CLB15 v Minister for Immigration
[2018] FCCA 1323
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLB15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1323 |
| Catchwords: MIGRATION – Protection visa refused – applicant claimed he was defrauded of borrowed money and was facing serious harm by moneylenders in Sri Lanka – applicant conceded evidence did not support a refugee protection claim but claimed it did support a complementary protection claim – significant unexplained period of time prior to issuing this proceeding – application for ministerial intervention not a satisfactory explanation for delay – grounds not supported by particulars – little prospects of success – application for an extension of time – application refused. |
| Legislation: Migration Act 1958, ss.36(2a), 36(2)(aa), 477(2) |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | CLB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2573 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 April 2018 |
| Date of Last Submission: | 19 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
This application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2573 of 2015
| CLB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
On 24 March 2015 the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“tribunal”) decided to affirm the decision of the minister’s delegate not to grant the applicant the protection visa he sought.
On 19 November 2015, that is to say well beyond the date limited for the filing of an application for judicial review under the
Migration Act 1958, the applicant sought relief in this court for orders for the issue of constitutional writs. He needed an order extending the time for the commencement of this proceeding.
The question in this case was whether such an extension of time should be granted having regard to the need for the applicant to demonstrate –
a)an acceptable reason for the delay in commencing this proceeding;
b)that it is in the interests of justice for time to be extended; and
c)that on the merits the applicant has an arguable case.
Synopsis
For the reasons that follow, in my judgment an order extending the time to commence this proceeding should be refused. The applicant should pay the minister’s costs of this proceeding.
Short factual narrative
The applicant, a citizen of Sri Lanka, arrived in Australia on
28 July 2012 as an illegal arrival. He applied for a protection visa on
7 March 2013. He claimed to fear harm from a man from whom he said he borrowed money. The minister’s delegate fixed a date for an interview namely 17 December 2013, which the applicant attended.
On 7 February 2014 the minister’s delegate refused to grant the applicant the protection visa that he sought.
On 27 February 2014 the applicant applied to the tribunal for a merits review. The tribunal invited the applicant to a hearing on
7 January 2015. Prior to that hearing, the applicant’s representative provided submissions to the tribunal. In those submissions the applicant contended that he was a victim of a scheme in which he was defrauded of money that he borrowed, as a result of which he was facing serious harm in the form of beatings and that he would be subjected to cruel and degrading treatment by the moneylenders or their agents. The submission also contained a concession that the applicant’s evidence did not support a claim to protection on the basis that the applicant was a refugee but it did support a complementary protection claim.
On 7 January 2015 the applicant and his representative appeared at the hearing along with a Sinhalese interpreter. The tribunal granted the applicant until 28 January 2015 to provide further written submissions. On 5 February 2015 (and not on or before 28 January 2015) the applicant’s representative emailed to the tribunal the applicant’s post-hearing submissions. In those submissions –
a)the applicant’s representative again stated that the applicant’s evidence did not support a claim to protection based on refugee convention grounds but that it did support a claim to protection on complementary protection grounds;
b)the representative asserted that the applicant had been beaten by the agents of the money lenders and that the applicant had scars from those beatings;
c)the applicant would suffer further beatings if returned to Sri Lanka and the applicant was unable to pay the borrowed money;
d)the applicant has mental health issues that affected his memory; and
e)the representative asserted that the applicant had provided consistent and plausible evidence concerning the source and nature of his fear of suffering significant harm.
On 17 February 2015 the tribunal was provided with further submissions concerning a promissory note.
On 25 March 2015 the tribunal provided its written reasons for affirming the delegate’s decision not to grant the applicant the protection visa he sought. In the passages that follow I have examined the reasoning of the tribunal with a view to assessing whether the applicant’s assertions about the existence of jurisdictional error have substance or merit.
The extension of time application
There was no doubt that this application for judicial review was commenced beyond the 35 day period limited by s.477(2) of the Migration Act. Here, the tribunal provided its reasons on
25 March 2015. The applicant had 35 days from that date within which to commence this proceeding. Rather than doing that he commenced this proceeding on 19 November 2015, something in the order of eight months after the date he should have commenced this case. He therefore needed an order extending the time to commence this case as required by s.477(2) of the Migration Act. Under that section –
a)the applicant must apply in writing specifying what is in the interests of the administration of justice to make an order extending time; and
b)the court may make the order extending time if it is satisfied that it is necessary in the interests of the administration of justice for an order extending time to be made.
On behalf of the minister it was contended that the applicant had not provided an explanation of why the applicant said he needed an order extending time. The applicant asserted, and it seemed the minister accepted, that on 21 April 2015 the applicant sought ministerial intervention. On 8 September 2015 the assistant director of ministerial intervention wrote to the applicant declining the request for ministerial intervention. In this case the minister acknowledged that the expiration of time for a response on the request of ministerial intervention was an adequate explanation of part of the delay in applying to this court. But the minister said that the delay between the response to the ministerial intervention application (8 September 2015) and the date on which this proceeding was commenced (19 November 2015) went unexplained. Citing the Full Court decision in Vu v Minister for Immigration and Citizenship[1] the minister said that an application for ministerial intervention of itself was not a satisfactory explanation for any delay in filing an application for judicial review in this court.
[1] [2008] FCAFC 59
There was real merit in that contention it seemed to me. For a significant portion of the time between the response in relation to ministerial intervention and the filing of this case, the reason for the delay was unexplained. It should have been explained.
