Bva18 v Minister for Home Affairs

[2018] FCCA 1426

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVA18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1426

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an extension of time for show cause application.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476, 477, 501

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259

VAS v Minister for Immigration [2002] FCAFC 350

Applicant: BVA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1006 of 2018

Judgment of: Judge Driver

Hearing date: 1 June 2018

Delivered at: Sydney

Delivered on: 1 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms H Aitken of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1006 of 2018

BVA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 February 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 24 May 2018. 

3. The applicant, a citizen of Fiji, most recently came to Australia in 1995.[1]  On 6 May 2009, the applicant was taken into criminal custody, charged and subsequently convicted of multiple robbery and assault offences.[2] On 13 February 2017, the applicant’s One Year Return (Class BB) (Subclass 156) visa was cancelled under s.501(3A)(a)(i) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he was a serving a term of imprisonment of over 12 months.[3]

   [1] Court Book (CB) 42.  He says he migrated here in 1985 at the age of 4 but returned to Fiji for a period when he was 14.

   [2] CB 4-12

   [3] CB 1

4. On 16 October 2017, the applicant lodged an application for a protection visa.[4]  On 2 November 2017, the delegate refused to grant the applicant the visa.[5]  On 3 November 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[6]  On 20 February 2018, the Tribunal affirmed the decision under review.[7]

   [4] CB 27

   [5] CB 58

   [6] CB 73

   [7] CB 159

The applicant’s claims

1. The applicant’s claims for protection were set out in his visa application and may be summarised as follows:[8]

   a)upon return to Fiji, the applicant would be regarded as an outsider, being someone who had resided overseas from a young age, had Western values, and did not speak Fijian or share Fijian cultural views.  When the applicant had returned to Fiji in the past, he was looked at as an outcast due to the “modification of his character”, the way he dressed and his tattoos;

   b)due to his criminal record, the applicant would be denied the opportunity to obtain employment or accommodation in Fiji.  Further, he would be unable to gain any medical assistance as there was no health or social security system available in Fiji; and

   c)the applicant feared police brutality in Fiji due to his previous crimes.

   [8] CB 13

Tribunal decision

1. The Tribunal had regard to the applicant’s claims and evidence as presented in his protection visa application, the interview with the delegate, in oral evidence to the Tribunal, and in written submissions and evidence presented before and after the hearing.[9]

   [9] CB 161, [13]

2. The applicant provided an article about a complaint by a man named Ricardo Fisher (Mr Fisher), who was allegedly mistreated by police officers in Fiji.  The applicant claimed that he had known Mr Fisher for about 20 years, and that he had been harassed by the authorities after his deportation from Australia on character grounds.[10]  The Tribunal referred to a statement given at the hearing by the applicant’s “cousin-in-law” Natalie Ngata, and a statutory declaration provided to the Tribunal by Rowena Charles.  It gave neither of these documents any weight.  It considered that Ms Ngata’s statement did not demonstrate any firsthand knowledge of conditions in Fiji and that the matters raised by Ms Charles were not relevant to the assessment of whether the applicant was owed protection obligations.[11]

   [10] CB 163, [29(b)]

   [11] CB 164, [31]-[32]

3. Following the hearing, the Tribunal wrote to the applicant (pursuant to s.424A of the Migration Act) in relation to information it had obtained about Mr Fisher, and in particular that the investigation into Mr Fisher’s complaint of mistreatment had been put on hold because he had not cooperated and attempts to contact him had been futile. In response, the applicant stated that he had purportedly contacted Mr Fisher, who said he did not have faith in the authorities to resolve the matter, and his family had begged him not to cooperate as it could expose them to harm.[12] 

   [12] CB 164, [33]

