BGK17 v Minister for Immigration and Anor

[2018] FCCA 693

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 693

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – review of decisions – judicial review – procedural matters – applications – time for lodging and extension – short delay – no arguable grounds.

PROCEDURE – Miscellaneous procedural matters – other matters – adjournment.

Applicant: BGK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 270 of 2017

Judgment of: Judge Jarrett

Hearing date: 16 March 2018

Date of Last Submission: 16 March 2018

Delivered at: Brisbane

Delivered on: 16 March 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application for adjournment is refused.

2. The application filed 23 March, 2017 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 270 of 2017

BGK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an adjournment of a hearing that is set for today of the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the first respondent not to grant him a protection visa.

2. He says there are two reasons why the application ought to be adjourned. The first is that his lawyers have abandoned him because he cannot pay them and he needs time to organise new legal representation. Secondly, he says that medically, he is unwell and is unable to proceed with the hearing. In support of his application for an adjournment, he has filed an affidavit this morning and he has made some submissions.

3. The affidavit sets out that he is facing severe financial hardship and cannot engage a legal representative for the purposes of this hearing.  The record shows that on 17 January, 2018 the lawyers then acting for the applicant filed a notice of intention to withdraw.  I assume that they withdrew from acting for him fairly soon thereafter.  The applicant told me in submissions that he has approached some law students down at the Queensland University of Technology to assist him, but they have been unable to do so because of other commitments.  He was unable to give any other examples of what he has done since his lawyers have withdrawn to secure further legal advice.

4. In any event, the inability of the applicant to secure legal advice is not uncommon in this jurisdiction.  Many applicants represent themselves because they do not have the financial capacity to engage legal representatives.  In those circumstances, that ground of itself, is insufficient to justify the granting of an adjournment.

5. As to the applicant’s medical condition, he presented this morning apparently at the emergency department of the Royal Brisbane Women’s Hospital.  There is a document attached to his affidavit dated 16 March, 2018 which records that he presented with a knee strain or sprain.  There are some details of the investigations that were carried out and the advice given to him to manage his difficulty.  At the conclusion of the report, the following paragraph appears:

   [BGK17] also reported that he had a court date at 11.30 am this morning.  He was requesting a letter to say he is unfit for court this morning.  It is our impression that he is fit for his court hearing and that he should attend.

6. There are also some other medical documents, but I accept the submissions from the solicitor for the first respondent that those medical documents do not assist the resolution of this application for an adjournment because, at best, they are letters of support;  they do not deal with any medical conditions from which the applicant might be said to be suffering.

7. It was not suggested by the Minister that there is any particular prejudice that would flow to the first respondent if the matter was adjourned, but there is of course the general prejudice that attends any party who opposes an adjournment, because the proceedings are prolonged and there is a public interest in these types of applications being finalised as quickly as possible.

8. In those circumstances, I am not satisfied that it is appropriate to adjourn the application.  The application for the adjournment is refused.

   RECORDED: NOT TRANSCRIBED

9. This is an application to extend time within which to seek judicial review of a decision of the Administrative Appeals Tribunal that was given on 3 February, 2017. That decision affirmed a decision of a delegate of the first respondent to refuse to the applicant a Protection (Class XA) visa.

10. In his application filed on 23 March, 2017 the applicant does not set out any of his proposed grounds of review.  In respect of the reasons for which there needs to be an extension of time granted, his application contains these words:

    Medical reason – refer letter as attached.

11. No letters are attached to his initiating application.  He did file at the same time an affidavit which attached the Tribunal’s decision, as well as some other documents.  The other documents comprised a letter from an organisation called Empower Psychology & Counselling dated 22 March, 2017.  It recorded that the applicant had been suffering from depression and had been treated for depression on 25 January, 2017, 1 February, 2017 and 22 March, 2017.  The letter suggests that:

    In order to prevent the perpetuation of depressive episodes caused by prematurely terminating treatment, would suggest that [BGK17] is given consideration for time so he can finish the therapeutic process.

