BSG15 v Minister for Immigration

[2015] FCCA 2897

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2897

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – application for an extension of time – incorrect advice given to the applicant by migration agent – no jurisdictional error – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 476, 477, 486E, 486F, 494C

Migration Agent Regulation 1998 (Cth), Schedule 2 Code of Conduct

Applicant: BSG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2322 of 2015

Judgment of: Judge Street

Hearing date: 27 October 2015

Date of Last Submission: 27 October 2015

Delivered at: Sydney

Delivered on: 27 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr A. Keevers
Sparke Helmore

ORDERS

1. The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2322 of 2015

BSG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 October 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The application to this Court was filed on 24 August 2015 in the respect of the decision dated 30 October 2014, and accordingly an extension of time is required under s.477 of the Migration Act 1958. 

2. To obtain an extension of time, generally there must be a satisfactory explanation of the delay and a sufficiently arguable ground of jurisdictional error to warrant an extension of time, in the interests of the administration of justice.  The only explanation before the Court appears in the grounds for the extension of time, which provides:

   1. I was not aware that I can apply to the court to review my RRT application decision

   2. My lawyer advised that court application is very expensive,

   3. I was in the view that Minister of Immigration and Border Protection will consider my application under s417 and s48B

   4. I suffer serious mental degrading condition as I am unable to tell about my personal conditions

3. On 1 October 2015, a Registrar of this Court made orders providing an opportunity for the applicant to file an amended application, put on affidavit evidence and file submissions.  No such documents were filed.  From the bar table, the applicant has explained that he did not receive certain correspondence from his migration agent.  The court book reveals that the decision of the Tribunal was the subject of a letter of notification to the applicant’s registered migration agent, being the address identified in the representative’s details in the application for review. 

4. It is clear from the court book that there was compliance with the statutory requirement for notification in accordance with s.494C. The court book also reveals correspondence sent by the applicant’s migration agent to the Minister, requesting ministerial intervention after the adverse decision. That request for intervention appears to have occurred on 18 November 2014, clearly following the delivery of the decision of the Tribunal.

5. I do not regard the applicant’s explanation as to not receiving certain correspondence as an adequate explanation for the delay. The applicant has also referred to suffering mental issues, however, again, there is no evidence to persuade the Court that this provides a satisfactory explanation for the failure to make application to this Court within the time period required under s.477. On that ground alone, I would refuse an extension of time under s.477.

6. The grounds of the application are as follows:

   1. Tribunal fell into Jurisdictional error

   2. There was misguidance by the migration agent represented for my Protection visa application

   3. I could not express myself properly and denied natural Justice

7. The applicant applied for a Subclass UC 456 visitor (business short stay) visa on 4 October 2012, which was granted on 11 October 2012.  On 20 October 2012, the applicant arrived in Australia as the holder of a Subclass UC 456 (business short stay) visa, which was valid until 20 January 2013.  On 21 January 2013, the applicant became an unlawful citizen. 

8. On 27 November 2013, the applicant lodged an application for a protection visa.  That application, in relation to the applicant’s country of nationality and receiving country which was found to be India, referred to the applicant fearing harm in that country, not relying upon any Convention-based grounds but rather socioeconomic claims related to complementary assessment.  In support of that application, a letter from a solicitors firm, Adrian Joel & Co, dated 18 November 2013 specifically stated that:

   My instructions indicate that there isn’t reliance upon Convention grounds.  We ask for consideration under complementary grounds, and if the applicant is unable to satisfy such tests, we will rely upon seeking to invoke the Minister’s residual discretion.

9. The letter described the applicant’s circumstances as follows:

   The applicant had a well-established position in Mumbai from 1993 – 2003 working for a communications company. He is married and has two daughters, [X] aged 14 [Y] aged 21. He originally came from the area of Jalgoan. He has one sister and his brother died in an accident. As a result of the global financial crisis he lost his job in 2003. From that time he unsuccessfully sought re-employment. The situation became so severe he was obliged to leave India to look for employment or else he would lose his home and the fragmentation of his family may occur. He resided in America for a number of years and was able to remit some money before ultimately returning in 2010. Again, he tried to find employment for two years and he has only seen his family for about two years since 2003. He again was unsuccessful in his efforts in obtaining permanent employment. He does have some background in plumbing.

10. The socioeconomic grounds do not, on their face, identify any basis upon which they were capable of supporting a real risk the non-citizen will suffer harm if returned to India. 

11. On the face of the content of the matter of 18 November 2013, the application for protection under s.36(2)(aa) appears to be hopeless.