4. The Tribunal first addressed the applicant’s claim that he would feel like an outsider.[13]  The Tribunal noted the applicant’s evidence of his last return to Fiji, that he could not speak the language and his family members were only interested in him when he spent money on them. The Tribunal found that this did not amount to serious or significant harm.[14]  The Tribunal also found that as English was an official language in Fiji, the applicant would not face harm because he could not speak Fijian.[15]  The Tribunal found that the applicant’s evidence about the harm he would suffer because of his tattoos was vague, and concluded that his claim was a mere assertion based on no credible evidence.[16]  The Tribunal also found the applicant’s evidence of the “modification of his character” to be vague, and did not consider that this amounted to serious or significant harm.[17]  Overall, Tribunal found that while it was plausible that the applicant might feel like an outsider or outcast upon his return, the evidence did not suggest that there was a real chance the applicant would face serious or significant harm for this reason.[18]

   [13] CB 165, [36]

   [14] CB 165, [37]

   [15] CB 165, [37]

   [16] CB 165, [38]

   [17] CB 166, [39]

   [18] CB 166, [40]

5. The Tribunal proceeded to consider the applicant’s claim that he would be unable to access public services in Fiji.[19]  It accepted that given that he would be returning after a long period of absence and as a criminal deportee, it was plausible that more distant family members would be unwilling to assist him.[20]  It also accepted that due to his criminal record, it might be difficult for him to secure accommodation and employment.[21]  However, the Tribunal found that Fiji did have public services accessible by the applicant, and accordingly did not accept that the applicant would be homeless, or experience economic hardship amounting to serious or significant harm.[22]  In so finding, the Tribunal noted that it had put to the applicant for comment country information indicating that he could access welfare.[23]  The Tribunal referred to a number of services that would be accessible to the applicant and concluded that there was no evidence before it to suggest that he would be denied welfare, medical or other services for any reason.[24]

   [19] CB 166, [41]

   [20] CB 166, [42]

   [21] CB 166, [42]

   [22] CB 166, [42]

   [23] CB 167, [43]

   [24] CB 168, [45]

6. The Tribunal then considered the applicant’s claim to fear harm from the police and military. While it accepted that the applicant’s criminal record might become known to the Fijian authorities, it did not accept that there was a real chance the applicant would be subjected to harm on this basis, nor that there was any credible evidence to support this claim.[25]  The Tribunal did not accept the applicant’s claim to have been slapped by a police officer, noting that he did not raise this claim in his visa application, and explicitly denied having experienced physical harm in Fiji.[26]  As to Mr Fisher, while the Tribunal accepted that he was assaulted by police, it did not consider that this information indicated that he had come to the adverse attention of the authorities due to being a criminal deportee.  In the circumstances, the Tribunal gave this information no weight.[27]  The Tribunal concluded that there was not a real chance that the applicant would face harm due to his criminal record.[28]

   [25] CB 169, [47]

   [26] CB 169, [49]

   [27] CB 169, [50]

   [28] CB 170, [51]-[54]

7. On the basis of these findings, the Tribunal found that the applicant did not have a well-founded fear of persecution in Fiji.[29]  Further, on the basis of its anterior findings, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm.[30]  Accordingly, the Tribunal affirmed the decision under review.[31]

   [29] CB 171, [55]

   [30] CB 171, [56]

   [31] CB 171, [58]

The present proceedings

1. The judicial review application was filed on 11 April 2018, 15 days outside the period prescribed in s.477(1) of the Migration Act.

2. The applicant seeks an extension of time pursuant to section 477(2) of that Act. The grounds for an extension of time are set out in the body of the application:

   1.The applicant is in Christmas Island Immigration Detention Centre and was unrepresented at all relevant times.

   2.As mentioned in the accompanying affidavit the applicant has been restricted to limited resources due to the remoteness of Christmas Island.

   3.The applicant's intention was to lodge an appeal for judicial review within the 35 days unfortunately was unable too due to faxing the application to a different fax no. that was provided to him by an officer here at the Christmas Island.

   (error in original)

3. The grounds of the proposed judicial review application are set out in a supporting affidavit filed with the application, which I received as a submission:

   1.I am the applicant in this proceeding before court.

