AWI16 v Minister for Immigration
[2017] FCCA 2001
•25 August 2017
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: M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 |
| 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 in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] 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.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
The Applicant attended an interview with the Delegate on 11 September 2013. His claims for protection were set out in a Statement dated 24 June 2013 and were to the effect that he was a Sunni Muslim who supported the Bangladesh National Party (BNP) and had been a member for 7 years of both the BNP and a club run by the BNP named the Sonali Club, which he had attended for sporting and other activities since he was young.
The BNP is opposed to the Awami League (AL) and in early 2013 he was caught by the AL, blinded, beaten on his head and lost consciousness and was taken to a hospital. He claimed to have injuries all over his body and to have scars on his head, knee and toe and it took him two months to recover. He heard from others that the AL was going to kill him and he stayed at home for 3 months after he had recovered. He decided to leave Bangladesh and he feared he would be beaten to death by the AL if he returned to Bangladesh. The AL wanted to kill him because he supported the BNP.
In the result the Delegate was unimpressed with the credibility of the Applicant. In her Decision Record of 26 September 2014 she noted a number of inconsistencies between his written claims at his Entry Interview on 8 May 2013 and his Statement of 24 June 2013 and his oral testimony at his interview with her on 11 September 2013. She considered that he had fabricated and embellished certain of his claims with the intention of creating the profile of a refugee. She found that the Applicant’s description of his participation in BNP activities was lacking in detail and did not accept that he was a politically active member of the BNP or that he would be politically active if he were to return to Bangladesh.
The Delegate rejected the Applicant’s claim that he was kidnapped and beaten by AL supporters or had a political profile that would bring him to the adverse attention of the AL if he returned to Bangladesh or that he would be of any adverse ongoing interest to AL supporters if he returned to Bangladesh. Accordingly, she was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch. 2 to the Migration Regulations 1994 (Cth) (the Regulations) and she 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 1 October 2014. He appeared at a hearing before the Tribunal on 8 February 2016 to give evidence and present arguments with the assistance of his registered migration agent and an interpreter in the Bengali and English languages.
At [20]-[36] of its Decision Record the Tribunal set out the Applicant’s claims for protection including the claims made in a pre-Tribunal hearing written submission dated 8 January 2016 and as given by the Applicant to the Tribunal at the hearing.
At [38]-[63] it engaged in consideration and assessment of the claims for protection and at [64]-[66] it recorded its conclusions on the credibility of the Applicant. In the result, the Tribunal was of the view that the Applicant’s claims were not credible and they had been fabricated in their entirety in the hope of securing residency in Australia. The Tribunal did not accept that the Applicant was ever an active BNP member or that he was abducted and targeted by the AL because of his involvement with the BNP, and it rejected the Applicant’s claims that he had attracted the adverse attention of the AL in their entirety.
The Tribunal found that the Applicant was unable to identify the colours of the BNP flag and that his evidence about his alleged involvement in the BNP was extremely vague and that he was unable to provide any details about the policies of the BNP or how the BNP differs from the AL.
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 facts
On 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.
Application for Extension of Time to Apply to this Court
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 4/04/2016
2.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]); and
d)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.
Hearing in Court on 13 September 2016
On 20 May 2016 the application for extension of time and the substantive hearing were set down to be heard before me on 13 September 2016.
At the hearing the Applicant appeared in person with the aid of a Bengali interpreter and I gave leave to a friend of his to appear in the capacity of a McKenzie friend. Mr McLaren appeared for the First Respondent.
At the commencement of the hearing the Applicant stated that he was very sick and unable to understand things and he sought an adjournment and tendered two medical certificates, one being dated 31 August 2016, the other dated 6 September 2016. These medical certificates indicated that the Applicant felt anxious and depressed in relation to his pending visa status and suffered from generalised anxiety disorder with major depression with suicidal thoughts and irritable bowel syndrome to due to excessive anxiety.
No previous notice that an adjournment application would be made had been given either to the Court or to the lawyers for the First Respondent and the two medical certificates were only first produced at the hearing.
In response to my enquiry as to how long an adjournment he sought, he responded himself in the English language by seeking 1 year.
