CBG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1486
•23 August 2019
FEDERAL COURT OF AUSTRALIA
CBG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1486
Appeal from: Application for extension of time: CBG16 v Minister for Immigration & Anor [2019] FCCA 390 File number: VID 273 of 2019 Judge: O'CALLAGHAN J Date of judgment: 23 August 2019 Date of publication of reasons: 9 September 2019 Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
SZGIZ v Minister for Immigration and Citizenship (2012) 212 FCR 235
Date of hearing: 23 August 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicants: CBG16 appeared in person on behalf of the applicants, with the aid of an interpreter Solicitor for the First Respondent: A Cunynghame of Sparke Helmore ORDERS
VID 273 of 2019 BETWEEN: CBG16
First Applicant
CBH16
Second Applicant
CBI16
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
2.The application for extension of time be dismissed.
3.The applicants pay the first respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)O’CALLAGHAN:
On 21 March 2019 the applicants filed an application for an extension of time to file a notice of appeal, in accordance with r 36.05 of the Federal Court Rules 2011 (Cth) (the rules), from the judgment and orders of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court). In March 2019, a registrar of this court made directions requiring the applicants to file and serve written submissions in support of the application for extension of time, but they have not done so. Nor have they filed a draft notice of appeal as the rules require.
At the hearing, the first applicant appeared on behalf of the applicants with the assistance of an interpreter. I asked the first applicant whether she wished to say anything in support of the application for extension of time or the appeal, and she replied no. Having read the reasons of the learned primary judge, it is unclear whether the applicants made any submissions in that proceeding. The ground of review relied on below was that “[t]he AAT did not give our application proper consideration”.
The submissions, both written and oral, relied on by the Minister assume to the benefit of the applicants that that same ground is sought to be relied upon here.
I will now set out a little of the background of the matter.
The applicants are citizens of Malaysia. They arrived in Australia more than nine years ago. Shortly after their arrival, an initial protection visa application was lodged. In that application, the first applicant was the applicant wife, and the second was the applicant husband.
The applicant husband and wife have a son. Both the applicant wife and the applicant husband made their own refugee claims. On 23 September 2011, the Refugee Review Tribunal, as it was then known, affirmed a decision of the delegate dated 31 December 2010 refusing to grant the protection visas sought under s 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act).
More than two and a half years later, in March 2014, and relying on the decision of the Full Court in SZGIZ v Minister for Immigration (2012) 212 FCR 235, the applicants applied for a protection visa. They later lodged an application for a member of the family unit in relation to their child. In August that year, the Minister’s delegate refused to grant the applicants’ visa. The delegate found that the applicant wife did not satisfy either s 36(2)(a) or s 36(2)(aa) of the Migration Act, and that therefore, the applicant husband and child, as members of the applicant wife’s family unit, could not be granted the visa either.
In September 2014, the applicants applied to the Refugee Review Tribunal for a review of that decision. In March 2016, the applicants appeared before the tribunal to give evidence and present arguments. The applicant wife’s claims before the tribunal were that she left Malaysia because she was forced to marry the son of an Islamic faith healer, and that she was forced to abandon her religious beliefs and convert to Islam.
On 30 June 2016, the tribunal affirmed the decision of the delegate to refuse to grant the applicants the visa. The tribunal considered the decision of the Full Court in SZGIZ, which was to the effect that s 48A of the Migration Act does not prevent a non-citizen who has made a valid application on the basis of the refugee criterion in s 36(2)(a) from making a further application on the basis of complementary protection under s 36(2)(aa) whilst they remained in the migration zone. Accordingly, the tribunal considered whether the applicant satisfied the requirements of ss 36(2)(aa), (b) and (c) of the Migration Act.
It was accepted by the applicant husband that his claims rested on those made by his wife. It is not necessary for the purposes of these reasons to set out the tribunal’s reasons in any detail. It is sufficient to say that the tribunal had significant concerns about the applicant wife’s credibility, and found that her claims were implausible and based on inconsistent evidence. The tribunal concluded that the applicant wife was an unreliable witness, and did not accept the substance of the claims that she put. Nor did the tribunal accept that the applicant wife would be harmed in Malaysia on the basis of her Chinese ethnicity.
For all the reasons the tribunal gave, and having considered the applicants’ claims individually and cumulatively, the tribunal did not consider that there were substantial grounds for believing that there was a real risk that the applicants would suffer significant harm. It found that the applicants were unable to satisfy the criteria set out in ss 36(2)(aa), (b) or (c) of the Migration Act.
The applicants applied to the Federal Circuit Court in July 2016 for judicial review of the tribunal’s decision. As I have noted, the sole ground of review was that the tribunal did not give their application proper consideration. The primary judge found that there was no substance to the ground of review, and noted that the tribunal was only required to consider the complementary protection criteria set out in s 36(2) of the Migration Act. The primary judge found that there had been no error in the manner in which the tribunal considered the question of its jurisdiction in light of the decision in SZGIZ to which I have referred.
The primary judge also found no error in the tribunal’s decision that the applicant child could not satisfy the secondary criteria in ss 36(2)(b) or 36(2)(c) in circumstances where the applicant wife, who had made the protection claims, did not satisfy the essential criteria under ss 36(2)(a) or 36(2)(aa). The primary judge concluded that the tribunal’s decision was not affected by jurisdictional error, and dismissed the application for judicial review.
The applicants in this court have filed an application for an extension of time to file a notice of appeal, as I have noted above. That is necessary because the time within which to lodge any appeal had expired six days before that application was made. The Minister accepts that the critical question in this case, in circumstances where the delay is a small one and where the applicants have chosen not to file a draft notice of appeal, is whether there is any merit to the appeal. And as I have noted above, when given the opportunity to say something in support of the application or of the anticipated appeal, the first applicant declined to do so.
On the basis that the appeal in this court, if properly formulated, would make the same case contended for below (namely, that “[t]he AAT did not give our application proper consideration”), I would not allow the application for extension of time because, for the reasons given by the primary judge, that ground of appeal has no prospects of success. The primary judge was correct to find that the tribunal was right only to consider the applicants’ claims against the complementary protection criterion in s 36(2)(aa) and against family member provisions in ss 36(2)(b) and (c) of the Migration Act. See Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 at 379, [42]-[44] and 399, [114].
The tribunal considered the applicants’ claims before it on an individual and cumulative basis, and made findings open to it. Further, it is clear that the tribunal otherwise complied with its procedural fairness obligations. For those reasons, there is no basis upon which to exercise the court’s discretion to extend the time for the filing of any draft notice of appeal. It follows that the application for an extension of time to appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 9 September 2019
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