BKV16 v Minister for Immigration

[2018] FCCA 1532

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1532

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 57 days under s.477(2) of the Migration Act 1958 (Cth) – Applicant did not attend interview with the Delegate of the Minister for Immigration and Border Protection nor attend the scheduled hearing before the Administrative Appeals Tribunal despite an invitation and two SMS text reminders of scheduled hearing date – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.36, 414, 425, 426A, 477

Cases cited:
AWA15 v Minister for Immigration [2018] FCA 604
Bechara v Bates [2018] FCA 460
Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZABP v Minister for Immigration (2015) 242 FCR 585
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 287
Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365
SZRRW v Minister for Immigration and Citizenship [2013] FCA 332
WZAVW v Minister for Immigration [2016] FCA 760

Applicant: BKV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1478 of 2016

Judgment of: Judge Dowdy

Hearing date: 30 August 2017

Delivered at: Sydney

Delivered on: 15 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms M. Donald

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 9 June 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1478 of 2016

BKV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a female citizen of Malaysia aged 27 years, having been born on 9 January 1991.

2. By Application filed in this Court on 9 June 2016 she seeks:

   a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of 57 days outside the time limit prescribed by s.477(1) for her to make her substantive application to this Court under s.476(1); and

   b)to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 March 2016, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 31 August 2015 refusing to grant to her a Protection (Class XA) visa (Protection visa).

3. The Applicant most recently arrived in Australia using her Malaysian passport on 24 April 2015 on a Tourist (Subclass 601) visa valid until 24 July 2015. She applied for the Protection visa the subject of this proceeding on 2 June 2015.

Claims for Protection

1. In answer to questions 90 to 97 of her Protection visa application form the Applicant made the following claims to protection, which did not thereafter change:

   Question 90 – Why did you leave that country(s)? Provide specific details

   I leave my country because I’m Buddhist and I have relationship with my boyfriend and he religion is Muslim.  We living together but it would be very difficult to have distance relationship. He family did not accept me because I am not a Muslim. And the Islamic fundamentalists force me to followers of Islam.  I’m a Buddhist and I can’t to followers of Islam. And the Islamic fundamentalists they said if I not followers of Islam. They will have the prosecution responsibility. I will be sued about “close proximity” between unmarried men and woman and having extramarital sex. That why I felt scared to go back Malaysia.

   Question 91 – What do you think will happen to you if you return to that country(s)?

   I think if me return to my country I will be sued from Islamic fundamentalists. Because I not followers of Islam.

   Question 92 – Did you experience harm in that country(s)?

   Yes.

   I will face ostracism.  The Islamic fundamentalists force me to followers of Islam.  If I not follower of Islam they will sued me in case “close proximity” between unmarried man and woman and having extramarital sex.  And I felt about not right of privacy because the Islamic fundamentalists they have the authority to raid private premises as well as public establishments.

   Question 93 – Did you seek help within the country(s) after the harm?

   I try to report the police, but they authorities cannot protect me.  They will tell me that it is the family that matters and they will find out that me does not follow Islam law and refuse to help me.

   Question 94 – Did you move, or try to move, to another part of that country(s) to seek safety?

   No.

   In Malaysia, Islamic group is most powerful.  However you move to another part. The problem still having.

   Question 95 – Do you think you will be harmed or mistreated if you return to that country(s)?

   Yes.

   I think I will be sued by Islamic fundamentalists. And I can’t do anything, any help because I has offended the big organisation group of Islamic fundamentalists.

   If I will be sue of Islamic fundamentalists about case, I would be ostracism by all people include my family, my friend.

   Question 96 – Do you think authorities of that country(s) can and will protect you if you go back?

   No.

   Bad law and order in my country. Police only will protect who has a powerful organisation.

   Question 97 – Do you think you would be able to relocate within that country(s)?

   No.

   In my country all part of location have group Islamic. All part of my country also have Islamic fundamentalists.

