Aur17 v Minister for Immigration

[2017] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUR17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2132

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

Legislation:

Migration Act 1958 (Cth), ss.438, 477

Cases cited:

AVO15 v Minister for Immigration [2017] FCA 566

DME16 v Minister for Immigration & Anor (No.3) [2017] FCCA 2056
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZRUG v Minister for Immigration & Anor [2013] FCCA 142

Applicant: AUR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 109 of 2017

Judgment of: Judge Driver

Hearing dates: 1, 4 September 2017

Delivered at: Sydney

Delivered on: 4 September 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: 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, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 109 of 2017

AUR17

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).  The decision was made on 20 December 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts concerning the applicant’s claim for protection and the decision of the Tribunal on them are set out in the Minister’s legal submissions.   

3. The applicant, a citizen of Mauritius, arrived in Australia on 15 February 2012 on a student visa he held as a dependent of his wife.[1]  On 3 June 2015 the applicant’s last-issued student visa was cancelled after his relationship with his wife broke down.  On 22 March 2016, the applicant’s bridging visa was cancelled after he breached an intervention order relating to his ex-wife.  The applicant was taken to prison, and later immigration detention.

   [1] Court Book (CB) 281

4. On 27 July 2016, the applicant applied for a protection visa.[2]  On 5 October 2016 the delegate refused to grant the applicant a protection visa.[3]

   [2] CB 46

   [3] CB 229

5. On 10 October 2016, the applicant sought review of the delegate’s decision to the Tribunal.[4]  On 19 December 2016, the applicant attended a hearing before the Tribunal.[5]

   [4] CB 260

   [5] CB 297

Tribunal decision

1. On 20 December 2016, the Tribunal affirmed the delegate’s decision.[6]

   [6] CB 307

2. The Tribunal set out the applicant’s claims that he feared that if returned to Mauritius he would be harmed by people seeking revenge against him for his role in acting as an informant for police.[7]  The applicant claimed to have been harmed and had attempts made on his life in the past for this reason. 

   [7] CB 309-310 at [9]–[14]

3. The Tribunal found the applicant not to be a credible witness. The Tribunal noted that the applicant’s evidence was “very vague and undetailed on numerous occasions” and “marked by significant and fundamental inconsistencies on a number of important matters”.  The Tribunal also referred to the applicant’s delay in applying for protection, his failure to mention the events forming the basis of his protection claims at interviews with the Minister’s Department prior to making his application, and his return to Mauritius in December 2014.[8]

   [8] CB 310 at [16]

4. Based on its credibility findings, the Tribunal did not accept that the applicant acted as an informant for police and that people had sought or were likely to seek revenge against the applicant for doing so. The Tribunal referred to documentary evidence the applicant had provided that corroborated his claim, but stated that it placed limited weight on that evidence given its “highly significant and fundamental” concerns with the applicant’s credibility.[9]

   [9] CB 311-313 at [17]–[24]

5. The Tribunal then discussed a certificate that the Minister’s Department had issued under s.438 of the Migration Act 1958 (Cth) (Migration Act) in respect of an intelligence assessment report of the applicant prepared by Serco. The Tribunal stated that it regarded the certificate as valid as disclosure of the information “would do harm to the nation and the public service”. The Tribunal put to the applicant in broad terms the contents of the information and the fact that it regarded the information as neutral to the applicant’s case and irrelevant to his claims. The Tribunal noted that it had not provided an example of the information covered by the certificate upon being asked by the applicant, but that the applicant did not comment on the certificate’s validity or the information’s relevance.[10]

   [10] CB 313 at [25]

6. Based on its analysis, the Tribunal did not accept that the applicant faced a real chance of serious harm on return to Mauritius, or a real risk of significant harm and affirmed the decision not to grant the applicant a protection visa.[11]

   [11] CB 313-314 at [26]–[31]

The present proceedings

1. These proceedings began with a show cause application filed on 23 February 2017. The application was lodged 28 days outside the period prescribed in s.477(1) of the Migration Act. The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act.