   2.The first respondent's decision made on 2^nd November 2017 to be quashed.

   3.The second respondent's decision made 20^th February 2018 to be quashed.

   4.The respondent's decision was unreasonable.

   5.The respondent's decision involved an error of law.

   6.The respondent's took into account irrelevant considerations.

   7.The respondent's failed to make relevant considerations into account.

   8.The respondent's in making its decision did not comply with the rules of natural justice.

   9.There was insufficient evidence or no evidence to support various findings made by the respondent's.

   10.The respondent's denied the applicant procedural fairness in coming to its decision on the 2^nd November 2017 and 20^th February 2018 in that it misconstrued and misapplied section 36(2)(aa) of the Migration Act 1958.

   (errors in original)

4. I have before me as evidence the court book filed on 8 May 2018. 

5. At the outset of today’s hearing, the applicant requested an extension of time.  His mother has recently passed away and he has not been able to obtain any legal representation.  He said he was unprepared for today’s hearing. 

6. An adjournment was requested on 22 May 2018 for the hearing which was previously listed for 31 May 2018 at 2.30pm.  I agreed to an adjournment to today to permit the applicant to attend his mother’s funeral.  Regrettably, and possibly due to the exigencies of life in detention, it does not appear that that has proved possible.  While I understand the applicant’s distress at his circumstances, it did not appear to me that a further adjournment of the hearing was warranted. 

7. The principles in relation to extension of time applications are well settled.  The Minister’s submissions deal in general terms with those principles, and I agree that relevant considerations include the extent of the delay, the explanation for the delay, any issue of prejudice, and the legal merit of the proposed judicial review application. 

8. The extent of delay in this matter is relatively short.  The applicant explains the delay by reference to the fact that he was a detainee on Christmas Island when the Tribunal made its decision, and he attempted, unsuccessfully, to fax his judicial review application to the Court.  As pointed out by the Minister’s solicitor, the court book at pages 176 to 178 corroborates that explanation.  It seems that the applicant attempted to fax his application and supporting affidavit to the Tribunal within the period prescribed for the filing of the application in this Court.  I am satisfied that the applicant has provided a reasonable explanation for his delay. 

9. Nevertheless, I am not persuaded that the interests of the administration of justice require an extension of time in this case.  That is because I do not see any legal merit in the application. 

10. The applicant made his application for a protection visa in response to the cancellation of his Australian resident’s visa because of his criminal conviction.  It is apparent from the Tribunal decision and the brief exchanges between me and the applicant this morning that the applicant has two main fears about being removed to Fiji.  The first is that he will be leaving a country where he has spent most of his life and where he has been largely absorbed into the Australian community.  He will be sent to a country that he left at the age of four and has only returned to for a relatively short period of two years as a teenager.  He will, therefore, be relocating to a country he does not know at all well.  That will inevitably be a significant adjustment for him.

11. Secondly, the applicant is afraid of the Fijian police and military, particularly having regard to reports of violence being inflicted by those forces. 

12. The Tribunal dealt with both fears.  The Tribunal was not satisfied that the adjustment required of the applicant as a result of deportation would give rise to a serious or significant level of harm.  The Tribunal was also not satisfied that the applicant’s fears of the Fijian police and military were well founded. 

13. The applicant had advanced as a comparator the case of Mr Fisher in similar circumstances as himself who did suffer harm from the Fijian police on return to Fiji.  It was apparent to the Tribunal, however, that Mr Fisher suffered the harm not because of what he has done in Australia or who he was, but because of what he did in Fiji.  As I put to the applicant, his future in Fiji will be essentially dependent upon what he does there, not what he has done in Australia.

14. In my view, the Tribunal dealt comprehensively with the issues raised by the applicant and its conclusions were open to it on the material before it.  I see no arguable case of jurisdictional error in relation to the Tribunal’s analysis and conclusions.  I otherwise agree with the Minister’s submissions in relation to the merits of the proposed application.

