Axz16 v Minister for Immigration
[2018] FCCA 991
•24 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXZ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 991 |
| 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 a 67 day extension of time 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.477, 476, 36 |
| Cases cited: Bechara v Bates [2018] FCA 460 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 |
| Applicant: | AXZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 970 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr M. Cleary of Counsel |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 22 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 970 of 2016
| AXZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Nepal aged 41 years, having been born on 11 August 1976.
By Application filed in this Court on 22 April 2016 he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 67 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 (Tribunal) dated 11 January 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 9 October 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived in Darwin on 28 March 2013 as an unauthorised maritime arrival. He lodged his Protection visa application on 30 September 2013.
Claims for Protection
In his Statutory Declaration declared on 11 September 2013 (Statutory Declaration) which formed part of his Protection visa application the Applicant claimed to have been born in Nepal, to be of Brahmin ethnicity and to be a Hindu. He was married in Nepal on 1 December 1998 and has two daughters now aged 17 and 14.
The Applicant claimed to fear returning to Nepal because his life would be in danger if he returned there. In the year 2000 he had become a fugitive as he was targeted by a group called Moyos Ysel who wanted him to join its campaign against the Nepalese Government. The Moyos Ysel group was a Maoist rebel militant group and its representatives came to his house wanting him to give them money, and when he told them that he did not have such money they threatened to kill him. In response the Applicant fled to India.
When he got to India he remained in hiding and contacted his wife who told him that representatives of the Moyos Ysel group had come to their house and demanded the money. He remained in India for two years and then went back home after his wife had told him that representatives of the Moyos Ysel group had not been around lately.
The Applicant further declared that since the year 2000 he had been to India on many occasions to escape from the Moyos Ysel group.
The last time he fled from Nepal to India in order to escape from the Moyos Ysel group was in February 2013 when he decided not to return to Nepal again but to flee to Australia to seek protection and he met a smuggler who organised his trip. He claimed to fear that if he returned to Nepal the Moyos Ysel group would kill him and the Nepalese Government would not protect him against them.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the 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 Delegate
The Applicant attended an interview with the Delegate on 18 September 2014.
At the interview, the Delegate pointed out to the Applicant that no country information had been found by him referring to any group operating in Nepal called Moyos Ysel. The Applicant then clarified that he was targeted by the Young Communist League (YCL) which was the youth wing of the Unified Communist Party of Nepal (Maoists). The Delegate proceeded on the basis that “Moyos Ysel” was a phonetic mistranslation of “Maoist YCL”.
The Applicant at the interview stated that he had spent the majority of his time from 2001 to 2013 in India, returning to Nepal for periods of up to a week. He had lived in India legally and did not need a visa to be there. He claimed that he was initially approached by the Maoists in November 2000 and departed Nepal in 2001. Maoists would approach him “every 7 to 10 days in the night time, when they were passing through”, and would ask him to join the revolution.
After the Applicant fled to India his wife was tortured by the YCL and in 2003 they shot at her, hitting her hair, which caused her to faint with fear. Following this event the Maoists “continued to ask the applicant’s wife for money and to see the applicant himself”. In 2007 he was asked by the Maoists for 400,000 – 500,000 rupees, and again fled to India.
He first decided to come to Australia in 2008 and worked in India from 2008 – 2013 to save money to pay for the trip.
He was targeted by the Maoists in 2013 in Nepal because he still refused to join them. He claimed that he could not move to another part of Nepal as the YCL would know he is back, and for financial reasons.
In his Decision Record the Delegate noted that the Applicant might have a “right” in terms of s.36(3) of the Act “to enter and reside in” India.
However, the Delegate did not make any determination with respect to s.36(3) of the Act because he was of the view that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and he refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal on 27 October 2014 for a merits review of the Delegate’s decision.
He gave a copy of the Delegate’s decision to the Tribunal and appeared at a hearing before the Tribunal on 6 January 2015 to give evidence and present arguments.
In the result, the Tribunal affirmed the Decision of the Delegate not to grant to the Applicant a Protection visa.
At [13] of its Decision Record the Tribunal recorded the Applicant’s claims to protection as made by him in his Statutory Declaration and at the interview with the Delegate.
At the hearing the Applicant told the Tribunal that his wife and two children lived in Nepal with the Applicant’s maternal uncle and that he had no other close relations in Nepal other than his mother: see [14] of the Decision Record.
The Tribunal recorded the relevant factual evidence given by the Applicant at the hearing at [15] – [19], as follows:
[15] The applicant said that he left Nepal and went to India in about 2000 because the Maoists wanted him to join them for training. He confirmed that, as he had told the Department, he had lived in New Delhi, India from this time until leaving for Australia in 2013 apart from a number of short visits to his family in Nepal. He said that he visited Nepal 'about 3 or 4 times’ from 2000 to 2008, when he moved back from India to his village in Kaski. After staying with his family for 'about 2 or 2Y, months' he returned to India, where he continued to live until he decided to come to Australia.
