FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPD15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1943 |
| Catchwords: MIGRATION – whether an extension of time pursuant to s.477(2) of the Migration Act 1958 should be granted – where delay limited and explanation reasonable – where arguable case – extension granted – where Applicant who is self-represented afforded opportunity to file further material at final hearing. |
| Legislation: Federal Circuit Court Rules 2001, r.12 Migration Act 1958 (Cth), s.477 |
| Applicant: | BPD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1782 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 April 2016 |
| Date of Last Submission: | 22 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant is granted an extension of time pursuant to sub-s.477(2) of the Migration Act 1958 (Cth) in which to file his application for judicial review.
The matter is listed for final hearing on 10 November 2016 at 10.00am.
The Applicant be referred to a Registrar of this Court pursuant to r.12.02(1) of the Federal Circuit Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance, that assistance pursuant to r.12.04 of the Federal Circuit Court Rules 2001 (Cth) to include:
(a)advice in relation to the proceedings;
(b)the drafting or settling of documents to be filed or used in the proceedings; and
(c)representation generally in the conduct of further proceedings before this Court.
Costs be reserved.
The parties have liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1782 of 2015
| BPD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This decision concerns an application for judicial review filed on 31 July 2015 (CB 1-6) of a decision of the Administrative Appeals Tribunal (“the Tribunal”) on 17 June 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”), on 16 March 2015 to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an…
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- Case
- [2016] FCCA 1943
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether it was necessary in the interests of the administration of justice to grant the applicant an extension of time to file his application for judicial review. This involved considering factors such as the reasonableness of the explanation for the delay, any prejudice to the Minister, and whether the applicant's substantive case for judicial review was sufficiently arguable. The applicant's explanation for the delay centred on his reliance on a case manager in immigration detention to file the application, and subsequent difficulties in confirming its receipt. The Minister conceded that the delay was short and caused no real prejudice, but argued against an extension on the basis that the grounds of review lacked merit.
The Court found that the applicant had provided a reasonable explanation for the short delay and that granting an extension would not prejudice the Minister. The Court then considered the arguable case requirement, focusing on the applicant's grounds of review: denial of procedural fairness due to an inadequate interpreter at the AAT hearing, and the AAT's failure to properly consider his claims. The applicant contended that the interpreter, who spoke Sri Lankan Tamil, was not suitable for his father, who spoke Malay Tamil, leading to misinterpretations and a denial of a fair hearing. The AAT, however, had considered this issue and found that while some difficulties may have arisen, they were not significant enough to prevent the father from giving evidence or the Tribunal from understanding it, noting that the father himself had not raised any concerns. The AAT had also rejected the applicant's claims regarding fear of harm from a loan shark, finding inconsistencies and vagueness in the evidence provided by both the applicant and his father. Despite the AAT's findings, the Court was satisfied that the grounds of review, particularly concerning the interpreter's suitability and its impact on the applicant's ability to present his case, were sufficiently arguable to warrant an extension of time.
Consequently, the Court granted the applicant an extension of time to file his application for judicial review. The matter was listed for a final hearing, and the applicant was referred to a Registrar for legal assistance through the pro bono panel, with costs reserved.
Orders
Orders of the court
1.
The Applicant is granted an extension of time pursuant to sub-s.477(2) of the Migration Act 1958 (Cth) in which to file his application for judicial review.
2.
The matter is listed for final hearing on 10 November 2016 at 10.00am.
3.
The Applicant be referred to a Registrar of this Court pursuant to r.12.02(1) of the Federal Circuit Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance, that assistance pursuant to r.12.04 of the Federal Circuit Court Rules 2001 (Cth) to include:
(a) advice in relation to the proceedings;
(b) the drafting or settling of documents to be filed or used in the proceedings; and
(c) representation generally in the conduct of further proceedings before this Court.
4.
Costs be reserved.
5.
The parties have liberty to apply.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLG 1782 of 2015
BPD15
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
1.
This decision concerns an application for judicial review filed on 31 July 2015 (CB 1-6) of a decision of the Administrative Appeals Tribunal (“the Tribunal”) on 17 June 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”), on 16 March 2015 to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
2.
Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant’s application was filed 16 days out of time.
3.
Pursuant to sub-s.477(2) of the Act, the Court may extend the 35 day period if, a) the application for an Order to extend the period has been made in writing to the 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the Order.
4.
In his application for judicial review, the Applicant’s ground for an extension of time centred around the fact that, at the time he received the decision of the Tribunal, he was in immigration detention and that he had relied on his case manager in the detention centre to file his application by facsimile. He said he requested, on numerous occasions, a copy of a receipt indicating that the document had been filed but was not given one. He then rang the Registry of this Court and was informed that his application forms had not been received. Following this, he filed his application for judicial review.
