BHL16 v Minister for Immigration & Anor
[2017] FCCA 1958
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHL16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1958 |
| Catchwords: MIGRATION – Application for an order extending time to file application for judicial review of decision of the Refugee Review Tribunal affirming decision not to grant applicant a Temporary Protection (Class XD) visa – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application and amended application – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 91R(2)(a), 424A, 426A, 476, 477(1), 477(2) |
| Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449 |
| Applicant: | BHL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1355 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the First Respondent: | Ms M Wells of Sparke Helmore Lawyers |
ORDERS
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 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1355 of 2016
| BHL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of the Republic of India, applies for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Refugee Review Tribunal (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD) visa (Protection visa).
The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 15 November 2013 and the applicant filed his application for judicial review on 27 May 2016. The applicant, therefore, is over two and a half years out of time.
Principles for extending time under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35 day time period if two things are satisfied. First, the 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 is satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
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;
[1] [2013] FCA 1284 at [47]
(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.
In most cases the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship, in the context of extending time for making an appeal, the “court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2]What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.
[2] [2012] FCA 177; (2012) 125 ALD 449 at [29]
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. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[3] Further:[4]
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).
[3] [2015] FCA 1391 at [63] (cases cited omitted)
[4] [2015] FCA 1391 at [62] (cases cited omitted)
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”;[5] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[6]
[5] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[6] [2015] FCA 1391 at [62]
I first turn to the applicant’s explanation for delay.
Explanation for delay
In the application, in the section headed “Grounds of application for extension of time”, the following is stated:
1.I applied to the minister under section 417 and my agent adviced [sic] me to do so. I was not aware of the judicial review.
2. I did not receive the invitation letter from AAT. I had no chance to present my case before the Tribunal members. I was denied natural justice.
At the hearing before me the applicant, who is not legally represented, gave evidence to explain his delay. In response to questions I asked him, the applicant initially said that someone had advised him to apply to the Minister, and that is the reason he was late. The applicant could not remember the full name of the person whom he said had advised him to apply to the Minister. He mentioned the name “Omish” or “Amish”, or something similar. (I will refer to this person simply as “the claimed adviser”.) The applicant said the claimed adviser may have been an accountant, but has returned to India. He also said the claimed adviser was a friend of the applicant’s brother-in-law. The applicant said that his brother-in-law got advice first, and the applicant became aware the claimed adviser was an accountant later.
Under cross-examination the applicant said he did not speak to the claimed adviser personally; he relied on the information the applicant’s brother-in-law conveyed to the applicant. The applicant did not ask his brother-in-law whether the claimed adviser was a migration agent or a lawyer. The applicant said he asked his brother-in-law to seek advice about the decision. He could not, however, recall how soon after he received information about the Tribunal’s decision he asked his brother-in-law to obtain advice.
At the conclusion of the cross-examination I asked the applicant further questions that were intended to elicit from him evidence of the time and circumstances in which the applicant said he first became aware of the Tribunal’s decision. The effect of the applicant’s evidence was that he found out about the Tribunal’s decision from his brother-in-law, but his brother-in-law did not tell him about the decision until about one month before 15 February 2016, being the date on which the applicant applied for Ministerial intervention.[7]
[7] CB113
I do not accept the applicant’s evidence that he did not become aware of the Tribunal’s decision until about one month before he applied for Ministerial intervention. The applicant accepted that the address stated in the letter from the Tribunal notifying the applicant of the Tribunal’s decision (Tribunal Notification Letter) was the address of his brother-in-law and sister, and that the applicant used to live at that address.[8] There is no question that the Tribunal’s letter found its way to the address stated in the letter. The Tribunal Notification Letter was sent by registered post, and, in any event, in his letter to the Minister, the applicant said he attached to his letter seeking Ministerial intervention a copy of the Tribunal’s decision. Although the applicant said he used to live at the house to which the Tribunal Notification Letter was addressed with his sister and brother-in-law, he said in cross-examination that he had moved from there two or three years ago. Although nothing turns on this, I find that in November 2013 the applicant lived at the address to which the Tribunal Notification Letter was sent.
[8] CB100
To give credit to the applicant’s evidence that his brother-in-law did not inform him of the Tribunal Notification Letter for over two years requires one to believe that, assuming the applicant did not live at the address to which the Tribunal Notification Letter was sent, the applicant’s brother-in-law, but not the applicant’s sister, was aware of the letter, and that the applicant’s brother-in-law did not inform the applicant of the Tribunal Notification Letter until two years after the brother-in-law became aware of the letter. Although it is plausible that the applicant’s brother-in-law was the person who first became aware of the Tribunal’s letter, it is completely implausible that the applicant’s brother-in-law would not have informed the applicant of the letter for over two years.