[16] The applicant went to Nepal in 2012 to tell his family that he was going to Australia and 'they would have to look after themselves'. He then returned to India to make his travel arrangements.
[17] The applicant told the Tribunal that he had left Nepal in 2000 because of threats made by the Maoists who were seeking to force him to join them in their fight with the Nepalese government. He said that he remained in India because his family told him that the Maoists were continuing to look for him, and reiterated the claims made at his interview with the Department that his wife had been attacked and injured by the Maoists in 2003. He was able to visit the family only briefly from India because he had to avoid the Maoists.
[18] The applicant told the Tribunal that the last incident involving any physical threat to his family by the Maoists was in 2007. He said that they had continued to ask his family for money since that time, but there had been no attacks. He continued to claim, however, that the Maoists are 'still after me'.
[19] The applicant told the Tribunal that he lived legally in India and was able to travel freely between India and Nepal whenever he wished to do so because As a Nepalese citizen he did not need a visa. He said that he had never experienced any problems living in India, and confirmed that all of his claims related to problems in Nepal.
At [21] the Tribunal recorded that it put to the Applicant that Australia was not required to provide him with protection if he had a right to enter and reside in India without fear of persecution, or of being forcibly returned to Nepal by India. In response the Applicant stated that he did not want to go back to India.
At [22] – [25] of its Decision Record the Tribunal recorded country information as to the situation in Nepal and at [26] its acceptance that recent country information indicated that the situation in Nepal was presently unstable and there was a risk of further conflict between the Nepalese government and the Maoists, but that there had been no reported deaths as a result of activities of the Maoists in the last two years. At [34] and [36] the Tribunal noted information from DFAT and from the website of India’s Bureau of Immigration to the effect that a citizen of Nepal entering India by land or air does not require a passport or visa for entry, Nepalese nationals are granted an unlimited stay in India, there are no restrictions on their ability to remain, reside or work in India, or to attend school or access health services, and that over some 10 – 12 million Nepalis live in India, with over 5 million Nepalese people working and owning property in India.
At [27] the Tribunal expressed its concerns about the credibility of the Applicant’s claims to fear persecution at the hands of the Maoists but at [29] stated that in its view it was unnecessary to make findings in relation to these fears because of its finding of the applicability of s.36(3) of the Act to the Applicant’s claims.
Subsection 36(3), and ss.36(4) – 36(5A) which qualify it, provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
At [32] – [34] the Tribunal referred to the decision of McKerracher J in the Federal Court of Australia in SZUDE v Minister for Immigration (2015) 235 FCR 65 (SZUDE) and to a passage from the judgment of Black CJ in NBGM v Minister for Immigration (2006) 150 FCR 522 at 530 [20] in support of the approach, which it adopted, to the effect that it could dispose of the application for review by first making a decision as to the applicability of s.36(3) without having considered and determined whether the criteria under s.36(2) of the Act had been satisfied. The decision of McKerracher J in SZUDE is authoritative and was confirmed by the Full Court of the Federal Court in Minister for Immigration v SZUSU (2016) 237 FCR 305 at 306 [3] per Tracey, Flick and Katzmann JJ as follows:
[3] The first respondents in each appeal are both Nepalese nationals who claim to fear persecution in Nepal: SZUYA as a member of a particular social group by the Tribunal described as “victims of the rebel Maoists in Nepal”, and SZUSU by reason of his imputed political opinion as an opponent of the Maoists. In each case the Tribunal expressed doubts about the respondent’s credibility but considered it unnecessary to resolve those doubts because he had not taken all possible steps to avail himself of what the Tribunal found was his right to enter and reside in India. There is no dispute that it was open to the Tribunal to dispose of the applications in this way without first determining whether any of the criteria in s 36(2) had been satisfied: see SZUDE v Minister for Immigration and Border Protection (2015) 235 FCR 65 (McKerracher J).
At [35] the Tribunal correctly noted that the applicant in SZUDE had never lived in India, whereas in the present case the Applicant had spent almost all of the period from 2000 until 2013 living and working in India before he came to Australia. The Tribunal stated at [35] of its Decision Record as follows:
[35]The applicant in SZUDE had never lived in India and had not himself attempted to enter that country. In this case, on his own evidence the applicant spent almost all of the period from 2000 until he came to Australia in 2013 living and working in India. His own evidence is that he lived legally in India, that he was able to travel freely between India and Nepal whenever he wished to do so, and that he would be able to return to India should he choose to do so. He also told the Tribunal that he had never experienced any problems living in India, and that all of his claims related to problems in Nepal. He simply said that he did not want to go back to India because it is not his country.
In these circumstances the Tribunal came to the view that on the available information the Applicant had a right to enter and reside in India and that s.36(3) of the Act applied. The Tribunal held on the basis of the Applicant’s own evidence that he had no subjective fear of being persecuted in India or of refoulement from India and that ss.36(4) – (5A) of the Act did not apply, and it accordingly affirmed the decision of the Delegate not grant a Protection visa to the Applicant.
