CEC16 v Minister For Immigration and Anor (No.2)

[2017] FCCA 2603

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEC16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2603

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Administrative Appeals Tribunal – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 137J, 476, 477(1),

477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: CEC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2117 of 2016

Judgment of: Judge Manousaridis

Hearing date: 13 October 2017

Date of Last Submission: 13 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms S Given of

HWL Ebsworth

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) in relation to the decision made by the Administrative Appeals Tribunal on 29 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2016

CEC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 29 June 2016, but the applicant did not file his application with this Court until 5 August 2016, the application being 2 days out of time.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such an order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [1] [2013] FCA 1284 at [47]

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Explanation for delay

1. In his application, the applicant provides the following explanation for his delay in applying for judicial review:

   Grounds of application for extension of time:

   1. I need extension time because I receive at 4^th of July.

   2. I took time to understand the matter.

2. At the hearing, the applicant, who, although represented by a lawyer on an application for an adjournment, was not represented by a lawyer on the hearing of the application for an extension of time, submitted he did not have a lawyer, and that he believed that he had 38 days within which to make an application.

3. The applicant’s not receiving the Tribunal’s record of decision until 4 July 2016 or the applicant’s taking time to understand that decision do not constitute reasonable explanations for his delay. Nor does the applicant’s not having a lawyer constitute an adequate reason. I do not accept the applicant believed he had 38 days to make the application. That is not a reason the applicant stated in his application.

4. Given, however, that the applicant has filed his application only two days outside the 35-day period prescribed by s.477(1) of the Act, I would give little weight to the applicant’s having given an inadequate explanation for the delay if I were otherwise satisfied the grounds on which the applicant would rely if an order were made under s.477(2) of the Act have merit.

Merits of application

1. The applicant is a citizen of Bangladesh. On 15 July 2009 the applicant entered Australia as the holder of a Student visa. On 15 March 2012 the applicant’s student visa was deemed to be automatically cancelled under s.137J of the Act for non-compliance. On 11 May 2012 the applicant applied to the Migration Review Tribunal (MRT) for review of that decision, and on 7 June 2013, the MRT affirmed the decision not to revoke the automatic cancellation. On 4 July 2013 the applicant applied for judicial review but, on 11 October 2013, he withdrew that application. On 5 November 2013 the applicant applied for Ministerial intervention pursuant to s.351 of the Act but on 24 February 2014 the Minister declined to intervene.  

2. The applicant was issued with eight bridging visas since 21 March 2012. On 4 April 2014 the applicant applied for a Protection visa. A delegate of the Minister refused to grant the applicant a Protection visa on 3 December 2014.

Claims for protection

1. In his application for a protection visa,[6] the applicant claimed he left Bangladesh because of his political opinion in support of the Bangladesh National Party (BNP) and his opposition to the Awami League (AL) which is in power. The applicant claimed he has experienced threats by members and supporters of the AL because of the applicant’s political support of the BNP. The applicant tried to go to the police to report the threats but the police refused to assist the applicant because “the police are so closely linked with, and controlled by, the Awami League”.

   [6] CB1-25

2. The applicant claimed he fears being subjected to significant harm, torture, punishment, cruel or inhuman or degrading treatment, being arrested, and being killed because of his political opinions and support of the BNP. The applicant claimed the AL wish to crush support for the BNP by killing, punishing and torturing supporters of the BNP, like the applicant. The applicant claimed his fear is amplified because of the AL winning the 2014 elections and remaining in power. The applicant fears harm from members and supporters of the AL, the government, the police and “the RAB” (which I understand is a reference to the “Rapid Action Battalion”) and claimed the Bangladeshi authorities will not protect him because they are closely linked to the AL.

