BTY15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1518
•13 September 2019
FEDERAL COURT OF AUSTRALIA
BTY15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1518
Appeal from: BTY15 v Minister for Immigration & Anor [2018] FCCA 701 File number: NSD 1335 of 2018 Judge: YATES J Date of judgment: 13 September 2019 Catchwords: MIGRATION – application for extension of time to appeal from judgment of Federal Circuit Court of Australia – inadequate explanation for lengthy delay in filing appeal – no reasonable prospects of success of appeal – application dismissed Legislation: Federal Court Rules 2011 (Cth), r 36.03
Migration Act 1958 (Cth), s 438
Date of hearing: 13 September 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Ms M Perotti of Sparke Helmore ORDERS
NSD 1335 of 2018 BETWEEN: BTY15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
13 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 26 July 2018 be dismissed.
2.The applicant pay the first respondent’s costs.
3.On the application of the first respondent, the first respondent’s designation be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)YATES J:
The applicant seeks an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) given on 22 March 2018. By this judgment, the Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), that affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Protection (Class XA) visa.
Under r 36.03 of the Federal Court Rules 2011 (Cth), a notice of appeal should have been filed by 12 April 2018. The applicant filed her application for an extension of time on 26 July 2018, 105 days after a notice of appeal should have been filed.
In an affidavit filed in support of her application, the applicant deposes that a notice of appeal was not filed in time as she had “difficulty in affording the filing fee”, and that she is filing for an exemption from paying that fee. The Minister submits, and I accept, that this explanation is inadequate. There is no evidence of the applicant’s financial circumstances at the relevant time, or that she has made any application for exemption from paying the required fee.
A further important matter is that the length of the applicant’s delay in seeking an extension of time is substantial. That said, the Minister does not claim any specific prejudice, should time be extended. The most significant matter, to my mind, is that the appeal which the applicant wishes to bring does not have any reasonable prospects of success. Indeed, it is without merit, as I will now explain.
The applicant is a citizen of China who arrived in Australia on 10 January 2008 on a Student Guardian (Offshore) visa. The basis of her claim is that if returned to China she would suffer harm because of her Tibetan Buddhist faith. The applicant’s application for a protection visa made on 16 July 2013 was refused by the delegate on 28 April 2014. The applicant sought review of this decision before the Tribunal. On 5 August 2015 the Tribunal affirmed the delegate’s decision. In essence, the Tribunal rejected the substance of the applicant’s claims based on adverse findings as to her credibility.
In her application for judicial review in the Federal Circuit Court, the applicant raised a single ground expressed as follows:
Although I provided many supporting documents, the Tribunal did not consider the weight of those supporting documents. I had healthy issues, so my memory is not good. The Tribunal pointed out that my memorized issues, showing that I am not a genuine refugee applicant.
(Errors in original.)
The primary judge recorded the following matters:
12.Only the Minister prepared written submissions in advance of today’s hearing in accordance with procedural orders made by a Registrar and me.
13.I invited oral submissions from the applicant this afternoon. She appeared to have difficulty formulating her thoughts. I asked if she had any problem with the Tribunal’s decision or the process followed by the Tribunal. She initially said that there was no problem, and that she did not want to return to China. Later, she referred to an asserted health problem which affected her memory as a result of being hit on the head by her husband. I noted that this was dealt with in the Tribunal decision. The applicant said that she wanted an opportunity to furnish more information. I noted that the current proceedings had been on foot since 2015.
14.After hearing from the Minister’s solicitor I invited the applicant to make further submissions in reply. She again sought an opportunity for more time to submit documents, and, on being told that that opportunity would not be forthcoming, the applicant had nothing further to say.
15.The Minister’s submissions deal adequately with the ground of review advanced. I agree with those submissions.
In summary, the primary judge found that it was apparent on the face of the Tribunal’s Decision Record that it did consider the documents provided to it. The primary judge noted that the applicant had raised a claim of memory loss as a result of being hit by her former husband because of her faith, but noted that the Tribunal had rejected that claim. The primary judge found that this rejection was open to the Tribunal on the evidence and material before it.
The applicant’s draft notice of appeal contains three grounds expressed as follows:
1.The court failed to take into the fact that the material fact and serious harm what the appellant would face to if the appellant was forced to return to China
2.The court failed to take into consideration that the appellant committed suicides when suffering persecution in People’s Republic of China
3.The Court failed to take into the relevant country information with regards to human right.
(Errors in original.)
Apart from the fact that these proposed grounds are lacking necessary particulars in a number of respects, they are directed to asserting error on the part of the primary judge as if the Federal Circuit Court’s jurisdiction was to hear afresh the merits of the applicant’s claims for protection. This, of course, was not the Federal Circuit Court’s task. None of the matters which the applicant asserts in her proposed grounds of appeal can stand as appealable error on the part of the primary judge. I would add that it is clear that the Tribunal gave detailed consideration to the various factual claims made by the applicant and rejected them on the basis that those claims were not credible, for the reasons explained by the Tribunal.
The primary judge dealt with the single ground of judicial review before him in a way that reveals no error on his part. I accept the Minister’s submission that the appellant’s proposed grounds of appeal do not disclose any arguable basis for granting any extension of time to the applicant to file a notice of appeal.
I note that the applicant’s affidavit in support contains a statement that the primary judge and the Tribunal “failed to take into consideration of the material facts that the First Appellant’s study intention and he actually had finished some part of scheduled study”. It seems that the applicant also seeks to raise this as a ground of appeal. As the Minister correctly submits, this statement, if it does refer to the applicant and if it be correct, has no relevance to the present matter.
As a final matter, in his reasons for judgment, the primary judge considered the significance of a certificate that had issued under s 438 of the Migration Act 1958 (Cth). The primary judge found that there was nothing to indicate that the Tribunal acted upon the documents covered by the certificate. The primary judge concluded that no jurisdictional error attended the Tribunal’s failure to disclose either the certificate or the documents to the applicant. I see no error in this conclusion. I mention this matter solely for completeness.
I wish to record that I have dealt with this matter on the merits in the absence of any appearance by the applicant today. There is evidence before me that the applicant was informed on more than one occasion of today’s hearing. The matter was called outside the Court and there was no appearance. I have been informed that two attempts were made to contact the applicant by telephone using a mobile telephone number that the applicant supplied on the documents she has filed. In the circumstances, I considered it appropriate that I should engage with the matter on its merits, and I have reached the conclusions which I have expressed above.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 25 September 2019
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