Ani18 v Minister for Home Affairs

[2018] FCCA 3509

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANI18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3509

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – refusal of an extension of time for show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 48A, 417, 438, 477

Cases cited:

SZGIZ v Minister for Immigration (2013) 212 FCR 235
WZAWB v Minister for Immigration & Anor [2016] FCCA 1345

First Applicant: ANI18

Second Applicant: ANJ18

Third Applicant: ANK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 282 of 2018

Judgment of: Judge Driver

Hearing date: 29 November 2018

Delivered at: Sydney

Delivered on: 29 November 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: ABU Legal

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 282 of 2018

ANI18

First Applicant

ANJ18

Second Applicant

ANK18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application seeking an extension of time for a judicial review application in relation to a decision of the former Refugee Review Tribunal (Tribunal) made on 5 June 2015. The judicial review application was filed 941 days outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicants seek an extension of time pursuant to s.477(2). There are three applicants, who are the mother (first applicant) and father (second applicant) of the third applicant, who is a female child.

2. The background to this matter is recited in the Minister’s outline of submissions filed on 22 November 2018. 

3. The first and second applicants arrived in Australia in 2005.[1]  In 2009, they made separate protection visa applications, the first applicant claiming to fear harm due to her involvement in the LTTE.[2]  The applications were refused by a delegate of the Minister[3] and that delegate’s decisions were affirmed by the Tribunal.[4]  Subsequent applications for Ministerial intervention were also unsuccessful.[5]

   [1] CB 67, 99

   [2] Liberation Tigers of Tamil Eelam; CB 1, 28

   [3] CB 57, 99

   [4] CB 107, 120

   [5] CB 154-157

4. On 18 December 2013, following the birth of the third applicant, as well as the decision of SZGIZ v Minister for Immigration,[6] the applicants applied for the protection visas the subject of the present proceeding.[7]

   [6] (2013) 212 FCR 235. The relevant effect of SZGIZ was that s.48A of the Migration Act did not prevent an applicant making a further protection visa application for assessment under the criterion in s.36(2)(aa)

   [7] CB 159

5. The applicants initially claimed (in the application form and via their representative) to fear harm from Malaysian authorities and Muslim fanatics, due to their Catholic beliefs, Indian ethnicity, membership of a particular social group (perceived wealthy Malaysians), and failed asylum seeker status.[8]

   [8] CB 185-188, 256

6. In statutory declarations submitted to the Tribunal, the first applicant conceded that the claims about her LTTE involvement in her first protection visa application were false, but stated that they were advanced without her knowledge by her migration agent.[9]  She claimed to face sexual harassment due to her ethnicity and Christian beliefs.[10]  The second applicant claimed to fear harm due to his political activities and being perceived as a traitor upon return after spending eight years in Australia.[11]  It was further claimed that the third applicant faced a risk of abduction.[12]  The explanation for the delay in claiming protection was that the applicants believed there would be political change in Malaysia.[13]

   [9] CB 346

   [10] CB 346-348

   [11] CB 343-345

   [12] CB 399

   [13] CB 345, 347

7. On 12 June 2014, the Minister’s delegate (delegate) refused to grant the visas.[14]  On 5 June 2015, the Tribunal affirmed the delegate’s decision.[15]

   [14] CB 292

   [15] CB 373

Tribunal decision

1. The Tribunal made comprehensive adverse credibility findings against the first and second applicants.[16]

   [16] CB 375 at [11]; CB 386-387 at [69] and [78]

2. In relation to the first applicant, the Tribunal was not satisfied that she was credible in light of the inconsistent evidence regarding her political activity, the false claim made about her LTTE involvement, the false evidence given to the delegate that she had been tortured, raped, threatened and kidnapped, and the delay in applying for protection.[17] The Tribunal accepted that she was a Catholic and of Indian ethnicity. However, it was not satisfied that she had proselytised, that she was the subject of attacks and threats, or that she would face any harm as a Christian (in light of country information indicating Malaysian Christians were able to practise their religion without interference).  Nor was it satisfied that she would suffer harm on the basis of political activity should she return.[18]  As such, the Tribunal was not satisfied that she had suffered harm in the past for any reason or that she would on return.[19]  Having regard to country information, it was also not satisfied the first applicant would suffer harm for being absent, a failed asylum seeker, or from having lived in a Western country.[20]

   [17] CB 386 at [68]-[72]

   [18] CB 387 at [74]-[83]

   [19] CB 387 at [79]-[83]

   [20] CB 388 at [85]-[86]