2. The issues in relation to an extension of time are relevantly those identified by the Minister in his submissions. 

3. The principles relevant to the Court’s discretion as to whether to extend time under s.477(2) of the Migration Act are well established.[12]  These include: 

   a)whether there is any prejudice to the Minister;

   b)the length of, and explanation for the applicant’s delay; and

   c)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [12] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]; SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8]

4. In relation to those principles, the Minister does not assert any prejudice.  However, as noted by the Minister, a mere absence of prejudice is not sufficient to justify an extension of time.  In the present case, the delay of 28 days is relatively short.  The applicant explains that delay by reference to the difficulties of being in detention and being moved from one centre to another.  He also claims to have sought legal advice. 

5. While not conceded by the Minister, in my view, it is plausible that the difficulties associated with life in detention and movement between detention centres may explain a delay of this length.  To my mind, the real issue is the legal merit in the application, or lack of it.  The application contains three grounds:

   1. Decision maker jurisdictional errors in paragraph 16, 17, 18, 20, 24, 25, 26, 27.

   2. Too much emphasis given to unrelated & biased information and sweeping judgements made making decision unfair to the applicant.

   3. If due consideration not given to the claims & evidences the applicant faces significant harm & even torture & death, if returned to the country of birth.

6. The application is supported by a short affidavit filed with it.  I received that affidavit.  I also have before me as evidence the court book filed on 15 May 2017 and the affidavit of Dominic Eberl made on 24 August 2017.  Exhibited to that affidavit is an intelligence report which was provided in a sealed envelope.  All of that material was provided to the applicant, as well as the Minister’s written submissions. 

7. The present hearing extended over two days, so that the applicant could have read to him, and peruse for himself, the available material.  In addition, the applicant submitted to the Court a bundle of documents collectively marked as MFIA1.  Those documents relate to the applicant’s medical condition and his good conduct while in detention.  I do not regard those documents as relevant to the Tribunal decision. 

8. There is, in my view, no substance to the grounds of review advanced by the applicant.  The applicant’s oral submissions establish that the applicant disagrees with the Tribunal decision, but he is unable to articulate any legal issue bearing on that decision.  The Minister’s written submissions deal with the grounds of review.  I agree with those submissions. 

9. By Ground 1 the applicant asserts that the Tribunal decision contains several jurisdictional errors, specifically at [16]–[18], [20], and [24]–[27].  No details of the alleged errors are provided.

10. At [16] of its decision, the Tribunal set out its reasons for finding that the applicant was not a credible witness.[13]  This finding was open to the Tribunal. The Tribunal’s reasoning was reasonable and not illogical or irrational. There is nothing in this paragraph which discloses jurisdictional error.

    [13] CB 310

11. Following its finding on the applicant’s credibility, [17]–[18] and [24] of the Tribunal decision sets out consequential findings of the Tribunal’s non-acceptance of the applicant’s claims. These were open to the Tribunal, and were not made in error. At [24], the Tribunal referred to the applicant’s oral evidence and documents he provided in support of his application, as well as independent country information.[14]  There is nothing to suggest the Tribunal erred in its treatment of this evidence.

    [14] CB 313

12. As to [26]-[27], in the absence of further particulars the Tribunal’s findings, being the cumulative assessment of the applicant’s claims, were open to it.[15]

    [15] CB 313-314

13. At [25] of its decision, the Tribunal considered the effect of a certificate the Minister’s Department had issued under s.438 of the Migration Act in respect of certain information that was before the Tribunal. The applicant does not provide any further particulars as to how the Tribunal erred. The Tribunal’s treatment of the s.438 certificate is addressed below.

14. No jurisdictional error is disclosed by this ground.

15. By Ground 2, the applicant contends that the Tribunal relied on irrelevant material and biased material. The material in question is not identified.

16. Aside from the applicant’s evidence, the only information the Tribunal referred to that was used to support a finding adverse to the applicant was independent country information.[16]  This information was relevant to the applicant’s claims of the risk of mistreatment by the Mauritius legal system. There is no evidence that this information was affected by bias.

