Amn16 v Minister for Immigration
[2017] FCCA 2531
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMN16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2531 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – applications for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant Protection visas to the Applicants – Applicants need an extension of time of 329 days under s.477(2) of the Migration Act 1958 (Cth) – Applicants declined to appear at an interview with the Delegate of the Minister for Immigration and Border Protection and declined to attend a hearing before the Administrative Appeals Tribunal and invited both Delegate of the Minister for Immigration and Border Protection and Administrative Appeals Tribunal to refuse their Protection visa applications with a view to applying for Ministerial intervention under s.417 of the Migration Act 1958 (Cth) – subsequent to decision of the decision of the Administrative Appeals Tribunal Applicants make three failed attempts for Ministerial intervention – Applicants ought to be bound by their deliberate plan and strategy – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 425, 476, 477 |
| Cases cited: Minister for Immigration v SZLIX (2008) 245 ALR 501 |
| First Applicant: | AMN16 |
| Second Applicant: | AMO16 |
| Third Applicant: | AMP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 505 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| The First and Second Applicants appeared in person and the Third Applicant appeared through her Litigation Guardian, the First Applicant. |
| Counsel for the Respondents: | Ms S Sangha |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS
The Application filed in this Court on 7 March 2016 for an extension of time order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 505 of 2016
| AMN16 |
First Applicant
| AMO16 |
Second Applicant
| AMP16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant in this proceeding is a male citizen of Tonga aged 32 years, having been born on 8 December 1984, and by order 1 of my orders of 1 April 2016 is the Litigation Guardian of the Third Applicant for the purposes of this proceeding pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth).
The Second Applicant is a female citizen of Tonga, the wife of the First Applicant, and is aged 40 years, having been born on 2 July 1977.
The Third Applicant is a female citizen of Tonga, the daughter of the First and Second Applicants, and is aged 9 years, having been born on 6 November 2007.
By Application filed in this Court on 7 March 2016 they (collectively the Applicants) seek:
a)an extension of time of 329 days under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) for them to make their substantive applications to this Court under s.476(1); and
b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) dated 9 March 2015 (Tribunal) which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 23 January 2015 refusing to grant to them Protection (Class XA) visas (Protection visas).
Background
The First Applicant has travelled to Australia on three occasions as follows:
a)July 2003 on a Business (Short Stay) (Subclass 456) visa;
b)August 2010 on a visitor Tourist (TR-676) visa (Tourist visa); and
c)8 February 2012 on a Tourist visa and he has remained in Australia ever since.
The Second and Third Applicants both arrived in Australia on 23 February 2012 on Tourist visas.
The Protection visa application lodged on 20 August 2014 was sent to the Department of the Minister under cover of a letter dated 19 August 2014 from the Applicants’ registered migration agent, which letter acknowledged that that it must be refused. The letter stated as follows:
As your records show, AMN16 and family originally arrived in Australia on 8 February 2012 and 23 February 2012 respectively on a one month subclass 676 tourist visas. The family has been unlawful to the present.
However, in the past few years there has been the manifestation of compelling and compassionate factors that has impacted upon the family unit. Given this situation, it requires the access to the Minister for Immigration and Border Protection to apply and use his Ministerial Discretionary powers under s417 of the Migration Act 1958.
AMN16 and family is applying for the grant of an onshore Protection Visa subclass 866, even though the members of the family are citizens of Tonga.
It is acknowledged that AMZ16 and family fails to satisfy the ‘Criteria to be satisfied at the time of application’ for the Onshore Protection Visa. It is acknowledged that this application will and must be refused. The intention of AMN16 and family in making this application is to obtain a decision from the Department of Immigration and Border Protection refusing the application.
Following the refusal of the application, AMN16 and family intends to apply to the Refugee Review Tribunal for the review of the decision. It is acknowledged that the Refugee Review Tribunal will affirm the original decision by the Delegate to the Minister to refuse to grant the Onshore Protection subclass 866 visa to AMN16 and family.
Upon receiving a decision of the Refugee Review Tribunal, AMN16 and family intends to make a request to the Minister for Immigration and Border Protection for exercise of the power of the Minister under s417 of the Migration Act 1958.
……………………………………………………………………………
To access the discretionary power of the Minister, it is necessary that AMN16 and family go through this process. It is humbly requested that a decision be made as soon as possible to refuse this application.
(emphasis added)
I note that only the First Applicant made specific claims for protection, with the Second and Third Applicants applying as family members dependent upon the claims of the First Applicant.