5.
As the Applicant has complied with sub-s.477(2)(a) of the Act, it falls to the Court to consider whether it is satisfied that it is necessary in the interests of the administration of justice, to make the Orders sought by the Applicant for an extension of time.
6.
I explained to the Applicant, who is self-represented, that the Court has a broad discretion under sub-s.477(2) of the Act. However, the factors that the Court generally takes into account are the extent of the delay, the reasons for the delay, any prejudice to the First Respondent and whether the application for judicial review discloses an arguable case: Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186; 3 FCR 244; 58 ALR 305.
7.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252, Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under sub-s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) as follows:
“46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
47. 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;
(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.”
48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.”
8.
The Minister concedes that the delay in filing the application is short and that there is no real prejudice to the Minister in allowing an extension of time. The Minister’s submission is, however, that an extension of time should not be granted on the basis that the grounds of review do not contain any merit.
9.
I am satisfied that the Applicant has provided a reasonable explanation for delay, which was a short period, and that there would be no prejudice to the Minister in allowing an extension of time.
Whether the Applicant's substantive case for judicial review is sufficiently arguable
10.
By way of background, the Applicant is a 19 year old citizen of Malaysia, of Hindu and Tamil ethnicity (CB 191 at [9]). The Applicant has, since 2011, spent interrupted periods of time in Australia and Malaysia.
11.
The Applicant applied for the visa on 23 January 2015 (CB 14-48).
12.
The Applicant claims to fear harm arising from a financial dispute between his father, regarding a loan borrowed around six years ago from a loan shark named Raj, following the collapse of the Applicant’s father’s scrap metal and transport business in 2008 or 2009.
13.
The Applicant claims that he had received threats from, and was harmed by, Raj on two separate occasions. The first incident occurred in 2012, while the Applicant was living with his stepmother. The Applicant claims that Raj and some of his friends came to his stepmother’s house, hit him and told the Applicant that he had two choices: work for Raj to pay off his father’s debt or to repay the money. The Applicant said he could not do either. The Applicant said that Raj beat him again, told him to ‘think again’ and said that he would return the next day. The Applicant claims that he reported the incident to the police but they called him racist names and told him to leave (CB 50-52, 191 at [9]).
14.
The second incident occurred in 2014, when Raj’s friend tried to kidnap the Applicant, but the Applicant managed to escape. The Applicant thereafter came to Australia to live with his sister, returned to Malaysia after 8 months but then returned to Australia two weeks later, because he heard that Raj was looking for him (CB 51, 191 at [9]).
15.
The Applicant fears that if he returns to Malaysia, he will be harmed by Raj as an incentive for his father to repay the money, or he will be forced to sell drugs on Raj’s behalf (CB 191 at [9]).
Tribunal hearing and decision
16.
On 19 March 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision (CB 81-82). On 15 April 2015, the Applicant was invited by the Tribunal to give evidence and present arguments relating to the issues in his case, at a hearing scheduled on 5 May 2015 (CB 91). On 1 May 2015, the Applicant’s representative, the Refugee and Immigration Legal Centre (“RILC”), provided a written submission to the Tribunal (CB 94-115).
17.
The Applicant appeared before the Tribunal for a hearing on 5 May 2015. On 15 May 2015, the RILC requested that the Tribunal invite the Applicant and his father to a further hearing, in order to allow the Applicant’s father to provide evidence to the Tribunal. The correspondence requesting the further hearing set out the instructions that the Applicant’s father had given to the RILC, that was relevant to the Applicant’s case (CB 166-167).
18.
The request for a further hearing was granted, and a hearing was listed by the Tribunal for 29 May 2015. There is a case note dated 27 May 2015 made by a staff member of the Tribunal. It records (CB 174):
“On 27/5/15 the Rep. called stating the witness required a Tamil (Malaysia) for the hearing on 29/5/15; and I checked the system, it appeared that the Tribunal has already booked a Tamil (Sri Lankan) for this hearing; and the Rep. stated she would put it in writing to the Tribunal about this matter; and I told her I would also make a case note regarding her call and bring it to the Member’s attention asap.”
19.
On 27 May 2015, the RILC wrote to the Tribunal member, stating relevantly (CB 176):
“…We have been advised that a Tamil interpreter has been booked for this hearing (on 29 May 2015) to assist (the applicant’s) father to give evidence.
We note that [the applicant’s] father is Malaysian and requires a Malay Tamil interpreter, not a Sri Lankan Tamil interpreter. We are therefore writing to confirm that the interpreter who has been booked is accredited in Malay Tamil. We are instructed that there is a difference in dialect between Malay Tamil and Shri Lankan Tamil.”
20.
