BIZ15 v Minister for Immigration
[2017] FCCA 2861
•23 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIZ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2861 |
| Catchwords: MIGRATION – applicant failed to appear at departmental interview – applicant failed to appear before Tribunal – applicant completed Tribunal application by specifying his address – documents sent to that address – applicant asserted he did not receive documents – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426A, 426B, 441A(4), 477 |
| Cases cited: Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351 Tran v Minister for Immigration and Border Protection [2014] FCA 533 |
| First Applicant: | BIZ15 |
| Second Applicant: | BJA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1617 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 13 October 2017 |
| Date of Last Submission: | 13 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2017 |
REPRESENTATION
| First Applicant in person |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicants pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1617 of 2015
| BIZ15 |
First Applicant
| BJA15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
More than a year beyond the 35-day period prescribed by s.477 of the Migration Act 1958 (Cth) (“the Act”), the first applicant in this case applied to this court for judicial review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”). The first applicant needed an order extending time.
He sought such an order.
The Minister contended that the application for an extension of time should be refused because the applicants did not meet the criteria prescribed by s.477(2) of the Act.
The question in this case was whether it was in the interests of the administration of justice to make the order extending time.
Synopsis
For the reasons that follow, in my judgment an extension of time should be refused.
A short factual narration
At all relevant times the applicants, a married couple, were citizens of India who arrived in Australia on 27 February 2013 as holders of tourist visas, valid until 27 May 2013. On 24 May 2015 they applied for protection visas.
In his visa application form, the first applicant claimed he left India to save his wife’s life as well as his own. He claimed he would be killed by “police, BJP member and local BJP supporter”[1] (errors in original) if he returned to India because of what he described as a local government leader who he said was opposed to him. The second applicant claimed protection on the basis that she was a member of the first applicant’s family unit. The first applicant provided a statement in support of his visa application in which he claimed that he worked in his family’s farming business in India and was a follower of the “congress party”.[2]
[1] Court book filed 12 February 2016 at p.30.
[2] Court book filed 12 February 2016 at p.52.
On his visa application form the first applicant listed as his residential and postal address “8/1 Rosstown Road Carnegie Vic 3163”.[3] He also provided a mobile telephone number.
[3] Court book filed 12 February 2016 at p.23.
On 5 June 2013 an officer of the department sent the first applicant a letter acknowledging receipt of his visa application and invited the applicant to arrange an interview with the delegate within seven days. The applicant failed to do so.
On 8 August 2013 the delegate of the Minister refused to grant the visa.[4] The delegate found that, among other things, the applicants’ claims were critically lacking in detail and that the delegate was unable to gather further information about the applicants’ claims because the first applicant had failed to arrange an interview.
[4] Court book filed 12 February 2016 at pp.67-74.
On 6 September 2013 the applicants applied to the Tribunal for review of the delegate’s decision. In the review application form,
the applicants listed a different address as the residential address and address for correspondence, namely 1/1 Rosstown Road Carnegie.
On 9 September 2013 the Tribunal sent an acknowledgement letter to 1/1 Rosstown Road Carnegie, being the address on the Tribunal application form. On 11 March 2014 the Tribunal sent the applicants an invitation to attend a hearing on 11 April 2014. That invitation was sent by registered post to the applicants’ address that appeared on the review application form, namely, 1/1 Rosstown Road Carnegie.
Neither the acknowledgment form nor the invitation to attend the hearing was returned to the Tribunal.
The applicants did not respond to the hearing invitation and they did not appear at the scheduled hearing. The Tribunal proceeded under s.426B of the Act and dealt with the case in their absence.
The Tribunal recorded that the applicants had failed to respond to the invitation and had also not attended an interview before the delegate.
In the circumstances, the Tribunal decided to make a decision on the review without taking any further action to enable the applicants to appear before it.
Between paragraphs 24 and 25 of its reasons, the Tribunal set out the applicants’ claims, recording that the delegate was not satisfied about the applicants’ claims and that the delegate had not been satisfied that the applicants could not relocate in India.
[5] Court book filed 12 February 2016, p.94 at [28].
The Tribunal found that the evidence before it was
“extremely limited”[5]and that the first applicant’s statement lacked “convincing detail”.[6] Ultimately, on the material before it the Tribunal said in paragraph 28 of its reasons that it was unable to appreciate the extent of the first applicant’s association with the Congress Party or how that was perceived by others. In paragraph 29 of its reasons the Tribunal said it had no sense of when the claimed events occurred or how and why the first applicant’s life was at risk. The Tribunal stated that it was not satisfied that the first applicant was affiliated with the Congress Party or that anyone had taken an adverse interest in him for political or other reasons. The Tribunal stated that it was not satisfied that any of the claimed events occurred. The Tribunal did not accept that the applicants faced a real chance of serious harm.
[6] Ibid.
The Tribunal affirmed the decision of the delegate not to grant the applicants a protection visa.[7]
[7] Court book filed 12 February 2016 at pp.90-95.
In this court
The first applicant sought relief in this court significantly out of time.
He needed an extension of time. In order to obtain such an extension of time, he needed to demonstrate that his substantive case for judicial review was sufficiently arguable to justify the extension of time.
