CGA16 v Minister For Immigration and Anor (No.2)
[2018] FCCA 2420
•4 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGA16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 2420 |
| Catchwords: MIGRATION – Extension of time – explanation for delay – merits of substantive grounds – whether reasonably arguable – impressionistic reading – whether sufficiently arguable – no reasonable prospects. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 186; (1984) 3 FCR 344 SZTES v Minister for Immigration [2015] FCA 719 SZTKA v Minister for Immigration & Anor [2014] FCCA 1791 |
| APPLICANT: | CGA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2191 of 2016 |
| Judgment of: | Judge Baird |
| Hearing dates: | 11 April 2018 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2018 |
REPRESENTATION
| The Applicant was represent by her litigation guardian |
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison Lawyers |
ORDERS
The Application for extension of time filed 15 August 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2191 of 2016
| CGA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application pursuant to s.477(2) of the Migration Act 1958 (Cth), seeking an extension of time to make an application under s.476 of the Act for the judicial review of a decision of the Administrative Appeals Tribunal dated 17 June 2016. The Tribunal affirmed a decision of the Delegate of the first respondent dated 10 December 2014, refusing to grant the Applicant a protection (Class XA) Visa.
The First Respondent, the Minister for Immigration and Border Protection, opposes the application for an extension of time. He submits, inter alia, that the grounds for judicial review, whether in the application, or a purported amended application, have no substance, and that there is no reasonable case on any basis.
The application for an extension of time was filed on 15 August 2016, 24 days after the expiration of the 35-day statutory timeframe for seeking judicial review in s.477(1) of the Act.
The Applicant appeared unrepresented at the hearing before this Court on 11 April 2018. Present in Court on that occasion was the Applicant’s daughter. On that occasion, after it became apparent that the Applicant was distressed and confused, did not appear to understand what I put to her, and could not adequately respond to my questions, I appointed the Applicant’s daughter as litigation guardian of the Applicant, and made orders accordingly. The application was adjourned part-heard to 16 May 2018.
The Applicant says, in substance, that she did not receive notice of the Tribunal’s decision, and that it was only when she received a notice with a request to pay money that she realised it should follow a decision which she says she had not received. The Applicant (through her daughter) then contacted the Tribunal and requested the Tribunal send her a copy of the decision, and proof that they had emailed the decision, which the Tribunal then did on 10 August 2016. I note that the application for extension of time was made within five days of the date that the Applicant says she received a copy of the Tribunal’s decision.
Factual Background
The Applicant is a frail, elderly woman. She was born in 1928 in Briandino, in the Russian Federation. She is a citizen of Russia. She was widowed in 1990 and has one daughter, who resides in Australia. She arrived in Australia on 23 April 2013 as the holder of a visitor visa. This was the first time she had travelled outside Russia.
On 16 April 2014, she applied for a protection Visa and it is the Tribunal’s affirmation of the Delegate’s decision not to grant that Visa that is in issue should the application for extension be granted.
In her application for the Visa, the Applicant made the following protection claims which I summarise as follows (by reference to the Minister’s Solicitor’s submissions):
(a)that she feared that thugs will kill her for her apartment if she returns to Russia, and that the authorities will not protect her;
(b)that in 2011, she began to be harassed by some people who asked her to consider making a will making them beneficiaries in exchange for looking after her. She refused to do so, but they persisted;
(c)that her elderly neighbour was offered the same, declined many times and then died in very suspicious circumstances, which caused her to get scared. She heard that several other people died after having declined similar offers. She asked police to look into it, and they declined to do so, and advised her that she should lodge a complaint when something happen to her;
(d)that she was visited from two people who said they were from social services who, again, offered to look after her in exchange for making a will, and for registering one of them on the title deeds to her apartment. When she declined they threatened her, pushed her and she fell. She rang the police, but they refused to help; and
(e)because she is a single, defenceless, elderly woman, the government has no use for her anymore, and they do not care about people like her. The authorities refused to defend and protect her.
