Avd16 v Minister for Immigration
[2018] FCCA 1192
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1192 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant to him a protection visa – applicant needs an extension of time of nearly 4 years (1455 days) under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 476, 477, 424A, 424AA |
| Cases cited: Bechara v Bates [2018] FCA 460 |
| Applicant: | AVD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 950 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 31 May 2017 & 30 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| The Applicant appeared by his litigation guardian in person. |
| Counsel for the Respondents: | Ms C. Hillary |
| Solicitors for the Respondents: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 20 April 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 950 of 2016
| AVD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The Applicant in this proceeding is a male citizen of China aged 8 years, having been born in Australia on 17 February 2010.
By Application filed in this Court on 20 April 2016 the Applicant seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of nearly four years (i.e. 47 months and 25 days) outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1); and
b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) (Tribunal) dated 22 March 2012 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 10 August 2011 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant’s mother and father are also citizens of China, with his mother being Ms He Shun Li (Ms Li), who is aged 36 years and the father, Mr Cheng Yao Dai, who is aged 47 years. They married in China on 23 November 2005. Ms Li was appointed litigation guardian of the Applicant by order of the Court at the hearing on 31 May 2017.
The Applicant’s father entered Australia on 6 September 2007 and applied for a Protection visa on 18 October 2007 which was refused by a Delegate of the Minister. This decision was reviewed by the Refugee Review Tribunal and the Delegate’s decision was affirmed on 15 April 2008. The father then applied for judicial review to the Federal Magistrate’s Court on 13 May 2008 with the application being dismissed on 31 October 2008. The father then made a request under s.417 of the Act for Ministerial intervention but the Minister declined to intervene on 18 September 2009.
Ms Li arrived in Australia on 26 June 2008 and applied for a Protection visa on 7 August 2008 which was refused by a Delegate of the Minister. This decision was affirmed by the Refugee Review Tribunal on 28 January 2009 and on 17 March 2009 Ms Li applied to the Minister under s.417 of the Act but on 30 September 2009 the Minister declined to intervene.
The Applicant lodged his Protection visa application on 11 April 2011 through and by Ms Li. The Protection visa application stated that Ms Li “will talk on my behalf”.
I note that the Protection visa application was lodged, and the decision of the Tribunal made, prior to the introduction of the complementary protection criterion which became effective from 24 March 2012: see the Migration Amendment (Complementary Protection) Act 2011 (Cth).
Grounds for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa under the Refugees Convention criterion can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
Applicant’s Claims to Protection
In his Statement dated 7 April 2011 which formed part of his Protection visa application the Applicant claimed that both of his parents are Christian, that Ms Li is afraid of returning to China and that Ms Li attends church every Tuesday and Sunday in George St, Sydney. The Applicant claimed that Ms Li would not go to registered churches in China because such registered churches must follow the guidance of the Chinese Communist Party, whereas the unregistered churches follow the true meaning of the Bible. The Applicant claimed that his mother would be persecuted if she participated in any underground or unregistered churches.
The Applicant further claimed that his mother had considered sending him back home to China and having her parents care for him. However, when Ms Li took the Applicant to the Chinese Consulate in Sydney to apply for a passport his parents were publicly humiliated for applying for refugee visas in Australia and they were asked to write a letter of regret for their actions in Australia before Consulate staff could issue a passport to them and then to him. His parents had no regrets and would not write a regretful letter and as a result the Applicant was not issued with a Chinese passport.
The Applicant also claimed that his mother wanted him to grow up in Australia where everyone enjoys freedom of speech and religion and democracy.
Decision of the Delegate
By his Decision Record of 10 August 2011 the Delegate refused to grant to the Applicant a Protection visa as he was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations).
Ms Li attended an interview with the Delegate in support of the Applicant’s claim. She told the Delegate that she had not practised Christianity in China and did not become interested in that religion until 2009. She began regularly to attend church at the Central Baptist Church in George St, Sydney in 2010.
The Delegate was not satisfied that Ms Li was a Christian as she claimed and found that she was unable to answer straightforward questions about Christianity. The Delegate was not satisfied of the truth of the Applicant’s claims about the alleged incident at the Chinese Consulate. The Delegate did not find Ms Li’s alleged aversion to registered churches in China to be plausible.