The Court Book filed by the Minister does not contain any response to this correspondence. Furthermore, it does not contain the Tribunal’s usual form, which records those present at the hearing, for the hearing on 29 May 2016. This is not a criticism of the Minister. Rather, it is an observation of the absence of evidentiary material regarding the language skills of the interpreter at the hearing.
21.
In its decision record, the Tribunal accepted that the Applicant is a citizen of Malaysia and stated that, in assessing his claims and evidence, it took into account the fact the Applicant had only recently turned 18 years of age (CB 203 at [120]-[121]). The Tribunal accepted that the Applicant’s father borrowed money from a man named Raj, but otherwise rejected the Applicant’s claims, largely because of its adverse view of the credibility of the Applicant, having regard to the inconsistencies in the Applicant’s evidence, the inconsistencies between the Applicant’s evidence and his stepsister’s evidence and, relevantly for these proceedings, between the Applicant’s evidence and his father’s evidence.
22.
The Tribunal’s disbelief regarding the credibility of both the Applicant’s and his father’s evidence, is evident from the following extracts from the decision record (CB 203, 205-206) :
“122. The tribunal found several aspects of the applicant’s evidence to be vague, lacking in detail, exaggerated, based on hearsay and generally unreliable… It has taken into account evidence provided by the applicant’s father when assessing the applicant’s claims. However, the tribunal also found several aspects of the applicant’s father’s evidence to be vague and inconsistent. Furthermore, several aspects of the conduct of the applicant’s family members give rise to concerns about the applicants claim to face a real chance or risk of harm in Malaysia.
...
136. The applicant’s claims that he will face serious or significant harm from a loan shark named Raj appears to be predicated on threats and past harm that he claims he and other family members have suffered. However, the applicant’s and his father’s evidence in relation to those past threats and harm is on the whole vague, unpersuasive and inconsistent.
137. The applicant’s evidence about the chronology of his father’s relationship with Raj is inconsistent with evidence given by his father and generally vague. His written claims appear exaggerated in light of evidence he provided orally at hearing. Several aspects of the applicant’s evidence appear not to have been contemporaneously known by him and it appears that the applicant has relied on a lot of evidence told to him by others.
…
140. His evidence that Raj’s threats started in 2011 is inconsistent with his father’s evidence that Raj threatened him and his children in 2008, before the father’s travelled to Australia…
141. Both the applicant and his father provided evidence that was vague and lacking in detail regarding whether any threats were made to other members of their family…”
23.
At CB 206 at [142], the Tribunal recorded that the inconsistency in the Applicant’s evidence (that he was threatened by Raj in approximately 2012) and his father’s evidence (that this event happened in 2014) was one that it found “significant”.
24.
There are many other points in the Tribunal record where the Tribunal sets out its view that the Applicant’s and his father’s evidence was implausible, vague or exaggerated: (see CB 207-208, at [144], [145], [148], [150] and [152]).
25.
The Tribunal, ultimately, did not accept that Raj had ever made threats, by telephone or in person, against the Applicant’s father, the Applicant or anyone else in the Applicant’s family. While the Tribunal accepted that the Applicant’s father came to Australia in 2009 to make money to pay debts, it did not accept that this was out of fear of harm from Raj (CB 209 at [156]). It did not accept that the Applicant’s travels to Australia were as a result of any threats he faced from Raj (CB 209 at [158]). The Tribunal did not accept that the Applicant was threatened to repay his father’s debt or sell drugs for Raj, that he was beaten by Raj, treated at hospital or that he reported the incident to the police who did not take his complaint seriously (CB 210 at [160]).
26.
Given the Tribunal’s findings that Raj had not threatened or harmed the Applicant’s father, the Applicant, or anyone else in his family at any time in the past seven years since the Applicant’s father borrowed money from him, and that the Applicant’s father continues to make repayments on that debt, the Tribunal did not accept that there is a real chance or risk that the Applicant would face serious or significant harm perpetuated by Raj (CB 210 at [164]).
27.
On 5 June 2015, following the second Tribunal hearing, the RILC sent a further submission to the Tribunal, responding to information put to the Applicant during the Tribunal hearing and raising concerns relating to the conduct of the Tribunal’s hearing (CB 178-182). One concern was expressed as follows (CB 178):
“d) The interpreter utilised during the hearing on 29 May 2016 was not able to communicate effectively between the witness and the Tribunal, thereby denying my client of the opportunity to participate in a hearing and present his case in accordance with s.425
a. There is a significant difference between Sri Lankan Tamil and Tamil-Nadu / Indian Tamil
b. There were several instances, pointed out during the course of the hearing, where the witness did not understand the interpreter and / or the interpreter did not understand the witness
c. The Tribunal was put on notice prior to the hearing that an Indian Tamil or Tamil-Nadu interpreter would be necessary to allow effective communication…”
28.
