AWI16 v Minister for Immigration - [2017] FCCA 2001

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWI16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2001

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant applied for a Protection visa – Administrative Appeals Tribunal affirmed decision of a delegate of the Minister for Immigration not to grant a Protection visa – Applicant applied 16 days late to Court for judicial review – no reasonable explanation for delay even though delay short – substantive grounds impeaching Administrative Appeals Tribunal decision not reasonably arguable and not having reasonable prospects of success – application for extension under s.477(2) of the Migration Act 1958 (Cth) dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 477

Migration Regulations 1994 (Cth)

Cases cited:

Applicant:

AWI16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 895 of 2016

Judgment of:

Judge Dowdy

Hearing dates:

13 September 2016 and 18 November 2016

Delivered at:

Sydney

Delivered on:

25 August 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr D McLaren

Solicitors for the Respondents:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS

The Application filed in this Court on 15 April 2016 for an extension order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 895 of 2016

AWI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

The Applicant in this proceeding is a male citizen of Bangladesh aged 29 years, having been born on 31 December 1987.
By Application filed in this Court on 15 April 2016 he seeks to quash, and is taken to seek to have redetermined, a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 22 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 26 September 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

The Applicant arrived in Australia as an unauthorised maritime arrival by boat from Indonesia on 26 April 2013.
The Applicant then applied for a Protection visa on 8 July 2013.

Grounds for the Granting of a Protection Visa

A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2001
Decision Date: 25 August 2017

CaseChat Overview and Summary

This matter came before Dowdy J of the Federal Court of Australia concerning an application for an extension of time to seek review of a decision by the Administrative Appeals Tribunal. The applicant, AWI16, sought to appeal the Tribunal's affirmation of a delegate's decision to refuse him a Protection visa. The Tribunal had found that AWI16 was not a person in respect of whom Australia had protection obligations under either the Refugees Convention or complementary protection criteria.

The central legal issue before the Court was whether it was necessary in the interests of the administration of justice to grant AWI16 an extension of time to file his substantive application for review. This required the Court to consider established, non-exhaustive guidelines for such applications, including the reasonableness of the explanation for the delay, any prejudice to the Minister, the arguable nature of the substantive case, and the absence of a right of appeal if an extension were refused.

Dowdy J considered the applicant's stated grounds for delay, which included a delay in receiving a submission response and claims of mental depression leading to forgetfulness. The Court noted that the Tribunal's decision was based, in part, on the applicant's submission of a false material fact concerning his presence in Bangladesh in January 2014, when he was in fact in Australia. The Court was required to assess the prospects of success of the substantive case at a "reasonably impressionistic level" and consider whether the applicant had provided a reasonable explanation for the delay.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal was also concerned that in the pre-Tribunal hearing written submission of 8 January 2016, signed by the Applicant, he had claimed as follows:Material factsOn 19th of January 2014 AWI16 and his members of BNP were going from Dhamrai Bazar Road to Dhamrai College gate on behalf of Hartal and met face to face with Awami League Hartal Birodhi Members. They both started breaking, torturing and collusion at the place of occurrence. As a result both parties members became blood injured, blushed bombs and cocktails, broken cars, made fire on cars. During the confrontation AWI16 injured Rasel.(emphasis supplied) Nevertheless, of course, the fact was that the Applicant had arrived in Australia on 26 April 2013 and in January 2014 he was in Australia, not in Bangladesh. When this was pointed out to him at the Tribunal hearing the Applicant accepted that he was in Australia in January 2014. Neither the Applicant nor his registered migration agent at the Tribunal hearing could offer any explanation as to how this claim concerning the alleged incident in Bangladesh in January 2014 came into being. In the result the Tribunal affirmed the decision of the Delegate on the basis that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under either the Refugees Convention criterion or the complementary protection criterion and it affirmed the Delegate’s decision not to grant to the Applicant a Protection visa. Pursuant to s.477(1) of the Act an application for review of the Tribunal’s decision fell to be made by 29 March 2016. Accordingly, the Applicant requires an extension of time under s.477(2) of 16 days to bring his substantive application, and to satisfy the Court that it is necessary in the interests of the administration of justice to make such an extension order. The Grounds for the extension of time in the Application filed in this Court on 15 April 2016 are as follows:1.I made a submission to the minister which took while to get back to me. I got that decision on 4/04/20162.I am suffering mental depression hence I am forgetting dates, deadlines. In considering whether it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account and I do take them into account when considering the application for extension of time in this case. Those factors include:a)Whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;b)Whether there is any prejudice to the Minister;c)Whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]); andd)The absence of the applicant having a right of appeal if an extension is not granted. In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 [62] per Mortimer J.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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