In the result the Delegate was not satisfied that Ms Li would experience persecution because of her religious beliefs if she returned to China. Accordingly the Delegate did not consider that the Applicant’s welfare would be adversely affected if he went to China and that there was no real chance of persecution occurring in the reasonably foreseeable future on the Refugees Convention ground of religion, or any other Refugees Convention related ground, were the Applicant to go to China. The Delegate therefore refused to grant a Protection visa to the Applicant.
Tribunal Hearing and Decision
The Applicant applied to the Tribunal for merits review of the Delegate’s decision on 8 September 2011.
Ms Li appeared at a hearing before the Tribunal on 30 January 2012 to give evidence and present arguments on behalf of the Applicant, with the Tribunal also receiving oral evidence from the Applicant’s father. The Applicant was also represented at the hearing by his registered migration agent.
The hearing was lengthy (approximately four and a half hours) and the Decision Record of the Tribunal extensive, running to 122 paragraphs. In the result, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a Protection visa and gave comprehensive reasons and findings in support of that conclusion.
At [19] – [30] of its Decision Record the Tribunal set out the Applicant’s claims to protection and the factual background leading up to the Tribunal hearing. From [31] – [46] it recorded the claims made and evidence given by Ms Li at the Tribunal hearing. At [47] – [51] the Tribunal recorded the evidence given by the Applicant’s father at the Tribunal hearing and then at [52] – [60] the Tribunal recorded the further evidence of Ms Li given at the Tribunal hearing.
At [61] – [66] of its Decision Record the Tribunal considered a post-Tribunal hearing submission from the Applicant’s registered migration agent and further evidence by way of a letter from the Senior Pastor at the Central Baptist Church in George St, Sydney. From [67] – [77] the Tribunal set out country information which it had considered in relation to the position of the Christian religion in China and in particular in Guangdong Province, where both Ms Li and the Applicant’s father had been born and where they had both resided in the city of Jiangmen before coming to Australia.
At [78] – [120] of its Decision Record the Tribunal set out its findings and the reasons for those findings, which resulted in it coming to the view that it was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention criterion. In short, the Tribunal considered and rejected the Applicant’s claims on the basis of being a failed asylum seeker, imputed political opinion and religion. The Tribunal found that the alleged incident at the Chinese Consulate did not occur and although it accepted that Ms Li was a Christian and would attend an unregistered church if she returned to China, there would be no real chance that the Applicant would be persecuted because of his mother’s religion or her attendance at an underground Christian church.
Application for Ministerial Intervention
The Decision Record of the Tribunal is dated 22 March 2012. By letter dated 16 April 2012 the Applicant through, his registered migration agent, requested Ministerial intervention under s.417 of the Act. In that request the Applicant said:
I have applied for protection visa application and that application was refused by your department and Refugee Review Tribunal and now I seek your personal intervention for reconsidering my application for living here permanently.
By letter dated 27 August 2012 the Department of the Minister advised that the Minister had personally considered the Applicant’s case and decided that it would not be in the public interest for him to intervene and that therefore the Minister had not exercised his power under s.417 of the Act.
Grounds of Application for Extension of Time Under s.477(2) of the Act
The Grounds for the application for the extension of time are verbatim as follows:
1.Our migration agent did not give us the original or photo copy of the decision record;
2.We have requested numerious time to get the decision record from the migration since year 2012 and she had made numerious excuses that she had not found it out.
3.We do not know English and we rely on our migration agent to provide us advise and she had not performed her duties probably. We got the decision copy from AAT on 18/04/16 after we have enlightened by DIBP that we can get it personally from AAT.
Proposed Grounds of Attack on Tribunal Decision in this Court
The substantive Grounds relied upon by the Applicant are as follows:
1.The Second Respondent failed to comply with section 359AA of the Migration Act when it was conducting the hearing of the review application made by the applicant.
2.The Tribunal has failed to conduct the review of the current application discharging its duty overall under Part 5 of the Migration Act. This failure also amounted to a jurisdictional error reviewable by the Court.
Application for Adjournment at Hearing on 31 May 2017 and Consideration of Extension Application
Adjournment Application
In preparing for the hearing of this matter on 31 May 2017 I observed that there had been no evidence at all given on behalf of the Applicant in support of the Grounds relied upon for the extension application.
