Bup16 v Minister for Immigration and Border Protection
[2018] FCA 243
•8 March 2018
FEDERAL COURT OF AUSTRALIA
BUP16 v Minister for Immigration and Border Protection [2018] FCA 243
Appeal from: Application for an extension of time: BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782 File number: NSD 1923 of 2017 Judge: MARKOVIC J Date of judgment: 8 March 2018 Catchwords: MIGRATION – Application for extension of time to appeal – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 424A, 424AA, 425, 425A, 426A
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91
Date of hearing: 28 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 43 Counsel for the Applicants: The Applicants appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Day of DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1923 of 2017 BETWEEN: BUP16
First Applicant
BUT16
Second Applicant
BUU16
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
8 MARCH 2018
THE COURT ORDERS THAT:
1.Application for an extension of time filed on 3 November 2017 be dismissed.
2.The applicants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
This is an application for an extension of time to appeal orders made in the Federal Circuit Court of Australia (Federal Circuit Court) on 3 August 2017 dismissing the applicants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): BUP16 v Minister for Immigration and Border Protection [2017] FCCA 1782 (BUP16). The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicants Protection (Class XA) visas (Visas).
The first, second and third applicants, who are citizens of India, are a family respectively comprising of a husband, wife and their son. Only the husband, the first applicant, made claims for protection. The wife and son made no claims independent of those of the husband.
BACKGROUND
The applicants applied for the Visas on 14 April 2014.
The husband claimed to fear harm from Hindu extremist groups in India, in particular, the group known as “Shivesena”, because of his Muslim faith. He claimed to have been attacked, mistreated and looted by Hindu extremist groups; that he had been targeted several times; that he often had to leave India for a few days or weeks to get away from the attacks; and that extortion threats were increasing. The husband fears that if he returns to India he and his family will be harmed in different ways, including physical harm, kidnapping or potentially be killed. The husband also claimed that when he calls his family from time to time he is informed that they have received threats and that he will be killed if he returns to India.
The applicants were invited to attend an interview with the delegate to discuss their claims. They did not attend and did not submit any further material for the delegate’s consideration prior to the scheduled interview.
The delegate refused the applicants’ application for the Visas and on 15 January 2015 the applicants sought review of the delegate’s decision by the Tribunal.
On 11 May 2016 the Tribunal wrote to the applicants inviting them to attend a hearing on 8 June 2016. The invitation letter informed the applicants that the Tribunal had considered the material before it in relation to their application but that it was unable to make a favourable decision on that information alone and invited the applicants to send the Tribunal any additional or new information or requests they wished it to consider.
On 1 and 7 June 2016 the Tribunal sent SMS hearing reminders to the applicants’ nominated mobile phone number.
On 8 June 2016 the hearing proceeded. The husband did not attend the hearing. The wife informed the Tribunal that her husband had become ill that morning and gave evidence on behalf of herself and their child. The Tribunal informed the wife that, if the husband still wished to attend to give evidence, medical evidence had to be provided confirming the reason why he was unable to attend the scheduled hearing; that it would consider any such information and any request for an adjournment; and that, if no material was received by 5 pm on 10 June 2016, it would proceed to determine the matter on the material before it without taking steps to convene a further hearing. On the same day the Tribunal also sent a letter to the husband’s email address setting out those matters.
The applicants did not provide any further material to the Tribunal by 10 June 2016 or up until the date of the Tribunal’s decision.
On 17 June 2016 the Tribunal proceeded to make its decision pursuant to s 426A of the Migration Act 1958 (Cth) (Act).
THE TRIBUNAL’S DECISION
The Tribunal set out the history of its communications with the applicants leading up to the hearing on 8 June 2016 and thereafter. It noted that it was not satisfied that the husband was unable to attend the scheduled hearing; that it was satisfied that the husband had been offered an opportunity to attend a hearing before it but did not do so; and that, in the circumstances and pursuant to s 426A of the Act, it had decided to make a decision on the review without taking any further steps to enable the husband to appear before it.
