants to the Court informing the Court of reasons for their non-attendance today.
Ms Rayment for the Minister sought an order pursuant to r 35.33 (1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules) that the matter be dismissed for want of appearance of the applicants. Ms Rayment tendered a copy of an email from Ms Emily King, secretary to numerous lawyers in Sparke Helmore Lawyers, to the first applicant, attaching a copy of the Minister’s submissions and notifying the first applicant that the matter was listed for hearing at 2.15 pm on 21 May 2018.
I also note that on 9 April 2018 the National Operations Team of the Federal Court emailed the first applicant (at his email address provided in the application for extension of time) notifying him of today’s hearing.
I am satisfied that the applicants have received notification of today’s hearing.
While it is clearly open to me to dismiss the proceedings pursuant to r 35.33 (1)(a)(i) I am satisfied that I am in a position to consider the matter on its merits.
CONSIDERATION
Delay
It is not in dispute that any notice of appeal from the decision of the primary Judge should have been filed within 21 days of the date of the orders pronounced pursuant to r 36.03(a)(i) of the Rules, that is, by 20 November 2017. The application for extension of time was filed on 1 December 2017, namely 11 days out of time.
In her affidavit Ms Brosnan deposed, in summary:
·Ms Brosnan is a friend of the applicants.
·The second applicant attempted to file a notice of appeal within time but was not permitted to do so because she was a minor.
·The second applicant attempted again to file a notice of appeal within time but there were irregularities in the notice which resulted in the Registry refusing the documentation for filing.
·Ms Brosnan was unable to assist the applicants because of her own serious health issues, and health issues of family members.
·A request under s 424A of the Migration Act 1958 (Cth) (the Migration Act) was made by both applicants of the relevant Department (Department) on 9 January 2017, however the Department did not respond for many months.
The Minister submits that the reason for delay in the filing of the notice of appeal has not been satisfactorily explained by the applicants, and that Ms Brosnan’s evidence is not supported by any independent evidence. Further, the Minister submits that Ms Brosnan is not a lawyer, nor a litigation representative appointed in accordance with r 9.63 of the Rules, and that the first applicant was in Court with an interpreter when the primary Judge’s orders were made such that he was aware of those orders.
The evidence before me of the reasons for delay is, in my view, unsatisfactory, in that there is no explanation of why the first applicant was unable to pursue his appeal rights within time. Such evidence as is before the Court indicates that, for unknown reasons, the minor second applicant was left to attempt to pursue the appeal with the support of Ms Brosnan. There is no evidence before me that the first applicant suffers any incapacity which would have prevented him from filing a notice of appeal in time.
The Minister submits that it is the responsibility of prospective appellants to inform themselves of appeal rights and relevant time limits. I accept this proposition.
I consider that no satisfactory explanation for the delay in filing the notice of appeal has been provided by the applicants.
Merit
More particularly, however, I am satisfied that the sole draft ground of appeal on which the applicants rely lacks merit.
The applicants are citizens of Vietnam who arrived in Australia as unauthorised maritime arrivals in 2012. They claimed protection relating to an incident which took place at the Con Cuong Chapel on 1 July 2012. The first applicant claimed to be a Catholic who worshiped at the chapel, and who acted as a security guard at the request of the local priest on 1 July 2012 when the police and church followers had a violent altercation. The first applicant claimed further that he went into hiding following that incident, and that the police had looked for him. He further claimed to fear harm as a failed asylum seeker and illegal departee whose personal information was released in the Department’s unintentional data breach in 2014.
Although the IAA accepted that the first applicant and his family were Catholics who regularly attended Church, it did not accept the alleged involvement by the applicant in the incident at the Con Cuong Chapel and significant aspects of his evidence. In particular the IAA found that:
·the first applicant appeared to have no familiarity with the appearance of the Con Cuong Chapel, was unable to provide details about it, and seemed to avoid responding to straightforward specific queries;
·the first applicant’s chronology of certain details of the events of the 1 July 2012 were inconsistent with other reliable country information before the IAA, with key details being omitted altogether;
·although it accepted that over time the first applicant’s recollection of events may have shifted, given his claimed involvement as a security guard the IAA did not accept he would be unable to recall key aspects of relevant events;
·the first applicant’s evidence on his targeting for arrest in the aftermath of 1 July 2012 was unconvincing;
·while individual concerns of the IAA may be explained or outweighed by other factors, when considered collectively the IAA concluded that the first applicant’s claimed involvement in the incident at the chapel was not genuine;
·the IAA noted the evidence of the first applicant that he was happy as a Catholic person in Vietnam, and that while he had experienced some discrimination in the past no one had ever hurt him in relation to his faith;
·while there were credible risks to religious and politically activist Catholics in Vietnam, the first applicant had made no other claim to have been otherwise religiously or politically active beyond regular attendance at the church in his home area, and the IAA was satisfied that the applicants could return to their home area and continue to practise their faith in an ordinary manner;
·the Catholic faith continued to grow in Vietnam and there was recent evidence that Vietnamese civil society was becoming more open in terms of religious expression and increasingly active in denouncing attacks on religious freedom;
·while there may be low levels of discrimination faced by ordinary Catholics in Vietnam the IAA was not satisfied that that discrimination would amount to serious harm or that there was a real chance of serious harm occurring.