Claims for Protection
In the Statutory Declaration of 15 August 2014 which formed part of his Protection visa application the First Applicant made the following factual claims:
a)during the changeover from Tonga being under the rule of King Tupu the Fifth in November 2011 to democratic rule there were ongoing riots between the local indigenous population and foreign owned companies. The local police brutalised many of the local people and the First Applicant and his wife lost their employment with a New Zealand based company;
b)due to the situation, riots and uncertain environment, the First Applicant and his family decided to escape for their safety and life and this led them to come to Australia in early 2012;
c)they remain concerned for their safety given the uncertain state of affairs within Tonga and the more so because the power of the Tongan Police remains very strong and they attack numerous local persons who have been overseas or have other foreign residential rights; and
d)given the situation in Tonga the family remain very concerned for their safety and therefore seek asylum in Australia.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
By letter of 13 January 2015 the Delegate invited the First Applicant to attend an interview to discuss the Protection visa application on 5 February 2015. However, by letter of 14 January 2015 the Applicants’ registered migration agent responded to the interview invitation by stating as follows:
We seek to remind you that our initial submission dated 18 August 2014 highlighted the fact that AMN16 and family requires to seek Ministerial consideration under s417 of the Act and intervention due to the manifestation of compelling and compassionate factors.
We re-iterate that AMN16 and family fails to satisfy the Criteria to be satisfied at the time of application for the Onshore protection Visa. It is acknowledged that this application will and must be refused. The intention of AMN16 and family in making this application is to obtain a decision from the Department of Immigration and Border protection refusing the application.
Upon receiving this decision, it will be ledged at the Refugee Review Tribunal. Similarly the RRT will affirm the primary Departmental decision, whereupon it will enable the family to access the Minister under s417 of the Act.
……………………………………………………………………………
It is therefore humbly requested that a decision be made as soon as possible to refuse the application without an interview.
(emphasis added)
In her Decision Record the Delegate recorded that the First Applicant had declined an invitation to attend an interview with her to discuss his claims. The Delegate then stated that whilst the First Applicant’s claims must still be investigated, because he had declined to attend an interview the veracity of his claims could not be tested or fully ascertained. As the credibility of the claims remained untested the Delegate considered that she was unable to afford the First Applicant the benefit of the doubt and could not be satisfied as to the credibility of the claims that had been made and she was not satisfied that Australia had protection obligations to the First Applicant under either the Refugees Convention criterion or the complementary protection criterion and she refused to grant Protection visas to him and the Second and Third Applicants as members of his family unit.
Decision of Tribunal
The Applicants applied to the Tribunal for merits review of the decision of the Delegate on 30 January 2015. The application was forwarded to the Tribunal under cover of a letter from the Applicants’ registered migration agent dated 30 January 2015 which stated as follows:
We act and write on behalf of AMN16 and family who were seen again this morning at our office concerning the aforementioned case.
We have been engaged to assist in this matter.
As instructed by AMN16 we have duly assisted in completing the RRT form R1 and he and his wife have signed it accordingly.
It is acknowledged that AMN16 and family fail to satisfy the “Criteria to be satisfied at the time of the application for the ‘Onshore Protection Visa’”. It is acknowledged that this application for review will and must be refused. This is the case, at the present time.
(emphasis added)
The intention of AMN16 and family, given the current situation is to proceed to apply to the Refugee Review Tribunal for the review of this primary decision. It is acknowledged that your office the Refugee Review Tribunal will affirm the primary decision by the Delegate to the Minister to refuse the grant of the Onshore Protection 866 visa to AMN16 and family.
Upon receiving a decision of the Refugee Review Tribunal AMN16 and family intend to make a request to the Minister for Immigration and Border Protection under s417 of the Migration Act 1958.
There exists and (sic) manifested strong compelling and compassionate reasons and factors and seeks to access Ministerial Discretion under s417 of the Act.
We humbly seek on behalf of AMN16 and family an expeditious decision without the necessity of a formal hearing to enable this to occur and proceed without undue hindrance.
To access the discretionary power to the Minister, it is necessary that AMN16 and his family go through this process.
A Hearing will not be necessary.
We look forward to your understanding and earliest advice accordingly in this matter.
If you have any questions please contact the undersigned.
As the Applicants had consented to the Tribunal conducting the merits review without any of them appearing before it the Tribunal was absolved by s.425(2)(b) of the Act from inviting the Applicants to appear before it to give evidence and present arguments and by force of s.425(3) none of the Applicants were entitled to appear before the Tribunal. As Rares J said in SZIMG v Minister for Immigration (2008) 167 FCR 362 at 369 [21]:
[21]Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant's favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at 587 [64]…………………...