Mr McLaren for the First Respondent opposed any adjournment and in the result I refused the adjournment for the following reasons:
a)It is relatively common for parties and witnesses before Courts and administrative tribunals to be stressed or to suffer from psychological disorders or psychiatric illness. However, these conditions of themselves are not determinative of fitness to participate in a hearing: SZMSF v Minister for Immigration [2010] FCA 585 at [32] per Flick J; SZMSA v Minister for Immigration [2010] FCA 345 at [32] per Gilmour J approving [100] of the decision of the primary magistrate under appeal and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 16 [19] and 49-50 [126]. However, the medical evidence tendered by the Applicant in support of his adjournment application did not in my view establish that the Applicant was unable to meaningfully participate in the hearing at which he had the assistance of an interpreter and his McKenzie friend.
b)From my own observation of the Applicant in Court I considered that he was able to meaningfully participate in the hearing. He answered responsively through the interpreter and he had been able to coherently articulate his adjournment application through the interpreter and himself in English to inform me that he wanted a 1 year adjournment; and
Accordingly, I considered it in the interests of justice that the hearing proceed and that the adjournment application be refused.
Notwithstanding the refusal of the adjournment I attempted to ameliorate any disadvantage suffered by the Applicant by hearing Mr McLaren make the First Respondent’s submissions first and then by making the following order at the conclusion of the hearing on 13 September 2016:
1.Stand the further hearing of this matter over to Friday, 18 November 2016 at 2.15pm at Court 8.3, 80 William Street, Sydney and on that occasion the applicant will address me generally, both in support of his application and in response to the First Respondent.
Hearing in Court on 18 November 2016
Mr McLaren again appeared on behalf of the First Respondent and the Applicant appeared with his McKenzie and with the aid of an interpreter.
Once again the Applicant sought an adjournment, in this instance for a period of “at least 6 months”.
He tendered a further medical certificate dated 15 November 2016 which repeated that he suffered from generalised anxiety disorder with major depression, suicidal thoughts, irritable bowel syndrome and in addition insomnia. The Applicant also tendered written submissions “asking for mercy and wanting more time to prepare my case” for three stated reasons.
The three reasons related to complaints about his previous migration agent, his depression and heavy medication and a complaint about the interpreter who assisted him at the Tribunal hearing. He also indicated that he wanted to get more evidence from Bangladesh.
I refused any adjournment. In my view the Applicant had already received ample time to prepare his case. He had also had more than sufficient opportunity to obtain a transcript of the Tribunal hearing if he wished to refer to anything said or not said at that hearing in support of his Grounds. By consent order 3 of 20 May 2016 he had accepted the responsibility of obtaining a transcript of the Tribunal hearing, verified by affidavit, but he had not tendered any such transcript.
I remained unpersuaded by the medical evidence that he could not meaningfully participate in the hearing before me and there was no evidence that if an adjournment was granted for 6 months that the Applicant would be in any different or better position to meaningfully participate in a hearing at the expiration of that time.
Accordingly, I considered that it was not in the interests of the administration of justice to grant any adjournment.
Consideration of Extension Application
The delay of 16 days is not great. There is no real or actual prejudice to the Minister and the loss of the Applicant’s right of appeal to the Federal Court of Australia (if extension is not granted) has a militating tendency in favour of a grant of an extension.
On the other hand, I do not consider that the Applicant has given an adequate explanation for his delay, albeit that it is for a short period. I infer and find that he made a deliberate decision to apply for Ministerial intervention rather than to apply to this Court. His application for Ministerial intervention was made by his migration agent by a request dated 16 March 2016. He could have made this application for Ministerial intervention whilst at the same time applying within time to this Court for judicial review of the Tribunal’s decision.
He claims as a ground for extension that he suffers mental depression and that he forgets dates and deadlines. However, he has not asserted that he was in truth unaware of the 35 day time period prescribed by s.477(1) of the Act or how or why any forgetfulness on his part led to his non-compliance with the prescribed 35 day time period. He filed his Application to this Court on 15 April 2016 himself without the intervention or assistance of any lawyer and within 11 days of receipt on 4 April 2016 of the refusal of the Ministerial intervention request.