Further, the IAA observed:
40.The applicants claim to fear harm on the basis that they are failed asylum seekers and because they departed the country illegally. Applicant 1 also stated at the interview that because the Australian government leaked his file information in 2014, he will be seen as a person against the authorities or someone who has betrayed the government.
In relation to the illegal departure of the applicants from Vietnam, the IAA was satisfied that they had left Vietnam in breach of Vietnamese law but was not satisfied that any fines they received as a result of this would constitute “serious harm”.
The IAA also accepted that the first applicant’s details were released as part of a privacy breach of Departmental systems in 2014. The IAA observed:
45.… While I find it remote, I am prepared to accept a possibility that the applicants’ details were obtained by the Vietnamese security authorities and that this may indicate he and his daughter applied for protection in Australia and that they were in immigration detention. However, even if the government was aware of this, the country information before me does not indicate that any additional profile or political opinion would be imputed to them as a result of them seeking asylum in Australia or for being in immigration detention. Previous advice from DFAT is that the Vietnamese Government considers that Vietnamese nationals that have sought asylum outside of the country are generally doing so to achieve residence in countries such as Australia for economic reasons.
46.While the country information indicates some returnees may be briefly detained and interviewed, DFAT assesses that long-term detention, investigation and arrest is conducted only in relation to those suspected of involvement in organising people smuggling operations, and reporting and monitoring is confined to returned political activists, and not those that have sought asylum in another country. I also note DFAT advice that there is no differential treatment being applied by the Vietnamese authorities to returning failed asylum seekers that are known to be Catholics.
47.There is no suggestion the applicant or his daughter were involved in people smuggling. I have found that they are ordinary low profile Catholics. I have rejected Applicant 1’s claim to have been involved in the incident at Con Cuong Chapel. I accept the country information that low profile Catholics are not treated differently on return to Vietnam. I have found that they are not political or religious activists and would not have any actual or imputed political opinion or profile on return. In view of everything before me, I find that there is no real chance or real risk of the applicants being harmed on return to Vietnam on the basis that they left the country illegally, as returnees or failed asylum seekers.
48.I have accepted that the applicants may be briefly detained and fined on return and found that these penalties would not constitute serious harm. On a separate basis, having regard to the information before me, I am also satisfied that the provisions and penalties under Vietnamese law are laws of general application that apply to all Vietnamese equally. The information before me does not indicate the law is discriminatory on its terms, nor is there any country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced.
49.In view of all the circumstances, I am satisfied that any process or penalty the applicants may face on return to Vietnam because of their illegal departure, return or as failed asylum seekers would not amount to persecution for the purposes of s.5J(1) and (4) of the Act.
The IAA concluded that, after considering all the evidence and information before it, it was satisfied that the applicants would not face a real chance of serious harm on return to Vietnam on the basis of their religion, any actual or imputed political opinion or profile, as persons who departed Vietnam illegally or on the basis they sought asylum in Australia.
Finally the IAA considered the complementary protection offered by s 36 of the Migration Act and whether there was a likelihood that the applicants would suffer significant harm if they were removed from Australia to a receiving country. The IAA concluded that while the applicants could face a degree of low level discrimination on their return, it was not satisfied that any discrimination would amount to serious harm, or significant harm. Accordingly the applicants did not meet s 36(2)(aa) of the Migration Act.
In the primary decision his Honour examined the IAA decision, and noted that before the Federal Circuit Court submissions were made on the applicants’ behalf by Ms Brosnan. In particular, his Honour noted that a key submission on the part of the applicants concerned the alleged mistranslation of the interview that the first applicant had given to the delegate of the Minister, and also some form of mistranslation in regard to a statement that the first applicant had made. His Honour examined this and other criticisms of the IAA process referable to country information, and continued:
30.But, as I explained, this is not a Court that can look at those sorts of matters on the merits. I can only look at what was the evidence that was before the IAA and determine whether they have discharged their statutory responsibilities.
31.In the end, the IAA looked at the country information which was to this effect; that persons who were returned to Vietnam because of being failed asylum seekers, were certainly dealt with, but not in such a way that would amount to serious harm as that term is known under the Act. The fact that those persons may have been Catholics did not mean that they were especially singled out for any worse treatment.
32.There was no other country information that would, in any way, have put any doubt on that DFAT report. The IAA also looked at country information that concluded there really are no ongoing hostilities between the Catholic population and the authorities over what happened at Con Cuong. The information was that persons who were involved in that very unsavoury and unfortunate incident have not been the subject of ongoing persecution, discrimination and arbitrary harm or imprisonment.
33.That being said, the IAA, acting upon the evidence that it had, came to the conclusion that it did. There has been nothing in any of the material given to me that would, in any way, cast any doubt that the IAA had acted in accordance with the legislation.
34.Whilst there can be criticisms of the fact that the IAA did come to certain conclusions, that really is not to the point. Neither is it to the point to say that other material could be sought or could be put to the IAA, if the Applicant could be given “another turn” at trying to convince the IAA of the particular arguments of the Applicant. The real point is that there is no jurisdictional error.
Consideration of the decisions of both the IAA and the primary Judge does not reveal any basis on which the IAA could have made a jurisdictional error, or error on the part of the primary Judge in failing to detect such jurisdictional error. In the circumstances the basis on which the applicants would seek to challenge the decision of the primary Judge has no merit.
The appropriate order is to dismiss the application for extension of time. The Minister has sought costs against the first applicant, and it is appropriate that an order to that effect be made.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 21 May 2018
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