The Tribunal in its Decision Record noted that it had been advised in writing that the Applicants did not wish to give oral evidence and had consented to the Tribunal proceeding to make a decision on the review without taking any action to allow or enable them to appear before it. The Tribunal then recorded that because it was denied the opportunity to discuss their claims with the Applicants, it was unable to establish from the evidence whether the Applicants have themselves ever been threatened or harmed in Tonga and whether any particular event motivated them to leave Tonga. In summary, the Tribunal felt unable to establish the relevant facts in the matter and accordingly it was not satisfied that any of the Applicants were owed protection obligations by Australia under s.36 of the Act and it affirmed the Delegate’s decision not to grant Protection visas to the Applicants.
Consistent with the approach manifested in the letters from the registered migration agent to the Delegate and then to the Tribunal and referred to in [7], [11] and [13] above the Applicants, subsequent to the Tribunal’s decision of 9 March 2015, made three separate applications for Ministerial intervention under s.417 of the Act and all were refused, with the last refusal being dated 24 February 2016.
Grounds of Extension of Time Application
As earlier recorded at [4(a)] above, the Applicants need an extension of time under s.477(2) of the Act of 329 days. The Minister opposes the application for an extension of time on the basis that the substantive Application is without merit and the extent of the delay is significant.
The Grounds for the extension relied upon in their Application of 7 March 2016 are as follows:
1. I was not aware that there was a time period to file in the Federal Circuit Court as I was guided by my migration agent and did what he told me to do. I do not have extensive knowledge of the Australian legal system.
2. I have made three separate applications for Ministerial Intervention under s.417 of the Migration Act. The latest decision made on behalf of the Minister was made on 24 February 2016. It is after this point that we were advised we can apply to the Federal Circuit Court for judicial review.
Grounds of Attack on Tribunal Decision in this Court
The Ground relied upon by the Applicants in their Application of 7 March 2016 is as follows:
The second respondent failed to consider the written material provided by our migration agent at the time of the decision.
Consideration of Extension Application
In considering whether 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 into account. Those factors include:
a)Whether there has been a reasonable and adequate explanation for the Applicants’ delay and the extent of the delay;
b)Whether there is any prejudice to the Minister;
c)Whether the Applicants’ substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]).
In relation to the assessment of whether or not the Applicants’ substantive case is reasonably arguable or has reasonable prospects of success I ought not to travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 [62] per Mortimer J.
In his affidavit of 7 March 2016 the First Applicant explained the reasons for the delay in approaching this Court as follows:
Reasons for delay
2.Three separate Ministerial Intervention applications have been made on my behalf since the original decision was made by the tribunal on 9 March 2015, with the most recent decision being made on 24 February 2016.
3. I was only recently made aware that I could file an application for review in the Federal Circuit Court.
At the hearing in this Court, the First Applicant seemed to assert from the Bar Table that he and his family received wrong advice from their migration agent and that the migration agent had not discussed with him or his wife the contents of the letters from the migration agent dated 19 August 2014 to the Department (see [7] above) and 14 January 2015 to the Tribunal (see [11] above) and 30 January 2015 to the Tribunal (see [13] above).
In the result I gave the First and Second Applicants leave to give oral evidence in chief, which they did, and they were then cross-examined by Ms Sangha who appeared for the Minister.
The effect of the evidence of the First Applicant was as follows:
a)His migration agent should have advised that he and his family apply for a different form of visa and not a Protection visa;
b)He was personally aware that he was in fact applying for a Protection visa; and
c)He was personally aware that his migration agent was making an application for review to the Tribunal.
The effect of the evidence of the Second Applicant was as follows:
a)The migration agent advised that the family could not get a refugee visa on the basis of being returned to Tonga;
b)The migration agent should never have advised that an application be made for a Protection visa because Tonga is not, on the face of it, somewhere like Syria;
c)The migration agent advised that the family would have to apply to the Minister for intervention after the Tribunal had refused the refugee visa applications;
d)The migration agent advised that it was necessary for the Tribunal to refuse the refugee visa applications so that applications for intervention could then be made to the Minister;
e)She accepted the advice of the migration agent that the application for a refugee visa would not succeed;
f)After the decision of the Tribunal the family had made three applications for intervention to the Minister which had been refused;
g)There was nothing untrue in the migration agent’s letter dated 30 January 2015 (reproduced at [13] above); and
h)The migration agent should have suggested that she or her husband apply for a different form of visa, for example a skilled visa or a rural visa.
In my view the Applicants have not given a reasonable and adequate explanation for their delay in filing their Application in this Court.