The Tribunal considered the husband’s claims, noting that they were only set out very briefly and that, as he did not attend the hearing, it did not have the opportunity to explore the details of any specific instances of harm in order to be satisfied about the credibility of those claims. The Tribunal also noted that it had no particular evidence as to what harm, threats, mistreatment, extortion or looting the husband actually suffered or any independent information to support his claim of targeting, threats, extortion and personal harm. However, the Tribunal did have regard to country information.
The Tribunal found that the information provided by the husband did not provide a sufficient basis to allow it to be satisfied of the validity of the claims he made. The Tribunal was not satisfied on the material and information before it that the husband had suffered harm in the past nor was it satisfied that there was a real chance that he would suffer serious harm if he returned to India now or in the reasonably foreseeable future. The Tribunal was not satisfied that the husband had a well founded fear of persecution on the basis of his claims.
The Tribunal also considered but was not satisfied that the husband met the complementary protection requirements in s 36(2)(aa) of the Act.
The Tribunal noted that the wife had confirmed that neither she nor the child had any claims of their own and that their claims rested solely on those of the husband. However, as the husband had claimed that his family may be subjected to harm, kidnapping or killing if they returned to India, the Tribunal considered that claim. Having considered the wife’s evidence the Tribunal was not satisfied that there was a real chance that the wife and the child would suffer serious harm nor that there were substantial grounds for believing that they would suffer significant harm if they returned to India.
PROCEEDING BEFORE FEDERAL CIRCUIT COURT
By application filed on 15 July 2016 the applicants sought judicial review of the Tribunal’s decision. They raised four grounds of review.
By the first ground the applicants alleged that the Tribunal committed jurisdictional error by failing to comply with Div 4 Pt 7 of the Act. The primary judge understood that ground to contend that the Tribunal exercised its powers under s 426A of the Act legally unreasonably and that it thereby failed to comply with its procedural fairness obligations by failing to receive oral evidence from the husband at the Tribunal hearing. The primary judge concluded that, in the circumstances of the case, there was nothing that could be characterised as legally unreasonable in the way the Tribunal exercised its discretion under s 426A to proceed to make a decision on the application for review in the absence of the husband. His Honour found that the decision to proceed did not lack an “evident and intelligible justification” and set out his reasons for reaching that conclusion: BUP16 at [39]-[41].
By ground two the applicants alleged that the Tribunal “misconstrued the risk and fear of significant harm as set out in s 36(2A)” of the Act. The primary judge rejected that ground noting that it sought impermissible merits review of the Tribunal’s decision and failed to identify any jurisdictional error on the part of the Tribunal: BUP16 at [42]-[44].
By ground three the applicants alleged that the Tribunal failed to consider an integer of the husband’s claim, namely, whether or not a Muslim minority in India was at risk of harm from Hindu extremist groups and not able to access effective protection. In rejecting this ground the primary judge noted that the Tribunal expressly considered the position of Muslims in India and had regard to the country information for India in relation to that issue: BUP16 at [45].
In the fourth and final ground the applicants alleged that the Tribunal failed to comply with the mandatory requirements of s 424A, read with s 424AA, of the Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review. The primary judge rejected that ground noting that s 424A(1) was not enlivened because it considered the applicant’s claims and relevant country information which was excluded from s 424A(1) by reason of s 424A(3)(a): BUP16 at [46]-[47].
THE APPLICATION FOR AN EXTENSION OF TIME
Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) requires a notice of appeal to be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The primary judge made orders on 3 August 2017. Thus, the notice of appeal was required to be filed by 24 August 2017. The application for an extension of time, which was filed on 3 November 2017, was approximately 10 weeks out of time.
The Court has a discretion to extend the time within which to file a notice of appeal. The considerations relevant to the exercise of that discretion are:
(1)the reasons for the delay, noting that the prescribed period is not to be ignored;
(2)any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and
(3)the merits of the appeal,
see: SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91 at [18]-[19].
The applicants filed their application for an extension of time together with an affidavit in support affirmed by the husband and provided a draft notice of appeal.
