Arm17 v Minister for Immigration

[2017] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARM17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1877

MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 438, 477

Case Cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344
SZNYE v Minister for immigration and Citizenship [2010] FCA 500
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant: ARM17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 484 of 2017

Judgment of: Judge Emmett

Hearing date: 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Sydney

Delivered on: 9 August 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: Ms Bernadette Rayment

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 484 of 2017

ARM17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 1 December 2016. The applicant filed the application for judicial review on 20 February 2017, some 6 and a half weeks after the expiration of the 35 day period after the Tribunal’s decision as required by s477(1) of the Act.

2. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or

   (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

3. Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review to the decision of the Tribunal.

4. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.

5. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:

   “63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”

6. The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J)

7. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J).

8. The applicant was unrepresented this morning, although had the assistance of a Mandarin interpreter. His application for an extension of time was opposed by the first respondent. 

9. On 8 June 2017 the applicant attended a directions hearing before a registrar of this Court. By consent, the applicant was given leave to file and serve by way of affidavit any further evidence and submissions in support. The applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

10. The applicant confirmed that he had not filed any further documents either in accordance with the Court’s directions or otherwise and had no further documents to provide to the Court today.

11. I explained to the applicant that the Court has power to extend time to the applicant to seek judicial review of the Tribunal’s decision if the Court is satisfied that it is necessary in the interests of justice to do so. I also explained to the applicant that of particular importance would be the duration of the delay, the applicant’s explanation for the delay and the prospects of success of the substantive application for judicial review of the Tribunal’s decision.

12. The applicant confirmed that he relied on the explanation provided in his application for his delay which is as follows:

    “1. I has a strongly arguable case to establish jurisdictional error.

    2. I need time to prepare document can support myself in the application.

    3. I applied for a review of the decision of the tribunal in Federal Circuit Court of Australia.”

    (Errors in original)

13. The applicant declined to provide any further explanation. 

14. The explanation as provided in his application is entirely inadequate.  The applicant does not suggest that he was not aware of the timeframe within which he was to file his application for judicial review of the Tribunal’s decision. The applicant simply asserts that he needed further time. There is no explanation offered by the applicant of what further preparation or support he needed to do and there is no evidence of anything further being done by the applicant in relation to his application since the filing of his initiating application on 20 February 2017.

15. In considering the substantive grounds for judicial review I explained to the applicant that the only issue before the Court would be whether or not the decision of the Tribunal was made according to law. I explained that the role of this Court is very different to that of the Tribunal and it is not for this Court to reconsider the applicant’s claims and to reach different findings and conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained that disagreements with findings and conclusions of the Tribunal rarely, by itself, established such a mistake.

16. In the his application for judicial review, filed 20 February 2017, the applicant identified the grounds of his application for an extension of time as follows:

    “1. The decision jurisdictional error of AAT.

    2. Procedural fairness.

    3. The decision of AAT.

    a) is affected by an error of law.

    b) failed to take into account relevant considerations”

    (Errors in original)

17. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.  I asked the applicant in what way the Tribunal had denied him procedural fairness. The applicant answered that he had nothing to say. I also asked the applicant in what way did he say the Tribunal had failed to take into account a relevant consideration.  Again, the applicant said he had nothing to say.

18. The grounds of the application are wholly unparticularised, unsupported by evidence, oral submissions or written submissions, and on their face are simply bare assertions of error that do not disclose an error capable of review by this Court.

19. The background of this matter, the applicant’s claims, the Tribunal proceeding and the Tribunal’s decision are accurately summarised in written submissions of the first respondent as follows:

    “Background and the applicant’s claims

    9. The applicant is a citizen of Malaysia of Chinese ethnicity and a Buddhist. The applicant was granted a Tourist visa on 5 January 2016 and arrived in Australia on 15 February 2016 (CB 23). He lodged a Protection visa application (PVA) on 28 April 2016 (CB 1-39) as he feared being forcibly converted to Islam (CB 34). The applicant claimed that his girlfriend, who was Malay and Christian, had her religion wrongly identified as Muslim on her identification card. Whilst on holidays on Pangkor Island, officers from the Islamic Religious Department asked for the applicant’s and his girlfriend’s identity cards and marriage certificate. The applicant told them they were not married and the officers accused his girlfriend of “khalwat”, which was an offence under Islamic law for staying with a man to whom you were not married. They were taken to the Islamic Religious Office and his girlfriend was charged. The applicant was not charged as he was not Muslim. An officer asked the applicant for money to settle the case and they were released after paying a bribe. A week after the incident, two religious officers came to his house and he was detained for a week. A religious teacher tried to brainwash him and forced him to attend Islamic classes each day. The applicant wanted to make a police report but was told that it was an Islamic matter. The applicant felt helpless and fled Malaysia as he feared being forced to convert to Islam.

    10. On 31 May 2016, a delegate of the first respondent made a decision refusing to grant the applicant a Protection visa (CB 59-71).

