AOQ17 v Minister for Immigration
[2017] FCCA 2818
•9 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOQ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2818 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal not to grant protection visa – application for an extension of time refused. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 |
| Applicant: | AOQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 414 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 414 of 2017
| AOQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) in which to bring an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 23 September 2016. The Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.
An extension of time is necessary because under s.477(1) of the Act an application to this court in relation to such a migration decision must be made within 35 days of the date of the migration decision. The application was not filed until 13 February 2017 and hence is some 108 days out of time.
Under s.477(2) of the Act, the Court has power to extend the 35-day period as it considers appropriate if an application has been made in writing to the Court specifying why the Applicant considers it necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is so necessary. The factors to which the Court might have regard in considering an application for an extension of time are not specified in the legislation or limited, although factors which might ordinarily be taken into account in many cases were outlined by Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 and Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719. These commonly include the extent of the delay in commencing the proceedings and whether there is a reasonable and adequate explanation for the delay; whether there is any prejudice to the Minister; any prejudice to the Applicant; the public interest; and whether the Applicant’s substantive case is sufficiently arguable to justify the extension of time.
In considering whether an applicant’s case is sufficiently or reasonably arguable, it is generally regarded as inappropriate to investigate fully the merits of the substantive case. I have borne in mind the remarks of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (an appeal from which was dismissed in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110) and the remarks of Wigney J in SZTES in relation to the approach to be taken in this context.
The Applicant was given the opportunity today to address his grounds of review, the delay and any other issues that he wished to raise in relation to his application for an extension of time.
The delay in question is a not insignificant delay in the context of a 35-day time limit. While the Applicant did not file any affidavit evidence to explain his delay, in his application he provided what I take to be intended to be an explanation for the delay. He claimed that he had been suffering from financial hardship and could not afford the Court application fee until the day he lodged the application. There is no evidence in support of that claim. There is no evidence as to whether the Applicant ultimately paid the filing fee or obtained a waiver in circumstances where it was open to him to seek an exemption from the fee prescribed by Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth) (see reg.2.06). Nor is there any evidence to demonstrate what steps, if any, the Applicant took at the time of receiving the Tribunal’s decision to ascertain what the relevant filing fee would be or if there was possibility of waiver.
He also claimed in his application that he could not afford “the professional people or lawyer fee” to complete his application and that he borrowed the money. He has provided no evidence as to any attempts to obtain a lawyer or legal assistance. In his application the Applicant also referred to the request for Ministerial intervention and claimed he had “just got” the refusal outcome from the Minister.
In his oral submissions, the Applicant provided a different explanation for the delay. He told the Court, with the assistance of the interpreter, that his inability to speak or read English was the reason why there was such a delay. The First Respondent conceded that the fact of the Applicant’s lack of ability in English should be accepted for present purposes.
As pointed out by the First Respondent, the absence of professional representation was not ultimately a barrier to the Applicant filing the present application in relation to which he is unrepresented. Nor does it seem to have been an obstacle to him in negotiating the steps of seeking Tribunal review and applying for Ministerial intervention. Moreover these circumstances, including a lack of English language ability and financial hardship, are circumstances which affect many of those who seek review of Tribunal decisions, particularly decisions in relation to protection visa applications. They do not provide a satisfactory explanation for the delay.
Insofar as the Applicant relied on the fact that he applied for Ministerial intervention, there is authority that seeking such intervention is not necessarily a satisfactory explanation for failing to initiate judicial review proceedings and, rather, may be indicative of a conscious choice to challenge an adverse Tribunal decision by alternative means (see, for example, S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283). In Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59, Jessup J, with whom Gyles and Besanko JJ agreed, suggested that seeking Ministerial intervention could be seen to demonstrate that an applicant accepted the legal validity of a Tribunal decision.
While there are circumstances in which an application for Ministerial intervention may form part of an explanation for delay which may be found to be satisfactory (see MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 per Mortimer J at [11] and MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 per Mortimer J at [15]), this is not such a case. The Applicant’s bare assertion that he applied for Ministerial intervention and “just got” the result does not provide a reasonable and adequate explanation for the delay in commencing judicial review proceedings, either considered on its own or in conjunction with all of the other matters he raised in explanation for the delay.
The Applicant’s explanation is not such as to provide a reasonable or satisfactory explanation for the extent of the delay.
