Atl16 v Minister for Immigration

[2017] FCCA 1308

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1308

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth) ss.36,65, 477

Applicant: ATL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 33 of 2017

Judgment of: Judge Driver

Hearing date: 16 June 2017

Delivered at: Sydney, via videolink to Perth

Delivered on: 16 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Buchanan of Australian Government Solicitor

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 applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,306 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 33 of 2017

ATL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims, and the decision of the Tribunal on them, are conveniently summarised in the Minister’s outline of legal submissions filed on 9 June 2017.  

2. The applicant is a citizen of India who arrived in Australia on 26 September 2013 as the holder of a student visa[1]. The applicant’s student visa was cancelled in 2015. 

   [1] Court Book (CB) 39, 119, 168

3. In September 2015, the applicant lodged an application for a protection visa, but it was found to be invalid[2].

   [2] CB 1-35

4. On 23 October 2015, the applicant became an unlawful non-citizen.  In November 2015, the applicant was taken into immigration detention[3]. On 10 December 2015, the applicant lodged his application for a protection visa the subject of the present proceedings[4].  

   [3] CB 39,168

   [4] CB 49-77

5. The applicant attended an interview in relation to his application on 12 January 2016[5]. On 19 January 2016, a delegate of the Minister refused to grant a protection visa to the applicant under s.65 of the Migration Act 1958 (Cth) (Migration Act)[6].

   [5] CB 102-110, 121

   [6] CB 115-130

6. On 29 January 2016, an application was lodged with the Tribunal for review of the delegate’s decision[7].  On 26 February 2016, the Tribunal found that it had no jurisdiction in relation to the matter[8].

   [7] CB 138

   [8] CB 138-143

7. The applicant sought judicial review in relation to that decision and on 26 August 2016 the this Court set aside the Tribunal’s decision that it had no jurisdiction in relation to the matter[9].

   [9] CB 147-148

8. On 18 October 2016, the applicant appeared before the Tribunal to give evidence and present arguments[10].

   [10] CB 170-1, 188

9. In summary, the applicant claimed to fear harm if he returned to India because of a dispute with his paternal uncle over ancestral property. He claimed that in 2010 he was attacked by unknown people and that he will be physically harmed again by his uncle if he returns to India. The applicant also claimed he will not be protected in India because his uncle has influential connections and the police are corrupt in India[11].

   [11] CB 30-32, 72-74, 120-122, 222

Tribunal decision

1. On 10 November 2016, the Tribunal affirmed the decision not to grant the applicant a protection visa[12].

   [12] CB 216-232

2. In summary the Tribunal found as follows:

   a)the applicant provided very limited responses to enquiries about his claims. This led the Tribunal to have concerns about the general credibility of the applicant’s claims to fear harm if he returned to India[13];

   b)the Tribunal accepted that the applicant came to Australia after Year 12 to study a Diploma in Business and that his maternal uncle was here to give him support. The Tribunal also accepted that the applicant studied for one year but was not able to pay the fees to study further[14];

   c)the Tribunal accepted that land ownership disputes are common throughout India, including in Punjab, that the applicant’s grandfather had died and his property was to be divided between his three sons, including the applicant’s father until his death in 2015[15];

   d)the Tribunal did not accept that the applicant’s father was attacked by a mob sometime before 2010 at the direction of the applicant’s uncle or anyone else due to the vague and limited evidence about the incident. The Tribunal had serious concerns about the applicant’s credibility in respect of this claim[16];

   e)given the level of detail the applicant provided about the incident, the Tribunal accepted the applicant was assaulted by a mob in 2010. However, based on the applicant’s vague and speculative evidence about his uncle’s involvement and his previous statement that the attack was by unknown men, the Tribunal did not accept the applicant’s uncle had any involvement with this attack and found the applicant was attacked in a random criminal act.  The Tribunal found there was a remote chance the applicant faced future random violence[17];

   f)the Tribunal did not accept that the applicant was beaten by anyone in 2011 for any reason (rejecting the applicant’s claim that he had been beaten by people associated with his uncle). The Tribunal did not accept aspects of the claim as plausible and found that had it occurred, the applicant would have mentioned it earlier[18];

   g)the Tribunal found that as the applicant had not experienced any issues with his uncle between 2011 and 2013, this was indicating of the applicant not facing a real chance of harm arising from a property dispute with his uncle[19];

   h)the Tribunal did not accept that the applicant’s uncle had assisted him financially with his student visa application due to credibility concerns with this claim[20].  The Tribunal also found, in light of other evidence given by the applicant regarding paying back a debt to his other uncle that the applicant had no unpaid debts to his father’s brothers or any fears arising from this[21];

   i)the Tribunal considered that, given the regular communication between the applicant and his father, had the applicant’s father had concerns about a threat to his own or the applicant’s safety at the hands of the applicant’s uncle, he would have discussed this with the applicant.  The Tribunal also noted that the applicant’s mother and siblings continue to live in his family’s property without any interference by his uncle.  In light of that the Tribunal did not accept there was any property dispute between the applicant’s family and the applicant’s uncle[22];

   [13] CB 223 at [14]

   [14] CB 223 at [15]-[16]

   [15] CB 223-4 at [17]-[18]

   [16] CB 224 at [20]

   [17] CB 224-5 at [21]-[23]

   [18] CB 225 at [24]-[25]

   [19] CB 226 at [26]

   [20] CB 226 [27]

   [21] CB 227 at [30]

   [22] CB 226 at [28]

3. The Tribunal found that if the applicant genuinely feared harm he would not have delayed two years in seeking to lodge a protection visa application and it did not accept the applicant’s explanation of ignorance of being able to seek a protection visa[23].

