BZX22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1080

Federal Circuit and Family Court of Australia

(DIVISION 2)

BZX22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1080

File number(s):	MLG 1291 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	5 December 2022
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	29
Date of last submission/s:	5 December 2022
Date of hearing:	5 December 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Mr Sharpe, Solicitor
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

MLG 1291 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BZX22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	5 DECEMBER 2022

THE COURT ORDERS THAT:

1.The application for extension of time is refused.

2.The application filed on 10 June 2022 is otherwise dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,900.

4.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 18 January 2022, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, BZX22, a protection visa.  On 10 June 2022, the Applicant asked this Court to review that decision. 

2. As can be readily seen by the dates that this application was filed, it was well and truly after the 35-day time limit.  In fact, the application was 103 days outside of the time limit.  For that reason, this matter is an application for extension of time within which to file the application. 

3. During the course of today’s hearing, the Applicant, who is unrepresented but has been assisted by an interpreter, asked for an adjournment.  His application for an adjournment was based upon what he said was a phone call and an email from a group known as the Human Rights Law Program Asylum Seeker Resource Centre.  

4. The Applicant claimed that this organisation told him that they would have a lawyer appear for him at today’s hearing.  The Court had received no communication at all from this organisation and the Minister had received no communication from this organisation.  This hearing has been set down since 4 October 2022, a period of two months and one day. 

5. The Court, though, still made attempts to contact this organisation, even though the Applicant only had a general phone number.  The Court did not have any name of any solicitor who apparently gave the Applicant this information either.  Nevertheless, the Court made its endeavours by phoning the phone number and two other phone numbers associated with this organisation. 

6. There was no answer at one number, a disconnected service at the second number and a voice-recorded message on the third number that “no one could take the call because all operators were busy”.  The Court waited some four minutes to see if there would be an answer by the receptionist to the call of the Court. 

7. Eventually, the Court decided that, because there had been no communication (and there was no excuse proffered by anyone as to why these persons did not appear for the Applicant at today’s hearing), no person from this organisation was going to appear for the Applicant at today’s hearing. 

8. The Court refused the adjournment and proceeded with the hearing, given that the Applicant is in immigration detention and has been so for some time.  In those circumstances, it is necessary for the Court to hold such a hearing as quickly as possible. 

9. There are three aspects to the question of whether a Court should grant an extension of time within which to file an application. 

10. The first question the Court asks is “what the reason for the late filing is or what is the excuse for not filing the application on time”? 

11. The second question the Court asks itself is “what prejudice would be occasioned to the Respondent if the Court were to allow such an extension of time”? 

12. The third question the Court asks is whether the Applicant has an arguable case that the decision of the Tribunal was infected by jurisdictional error?  It is this third question that I will look at firstly. 

13. The claims of the Applicant were that his uncle was going to kill him if he returned to India.  He said that when his father died, he, his mother and his brother inherited a sizeable property portfolio.  He said that his uncle has made threats to kill him in order to take over his portion of the property.  It was for this reason that the Applicant said that he left India in 2017 and came to Australia.  The Applicant said that, on 7 July 2021, there was a shooting at the house he was staying at in Australia.  The Applicant claimed that his uncle in India organised this shooting. 

14. The Tribunal looked very thoroughly at these claims.  The Tribunal came to the conclusion that it did not accept that the uncle had threatened to kill the Applicant to take over his land. 

15. The Tribunal noted that the Applicant had been in India without his mother and his brother for some five years before he left to come to Australia.  The Applicant also left Australia on two occasions after he came here and went back to India.  The Applicant had not applied for protection at all during that time and had gone back to India despite having this fear about his uncle.  The Applicant did not apply for a protection visa until 30 September 2021. 

16. The Tribunal also noted that the Applicant was on drugs and had committed crimes and ended up being remanded in prison here in Australia. 

17. The Tribunal also noted that, even if the Applicant returned to India and was killed by the uncle, it did not necessarily follow that the uncle would then have ownership of that land.  The Tribunal noted that this seriously undermined the motive that the Applicant said that the uncle had for killing him. 

18. The Tribunal noted that the Applicant did not have a will, so that if he died there would be a direction as to what would happen to the land that he owns. 

19. The Tribunal noted that the Applicant had not made a complaint to police about the threats of the uncle.  The Tribunal did not accept that the uncle orchestrated any drive-by shooting at the house in Australia in July 2021.  The Tribunal found that they were not satisfied that there was ever a threat by the uncle to kill the Applicant.

20. The Tribunal looked at the Applicant’s position as a returnee, as a failed asylum seeker, and as a person who would have criminal convictions from Australia.

21. The Tribunal found that the Applicant did not meet the criteria for refugee protection.  The Tribunal found the Applicant did not meet the criteria for complementary protection either. 

22. The Applicant said that he had an arguable case that there was an error made by the Tribunal.  He said that the Tribunal had not allowed him a sufficient adjournment to procure documents.  He said that he had a number of documents that would show that what he was saying was correct, but he said that the Tribunal hearing was on a Thursday, and the Tribunal had told him he would have until the Monday to produce those documents.  He said that this was insufficient time, and therefore, it was unfair, and this would constitute a jurisdictional error.

23. The problem is that there is nothing in the record, or in the reasons of the Tribunal, that suggests that this was ever an issue for the Tribunal.  The Applicant has not particularised what documents it was that the Tribunal had wanted him to get, and there is nothing in the reasons of the Tribunal that would suggest that the Tribunal was interested in any documentation that the Applicant may be able to obtain. 

24. In the hearing record, which was reproduced at CB 103 to 106, there are no notations about any further material to be provided by the Applicant.  The hearing record simply records that the hearing was complete on 5 January, which I also note was a Wednesday, and the decision was given 13 days later, on 18 January 2022.

25. The second aspect that the Applicant said was a jurisdictional error was that the Tribunal told him that he could live in another state in India.  He submitted to me that he simply could not live in another state in India.  In his actual application, one of his grounds is that the Tribunal determined, in the absence of probative evidence that the threat posed by the Appellant’s fear of harm did not extend to all parts of India.  The Tribunal did not make any such determination at all.

26. The Tribunal found that there was no well-founded fear.  For these reasons, I am not satisfied that there is an arguable case that the Tribunal’s decision was infected by jurisdictional error.

27. The Applicant has not given a reasonable excuse as to why he filed the application out of time.

28. I also note that the Minister has conceded that there would be no real prejudice to the Minister if the application were granted.

29. When I take all of those matters into consideration, I am of the view that the application, for extension of time within which to file an application for judicial review, should be refused.  I will order accordingly.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       18 January 2023