BCN17 v Minister for Immigration

[2019] FCCA 3153

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCN17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3153

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Administrative Appeals Tribunal – whether extension of time is necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

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

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant: BCN17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 771 of 2017

Judgment of: Judge Manousaridis

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Sydney

Delivered on: 8 November 2019

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Mr J Tsaousidis of DLA Piper

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decision made by the Administrative Appeals Tribunal made on 6 February 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 771 of 2017

BCN17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 15 March 2017 the applicant, a citizen of Jordan, filed an application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). By the same application, the applicant also claims an order under s.477(2) of the Migration Act 1958 (Cth) (Act) extending the 35 day period provided for s.477(1) for making an application to this Court for a remedy under s.476 of the Act.

Background

1. The applicant entered Australia on 13 June 2014 as the holder of a Visitor (FA-600) visa. It was valid until 13 September 2014. The applicant applied for a Protection visa on 9 September 2014.[1]

   [1] CB139

2. The applicant stated his claims for protection in a statutory declaration made on 24 November 2014.[2] He there claimed as follows:

   a)When studying at university, he and an older student (Ms X) who later became his wife fell in love. The applicant and Ms X belonged to different clans between whom there was enmity. The applicant used to take Ms X to his auntie’s home which was empty most of the time because the applicant’s auntie’s family worked abroad.

   b)Ms X’s clan did not like her to speak to the applicant. In August 2013 Ms X’s brother and relatives assaulted the applicant, warning the applicant not to speak to Ms X again. Ms X’s family prevented Ms X from attending the university for a few weeks. After she returned, the applicant and Ms X secretly resumed their relationship. The applicant and Ms X “secretly married under customary way” in October 2013 at the applicant’s auntie’s apartment.

   c)Ms X became pregnant in April 2014. The applicant then revealed to his family his relationship with Ms X. His family was initially angry and advised the applicant to go abroad “until they sort out the issues through clan elders between the two clans”. On his family’s advice the applicant applied for an Australian visa.

   d)In June 2014, between ten days and two weeks before he was due to depart from Jordan, Ms X’s family became aware she was pregnant, but they did not know Ms X became pregnant because of the applicant. A week before he was due to leave, however, Ms X’s family found out it was the applicant “who was behind the pregnancy”.

   e)The applicant’s family and clan held discussions with Ms X’s family and clan, proposing that the applicant and Ms X marry. Ms X’s clan did not accept the marriage proposal, and they warned they would take revenge against the applicant. After the applicant arrived in Australia, Ms X’s family continued to show their anger and hatred towards the applicant and Ms X and, on 14 August 2014 “[t]hey killed my wife . . . under an honour killing”.

   [2] CB81-83

3. The applicant supported his claims with a number of documents. These included what purported to be a marriage contract,[3] media articles,[4] a purported letter from a member of the applicant’s clan,[5] and a document headed “Judicial Medical report”.[6]

   [3] CB101

   [4] CB71, 72, 99, 125-132

   [5] CB75

   [6] CB77

Tribunal’ reasons

1. The Tribunal did not accept the applicant was married to Ms X in a secret ceremony, or that she later became pregnant. The Tribunal relied on two matters. First, in his form of application for a visitor’s visa which the applicant personally completed, the applicant claimed he had neither a partner nor a fiancé. The Tribunal did not accept the applicant’s explanation for so having completed the application for a visa. The Tribunal found it implausible that a person who claimed to have undergone a secret marriage with another person would not consider that person to be either his partner or fiancé.

2. Second, there was a near complete lack of any other evidence that would indicate the applicant was in a relationship with a woman at the time he left Jordan. The only evidence the applicant submitted was an undated photograph of a woman sitting on a bed and in which the applicant does not appear. The Tribunal considered that although the applicant had claimed the relationship was secret and hidden from their family, it was reasonable to expect there would be some photographic or messaging evidence that would support his claim. The Tribunal acknowledged the applicant had provided what purported to be a marriage certificate, as well as what purported to be a letter from a clan member, but it decided to give these documents little weight, the marriage certificate because the applicant had claimed it was printed from a normal computer, and the letter because “it was handwritten and could have been authorised by anyone”. The Tribunal also acknowledged that the applicant had provided what appeared to be text messages, but it noted “[t]hey are untranslated and there is no indication of who either the sender or the recipient are”.

3. The Tribunal also did not accept that a woman was killed by her family. The Tribunal relied on its not being satisfied that the applicant was in any relationship with a woman, and there being a complete lack of any type of public or private remorse at the death of Ms X, or any correspondence between the applicant and his family about the death. The Tribunal placed little weight on the media reports the applicant submitted about a shooting of a girl because they were inconsistent with the applicant’s account of the killing.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35 day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[7]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [7] [2013] FCA 1284 at [47]-[48]

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[8] Further:[9]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [8] [2015] FCA 1391 at [63] (cases cited omitted)

   [9] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[10] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[11]

   [10] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [11] [2015] FCA 1391 at [62]

Extent of and explanation for delay

1. The applicant filed his application with this Court two days outside the 35 day period prescribed by s.477(1) of the Act. That delay is insignificant. The applicant’s explanation for delay is that the applicant was emailed the decision on 9 February 2017 and the applicant was seeking the assistance of a lawyer. At the hearing before me the applicant informed me that he had decided he would return to Jordan, but his family urged him to stay. Even if true, none of these matters provides an adequate explanation for the delay. Given the insignificance of the period of delay, however, what I have found is an inadequate explanation is not a matter I propose to take into account against the applicant.

