BCL16 v Minister for Immigration

[2018] FCCA 1360

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCL16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1360

Catchwords:
MIGRATION − Application for an extension of time to apply for judicial review – application filed 37 days out of time – no error apparent in the approach taken by the Tribunal – application for ministerial intervention – no error apparently in the approach taken by the Tribunal – application dismissed.

Legislation:           

Migration Act 1958 (Cth) ss.425, 477(2)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6

M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1266
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

Applicant: BCL16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 971 of 2016

Judgment of: Judge McNab

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Melbourne

Delivered on: 12 April 2018

REPRESENTATION

The Applicant appearing in person

Counsel for the First Respondent: Mr Grant

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 971 of 2016

BCL16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

1. This matter comes before the Court by way of an application filed by the Applicant on 11 May 2016. By that application she seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on

   
   

   29 February 2016. That decision affirmed a decision of a delegate of the First Respondent not to grant her a Protection Visa. The application was filed 37 days out of time, and as noted by the solicitor for the First Respondent appearing today, that is not an inordinate period of time. However, it is not insignificant, having regard to the time limits imposed. 

Background

1. The Applicant, a citizen of India, arrived in Australia on 1 December 2008. She held a Student Visa as a dependent on the visa of her

   
   

   ex-husband. [1]

   [1] Court Book 13, 17.

2. On 8 April 2014, the Applicant lodged an application for a Protection Visa on the basis she feared harm because:

   a)She married her neighbour without her parents’ consent. As a result of the marriage, her mother subsequently refused to see her, her father-in-law threatened to kill her, her uncle committed suicide and her brothers were offended.

   b)She fears that members of her family and members of her former husband’s family will kill her or hire people to kill her if she returns to India because of the marriage. She asserts the police will not help her and her father in law has the police looking for her after filing a report.[2]

   [2] Ibid 1 – 12; 20 – 50.

3. On 26 June 2014, the Applicant attended an interview before a delegate of the First Respondent. The Applicant raised a further claim that in 2010 she returned to India and her family forced her to re-marry. She claimed to have forgotten to raise this issue previously as she was suffering from depression. She also claimed to fear harm from her second husband’s family as she returned to Australia without him.[3]

   [3] Ibid 93 – 97.

4. On 21 July 2014, the delegate notified the Applicant that they refused to grant the Protection Visa. The delegate found that the Applicant’s claims were not credible or genuine, citing a lack of consistency in the claims and evidence as determinative.[4]

   [4] Ibid 90 – 103.

5. On 15 August 2015, the Applicant sought a review of the delegate’s decision.[5]

   [5] Ibid 104 – 105.

6. On 5 October 2015, the Applicant was invited to attend a rescheduled hearing.[6]

   [6] Ibid 115 – 118.

7. On 6 November 2015 the Applicant attended the hearing with the assistance of a Punjabi interpreter and a registered migration agent.

   
   

   The Tribunal requested that the Applicant provide additional submissions and translated material.[7]

   [7] Ibid 188.

8. On 2 December 2015 the Applicant’s agent sent the Tribunal further supporting documentation and reports regarding the Applicant’s mental health.[8]

   [8] Ibid 144 – 179.

9. On 29 February 2016, the Tribunal affirmed the decision of the delegate to refuse the Applicant a Protection Visa.[9]

   [9] Ibid 180 – 195.

Extension of time

1. The Applicant has not filed any material in support of the application for extension of time, and the only reference to the grounds is on the face of the application, where the Applicant stated:

   I applied for ministerial intervention after consideration of Administrative Appeals Tribunal.

2. Section 477(2) of the Migration Act 1958 (Cth) provides that the Court may, given the appropriate circumstances, order that the 35 day period be extended. The First Respondent opposes the extension of time on the grounds that there is no adequate explanation for the delay and there is a lack of merit in the proposed application for review.

3. I have considered the factors to be taken into account, whether an extension of time should be granted. These factors include; the extent of the delay, the explanation of the delay, any prejudice that the respondent may suffer because of the delay and the merits of the proposed appeal.[10]There has been no evidence put before the court explaining the Applicant’s delay in filing an application for judicial review, aside from the fact that ministerial intervention was applied for. The Court Book indicates that the applicant sought ministerial intervention on 29 March 2016, six days before her application for judicial review was required to be filed. An application for ministerial intervention does not act as a stay on the time period in which to apply for judicial review: M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[11]. 

   [10] SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 [15]-[19].

   [11] (2003) FCA 1266 10–12.

4. I note that on 12 October 2016 Registrar Buljan made orders by consent requiring the Applicant to file and serve any amended application and written submissions in support of her application by

   
   

   15 March 2018. No submissions were filed. I understand why that might be the case, given the Applicant’s difficulties with English, however, no explanation has been put before the Court when she appeared today with the assistance of an interpreter.

5. There is no prejudice to the First Respondent arising from this application, however, that is not a basis for granting the application.

