BPM18 v Minister for Home Affairs

[2019] FCCA 667

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 667

Catchwords:
MIGRATION – Extension of time – explanation for delay – merits of substantive grounds – whether reasonably arguable – no reasonable prospects.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:
MZABP v Minister for Immigration and Border Protection & Ors [2015] FFCA 1391
MZABP v Minister for Immigration and Border Protection (No.2) [2016] FFCAFC 138
SZSZW v Minister for Immigration and Border Protection & Anor [2017] FCCA 1710
SZTES v Minister for Immigration and Border Protection [2015] FCA 719

Applicant: BPM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 872 of 2018

Judgment of: Judge Baird

Hearing date: 4 March 2019

Date of Last Submission: 25 February 2019

Delivered at: Sydney

Delivered on: 4 March 2019

REPRESENTATION

Counsel for the Applicant: Self represented and appeared by telephone

Solicitors for the Respondents: Mr T Hillyard, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 872 of 2018

BPM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

1. This is an application pursuant to s.477 of the Migration Act 1958 (Cth), seeking an extension of time in which to file an application for judicial review of a decision of the Administrative Appeals Tribunal made on 17 November 2016. That decision affirmed a decision of the Delegate of the First Respondent, the Minister for Home Affairs, made on 16 May 2016 to refuse to grant the Applicant a Protection (subclass 866) Visa.

2. The Applicant was born in 1993.  He is a male Malaysian citizen of Chinese ethnicity.  He arrived in Australia by plane, arriving in Melbourne on 21 March 2015 on a 12 month visitor visa.  He then obtained a student visa which was current until November 2016.  The Applicant applied for the Visa on 29 February 2016.  The Applicant claims fear of harm due to his involvement with the Bersih movement in 2011 and that he would be jailed if he returned to Malaysia for reason of his actual or imputed political opinion.

3. The Delegate refused to grant the Visa.  The Applicant applied to the Tribunal for review of the Delegate’s decision, and appeared at a hearing before the Tribunal held in Perth as he was then living in Western Australia.  On 17 November 2016, as I have said, the Tribunal affirmed the Delegate’s decision to refuse to grant the Visa. 

4. Pursuant to s.477(1) of the Act, an application for judicial review to this court must be filed within 35 days of the date of the Tribunal’s decision. The last day for filing the application to this court was 22 December 2016. The Applicant self-filed his application for judicial review on 29 March 2018, some 15 months after the allowable time. 

The Applicant’s Grounds for Extension of Time

1. The Applicant seeks an extension of time in which to file the application.  His grounds for grant of an extension of time are as follows (without alteration):

   1.I DID NOT GET ANY NOTICE FROM MY AGENT;

   2.MY BODY’S CONDITION WAS VERY POOR DURING THAT TIME.

2. The Applicant did not file an affidavit in support of his application for extension of time.  He did, however, set out the grounds of the substantive application in an attachment which included the following paragraph directed to the grounds for his application for an extension of time (without alteration):

   Due to I could not find my prior agency, it caused that my AAT refusal letter missed. I did not know totally when I was refused by the AAT, it made that I missed the appeal date. Even worse, I have been in very poor health for a long time and need to see the doctor on a regular baiss, I also need to take medicine to alleviate the pain and suffering. I did not know I have been refused by AAT, so I could not submit application to federal court. Please the federal court could forgive and give me a change.

3. The Applicant filed an affidavit in support of the substantive application to which he attached a copy of the Tribunal’s decision.  In that affidavit, after setting out his place and date of birth, he swore that, “I lodged the application in person and I fear to return to Malaysia”. 