The Delegate refused to grant the Applicant the Visa. The Applicant applied to the Tribunal on 21 January 2015 for review of the Delegate’s decision. The Applicant subsequently appeared at a hearing before the Tribunal on 20 May 2016 to give evidence, and present arguments, together with her daughter (the present litigation guardian). The Applicant and her daughter had the assistance of an interpreter in the Russian language. As I have stated at [1] above, the Tribunal delivered its decision on 17 June 2016.
Grounds for extension of time
The Applicant relies on the following grounds for an extension of time set out in her application (without alteration):
(1)I was extremely ill in May-July 2016 (please, refer to my doctor's certificates) and was too frail and ill to check my emails.
(2)Even if I checked my emails I did not receive a decision made by AAT, that is why when I received a notice with a request to pay money I realised that it should follow a decision, which I never had. I requested AAT to send me a copy of the decision and a PROOF that they actually emailed me a decision, which AAT kindly emailed to me.
(3) I assume that due to my illness I might have overlooked a spam folder in my inbox and computer might have deleted AAT's decision after a few days. Main thing is that I have paid AAT’s fees and would like to appeal against its decision because I strongly believe that I should have been recognized as a refugee and Woman at Risk.
Grounds of review
The Applicant then set out in her application the following 3 substantive grounds of review (as set out in the application, without alteration):
The Tribunal failed to make finding on statute definition of "reason for persecution"
(1)The Tribunal failed to make finding on statute definition of "reason for persecution"
(2)The AAT failed to recognize absence of state protection as a mistreatment
(3)The AAT failed to assess my case/make findings against Section 499 Ministerial Direction for Complementary Protection criteria.
Amended application and ground of review
The Applicant subsequently filed a document purporting to be an “AMENDED APPLICATION” dated 14 December 2016, received by the Court and accepted for filing on 23 December 2016. The purported amended application was erroneously asserted to be made under s.39B of the Judiciary Act 1903 (Cth). That document sets out the details of the claim in 2 paragraphs. At the hearing before me on 11 April 2018, the litigation guardian stated that the Applicant wished to proceed on the ground set out in paragraph 2 of the document.
On 16 May 2018, at the resumed hearing, I confirmed with her litigation guardian that the Applicant wished to replace the grounds specified in the originating application with ground 2 in the later document.
I am satisfied that the Applicant sought to pursue her application in the usual way, and sought review by invoking jurisdiction in the way set out in her originating application to this Court. Accordingly, following the approach taken by his Honour Judge Nicholls of this Court in SZTKA v Minister for Immigration & Anor [2014] FCCA 1791 [29]-[31], I granted leave to the Applicant to replace the previous grounds set out in her originating application, with paragraph 2 in the document titled “AMENDED APPLICATION.”
The sole ground on which the Applicant seeks judicial review is thus (without alteration):
(2)The Applicant seek relief on the grounds that the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent's decision to refuse to grant the Applicant a protection visa.
Particulars
(a) In relation to the Applicant's claims regarding the events that took place in Russia:
(i)The Tribunal failed to make any findings on Applicant's claim to have been persecuted by denying her a state protection when the applicant was a member of a particular social group, namely single old age person living alone and being targeted for her property.
(ii) The Tribunal failed to make any findings on Applicant's claim she will be left defenseless and might lose her life as were those of her neighbors and other people known to her.
Provisions and principles regarding extensions of time
Section 477(2) of the Act is in the following terms:
477 Time limits on applications to the Federal Circuit Court
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The factors that this Court will take into account when considering whether an extension of time should be granted were stated by Wilcox J in the seminal case of Hunter Valley Developments Pty Limited v Cohen [1984] FCA 186; (1984) 3 FCR 344. His Honour there identified the considerations the Court is to consider when determining whether to exercise its discretion to extend time:
(a)the extent of the delay;
(b)the explanation for the delay;
(c)any prejudice the respondent might suffer because of the delay; and
(d)the merits of the proposed application.