Notwithstanding the absence of a reasonable and adequate explanation for delay of over three months in commencing judicial review proceedings, I have considered whether the other factors raised by the Applicant or apparent on the material before the Court support the grant of an extension of time. It was not claimed that there would be any prejudice to the Minister if an extension of time were to be granted. I also bear in mind the care that needs to be taken in relation to an applicant who faces the prospect of return to his home country after he has sought, albeit unsuccessfully, a protection visa. I have taken into account the fact that there is no appeal, as such, from a decision not to grant an extension of time. There is also a public interest in efficient resolution of judicial review proceedings.
It is, however, also relevant to consider the merits of the grounds in the application for review as part of all the circumstances. It is necessary to refer to the factual background to the Applicant’s visa application and the Tribunal decision. The Applicant, a citizen of Malaysia, arrived in Australia in August 2011. In July 2015 he applied for a protection visa. He claimed that unfortunate family circumstances had led him and his brother to borrow money from “a private loan fund called Loan Shark”. He claimed his brother advised him to come to Australia to take a break. He claimed that because he failed to repay the principal and interest on the loan, the loan shark was threatening to kill him when he returned to Malaysia and had been hassling his family members because he was guarantor of the loan. He claimed he had not tried to relocate within Malaysia as the threat did not exist when he was in Malaysia. He also stated in his protection visa application that he had been “paying interest on the loan as scheduled even after [he] left Malaysia”. The Applicant named the person he had been dealing with from Loan Shark who was said to have threatened he would be killed. He asserted that the authorities would not protect him as they were corrupt.
The application was refused by a delegate of the First Respondent and the Applicant sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In its reasons for decision, the Tribunal referred to the Applicant’s claims in support of his protection visa application and to his evidence at the Tribunal hearing. It recorded his claims and evidence about the circumstances in which he came to Australia and about his work in Malaysia.
The Tribunal considered the fact that the Applicant stated that he had come to Australia because he owed money he could not repay and they were going to hurt him. It had regard to the fact that when it put to the Applicant that in his protection visa application statement he had said that he had come to Australia because his brother advised him to take a break, he said it was also to avoid creditors. It also recorded that when asked when he first failed to make a repayment, the Applicant stated it was after he came to Australia. As the Tribunal recorded it put to the Applicant, if he first failed to make a repayment after he came to Australia, then the failure to repay the debt could not be a reason why he came to Australia. He then stated his friend told him he could make money working in Australia.
The Tribunal also put to the Applicant that the working history disclosed in his application (in which he stated that he had worked in a restaurant and as a cook and a chef) was different to his oral evidence that he had worked in vegetable farming and fisheries and did no other work. The Applicant agreed and said that his memory was not good.
The Tribunal also discussed with the Applicant the fact that the student visa for which he had applied would have cost him money and that he had been in Australia for four years before he applied for protection. It recorded that he was unable to explain why he had not applied for a protection visa earlier. The Tribunal also put to him some inconsistencies in his claims about when he made repayments, to which he responded that his memory was poor.
In considering the Applicant’s claims and evidence, the Tribunal summarised the Applicant’s claim that he had borrowed money from a private loan fund to fund his brother’s medical treatment and that because he had failed to repay the principal and interest he and his family were threatened and he would be killed if he returned to Malaysia.
However the Tribunal found that the Applicant had provided inconsistent evidence in relation to why he came to Australia, in particular as to whether this was because he owed people money and could not repay them and they were going to hurt him, or whether it was because his brother advised him to take a break. It considered his explanation that it was also to avoid creditors, but had regard to the fact that the Applicant had also said that he first failed to make a repayment after he came to Australia.
The Tribunal also had regard to the Applicant’s inconsistent evidence about whether he had been making repayments in Australia. It did not accept that he could forget such details, especially as his claim was that he came to Australia to avoid creditors because they would hurt him. It found the changing nature of his evidence in relation to when he first stopped repaying the debt and whether he made repayments in Australia was such that it did not accept that he had been telling the truth about his alleged debt.
The Tribunal found (as it detailed) that the Applicant’s written and oral evidence in relation to his work history was inconsistent. It did not accept that poor memory would explain how the Applicant could forget that he had worked as a cook and a chef for 20 years, if in fact that was the case. The Tribunal did not accept he had been telling the truth about his employment history.
The Tribunal found that its overall impression of the Applicant’s evidence about his alleged debt and previous working history was that he was not providing testimony about events that had actually occurred.
