Cdu16 v Minister for Immigration
[2017] FCCA 2496
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDU16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2496 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – Applicant needs an extension of time of 160 days under s.477(2) of the Migration Act 1958 (Cth) – Applicant did not attend interview with the Delegate of the Minister for Immigration and Border Protection nor attend the scheduled hearing before the Administrative Appeals Tribunal – no reasonable explanation for late commencement of proceeding in this Court and no reasonably arguable grounds for a finding of jurisdictional error or procedural unfairness by the Administrative Appeals Tribunal – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476, 477 |
| Cases cited: AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 |
| Applicant: | CDU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2088 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Ms S He |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 4 August 2016 seeking an extension order pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2088 of 2016
| CDU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Malaysia aged 47 years, having been born on 17 March 1970.
By Application filed in this Court on 4 August 2016 he seeks:
a)an extension of time of 160 days under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) of the Act for him to make his substantive application to this Court under s.476(1); and
b)to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 26 February 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 14 August 2015 refusing to grant him a Protection (Class XA) visa (Protection visa).
Background and Claims for Protection
The Applicant applied for a Protection visa on 17 February 2015. He had travelled to Australia on 23 December 2011 holding an Electronic Travel Authority (ETA) Visitor (UD-976) visa which remained in effect until 23 March 2012.
The Applicant’s written claims for protection were that he had left Malaysia because he had “sinned against the Malays” and they had threatened and terrorised him and his life was at risk. Apparently on one occasion he saw “the Malay steal” and he then called “the voluntary team” which presumably was some form of authority in Malaysia. The police then became involved and told the thieves that the Applicant had reported them. After this the thieves came to his house and terrorised him every day, threatening to break his legs and actually breaking his car mirror.
The Applicant claimed that he did not seek help after this incident because the police took no notice of him and the Government always creates “hatred among religion and race [and there is] bad law and order. The ethnic Malays call ethnic Chinese in Malaysia get out to Malaysia this not your country”. The Applicant claimed that he could not seek to relocate to another part of Malaysia to seek safety “because ethnic Malay in Malaysia is a biggest group in anywhere and any place. However you move to any part they also can find you”. The Applicant said that he felt his life was at risk and he felt scared and pressured and psychologically abnormal.
Grounds for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
By letter dated 22 June 2015 the Department of the Minister invited the Applicant to an interview on 17 July 2015 and to bring to it any evidence he wished to submit in support of his Protection visa application. This letter further stated that if the Applicant did not attend the interview his Protection visa application might be decided on the information already provided to the Department.
The Applicant did not appear at the scheduled interview on 17 July 2015 or submit any further evidence and he did not contact the Department before or after the Delegate’s decision and has never proffered a reason as to why he did not attend at the interview.
The Delegate, by her Decision Record of 14 August 2015, refused the grant of a Protection visa to the Applicant. She recorded that because there had been no opportunity to verify the Applicant’s claims and obtain substantiating detail from him she was unable to be satisfied that the Applicant was owed protection obligations by Australia under s.36 of the Act.
Decision of the Tribunal
The Applicant applied to the Tribunal on 8 September 2015 for merits review of the Delegate’s decision.
The Applicant did not appear at the hearing before the Tribunal on 17 February 2016 to which he had been invited by the Tribunal’s letter of 1 February 2016. That letter also informed the Applicant that the Tribunal was unable to make a favourable decision on the material provided to date by the Applicant and that if he did not appear at the scheduled hearing the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it, or alternatively might dismiss his application for review without any further consideration of the application or the information before the Tribunal.
Further, the Tribunal sent two SMS texts reminders of the interview which it had scheduled for 17 February 2016 to the mobile telephone number given by the Applicant on his application for review; the first text reminder was sent on 10 February 2016 and the second on 16 February 2016. The Applicant never contacted the Tribunal about his failure to attend the scheduled interview.
The Tribunal in its decision record set out the substance of the applicant’s claims for protection at [9] – [13]. At [20] the Tribunal recorded its consideration of country information regarding Chinese Malaysians in Malaysia.
In [21] of its Decision Record the Tribunal stated as follows:
[21]Had the applicant attended the hearing the Tribunal could have asked:
a. About the delay in applying for protection. The applicant came to Australia on 23 December 2013 but did not lodge an application until February 2015. This raises concerns with the Tribunal as to the genuineness of the applicant’s claims.
b. For further information about who had threatened and terrorised him. It was not clear from his application what he meant by the voluntary team. Although he states that someone broke his car mirror and also threatened to break his legs, the reasons why he believes this incident was related to his Chinese ethnicity have not been explained.
c. About the claims that he did not seek help after this incident because the police took no notice of him. The government always creates “hatred among religion and race [and there is] bad law and order. The ethnic Malays call ethnic Chinese in Malaysia get out to Malaysia this not your country”.
d. Why he believes that if he were to return to Malaysia his life will be a risk.
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations under either the Refugees Convention criterion pursuant to s.36(2)(a) of the Act or the complementary protection criterion pursuant to s.36(2)(aa) and it affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.
