BCM16 v Minister for Home Affairs

[2019] FCCA 1387

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCM16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1387

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 91WA

Applicant: BCM16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1059 of 2018

Judgment of: Judge Vasta

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Brisbane

Delivered on: 13 May 2019

REPRESENTATION

The Applicant appearing in person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application for leave to file out of time is refused.

2. The Application filed on 16 October 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1059 of 2018

BCM16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 5 March 2018, the Administrative Appeals Tribunal (“the AAT”) refused to grant the Applicant a protection class XD visa. That decision having been made, the Applicant had 35 days in which to lodge an application to this Court for review. That time lapsed in mid-April of 2018. On 16 October 2018, some six months or more after the time limit had expired, the Applicant filed an originating application asking this Court to review the decision.

2. The background to the matter is this. The Applicant is a citizen of Bangladesh.  In effect, he says that he was a person who was sympathetic to the Bangladesh National Party (“the BNP”).

3. He said that, because of his activities with the BNP, he was attacked and injured by the Awami League, (“the AL”).  He was attacked during a protest in 2010, and, notwithstanding that he was told by his family to cease his affiliation with the BNP, he still supported them but without the same frequency as he had before. 

4. He said that in 2013 he was threatened and warned by AL members that he would be killed if he continued his association with the BNP.  He ignored the threat and was threatened a further four to five times between February and March 2013.  Despite those threats, he continued his participation with the BNP, albeit discreetly. 

5. He said that he then told his brother about the threats and his whole family decided that it was safer for the Applicant to leave Bangladesh, and he found his way onto a boat and became an unauthorised maritime arrival.

6. At the interview with the delegate, the Applicant said that he had never had a Bangladeshi passport, but he provided a document purporting to show the place of birth. 

7. The Tribunal, as will become evident, had some real problems with this document, and this is because this document did have quite a number of spelling mistakes and differing type fonts and sizes. 

8. The Applicant then, at the beginning of the Tribunal hearing, provided the Tribunal with a new birth certificate, a new letter from a chairman, and two letters of reference as to his character.  The new birth certificate had the same registration number and birth registration number as the document originally tendered with the Application for a protection visa.  It had the same information in all respects. 

9. But the Tribunal noted that the original birth certificate had a number of spelling mistakes within it.  It even misspelled the title “b-i-t-h” certificate.  The original document did not contain the office seals or signatures in the two places for signatures at the bottom of the document. 

10. The Tribunal noted the new document submitted at the hearing had the spelling mistakes corrected; it contained signatures and there was a stamp over the mark requiring a seal.  The Tribunal enquired of the Applicant how there could be two certificates issued by the Registrar. 

11. He said that people in the office have poor English skills.  The Tribunal asked whether the form would not have just been a standard document requiring office staff to just include actual data.  The Tribunal noted that it did not make sense that the title to the document would therefore have a spelling error.  The Applicant said that he had not realised the errors in the original document.  When they were pointed out to him he went and got a new certificate.  He said that his family got it translated directly. 

12. The Tribunal sought clarification of that response, asking which document was translated. The Applicant said he had the original birth certificate written in Bengali and got his family to have it translated. The Tribunal confirmed that the new certificate had, in fact, not been translated correctly as there was no requirement for it to be translated as it had been issued in English. The Tribunal asked about the new certificate – was it an original document or was it also a translated document? The Applicant said that the new certificate was an original document.

13. The Tribunal asked why it was that this new certificate was not also in Bengali because it was in English, and the Applicant repeated that the original certificate had errors in it because of the translation. The Tribunal also noted that the original chairman’s certificate was not signed, but the new certificate was signed by a new chairman on 31 March 2016.

14. The Applicant said that the first certificate was a mistake.  The Tribunal expressed its concerns to the Applicant that these inconsistencies in the certificate might cause the Tribunal to conclude that the two certificates are bogus documents. 

