BJD16 v Minister for Immigration and Border Protection

[2016] FCCA 2537

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJD16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2537

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – extension of time – no arguable grounds – s.438 certificate as to personal information of interpreter – no jurisdictional error – no practical injustice – application under s.477 dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 375A, 438, 476, 477.

Cases cited:

MZAFZ v Minister for Immigration [2016] FCA 1081

Singh v Minister for Immigration & Anor [2016] FCCA 2464

Spencer v Commonwealth of Australia (2010) 241 CLR 118

First Applicant: BJD16

Second Applicant: BJF16

Third Applicant: BJG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1414 of 2016

Judgment of: Judge Street

Hearing date: 30 September 2016

Delivered at: Sydney

Delivered on: 30 September 2016

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1414 of 2016

BJD16

First Applicant

BJF16

Second Applicant

BJG16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 January 2014. The proceedings in this Court were commenced on 2 June 2016. Under s.477(1) of the Act the applicants were required to commence proceedings by 6 February 2014 being 35 days from the date of the Tribunal’s decision. Proceedings in this Court are two years and 117 days out of time.

2. The first and second applicants are citizens of China. The first and second applicants are the parents of the third applicant. The claims to fear harm advanced by the first applicant were based on her practice of her religion in China and her involvement with the local church as well as that of her parents and also the third applicant being born out of wedlock and treated as a black child.

3. The first applicant arrived in Australia on 9 April 2008 as the holder of a Student (Schools Sector) subclass 571 visa, which ceased on 9 May 2008. The applicant was granted a second Student (Schools Sector) subclass 571 visa on 9 May 2008. That visa ceased on 15 March 2010. The first applicant then remained unlawfully in Australia until she lodged an application for protection.

4. The second-named applicant arrived in Australia on 16 June 2007 as the holder of a Student (Schools Sector) subclass 571 visa. That visa ceased on 5 July 2007. The second applicant was subsequently granted a second Student (Schools Sector) subclass 571 visa on 5 July 2007. That visa was cancelled on 30 April 2009. The second applicant then remained unlawfully in Australia until granted a bridging visa on 1 July 2009 for the purpose of leaving Australia. That visa ceased on 15 July 2009 and the second applicant again remained unlawfully in Australia until the lodging of the application for protection.

The Delegate’s Decision

1. The delegate made adverse findings in relation to the credit of the first applicant and found that she was not a Christian or adherent of the local church. The delegate found that neither applicant was a genuine or committed Christian or adherent of the local church and he found that they will not be arrested, detained or otherwise harmed by the Chinese authorities for reasons of their adherence to the local church. The delegate addressed the issue of the ability of the parents to obtain household registration under the Hukou system and had no doubt that the applicants would be able to pay the fine if required.

2. The delegate was not satisfied that there was a real chance of the applicants being persecuted for a Refugees Convention reason and found that the applicants’ fear of persecution as defined under the Refugees Convention was not well-founded. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm.

The Tribunal’s Decision

1. The applicants applied for review on 15 April 2013. By letter dated 20 November 2013, the applicants were invited to attend a hearing on 23 December 2013. The applicants appeared on that date to give evidence and present arguments. The Tribunal correctly identified the relevant law and identified the applicants’ claims and evidence. The Tribunal found the first applicant was not a witness of truth and that the account of the events on which her protection claims were based was false. The second applicant applied for protection as a member of the family unit and did not have his own protection claims. The Tribunal found that the first applicant and her partner have the capacity to pay the requisite fee for their child to have household registration. The Tribunal also found there is no credible evidence that the parents of the applicants could not assist them.

2. The Tribunal noted that, as it had found that the first and second applicants were not witnesses of truth, the Tribunal found there was no credible evidence about their financial means and did not accept the assertion that they were impecunious and unable to pay the requisite fee. The Tribunal found that there was not a real chance that the first applicant, her child or partner would suffer serious harm in China. The Tribunal found the applicants do not have a well-founded fear of persecution based on any Refugees Convention ground.

3. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants’ removal from Australia to China there is a real risk that the applicants will suffer significant harm. The Tribunal found that the applicants failed to satisfy the criteria under s.36(2) of the Act and affirmed the decision of the Tribunal.

Proceedings Before this Court.

1. At the commencement of the hearing the Court explained to the first applicant that this was a hearing of an application to extend time under s.477 of the Act. The Court explained that the relevant considerations were first an explanation for the delay; secondly, whether there was any prejudice to the respondents; and, thirdly, the merits of the application as to whether there was a sufficiently arguable case of jurisdictional error. The Court explained that the Minister conceded that there was no relevant prejudice and that accordingly the two relevant issues to determine whether an extension of time was warranted in the interests of the administration of justice under s.477 was the first adequacy of the explanation for the delay and secondly whether there was a reasonably arguable case of jurisdictional error.

2. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that in summary, this meant the Court was considering whether there was a reasonably arguable case that the Tribunal’s decision was made unlawfully or unfairly. The first applicant confirmed that she had understood what the Court had said. The Court indicated that if not satisfied that there was a satisfactory explanation for the delay or a sufficiently arguable case the application for an extension of time may be dismissed.

3. The Court explained that if satisfied that there was an adequate explanation for the delay and a sufficiently arguable case, the Court would extend the time and fix the matter for hearing on another occasion. The Court explained to the first applicant it would have identified the evidence, then hear submissions from the applicants, then hear submissions from the Minister, and then hear submissions from the applicants in reply. The first applicant confirmed that she understood what had been said by the Court as to the nature of the hearing.

