BOC16 v Minister for Immigration

[2016] FCCA 2665

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOC16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2665

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – application for an extension of time – no sufficiently arguable case of jurisdictional error to warrant an extension of time – not in the interests of the administration of justice to order an extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 426A, 476, 477, 494C(5).

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BOC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1608 of 2016

Judgment of: Judge Street

Hearing date: 14 October 2016

Date of Last Submission: 14 October 2016

Delivered at: Sydney

Delivered on: 14 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms J Blake

Clayton Utz

ORDERS

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

2. The Applicant pay the First Respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1608 of 2016

BOC16

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 May 2016, affirming the decision of the delegate to grant the applicant a Protection (Class XA) visa. Proceedings in this Court were filed on 24 June 2016, which was 3 days outside the 35 day time period under s.477 of the Act. Accordingly, the applicant requires an extension of time under s.477(2) of the Act, which provides as follows:-

   (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.

2. The applicant is a citizen of Bangladesh and his claims were assessed against that country. Relevantly, the applicant applied for and was granted a TU 573 visa on 1 May 2011. The applicant arrived in Australia on 22 June 2011. The TU 573 visa was valid until 25 August 2012.       

3. On 21 September 2012, the applicant lodged an application for a TU 572 visa. On 13 December 2012, the TU 572 visa was refused. On 21 October 2013, a differently constituted Tribunal affirmed the decision refusing the applicant the TU 572 visa. On 21 November 2013, the applicant lodged a request for Ministerial Intervention which was notified on 17 March 2014, but has not been considered. 

4. On 30 April 2014, the applicant lodged an application for protection.  The applicant claimed to fear harm if he returned to Bangladesh and that he possibly would be killed because he was a witness to a murder in that country.  The applicant made no explicit claims of fearing harm in Bangladesh for any of the Convention grounds of race, religion or nationality. 

Before the Delegate

1. The applicant attended an interview and the delegate was prepared to accept the applicant may have witnessed a murder as claimed. The delegate was not satisfied that such a situation places the applicant in a particular social group in the Convention sense. The delegate was not satisfied that a Refugees Convention ground is the essential and significant reason for the harm feared as required by s.91R(1) of the Act. The delegate found there is no Refugees Convention nexus for the harm feared by the applicant.

2. The delegate was not satisfied that Australia had protection obligations to the applicant and found that the applicant did not meet the criteria under s.36(2)(a) of the Act.

3. The delegate then considered the issue of complementary protection including the applicant’s delay in lodging the Protection visa application. The delegate was not satisfied there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will be subject to significant harm. The delegate was not satisfied that Australia had protection obligations to the applicant and found that the applicant failed to satisfy the criteria under s.36(2)(aa) of the Act.

Before the Tribunal

1. The applicant applied for review on 6 January 2015.  In the application for review, the applicant did not identify his telephone number in relation to contact details. However, the applicant provided a residential address and his email. The applicant provided both the residential address and his email in relation to identifying where he wished to have correspondence sent.

2. Under the heading, Part D Communication by email, relevantly, the form provided a note:-

   If you have provided an email address, the Tribunal may use the email address to contact you. You can also agree to the Tribunal sending all case correspondence by email, including hearing invitations, written requests to respond to adverse information and decision notifications.

   Underneath that note, there was a further Question 14:-

   Do you agree to the Tribunal sending all correspondence by email, acknowledging that there are risks in transmitting information via email and that while the Tribunal strives to protect such information, it cannot guarantee the security or integrity of information transmitted via email or other means?

   The box was ticked “Yes” by the applicant. 

3. Prior to the lodging of the application, the applicant had received email communication to the email address identified in the application for review in respect of his application for protection. Following the lodgement of the application for review, the applicant was sent an email dated 7 January 2015 to the email address acknowledging receipt of his application. The applicant accepted in evidence that he received that email communication.

4. On 31 March 2016, the Tribunal sent the applicant an invitation to a proposed hearing on 17 May 2016. The invitation was sent to the correct email address as identified in the applicant’s application for review.  The applicant gave evidence contending that he did not receive the email. The applicant accepted that he received the email communication sent on 18 May 2016 to his email address enclosing the decision of the Tribunal. 

5. Relevantly, the invitation sent to the email address on 31 March 2016 identified that the Tribunal had considered the material before it but was unable to make a favourable decision on the information alone.  The Tribunal, in its reasons, identified the sending of the letter inviting the applicant to appear. The Tribunal noted that the letter notified the applicant that if he did not attend at the hearing, or there was not a postponement granted, the Tribunal may make a decision on the case without further notice.

