AYV15 v Minister for Immigration

[2016] FCCA 3437

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3437

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (class XA) visa – application filed out of time – extension of time sought pursuant to s.477 of the Migration Act 1958 (Cth) – leave denied – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.426A, 476, 477(1), 477(2)

Cases cited:

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
SZTSZ v the Minister for Immigration &Anor (2014) FCCA 298
WZASC v the Minister for Immigration & Anor (2013) FCCA 1452

Applicant: AYV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1294 of 2015

Judgment of: Judge Hartnett

Hearing date:	4 November 2016
Delivered at:	Melbourne

Delivered on: 4 November 2016

REPRESENTATION

The Applicant:	In Person
Counsel for the Respondents:	Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) filed on 9 June 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1294 of 2015

AYV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 9 June 2015 for an extension of time to apply for judicial review under s.476 of the Migration Act 1958 (Cth) (‘the Act’). The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 10 February 2014 which affirmed a decision of a delegate of the First Respondent not to grant the applicant a protection (class XA) visa (‘the visa’).

2. The grounds of application for an extension of time as set out in the application filed are as follows:-

   “I applied to the Minister of Immigration after my Refugee Review Tribunal.  I am getting threats in India by local mafia.  They are also giving threats to my family.  I didn’t get my decision record on time so I can apply, and I also don’t have much knowledge about Federal Circuit Court on that time.”

3. The grounds of the substantive application are as follows:-

   “I am not satisfied with the decision which made by Minister of Immigration and Border Protection.  Now I am applying to Federal Circuit Court to find my right decision.  I am getting too much threats from local mafia.  I already explain everything to Immigration Minister.  Now I would like to explain to Federal Circuit Court about my family situation.  I explain everything for Ministerial Intervention.”

4. Filed with the initiating application was an affidavit of evidence affirmed by the Applicant on 9 June 2015.  The Applicant’s evidence is relevantly as follows:-

   “…

   (2) I am unemployed and my bridging visa does not allow me to work and earn money.

   (3) I am living on the generosity of friends in Australia and from money sent by relatives from India.

   (4) I am not able to afford a lawyer to represent me in the application and subsequent steps and proceedings in the respect of the application I filed.

   (5) I borrowed money from friends in Australia and from relatives from India.

   (6) I tried to borrow more money from friends but unable because I also did not return that money which I borrowed before.

   …”

5. On 14 October 2015 Registrar Burns made various procedural orders by consent in the proceedings.  On that occasion the name of the Second Respondent was amended to the Administrative Appeals Tribunal.  Additionally, Registrar Burns ordered that the Applicant file and serve any amended application and written submissions prior to today’s date.  The Applicant has not filed any amended application nor written submissions.  The First Respondent has, in accordance with the orders of Registrar Burns, filed written submissions and did so on 27 October 2016.  The First Respondent seeks a dismissal of the application for an extension of time with costs.

6. The First Respondent was represented in the proceedings this day and the Applicant appeared as a litigant in person.  The Applicant was assisted by an interpreter in the Punjabi language.  The Court has before it the evidence as contained in the court book filed by the First Respondent on 27 January 2016.  The Court confirmed with the Applicant firstly that he had been served with a copy of the First Respondent’s written submissions and secondly that those submissions had been translated to him.  He confirmed that had occurred.  The Applicant was then given an opportunity to make oral submissions to the Court.

7. The Applicant commenced the proceedings by applying for an adjournment of the proceedings.  That adjournment application was opposed by counsel for the First Respondent.  The Court refused the request for an adjournment and indicated to the Applicant that he needed to proceed with his application for an extension of time and the substantive application this day. 

8. The Tribunal decision is dated 10 February 2014. The reasons, in brief, for the adjournment application being opposed are that the Applicant filed his substantive application on 9 June 2015, some 449 days out of time. Accompanying the application was the Applicant’s affidavit to which I have referred above in which the Applicant deposed to not being able to afford a lawyer to represent him in the proceedings.  Part of his request for an adjournment was that he required the services of a lawyer to proceed. 

9. The Applicant placed no evidence before the Court as to any attempts made by him to obtain the services of a lawyer, nor, if there were such attempts the outcome of any such attempts. There was no evidence that went to any prospect of him obtaining legal assistance in the reasonably foreseeable future.  The Applicant also referred to his health as the reason that he had filed no written submissions in accordance with the orders of Registrar Burns.  In response to that claim he was given the opportunity to make oral submissions to the Court this day as to the substantive matters. Essentially he did not address those issues.  He restated his need to obtain the services of a lawyer. 

10. There was no medical evidence before the Court by the Applicant as to any medical condition suffered by him at all, let alone any condition that would have precluded him from participating in these proceedings or which went to his inability to participate because of medical reasons this day that might have founded an adjournment application being granted.