12. There is also attached a medical certificate from a Dr Michael Honing dated 23 March, 2017.  That certificate says the applicant:

    …has been my patient since December 2016.  During this time, I have treated him for a variety of medical conditions, including tendon injuries of the wrist and shoulders, as well as mental health issues.  [BGK17] is currently also seeing a psychologist to that effect.  [BGK17] has had medical conditions that have required ongoing assessment and would like to request an extension to his time to appeal a visa application.

13. Apart from the reference in the letter from Empower to depression, there is no other evidence of the mental condition or mental health problems from which the applicant might suffer.

14. The applicant subsequently filed another affidavit in which he attached some further documents.  The first document was a medical certificate which appears to be undated from Dr Michael Honing.  It simply records that the applicant had been receiving medical treatment from that doctor since December, 2016.  The second is another medical certificate.  Again, it does not appear to bear a date and it certifies that the applicant has a functional assessment by an occupational therapist.  There were some imaging reports and the conclusion of those investigations was that the applicant had:

    …limited reaching above the head, limited lifting of arms (arm abduction) and lower than expected grip strength, given his type of work.

15. Thereafter is attached an occupational therapist’s report from Lifestyle Therapies and Training Solutions. From my perusal of that report and the medical certificate to which I have just referred, it seems that the medical certificate is a good summary of the occupational therapist’s report. There are some other documents referred to in the medical report attached as well.

16. The affidavit upon which the applicant relies this morning in support of an application for an adjournment, I have already detailed in my earlier reason. That affidavit refers to another medical condition, namely, a knee sprain or strain, but that is a condition from which he now suffers and is not relevant to the time at which he was to file his application for review.

17. The material in the court book demonstrates that the applicant is a citizen of Papua New Guinea. He arrived in Australia in October, 2007 on a visitor visa. He departed again in November, 2007. He re-entered Australia in March, 2015 as the holder of a further visitor visa valid until June, 2015. Before his visitor visa expired, he applied for a protection visa.

18. In his visa application and the documents accompanying it, he claimed to fear harm from family and associates of his ex-wife’s de facto partner and members of a certain clan in Papua New Guinea. He said that he had married his wife in September of 2009 (although this date appears to be a mistake in his material), but his marriage had ended in March, 2004. He says that his ex-wife subsequently went through a customary marriage to another man and, at times, that other man would wrongly accuse the applicant of consorting with his ex-wife and he threatened to kill him.

19. He says that the partner of his ex-wife had some associates who later found him and attacked him.  He said that because of the threats and the greater employment prospects that were available, the applicant moved from the highlands, where he was then living, to Port Moresby.  But his ex-wife, he says, subsequently left her current partner and followed him to Port Moresby.  He did not want to reconcile with her, but he was nonetheless put in danger, he says, from her ex-partner.  He says that in March, 2006 he had an argument with his ex-wife’s relatives and her new partner’s relatives, who had tracked him down.  He says that he was violently attacked and hospitalised for a month.

20. He says that he was also targeted because he was a member of a particular clan in Papua New Guinea and in August, 2013 his brother had an argument over some disputed land with a neighbour from a different clan.  The argument resulted in six months of warfare between the two clans and vengeance has been vowed by the opposing clan upon prominent members of the applicant’s clan.

21. A delegate of the first respondent refused the application for the protection visa. The applicant applied for a merits review by the Administrative Appeals Tribunal. The Tribunal determined that application against the applicant and gave reasons for doing so. It did so after it conducted a hearing to which the applicant was invited to attend and give evidence and present arguments relating to the issues arising on the appeal. It is apparent from the material in the court book that at the hearing, the applicant provided the Tribunal with submissions, other documents including media articles and the like that he thought might assist his case.