On behalf of the Minister, Mr Brown of counsel submitted that the longer the delay, the more persuasive the explanation must be,
in support of which he cited the decision of Wigney J of the
Federal Court of Australia in Tran v Minister for Immigration and Border Protection[8] as well as the decision of Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection.[9]
[8] [2014] FCA 533.
[9] [2014] FCA 1351.
Mr Brown submitted that having regard to the merits of the proposed judicial review proceeding, an extension of time should not be allowed.
The applicants’ substantive case for judicial review is not sufficiently arguable
At the outset let me state my conclusion on that point. In my view the application for judicial review is without merit and it would serve no purpose to grant the extension sought.
These are my reasons for that conclusion.
In his application to this court filed on 15 July 2015, the first applicant stated three grounds, the verbatim transcription of which was as follows –
1. I applied for PROTECTION VISA to department of immigration which was refused.
2. Then I apply to RRT for review of that decision.
3. I never received any latter (sic) for my hearing or decision from tribunal.[10]
[10] Application filed on 15 July 2015 at p.2.
It may fairly be said that the first and second grounds were merely narrative. They were not proper grounds upon which orders for judicial review may have been made. The only relevant ground was the third. That invited an examination of the factual substratum of this case concerning the service of documents upon the applicants by the Tribunal.
The decision of the delegate was sent to the address given by the
first applicant, being 8/1 Rosstown Road Carnegie.
The first applicant filed his application for review to the Tribunal giving a different address as his postal address. Rather than specifying 8/1 Rosstown Road Carnegie as his address, he nominated
1/1 Rosstown Road Carnegie as his address for service. The Tribunal acknowledged receipt of the application by letter dated
9 September 2013 sent to the address given by the first applicant on his application to the Tribunal, namely 1/1 Rosstown Road Carnegie.
By letter dated 11 March 2014 the Tribunal wrote to the first applicant at his stated address, 1/1 Rosstown Road Carnegie, inviting the applicants to appear before the Tribunal to give evidence and present arguments. The stipulated time was 1.00 p.m. on 11 April 2014 at
Level 10, 120 Spencer Street Melbourne. The applicants did not appear at the nominated Tribunal hearing. The first applicant had been given notice of the hearing by being served with the invitation to appear at the address that he notified under his own hand.
In paragraph 3 of its reasons the Tribunal referred to the fact that it wrote to the applicants at the last address for service provided by the applicants, in accordance with s.441A(4) of the Act. In paragraph 6 of its reasons the Tribunal stated that the applicants had not attended an interview with the department in relation to the application and, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
In my view that course was proper.
Ultimately, the Tribunal found that the evidence before it was extremely limited and that it was not satisfied that the applicant satisfied the criteria set out in s.36(2)(a) or under s.36(2)(aa) of the Act and therefore affirmed the decision not to grant the protection visa.
In accordance with my usual practice when an applicant for judicial review is not represented and where the applicant’s command of the English language is limited, as was the first applicant’s in this case, especially when English was not the applicant’s first language, I invited the first applicant to enter the witness box and after being affirmed,
to tell me in his own words what he said the Tribunal did wrong.
The following is an accurate distillation of his evidence between pages 16 and 19 of the transcript –
a)the first applicant said “all I’m thinking is that the decision should be a favourable one, in which my life can be a better life here”;[11]
b)he said “I agree, your Honour, that it was the wrong address and I say that I did not receive any communication from the tribunal either”;[12]
c)he agreed he had moved from 1/1 Rosstown Road Carnegie;
d)he did not remember when or how he informed the Tribunal of his address after he moved from 1/1 Rosstown Road; and
e)he said he did not have any direct knowledge of notifying the Tribunal that he told the Tribunal that he had changed his address from 1/1 Rosstown Road.
[11] Transcript of proceedings, 13 October 2017 at p.16.
[12] Ibid.
In answer to questions from Mr Brown, the first applicant said he did not remember when he left 1/1 Rosstown Road and that he may have received correspondence from the Tribunal but he did not remember anything. He said he may have received the letter from the Tribunal dated 9 September 2013 acknowledging his application to the Tribunal sent to 1/1 Rosstown Road but he did not remember.
To my mind the Tribunal was entitled to proceed in the way that it did having sent correspondence to the applicants, which correspondence went unanswered, to the address that the first applicant himself notified. In those circumstances, the Tribunal was not required to search its records to see if there was any other way of communicating with the applicants, as was held in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC.[13]
[13] (2006) 150 FCR 439.
Here, the applicants did not engage with the review process beyond filing the application to commence the proceeding in the Tribunal. They did not attend an interview with the delegate and did not file any evidence or submissions nor did they contact the Tribunal to seek an adjournment. To my mind, the circumstances of this case had a parallel to those in SZTXE v Minister for Immigration and Border Protection[14] and in MZALO v Minister for Immigration and Border Protection.[15]
[14] [2015] FCA 493.
[15] [2016] FCA 1339.
In my view the application for judicial review was without merit.
Accordingly, no point would be served in extending time to the applicants to bring this application as it would not succeed.
In those circumstances I dismiss this application for an extension of time and order the applicants to pay the Minister’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 23 November 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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