AQG17 v Minister for Immigration and Border Protection
[2019] FCA 1857
•11 November 2019
FEDERAL COURT OF AUSTRALIA
AQG17 v Minister for Immigration and Border Protection [2019] FCA 1857
Appeal from: Application for an extension of time: AQG17 & Anor v Minister for Immigration & Anor [2019] FCCA 1536 File number: NSD 1018 of 2019 Judge: STEWART J Date of judgment: 11 November 2019 Catchwords: MIGRATION – application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal – failure to appear – failure to file submissions – whether the proposed grounds of appeal have any merit – no merits – application dismissed on default of appearance Legislation: Federal Court Rules 2011 rr 1.32, 36.03, 36.05
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Parker v R [2002] FCAFC 133
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 11 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Applicants: No appearance Solicitor for the First Respondent: Ada Wong of Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 1018 of 2019 BETWEEN: AQG17
First Applicant
AQH17
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWART J
DATE OF ORDER:
11 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The applicants’ application for an extension of time filed on 27 June 2019 is dismissed.
2.The applicants are to 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
STEWART J:
Introduction
By an application filed on 27 June 2019, the applicants sought an extension of time in which to file and serve a notice of appeal from orders made by the Federal Circuit Court of Australia on 14 May 2019 in AQG17 & Anor v Minister for Immigration & Anor [2019] FCCA 1536.
The primary judge dismissed the application filed by the applicants seeking judicial review of a decision of the Administrative Appeals Tribunal dated 20 January 2017, which affirmed the decision of a delegate of the first respondent (the Minister) not to grant the applicants protection visas.
The primary judge’s orders provided the applicants additional time to file any notice of appeal up to and including 26 June 2019. The effect of those orders was that the applicants had the benefit of 15 additional days to the 28 day period stipulated by r 36.03 of the Federal Court Rules 2011 (Cth). Despite this opportunity, the present application was filed on 27 June 2019, one day outside the deadline.
The Minister opposed the application for an extension of time on the basis that the delay has not been satisfactorily explained and that the proposed grounds of appeal lack sufficient merit to warrant orders extending time. The Minister does not claim any prejudice by the one day delay.
Applicants’ default
The applicants did not file written submissions despite having been ordered to do so by the usual pre-hearing orders. Then, when the matter was called before me for hearing, the applicants failed to appear. I asked Ms Wong, who appeared for the Minister, to telephone the first applicant on the mobile telephone number that was furnished on the originating application.
After the Court had stood down for a brief period to allow that to occur, Ms Wong reported that the number had been called and that there was no answer.
In the circumstances, there appeared to be no point in waiting in the hope that the applicants might turn up. I dismissed the application and ordered the applicants to pay the first respondent’s costs. These are my reasons for doing so.
Given the applicants’ double-default, it is by no means clear that they wish to proceed with this matter. If they do, they have not demonstrated that wish. Indeed, their conduct suggests that the contrary is true.
But additionally, for the reasons that follow I consider that their case lacks merit and would in any event be dismissed on its merits. In my view it is not in the interests of justice for the matter to limp on. I therefore exercised my discretion to dismiss the application under r 1.32 of the Rules.
The merits of the case
It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349, affirmed by the Full Court in Parker v R [2002] FCAFC 133 at [6].
Insofar as the merits of the proposed appeal are concerned, the court considers what has been described as “the outline of the case” without “going into much detail on the merits”: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540 [66] per Kirby J adopting Lord Denning MR’s approach in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F.
See also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 per Mortimer J at 599 [66] where her Honour stated that “unless the grounds are hopeless … so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them” (my emphasis). That approach was endorsed by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [21]-[23] and [38] per Tracey, Perry and Charlesworth JJ.
In the circumstances, I would decide the application for an extension of time on the question whether the proposed grounds of appeal have any merit.
Background and the first applicant’s claims
The first applicant is a citizen of Malaysia. The second applicant is the first applicant’s partner, having entered into a de facto relationship in 2013. The applicants arrived in Australia in 2014. Shortly after their arrival they applied for protection visas. Only the first applicant made specific claims for protection. The second applicant relied on membership of the first applicant’s family unit.
In support of the application for protection visas, the first applicant raised the following matters:
·The first applicant married in 1999. In 2005, her husband began gambling and running up debts. The first applicant had to work and borrow money to support her family. Between 2006 and 2008, she and her husband lived in Singapore.
·In 2008, the first applicant returned to Malaysia and started a business. It was not financially successful. Her husband also returned to gambling. One day, two strangers broke into their house and told the first applicant that her husband had incurred a large debt. The first applicant’s husband continued to gamble and then disappeared. His creditors harassed the first applicant as a result.
·The first applicant divorced her husband and is now in a relationship with the second applicant. They came to Australia to avoid harassment from her exhusband’s creditors.
On 13 July 2015, a delegate of the Minister refused to grant the applicants protection visas. The applicants then sought review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing at which the first applicant gave evidence and presented arguments in support of her application.
The Tribunal’s decision
On 20 January 2017, the Tribunal affirmed the delegate’s decision. The Tribunal set out the applicable law, and summarised the first applicant’s written claims and oral evidence given to the delegate at its own hearing.
The Tribunal observed that the first applicant claimed to fear harm from Malaysian money-lenders over debts incurred by her ex-husband. The Tribunal found that the first applicant’s fear of harm was not for a Convention reason. The Tribunal also found that nothing before it suggested that the first applicant would be denied protection by the police or authorities for a Convention reason. Accordingly, the Tribunal was not satisfied that the first applicant meets the criteria in 36(2)(a) of the Migration Act 1958 (Cth).