6. The Tribunal expressly referred to the letter being sent to the email address given in the applicant’s application for review as being an email address to which he wished to have correspondence about his application sent. The Tribunal noted that it did not receive a response to that letter. The Tribunal noted that it did not receive any message that the email address was no longer valid or that the Tribunal’s letter was not received at that email address.

7. The Tribunal noted that the applicant did not appear at the time and place that he was scheduled to appear. The Tribunal noted that there was no further communication received from the applicant. The Tribunal noted that the applicant did not contact the Tribunal to explain his nonattendance or to request that the hearing be rescheduled.

8. From the time of the Tribunal’s hearing date to the time of the Tribunal’s decision, 10 days had passed. The Tribunal was satisfied that the applicant was invited to appear before the Tribunal and that the invitation was sent to the email address specified by the applicant as being the email address to which he wanted correspondence about the review to be sent.         

9. It was in these circumstances that the Tribunal decided to make its decision without any further action to enable the applicant to appear before it. The Tribunal was not satisfied the applicant was a person in respect of whom Australia obligations under the Refugees Convention and found that it was not satisfied that the applicant met the criteria under s.36(2)(a) of the Act.

10. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has a protection obligation under s.36(2)(aa) of the Act and was not satisfied that the applicant met the criteria under s.36(2)(aa) of the Act. The Tribunal found that the applicant did not meet the criterion under s.36(2) of the Act and affirmed the decision of the delegate.

Before this Court

1. Proceedings before this Court were commenced on 24 June 2016 and on 18 August 2016, a Registrar of the Court made orders fixing the matter for hearing today. The applicant was given the opportunity to file and serve any affidavit containing any additional evidence, amended application and written submissions. No such documents were filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant that this was an application for an extension of time. The Court explained that this meant the Court had to consider the explanation for the delay in the commencement of the proceedings, whether there is any prejudice to the first respondent and also whether the applicant had a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

3. The Court explained to the applicant that whether there is a sufficiently arguable case required there to be a reasonable argument that the Tribunal’s decision was made either in excess of statutory power or was the subject of a denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful, or a reasonable argument that the Tribunal’s decision was unfair. 

4. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.

5. The application filed in this Court identified the following grounds:

   1. I did not receive any invitation from R.R.T so I couldn’t attend the interview. I was waiting for the interview with few supporting documents, I think its impotent supporting my claim. Also over the time my relation with my family has been changed a lot. And I believe that also importent to support my claim.

   (All errors in original)

6. The applicant proffered an explanation for the three day delay in relation to his financial circumstances. The applicant explained that he had attended Court to discover that there was a fee that had to be paid and this was part of the reason why his application was late.

7. The Court is prepared to accept the applicant’s explanation in circumstances of the present case as a sufficient explanation in respect to the short delay. There was no suggestion of prejudice to the first respondent. 

8. Accordingly, the critical issue in the present case is whether there is a sufficiently arguable case to satisfy the Court that it necessary in the in interests of the administration of justice to make an order under s.477 of the Act. The applicant did give sworn evidence to the effect that he had not received the email which was the invitation to attend the hearing. Given that the applicant received communications sent prior to 31 March 2016 at the email address he identified and following that invitation to the same email address, the Court does not accept that the email was not sent by the Tribunal to the applicant’s correct email address.

Consideration

1. The Court finds that the Tribunal complied with s.494C(5) of the Act by sending an email communication to the address provided by the applicant and that the applicant was taken to have received that document when transmitted. The Court does not accept that applicant’s evidence that the email was not received by the applicant.

2. In considering whether there is a sufficiently arguable case to warrant an extension of time, the Court has taken into account s.426A and the reasoned decision by the Tribunal some 10 days after the invitation to attend the hearing in which the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

3. This was a case where there had been no earlier engagement by the applicant following the lodging of the review or communication from the applicant to the Tribunal following the parts about the day for the applicant to attend and that some 10 days had elapsed without contact by the applicant to the Tribunal. 

4. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of material before the Court, there is no arguable case that the Tribunal’s decision to proceed with making its decision was unreasonable and no arguable case that that decision could be said to lack an evident and intelligible justification. 

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The grounds in the application fail to identify a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

2. That which was said by the applicant from the bar table did not identify any sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. In the circumstances of the present case, I am not satisfied that there is a sufficiently arguable case of jurisdictional error so as to be satisfied that it is necessary in the interests in the administration of justice to make an order extending time under s.477 of the Act.

3. The application for an extension of time under s.477 of the Act is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 December 2016