BQN18 v Minister for Home Affairs
[2020] FCA 307
•13 February 2020
FEDERAL COURT OF AUSTRALIA
BQN18 v Minister for Home Affairs [2020] FCA 307
Appeal from: BQN18 v Minister for Home Affairs & Anor [2019] FCCA 2149 File number: VID 893 of 2019 Judge: ANASTASSIOU J Date of judgment: 13 February 2020 Catchwords: MIGRATION – application for extension of time in which to seek leave to appeal, and leave to appeal – insufficient merit to grant leave sought – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: BQN18 v Minister for Home Affairs & Anor [2019] FCCA 2149
House v The King (1936) 55 CLR 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth)
Date of hearing: 13 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S. Roberts of Mills Oakley Lawyers ORDERS
VID 893 of 2019 BETWEEN: BQN18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ANASTASSIOU J
DATE OF ORDER:
13 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcriptANASTASSIOU J:
The applicant seeks an extension of time in which to seek leave to appeal, and leave to appeal, from orders of the Federal Circuit Court of Australia in BQN18 v Minister for Home Affairs & Anor [2019] FCCA 2149. The primary judge dismissed the applicant’s request for reinstatement of her application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, not to grant the applicant a protection visa. The application for reinstatement was necessary as the application for judicial review was dismissed by a registrar of the Circuit Court due to the applicant’s non-appearance to prosecute her application.
Background
On 21 October 2016 the applicant applied for a protection visa. The applicant claimed she was actively involved in a political demonstration for an opposition party in Malaysia and that she was beaten by gangsters for this reason. She further stated that she feared jail if returned to Malaysia. On 10 March 2017 a delegate of the Minister refused her application for a protection visa.
The applicant sought merits review in the Tribunal. On 9 March 2018 the Tribunal refused her application. At paragraphs 14 to 21 of the Tribunal’s decision record, the member set out the applicant’s evidence at the hearing of the application. The applicant admitted that the claims made in her protection visa application were false. She conceded that she had come to Australia on a holiday and then sought options to remain. She stated that she had been advised by a migration agent to include the false allegations in the application.
The Tribunal member asked whether the applicant feared return for any other reason. The applicant stated that she had previously been married with three children but was separated. She claimed that if she returned to Malaysia she would be unable to see her children and would suffer because of this. The Tribunal member noted that the applicant had completed her application without assistance (at [18]). She stated on the application that she did not have children or family outside Australia (at [21]).
The Tribunal found the applicant wholly lacking in credit. The Tribunal member did not accept the applicant’s testimony concerning her fear of harm due to inability to see her children. Paragraph 26 of the decision record contains the Tribunal’s primary conclusion:
I did not find the applicant’s testimony about why she left Malaysia credible. The applicant seemed to emphasise that she came to Australia for a holiday. Only after twice stating that she came for a holiday and then saying she was a businesswoman, which seemed irrelevant, she said in what seemed an offhand manner that she had a problem in Malaysia so she came for a holiday. The reference to having a problem in Malaysia seemed an afterthought. Further, I did not find her subsequent evidence about the problem, that she was divorced and not allowed to look after or visit her children, credible. Firstly, the applicant left Malaysia in August 2016 but claimed to have been divorced the previous year so she did not leave Malaysia until some time after her divorce. More significantly, she claimed to have separated from her husband in 2010 and that her children had lived with him for 7 years. Thus, she had separated from her husband and had not had custody of her children for several years before she came to Australia. I thus do not find it believable that the divorce and lack of contact with children were the reasons that led the applicant to have a holiday in August 2016.
Before the Circuit Court
On 3 April 2018 the applicant sought judicial review in the Circuit Court. The procedural history of the application before the Federal Circuit Court is set out at length in the decision of the primary judge in paragraphs [14]-[28]. It is plain from the account given by the primary judge that the applicant was afforded every opportunity to pursue her application for reinstatement.
The application for reinstalment was unsuccessful for the reasons given by the primary judge, in particular, because the application for judicial review lacked an arguable prospect of success.
Present application
The common question between both the application for extension of time and leave to appeal is the prospects of success of the proposed appeal. In this regard the present application for an extension of time and for leave to appeal from the decision of the Circuit Court, is in no different position to that which the primary judge determined. That is to say, the merits of the application for judicial review of the Tribunal’s decision, are no different, specifically no stronger, than they were when considered by the primary judge.
In this court the applicant advanced two grounds:
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91 R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The Hon. Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT.
These grounds are without legal merit. Section 91R of the Migration Act 1958 (Cth) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth), and, in any event, is irrelevant. The applicant did not advance any further grounds in support of her application, nor any better particularity for her grounds. Accordingly, there is no basis to conclude that the discretion exercised by the primary judge in refusing the application for reinstatement involved an error of a kind which would allow this Court to set aside the exercise of that discretion: House v The King (1936) 55 CLR 499, at 504-505.
I gave the applicant the opportunity through an interpreter to explain to me directly the bases of her claim for judicial review of the decision made by the Tribunal and the decision of the primary judge. The account given by the applicant orally, whilst in passing making reference to a political problem in Malaysia, made no reference at all to any threat of harm arising from any political activity on her part. The essence of her claim to remain in Australia is that in her view she would be better able to support her children by remaining in Australia and earning money in order to support them. She said further that she is better able to contact the children by telephone in Australia than while in Malaysia.
The difficulties faced by the applicant concerning her ability to make contact with her children are not relevant grounds upon which the decision of the Tribunal may be judicially reviewed. Nor do they have any bearing on the exercise of discretion by the primary judge.
For the reasons given above, I have concluded that there is no basis for interfering with the discretion of the primary judge to refuse reinstatement of the application for judicial review of the Tribunal’s decision. Accordingly, the present application for an extension of time in which to seek leave to appeal is refused. It follows that the application for leave to appeal is also refused. The applicant should pay the costs of the first respondent.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou. Associate:
Dated: 24 April 2020
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