   [23] CB 227 at [32]

4. The Tribunal found that the applicant did not have a well-founded fear of persecution, and was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act[24].

   [24] CB 228 at [36]

5. In relation to the complementary protection criterion, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant would suffer significant harm[25].

   [25] CB 228 at [37]

6. Accordingly, the Tribunal affirmed the decision under review.

The present proceedings

1. These proceedings began with a show cause application which was filed, in the sense of being stamped and signed by the principal registrar, on 18 January 2017. On its face, that filing was approximately one month outside the period prescribed by s.477(1) of the Migration Act, given that the prescribed period of 35 days expired on 15 December 2016.

2. The applicant seeks an extension of time and has provided material supporting that application.  In addition to the application itself, which provides some explanation for the delay, I received the applicant’s affidavit filed on 18 January 2017, and two court books, the principal court book having been filed on 24 April 2017 and the supplementary court book having been filed on 9 June 2017. 

3. The applicant has provided a cogent explanation for the delay in filing his application.  It appears that he first attempted to file it on 8 December 2016, which was well inside the prescribed period.  However, the registry in Perth raised certain requisitions on the application, and the applicant, who was at that time detained on Christmas Island, struggled to respond to those requisitions. 

4. It appears that a second attempt was made by the applicant to file his application and perhaps a third.  As best as I can determine, the application in its final form was lodged with the registry on 9 January 2017.  It is not clear to me why the application was not filed until 18 January.  In any event, on the assumption that the application was lodged on 9 January, an extension of time would still be required.  On the basis of the applicant’s circumstances, and his various attempts to meet the registry’s requirements, I am satisfied that he has advanced a satisfactory explanation for the delay. 

5. The Court has a discretion under s.477(2) of the Migration Act to grant an extension of time. The factors relevant to the exercise of that discretion include but are not limited to the extent of the delay – which on the present case is short – the reasons for the delay, which in the present case provide a satisfactory explanation, any prejudice to the Minister, which in the present case is effectively none, and whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

6. The real issue is whether there is anything in the application, or otherwise bearing on the merits of judicial review, which calls for the granting of an extension of time in the interest of the administration of justice. 

7. There are three grounds in the application:

   1. The assessment was unfair because they said in [decision] that my father passed away last year in 2015.

   2.     They don’t think that I will face any harm if I be deport back to my hometown country.

   3.     Tribunal didn’t look into my all claims and submission I provided to Tribunal.

   (errors in original)

8. I invited submissions from the applicant and the Minister on those grounds.

9. The applicant contends in the first ground that the Tribunal made a factual error in recording that his father passed away in 2015 when in fact, he died last year.  There is no documentary evidence to verify that assertion and it is unclear, if a mistake was made, whose mistake it was.  There was no issue of the applicant’s father having died in the decision of the delegate.  It appears that the applicant mentioned it at the Tribunal hearing.  It is certainly possible that the Tribunal did not fully comprehend what the applicant was saying and incorrectly recorded the year of death as 2015.  Be that as it may, there is nothing in my perusal of the Tribunal’s reasons which would have been affected if the Tribunal had recorded the year of death as 2016 rather than 2015.[26]  There is, in the circumstances, no substance in the first ground of review. 

   [26] Except perhaps that the Tribunal’s adverse credibility finding at [28] of its reasons would have been strengthened.

10. The second ground of review is simply a repetition of the outcome before the Tribunal and is not proper ground of review. 

11. The third ground is an assertion that something material was overlooked by the Tribunal.  I pressed the applicant on what he asserts was overlooked.  He said that he had provided a document or documents to the Tribunal related to the property title which was allegedly in dispute with his uncle.  The Tribunal records, at [17] of its reasons, its acceptance of the applicant’s claim relating to the title of the property.  In other words, the additional documents, if they were any, which the applicant claims were not considered by the Tribunal, would simply have confirmed in greater detail what the Tribunal had already found. In those circumstances, in my view, there is no substance to the third ground. 

12. The applicant repeated many times in his oral submissions that he wishes to obtain legal representation in order to support his application and he sought an adjournment of today’s hearing in order to pursue a request he has apparently made for legal aid.  I took the view that the appropriate time to consider an adjournment was after I had considered the extension of time issue.  If there had been any substance in any of the grounds advanced in the application, or if an examination of the Tribunal’s reasons or the other documents in the court book pointed to some apparent legal issue, I would have granted an adjournment and an extension of time.  However, the result of my analysis of the grounds and the available material today has led me to the view that there is no arguable case of jurisdictional error by the Tribunal. 

13. Accordingly, I will order that the extension of time application be refused.  The consequence is that the application is incompetent. 

14. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale for an interlocutory hearing.  The applicant stated that this would be okay. 

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,306 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 22 June 2017