The Applicant’s claims

1. The Applicant provided his protections claims in his Form 886C submitted with his written application for the Visa.  Those claims can be summarised as follows: 

   a)I left my own country because of the government Malaysia is tracking the group member of Bersih member, a group – (the caution for clean and fair elections). 

   b)Many group prisoned media hidden this sensitive issue.  I decide to seek refuge and safety.  Life matter.  I believe the Australia can give me hope.  Thanks for the Australia government.

   c)If I return to my country, the police will caught me and put me in the jail.  So my life, of course, in dangerous matter.

   d)When to police try to make a break, the rally of Bersih, they tear a gas and water.

   e)“nobody can help.  The authorities will take action to who conspire with a member of Bersih”.

   The Applicant then claims all the Malaysian authorities are government supporters, and if he moves to another part of the country, they will find him and there will be no difference.  The Applicant repeats that the authorities will catch him, and he will be jailed, and his life is also dangerous.  He reiterated that the authorities of his country are supporters of the Malaysian government, and he would not be able to relocate within that country because the authorities will find him and his life will also be in danger. 

2. At the Tribunal hearing and during the course of his oral testimony to the Tribunal, the Applicant expanded upon his claims and responses to questions to the following effect:

   (a)He dislikes the corruption in Malaysia and prefers life in Australia, (Tribunal decision at [15]).  He went on to say that he felt he was not giving a good reason but that the statement in his application is true.

   (b)Bersih is a group of people who go against the government.  In response to the Tribunal’s query regarding his own involvement with the Bersih, the Applicant responded that he had “just a small role”.  He went on to say that Bersih is a group of people who go against the government.  He provided water for these people when they went for an activity against the government and that when someone got tired, he gave them water (at [18]). 

   (c)As to whether he had suffered any harm as a result of his involvement with Bersih, in response to a query from the Tribunal, the Applicant said that on 5 May 2011 the activity got serious and the government sent fireman in who threw gas and many people got hurt.  He was not arrested, but he said he was hurt.  He elaborated by declaring the government might arrest him if they think he is Bersih (at [19]).

   (d)In response to the Tribunal’s observation that it did not sound like he had suffered harm in Malaysia, the Applicant replied that even though he had a small role, if the police came, he would run away but if he were to be arrested, the police would hit him, and they would be likely to ask him why he opposed the government. 

   (e)The Applicant told the Tribunal he is not otherwise involved in any other political activities in Malaysia. 

   (f)The Applicant told the Tribunal he departed Malaysia using his own passport.  To the best of his knowledge, there are no arrest warrant pending for his arrest.

   (g)In response to a question as to why he chose to come to Australia, the Applicant replied that it is because he really likes it.  He said the lifestyle is very relaxing and it is fair in terms of workplace.  He informed the Tribunal that he works at the Steggles chicken processing factory in Osborne Park and he works 20 hours a week there because he has a student visa (at [22]).  Whilst he was studying English in Melbourne, in response to a query from the Tribunal member, the Applicant said that the last time he attended class was September 2015 and identified that he was enrolled at the ANGAD Australian Institute of Technology.  He said he had stopped studying because his family had some problems and he could not pay the course fees (at [23]). 

   (h)In response to a query about what would happen if he went back to Malaysia, he said he had thought about it and whatever happens will happen.  He said he would find a solution at the time but all he has said is true (at [24]).  He said that he applied for a protection Visa so that he could work here and so that he would be protected so that he would have no stress (at [29]).

The Proceeding before the Tribunal and its Decision

1. On 29 July 2016, the Applicant was invited to, and did attend, a hearing in Perth before the Tribunal on 2 September 2016.  I note that the invitation of the Tribunal to the Applicant was emailed to the Applicant at the same email address as indicated in his application for Visa, which was also the email address to which the Delegate’s decision was sent, the same address that the Applicant indicated in his application to the Tribunal, and which remained the Applicant’s email address in the application before this Court. The Applicant has confirmed today that that email address has remained the same.

2. At the Tribunal hearing the Applicant represented himself, and he was assisted by an interpreter in English and Mandarin who assisted by telephone.  The Tribunal’s overall assessment of the evidence, and claims of the Applicant is that the evidence and claims are substantially not credible (at [50]).  I should say that the extent of the evidence was the statements that were made in the application, what had been recorded in the Delegate’s decision as to country information and the like, and the oral evidence of the Applicant at the oral hearing that was set out in the decision record of the Tribunal.