These principles are not to be taken as exhaustive. The relevant principles were considered by Mortimer J in MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585; [2015] FCA 1391. In particular, at [62] of MZABP, Mortimer J adverts to the interests of the administration of justice, and cautions that it is not for the Court when exercising its discretion on an extension of time application pursuant to s.477(2) of the Act, to travel beyond an examination of the grounds of the substantive application at a “reasonably impressionistic level” into a fuller consideration of the arguments for and against each ground of review. Her Honour’s consideration at [58]-[63] was approved by the Full Court of the Federal Court in MZABP v Minister for Immigration [2016] FCAFC 110; (2016) 152 ALD 478 at [38]; see also SZSZW v Minister for Immigration [2018] FCAFC 82, especially at [21], and see also the observations of Wigney J in SZTES v Minister for Immigration [2015] FCA 719.
The Applicant’s circumstances and the parties’ submissions
The Minister’s solicitor did not assert any prejudice should the application for extension of time be granted. The Minister submitted that the delay of 24 days, whilst not substantial, was neither short nor insubstantial.
Applicant’s ill health
The Applicant’s affidavit made 12 August 2016, filed with the originating application, annexed a medical certificate dated 12 August 2016, in which the doctor certified that the Applicant was sick with ischemic heart disease, and fracture of the right knee from 25 June 2016, and that it is ongoing.
I note, additionally, that before the Tribunal the Applicant relied on two medical reports, the then most recent report being from the same doctor as the certificate annexed to her affidavit. That medical report stated that as at 14 April 2016, the Applicant’s medical conditions were ischemic heart disease, atrial fibrillation and stenotic aortic valve, and that these diagnoses raised a serious risk for her health if she is to travel, especially on long flights.
The Applicant did not attend the hearing on 16 May 2018, her litigation guardian appearing in her place. The litigation guardian informed the Court, and I have no reason to doubt, that the Applicant’s heart condition has led to her having extremely swollen feet so that she cannot fit into her shoes, cannot presently walk, and that she is on diuretics. The litigation guardian also informed the Court (from the Bar table), that the Applicant has symptoms of mild dementia. I have treated this information as a submission.
The Minister does not dispute that the Applicant is experiencing serious health conditions and has a heart condition, but notes that the Applicant was able to attend the Tribunal hearing on 20 May 2016.
Explanation for delay
As to the explanation for the delay, the Minister observed that the Applicant had no problems with the receipt of the Tribunal’s subsequent email to the same address on 10 August 2016. The Minister submitted that the Tribunal’s earlier email dated 5 April 2016 also sent to the same email address, inviting the Applicant to attend a hearing, should be inferred as having been received from the fact that the Tribunal shortly thereafter received documents from the Applicant, and because the Applicant and her daughter attended at the hearing further to the 5 April 2016 emailed invitation.
The Minister also submitted that the Applicant’s explanation that she may have overlooked her email spam box is, itself, an acceptance that she had received the Tribunal’s decision when it was sent by email on 20 June 2016.
The Applicant’s litigation guardian responded as follows:
(a)there is no benefit for the Applicant and her daughter to say that there is any delay, by which I understand her to mean that there was no reason for them to say they had not received the email of the decision, if they had received it;
(b)she confirmed that the Applicant and her daughter had received all other emails to the email address;
(c)the Applicant’s daughter did check for the email, but she didn’t find it in the spam box;
(d)the Applicant got sick at the end of May 2016.
The Applicant’s affidavit attached a copy of the Tribunal’s email of 10 August 2016, which in turn enclosed a copy of the Tribunal’s copy of its earlier email communication of 20 June 2016 and the attachments to that email, including the decision dated 20 June 2016. I do not consider that this necessarily demonstrates that the Applicant received a copy of the Tribunal’s decision when it was purportedly originally dispatched, but rather, that it shows the Applicant received the decision on 10 August 2016 when the Tribunal resent it.