11. Any application in relation to the Tribunal decision of 10 February 2014 should have been made by the Applicant within the 35-day period specified by s.477(1) the Act. That is, by 17 March 2014. Whilst s.477(2) of the Act allows the Court in certain circumstances to order that the 35-day period be extended, the Court determines in the circumstances of this case that it is not appropriate to so extend the 35-day period.

Background

1. The Applicant is a citizen of India.  He first arrived in Australia on 2 July 2007 holding an Indian passport and a class TU (subclass 572) student visa which expired on 4 November 2009.  On 4 November 2009 the Applicant was granted a further stay on his student visa until 15 March 2011. 

2. On 11 March 2011 the Applicant applied for a class TU (subclass 572) student visa.  On 16 September 2011 this visa was refused as there were gaps in the Applicant’s study history which were not satisfactorily explained; the Applicant was not enrolled in an acceptable course of study at the time; and the delegate was not satisfied that he was a genuine Applicant for a student visa.

3. On 7 October 2011 the Applicant requested a review of the delegate’s decision with respect to his student visa determination with the then Migration Review Tribunal (MRT). On 20 January 2012 the MRT found it had no jurisdiction with respect to the review as the application for review had not been lodged within the relevant timeframe.  On 29 February 2012 the Applicant’s bridging visa A expired.  The Applicant remained in Australia unlawfully from 29 February 2012 to 7 March 2013.

4. On 7 March 2013 the Applicant lodged an application for a protection visa which is the subject of these proceedings. 

5. The First Respondent’s submissions accurately set out the Applicant’s claims as stated in his protection visa application forms.  In summary they are as follows:-

   a)he will be killed if he returns to India because his family took out a high interest loan with a local landlord to allow him to study in Australia which he was unable to repay on time;

   b)the local landlord had hired some “very cruel” people to collect the money; and

   c)the authorities cannot protect him.

6. On 12 March 2013 the Department of Immigration and Border Protection (the Department) wrote to the Applicant acknowledging receipt of his protection visa application and inviting him to contact the Department within seven days of receipt of that correspondence to arrange an interview.  On 20 August 2013 the Department received notification that the Applicant had retained the services of a migration agent.  

7. On 12 September 2013 a letter was sent to the Applicant’s migration agent notifying the Applicant that the delegate had refused to grant the Applicant a protection visa.  The delegate’s decision noted that the Applicant had not contacted the Department to arrange an interview or provided any further details of his claims and that it was not required to wait indefinitely for the Applicant to respond with further details.  The delegate had serious credibility concerns with regard to the Applicant based on its consideration of his migration history, lack of detail in his claims and lack of documentary evidence to support his claims.  The delegate also noted that the Applicant had remained in Australia for over five and a half years before applying for protection and that Departmental records indicated that he had returned to India during this period on 27 December 2008, returning to Australia on 14 February 2009.

Tribunal Proceedings

1. The Applicant applied to the Tribunal for review of the delegate’s decision on 17 September 2013.  A copy of the delegate’s decision was provided with the review application.  On that same day the Tribunal sent a letter to the Applicant acknowledging receipt of the review application.

2. As set out in paragraph 3 of the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal, on 29 November 2013 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing commencing at 11.30am on 21 January 2014. 

3. The Applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  The letter was sent by prepaid post to the Applicant’s last address for service.  On 20 January 2014 the Tribunal sent by email a copy of the hearing invitation to the Applicant’s email address given in the application for review.

4. On 21 January 2014 at 10.44am the Tribunal received a telephone call from a person who identified himself as the Applicant’s friend advising that the Applicant could not attend the scheduled hearing as he was, “vomiting and on the toilet.”  The Tribunal officer advised the Applicant’s friend that they could not speak to him without the Applicant’s permission. On the same day at 10.52am the Applicant called the Tribunal to confirm that he was unwell and unable to attend the hearing.  He said that he was vomiting and had a medical certificate dated 20 January specifying that he would need rest for three days. 

5. The Applicant did not appear at the scheduled hearing on 21 January 2014.  On the following day, 22 January 2014, the Tribunal received a copy of a medical certificate dated 20 January 2014.  As noted in paragraph 5 of the Decision Record the medical certificate stated that the applicant “will be unfit for work for three days, as he is suffering from medical condition” (sic).  The next day, 23 January 2014, the Tribunal sent to the Applicant by email a message the material parts of which stated:-

   “Your hearing before the Refugee Review Tribunal scheduled for 11.30 am on Tuesday, 21 January 2014, did not proceed.

   The Tribunal was telephoned that morning by a person who stated that he was your friend and advised that you were unwell and so could not attend.