In his affidavit in support of the application under the heading “Application for an extension of time” the husband gave two reasons why the notice of appeal was not filed in time. First, he said that he could not file in time and attend the previous hearing, I infer the hearing before the Tribunal, because of his “severe depression and sickness”. He continued as follows:
a.The depression was not only due to my financial, personal and family situation but also because of my past experiences in India.
b.I did not have the energy or ability to get out of my house for months at a time & I isolated myself from everyone. Further, I had lost interest in my everyday activities (i.e. life in general). This significantly impaired my daily life.
c.I am now seeking treatment for the depression and am on anti-depressants. I am now trying to get my life back in order and therefore, would like another chance to be heard & to put forward my case in front of the judge.
Secondly, he said that he has problems understanding English which resulted in him filling out incorrect forms for the purpose of the appeal. He stated that he contacted the registry of this Court before filing his application, enquiring which forms were required to be completed, and that he was informed that he needed to fill out an “application in a case” which proved to be incorrect. He said as a result the application made was incorrect and that he now needs an extension of time to be able to prepare the correct forms.
The husband also submitted at the hearing that he was unable to file his notice of appeal because when he attended the Law Courts building the registry was closed. Upon further questioning it became apparent that this was in November 2017 when the Court building was closed due to flooding and the Court’s registry had been temporarily moved to the premises of the Family Court of Australia and not during the period when the notice of appeal was required to be filed by the Rules.
The draft notice of appeal filed with the application for an extension of time raises three grounds of appeal which effectively repeat the grounds raised before the primary judge:
1.The respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act, being division 4 part 7 of the Act.
a.The Tribunal's decision was fundamentally influence (sic) by not receiving evidence from me at hearing. This was mentioned in the Tribunal's reasons for the decision.
b.I did not get an opportunity to respond and comment on the information and material presented to the Tribunal. I was not provided with a fair trial because the Tribunal did not hear my side of the story or arguments.
c.I understand that the court did provide me with an opportunity to respond, however at the time I was suffering from severe depression and sickness. I had isolated myself from everyone & lost interest in my everyday activities. This significantly impaired my daily life. The depression was not only due to my financial, personal and family situation but also because of my past experiences in India.
i.I am now seeking treatment for severe depression and am on antidepressants. I am also trying to get my life back in order and therefore, would like another chance to be heard & to put forward my case in front of a judge.
2.The respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
3. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.
a.I believe that the Tribunal failed to consider my personal situation and whether I was in actual threat in India as a Muslim. In India, I had been attacked by Hindu extremist groups multiple times. Being from a minority group (i.e. Muslim) I was targeted, mistreated, assaulted & looted. I received multiple threats of extortion including the risk of kidnap of family members, bodily harm & threats of my family and I being killed.
ii.If I am sent back to India then it will be a high risk for my family and I since even the Indian authorities would not protect me. In India I tried to lodge complaints against the Shivsena group, but was unsuccessful because of their political presence. The Indian authorities have failed to provide protection in the past.
iii.Therefore, the decision made by the Federal Circuit Court in my opinion was unreasonable.
Consideration
Delay
There is a not insignificant delay in this matter of approximately 10 weeks. The explanation for the delay appears to be a combination of an assertion by the husband that he was suffering from depression and that he was given incorrect information as to the form to file by the registry of this Court.
As to the former, the husband has not provided any medical evidence in support of his assertion to be suffering from depression or to have been so suffering at the relevant time such that he could not attend to the filing of the notice of appeal.
As to the latter, I accept that the husband, who appeared at the hearing of the application on behalf of all of the applicants with the assistance of an interpreter, may have difficulty understanding English and may have been confused about the nature of the forms to be filed, particularly as the applicants are not legally represented. However, I do not think that this is a sufficient explanation for a delay of the magnitude experienced in this matter.
During the course of the hearing of the application the husband submitted to the Court that he had back pain so that he could hardly walk and for that reason could not file the application in time. Again there was no medical evidence in support of that assertion.