I find that based on their migration agent’s advice, which the Applicants did not claim to be fraudulent, the Applicants made a conscious decision not to attend an interview before the Delegate, not to attend a hearing before the Tribunal and to ask both the Delegate and the Tribunal to make adverse decisions so that they would thereby be enabled to apply for Ministerial intervention under s.417 of the Act, whereby the Minister could substitute a more favourable decision than the adverse decision of the Tribunal.
Since the decision of the Tribunal they have made three applications to the Minister for his intervention, which have all failed. The evidence in my view establishes that there was a clear agreement and acceptance between the First and Second Applicants and the migration agent that both the Delegate and the Tribunal should be told that their application for a Protection visa could not succeed, and all of this is made clear by the terms of the letter from the migration agent of 30 January 2015. Further, I reject the evidence of the First Applicant in paragraph 3 of his affidavit of 7 March 2016 to the effect that he was only recently made aware that he could file an application for review of the Tribunal’s decision in this Court. I find that the Application in this Court was filed only and after and as a result of the third application for Ministerial intervention being rejected on 24 February 2016.
The Decision Record of the Tribunal was sent to the migration agent under cover of the Tribunal’s letter of 10 March 2015. I infer and find that the migration agent would have well known that an application for judicial review of the Tribunal’s decision had to be made within 35 days and in any event the migration agent was sent Form R25 with the Decision Record of the Tribunal which made that clear.
There is not any reason to believe that the migration agent would not have informed the Applicants of that time period but in any event their minds were on an entirely different course, namely an application for Ministerial intervention to the Minister. In my view the Applicants ought not now be able to resile from the deliberate course of action they took in not applying to this Court for judicial review but instead making three applications for Ministerial intervention to the Minister. This was the view of Wigney J in a similar context in Tran v Minister for Immigration [2014] FCA 533, where he said at [35]-[36] as follows:
[35]This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17].
[36]Nor does the fact that Mr Tran chose, albeit on advice, to pursue other avenues available to him under the Act provide a satisfactory explanation for the delay: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [29]; Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279; Manna at [16]. Mr Tran made a conscious decision not to pursue a challenge to the Tribunal’s decision, albeit apparently based on advice he received concerning other avenues supposedly open to him. He ought not now be permitted to effectively resile from that decision.
In other words, the Applicants embarked upon a particular plan and strategy, namely to put themselves into a position such that they were entitled to make an application for Ministerial intervention. To that end they, in effect, invited the Delegate and the Tribunal to determine their Protection visa application adversely as a formality and on the papers. That deliberate plan and strategy having failed, they should not now in my view be at liberty to resort to a belated application for judicial review in this Court as a Plan B.
Nevertheless, I now turn to the most important factor in considering whether or not to extend time, this being whether or not the Applicants have reasonable prospects of success for their substantive Ground.
Consideration of Substantive Ground of Attack on Tribunal Decision in This Court
In my view the Applicants have no reasonable prospects of success for the Ground they rely upon.
The Ground is unparticularized and does not identify the “written material provided by” their migration agent, which it is alleged the Tribunal failed to consider.
In fact, no written material was provided by the migration agent at the time he forwarded the application for merits review to the Tribunal. The only documentation asserting or supporting the claims for protection was the Statutory Declaration of 15 August 2014 of the First Applicant (see [9] above) which had been lodged with the Protection visa application.
The substance of this Statutory Declaration was summarized at [9]-[11] of the Decision Record of the Tribunal.
At [12] the Tribunal recorded that its review had been determined by the evidence available to the Tribunal and at [16] the Tribunal said:
[12]The applicants declined to attend an interview with the Delegate, and as noted above do not wish to give oral evidence to this Tribunal. Therefore the only evidence about their claims is that which they have made in writing.
In my view this Ground is not reasonably arguable and does not have reasonable prospects of success because the Applicants have failed to establish that the Tribunal did not give real and genuine consideration to the Applicants’ claims. The Tribunal was not bound to accept the claims for protection at face value. However, by not attending the Tribunal hearing a rejection of the application for review was likely “the inevitable consequence”: see NAVX v Minister for Immigration [2004] FCAFC 287 at [5].
I finally note for completeness that the Applicants did not suggest that their migration agent was fraudulent in his dealings with them, let alone in such a manner as resulted directly in a fraud on the Tribunal: Minister for Immigration v SZLIX (2008) 245 ALR 501 at 509-510 [33]. In my view the Applicants have not even established that their migration agent was negligent or incompetent.
Conclusion
I do not consider that the substantive Ground relied upon by the Applicants is reasonably arguable or has reasonable prospects of success. It would fail to establish that the decision of the Tribunal was affected by jurisdictional error or procedural unfairness. I consider in all the circumstances that it is not in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time made by the Applicants pursuant to s.477(2) is refused.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 20 October 2017
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