The litigation guardian submitted that the Applicant had never received the letter from the Tribunal enclosing the decision in June 2016. She said that when the Applicant received the Tribunal’s subsequent fee letter, the Applicant and her daughter started to get worried, and contacted the Department of Immigration and Border Protection. The litigation guardian informed the Court from the Bar table that in further discussions with the Tribunal, somebody who worked there said they had encountered problems with emails. I note the inadmissible nature of this claim, and treat it merely as a submission.
Consideration of the delay and reasons for it
The Applicant’s email address is a Russian email address “@mail.ru”. I note that communications from the Tribunal to the Applicant have been sent to this email address and received by the Applicant both before and after the date of the Tribunal’s decision. These emails include the email on 5 April 2016 enclosing the Tribunal’s invitation to the Applicant to appear at hearing, provide evidence and make submissions, and the email sent on 10 August 2016 enclosing a copy of the decision. I am not satisfied, on the admissible evidence before me, that the Tribunal did not send its decision to the Applicant’s email address at …@mail.ru on 20 June 2016.
I accept, however, that the Tribunal’s communication of its decision did not come to the attention of the Applicant or her daughter at that time, whether through inattention due to the Applicant’s ill health, or otherwise. I accept that the Applicant, through her daughter, upon receipt of a notice from the Tribunal with a request to pay money upon her application being unsuccessful, promptly contacted the Tribunal and requested, and (through her daughter) was thereafter provided with, a copy of the Tribunal’s decision.
Conclusion about delay
I do not consider that the delay is excessive or substantial. I accept the explanation of the delay, namely that the Applicant was extremely ill in the period May to July 2016, and I accept that she did not check her emails to see and act upon notification of the decision from the Tribunal, and later, when she did check her emails she did not find an email from the Tribunal.
Whether there are “reasonable prospects”
Thus, in the circumstances of this matter, the decision whether or not to extend time in the exercise of my discretion, comes down to the merits of the proposed substantive application, taking into account the factors identified in s.477(2) and being guided by the authorities. I am cognisant of Mortimer J’s observations in MZABP that:
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s.477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s.477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
I am also guided by her Honour’s review of Wigney J’s caution in SZTES to carefully distinguish between grounds that are hopeless and destined to fail, and those which are properly described as weak, and that it is, in the latter case, seldom appropriate to refuse to extend time.
The Applicant says in her ground of review on the substantive application that the Tribunal failed to make any findings in relation to the two matters that I have set out at [15].
The Tribunal’s decision
It is relevant to have regard to what the Tribunal did. At [24] of its decision, the Tribunal set out the claims made by the Applicant in her application for a protection visa, which claims I have summarised above. At [29]-[32], the Tribunal summarised the evidence given by the Applicant and her daughter to the Tribunal, which the Tribunal noted was consistent as to her circumstances and her family situation, including that the Applicant has only one child, and, whilst her grandson had lived near her, he died very suddenly in 2011, and since then she had been on her own; that she lived on her own in a studio apartment, which she owns; that she had two aged sisters, then living in the same town; but that the Applicant’s daughter stated she does not believe that any of her mother’s extended family members are able to provide her with the care and protection she requires.
At [33] and [34], the Tribunal received the Applicant’s evidence that two persons, purporting to come from the Russian Department of Social Security, had visited her and threatened her, although they did not physically harm her, and that she went to the police station, but they did not assist her. At [39], the Tribunal recorded the Applicant’s daughter’s evidence that there is a problem with vulnerable, elderly people [in Russia] “just disappearing” as follows:
[38] The applicant said that she wanted to stay in Australia with her daughter as she could no longer manage on her own. Her health and mobility have deteriorated and she is becoming forgetful. She can no longer do her shopping or get to medical appointments and she would be alone and vulnerable if she were to return to Russia. She did not fear anything in particular although she found the experience described above as very unpleasant and was concerned that the same sort of thing may happen again.
[39] The applicant's daughter said that there is a problem with vulnerable elderly people "just disappearing". A lot of elderly people in Russia end up in the street without any documents or possessions. The Tribunal put to her that her mother should be able to seek protection from' the authorities. The applicant's daughter said that when her mother tried to seek protection from the police they didn't take a statement from her or file an incident report because she could not identify the people who threatened her. She thought it would not be possible for her mother to receive protection from the authorities.