    The Tribunal’s proceedings

    11. On 15 June 2016, the applicant lodged with the Tribunal an application for review of the delegate’s decision (CB 72-73).

    12. On 12 September 2016, the Tribunal wrote to the applicant inviting him to a case conference. On 21 October 2016, the Tribunal invited the applicant to attend a hearing before it scheduled on 2 December 2016 (CB 83-84). The hearing was rescheduled to 1 December 2016 (CB 92-93) and the applicant attended (CB 94-96).The applicant provided copies of pages of his passport at the hearing (CB 98-101).

    13. On 16 July 2007, the Tribunal wrote to the applicant confirming receipt of his letter of 5 July 2007 and notified him that a decision would be handed down on 24 July 2007 (CB 84).

    The Tribunal’s decision

    14. In its decision dated 1 December 2016, the Tribunal affirmed the decision under review (CB 104-115).

    15. At the hearing the applicant told the Tribunal that he was no longer in a relationship with his former girlfriend and was unable to remember her full name or provide any evidence of their relationship such as photographs, emails or phone records (CB 107, [21]-[22]). The Tribunal discussed the night that religious officers allegedly detained him as well as the second detention and provided the applicant with an opportunity to respond to its questions (CB 107-108, [23]-[28]). The Tribunal also questioned the applicant about when and how he obtained his passport (CB 108, [29]).

    16. The Tribunal noted that the applicant did not leave Malaysia for almost two months after his passport was issued. In response to the Tribunal’s questions about this delay, the applicant claimed that he was seeking help from religious groups in order to sue the religious department. The applicant claimed he approached a local politician whose name he could not recall, who assisted him with filing a lawsuit against the religious department but the case “was prevented” as there was insufficient evidence (CB 109, [31]). The applicant was not able to produce any documents in relation to the court application as he claimed he had discarded them (CB 109, [32]). The applicant also claimed that he was continually harassed by the religious department who told him he had to join their religion or pay money (CB 109, [33]). When asked why he had not mentioned these claims earlier, the applicant responded he was fearful at the time he lodged his PVA and so forgot to mention some details (CB 109, [34]).

    17. The Tribunal discussed relevant country information with the applicant that indicated freedom of religion was guaranteed under the Malaysian Constitution and that Sharia law only applied to Muslims. As the applicant was no longer in a relationship with his girlfriend, the Tribunal found there would not be a real chance risk of the applicant being harmed, particularly if he returned to a different part of Malaysia (CB 109, [36]).

    18. The Tribunal had regard to the applicant’s claim that corruption was prevalent in Malaysia and that the religious officials were corrupt and simply trying to get money out of him (CB 110, [37]). The Tribunal relied on the 2016 DFAT Country Report for Malaysia that indicated Sharia-based law only applied to Muslims but its enforcement sometimes affected non-Muslims, particularly on matters of religious conversion and that despite guaranteed freedom of religion under the Constitution, civil courts had ruled they had no power to intervene in apostasy cases. It also had regard to a US Department of State Report on Religious Freedom for Malaysia in 2015 that indicated those who “differed from the official interpretation of Islam” continued to face adverse government action including mandatory rehabilitation and that State Islamic religious enforcement officers had the authority to accompany police on raids and to enforce Sharia law (CB 111, [41]).

    19. The Tribunal was not satisfied that the applicant provided truthful evidence regarding his past experiences or his reasons for leaving Malaysia. Specifically, the Tribunal found his oral description of his detention on Pangkor Island and subsequent detention, was brief and lacking in detail and that on several occasions the applicant failed to respond to the Tribunal’s specific questions and instead simply restated information set out in his written statement. It also found it unusual that the applicant could not recall his girlfriend’s full name or the name of the hotel in which they stayed on Pangkor Island or the name of the politician who assisted him. For these reasons, the Tribunal concluded that the applicant was repeating the contents of a memorised statement rather than talking about his actual personal experiences (CB 111, [43]).

    20. The Tribunal found the applicant’s oral evidence was unsupported by any documentary evidence and that it was unusual that after being in a relationship with his former girlfriend for almost a year, the applicant was not able to provide any documentary evidence of their relationship or evidence of their travel to Pangkor Island, his hotel stay, detention or the court proceedings which followed. The Tribunal also found his claim that he disposed of such evidence because of the painful memories was inconsistent with his attempts to seek justice through the court system and lodging his PVA in Australia (CB 111, [44]).

    21. The Tribunal also found aspects of the applicant's evidence were internally inconsistent. For example, his evidence in relation to whether he applied for a passport before or after his week-long detention was confused and conflicting (CB 111, [45]). It also noted that the applicant raised for the first time highly significant claims in the course of his oral evidence. The Tribunal noted these claims were only made after it expressed concerns about the applicant's two-month delay in leaving Malaysia (CB 112, [46]). The applicant could not explain the anomalies in his evidence and while the Tribunal accepted that the “tenor of the applicant’s claim” was generally consistent with country information. The Tribunal was not satisfied that any of the applicant’s claims were true, including that: he was in a relationship with a Malay woman whose identity card listed her as Muslim; the applicant and/or his girlfriend were detained by religious enforcement officers in either Pangkor Island or on return; the applicant was asked for bribes by enforcement officers; the applicant sought assistance to commence legal proceedings; or he was harassed by the religious department in Malaysia (CB 112, [47]-[48]).

