CLS17 v Minister for Immigration

[2017] FCCA 2809

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLS17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2809

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application to this Court filed 202 days late – application for an extension of time required under s 477 – not necessary in the interests of the administration of justice to extend time – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 441B, 441C, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CLS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1775 of 2017

Judgment of: Judge Street

Hearing date: 16 November 2017

Date of Last Submission: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1775 of 2017

CLS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 October 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and arrived in Australia on 26 March 2008 on a Student visa 571.  The applicant then had a period of being unlawfully in Australia from 12 May 2009, when the 571 visa was cancelled until he was granted a bridging visa when he was located at the Blacktown Hospital. The applicant then lodged an application for protection on 22 September 2014. On 25 May 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

3. The application in this Court was filed on 7 June 2017, 202 days outside the time required under s 477 of the Act and accordingly, the applicant requires an extension of time under s 477 of the Act. 

4. The applicant claimed to fear harm from debt collectors in China and claimed that his family suffered financially when their farm was resumed for redevelopment in 2005. The applicant claimed that his mother borrowed money to pay her husband’s debts because he moved elsewhere and also to try and assist the applicant as a student on his student visa in Australia. The applicant had been trying to help his family with money since he arrived in Australia and one of his parents was identified as having a terminal illness. The applicant alleged in March 2014 a debt collector trashed his family home leaving the applicant with depression, anxiety and a fever. The applicant alleged his family asked him to stay in Australia because they feared the debt collector would appropriate the family home. The applicant alleged he started going to a Christian church and that he was hospitalised. 

The Tribunal’s decision

1. Following the delegate’s decision on 25 May 2015 finding the applicant failed to meet the criteria under the Act for the grant of a visa, the applicant applied for review on 26 June 2015. By letter dated 19 September 2016, the applicant was invited to appear at a hearing on 6 October 2016. The applicant appeared on that date to give evidence and present arguments. 

2. The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the law in Attachment A incorporated into the Tribunal’s reasons. The Tribunal summarised the applicant’s claims and evidence. The Tribunal accepted part of the applicant’s claims but found that he does not face real chance of suffering persecution in China in the reasonably foreseeable future for having an affiliation with a Christian church in Australia. 

3. The Tribunal was not satisfied the applicant faces a real chance of persecution in China in the reasonably foreseeable future for reasons of religion. The Tribunal found the applicant’s need to support his family was not within the meaning of persecution as non-exhaustively defined in s 91R of the Act. The Tribunal accepted that the applicant’s family had borrowed money and that his family home was damaged. The Tribunal was not satisfied that a Convention-related factor is an essential or significant factor in the harm the applicant claims to fear in regard to his parents’ relationship with moneylenders. 

4. The Tribunal was not satisfied there is a real chance of the applicant suffering persecution in China in the reasonably foreseeable future by reason of having been living in Australia. Having considered all the circumstances, the Tribunal was not satisfied the applicant faces a real chance of Convention-related persecution in China in the reasonably foreseeable future. The Tribunal found the applicant’s claimed fear of persecution is not well-founded. The Tribunal found the applicant is not a refugee. The Tribunal was not satisfied the applicant is a person with respect to whom Australia has protection obligations under the Refugee Convention and found the applicant did not meet the criteria under s 36(2)(a) of the Act. 

5. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk the applicant will suffer significant harm. The Tribunal found that it was not satisfied the applicant is a person with respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a hearing of an application for an extension of time under s 477 of the Act. The Court explained that there were three issues in this regard. Firstly, the applicant’s explanation for the delay.  Secondly, whether there was any particular prejudice suffered by the first respondent and the Court noted no such prejudice was suggested, and thirdly, the merits of the application.

2. In relation to the merits of the application, the Court explained to the applicant that it was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision is affected by relevant legal error. The Court explained that the relevant legal error has to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the applicant had an arguable case that the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the applicant had a satisfactory explanation for the delay and a reasonably arguable case on the merits, the Court would extend time and fix the matter for hearing on another occasion.  The Court explained that if not satisfied the applicant had a satisfactory explanation of the delay and a reasonable arguable case on the merits, the application for an extension of time would be dismissed with costs. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of hearing as explained by the Court.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that he had not received notification of the Tribunal’s decision. The applicant maintained that in those circumstances, the decision was unfair. The applicant’s application for review identified a migration agent’s address for the purpose of the review application. In accordance with s 441B of the Act, the Tribunal notified the applicant of the decision and the applicant was taken to have received that notification in accordance with s 441C of the Act.

2. No evidence had been put on by the applicant in relation to his assertions that he did not receive notification, but in any event, the statutory regime makes clear that the applicant is taken to have received the communication that was sent to his migration agent. No satisfactory explanation has been given by the applicant in respect of what is substantial delay in the present case. For the substantial delay without satisfactory explanation, the application should be refused. 

3. In relation to the merits of the application, the grounds are as follows:

   1. AAT was wrong about the definition of the law.

   2. AAT didn't use the law correctly about my need for protection.

   3. AAT didn't consider that all the facts, including my disabled sister, terminally-ill father, typhoon and my lenders would caused me hard to survive in China. This is the reason for protection.

4. On the face of the Tribunal’s decision, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its obligations of procedural fairness in the conduct of the review. 

Ground 1

1. In relation to ground 1, the bare assertion that the Tribunal was wrong about the definition of the law does not identify any arguable case of jurisdictional error. Ground 1 fails to make out any arguable case of jurisdictional error. 

Ground 2

1. In relation to ground 2, the assertion that the Tribunal did not use the law correctly about the applicant’s need for protection is in substance cavilling with the merits of the application and inviting this Court to engage in an impermissible merits review. Ground 2 fails to identify any arguable case for jurisdictional error. 

Ground 3

1. In relation to ground 3, the Tribunal made express reference to the applicant’s need to support his family by referring to his disabled sister and his terminally ill father, as well as referring to the applicant’s concerns in respect of money lenders and a desire to help his family. No arguable case of jurisdictional error is made out by ground 3. 

2. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application fails to identify any arguable case of jurisdictional error. The merits of the application do not establish that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. The Court finds in the present case that it is not necessary in the interests of the administration of justice to extend time under s 477 of the Act. 

3. The application under s 477 of the Act for an extension of time is dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2017