The Tribunal accepted the Applicant’s evidence, in sum (at [44]-[47]):
(a)that the Applicant feels there is no-one left in Russia to care for her, or protect her, and that she feels particularly vulnerable, given her age and frailty;
(b)that members of her extended family are unable to provide the care she feels she needs, due to their own commitments, which is why she wishes to live with her own daughter;
(c)that the Applicant was approached on one occasion, some time in 2011, about six months after her grandson’s death, by two people who threatened her emotionally by stating that “it would be the worse for her” if she did not register them on the title deeds to her apartment, as she was a vulnerable, elderly woman living on her own;
(d)that she tried to report the incident to the police, but was ignored because she could not identify the people who approached her;
(e)that her neighbour keeps an eye on her and saw three people (through her own peephole) call at the Applicant’s apartment in her absence, however, aside from the neighbour’s sighting, there have been no other incidents or visitors.
Having listened to the Applicant’s evidence and accepting the Applicant’s evidence as I have summarised above, the Tribunal then made dispositive findings at [48]-[55]:
(a)that extortion and threats of this nature are crimes in Russia and, at least, in theory, the Applicant should be able to seek protection from the authorities and the Tribunal understands her distress and frustration with the police attitude that her problem was too trivial for them to deal with. The Tribunal stated, however, there was no supporting evidence, and the Tribunal had no independent country information before it, which indicates that the Applicant is unable to avail herself of the protection of the Russian authorities, particularly if she had the assistance of her neighbour and/or one of her relatives in the same city;
(b)whilst there are enforced disappearances for political and financial reasons noted by the US Department of State Human Rights Report on Russia 2015, in the north Caucasus, there was no independent country information that indicates that disappearance of elderly people living alone is a particular problem in Russia, or that any of the enforced or involuntary disappearances relate to elderly people or residents of the area in which the Applicant lives, namely, in the far east of Russia;
(c)as the Applicant’s only asset is her studio apartment in the far east of Russia, there is only a very remote risk that she would be subjected to enforced disappearance for financial reasons.
The Tribunal concluded as follows:
[55] The Tribunal understands why the applicant, an elderly frail and vulnerable woman, would prefer to stay with her daughter than return to Russia where she will not have the same level of support and care. However, taking the above evidence into consideration both individually and cumulatively the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face significant or serious harm (having regard to the definitions above) now or in the foreseeable future if she returns to Russia.
Consideration
I confirmed with her litigation guardian that the north Caucasus is not geographically where the Applicant comes from, or where her studio apartment is.
It is apparent from reading the decision that the Tribunal was plainly aware of the claims made by the Applicant, and considered them at the hearing before it, and that it clearly disposed of them in its reasons at [44]‑[55]. It cannot be said that the Tribunal failed to make any findings as to either, or both, of the matters particularised in the Applicant’s substantive application (see above at [15]).
I accept that the Applicant’s daughter is deeply concerned for the wellbeing and security of her mother and that the Applicant, similarly, is deeply concerned. I note that the litigation guardian has raised factual matters before me that the Applicant’s two sisters are now dead, and that the Applicant’s former neighbour is an alcoholic. However, as I indicated to the Applicant’s daughter during the hearing, it is not the role of this Court to undertake a merits review of the Tribunal’s decision.
Whether the approach I am to apply when considering the merits of the Applicant’s substantive application on an application for an extension of time is to form a view on an impressionistic reading and consideration whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable”, or has “reasonable prospects of success”, or whether it is hopeless and destined to fail, I have concluded that the Applicant’s ground of review is not arguable, and must fail. I conclude that it is not in the interests of the administration of justice to grant an extension of time in this case.
Conclusion
It follows that the application for an extension of time must be refused. The Applicant should pay the first respondent’s costs of the application and I will so order.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 4 September 2018
0
6
2