    [16] see CB [24]

17. The Tribunal was entitled to place weight on this information as it saw fit.[17]  No error is identified by this ground.

    [17] NAHI v Minister for Immigration [2004] FCAFC 10 (NAHI); VWFW v Minister for Immigration [2006] FCAFC 29

18. Ground 3 appears to be, in substance, an invitation to the Court to engage in impermissible merits review and, as such, cannot succeed.  Insofar as this ground is made on the basis that the Tribunal failed to give appropriate weight to certain pieces of evidence, the Tribunal was entitled to place weight on the evidence before it as it considered appropriate.[18]

    [18] see NAHI

19. No jurisdictional error is disclosed by Ground 3.

20. The other issue in the case concerns the purported certificate issued by the Minister pursuant to s.438 of the Migration Act. The certificate is reproduced at CB 249. The certificate is justified on the basis that folios 128 to 129 of the Departmental file is an intelligence report concerning the applicant by Serco for use within the Minister’s Department only. The Tribunal dealt expressly with the certificate at [25] of its reasons:[19]

    At the hearing, I raised with the applicant that the Department had issued a s.438 certificate concerning information on their file at folios 128−129 (an intelligence assessment report of the applicant by Serco for use within the Department only). I noted that I thought certificate was valid because disclosure of the information would be contrary to the public interest because it would do harm to the nation and the public service, though I did state that it concerned whether he had an intent to escape detention. I also stated that I considered the information in the report to be neutral in his case and not relevant to his claims to fear harm in Mauritius. He asked for an example of the information, but I said I would not disclose this information. He said that was fine and he did not comment on my thoughts about the validity of the certificate or its relevance to his case. I consider the certificate to be a valid certificate because disclosure of the information within it (concerning his intent to escape from detention) would be contrary to the public interest because it would do harm to the nation and the public service. Regardless of whether the certificate is valid or invalid, I consider that nothing in the report is adverse or positive to the applicant's case or his claims to fear harm upon return to Mauritius. 

    [19] CB 313

21. It is plain that the Tribunal treated the certificate as valid.  It is also plain that the Tribunal reasoned that the documents purportedly covered by the certificate were not relevant to the review.  Both the applicant and I have had the opportunity to peruse the intelligence report.  It is an assessment by Serco of the risk that the applicant may seek to escape detention.  The report also deals with the risk that would be consequential to an escape, including a risk of the applicant attempting to contact his former wife.  In my opinion, the Tribunal was correct in assessing the report as not relevant to the issues in the review.  The applicant also agrees with that assessment. 

22. In my opinion, the Tribunal was entitled to treat the certificate as valid.  That is because the security assessment might have supported a claim in legal proceedings for public interest immunity.  That is not to say that such a claim would necessarily have been upheld.  It simply means that such a claim could have been made.  The issue was dealt with recently in other proceedings by this Court.  In DME16 v Minister for Immigration & Anor (No.3),[20] Judge Street found that the certificate in that case was properly subject of a claim for public interest immunity.  In that case, the issue was the risk of disclosure of sources.  In the present case, while it is not obvious that disclosure might have disclosed sources of information, a claim of public interest immunity might have been made in respect of the methods of assessment of persons in detention in relation to the risk of flight.

    [20] [2017] FCCA 2056 at [4] and [5]

23. I otherwise agree with the Minister’s submissions in relation to the certificate at [32]. In particular, I agree that no practical injustice and hence no procedural unfairness resulted from the Tribunal failing to provide the security assessment to the applicant for the purposes of the Tribunal review.[21] 

    [21] See AVO15 v Minister for Immigration [2017] FCA 566 at [91]

24. I conclude that the interests of the administration of justice do not require the granting of an extension of time.  I will therefore order that the application for an extension of time be refused. 

25. In consequence of the refusal of an extension of time, the Minister seeks an order for costs in the sum of $7,206.  The applicant did not wish to be heard on costs.  In circumstances where this hearing extended over two days and the parties prepared for a final hearing in the event that an extension of time were granted, the claim for costs is justified. 

26. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 September 2017