2. In her Protection visa application form she also gave the following information:

   a)she indicated that she did not receive assistance in completing the Protection visa application form;

   b)she did not indicate that she had availed herself of the services of a migration agent or a lawyer;

   c)she stated that all written communications from the Department of the Minister should be sent to herself;

   d)she nominated her residential address in Mackay, Queensland (residential address);

   e)she gave her mobile telephone number (mobile telephone number); and

   f)she gave her email address.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. By letter dated 27 July 2015, which was sent by registered post to the Applicant at her nominated residential address, the Department of the Minister invited her to an interview with the Delegate on 12 August 2015. This letter advised the Applicant that if she did not attend the interview her Protection visa application might be decided on the information already provided. However, the Applicant failed to attend that interview and did not contact the Department either before the interview or by 31 August 2015 to give any reason for her non-attendance.

2. In her Decision Record the Delegate summarised the Applicant’s claims to protection as being:

   a)The Applicant claims she is a Buddhist.

   b)The Applicant claims she is in a relationship with a Muslim male in Malaysia.

   c)The Applicant claims that they were living together in Malaysia, and his family did not accept her as she was not Muslim.

   d)The Applicant claims that she has received pressure from Islamic fundamentalists to convert to Islam, and she will be prosecuted as she has had relations outside marriage.

3. In the result the Delegate found that without the Applicant being present at the interview to substantiate her claims and to satisfy the Delegate that she suffered a real risk of significant harm in Malaysia, the Delegate was not able to be satisfied that the there was a real chance that the Applicant would suffer persecution under the Refugees Convention criterion or face a real risk of significant harm in Malaysia under the complementary protection criterion. Accordingly, the Delegate found that Australia did not have protection obligations to the Applicant under s.36 of the Act and she refused to grant a Protection visa to the Applicant.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 13 September 2015 for merits review of the Delegate’s decision. On the application form she gave the same residential address but with inconsequential spelling errors in the street and suburb names, the same mobile telephone number, but a different email address (present email address), and there was no reference to a migration agent or a lawyer.

2. On 14 September 2015 an officer of the Tribunal rang the Applicant on the mobile telephone number in relation to the spelling errors and on 15 September 2015 the Applicant, by email from the present email address, confirmed the spelling corrections to her residential address.

3. By letter dated 15 September 2015, which was sent to the present email address, the Tribunal acknowledged receipt of the application for review of the Delegate’s decision.

4. The Tribunal, by letter dated 9 February 2016 sent to the present email address, advised that it was unable to make a favourable decision on the material then before it and invited the Applicant to appear before it pursuant to s.425(1) of the Act on 1 March 2016 at 2:30pm in West Mackay, Queensland. This letter further advised that if the Applicant did not attend the hearing the Tribunal might proceed to make a decision on the review without taking any further action to allow her to appear before it, or alternatively might dismiss her application for review without further consideration. This letter also attached a Response to Hearing Invitation, which was not returned to the Tribunal by the Applicant.

5. On 23 February 2016 the Tribunal sent an SMS text reminder to the mobile telephone number, reminding the Applicant of the Tribunal hearing scheduled for 1 March 2016.

6. Then on 29 February 2016 the Tribunal again sent an SMS text reminder to the mobile telephone number, reminding the Applicant of the Tribunal hearing scheduled for 1 March 2016.

7. Nevertheless, the Applicant did not appear at the Tribunal hearing scheduled for 1 March 2016 nor did she contact the Tribunal concerning her failure to attend. In these circumstances the Tribunal decided under s.426A of the Act to make its decision on the Application for review without taking any further action to enable the Applicant to appear before it.

8. From [3] to [8] of its Decision Record the Tribunal summarised the relevant legislation with respect to the grant of a Protection visa, and from [10] – [15] it set out a summary of the claims made by the Applicant in her Protection visa application.