15. The proposed application advances broad grounds of review, set out in the accompanying affidavit.  The grounds refer to alleged error by “the respondent’s”, referring to both the Tribunal decision dated 20 February 2018 and the decision of the delegate on 2 November 2017.  Insofar as the application seeks to challenge the delegate’s decision, this Court has no jurisdiction in that respect.[32]  

    [32] Sections 476(2)(a) and 476(4) of the Migration Act

16. The applicant asserts that the Tribunal’s decision “was unreasonable”.  This contention reveals little more than an emphatic disagreement with the Tribunal’s decision, and in essence, seeks impermissible merits review.[33]  Insofar as this ground could be read to assert that there was no logical connection between the evidence and the Tribunal’s decision, the applicant has provided no particulars to support such an assertion, nor is the basis for the contention apparent on the evidence or the face of the Tribunal’s reasons. 

    [33] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272

17. Secondly, the applicant contends that the Tribunal’s decision “involved an error of law”. In the absence of further particulars, this ground cannot succeed. No such error is apparent on the face of the Tribunal’s reasons, nor on the evidence before the Court. To the contrary, a fair reading of the Tribunal’s decision record reveals that it understood its statutory role and the relevant test to be applied under s.36(2) of the Migration Act, and did apply the relevant legislation without error.

18. Thirdly and fourthly, the applicant variously contends that the Tribunal “took into account irrelevant considerations” and “failed to [t]ake relevant considerations into account”.  Again, the applicant does not particularise what these considerations were.  No irrelevant consideration, or a relevant consideration that was ignored, can be identified.  Accordingly, these grounds have no merit.

19. Fifthly, the applicant contends that the Tribunal “in making its decision did not comply with the rules of natural justice”. Insofar as this ground asserts that there has been a breach of the Tribunal’s procedural fairness obligations under Division 4 of Part 7 of the Migration Act, such a contention does not have any reasonable prospects of success. The applicant was properly invited to attend a hearing pursuant to s.425 of the Migration Act,[34] which he attended and gave evidence in support of his claims.[35] Following the hearing, the Tribunal sent the applicant an invitation to comment on, or respond to, information about Mr Fisher, which complied with s.424A of the Migration Act.[36]  A fair reading of the Tribunal’s decision does not otherwise reveal anything to suggest that the applicant was not given a meaningful opportunity to give evidence and make arguments before the Tribunal.

    [34] CB 91

    [35] CB 144

    [36] CB 148

20. Sixthly, the applicant asserts that “there was insufficient evidence or no evidence to support various findings made”.  In order to succeed on a “no evidence” argument, the applicant is required to demonstrate that there was no evidence at all before the Tribunal upon which its finding was based.[37]  Even in circumstances where the evidence in support of a finding is “slight”, such an argument will be defeated.[38]  In the present matter, the Tribunal’s findings were supported by its assessment of the quality of the applicant’s own evidence and the country information before it.  This approach was open to the Tribunal and no error is revealed by this contention.

    [37] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ

    [38] VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19]

21. Seventhly, the applicant contends that the Tribunal “misconstrued and misapplied section 36(2)(aa) of the Migration Act 1958”. This ground cannot succeed. A fair reading of the Tribunal’s reasons reveals that it understood its task as being the application, to the facts, of not only the refugee criterion in s.36(2)(a), but also the complementary protection criterion set out in s.36(2)(aa). The Tribunal’s assessment of each of the applicant’s claims included direct reference to whether those claims posed a risk reaching the level of significant harm.[39] Ultimately, relying on its anterior findings of fact in relation to s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa), and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there was a real risk the applicant would suffer significant harm. There was no error in the Tribunal’s approach in this regard.

    [39] CB 189 at [40], CB 191 at [46], CB 193 at [54]

Conclusion

1. I conclude that the applicant’s request for an extension of time should be refused.  I will so order.  It follows that the proposed judicial review application is incompetent. 

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     4 June 2018