3. The Tribunal put to the Applicant that it was aware that the wording in his application for Visa appeared identical to the wording in another application which the Tribunal was currently reviewing (at [27]).  I note that the Tribunal read out some passages from both applications, specifically as to the first claim for protection.  The Tribunal asked the Applicant to comment, and the Applicant said that some parts may be copied.  The Tribunal put to the Applicant that he had earlier said that they were all his own words, and the Tribunal put to the Applicant that it may be concerned he has not told the truth.

4. The Applicant responded, stating that “all he wrote is true except where he copied” (at [27]).  In response to an enquiry from the Tribunal as to whether the Applicant had paid anyone to assist him in preparing his application for protection, the Applicant said he did not (at [28]). 

5. The Tribunal placed some weight on the Applicant’s copying of claims (at [50]).  The Tribunal disregarded the Applicant’s poor English, and expression in the Applicant’s written application form, and said that it had focussed on the substance and not the form of the claims (also at [50]).  The Tribunal observed that an Applicant might consider it appropriate to copy another Applicant’s claims as the most efficient means of communicating them where they are not confident of their English.  However, in the particular case, and in the context of all of his claims and evidence, the Tribunal did not accept his claims of credible or that he has a well founded fear of prosecution. 

6. The Tribunal referred to DFAT country information regarding the Bersih protests in 2011, and accepted as credible and plausible that the Applicant attended the Mercy demonstration in July 2011.  The Tribunal found that the Applicant did not hold an official or senior leadership role with the Bersih.  The Tribunal found that as a protestor the Applicant faces a low risk of arrest when engaged in political activities (at [56]).

7. The Tribunal considered the extent and depth of the Applicant’s association and involvement with the Bersih (at [55]).  The Tribunal considered that the fact that the Applicant was not arrested when DFAT had reported that approximately 1500 demonstrators had been arrested was further evidence that the Applicant is not of interest to the Malaysian Regime and that he is not perceived to be an anti government activist (at [56]).

8. The Tribunal also noted from the Applicant’s written application that he continued to live in his home area until he departed to come to Australia in March 2015.  The Tribunal considered the delay in departing undermined his claim to be at risk of serious or significant harm at Malaysia (at [56]), and the Tribunal concluded that the chances of arrest happening were not real, and were best described as remote in view of the fact that his claimed persecutors have had the opportunity to arrest him or to harm him in Malaysia for over a number of years if that was their intention (at [56]).

9. The Tribunal also considered the evidence the Applicant departed Malaysia using his own passport, and without being detained or questioned, and found that the Applicant is not a person who is wanted by the Malaysian authorities on a serious criminal charge, and that his departure as he did further suggests he is not a person of adverse interest by the Malaysian authorities (at [57]).

10. The Tribunal formed the view (at [58]) that the Applicant’s primary reason for coming to Australia and for seeking to remain here is not on the basis of a need for protection but rather for economic and lifestyle reasons (having first noted the Applicant’s evidence that he is able to earn and save $400 a week in Australia and is sending money to his parents).

11. The Tribunal also found that the Applicant does not face a real chance of serious harm for reasons of his Chinese ethnicity or for reasons of his Christian religion in Malaysia (at [59]).  And, as I have said, the Tribunal was ultimately not satisfied that the Applicant was a person in respect of whom Australia owed protection obligations. 

12. I note that the Tribunal, from the decision record, engaged with the Applicant, and sought to invite the Applicant to expand upon his claims, and to explain himself, and the Tribunal has set out from [15] to [36] the Applicant’s interactions and responses to the questions of the Tribunal.  I also note that the Tribunal has set out and considered the independent country information as could possibly relate to the Applicant or a person in the Applicant’s claimed position. 