I consider the following paragraphs from the judgment of Farrell J in WZAVL v Minister for Immigration and Border Protection [2016] FCA 334 at [33]-[35] to be generally applicable to the Applicant’s position here:
[33]An applicant’s choice to pursue Ministerial intervention rather than to exercise rights available to him to continue to challenge a Tribunal’s decision is a deliberate forensic choice and may be taken as an implicit acceptance that the Tribunal’s decision was not to be the subject of challenge with the result that there is no satisfactory explanation for the delay in exercising appeal rights: M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293 per Black CJ, Sackville and Sundberg JJ at [16]-[24] and the cases there cited. The applicant appears to have been unrepresented in relation to his migration matters, although he does appear to have representation in relation to his compensation claims, and he plainly does not accept the Tribunal’s decision. However, he has not claimed that he was unaware of his appeal rights and those factors do not detract from the force of the Full Court’s reasoning.
[34]As pointed out by Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 at [42], there is no reason in law why an application for judicial review could not have been made at the same time as the application to the Minister. The terms of s 417, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such an application where other avenues of possible relief are available as of right.
[35]In accordance with this authority, the length of the delay and the circumstances in which the delay occurred are a sufficient basis to dismiss the application for an extension of time.
I now turn to consider the most important factor in considering whether or not to extend time, being whether or not the Applicant has reasonable prospects of success for his substantive Grounds.
Grounds of Attack on Tribunal Decision in this Court
The substantive Grounds relied upon by the Applicant in the Application filed in this Court on 15 April 2016 are as follows:
1.I am seeking refugee status; based on political situation in Bangladesh.
2.I am also currently in depression and under medication for past 6 months.
3.I am afraid to go back to Bangladesh as Awami League – the current government supports are in a plan to harm or may be kill me.
Consideration
Grounds 1 and 3
These Grounds appear to seek a merits review which is not available in this Court and do not constitute proper grounds by which jurisdictional error affecting the Tribunal decision may be asserted.
Ground 2
Ground 2 asserts that for a period extending back for 6 months from 15 April 2016 the Applicant suffered from depression. That 6 month period encompasses the Tribunal hearing on 8 February 2016 and so this Ground may be interpreted as alleging that depression made him unable to meaningfully participate in the Tribunal hearing.
However, in my view this Ground must also fail for the following reasons.
First, the Applicant has not tendered a transcript of the Tribunal hearing to attempt to establish his inability to meaningfully participate in it on 8 February 2016, notwithstanding that the onus lay on him to do so: see [33] above.
Second, there is no evidence that either the Applicant or his migration agent asserted to the Tribunal member that the Applicant was unable to meaningfully participate in the hearing nor is there any mention in the Decision Record of the Tribunal that the Tribunal member was informed that the Applicant suffered from depression. There was no request made to the Tribunal to adjourn the hearing.
Of course, the fact that the Tribunal had no knowledge of any alleged incapacity of the Applicant to attend the Tribunal hearing would not necessarily be conclusive against a finding of jurisdictional error or failure to accord procedural fairness. This is because if an applicant before the Tribunal can establish that he or she was in truth not in a fit state to appear and represent himself or herself before the Tribunal, the invitation under s.425 of the Act is not a meaningful one, even if the Tribunal is through no fault of its own unaware of the alleged unfitness and otherwise blameless: see Minister for Immigration v SCAR (2003) 128 FCR 553 and Gageler and Keane JJ in Wei v Minister for Immigration (2015) 327 ALR 28 at 33 [23]. However, the Applicant has not tendered any retrospective evidence in this Court to establish that his mental health or depression disabled him from meaningfully participating in the Tribunal hearing on 8 February 2016.
Third, the Decision Record of the Tribunal evidences that in fact the Applicant did meaningfully give evidence and present arguments in support of his claims and that he understood and meaningfully responded to questions put to him by the Tribunal: see [28]-[36] of the Decision Record.
The Applicant bears the onus of establishing that he was unfit to meaningfully take part in the Tribunal hearing of 8 February 2016: see Flick J in SZMSF v Minister for Immigration [2010] FCA 585 at [17] and Gilmour J in SZMSA v Minister for Immigration [2010] FCA 345 at [108]. In my view, he has failed to do so.
Conclusion
I do not consider that the substantive Grounds relied upon by the Applicant are reasonably arguable or have reasonable prospects of success and in all the circumstances I consider that it is not 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 made by the Applicant pursuant to s.477(2) is refused.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 25 August 2017
Corrections
In paragraph 19(c) “SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574” now reads “SZTES v Minister for Immigration [2015] FCAFC 158”.
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