AJQ15 v Minister for Immigration and Border Protection
[2017] FCA 1640
•14 November 2017
FEDERAL COURT OF AUSTRALIA
AJQ15 v Minister for Immigration and Border Protection
[2017] FCA 1640
Appeal from: Application for an extension of time: AJQ15 v Minister for Immigration [2017] FCCA 2026 File number: WAD 395 of 2017 Judge: RARES J Date of judgment: 14 November 2017 Legislation: Migration Act 1958 (Cth) ss 36, 426
Migration Regulations 1994 (Cth) Sch 2, cl 866.411
Cases cited: AJQ15 v Minister for Immigration [2017] FCCA 2026
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Date of hearing: 14 November 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr PJ Corbould Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
WAD 395 of 2017 BETWEEN: AJQ15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
14 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time dated 4 August 2017 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time made on 4 August 2017 in respect of a decision of the Federal Circuit Court given on 22 February 2017, refusing the applicant’s application for Constitutional writ relief in respect of a decision of the Administrative Appeals Tribunal given on 10 June 2016 to affirm the Minister’s delegate’s decision not to grant the applicant a protection visa: AJQ15 v Minister for Immigration [2017] FCCA 2026.
The applicant does not appear
On 10 August 2017, the applicant departed Australia for Lebanon, the country of which the Tribunal found he was a national. The circumstances of his departure are explained in the affidavit of Arran Gerrard, affirmed on 26 October 2017. He said that the applicant was removed involuntarily. A search of the Department’s litigation information system on 7 August 2017 reported that there was no active litigation by the applicant, albeit that he had filed the application for an extension of time on 4 August 2017. The Department received copies of the application for an extension of time and affidavit at 12.46pm on 10 August 2017, which was about one hour after the applicant’s flight left Australia.
Subsequently, the applicant has engaged in email exchanges with the Court and the Department. On 8 November 2017, in response to the Minister’s notification to him that confirmed the hearing today, the applicant said that he did want to attend the hearing today but made no request for telephone or other facilities to arrange such an attendance. On 13 November 2017, the applicant emailed the solicitor for the Minister, saying in response an email by counsel for the Minister to my associate inquiring whether or not I would robe for the hearing today:
I confirm it is not required. Ty.
It is not clear exactly what the applicant intended to convey in that response.
I am satisfied that the applicant is aware of today’s hearing. He has not appeared. His explanation for the extension of time that he seeks, so far as it is discernible, is in his affidavit filed on 4 August 2017. He asserted that he had no legal representation or anyone else to assist him, and had been in detention for five months after the decision of the trial judge which had refused his application. He said that a justice of the peace only attended the Christmas Island Detention Centre on Thursdays, and he was awaiting a response as to whether he would be granted legal aid assistance. He then made generalised submissions complaining about the fact that he was one of the over 9,000 persons who were the subject of what is known as the “data breach” when the Department published on its website, in February 2014, some personal details of some asylum seekers.
The Tribunal’s decision
The Tribunal dealt with the allegations the applicant had made in relation to the data breach. It noted that none of the IP addresses that had accessed the Department’s website to view information disclosed by the data breach had included Lebanon.
It found that the claim that, in some way, the Lebanese authorities or anyone else in Lebanon, including the applicant’s uncle, whom he claimed may wish to harm him, would discover the material in the data breach, to be “far-fetched and mere speculation”. It found that, in any event, his uncle would have been aware that he was in immigration detention, having been refused a visa. The Tribunal also found that the appellant’s claims to have been a homosexual and at risk because he was a Sunni Muslim by reason of which he claimed to fear harm were he returned to Lebanon, were untruthful and that he had been able to tailor his response to the Tribunal and the Minister’s delegate to suit the particular circumstances at the time. It concluded that, after considering all of his evidence, individually and cumulatively, and in its entirety, the applicant was not credible or a witness of truth. The Tribunal gave detailed reasons for doing so, which were open to it and appear to be rational and, indeed, compelling, to the extent that the Court can form such views, having regard to this being an application for judicial review in which the Court is not concerned with the merits of the decision but only the legality of the steps by which it was reached.
The proceeding before the trial judge
The trial judge considered all of the applicant’s claims in detail, which were then based solely on a claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth), he having previously been refused a protection visa. His Honour found, correctly, that the Tribunal was not required to consider the claim to protection in respect of s 36(2)(a) by reason of Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366. His Honour dealt with the two grounds of review that the applicant raised before him, namely, that the Tribunal, first, had erred by failing to take evidence from the applicant’s proposed witness and, secondly, had made a jurisdictional error.
His Honour found that the Tribunal had acceded to a request made after the seven days prescribed in s 426(2) of the Act for the applicant to call a witness, but that when the witness attended at the hearing it appeared for the first time that the witness needed a Persian interpreter. The applicant claimed that he relied on the witness to establish that they had been involved in a homosexual relationship together. The Tribunal adjourned the hearing, after having heard all of the other evidence and submissions that the applicant and his migration agent wished to make, and invited the applicant to submit a statement of the proposed evidence of that witness.
The Tribunal received the statement and considered it in its reasons. It noted that the witness spoke Persian and neither Arabic nor English. It found the applicant did not speak Persian, but only Arabic and English. The Tribunal concluded that the applicant’s claims, individually and cumulatively, were not plausible, because he was not a credible witness and was not a homosexual or bisexual.
His Honour found that the Tribunal had not erred in either of the respects on which the applicant relied and dismissed his application with costs.
Consideration
In my opinion, the applicant has not explained his delay and his case is hopeless. The applicant has not provided a draft notice of appeal, although I infer his substantive complaint now is that the Tribunal should have granted a protection visa by reason of the data breach. There is no basis for considering that an appeal would have any prospect of success or that any substantial injustice would result from the refusal of leave.
I note also that the Minister submitted that the applicant can only be granted a protection visa if he were in Australia (which he is not) by force of cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth).
Conclusion
In all of the circumstances, I am of opinion that the application for an extension must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 15 February 2018
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