Apparent merits of proposed ground

1. The application contains the following ground:

   The member made errors in considering my evidance [sic].

2. At the hearing before me the applicant said that the error he claimed the Tribunal made is that stated in paragraph 2 of the attachment to his affidavit made on 23 August 2017 (errors in original):

   Reffering to the tribunal Decision that was given on the 6^th of february for the case number (1507965) condition no 9, on that I was given a 24 hours deadline to Provide Conversations between my spouce an I as evidence and I did Provide Pictures of messages and conversations the next day which were not considered or mentioned in the decision, Please see the attached copy of the submission Receipt for the Tribunal court.

3. What this paragraph described as the “submission receipt” is in the court book, and there is no question the document was issued to the applicant on 6 January 2017 in return for the applicant submitting what appear to be screenshots of text messages. The applicant confirmed to me that the documents he provided are those that are contained in the court book.[12] The applicant stated that he gave the documents within the time the Tribunal member gave him at the hearing on 5 January 2017, and he did not have time to arrange for the documents to be translated.

   [12] They are at CB187-196

4. The applicant appeared before the Tribunal on 5 January 2017; and the hearing record contains a tick in the box next to the printed words “provide information/comments/response in writing by” after which there is hand written “7/1/17”.[13] The applicant stated to me from the bar table that at the hearing before the Tribunal the applicant said he had text messages between himself and Ms X, and the Tribunal gave the applicant 24 hours to provide them to the Tribunal. 

   [13] CB184

5. The question arises whether, in these circumstances, there is an arguable case for contending the Tribunal acted unreasonably, or otherwise denied the applicant procedural fairness, in giving the applicant 24 hours (assuming this is the time the Tribunal in fact allowed the applicant). In answering that question, it is relevant to note two matters.

   a)First, the applicant accepted before me that he did not ask the Tribunal to permit him further time for the purpose of providing the documents to the Tribunal or for translating the documents.

   b)Second, by letter dated 8 December 2016 to the applicant, [14] the Tribunal requested the applicant provide photos of the applicant “with the person whom you claim to be your wife (preferably together with a date/time stamp), photos of your wedding, and any correspondence between you and your wife on social media or any other platform”. Further, according to the Tribunal’s reasons for decision,[15] after being told that he had been given “a lot of warning to provide” evidence of his marriage to Ms X, or any correspondence between them or photos of them together, as requested by the Tribunal in its letter dated 8 December 2016, the applicant initially said he did not recall receiving the letter but, after it was read to him, agreed he did receive the letter, but he “had not sought the phone messages from Jordan”.

   [14] CB176

   [15] CB210, [9]

6. In these circumstances, there is no arguable case the Tribunal acted unreasonably, or otherwise denied the applicant procedural fairness, by allowing the applicant 24 hours to provide further evidence.

7. In any event, the Tribunal did refer to the text messages the applicant provided to the Tribunal. The Tribunal said “[t]hey are untranslated and there is no indication of who the sender or the recipient are”.[16] The applicant accepted that the purported text messages did not identify the sender or the recipient of the messages. The applicant also acknowledged to me that it would have been possible to provide screenshots of the messages such as to show who the recipient and senders of the messages were. In those circumstances, even if the applicant had been given time to translate the documents, the difficulties the Tribunal identified with the documents – their not indicating who the sender or recipient are – would have remained. Thus, even if the Tribunal acted unreasonably or denied the applicant procedural fairness by allowing the applicant 24 hours to provide further evidence, there is no arguable case that this would have been material to the Tribunal’s decision because at most the Tribunal might have had before it the same documents translated into English that did not indicate who the sender and recipient are.

   [16] CB213, [29]

8. The applicant also relies on paragraph 3 of the attachment to his affidavit made on 23 August 2017, which is as follows (errors in original):

   Also Reffering to the Tribunal Decision condition No 19 the newspoper report that was discused was token from an online unofficial media website, such websites aren’t bonded by any outhorities and is more basied on roumers than facts, I did provide an official newspaper report from the daily newspaper.

9. At the hearing before me I took the applicant to the media reports contained in the court book. The applicant confirmed that he had submitted one of those reports,[17] and that his representative submitted two other reports.[18] The applicant acknowledged that he did not make any submission to the Tribunal that any of the media reports that had been provided by the applicant or on his behalf was inaccurate. In those circumstances, that the media report to which the Tribunal referred in paragraph 19 of its reasons may not have been accurate is not a matter that gives rise to any arguable case of jurisdictional error. That is particularly so because the only observation the Tribunal made about that report was that it accorded little weight to it.[19]

   [17] Being the report at CB71, 72, translations of which are at CB73 and CB99

   [18] These being the reports at CB125 -128, being translations of the reports at CB129-132

   [19] CB213, [31]

Conclusion and disposition

1. I have found that none of the grounds or submissions on which the applicant relies disclose any arguable case of jurisdictional error. I am therefore not satisfied it is necessary in the interests of the administration of justice that I should make an order under s.477(2) of the Act extending the time provided for by s.477(1) of the Act for the applicant to apply to this Court for remedies in relation to the Tribunal’s decision. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed. I will consider the question of costs when I pronounce my reasons.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 8 November 2019