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 as follows:
1. The Applicant applied for Ministerial Intervention however the Ministerial Intervention Unit did not even refer his request to the Minister referring to the new direction.
2. The Applicant was under the impression that the Minister would consider his request but the Department failed to refer his request to the Minister.
Grounds of Attack on Tribunal Decision in this Court
The substantive Grounds relied upon by the Applicant are as follows:
1. The Second Respondent made jurisdictional error by failing to provide the Applicant with a reasonable opportunity to respond to credibility concerns raised regarding the Applicant's fear of persecution in Nepal.
Particulars
a) The Second Respondent at [27] to [28] made findings against the Applicant's credibility but failed to give the Applicant an opportunity to respond to them.
2. The Second Respondent made jurisdictional error by failing to comply with S 424AA of the Migration Act 1958 by not providing the applicant an opportunity to make submissions regarding credibility concerns mentioned at Ground 1 and its particular above.
3. The Second Respondent made jurisdictional error by failing to take into account relevant considerations.
Particulars
a) The Second Respondent failed to consider whether it was appropriate for the Applicant's family to move to India and whether, despite the Applicant previously living in India, his wife and children were at risk or persecution or significant harm in India or were at risk of being returned to Nepal.
b) The Second Respondent failed to consider the treatment and discrimination faced by Nepalese in India.
Consideration of 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 necessary extension of time of 67 days is not particularly lengthy for this class of litigation. However, in my view the Applicant has failed to give an acceptable explanation for his delay, which is merely that he was seeking Ministerial intervention. The Applicant does not suggest that he was unaware of the applicable time limit of 35 days. In his affidavit affirmed on 21 April 2016 he simply stated in [3] as follows:
[3]I say that I did not apply to the Federal Circuit Court within the time limit because I was seeking Ministerial Intervention however the Department of Immigration and Border Protection did not even refer my request to the Minister. Annexed and marked “B” is the Notification of Ministerial Intervention request outcome dated 4 April 2016.
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. It is true that he acted promptly in filing his Application in this Court after his application for Ministerial intervention was finalised. Nevertheless the fact remains that 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.
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 of Substantive Grounds
Ground 1
First, the Tribunal did not make any factual findings adverse to the credibility of the Applicant at [27] – [28] of its Decision Record. In those paragraphs the Tribunal noted concerns about the credibility of his claims to fear persecution at the hands of Maoists in Nepal and his claims that his wife had been physically assaulted by the Maoists. However, at [29] – [30] the Tribunal stated “that it is unnecessary to make findings on these matters” because it had decided to consider first the applicability of s.36(3) of the Act to the review.
Second, the Tribunal was under no obligation to advise the Applicant that his credibility or the truthfulness of his claims were not necessarily accepted. That was not part of the Tribunal’s role. The role of the Tribunal was as relevantly stated by Hayne J in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 – 662 [265] – [266] and [268]:
[265]………….The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal's proceedings.
[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
[268] Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.
To similar effect in SZBEL v Minister for Immigration (2006) 228 CLR 152 at 165 – 166 [47] – [48] the High Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
[47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…
[48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry :
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Third, the Tribunal was entitled, on the authority of SZUDE to first determine the applicability of s.36(3) of the Act, and once it was so satisfied the Tribunal did not need to make a decision under s.36(2) and the credibility of the Applicant’s claims regarding fear of persecution in Nepal became irrelevant.
Accordingly, this Ground has no reasonable prospects for success.
Ground 2
This Ground also has no reasonable prospects for success for the same reasons that Ground 1 fails. As a result of the Tribunal proceeding in the way that it did the Applicant’s credibility regarding his claims of persecution became irrelevant and in any event there were no actual findings made by the Tribunal in that regard.
Ground 3
This Ground also has no reasonable prospects for success.
First, s.36(3) of the Act required consideration of Australia’s protection obligations to a “non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in… any country apart from Australia”. The reference to a “non-citizen” in the context of s.36(3) is a reference to the Applicant himself, not a reference to his wife and children. Under this provision the Tribunal was required to consider whether the Applicant, not his wife and children, had a right to enter and reside in India.
Second, the Applicant never claimed either in his Statutory Declaration, at the interview with the Delegate or before the Tribunal that either he, his wife and children, or Nepalese generally were at risk of persecution, significant harm or discrimination in India or were at risk of being returned to Nepal. To the contrary, his claims were predicated on India being a safe refuge for himself and to where he repaired when under imminent threat from Maoists in Nepal. He told the Tribunal “that he had never experienced any problems living in India and that all his claims related to problems in Nepal”: see [29] above.
Accordingly, in my view this Ground fails to make good that the Tribunal failed to take into account relevant considerations.
Conclusion
I do not consider that the proposed Grounds relied on 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 forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 24 April 2018
0
16
2