Tribunal’s reasons

1. The Tribunal found aspects of the applicant’s evidence “to be vague, evasive and unconvincing”; that the applicant “made new claims during the process”; “[t]here were a number of significant inconsistencies in [the applicant’s] evidence”; and that the applicant’s “conduct was not consistent with his claims”.[7] The Tribunal said it “has concerns in relation to his credibility and the veracity of his claims”.[8] The Tribunal’s concerns were as follows:

   a)      First, the Tribunal found the applicant’s knowledge of the BNP was poor.[9] Although the applicant claimed he left Bangladesh because of his support for the BNP and his opposition to the AL, the applicant was unable to answer what the four main principles of the BNP were, and incorrectly described the BNP flag as being yellow and green and displaying a map of Bangladesh when the BNP flag is red and green and does not have a map of Bangladesh on it.[10]

   b)      Second, the applicant said he was not involved in any elections in Bangladesh and has never voted for the BNP.[11] The applicant said that after he came to Australia he continued to support the BNP by having attended on three occasions a committee in Lakemba that organise social functions. The applicant also said that the committee sometimes meet for elections to talk about the election, to support the BNP from Australia, and to show the BNP’s activities in Australia by broadcasting it in the media, but when asked for details about what was broadcasted, where it was broadcasted and who broadcasted it, the Tribunal found the applicant’s “responses were incoherent, confused and confusing”.[12]

   c)      Third, the applicant gave inconsistent evidence about the violence he claimed he suffered in Bangladesh. Before the delegate, the applicant said he was sitting around talking to two friends on the street when a group of four or five AL supporters attacked the applicant and his friends with sticks and that the applicant and his friends hit them back with cricket bats. Before the Tribunal, however, the applicant claimed he was walking alone when a man called Jia attacked him after Jia and two or three other people confronted the applicant. He stated that six or seven months later the applicant confronted Jia and his younger brother when the applicant was accompanied by four or five friends and the applicant hit Jia with his bare hands.[13]

   d)      Fourth, the applicant delayed in applying for a Protection visa. The applicant entered Australia on 15 July 2009 on a Student visa, but he did not apply for a Protection visa until 4 April 2014, after his Student visa was cancelled because of the applicant’s non-compliance with its conditions.[14]

   e)      Fifth, the applicant was interviewed by officers of the Department of Immigration and Border Protection in relation to his immigration status on 12 November 2013, 3 December 2013, and 7 January 2014 but the applicant did not in any of those interviews claim he feared returning to Bangladesh. The applicant did not mention he was a member of the BNP or that he feared returning to Bangladesh for that reason.[15]

   [7] CB148, [17]

   [8] CB148, [17]

   [9] CB149, [24]

   [10] CB149, [22]-[23]

   [11] CB149, [21]

   [12] CB149, [21]

   [13] CB149, [25]; CB150, [27], [31], [32]

   [14] CB151, [33]

   [15] CB151, [35]

2. The Tribunal, therefore, did not accept any of the factual premises on which the applicant’s claims for protection were based. The Tribunal, therefore, was not satisfied the applicant met the criteria prescribed by s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of application

1. The grounds of application are as follows:

   The tribunal did not apply the law correctly.

   The tribunal was finding that my giving statement is not truth and I made false statement but genuinely I have [illegible, but will assume is “received”] threats.

   The tribunal failed to recognise that he has real problems to go back to Bangladesh.

2. The applicant did not make any submissions in relation to these grounds.

3. The grounds, as stated, disclose no arguable case of jurisdictional error.

   a)      The first paragraph is a general claim the Tribunal failed to apply the law correctly. It does not identify the law the Tribunal purported to apply or fail to apply and the reason for which the Tribunal’s application of such law or failure to apply such law was incorrect.

   b)      The second paragraph is a claim that relates to the merits of the applicant’s claims for protection. This Court does not have jurisdiction to consider the merits of an applicant’s claims for protection.

   c) The third paragraph is to be read as claiming the Tribunal did not consider the applicant’s claim that he feared returning to Bangladesh because of the problems he claimed he faced there. That is not arguable. The Tribunal considered the applicant’s evidence of what he said he did and what had occurred to him in Bangladesh and why he feared returning to Bangladesh for those reasons. The Tribunal, for reasons that were open to it, did not accept the applicant’s evidence and, for that reason, concluded it was not satisfied the applicant had any well-founded fear of persecution or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act.

Conclusion and disposition

1. Given the grounds stated in the application raise no arguable case of jurisdictional error, I am not satisfied it is necessary in the interests of justice that I should make an order under s.477(2) of the Act that the time prescribed by s.477(1) of the Act be extended. I propose, therefore to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 October 2017