As to the further explanation for the delay based on the temporary relocation of the registry of this Court, as I have already observed, that was during November 2017 when the application was in fact filed. The Law Courts building in Sydney was open and this Court’s registry was operating from that location in August 2017 and leading up to 24 August 2017, the day by which the notice of appeal was required to be filed.
Prejudice
The Minister can point to no prejudice should the extension of time be granted in this case.
Merits of the proposed appeal
That then leaves the question of the merits of the proposed grounds of appeal.
The applicants did not file any written submissions in support of their proposed grounds of appeal. The balance of the husband’s affidavit filed in support of the application for leave to appeal sets out the procedural history of the matter leading up to the application. Under the heading “Nature of appeal” the husband states the following, which replicates aspects of the proposed grounds of appeal:
I now seek to appeal to the Federal Court of Australia on the basis that:
a.Firstly, I did not get to respond and comment on the information and material presented to the Federal Circuit Court. I was not provided with a fair trial because the Tribunal did not hear my side of the story or arguments.
i.I understand that the Tribunal did provide me with an opportunity to respond, however at the time I was suffering from severe depression. As stated above, I had isolated myself from everyone & lost interest in my everyday activities. I would like another chance to be heard, to respond and put my arguments forward.
b.Secondly, I believe that the Court failed to consider my personal situation and whether I was in actual threat in India as a Muslim. In India, I had been attacked by Hindu extremist groups multiple times. Being from a minority group (i.e. Muslim) I was targeted, mistreated, assaulted & looted. I received multiple threats of extortion including the risk of kidnap of family members, bodily harm & my family and I being killed. If I am sent back to India then it will be a high risk since even the Indian authorities would not protect me – they had failed to provide protection in the past.
At the hearing, when invited to make oral submissions, the husband submitted to the Court that he just needed more time in Australia.
I have considered the proposed grounds of appeal and in my opinion they lack merit and do not identify any appealable error in the reasons of the primary judge.
In relation to proposed ground one, as the primary judge identified, the husband was invited to attend a hearing as required by s 425 of the Act and in accordance with the requirements of s 425A of the Act. The Tribunal had the power pursuant to s 426A(1A)(a) of the Act to make a decision on the review without taking any further steps to enable the husband to appear before it. No medical evidence was provided to the Tribunal either before or after the scheduled hearing to explain why the husband had failed to attend.
In exercising the powers and discretions conferred on it, in this case the discretion conferred by s 426A of the Act, the Tribunal must act reasonably: see Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 at [66]-[76]. In the circumstances of this case, having regard to the facts of the case and the matters taken into consideration by it, it could not be said that the Tribunal’s decision lacked an “evident and intelligible justification”, or that it lacked a rational foundation, or that it was plainly unjust, or lacked common sense having regard to the scope of the statutory source of power it exercised: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]. The primary judge made such a finding: BUP16 at [39]-[40]. There is no appealable error in that conclusion.
In my opinion proposed ground two similarly has no prospect of succeeding. It alleges that the Tribunal failed to comply with s 424A of the Act but does not specify how that is so. In any event, as identified by the primary judge, s 424A was not enlivened as the Tribunal relied on the husband’s own claims and country information: see s 424A(3)(a) of the Act.
Proposed ground three does not identify any appealable error in the reasons of the primary judge. Insofar as it alleges that the Tribunal misconstrued “the risk and fear of significant harm”, the ground seeks impermissible merits review and, in any event, the Tribunal considered s 36(2)(aa) of the Act by reference to the husband’s claims and those of the wife and child. Insofar as the ground alleges that the Tribunal failed to consider his personal situation and whether he was at threat of harm because he is a Muslim, as the primary judge observed, the Tribunal expressly considered that claim and relevant country information as part of its assessment of the claim.
CONCLUSION
In my opinion, the applicants have failed to establish that the Court should exercise its discretion to extend the time in which to file their notice of appeal. Their application should be dismissed with costs. I will make orders accordingly.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 8 March 2018
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