The Tribunal also had regard to the Applicant’s delay of some four years in applying for protection after his arrival in Australia, including more than a year after he became unlawful after his student visa ceased. It found that this did not suggest that the Applicant feared he would face persecution, either when he left Australia or when he applied for a student visa. It did not accept that the Applicant would not have at least made inquiries about seeking protection at the earliest opportunity if he had the fears claimed.
The Tribunal was not satisfied the Applicant had been telling the truth when he claimed he approached money lenders for a loan he then did not repay. It was not satisfied that the Applicant or his family had been threatened or hassled as a result of non-payment. Hence it was not satisfied that the Applicant had a well-founded fear of being persecuted because he owed money to money lenders or loan sharks.
Considering the Applicant’s claims both singularly and cumulatively the Tribunal was not satisfied he met the Refugees Convention criterion.
Having regard to its findings that it was not satisfied that the Applicant had been telling the truth or that he had suffered harm as a result of a loan he was unable to pay, the Tribunal was not satisfied he would face significant harm or that he met the complementary protection criterion. The Tribunal affirmed the delegate’s decision.
In the application for review there is an attachment which lists three orders sought and three grounds. I have considered each of these six paragraphs as grounds of review. I gave the Applicant the opportunity to elaborate on or explain each of these six paragraphs and also to raise any other concerns he had about the Tribunal decision or procedures.
Before turning to the grounds of review, I note that in oral submissions the Applicant claimed that he owed people money and so he could not go back to Malaysia because if he did so he would be killed. He did not agree with the Tribunal conclusions and did not know or understand why a visa was not granted to him. He asked the Court to grant him a visa. I explained that that was not the role of the Court. He then asked the Court to grant an extension of time on the basis that he required such an extension of time so that he could earn money and repay his debt and that if he did not get the extension of time, he would not be able to pay the money and could not return to Malaysia. I am not satisfied that the Applicant’s desire to remain in Australia to earn money is such as to support his application for an extension of time in the circumstances of this case. Insofar as he seeks merits review, as I attempted to explain to him, merits review is not available in this Court.
I have considered each of the grounds as expressed and taken at their widest, but I am not satisfied that any of the grounds is arguable such as to support the application for an extension of time.
The first ground is a contention that the Department and the Tribunal’s decisions are not “fair and reasonable” as they “failed to take a good consideration” of the Applicant’s real situation in his home country and ignored the risk of his background. The application before me is an application to review the decision of the Tribunal. The delegate’s decision would, in any event, be a primary decision not reviewable by the Court.
When given the opportunity to address this ground, the Applicant emphasised that if he returned to Malaysia not having paid the debt, he would be killed. As indicated, insofar as he seeks merits review this is not indicative of any arguable jurisdictional error.
Nor is there anything in the material before the Court to establish any arguable ground of a lack of procedural fairness or legal unreasonableness in the Tribunal’s decision.
In essence in this (and in other) grounds, the Applicant appears to take issue with the Tribunal’s adverse credibility finding. While bearing in mind that challenges to credibility or other findings of fact are not precluded (and having regard to the remarks of the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146), there is simply nothing in this case to support any arguable claim of a failure to afford procedural fairness, that the Tribunal reached a finding without any logical or probative basis, or that there was legal unreasonableness or other jurisdictional error.
Rather, the Tribunal’s adverse credibility findings were reasonably open to it on the material before it for the reasons which it gave. Moreover on the Tribunal’s account of what occurred at the hearing (the only evidence before the Court in that respect) it raised its concerns with the Applicant and gave him an opportunity to comment and had regard to his explanations.
The second order sought is in the nature of another ground. It is that the Tribunal did not consider the Applicant’s “statement and comments given to the questions asked in the hearing and judge [his] fears simply by the member’s prejudice”. There is no arguable basis for an assertion of jurisdictional error on this basis. Clearly, the Tribunal did consider the Applicant’s written statement. There is no transcript of the Tribunal hearing in evidence. When given the opportunity to explain this ground further, the Applicant had nothing to say. He did not identify any comments not considered by the Tribunal.
On the material before the Court, there is nothing to establish any arguable claim that the Tribunal failed to have regard to any aspect of the Applicant’s evidence or to any integer of the Applicant’s claims, including his evidence and his comments at the Tribunal hearing.