15. The Tribunal, at paragraph 63, outlined, albeit not in the best way that it could, that it used the provisions of s.424AA of the Migration Act 1958 (Cth) (“the Act”)to ask the Applicant to give comment on the fact that these documents appeared to be bogus. The Applicant said that this was the fault of the government agency.

16. The Tribunal shared country information from UNICEF that stated that as of February 2014, BRIS had captured more than 101 million birth records.  The local government division expected that migration of all manually recorded birth data should be completed by 2014. 

17. The DFAT report noted that since 2001, the electronic birth registration information system had recorded all births centrally.  The Tribunal discussed that information with the Applicant and the Applicant responded that he got his certificate from the office, that it was in Bengali, and it was translated. 

18. The Tribunal did not accept that explanation and found that the Applicant has provided or caused to be provided a bogus document as evidence of his identity, nationality or citizenship. 

19. The Tribunal then looked at whether the Applicant had a reasonable explanation for providing, or causing to be provided, the bogus document.

20. The Tribunal found that the Applicant did not have a reasonable explanation for providing that bogus document. Accordingly, pursuant to s.91WA of the Act, because the Tribunal has found that a bogus document had been provided and that there was no reasonable explanation as to why that bogus document was provided, the Tribunal was not obliged to consider the application for the visa any further.

21. Paragraph 76, the Tribunal noted that they were satisfied that the grant of a protection visa was precluded by s.91WA of the Act.

22. The application filed by the Applicant simply has these three grounds: 

    (1) The Applicant claimed that Australia owed protection obligations in respect of him;  

    (2) that the decision of the second respondent the AAT was affected by legal error; 

    (3) Relevant information was not considered. 

23. The first of those grounds is not a ground of appeal. 

24. The second ground has no particularity.  The Applicant has not has not been able to tell me the legal error that has affected the decision;

25. The third ground also suffers from a lack of particularity as to what relevant information was not considered. 

26. The Applicant has come here today asking for an adjournment because he has attended, on two occasions, an organisation called Rails.  Rails has not provided him with a lawyer.  He wanted another three months so that he could come back here with a lawyer. 

27. This matter does not have sufficient merit to warrant an adjournment and also, the Applicant has not even passed the first aspect, and that is that he has not convinced me that he should have leave to file outside of the time period.

28. His excuse for not filing within the time period is on his application: 

    My migration agent gave me the information that I get a protection visa, but he gave me misinformation and immigration also pay the SRSS payment fortnightly and suddenly 25th September stop[sic] to pay me the SRSS payment then I went to Rails they tell me you don’t have a valid visa.

29. It is trite to say that there are three aspects that the Court looks upon as to whether they should grant an extension of time within which to file material; the first being what is the excuse for the late filing; secondly, what prejudice is there to the respondent; and thirdly, is there sufficient merit in the actual claim itself that warrants the Court looking at the matter.

30. The Applicant today reiterated the same excuse that he thought that he had a visa because he continued to be paid his social security, and that is why he did not make any application.  That excuse just does not gel. 

31. The Applicant left the hearing, or would have left the hearing, in no doubt whatsoever that the Tribunal was considering that he had given the Tribunal a bogus document. The fact that the Applicant had not been arrested by border security and put into immigration detention following the decision of the Tribunal is something for which the Applicant really can thank his lucky stars.

32. His excuse is that there was no indication that his application had failed – he wasn’t put into detention and he continued to be paid by Centrelink. He said that that is why he did not put the application in. It was 25 September 2018 when he says that he found out he was not being paid anymore; yet, he still took to 16 October 2018 to bring the matter on for filing.  So therefore I do not accept that excuse. 

33. I do accept that there is no real prejudice to the Respondents, but the third aspect for the reasons I have already given, I do not accept that there is an arguable case, or a case with sufficient merit, to warrant this Court entertaining the application any further. 

34. For those reasons I refuse the application to file out of time.

35. In any other respect I dismiss the application with costs in the sum of $7467.00.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 June 2019