BTL15 v Minister for Immigration

[2019] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTL15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1618

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an extension of time under s 477 of the Migration Act 1958 (Cth) – whether an extension of time is warranted in the interests of justice – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 426A, 441A, 425, 425A, 426A, 476, 477

Applicant: BTL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2409 of 2015

Judgment of: Judge Street

Hearing date: 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Sydney

Delivered on: 12 June 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr H Gao
AGS

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 $3,737.00.

DATE OF ORDERS: 12 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2409 of 2015

BTL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) for the bringing of proceedings seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 May 2015 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China. The applicant, in summary, claimed to fear harm because he wrote a petition letter in April 2013 exposing alleged corrupt activities of his village committee regarding unreasonable fines for the failure by farmers to grow cotton. The applicant alleged that he was beaten by the police at his home and threatened with prison if he continued to petition and, as a result, fears returning to China.

3. On 5 October 2013, the applicant arrived in Australia holding a Visitor (subclass 600) visa which was valid until 5 January 2014. On 16 December 2013, the applicant applied for a protection visa. On 28 August 2014, a delegate found that the applicant failed to meet the criteria for the grant of a protection visa. On 22 September 2014, the applicant filed an application for review of the delegate’s decision. The applicant included in that application an email address as well as a residential address. By letter dated 17 February 2015, the Tribunal wrote to the applicant at the email address inviting the applicant to attend a hearing on 28 April 2015. The applicant failed to appear on that date. On 11 May 2015, pursuant to s 426A of the Act, the Tribunal decided to determine the review without taking any further action to enable the applicant to appear before it.

4. The Tribunal noted that the applicant had not contacted the Tribunal to explain his failure to attend the hearing or request that the hearing be rescheduled. The Tribunal found that the applicant had been notified of the hearing at the last address for service provided in connection with the review in accordance with the statutory regime.

5. The Tribunal identified issues of concern that it did not have the opportunity to explore with the applicant. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution if returned to China for a reason under the 1951 Refugee Convention. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China, there is a real risk he will suffer significant harm.

6. The Tribunal found that the applicant did not meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 1 September 2015, these proceedings were commenced by the applicant. On 15 October 2015, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under s 477 of the Act for an extension of time and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant’s explanation for the delay in bringing these proceedings in the grounds for extension refer to him not receiving the letter inviting him to attend a hearing, not receiving the Tribunal’s decision, not being aware that the Tribunal affirmed the delegate’s decision not to grant him a protection visa and that it was only after a freedom of information request that he obtained the Tribunal’s decision. The applicant’s explanation for the delay of two months is not, on its face, satisfactory.

4. From the bar table, the applicant maintained that he had not received the notification of the Tribunal’s decision sent by email on 12 May 2015. It was pointed out that the applicant’s email address remains the same in these Court proceedings as it was when identified before the Tribunal in the application for review. The applicant’s assertion that he did not receive the email does not overcome the statutory provisions by reason of which the applicant was taken to have been notified of the decision. The applicant’s assertion of the absence of notification of the Tribunal’s decision does not, of itself, identify a sufficiently arguable case of relevant error to warrant an extension of time.

5. The hearing invitation was also transmitted pursuant to s 441A(5) of the Act to the applicant’s nominated email address on 17 February 2015. The hearing invitation complied with the requirements of ss 425 and 425A of the Act, as well as including a statement in accordance with s 426A of the Act. The exercise of the Tribunal’s discretion to proceed to determine the matter on 11 May 2015 cannot be said to lack an evident and intelligible justification in circumstances where the applicant failed to appear and failed to engage in the process before the Tribunal.

6. In considering whether it is necessary, in the interests of the administration of justice, to extend the time for making an application, the Court must also take into account the merits of the application at an impressionistic level.

The proposed grounds

1. The proposed grounds in the application are as follows:

   1. I am scared to return back to China, because there really exists the persecution targeted towards the petitioners in China. If I returned back to China, I would certainly be monitored by the staff from the Chinese governmental department due to my previous petition experience.

   2. The department of immigration and border protection failed to consider my difficult condition in my own country.

   3. I did not attend the hearing of AAT (RRT) because I did not receive the letter informing me the time.

   4.  The Tribunal decided to affirm the decision under review.

   5. I hope the Federal Circuit Court of Australia could give me another opportunity and do justice for me.

2. Proposed ground 1 identifies the applicant’s claim and does not identify any arguable case of relevant error.

3. Proposed ground 2 refers to a failure by the Department to consider the applicant’s difficult condition in his own country. The Court does not have power to review the decision of the delegate. Even if proposed ground 2 is treated as referring to the Tribunal, it is apparent that the Tribunal correctly identified the applicant’s claims. The Tribunal was not, in the absence of the applicant at the hearing, in a position where it was satisfied that the applicant had made out the criteria for the grant of a protection visa. Proposed ground 2 fails to disclose a sufficiently arguable case to warrant an extension of time.

4. Proposed ground 3 repeats the applicant’s assertion that he did not receive the notification of the hearing. For the reasons already given on the material before the Court, the applicant was notified, in accordance with the statutory regime, of the invitation to attend the hearing. The applicant’s contention to the contrary does not identify any arguable case of relevant error.

5. Proposed grounds 4 and 5 do not, of themselves, disclose any arguable case of relevant error.

6. Given the unsatisfactory explanation for the delay and the want of merits in relation to the proposed grounds of review, the Court is not satisfied that an extension of time is necessary in the interests of the administration of justice.

7. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 19 July 2019