So far as prejudice was concerned, the minister did not identify any prejudice to the minister in the making of an order for the extension of time.
The real arena of debate in this case lay in the consideration of whether it was reasonably arguable that the tribunal had fallen into jurisdictional error. An applicant’s prospects of success in the application for judicial review are but one factor that is weighed in a consideration of whether it is in the interests of justice to make an order for the extension of time under s.477(2) of the Migration Act, as was held in Ahmed v The Minister for Immigration and Border Protection.[2] Various formulations have been offered about the relevant threshold that an applicant must satisfy. They include the formulation given by Wigney J in SZTES v Minister for Immigration and Border Protection.[3] There, it was held that it is not necessary for an applicant to establish that they will succeed on the application for judicial review. That seemed to echo the observations of French J in ActewAGL Distribution, Partnership between Actew Distribution Ltd and Jemena Networks (ACT) Pty Ltd v Australian Energy Regulator [4] where the former chief justice of the High Court of Australia held that a strong case may be a positive factor in the grant of an extension of time but conversely an apparently weak case cannot be treated as a factor weighing against the grant of an extension.
[2] [2011] HCA Trans 35
[3] [2015] FCA 719
[4] (2011) 195 FCR 142
It therefore became necessary for me to examine the tribunal’s path of reasoning leading to its conclusion that affirmed the delegate’s decision not to grant the applicant the protection visa he sought. Before the tribunal addressed the applicant’s claims under s.36(2)(a) and s.36(2)(aa) of the Migration Act, the tribunal addressed certain general observations about credibility. It stated that –
a)the tribunal is not required to accept uncritically all or any of the allegations made by an applicant, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,[5] Selvadurai v Minister for Immigration and Ethnic Affairs,[6] and Kopalapillai v Minister for Immigration and Multicultural Affairs;[7]
b)the tribunal concluded that the applicant was an unreliable witness who gave evidence that was inconsistent and implausible;
c)the tribunal found that the relevant nexus to enliven a convention protection ground was absent;
d)the applicant did not face a real chance of serious harm by reason of returning to Sri Lanka as a failed asylum seeker;
e)the contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka) would not create a real chance of serious harm for the applicant;
f)the tribunal concluded, on a cumulative assessment that it was not satisfied Australia owed the applicant protection obligations under s.36(2)(a) of the Migration Act; and
g)applying the facts and findings set out between paragraphs 106 to 135, the tribunal said it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk the applicant will suffer harm, in consequence of which the applicant did not satisfy the tribunal he was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act.
[5] (1994) 52 FCR 437
[6] [1994] FCA 1105
[7] (1998) 86 FCR 547
In this court
In support of his application for judicial review the applicant relied on two grounds. They were as follows, taken verbatim from the application –
1. the Refugee Review Tribunal did not afford procedural fairness
2. the Refugee Review Tribunal applied the wrong legal test.[8]
[8] Applicants originating application, filed 19 November 2015, pg 3.
Neither ground was supported by particulars. It was therefore impossible to tell what factual or legal matters on which the applicant relied to base his contentions that the tribunal fell into jurisdictional error. Customarily, although not universally, jurisdictional error is exhibited in the way set out by the High Court in Craig v State of South Australia,[9] where a tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)relies on irrelevant material;
d)fails to take into account relevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken in conclusion.
[9] (1995) 184 CLR 163
Similar observations were made by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf,[10] yet no rigid taxonomy of jurisdictional error exists, a point made in the subsequent High Court decision of Kirk v Industrial Court (NSW).[11]
[10] (2001) 206 CLR 323
[11] (2010) 239 CLR 531
Here, I was unable to make any sensible assessment of the way the applicant cast his case that the tribunal did not afford the applicant procedural fairness. Nor was I able to assess whether and, if so, how the tribunal applied the wrong legal test. If anything, it seemed to me that the tribunal correctly applied all relevant considerations to its assessment of the claims to s.36(2)(a) protection as well as to its assessment of complementary protection under s.36(2)(aa). I detected no error. The grounds of review did not point out any.
In circumstances where no particulars of the grounds of review are given, a line of authority exists to the effect that in the absence of particulars, grounds that are so general as to be meaningless, enable the reviewing court to dismiss the case for that reason alone. Cases which have so held include WZATH v Minister for Immigration and Border Protection,[12] BHK15 v Minister for Immigration and Border Protection,[13] AQN15 v Minister for Immigration and Border Protection[14] and WZAVW v Minister for Immigration and Border Protection.[15] The absence of particulars in this case indicated to me that the applicant’s case was more likely to be not reasonably arguable than otherwise.
[12] [2014] FCA 969
[13] [2016] FCA 569
[14] [2016] FCA 571
[15] [2016] FCA 760
Taken in the aggregate, I was not persuaded that the applicant had a reasonably arguable case.
It followed that, having regard to a significant period of time prior to the filing of this proceeding being unexplained together with there being poor prospects of success, no useful purpose would be served in granting the extension of time the applicant sought.
Today I asked the applicant to tell me in his own words what he said the tribunal did wrong. He said he came to this country because there were problems in his country, especially with money laundering. He said things had got to the point that he would not be able to live in his country any more. While I sympathise with his circumstances, they did not amount to jurisdictional error grounding judicial review.
I refuse the application to extend time. I order the applicant to pay the minister’s costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 23 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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