Substantive Application

1. In regards to the merits of the substantive application, in my view, the Tribunal has given a detailed and considered account of the Applicant’s claim made before the delegate and before the Tribunal. At [13] of their decision the Tribunal summarised the claims made by the Applicant in her Protection Visa application. Those are as replicated exactly as follows: 

   ·She left India, because her husband came to Australia to further his studies.

   ·In India she married without her parents’ consent.  She married someone who lived in the same street. This is not allowed in India.

   ·Her mother was very shocked and did not want to see her face. Her father in law threatened to kill her. Her brothers were very insulted, and one committed suicide due to her marriage.

   ·She fears that, if she returns, her father in law and her family will kill her, because they do not accept her marriage. Her father in law hired some people to catch and kill her. He wants – he said he wants to take revenge due to being insulted. Her husband left her due to these threats, and she does not know where he is. A friend told her that one couple was killed by the villagers, because they had a love marriage. In India, people are very cruel and do not have any feelings towards people. They treated her like she did a very big crime like murder.

   ·

   The Indian authorities like the police do not help poor people.

   
   

   Her father in law lodged an FIR (first incident report) against them, and the police are looking for them.

2. Having read the decision of the delegate, the above is an accurate summary of the claims that were made for the Protection Visa application. The decision of the Tribunal also notes that in an interview with the departmental delegate on 26 June 2014:

   [14] The delegate’s decision record indicates that, when the interview was nearly concluded, after a break provided so that the Applicant could consider the information she had given, the Applicant stated that she had forgotten to inform the delegate that when she returned to India in 2010 and her family had forced her to marry another man. The Applicant indicated that the ceremony took place in a temple and she was forced to take part after her brother threatened to kill her by giving her an electric shock. 

   [15] The Applicant claimed that she had forgotten about this event, because she was suffering from depression.

3. The Tribunal affirmed the delegate’s decision to refuse the applicant the Protection Visa. The Tribunal did not accept that the Applicant was a witness of truth or that the Applicant was genuine in her fears for prosecution.[12] The Tribunal noted that the Applicant’s claims for the visa had fundamentally changed since she had lodged the visa application and made those findings cognisant of the Applicant’s mental-health concerns.[13]

   [12] Tribunal decision [42].

   [13] Ibid [41].

4. The Tribunal made a series of findings of fact in relation to the inconsistencies in the Applicant’s claims.[14] The inconsistencies were significant and the credibility findings made by the Tribunal were plainly open to it. Referring to the credibility findings that it had made, the Tribunal ultimately concluded that the Applicant’s story was not credible and concluded that the Applicant was not a witness of truth.[15] The Tribunal did not accept that there was a real chance the Applicant would suffer persecution, should she return to India, and that the Applicant would not require the protection of the authorities in India. 

   [14] Ibid [49] – [57].

   [15] Ibid [55].

5. The Tribunal also considered the complementary protection criteria and found that it did not accept that as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, that there was a real risk the applicant would suffer significant harm.[16] 

   [16] Ibid [59] – [62].

Consideration

1. The Applicant’s ground of review are extracted from her application filed 11 May 2016:

   1. The decision made by the Second Respondent is not natural. Unsatisfactory decision.

   2. Procedural Fairness.

2. Ground one would seem to be a request for merits review, which is impermissible.[17]

   [17] Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6.

3. While there was no detail provided in regards to the ground relating to procedural fairness, the court did ask the Applicant whether she was able to say what the Tribunal did or did not do that was unsatisfactory or unfair in relation to her hearing.  The Applicant’s response was that she “[did] not know anything about that”. There may be some issue in understanding or interpretation of the question, however, the Applicant was asked a number of times and in different ways, essentially, the same question. She was not able to point to any basis for a suggestion that the hearing was not procedurally fair. 

4. Addressing the issue of procedural fairness generally, I make the following observations:

   a)the Tribunal identified the claims that had been before the delegate[18] post-hearing submissions[19]and the claims and evidence of the applicant before the Tribunal;[20]

   b)the Applicant was invited to attend a hearing before the Tribunal and did with the assistance of an interpreter and with an accompanying person who also gave evidence; and

   c)the Tribunal paid particular attention to the case law relevant to assessing the Applicant’s credibility[21] and in giving due regard to her mental health issues.[22]

   [18] Tribunal Decision [14] – [16].

   [19] Ibid [30].

   [20] Ibid [42] – [54].

   [21] Ibid [35] – [40].

   [22] Ibid [41].

5. The Tribunal fulfilled its obligations under the statutory framework for considering the Applicant’s claims. There is no apparent breach of

   
   

   s. 425 of the Act.

Conclusion

1. In my view, both grounds identified by the Applicant indicate that there is a lack of merit in the application such that an extension of time cannot be justified. The application for an extension of time is refused.

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

Date:  28 May 2018