Ground of Application for Extension of Time Under s.477(2) of the Act
The Ground for the application for the extension of time is as follows:
1.My former lawyer did not inform anything regarding the matter of AAT, therefore I did not attend the hearing as scheduled; Neither did my former lawyer inform me of the AAT decision, I consequently missed the time frame for appeal to Federal Circuit Court.
Grounds of Attack on Tribunal Decision in this Court
The substantive Grounds of the Application filed in this Court are as follows:
1. The tribunal made jurisdictional error when making its decision to dismiss my application.
2. The Tribunal ignored the torture what I would suffer from ethic Malays when I returned to Malaysia.
3. The Tribunal observed that the claim to harm does not establish either the genuineness of the asserted harm or that it is “well-founded”. However, the Tribunal made jurisdictional error of ignoring the facts of materials that I have presented to tribunal, especially the information and documentation of the persecution that I have been through back When I was in my home country.
Consideration of Extension Application
In considering whether it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:
a)Whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b)Whether there is any prejudice to the Minister;
c)Whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]).
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 [62] per Mortimer J.
I do not consider that the Applicant has given a reasonable and adequate explanation for his delay in filing his Application in this Court. The simple fact of the matter is that there is no evidence that the Applicant ever had the benefit of a lawyer’s involvement at any stage of his Protection visa application, either at the time of the lodging of the application with the Department, during the period leading up the decision of the Delegate or the period leading up to the decision of the Tribunal. The Applicant has not filed or read any affidavit which supports his assertion that he had the services of a lawyer at any time. There is also no evidence that he ever appointed a migration agent to assist him during the progress of his Protection visa application.
In short, his lengthy delay of 160 days in failing to file his Application in this Court is unexplained. That delay is consistent with his failure to assert his rights under the Act in not turning up for the interview with the Delegate and not turning up for the hearing before the Tribunal, despite having the benefit of two SMS text reminders from the Tribunal. I reject the Applicant’s assertion that a former lawyer did not inform him of the Tribunal’s decision and it was for that reason that he missed the time limit prescribed by s.477(1) of the Act.
The evidence is that the Decision Record of the Tribunal was forwarded on 26 February 2016 to the Applicant at the email address for service provided by him to the Tribunal in his application for merits review. There is no evidence that the Decision Record was sent to any lawyer or made known to any lawyer purportedly acting on behalf of the Applicant.
The appointed Tribunal hearing date of 17 February 2016 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [his] life”. The Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:
[56]What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
I now turn to consider the most important factor in considering whether or not to extend time, this being whether or not the Applicant has reasonable prospects of success for his substantive Grounds.
Consideration of Substantive Grounds of Attack on Tribunal Decision in this Court
In my view the Applicant has no reasonably arguable or reasonable prospects of success for any of his substantive Grounds.
Ground 1
This Ground is entirely unparticularised and one cannot be sure what the Applicant means. He was unable to make any meaningful submissions at the hearing in this Court in support of any of his Grounds. If this Ground means to attack the Tribunal’s decision to proceed to hear his application for merits review without him being present, in my view, it fails. The decision of the Tribunal to proceed to hear and determine the Applicant’s application for review did not lack an “evident and intelligible justification”. This case bears no similarity to cases where, from the objective facts constituting the course of conduct between the Tribunal and an applicant, the Tribunal ought to have considered the applicant’s non-appearance as out of character and a departure from his or her previous pattern of conduct: see, for example, Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 per Mortimer J; AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144 per North ACJ and MZALO v Minister for Immigration and Border Protection (2016) 70 AAR 495 per Mortimer J.
On the contrary, here the Applicant’s conduct in not appearing before the Tribunal was consistent with his earlier failure to take part in an interview with the Delegate and he had not completed and returned the Response to Hearing Invitation form (which had been attached to the Tribunal’s letter of invitation to hearing dated 1 February 2016), which if he had, might have evinced to the Tribunal that he had a real, close and vital interest in the review process being conducted by the Tribunal. In my view he has not proffered any adequate explanation for his non-appearance.
There are no reasonable prospects of success for Ground 1.
Ground 2
This Ground invites merits review which is not available in this Court. In fact it was never part of the Applicant’s protection claims that he would actually suffer “torture” upon return to Malaysia. Further, when the Applicant failed to appear before the Tribunal, a likely rejection for his application for review was “the inevitable consequence”: see NAVX v Minister for Immigration [2004] FCAFC 287 at [5].
Ground 2 has no prospects of success.
Ground 3
Ground 3 also appears to seek to invoke merits review. The Applicant never submitted any “information and documentation” at all other than for setting out his claims for protection in his Protection visa Application form. In my view there is no evidence that the Tribunal ignored any relevant material or claim to protection.
This Ground also has no prospects of success.
Conclusion
I do not consider that the substantive Grounds relied upon by the Applicant are reasonably arguable or have reasonable prospects of success and in all the circumstances I consider that it is not in the interests of the administration of justice for an extension order under s.477(2) of the Act to be made and accordingly the application for extension of time made by the Applicant pursuant to s.477(2) is refused.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 20 October 2017
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