22. The Tribunal’s reasons for decision are unremarkable.  The Tribunal correctly instructed itself as to the law and although it had some doubts about the applicant’s identity, it determined that issue in his favour.  It was prepared to accept that he was a citizen of Papua New Guinea and that he was the person he claimed to be.  The Tribunal, however, had significant doubts about the claims made by the applicant more generally and his credibility.  The Tribunal gave some very clear reasons in which it expressed those doubts and the reasons for them:  see, for example, paragraphs 18, 19 and 20 of the Tribunal’s reasons.  Paragraphs 21 and 22 continue the theme, as does paragraph 23.

23. Ultimately, the Tribunal determined the application against the applicant, as I have said, because it did not accept the truth of the claims made by the applicant.  It determined those matters against him as a matter of credit.  That is not to say that the Tribunal rejected everything that the applicant said.  It accepted some of the things that he had pointed out and put to the Tribunal in his material.  That demonstrates, in my view, that the Tribunal properly analysed the material before it, turned its mind to a proper consideration of the claims made by the applicant and made a determination about them.

24. In these proceedings before me, the applicant does not set out any purported grounds of review. There have been two orders made in this Court for the applicant to do that. There was an initial directions order made when the matter was first before the Court and that order was then varied with the agreement of the parties – or upon the agreement of the parties, I should say, to provide more time for the applicant to provide an amended application and some written submissions. Notwithstanding that, he has not provided an amended application and so furnishes no grounds upon which he says the Tribunal’s decision is affected by jurisdictional error.

25. The written submissions for the first respondent point out that on applications such as this, the Court is generally concerned to see whether there is an explanation for the delay in commencing proceedings within time;  the extent of the delay, that is, how long or how late the proposed proceedings are;  any prejudice that might be suffered by the respondent because of the delay; any prejudice that might be suffered by the applicant by reason of being held out of the application for review by the time limit and the merits of the proposed appeal.

26. Here, the delay is not very long.  It is much less than one sometimes sees in cases of this nature.  But in my view, there is no adequate explanation for the failure to commence the proceedings within time.  The medical evidence relied upon by the applicant does not suggest that he was unable to commence proceedings to challenge the decision of the Tribunal within the relevant statutory timeframe.  It is apparent that he was being treated for depression at the time, but the medical evidence that he has furnished to the Court does not go so far as to say that he was so afflicted by that condition that he was unable to do what it was that he needed to do.  There is, in that material, simply no suggestion that he was so affected by his medical conditions, be it the tendon injuries or the psychological difficulties, that he was unable to attend to the filing of his application for review.

27. But more than that – and perhaps the matter which is determinative, in my view – is that the applicant does not advance any grounds of review at all in support of an application for review.  I have tried to elicit some from him in the course of submissions, but he has not been able to tell me in what respect the Tribunal’s decision is affected by jurisdictional error.  Even taking account of the fact that he is a self-represented person, it is incumbent upon him to provide some explanation as to why he says the Tribunal’s decision is wrong.  He has not done that.  He says that he has tried to enlist the assistance of some students at QUT, but even with that assistance, there is nothing before me that would suggest that he has an appropriate application for review that could be prosecuted.

28. These things need to be determined at a generally impressionistic level.  It is not the case that an application for an extension of time is the occasion to descend into the detail of the merits of the proposed application for review.  But here, even at a generally impressionistic level, I cannot conclude that the applicant has any prospects of successfully pursuing an application for judicial review in respect of the decision of the Administrative Appeals Tribunal.  I have considered the Tribunal’s reasons for myself.  I can see nothing in those reasons which is suggestive of jurisdictional error.

29. In those circumstances and with the benefit of the assistance of the written submissions prepared on behalf of the first respondent, I have concluded that the application for an extension of time must be dismissed and I so dismiss it.

    RECORDED: NOT TRANSCRIBED

30. Costs should follow the event.  I order that the applicant pay the first respondent’s cost of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  4 April 2018