I should also add that I found the applicant not to be a witness to whom any credit could be given. First, the applicant did not assert in the application that he did not become aware of the Tribunal’s decision until about one month before he applied for Ministerial intervention. The applicant there states he applied to the Minister on the advice of his agent, and he was “not aware of the judicial review”. Second, the applicant said he had not seen the Tribunal Notification Letter until he saw it in the court book. That is implausible, given that the applicant was aware of the Tribunal’s decision by 15 February 2016 when he applied for Ministerial intervention. Third, the applicant appeared to be unwilling to answer directly questions that were asked of him. For example, in cross-examination the applicant was asked how long after he became aware of the Tribunal’s decision did he ask his brother-in-law to seek advice on his behalf. The applicant did not directly answer that question, but said that his brother-in-law’s father was ill and had passed away, and that required the applicant’s brother-in-law to go to India. Further, after the applicant said he had found out about the Tribunal’s decision about one month before he applied for Ministerial intervention, I asked the applicant how he had found out about the Tribunal’s decision. The applicant did not answer that question, but said that his brother-in-law told the applicant that he had to apply for some visa because the applicant’s parents were coming to Australia.
Even if I were to accept the applicant’s evidence that he did not become aware of the Tribunal’s decision until about one month before he applied for Ministerial intervention, I would not accept his ignorance as constituting a reasonable and adequate explanation. The applicant does not suggest, and there is nothing in the material that could suggest, that he made any enquiry about the progress of his application for review before the tribunal. The applicant applied to the Tribunal by no later than 8 August 2013. It is unreasonable for the applicant not to have made any enquiry about the progress of his application for the two and half years that had elapsed by the time he applied for Ministerial intervention.
Merits of proposed grounds
I now turn to the merits of the grounds stated in the application.
Claims for protection
In his application for a Protection visa, the applicant claimed that on 8 January 2010 he was attacked by VHP members while demonstrating against the imprisonment of Balwant Singh Rojoana. The applicant claimed he was taking part in demonstrations “held all over Punjab”. He claimed that on 8 January 2010 “our group” was beaten by police and taken to the police station. Although no charges were laid against the applicant, he was warned his family would be attacked if he “continued”. The applicant claimed he fears he would be killed or kidnapped by Hindu groups. He claimed the Punjab police listed him as a trouble maker and a pro Khalistani member, that they would track him down, and that he would be arrested on false charges. The applicant also claimed his family continued to participate in demonstrations and were attacked on 30 May 2012.
Before the Tribunal
By letter dated 6 September 2013 the Tribunal informed the applicant that it had considered the material before it but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it at 1.30 pm on 14 November 2013.[9] The letter was sent by registered post to the address the applicant identified in his application as the address to which the Tribunal should send correspondence to the applicant.[10]
[9] CB95
[10] CB89
The applicant did not appear before the Tribunal. There is in evidence a case note prepared by an officer of the Tribunal which records the following:[11]
[11] CB96
attempted to track AP ID online however search found no events.
Contact AP who advised that the item was too old for it [t]o be tracked online. (6 september) however they looked through their database and found that the hearing invite was delivered and signed by [Initial and surname matching that of the applicant] on 11 Sept.
Member advised
Given the applicant did not appear before it, the Tribunal decided to rely on s.426A of the Act to proceed to make its decision without taking any further action to enable the applicant to appear before it. After setting out the applicant’s claims, the Tribunal concluded that, without more evidence from or on behalf of the applicant, the Tribunal could not be satisfied about why the applicant left India, or whether he cannot return or will not return to India because he fears the harm he claims.[12] The Tribunal, therefore, affirmed the delegate’s decision.
[12] CB104, [16]
Proposed grounds of review
The application, as initially filed, contained the following grounds of review (errors in original):
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.
2.The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law.
3.My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.
The amended application contains the following grounds:
1.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s91R(2)(a) of the Migration Act.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
At the hearing before me the grounds stated in the amended application were interpreted to the applicant and, after each ground was interpreted, I invited the applicant to make submissions about that ground. The applicant made no submission in relation to any of the grounds. I then asked the applicant why he submits the Court should set aside the Tribunal’s decision. The applicant said he wanted an opportunity to put documents before the Tribunal. When I asked why he had not done that before, he said he was not aware he had to supply to the Tribunal all the things he ought to have supplied.
None of the proposed grounds stated in the application or the amended application have any merit. There is nothing in the Tribunal’s reasons or material before me that suggests the Tribunal proceeded under an incorrect understanding of s.36(2A) or s.91R(2)(a) of the Act. There is also nothing in the Tribunal’s reasons or in the material before me that suggests that s.424A of the Act was engaged. The Tribunal affirmed the delegate’s decision, not because it relied on information that was the reason or a part of the reason for affirming the decision, but because, on the material that was before it, it could not be satisfied that the applicant met the criteria for protection. Further, that the applicant may have been unaware that it was necessary to provide to the Tribunal all relevant information in his possession is not a matter that gives rise to any arguable case of jurisdictional error.
Conclusion
Given the long period of delay, the applicant’s not having provided any adequate explanation for that delay, and the absence of merit in any of the grounds set out in the application and amended application, I am not satisfied it is necessary in the interests of the administration of justice to make an order under s.477(2) of the Act to extend the 35 day period prescribed by s.477(1) for making an application for relief under s.476 of the Act. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 18 August 2017
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