Grounds of Review

1. I turn now to the grounds of review.  In the Applicant’s application filed 29 March 2018 the Applicant advanced the following grounds (without alteration but inserting numerals):

   [1]AAT’s officials did not understand totally my words of interview so that make a decesion, it is irresponsibility behaviour.

   - AAT's officials said that I dislike the corruption of Malaysian government and prefer to live in Australia, the reason is insufficient for scareding return to Malaysia. AAT's officials did not understand my ture meaning, it has a misunderstanding. I mean the whole Malaysian government is corruption and the officials were protect with each other. The common could not change the decesion of the government, just like I attended to activities to against the Malaysian government's corruption behaviour, unexpectedly I suffered persecution by the Malaysian officials. So I dislike the Malaysian government because I flet very scared my safety.

   [2]AAT’s officials did not consider my actual situation to make a decesion, it is unfair for me.

   - In the interview, AAT's officials' attitude was tough, and it caused I very nervous, so I could not remember my statement of application form.  However, I actually suffered persecution by Malaysian government, so I told officials my behaviour was against the Malaysian government all the time. AAT think that my words was not reasonable because officials did not consider my mental state.

   The Applicant also gave an explanation for the delay in the section setting out grounds of review, which I have set out above at [6].

Extension of Time – Legal Principles

1. Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period in which an application for judicial review may be made, as the 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 factors that the Court may take into account when considering whether an extension of time should be granted are unconfined, and generally include:

   (a)the extent of the delay and the explanation for the delay;

   (b)any prejudice the Minister might suffer because of the delay;  and

   (c)the merits of the proposed application or, as it may otherwise be put, the prospects of success on the substantive application.

3. The principles were considered by Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585. At [62]-[63] her Honour adverts to the interests of the administration of justice, and cautions that it is not for the Court, when exercising its discretion in an extension of time application, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic” level into a full consideration of the arguments for and against each ground of review.  At [63] her Honour said:

   [63]The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]).

4. Her Honour’s consideration at [58]-[63] in MZABP was approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection (No.2) [2016] FCAFC 138; see also SZSZW v Minister for Immigration & Anor [2017] FCCA 1710, and, earlier, the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48].

5. I note in SZTES his Honour distinguished between grounds that are hopeless and destined to fail, and those which are properly described as weak.  His Honour observed there that in the latter case it is seldom appropriate to refuse to extend time.  I am also guided by Mortimer J’s review of Wigney J’s caution to carefully distinguish between grounds that are hopeless and destined to fail, and that it is in the latter case seldom appropriate to refuse to extend time. 

The Proceeding in this Court

1. Orders were made by Registrar Morgan on 19 April 2018 for a timetable for the filing and service of evidence, and including any additional evidence to be relied on such as a transcript of the hearing before the Tribunal.

2. In those orders the matter was set down for a callover on 13 November 2018 at 10.15 before a Registrar.  On 13 November 2018, Registrar Morgan in the Court made an order listing the hearing for an extension of time to 4 March 2019 at 11am before me in this courtroom in this court building in Sydney.

3. I am assured by Mr Hillyard, appearing for the Minister, that the Applicant was present at both those Registrar hearings.  Before me today, an interpreter has come to Court to assist the Applicant, interpreting in Mandarin and English.  The Applicant, however, did not turn up when the matter was first called.

1. Mr Hillyard sought a short adjournment to attempt to contact the Applicant.  Mr Hillyard was concerned that, notwithstanding that the Applicant had appeared at the Registrar’s callover in November 2018, because the cover letter serving his firm’s submissions on the Applicant had informed the Applicant that the hearing today would take place in the Court at 80 William Street, Sydney, and that the Applicant may have attended the wrong courtroom.

2. I gave a short adjournment to enable Mr Hillyard to telephone the Applicant.  I also sought the assistance from my Associates who confirmed that the matter was properly listed on the hearing board in the lobby of this Court, and it was. 