9. At [20] – [30] of its Decision Record the Tribunal set out its findings based on the material before it. The Tribunal noted at [22] that the Applicant’s claims were substantially lacking in detail in significant respects, which details the Tribunal then identified. At [23] the Tribunal referred to country information emanating from various sources. At [24] the Tribunal noted that without more evidence from the Applicant the Tribunal could not be satisfied about why the Applicant had left Malaysia and whether she could or would not return to Malaysia for the reasons that she had claimed. In the same paragraph the Tribunal stated that it was unable to make a favourable decision on the information which had been provided.

10. In the result the Tribunal found that Australia did not have protection obligations to the Applicant either under the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.

Grounds of Application for Extension of Time Under s.477(2) of the Act

1. The Grounds for the application for the extension of time are as follows:

   1.My former lawyer did not inform me of AAT hearing, therefore I did not attend the hearing as scheduled.

   2.Neither did my former lawyer inform me of the AAT decision, I consequently missed the timeframe for appeal to federal circuit court.

Proposed Grounds of Attack on Tribunal Decision in this Court

1. The proposed Grounds relied upon by the Applicant are as follows:

   1. The Tribunal made jurisdictional error when making its decision to dismiss my application.

   2.The Tribunal ignored the fact of the serious harm I would suffer from the Muslim Group should I return to Malaysia.

   3.The Tribunal observed that my claims were substantially lacking in detail in significant respects. However, the Tribunal made jurisdictional error of ignoring the facts of materials that I have presented to the tribunal, specifically the information and documentation of the torture I have been through back then when I was in my home country.

Consideration of Extension Application

1. I first note that the delay of 57 days is not great in terms of this area of litigation and there is no real or actual prejudice to the Minister.

2. The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:

   [17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.

   (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

   (2) The length of the delay is a relevant factor.

   (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.

   (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

   (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

   [18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:

   12.    ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

   (emphasis removed)

3. It follows that in relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the substantive grounds, and only at “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 597 – 598 [62] per Mortimer J.

4. The Applicant asserts in Ground 2 that her “former lawyer” did not inform her of the decision of the Tribunal. She has filed no affidavit substantiating this Ground. There is no evidence at all before me that the Applicant had ever previously retained a migration agent or a lawyer, either before or after lodging her Protection visa application on 3 June 2015. At the hearing in this Court on 30 August 2017 when I asked her to address the issue of why she should have an extension of time she replied:

   THE INTERPRETER:   So I want to say maybe I’m half responsible for the problem, because I failed to notice certain messages.

   HIS HONOUR:   What messages is she talking about?

   THE INTERPRETER:   I mean, I have to lodge the appeal within 35 days.  Maybe I did get that information but I didn’t pay attention to it.  What’s the second issue?

5. When Ms Donald, who appeared for the Minister, had finished her submissions and I had invited the Applicant to reply to Ms Donald and to say anything further that she would wish to say in support of both of her extension application and her substantive grounds, the following was said:

   THE INTERPRETER:   Okay.  In terms of messages, because I do receive a lot of advertisement, so I would ignore those messages, so I may have failed to pay particular attention to those ones.

   HIS HONOUR:   But she had already got a letter telling her what date the tribunal hearing was on.

   THE INTERPRETER:   Yes.  Okay.  So in two of the addresses I lived, they didn’t have a cover for the letterbox.  So the mails that came would either be soaked in rainwater or be blown away to next-door neighbour or into our own yard.  So…      

   As I have recorded at [13] above, the letter of invitation to the Tribunal hearing under s.425(1) of the Act was transmitted by email to the Applicant, not by post.

1. The Applicant has failed to give any adequate or reasonable explanation for her delay in filing her Application in this Court. I reject her claim that the delay was the result of an omission of any lawyer. I now turn to consider whether or not the Applicant has reasonable prospects of success for her substantive Grounds.