    22. Accordingly, the Tribunal was not satisfied that there was a real chance or risk of the applicant being forced to convert to Islam, being forced to pay bribes, harassed or suffering from any other form of serious or significant harm arising from his claimed experiences (CB 112, [48]-[49]) and concluded that he did not meet the refugee criterion in s 36(2)(a) of the Act (CB 112, [50]-[51]).

    23. Having rejected the entirety of the applicant’s claims, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm (CB 112, [51]).

    24. The Tribunal’s factual findings were open to it for the reasons that it gave and the Court cannot review the merits of the decision. The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). Also, given its credibility concerns it was entitled to rely upon the applicant’s lack of corroborative evidence. This is not a case where the Tribunal erroneously required the applicant to corroborate his claims before they could be accepted (see SZSHU v Minister for Immigration & Anor [2013] FCCA 2258; cf., Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041).”

1. In written submissions, the first respondent submitted that the final orders in the purported judicial review application filed on 20 February 2017 sought only a writ of certiorari. The first respondent submitted that as the applicant had not sought a writ of mandamus or prohibition or an injunction against the Tribunal, that he had failed to properly invoke the jurisdiction of the Court and that the proposed substantive application is liable to be dismissed as incompetent. Whilst I accept that the first respondent may be correct in those submissions, I am mindful of the fact that the applicant is self-represented. I accept that the relief the applicant seeks is to set aside the decision of the Tribunal and have the matter remitted to the Tribunal for determination according to law, on the basis that the Tribunal’s decision is affected by jurisdictional error.

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified the applicant’s claims and summarised the various exchanges it had with the applicant at a hearing. The Tribunal put to the applicant matters of concern that the Tribunal had about his evidence and noted the applicant’s responses.

3. Ultimately, as stated above, the Tribunal found the applicant’s oral evidence to be unsupported by any documentary evidence and found his evidence of his claims to be brief, lacking in circumstantial detail and repetitive of his written statement. The Tribunal noted that, in several instances, the applicant failed to respond to the Tribunal’s specific questions directly, instead repeating information set out in his written statement.

4. The Tribunal also noted that, despite repeated prompting and having been put on notice of the Tribunal’s concerns about the lack of detail or specificity in his evidence, the applicant was only able to provide minimal additional information. The Tribunal found that the applicant was repeating the contents of his statement, rather than talking about his actual personal experiences.

5. The Tribunal also noted that aspects of the applicant’s evidence were internally inconsistent and provided examples. The Tribunal noted that the applicant also raised for the first time further claims that it found to be significant and which were made only after the Tribunal expressed some concern about the applicant’s two-month delay in departing Malaysia.

6. Ultimately, the Tribunal comprehensively rejected all the applicant’s claims made in support of his protection visa application, including all claims of past harm. The Tribunal then concluded that the applicant did not meet the refugee criterion in s.36(2)(a) of the Act or the alternative complementary criterion in s.36(2)(aa) of the Act and accordingly affirmed the decision under review.

7. The Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

9. The applicant’s grounds, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

10. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, as stated above, none is apparent on the face of the Tribunal’s decision record, and none has been identified by the applicant this morning.

11. Further, the first respondent, consistent with the obligation of a model litigant, raised with the court the fact that there was a certificate issued under s.438 of the Act (“438 Certificate”), stating that disclosure of folio 53 would be contrary to the public interest, because it contained information relating to an internal working document and business affairs. It was a document that was not provided to the applicant. The document was placed in a sealed envelope and exhibited to an affidavit of Bernadette Rayment sworn 17 July 2017. There was no claim of confidentiality made by the first respondent in relation to the document. It is plainly a document in respect of which no s.438 certificate should have been issued. It is simply a screenshot of the refusal by the delegate to grant the applicant a Protection visa.

12. I accept the first respondent’s submission that it could not readily be said that the applicant was denied any opportunity that might have affected the outcome of his application for review, and there is no basis to infer from the Tribunal’s decision record that the Tribunal acted in any way upon the certificate.

13. It is well established that no jurisdictional error can be made out when it is apparent that the document covered by the s.438 Certificate was of no relevance to the Tribunal’s decision (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [89] – [91] per Barker J).

14. In considering whether it is in the interests of justice that time be extended to the applicant, I have regard to the fact that the applicant’s substantive application for judicial review of the Tribunal’s decision would appear to have no prospects of success or at least such prospects that an extension of time is likely to be an exercise in futility.

15. Moreover, I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [17] per McHugh J).

16. In all the circumstances, but particularly in light of the unsatisfactory explanation for the applicant’s delay, and the prospects of success of the applicant’s application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

17. Accordingly the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 17 August 2017