3. Mr Hillyard at 11.15am informed the Court that he had been able to contact the Applicant, and that the Applicant said that he was aware of the hearing, he was not going to attend as his agent did not tell him about it but that he would be prepared to appear by telephone. 

4. Accordingly, at approximately 11.20am my Associate attempted to call the Applicant from Court on the phone number provided by Mr Hillyard.  After several attempts at calling him the Applicant answered the telephone. 

5. In response to my inquiry as to where the Applicant was, the Applicant stated that he cannot go to Court today.  He has called his agent and he cannot come today.  He then expanded upon this statement, saying it was not convenient.  He accepted that he was on notice of the hearing but said he had been calling his agent for one month and his agent did not answer him. 

6. I put to the Applicant that he did not have any agent on the record, and the Applicant said, “I have someone to help me.”  When I asked again where the Applicant was he said he was in Chinatown but he could not come today.  I asked the Applicant to confirm that his email address continued to be the same address throughout from his filing of his protection Visa application, and he indicated that, yes, he did have the same email address.

7. I confirmed his current telephone number.  I confirmed that he had received a copy of the Minister’s submissions.  I informed the Applicant that I would continue with the hearing with him on the telephone, and with the interpreter undertaking a simultaneous interpretation.  The Applicant did not ask for an adjournment at any time.

8. At this point, I expressed my deep appreciation to the interpreter for the efforts he is doing in seeking to interpret what I am saying to the Applicant, when the Applicant is, as is apparent from the noise emitting from his end of the telephone line, in a very busy location, and has not chosen to move himself to a quieter location so as to better hear what the Court is saying.

9. I read out the extension of time grounds in his application to the Applicant.  I asked the Applicant whether he had anything to say.  He indicated he did not.  The Applicant said to the effect, “I am supposed to go to court.  I do not have any information where to go to court.  I did get the message for the hearing.  I do not know where to go.”

10. I put to him that what he said was inconsistent with the Registrar’s orders which set out where he was to go.  As to the extension of time application the Applicant said he did not have anything more to say.  Mr Hillyard then made his submissions, and emphasised that there was a lengthy delay, and that the purported explanation was not supported by any documents, but the Minister conceded there was no prejudice. 

11. Mr Hillyard submitted that in order to grant an application for extension of time there should be a reasonably arguable case, and in the present case there was not.  He submitted further to the extent that the Applicant was relying on an explanation that his agent did not assist him that was misconceived as the Applicant did not have any agent on the record.  In any event, it is for the Applicant to identify for himself and assure for himself what the requirements of the Court are. 

12. As to the Applicant’s claimed poor health, that was a bare assertion, it was unsupported, and it did not explain the 15 month delay.  On that basis alone, it was not in the interests of the administration of justice to exercise discretion to extend time, and no reasonably arguably case for relief was granted.

Consideration

1. I turn now to the consideration of the application for an extension of time, and the underlying grounds, turning first to the application for extension of time, and the explanation.  The length of delay is considerable.  It is, effectively, 15 months.  The Applicant’s explanation for the delay of lack of notice, and that his body condition was very poor, in neither case is substantiated.

2. There is no agent or other representative identified in any stage of the Applicant’s application for the Visa:  not in the review application before the Tribunal, nor at any stage during the Tribunal’s review process, or, indeed, earlier before the Delegate or when the Applicant filed his protection Visa. 

3. Indeed, in the application to the Tribunal at question 9, in response to the question “do you appoint a representative to act on your behalf and to be your authorised recipient” the Applicant had ticked “no”.  The Tribunal’s hearing record also confirms that the Applicant was self–represented at the hearing.

4. As to the claims to be of ill health, there has been no medical evidence provided to support that claim, nor did the Applicant explain how his health has impacted any ability to file his application for review in the Court within the statutory time limit, or at any earlier time than the 15 months after which he chose to do so.

5. I note that the Tribunal’s decision record was transmitted to the Applicant by email dated 21 November 2016.  As I have said, that was the email address nominated in his application to the Tribunal. That notification of decision also informed the Applicant that he could seek judicial review before this Court within 35 days of the date of the decision.