4. On 23 June 2016 a Registrar of the Court made orders providing an opportunity to the applicants to file an amended application, affidavit evidence, and submissions. No such documents were filed by the applicants. The grounds of the application are as follows:

   1.  I felt uncomfortable and depression at that time.

   2. At that time, we have a daughter to support and don't have much money to appeal to the Federal Circuit Court.

5. Section 477 of the Act provides as follows:

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   “date of the migration decision” means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or

   (b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

   (c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

   (ca) in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or

   (d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

6. The first applicant’s explanation for the delay was, in substance, that they did not have enough money and that she did not know what to do and did not understand the procedures as to how to appeal. I accept the Minister’s submission that the delay in the present case is exorbitant and that that explanation is totally inadequate. I note, however, that there is no prejudice alleged by the Minister and the Court must take into account whether there is a sufficiently arguable case, notwithstanding the inordinate delay, to satisfy the Court that it is necessary in the interest of the administration of justice to extend time under s.477 of the Act.

7. The grounds of the application are, in substance, an impermissible challenge to the adverse findings of the Tribunal. It is apparent that the Tribunal addressed the applicants’ claims. On the face of the material before the Court, the Tribunal complied with its statutory obligation in the conduct of the review.

8. From the bar table, the first applicant asserted that she twice requested an adjournment during the course of the hearing so that she could attend her young child who was outside the hearing room in the presence of her husband and crying. The Tribunal referred to that matter in the substance of its reasons. The first applicant asserted that because she was distracted she was, therefore, unable to focus her attention on the evidence given. It is apparent the Tribunal understood and took into account the request that was made in the course of the hearing and, as the Tribunal explained, it was almost concluded at the time the request was made. There is no other evidence to support the assertions by the first applicant from the bar table. On the face of the material before the Court, I am satisfied that the applicant has had a real and genuine hearing.

9. I am not satisfied that there is any arguable case of jurisdictional error in relation to the conduct of the hearing. I do not accept that the adverse findings made by the Tribunal were adversely affected in any way by the assertion advanced by the first applicant that she was distracted because of the child she brought to Court who was in the custody of her husband. On the material before the Court there is no arguable case of denial of procedural fairness.

10. I should, however, identify that the Minister, consistent with his duty as a model litigant, has brought to the Court’s attention that there was in the present case a certificate issued under s.438 of the Act in relation to a document that was the booking and identification of a proposed interpreter. The certificate referred to that booking information being one that should not be disclosed to the applicant or the applicant’s representative because it contains documents affecting personal privacy.

11. The relevance of the booking details of the interpreter were completely irrelevant to the merits and assessment of the claims and evidence of the applicants under s.36(2) of the Act. Moreover, it is apparent from the Tribunal’s reasons that there was no reference to the subject matter of the s.438 certificate. The Court’s attention was drawn to the decision of the learned Beach J in MZAFZ v Minister for Immigration [2016] FCA 1081. In that case the Court found that the loss of opportunity by the applicant to address the certificate and whether an application could be made under s.438(3)(b) gave rise to a denial of procedural fairness. In the present case the information the subject of the certificate is clearly irrelevant and could not have in any way advanced or detracted from the assessment of the claims and evidence of the applicant. In my opinion, the decision in MZAFZ is clearly distinguishable on that ground.

12. I note that there is a decision of Judge Jarrett in Singh v Minister for Immigration & Anor [2016] FCCA 2464 which purports to follow the reasoning in MZAFZ in relation to a certificate under s.375A. That case is also distinguishable from the circumstances in the present case given the nature of the information the subject of the certificate in the present case, quite apart from being a different statutory provision.

13. I accept on the evidence before the Court the certificate was not provided to the applicants in the conduct of the review. However, for the reasons I have given the certificate and the information the subject of the certificate were entirely irrelevant and could not have impacted on the conduct of the review. In these circumstances, there was no denial of procedural fairness in the conduct of the hearing and no arguable case or a sufficiently arguable case of a denial of procedural fairness in the conduct of the hearing to make it necessary in the interest of the administration of justice to extend time under s.477 of the Act.

14. I take into account that there is no right of appeal from a refusal by this Court to make an order under s.477 of the Act. However, for the reasons I have given there is no sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

15. I am satisfied that the application fails to disclose any arguable case. I am satisfied that the issue drawn to the Court’s attention in respect of the certificate under s.438 in the present case is obviously distinguishable from the circumstances dealt with in MZAFZ and also clearly distinguishable from the decision of Judge Jarrett in Singh.

16. Further, I accept the submission of the solicitor for the Minister that even if there was thought to be an arguable case of breach of procedural fairness by reason of the failure to disclose the certificate issued under s.438 of the Act, it had no practical consequence for the conduct of the review in this case. In other words, there was patently no practical injustice occasioned by reason of any such issue of alleged breach of procedural fairness. That is because the information was patently irrelevant. Further, information that is not taken into account by the Tribunal, as in the circumstances of the present case in respect of the certificate, cannot on its face give rise to a finding of a denial of procedural fairness. Accordingly on this issue there is insufficient merit to warrant an extension of time in the interest of the administration of justice

17. Further, if, contrary to the reasons I have given, it was arguable that the certificate should have been provided to the applicants, the circumstances of the present case and the inordinate delay are ones that would still engage the discretion of the Court in considering whether it is necessary in the interest of the administration of justice to extend time. Because it is patent that there was no practical injustice arising from the failure to disclose the certificate it could not possibly have had an adverse impact on the outcome of the review.

18. In these circumstances I find that it is not necessary in the interests of the administration of justice to make an order under s.477.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 October 2016