AXQ16 v Minister for Immigration

[2017] FCCA 2808

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2808

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – application for extension of time – whether extension of time in the interests of the administration of justice – no reasonably arguable case found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 36, 425, 476, 477, 499.

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AXQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 953 of 2016

Judgment of: Judge Street

Hearing date: 16 November 2017

Date of Last Submission: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper Australia

ORDERS

1. The application for an extension of time is dismissed under s 477 of the Migration Act 1958 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 953 of 2016

AXQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the

   
   

   Tribunal”) made on 12 February 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Fiji and his claims were assessed against that country. The applicant arrived in Australia on a tourist visa on 1 April 2014. That tourist visa was granted on 18 March 2014. It was not until 2 July 2014 that the applicant applied for a protection visa.

2. The applicant claimed to fear harm from the Fijian military, who, the applicant claimed, was running the government. The applicant claimed to fear harm in light of two incidents in 2006 and 2007 in which the applicant claims he was detained and mistreated by the military whilst employed at a nightclub. The applicant claimed to fear harm from the military because his cousin was at the time of the application running for Parliament as a member of the Social Democratic Liberal Party. On 9 October 2014, the delegate found the applicant failed to meet the criteria for the grant of a visa.

The Tribunal’s decision

1. The applicant applied for review on 30 October 2014. By letter dated 17 December 2015, the applicant was invited to attend a hearing on 18 January 2016. The applicant appeared on that date to give evidence and present arguments. On that occasion the Tribunal gave the applicant a further period of time, until 4 February 2016, to provide any further material that the applicant wished to. No such material was provided by the applicant to the Tribunal.

2. The Tribunal, in its reasons dated 12 February 2016, identified the background to the application for review and set out the relevant law, including a reference to the PAM3 direction made under s 499 of the Act. The Tribunal summarised the applicant’s claims and evidence.

Refugee assessment

1. The Tribunal made reference to the lengthy delay between the incidents referred to by the applicant and the date of his protection application. Nonetheless, the Tribunal did accept the applicant was detained and mistreated by the military police in two incidents that occurred sometime in 2006-2007 for breaching curfew conditions that were in effect in that time.

2. The Tribunal was not satisfied in the circumstances that applied to the applicant’s cousin they were in any way analogous to the applicant. The Tribunal also made reference to seeking to explore with the applicant why he would be targeted given that the incidents occurred almost eight or nine years ago in a different political environment in Fiji. The Tribunal raised with the applicant during the hearing that the political situation is significantly different now to when the incidents occurred. The Tribunal was satisfied that the political situation is more stable, the election results have been accepted internationally as fair, and that the applicant is not a senior member, let alone a member of a political party, or of political interest to the Fijian authorities.

3. The Tribunal identified the country information and was satisfied that the situation in Fiji has vastly improved since the time of the incidents experienced by the applicant and since he left Fiji. The Tribunal found there is not a real chance or real risk of harm to the applicant in those circumstances. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied the applicant has a well-founded fear of persecution for a Convention reason as a result of having been previously detained and assaulted by military officers for breaching the then military regime’s curfew.

Complementary protection assessment

1. The Tribunal was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm due to his having previously been detained and assaulted by military officers or breaching the military regime’s curfew.

Conclusion

1. The Tribunal was not satisfied that the applicant is a person with respect to whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant does not satisfy the criteria under s 36(2)(a) of the Act. The Tribunal was not satisfied the applicant is a person with respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Application for extension of time

1. The application in this Court was filed on 20 April 2016, outside the 35-day period required under s 477. Accordingly, the applicant seeks an extension of time under s 477. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to consider an extension of time under s 477.

2. The Court explained to the applicant that there were three issues in this regard. First, whether the applicant had a satisfactory explanation for the delay. In that regard, the applicant identified having given the Tribunal his previous address at the time of the hearing and that was his explanation for the delay. The Court also explained the second issue was whether there was any prejudice to the first respondent and that in this case no particular prejudice was suggested by the first respondent. The Court explained that the third issue was the merits of the applicant’s application. The Court explained in that regard the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was affected by relevant legal error.

The nature of the hearing

1. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the applicant had an adequate explanation and a sufficiently arguable case on the merits, the Court would extend time under s 477 and fix the matter for hearing on another occasion. The Court explained that if not satisfied the applicant had a reasonably arguable case and a satisfactory explanation on the merits, the application for an extension of time would be dismissed with costs.