Consideration of the Proposed Grounds in the Substantive Application

Proposed Ground 1

1. This proposed Ground fails to identify or particularize in any way its assertion of “jurisdictional error”. Failure to particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. However, I will take the proposed Grounds as attacking as legally unreasonable the Tribunal’s decision under s.426A(1A)(a) of the Act to make a decision on the Applicant’s application for review without taking any further action to allow or enable her to appear before it. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.427(1)(b) the Tribunal has the power to adjourn a review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing, to proceed with a hearing, and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and to give the relevant applicant a meaningful opportunity and a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.

2. In my view the Tribunal did not act in a legally unreasonable way in deciding to make a decision without taking any further action to allow or enable the Applicant to appear before it in support of her application for review. The decision of the Tribunal did not “lack an intelligible justification” nor was it “irrational” or “illogical”. The reasons for the Tribunal so acting are set out in [16] – [19] of its Decision Record. The Applicant had not appeared at the interview with the Delegate. She had been advised on three separate occasions of the Tribunal hearing scheduled for 1 March 2016, first by the s.425(1) letter emailed to her and twice by SMS texts. She appears to me to have been quite cavalier in her attitude to progressing her Protection visa application to a favourable result. This was not a case where there had been a pattern of close contact with the Tribunal, but rather the Applicant had not taken any active step or part in relation to her Protection visa application up to 1 March 2016, which hearing date was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [her] life”. The Applicant was under a personal responsibility to attend in aid of her application for review if she was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:

   [56]What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

3. Here the Applicant’s conduct in not appearing before the Tribunal was consistent with her earlier failure to take part in an interview with the Delegate and she had not completed and returned the Response to Hearing Invitation form (which had been attached to the Tribunal’s letter of invitation to hearing dated 9 February 2016), which if she had, might have evinced to the Tribunal that she had a real, close and vital interest in the review process being conducted by the Tribunal.

4. In my view, proposed Ground 1 would fail to establish jurisdictional error.        

Proposed Ground 2

1. Insofar as this proposed Ground would seek impermissible merits review by this Court of the Tribunal’s decision, it would not be maintainable in this Court. Assuming that the proposed Ground is more confined, it fails on a factual level because at [10] – [15] of its Decision Record the Tribunal records the Applicant’s claim of risk of harm from Islamic fundamentalists if she returned to Malaysia. Then at [25] the Tribunal recorded that it was not prepared to accept that the Applicant was or had been in a relationship with a Muslim person or that Islamic fundamentalists have raided or would raid her private premises for that reason. Notwithstanding this factual finding, at [26] the Tribunal went on to accept country information that indicated that non-Muslim persons who are in a relationship with a Muslim person are not punished under Malaysian law and there was not a real chance or a risk that she would be sued, punished or seriously or significantly harmed in Malaysia if she was in a relationship with a Muslim person. The choice of assessment of country information is a factual matter for the Tribunal and the Tribunal’s findings in this regard appear to me to have been legally open to it on the evidence.

2. Proposed Ground 2 would fail to establish jurisdictional error.

Proposed Ground 3

1. This proposed Ground would also fail to establish jurisdictional error.

2. First, there is no evidence that, since making her claims for protection in her Protection visa application, the Applicant ever presented “materials” or “information and documentation” in support of her claims to either the Delegate or the Tribunal.

3. Second, the Tribunal was not acting legally unreasonably in finding that the Applicant’s claims and evidence were substantially lacking in detail. The simple fact of the matter is that the Tribunal’s finding affirming the decision of the Delegate was almost inevitable in a situation where the Applicant did not attend the Tribunal hearing and her claims to protection were necessarily fact sensitive.  As the Full Court of the Federal Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett & Dowsett JJ:

   [5]In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

   See also SZRRW v Minister for Immigration and Citizenship [2013] FCA 332 at [7] per Nicholas J.

Conclusion

1. I do not consider that the proposed substantive Grounds relied upon by the Applicant are reasonably arguable or have reasonable prospects of success and in all the circumstances I consider that it is not in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time made by the Applicant pursuant to s.477(2) is refused.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  15 June 2018