6. I note that the Delegate’s decision was also sent to the Applicant’s same nominated email address.  The Tribunal’s letter of invitation to hearing was sent to that same email address.  In light of the fact that the Applicant attended the Tribunal hearing I infer that the Applicant had received the hearing invitation at his nominated email, and I also find it reasonable to infer, and I do, that the Applicant received the Tribunal decision.

7. I am not persuaded that there is any reasonable argument for an extension of time.  Nonetheless, notwithstanding the lack of explanation for delay, it is appropriate to turn to consider the grounds of the substantive application.  In sum, and for the reasons I now say, whose grounds are hopeless, and would fail. 

Ground 1

1. By ground 1 of the proposed substantive application, the Applicant contends that where the Tribunal recorded the Applicant’s evidence that he disliked corruption in Malaysia and preferred life in Australia, it misunderstood the Applicant’s true meaning.  Firstly, I should note the Applicant does not contend that he did not give the evidence set out in [15] of the decision.

2. Secondly, to the contrary of what the Applicant says, the Tribunal was clearly aware of, and extensively addressed the Applicant’s claim that he feared harm from the authorities.  It discussed the claims for protection, and it allowed him to expand on them.  It discussed in detail the fear of harm from the authorities in Malaysia; see, for example, decision at [4] to [11], [30] to [34], and [51] and [60].

3. Thirdly, as Mr Hillyard submits, the remark to which ground 1 appears directed was a minor aspect of the extensive evidence, and adverse credibility findings, that supported the Tribunal’s conclusions.  I do not find that the impugned remark at [15] material to the ultimate findings.  There is otherwise no suggestion in the material before the Court that the Tribunal misconstrued the Applicant’s claims and evidence.  In the absence of any evidence to the contrary, such as a transcript, this Court is entitled to rely on the Tribunal’s record as accurate.  Ground 1 does not establish, and would not establish, jurisdictional error. 

Ground 2

1. In ground 2, the Applicant contends that the Tribunal did not consider the “actual situation”. That, in effect, seeks a merits review of the Tribunal’s decision, which is no part of this Court’s role. I consider it plain on a fair reading of the Tribunal’s decision that the Tribunal did consider the Applicant’s claims, and considered and sought to make relevant, the country information. The Tribunal relied on the claims and country information in support of the Tribunal’s finding that the Applicant did not face a real chance of serious or significant harm in Malaysia: I refer to [15],[19], [29], [30], and [31].

2. In the particulars to ground 2, which I have also understood as particulars to the application for an extension of time, the Applicant referred to his mental state.  However, the Applicant has not put before the Court any detail or, indeed, any evidence as to his mental state.  Nor was there anything put before the Tribunal to suggest that he suffered from any mental health issues. 

3. I do not see anything in the Tribunal’s decision that could be relied on to indicate that the Tribunal gave the Applicant other than a real and meaningful opportunity to participate in the Tribunal’s proceedings, and that the Applicant meaningfully and positively participated in the proceedings.  There is nothing to suggest that the Applicant was unfit in the sense of being unable to give evidence, present arguments, and answer questions in the course of the hearing.  The Tribunal record shows to the contrary.  There have, indeed, been no assertions made by the Applicant, nor is there any supporting evidence, that he was unfit in this sense.  In those circumstances, the Applicant’s claim that the Tribunal did not consider the Applicant’s mental state does not give rise to an arguable case of jurisdictional error.  Ground 2 would not succeed.

Conclusion

1. It follows that neither of the proposed grounds of review is sufficiently arguable to justify this Court exercising its discretion to grant the extension of time, even apart from the unexplained delay, and absence of explanation as to why it took over 15 months to apply to this Court.  I conclude that it is not in the interests of the administration of justice to grant an extension of time in this case, and, as I have indicated, I will dismiss the application with costs.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 19 March 2019