On 17 June 2015, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa (CB 189-214).
29.
The Tribunal addressed the concern regarding the interpreter at the Tribunal hearing, as follows (CB 204-205 at [127]-[131]):
“127. Submissions from the applicant’s representative, both at and post-hearing, raised concerns about the interpreting during the second hearing for the witness and that the applicant did not believe that his father understood the interpreter.
128. The tribunal has considered the representative’s submissions on this point. Firstly, the tribunal is satisfied that steps were taken to ensure a suitable interpreter was organised for the scheduled hearing upon receipt of the applicant’s request for a ‘Malay Tamil’ interpreter on 27 May 2015.
129. The representative has submitted that the tribunal had to repeat or rephrase questions several times, that the interpreter stated that he did not ‘get’ or understand certain sentences, that the witness’s answers did not always correspond to the question asked and that the interpreter and witness spoke different dialects. The representative referred to specific examples at the end of the hearing of what were perceived to be interpreting errors. For example, the representative referred to the interpreter interpreting the witness’s reference to ‘Gang Zero Four’ as ‘Gang Number Four’. As noted at the hearing, the tribunal does not consider this quite minor discrepancy to be of significance or indicative of a below standard level of interpreting.
130. The tribunal has considered the other specific examples of misinterpreting raised by the applicant via his representative. However, it is not satisfied that any of the specific examples pointed out indicate that there were any significant issues with the interpreting that affected the witness’s ability to give evidence or the tribunal to understand the evidence. The tribunal is mindful of the difficulties that can arise when using an interpreter. However, it does not accept that the matters raised by the applicant or his representative either at hearing or in the subsequent written submissions indicate that the interpreter and witness were unable to understand each other or that the witness was prevented from giving evidence to the tribunal. The tribunal notes that at no time did the witness himself raise any concerns about the interpreting. Nor has the applicant provided evidence of what, if any, significant omissions or mistakes occurred in the interpreting.
131. The tribunal has considered the representative’s submissions that it cannot be satisfied that its question about any other connections or associations that ‘Raj’ had with the witness’s family was properly interpreted or understood and that it may have been interpreted or understood as referring to whether anyone else was a ‘business associate’ of Raj. However, the tribunal is satisfied on the evidence before it and in the absence of any evidence to the contrary, that its question of whether Raj had any other connections to the witness’s family was properly interpreted. The witness had several opportunities to provide evidence about Raj’s connection or relationship with other people in his family, namely, his stepdaughter or about any further information he had about Raj. While the post-hearing submissions state that Raj and the witness’s stepdaughter separated in 2007 and she is unaware of the ‘full extent’ of Raj’s criminal activities since that time, the tribunal finds it an unlikely coincidence that the man who the witness borrowed money from in 2008 happens to be the ex husband of his stepdaughter. The tribunal does not accept that this link would not be known to the witness. The tribunal is of the view that, had Raj actually had this connection with the witness’s family, he would have mentioned this in his evidence.”
Judicial Review
Does the Applicant’s application for review reason arguable case?
30.
The grounds of judicial review set out in the Applicant’s application for judicial review are (CB 5):
“1. The tribunal denied me procedural fairness because they didn’t give me a fair hearing.
2. The tribunal failed to properly consider all my claims.”
31.
As the Minister correctly observed, these grounds were not particularised, and did not assist either the Minister or the Court in understanding the Applicant’s case. The Applicant was asked to explain what he meant by his grounds of review. In respect of the first ground, the Applicant said that he was denied a fair hearing because the interpreter at the Tribunal hearing, who was made available by the Tribunal to interpret his father’s evidence into English, was a Sri Lankan Tamil interpreter and not a Malay Tamil interpreter, and that these are different dialects.
32.
When the Applicant was asked how this affected his father’s capacity to give evidence, he referred to the submissions made on his behalf by the RILC on 5 June 2015, following the hearing, where it was stated (CB 181):
“…There were several times during the course of the hearing where the Member had to repeat or rephrase questions after the interpreter had, to the best of his ability, interpreted what was said. There were also multiple times where the interpreter stated words to the effect of “I didn’t get the rest of that sentence” or “I didn’t understand the second sentence”. Regardless of the reason for the interpreter’s inability to fully interpret the evidence of our client’s father, it is remains our submission that aspects of his evidence were not presented to the Tribunal because he and the interpreter were speaking different dialects. It is unkown whether those un-interpreted sentences are essential to the applicant’s case; however it is vehemently submitted that on the basis of the above information and submissions, the Tribunal cannot lawfully find that a perceived ‘omission’ from Mr Kannan’s evidence is the reason or part of the reason for affirming the decision under review.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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