Accordingly, I had an email sent to the parties by my Associate on 30 May 2017 that pointed out this evidential absence and the particular importance of evidence in a case requiring an extension of four years and the email held out the prospect of those advising the Applicant giving oral evidence in relation to the extension.
Ms Li appeared at the hearing for the Applicant. She then asked for an adjournment on the basis that a lawyer was not present and that she did not “know what’s going on”. She agreed that she had received the email from my Chambers dated 30 May 2017 and she said that she had only found a lawyer on that date and that she had been trying to find a legal representative all along but that they charged fees and she could not employ them because she did not have any money.
Ms Li tendered on the adjournment application a letter signed by Mr S. Kassem of FutureLegal dated 30 May 2017 which said that he could not attend on 31 May 2017 due to a prior commitment, but that if Ms Li was able to obtain an adjournment then he would thereafter assist on a pro bono basis. No notice of the making of the adjournment application had been given to the Minister or to my Chambers and in the result I refused the adjournment application and my reasons for doing so were then stated as follows:
a)I refuse the adjournment application made on behalf of the Applicant by his mother and litigation guardian, Ms Li. I consider that the Applicant and those assisting him, namely his father and, in particular, Ms Li have had ample opportunity to put themselves in proper readiness to run this case today, and if they were really serious about getting legal advice, to have obtained it so that there could be an appearance by a lawyer for the Applicant. I take into account that Mr Kassem, solicitor, appeared on the first return date when this matter was set down today for hearing and thus Mr Kassem has always been aware of the hearing date in this matter. I also take into account in refusing the adjournment application that the Application itself has been filed in this Court some four years late.
b)I am booked out with migration cases until the end of 2019 and if I was to adjourn this proceeding today, one of those other matters would have to be displaced or alternatively this matter would have to be adjourned for over a period of one year or more. So I am of the view that it is not in the interests of justice between the parties that there should be an adjournment and I refuse the adjournment application. I will give a slight expansion of these reasons in my written judgment but I refuse the adjournment application.
In refusing the adjournment I also took into account the following factors:
a)The first return date of the Application in this Court was 20 May 2016 when both Ms Li and Mr Kassem appeared. On that occasion Mr Kassem had said he had only received instructions to appear the night before from Ms Li. I then pointed out to Mr Kassem that this case involved a four year delay and made orders for evidence in support of the application for extension to be filed and served and the matter was set down for hearing on 31 May 2017;
b)No such evidence had been put on and there was no evidence that Ms Li had approached any lawyer until she had again approached Mr Kassem on 30 May 2017, after receipt of the email of that date from my Chambers;
c)There was no evidence of the asserted financial incapacity of Ms Li to fund a lawyer;
d)I proposed to seek to ameliorate any disadvantage the Applicant might have suffered by not having a lawyer appear at the hearing by making orders to the following effect, which I did at the conclusion of the hearing on 31 May 2017:
3. In the event that the Applicant or those acting on his behalf are successful in obtaining legal assistance from Mr S Kassem of Future Legal or any other lawyer then such lawyer may make any Written Submissions in support of the Applicant’s case that they may be advised, directed to my Associate on or before 23 June 2017.
4. I stand the further hearing of this matter over to 9.30am on Friday 30 June 2017 in Court 8.3.
In the result Ms Li filed an Outline of Submissions on 27 June 2017 which was obviously drafted by a lawyer (Outline of Submissions).
Extension Application
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
The Application was filed in this Court on 20 April 2016 by the Applicant’s father and Ms Li. There was no reference to any lawyer on the Application itself, although the substantive Grounds refer to legal considerations.
Pursuant to s.477(1) of the Act an application for review of the Tribunal’s decision fell to be made by 26 April 2012 and accordingly it is some four years, or 1455 days, out of time. Accordingly, the Applicant requires an extension of time under s.477(2) to bring the substantive application if the Court is satisfied that it is necessary in the interests of the administration of justice to make an extension order.
At the hearing I permitted Ms Li to give evidence in relation to the application for extension of time, having regard to the fact that no affidavit evidence in that connection had been filed. She was then cross-examined by Ms Hillary who appeared for the Minister. In her evidence-in-chief, other than saying that she had a language problem, she did not give evidence in support of the Grounds for the extension application as they appeared in the Application itself (see [24] above). Rather, she asserted that she could not afford to pay a lawyer. However, in cross-examination she admitted that she “chose to apply for Ministerial intervention instead of applying to this Court”.