   If the Tribunal is to give you a further opportunity to attend a hearing, you will need to provide, no later than Friday, 31 January, a medical certificate or other satisfactory evidence that indicates that you were unable to attend the hearing on 21 January and states the reasons for that.

   Please note that a certificate that states only that you were unfit to work and/or study will not be sufficient.

   Please also note that if the Tribunal doesn’t hear further from you by 31 January it may proceed immediately to finalise the review.”

6. No response or further evidence was received by the Tribunal from the Applicant. 

Tribunal Decision 

1. On 10 February 2014 the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa. In light of the Applicant’s failure to attend the scheduled hearing the Tribunal elected to exercise its discretion under s.426A of the Act to make a decision without taking further action to enable the Applicant to appear before it.

2. In exercising its discretion the Tribunal had regard to relevant case law (as set out in the Decision Record in paragraph 7) and, observed that the medical certificate provided to it stated that the Applicant would be unfit for work for three days from 20 January 2014, and that the Applicant had been given the opportunity since 23 January 2014 to provide evidence that would satisfy the Tribunal that he was unable to attend the hearing due to ill health, however, had failed to do so.

3. The Tribunal considered the Applicant’s claims for protection and evidence before it and said thereto, being satisfied that the Applicant was a national of India, the following (in paragraphs 23 and 24 of the Decision Record):

   “23. The applicant has not provided sufficiently detailed information to enable the Tribunal to be satisfied that there is a real chance that he would be persecuted for a Convention reason if he returned to India or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

   24.  The applicant’s claims centre on a debt to a money lender but he provided insufficient information to enable the Tribunal to be satisfied that he is in debt to any person or that anyone has attacked him in any way or caused or threatened any harm to him for any Convention reason.  There was no claim that the applicant had experienced any harm in India apart from what he claimed in relation to the money lender.  He came to Australia in 2007 and has returned to India since then (contrary, it appears, to what he stated in the protection visa application).  The applicant was in Australia for nearly six years before he applied for a protection visa and there has been no explanation for that.”

4. On the basis of these findings the Tribunal was not satisfied the Applicant had a well-founded fear of persecution for a Convention reason.  The Tribunal was also not satisfied there were substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm on return to India. 

Consideration

1. Sections 477(1) and 477(2) of the Act are as follows:-

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

2. In relation to the requirements for the grant of an extension of time identified under s.477(2) of the Act the non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is in the interests of the administration of justice include:

   a)the extent of the delay;

   b)the reasons for it;

   c)the merits of the proposed substantive application;

   d)any prejudice to the respondent;

   e)the impact on the applicant if time is not extended;

   f)the public interest; and

   g)considerations of fairness as between the applicant and other persons otherwise in a similar position.[1]  

   [1] WZASC v the Minister for Immigration & Anor (2013) FCCA 1452 at 7.

3. The Applicant filed these proceedings over one year out of time.  This is a significant delay and the Applicant puts before the Court no satisfactory explanation for that significant delay.  I accept the First Respondent’s submission that it is apparent the Applicant was in possession of the Tribunal’s Decision Record when he faxed a letter to the Department seeking Ministerial intervention on 5 March 2014.  That was within the 35 day time period for filing an application for judicial review with the Court.

4. The Applicant’s contention that the reason for his delay is, in part, because he sought Ministerial intervention does not provide a satisfactory explanation for the delay.[2] 

   [2] SZTSZ v the Minister for Immigration &Anor (2014) FCCA 298 at 15.

5. The Court concludes that the extent of the delay is significant. There is no evidence put forward by the Applicant as to the reasons for it, or certainly no adequate evidence.

6. The First Respondent concedes there is no prejudice to the First Respondent should the Court accede to the Applicant’s extension of time application. The merits of the proposed substantive application, however, have no prospect of success as submitted by the First Respondent. 

7. The Applicant’s application does not seek to identify jurisdictional error on the part of the Tribunal. It simply requests this Court to undertake a review of the merits of the Tribunal’s decision which is not a function, as said many times, of the Court. The Tribunal’s decision to proceed under s.426A of the Act in the circumstances in which it did was open to it and not legally unreasonable. The Tribunal had regard to the very limited evidence placed before it by the Applicant and as said by the First Respondent gave “its own independent, assessment and determination of the matters necessary to be addressed”[3]  with respect to the Applicant’s claims as set out in his protection visa application forms. 

   [3] Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577, 591 per Bowen CJ and Deane J.

8. The Tribunal’s findings in respect of the evidence were open to it. The Tribunal complied with its procedural fairness obligations in Part 7, Division 4 of the Act, and the substantive application has no merit. The Court will dismiss the Applicant’s application for an extension of time with costs to follow that dismissal.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 January 2017