3. The Tribunal was not satisfied that the second applicant was credible, having regard to the inconsistencies between his protection visa applications, his previously scant knowledge of the Christian faith, his delay in applying for protection, and his untruthfulness.[21]  Accordingly, it was not satisfied that he was heavily engaged in church activities, or suffered attacks as a result of his faith. Nor was it satisfied that he had ever faced harm from the authorities on the basis of his political involvement.[22]  In light of the fact that country information did not support the claims of the systemic mistreatment of Christians, opposition political parties or Indian Malaysians, the Tribunal did not accept that the second applicant would face significant harm on any basis.[23]

   [21] CB 396 at [125]-[133]

   [22] CB 398 at [134]-[135]

   [23] CB 398 at [136]-[140]

4. Overall, the Tribunal was ultimately not satisfied that the first and second applicants met the complementary protection criterion.[24]

   [24] CB 389 at [87]-[88]; CB 399 at [141]-[142]

5. Given the Tribunal’s findings of fact in relation to the first and second applicants, it found that the third applicant did not satisfy s.36(2)(aa) on any basis. Noting there was no independent evidence to substantiate her claim that she faced abduction, the Tribunal was not satisfied that the third applicant met s.36(2)(a) for any reason.[25]

   [25] CB 399 at [144]-[147]

The present proceedings

1. These proceedings began with a show cause application filed on 5 February 2018. An affidavit filed with it simply identified the applicants and attached the decision of the Tribunal. For present purposes, the applicants rely on a proposed amended application filed on 28 November 2018. That raises one ground of review in substitution for the grounds advanced in the earlier application. The current ground proposed is an asserted breach of s.438 of the Migration Act and a denial of procedural fairness.

2. I have before me as evidence the court book filed on 9 April 2018 and the affidavit of Madeline Victoria Butler made on 22 November 2018. There is a confidential exhibit to that affidavit which contains two purported s.438 certificates and the documents purportedly covered by those certificates.

3. I was invited by counsel for the applicants to adjourn today’s hearing on the extension of time in order to await the outcome of current proceedings in the High Court on the question of jurisdictional error in relation to s.438 certificates. I declined that application on the basis that the length of the delay in this case and the inadequate nature of the explanation of the delay would itself justify a refusal of an extension of time, and, in any event, to the extent that resort to the merits of the proposed application is required, that can be done on the basis of current judicial authority.

4. The delay of 941 days is extraordinary.  I am told that the applicants have been living in the community since the decision of the Tribunal.  It appears that for a time after that decision, they were living unlawfully but, on being detected and apparently instituting the present proceeding, they were each granted a bridging visa.  I cannot recall encountering a delay in instituting proceedings of this length.  The only explanation for that delay is what is contained in the original application under the heading “Grounds for an Extension of Time”.  Three matters are raised, the first two of which relate to grounds of review which have since been abandoned.  The third ground is an assertion of significant mental health issues suffered by the first applicant, but that is not supported by any evidence. 

5. Counsel for the applicants drew my attention to the fact that the third applicant is a child, which warrants the matter being given special attention.  While I accept that is a factor, it does not overcome my concerns about the length of the delay and the lack of an adequate explanation for the delay.  As was stated by this Court in WZAWB v Minister for Immigration & Anor,[26] inordinate delay, which in WZAWB was a shorter period of 687 days, is sufficient to support a dismissal of the extension of time application, particularly when not adequately explained.  Based on that alone, I would refuse the extension of time.

   [26] [2016] FCCA 1345 at [193]

6. I have, nevertheless, taken into account the asserted merits of the proposed amended application in order to determine whether there is something sufficiently significant in that to overcome the inordinate delay and the lack of an adequate explanation.  There is no doubt that the two purported certificates in this matter are invalid.  They are based only on the fact that the documents in issue are internal working documents or relating to business affairs, which could not support a claim of public interest immunity in a judicial proceeding.

7. The documents purportedly covered by the certificate are documents relating to two requests to the Minister under s.417 of the Migration Act. Those requests apparently were made following the first decision of the Tribunal against the applicants in 2010 under the Refugees Criterion, and before the second Tribunal decision currently in issue under the complementary protection criterion.

8. It is possibly arguable that documents relating to a request for ministerial intervention preceding a Tribunal review might have some impact on the review. It is probably equally arguable that the Tribunal has no reason to have regard to documents relating to ministerial intervention when it is reviewing a decision of a delegate. The process before the Minister under s.417 is quite different from the process before the Tribunal.

9. The decision of the Tribunal is entirely silent on the question of the certificates and the documents purportedly covered by them. That may be because the Tribunal considered it inappropriate or unnecessary to mention them. It may be because the Tribunal was ignorant of them. The reasons for that silence and the impact, if any, on the Tribunal’s review are matters for speculation. In these circumstances, I am not persuaded that there is sufficient merit in the proposed amended application to overcome my grave concerns concerning the length of the delay and the lack of an adequate explanation. Bearing these things in mind, I will order that the application for an extension of time under s.477(2) be refused.

10. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 December 2018