2. The Court explained it would have identified the evidence, then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The Court indicated to the applicant that subject to hearing from the solicitor for the first respondent, the Court was of the view that the applicant had a satisfactory explanation for the delay in the circumstances of the present case and that the real issue was the merits of the application.

Submissions from the bar table

1. From the bar table, the applicant maintained that he had been the subject of an incident that occurred at the workplace and that he was fearful that that could occur again. The applicant also wished to remain in Australia. The applicant also suggested from the bar table that there was other material he wished to put on and that he was not given adequate time by the Tribunal.

2. On the face of the Tribunal’s reasons, it appears the Tribunal did give the applicant a further opportunity to put on further material and within that timeframe no further material was provided by the applicant, nor was any request made for an extension of time.

3. Further, the letter sent to the applicant on 17 December 2015 expressly informed the applicant that on the material before the Tribunal, the Tribunal was unable to make a favourable decision on that information alone. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the application

1. The grounds of the application are as follows:

   1. The Tribunal committed jurisdictional error in that it failed to comply with s 425(1) of the Act.

   Particulars

   The Tribunal found that the applicant was detained and mistreated by the military police in two incidents for breaching curfew conditions that were in effect at that time.

   The Tribunal also agreed that, in practice, opposition political party representatives were routinely monitored and followed by military police and number of government agencies were used to harass opposition political parties, which were credible.

   The Tribunal however concluded, that since the political situation is more stable and a senior member, let alone a member of a political party will not be of political interest to the Fijian authorities, without examining the nexus between the applicant and his cousin, and the role of the military police in targeting family members of senior opposition figures to compel obedience to the military control of the country.

   2. The Tribunal failed to address an issue which arose on the material before it being whether the treatment of the applicant, for not complying with the dictation of the military police, and seen to be one not in support of the military would be degrading treatment or punishment. The Tribunal simply concluded that the political conditions have become stable despite material confirming the motive of the military police.

   3. The Tribunal failed to comply or adequately and objectively deal with Ministerial Direction Number 56 in contravention of s 499(SA) of the Act.

   Particulars

   The Tribunal failed to take into account PAM 3 Protection Visas [complementary] protection guidelines when it made a finding on whether the treatment that the applicant would face on return to Fiji would constitute significant harm within the meaning of the Migration Act.

   4. The Tribunal failed to take into account relevant considerations.

   Particulars

   The Tribunal did not engage in its statutory task by objectively considering the trauma the country has been under military rule by simply treating that an election has transformed it. When in reality the same military, with the same objective, having no respect to human rights is back in power in a new democratic garb.

Consideration of the grounds

Ground 1

1. In relation to Ground 1, on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. In respect of s 425, the applicant was invited to attend a hearing, and taking into account the Tribunal’s reasons, the Court finds the applicant had a real and meaningful hearing before the Tribunal. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims and evidence.

2. The Tribunal accepted much of the claims or assertions of the applicant, but it made adverse findings that were open to it taking into account country information and the changed circumstances in Fiji. Those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. There is no basis to find the alleged breach of s 425(1) of the Act as being reasonably arguable.

Ground 2

1. In relation to Ground 2, the Tribunal made dispositive findings in respect of the applicant’s claims. There was no claim in relation to the applicant’s treatment in respect of the conduct that was not taken into account. No arguable case of jurisdictional error arises under Ground 2.

Ground 3

1. In relation to Ground 3, the Tribunal’s reasons expressly refer to PAM3. There is no proper basis to find that there is any arguable case of jurisdictional error in respect of Ground 3.

Ground 4

1. Ground 4 is, in substance, an invitation to this Court to engage in impermissible merits review. There is no relevant consideration that the Tribunal failed to take into account and the particulars in support of Ground 4 take issue with the adverse findings by the Tribunal. No arguable case of jurisdictional error is disclosed by Ground 4.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. Whilst the Court is willing to accept that the applicant has a satisfactory explanation for the delay, the real issue in the present case under s 477 are the merits of the application. For the reasons given above, the Court is not satisfied that the grounds identify any reasonably arguable case of jurisdictional error by the Tribunal.

2. Nothing said by the applicant identified any sufficiently arguable case of jurisdictional error to warrant an extension of time under s 477. The Court finds that the merits of the application do not warrant an extension of time under s 477. The Court finds that the merits of the present case are sufficiently lacking whereby it is not necessary in the interests of the administration of justice to make an order extending time under s 477.

3. The request for an extension of time under s 477 is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2017