If this ground may be seen as raising an assertion of actual, or apprehended bias, there is no arguable basis for either such assertion. No claim in that respect has been particularised. Nor is it supported by evidence. It is well-established that allegations of bias must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). The general unparticularised assertion in this ground is not such as to give rise to an arguable ground of either actual bias in the sense considered in Jia Legeng or apprehended bias considered from the perspective of the hypothetical fair-minded lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28).
Insofar as this ground relates to the Tribunal’s adverse credibility findings, the observations of the Full Court of the Federal Court in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] are in point. As their Honours pointed out, the Tribunal is entitled to assess the evidence before it and to attach such weight to that evidence as it regards appropriate. Even if the Tribunal were to disbelieve every element of the Applicant’s claim, that would not in itself be sufficient to establish bias. There is nothing in this case to support any allegation that the Tribunal had prejudged the matter or had a mind closed to any argument. The Tribunal considered the claims made by the Applicant, discussed them with him at the hearing, considered his explanations and explained why it did not accept those claims and explanations. There is no arguable jurisdictional error on this basis on the material before the Court. I also note that despite being given the opportunity to file a transcript of the Tribunal hearing at directions made in March this year, the Applicant did not do so.
The third “order sought” is a ground that the Tribunal “failed to prudently consider [the Applicant’s] risk, discrimination and financial hardship” if he returned to his country of origin. The Applicant had nothing to say in relation to this ground in submissions.
The Tribunal considered the Applicant’s claims but, relevantly, rejected the underlying factual basis for his assertions of a fear of harm in the context of considering both the Refugees Convention criterion and the complementary protection criterion.
The orders sought by the Applicant (considered as grounds) do not establish any arguable ground of review or have sufficient merit to support time being extended.
The first ground in the application repeats the Applicant’s claims to fear returning home “due to debts”. It seeks impermissible merits review.
The second is that the Tribunal “unreasonable suspect (sic) of the truthfulness of [the Applicant’s] claims just because of the absence of the evidence”.
This ground misunderstands or misstates the basis for the Tribunal’s finding that the Applicant was not a witness of truth. Such finding was not based on an absence of evidence, but rather on inconsistencies in the Applicant’s evidence as well as his delay in seeking protection. The Applicant explained this ground as a concern that the Tribunal did not accept his explanation, but in circumstances where the Tribunal’s credibility findings were reasonably open to it on the material before it for the reasons which it gave, this general assertion does not raise any arguable jurisdictional error. No arguable jurisdictional error is apparent on the basis asserted in this ground.
The final ground is that the Tribunal’s decision “could give rise to an apprehension of bias in the mind of a reasonable observe (sic)”. For the reasons given, it is not arguable that the Tribunal decision is such as to give rise to an apprehension of bias (see SBBA). This is not a case in which there is any evidence that the Tribunal’s fact-finding was conducted in a manner which could support a ground of apprehension of bias as discussed by Allsop J (as his Honour then was) in NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 or that is such as to indicate that a fair-minded observer might reasonably apprehend that the Tribunal’s conclusions had been reached with a mind not open to persuasion or unable or unwilling to evaluate the material before it fairly.
None of the grounds, considered individually or cumulatively or the Applicant’s oral submissions are such as to identify any arguable ground of jurisdictional error such as to support the application for an extension of time.
I have had regard to all the circumstances insofar as it has been possible to do so on the evidence before me, including the lack of merit in the proposed grounds of review and the absence of a reasonable and satisfactory explanation for the delay, as well as the absence of prejudice to the First Respondent, the public interest in having decisions of administrative bodies finalised and the interests of the Applicant who has raised a concern about the prospect of returning to Malaysia if the application for an extension of time is not granted.
I am not satisfied in all the circumstances that it is necessary in the interests of the administration of justice to grant an extension of time.
The Minister seeks costs. The Applicant has been unsuccessful in his application for an extension of time. He told the Court from the bar table that he had no money and did not think he could pay costs. However, I am not satisfied that the Applicant’s lack of funds is a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. I note that the solicitor for the Minister did not seek additional costs, notwithstanding the delay occasioned by the Applicant’s late arrival today which meant that the hearing commenced at midday rather than at 10:15am as scheduled. Any inability of the Applicant to pay costs is a matter that may be taken into account by the Minister in determining when and how to seek to recover such costs. It is not a factor which warrants a reduction in those costs in this case.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 20 November 2017
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