12. The applicant, from the bar table, said that he paid for his representation and, in relation to the proposed interview with the delegate, the applicant signed an authority directing the delegate to determine the application on the papers. That authority was signed by the applicant. It was in those circumstances that the delegate made findings as to not being satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason, and found that the applicant’s fear was not well-founded, and was not satisfied that the socioeconomic matters identified in the applicant’s statement, and as claimed by the applicant, was significant harm for the purpose of s.36(2A) of the Migration Act 1958, and that the applicant failed to satisfy the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958.

13. In relation to the application for review, the Tribunal sent a notification on 26 September 2014, consistent with the statutory regime, inviting the applicant to attend to give evidence and present arguments on 29 October 2014.  The applicant’s representative emailed the Tribunal on 9 October 2014, requesting that the matter be determined on the papers, and attached an authority requesting the matter be decided on the papers, again signed by the applicant. 

14. The Tribunal, in relation to the invitation to appear, said as follows: 

    5. The applicant was invited to appear before the Tribunal to give evidence and present arguments in relation to his claims. The applicant had been advised by a letter dated 26 September 2014 from the Tribunal that the Tribunal had considered the materials before it but was unable to make a favourable decision on this information alone and invited the applicant to appear before the Tribunal to give evidence and present arguments relating to his claims. A Tribunal hearing was arranged for 29 October 2014. The applicant’s agent contacted the Tribunal and said that the applicant did not wish to attend a Tribunal hearing and that the applicant was requesting a decision on his claims on the papers. On 14 October 2014 the applicant’s agent wrote to the Tribunal confirming the request that the applicant’s claims be decided on the papers. The applicant was represented in relation to the review by his registered migration agent.

15. The Tribunal also referred to what occurred before the Tribunal as follows:

    21. The applicant was invited to attend an interview with a Department delegate on 2 June 2014. The applicants agent/representative informed the Department that the applicant did not wish to attend for an interview and requested a decision on the papers. The applicant did not attend the scheduled interview on 2 June 2014. The Department delegate declined to issue a protection visa to the applicant.

16. The Tribunal noted that the applicant did not seek protection on any Convention-based ground, and that he sought to rely upon complementary protection, and relevantly found: 

    35. I am not satisfied on the basis of all the available evidence and information that the applicant’s claimed fear of harm as a result of his changed socio-economic circumstances amounts to degrading treatment or punishment within the meaning of the Act. I am also not satisfied that on the basis of all the available evidence and information that the harm claimed by the applicant is significant harm for the purposes of the Act.

    36. I have considered the totality of the above issues in assessing the applicant’s claims for complementary protection. Based on the available information and evidence I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that the applicant will suffer significant harm.

    Overall summary

    37. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    38. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).]

    39. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

17. Nothing said by the applicant from the bar table identified any basis upon which there could be said to have been a fraud perpetrated on the Tribunal by the migration agent.  Indeed, the signatures on the request for determination on the papers clearly identifies that the migration agent was acting within the scope of his authority on behalf of the applicant. 

18. That said, it is troubling that the grounds of the application were hopeless, and that no submissions were advanced by the migration agent on behalf of the applicant, and the strategy of inviting the delegate to the Tribunal to determine the matter on the papers appears consistent with a comprehension by the migration agent of the hopelessness of the application. 

19. The applicant complained that he had felt that he had been subjected to an injustice, and that he had wanted to attend before the Tribunal and had been advised strongly against that course.  The applicant also said that he assumed the migration agent knew the law and, being a lawyer, he placed reliance upon the migration agent. 

20. Whilst there is a Migration Agent Regulation 1998 Schedule 2 Code of Conduct that identifies an obligation to act competently, diligently and fairly, there does not appear to be a provision that expressly prescribes pursuit of a vexatious application. It is perhaps surprising that there is no equivalent provision to s.486E of the Migration Act 1958.  To accept the payment of professional fees in circumstances where the application, on its face, appears hopeless might give rise to a question in respect of professional responsibility but is not a basis upon which, in this case, any argument of jurisdiction error can be made out.

21. I should note that it may well be that candid advice was given to the applicant by the migration agent. It is, however, troubling that the Code of Conduct does not address, in its expressed terms, provision of services for reward to pursue a vexatious application similar to ss.486E and 486F.

22. Ground 1 in the application fails to articulate any basis upon which there could be said to be an arguable jurisdictional error.  Ground 2 fails to identify any basis upon which there could be said to be a jurisdictional error in relation to the representation of the applicant in the present case.  Ground 3 is a base assertion of a denial of natural justice and fails to identify any arguable jurisdictional error.  The conduct of the applicant’s migration agent is not, in this case, a basis upon which there could be seen to have been any denial of natural justice or denial of procedural fairness by the Tribunal in the conduct of its review.

23. Accordingly, I am not satisfied that there is any arguable ground of jurisdictional error that warrants an extension of time under s.477(2) in the interests of the administration of justice.

24. The application for an extension of time, under s.477(2), is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 October 2015