I note that in her Outline of Submissions Ms Li submitted that the reason for the delay in making an application for judicial review to this Court in time was “that the Applicant, at the time and still current, does not have the capacity to act on his own behalf without the safeguards afforded to minors embroiled in litigation”. In my view this submission is of no force or weight in explaining the delay of four years or at all in this case.
The Applicant’s delay of some four years in filing his Application in this Court is very great. It is of an order of magnitude which requires something very persuasive to justify an extension of time: see SZNMO v Minister for Immigration [2009] FCA 797 at [19] – [20] per Barker J.
In my view the Applicant has entirely failed to give an acceptable explanation for the delay, which is merely a lack of funds or a lack of language skills. It is not suggested that the Applicant or those advising him were unaware of the applicable time limit of 35 days. Many applicants who apply for judicial review in this Court suffer from a lack of funds sufficient to employ a lawyer and also suffer from a lack of English language skills and yet they manage and are able to file applications for judicial review in this Court in time. Both Ms Li and her husband have had considerable experience since 2007 with the process involved in the applying for and granting of Protection visa applications (see [4] – [5] above).
Further, in my view this is a case where the Applicant made a conscious decision to request Ministerial intervention as an alternative course of action to pursuing an application for judicial review of the Tribunal decision in this Court. He chose not to approach this Court when that option was open and instead chose to seek Ministerial intervention: see MZZYC v Minister for Immigration [2015] FCA 1426 per Davies J. A deliberate forensic choice appears to have been made to apply for Ministerial intervention rather than coming to this Court for judicial review in accordance with the 35 day requirement of s.477(1) of the Act. That does not constitute a proper basis for explaining the very great delay of some 4 years and weighs heavily against the grant of an extension of time.
Nevertheless, I now turn to consider the important factor of whether or not the Applicant has reasonable prospects of success for his substantive Grounds.
Consideration
Proposed Ground 1
This Ground alleges a breach of s.359AA of the Act but that section does not apply to Protection visa applications. The equivalent and analogue provision is s.424AA and I read this Ground as referring to that section.
This Ground is completely unparticularized and fails to identify “any information” of which it is intended to be said that no clear particulars were given by the Tribunal to the Applicant under s.424A (or s.424AA) of the Act. Ms Li did not identify any such “information” at the hearing or in her Outline of Submissions. Failure to particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. I for myself have been unable to discern or identify any such “information” and this Ground has no reasonable prospects for success in establishing that the decision of the Tribunal is affected by jurisdictional error.
Proposed Ground 2
Protection visa applications are dealt with under Part 7 and not Part 5 of the Act. I take this Ground as referring to Part 7.
This Ground also fails to identify or particularize in any way how it is said that the Tribunal failed to conduct a review and did not discharge its duty. At the hearing Ms Li did not make submissions in support of this Ground. However, in her Outline of Submissions Ms Li submitted:
…that the Tribunal made a jurisdictional error in the exercise of its statutory power by failing to assess the applicant’s claim of a well-founded fear of persecution according to law from the Applicant’s perspective as opposed to his parents perspective…
However, the fact of the matter is that the Applicant never made claims to protection in his own right. His claims to protection were derived from and dependent upon his mother’s claims that she would be persecuted and detained by the Chinese government for her religious beliefs and that as a consequence his welfare would suffer. In that respect and sense his claims to protection were considered and assessed.
It is true that at the Tribunal hearing the Applicant's father also claimed that without Ms Li’s care the Applicant could associate with bad elements in China and get addicted to gambling and drinking. The Tribunal considered that claim but at [107] of its Decision Record found that the likelihood that the Applicant would associate with bad elements and become addicted to gambling or drinking when he grew up could not reasonably be foreseen by either his parents or the Tribunal and amounted to mere speculation. No jurisdictional error is associated with this finding of the Tribunal.
In my view this Ground also has no reasonable prospects for success.
Conclusion
I do not consider that the proposed substantive Grounds are reasonably arguable or have reasonable prospects of success. Together with the extent of the delay and the lack of adequate explanation for the delay in filing an Application for judicial relief in this Court, I do not consider that it is in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time brought by the Applicant pursuant to s.477(2) is refused.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 18 May 2018
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