The Tribunal held reservations about the credibility of the first applicant’s claim to have been harassed by money-lenders over debts incurred by her ex-husband. The Tribunal observed that the first applicant’s evidence was “vague” and that she was unable to offer “basic information” about her claims. She had no documentary evidence to support her claims. The Tribunal was also concerned by the first applicant having raised a claim that her ex-husband had used her identity card to obtain the loan late in the process. The Tribunal further pointed to the first applicant’s failure to raise in her written statement that she claimed to have illegally borrowed money.
Finally, the Tribunal was also concerned by the first applicant’s delay in departing Malaysia after she received an electronic travel authority (ETA) to travel to Australia. The Tribunal was not satisfied of the truth of the first applicant’s claim that she was held responsible for her ex-husband’s debts, or that she was pursued and harassed as a consequence.
The Tribunal also considered that, even if the first applicant’s claims were true (which it did not accept), it would not be satisfied that there was a risk to her of significant harm because the harassment the first applicant complained of amounted to an “occasional and unwelcome nuisance”.
The Tribunal was also not satisfied that anything had changed in her circumstances, since leaving Malaysia that would give rise to a risk of greater harm on return. The Tribunal was not satisfied that the first applicant faced a real risk of significant harm on return to Malaysia, and found that the first applicant did not meet the criteria in 36(2)(aa) of the Act.
The Circuit Court
On 16 February 2017, the applicants filed an application seeking judicial review of the Tribunal’s decision in the Circuit Court. On 14 May 2019, a final hearing was held at which the primary judge pronounced orders dismissing the judicial review application and delivered reasons for judgment.
The primary judge considered the three grounds of review in the judicial review application.
In the first ground of review, it was said that the Tribunal did not correctly understand what had happened to the first applicant in Malaysia which caused it to doubt her credibility.
The primary judge found that the first ground could not be established as it was clear the Tribunal understood the nature and scope of the first applicant’s claims for protection. Further, the judge found that the Tribunal gave meaningful consideration to the first applicant’s claims, and did not accept them for reasons which appeared reasonable and justified.
The primary judge addressed the particular allegation that the Tribunal failed to understand the first applicant’s claims in relation to her identity card and extracted the relevant portion of the Tribunal’s decision. The judge found that the Tribunal’s reasoning was not legally unreasonable and the ground of review otherwise sought impermissible merits review.
In the second ground of review, it was said that the Tribunal did not correctly consider what would happen to the first applicant if she returned to Malaysia.
The primary judge found that the second ground appeared to cavil with the findings of the Tribunal. The judge found that the Tribunal did consider the first applicant’s claims in relation to her return to Malaysia. Accordingly, the second ground could not be made out.
In the third ground of review, it was said that evidence in support of the applicants’ claims was not taken into account.
The primary judge found that the third ground was general, un-particularised and failed to identify evidence in support of the first applicant’s allegations that claims were not taken into account. The judge noted it was a well-established principle that an administrative decision maker was required to deal with the case raised by the material or evidence before it, and that failing to make a finding on “a substantial, clearly articulated argument relying upon established facts” could amount to a failure to afford procedural fairness and therefore a constructive failure to exercise jurisdiction (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55] per Black CJ, French and Selway JJ). However, the primary judge found that the Tribunal did consider the first applicant’s evidence and claims, and engaged with them in an active intellectual process. The primary judge concluded that the third ground could not be made out.
The primary judge concluded that no jurisdictional error had been established and dismissed the applicants’ review application with costs.
The application for an extension of time
In the applicants’ draft notice of appeal filed on 27 June 2019, proposed appeal ground one contends that there was a “wrong application of law” as irrelevant information and findings were considered in relation to whether the first applicant was harmed in Malaysia.
This ground lacks any meaningful particulars and the applicants do not identify what “irrelevant information” or “irrelevant findings” were relied upon by either the primary judge or the Tribunal. In substance, this ground appears to be an invitation to this Court to reconsider the merits of the Tribunal’s decision, which it cannot do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As held by the primary judge, the Tribunal’s record of decision demonstrates that it extensively considered the first applicant’s claims and evidence relating to her fear of harm in Malaysia. There is no indication on the face of the Tribunal’s decision that irrelevant information was taken into account in making its findings. The contentions in this ground also fail to identify any meaningful case of error by the primary judge in the sense of setting out a substantive ground that could be pursued properly on appeal.
Proposed appeal ground two is put as follows:
There exists procedural unfairness.
Whether my case was treated in the fair way is not considered properly.
Whether relevant information was disclosed is not considered.
The council may not refer to relevant cases in favour of the appellant. [sic]
As no procedural unfairness was asserted before the primary judge in respect of the proceeding before the Tribunal, I understand this complaint to be directed at the proceeding before the primary judge.
I am unable to identify any credible ground of complaint with regard to procedural fairness before the primary judge. Moreover, I cannot identify any unfairness in the way in which the claim was considered, or that relevant information that was disclosed was not considered, or that the primary judge made any error of law in relation to cases referred to by him (or, indeed, in any other way).
In the circumstances, I consider that both proposed grounds of appeal are hopeless. I have not been able to identify any other potential basis on which the primary judge may have been in error.
Conclusion
In the circumstances, the application for an extension of time should be dismissed. There is no reason why the applicants should not pay the Minister’s costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart. Associate:
Dated: 11 November 2019
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