CMW15 v Minister for Immigration and Border Protection
[2018] FCA 207
•6 March 2018
FEDERAL COURT OF AUSTRALIA
CMW15 v Minister for Immigration and Border Protection [2018] FCA 207
Appeal from: Application for extension of time: CMW15 & Ors v Minister for Immigration & Anor [2017] FCCA 1661 File number: NSD 1457 of 2017 Judge: YATES J Date of judgment: 6 March 2018 Catchwords: MIGRATION – application for extension of time to appeal –whether adequate reason provided for delay – whether proposed appeal meritorious Legislation: Migration Act 1958 (Cth), s 36
Federal Court Rules 2011 (Cth), 36.03
Date of hearing: 21 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicants: Mr A N Silva with Mr N G Silva Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting appearance ORDERS
NSD 1457 of 2017 BETWEEN: CMW15
First Applicant
CMX15
Second ApplicantCMY15
Third ApplicantCNA15
Fourth ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an extension of time dated 22 August 2017 be dismissed.
2.The applicants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
This is an application to extend time within which to bring an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court). The applicants are citizens of Fiji. The fifth applicant is the first applicant’s wife. The second and third applicants are dependent children of the first and fifth applicants. The claims of the fifth, second and third applicants are dependent on the first applicant’s claims. There is no fourth applicant.
BACKGROUND
The first applicant arrived in Australia on 3 February 2014 on a visitor visa granted on 6 January 2014. On 24 February 2014, he lodged an application for a protection visa. His claim was based on a fear of persecution for his political opinion. The first applicant’s application for a protection visa was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), on 23 July 2014. He then sought a review of that decision before the second respondent, the Administrative Appeals Tribunal (the Tribunal).
THE TRIBUNAL
The applicant appeared before the Tribunal on 19 May 2015 and 7 July 2015 to give evidence and present arguments. He was represented throughout the review by a registered migration agent who also attended the Tribunal hearings and provided written submissions. The applicant’s claims were based on his asserted political activities in Fiji and in Australia. The applicant’s political activities in Australia included protesting when Prime Minister Bainimarama visited Australia in 2014. The applicant informed the Tribunal that some people had been writing to him saying that Fiji was “not good for him”.
The Tribunal found that, by and large, the applicant was not a truthful witness. The Tribunal found that his evidence in relation to his political involvement was superficial, vague and unconvincing. The Tribunal gave reasons for that conclusion: see [38]-[43] of the Decision Record. The Tribunal also found that there were a number of significant differences between the applicant’s written evidence (what he told the delegate) and what he told the Tribunal. The Tribunal gave instances of these differences and discussed them. In the result, the Tribunal was not satisfied that if the applicant were to return to Fiji there was a real chance of serious harm either because of his previous political activities in Fiji, his present political activities in Australia, or for any other reason.
Thus, the applicant did not satisfy the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). The Tribunal also considered the alternative criterion in s 36(2)(aa) of the Act but, for the same reasons, was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Fiji, there was a real risk that he would suffer significant harm. Accordingly, the Tribunal affirmed the decision under review.
THE FEDERAL CIRCUIT COURT
The first applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. He was represented by a lawyer. There were originally three grounds of review. However, two of them (Grounds 2 and 3) were abandoned. The sole remaining ground of review (Ground 1) was premised on the first applicant making a claim for protection as a former military officer. However, as the primary judge recognised, the first applicant had not made that claim before the delegate or the Tribunal, either explicitly or implicitly. Unsurprisingly, the primary judge concluded that no jurisdictional error had been established and dismissed the application with costs.
The proposed grounds of appeal in this Court do not engage with the sole ground of review advanced in the Federal Circuit Court or identify an error in the judgment given in relation to that ground. Indeed, the first applicant does not seek to support any claim that he was a former military officer. Rather, the proposed grounds of appeal seek to agitate an alleged error in the Tribunal’s exercise of jurisdiction that was not raised in the proceeding below. The alleged error is that the Tribunal failed to deal with an integer of his claim—namely, that he personally and publicly condemned and embarrassed Prime Minster Bainimarama at a demonstration in Sydney, and will be persecuted if he returns to Fiji.
THE REQUIREMENTS FOR AN EXTENSION OF TIME
An appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03(a)(i) Federal Court Rules 2011 (Cth). The application for judicial review was dismissed on 18 July 2017. A notice of appeal should have been filed by no later than 8 August 2017. The application to extend time was filed on 23 August 2017. The delay was, therefore, 15 days.
The matters relevant to whether an extension of time to file a notice of appeal should be granted include the length of the delay; the explanation for the delay; the presence or absence of prejudice to the respondent; and the merits of the proposed appeal.
THE EXPLANATION FOR DELAY
The explanation for the delay was given in an affidavit by the fifth applicant. She said that, on 18 July 2017, the first applicant told her that the application for judicial review had been dismissed and that he had been advised by their then lawyer that there was nothing they could do because their case was “too weak”. They decided not to accept that advice but, it seems, they did nothing about the matter until 28 July 2017 when, having received correspondence from their then lawyer that an appeal had to be filed by 8 August 2017, they contacted the lawyer’s office to make an appointment (I assume to discuss an appeal). No appointment was made at that time and, having heard nothing further, the fifth applicant contacted the lawyer’s office again on 7 August 2017. At that time she was told by their then lawyer that there was no reason to appeal. On 8 August 2017, the fifth applicant contacted their then lawyer again and was told that there was no reasonable prospect of an appeal. On 9 August 2017, the fifth applicant received a letter from their then lawyer stating that, if the applicants wished to appeal, they should engage other lawyers.
On 12 August 2017, the first and fifth applicants contacted their current lawyer, but he was unable to assist them for a number of days due to other professional commitments. The first and fifth applicants consulted with their new lawyer on 18 August 2017 and, after applying for bridging visas, filed their current application in this Court.
The Minister submitted that, although the delay of 15 days is moderate, and the prejudice is minimal (beyond the requirement to defend an unmeritorious application), the explanation provided for the delay is not satisfactory. I accept that submission. I will, however, also consider the merits of the proposed appeal.
THE MERITS OF THE PROPOSED APPEAL
The grounds of the proposed appeal are contained in the applicants’ third draft notice of appeal. That document contains three grounds of appeal, but the applicants no longer seek to rely on two of those grounds. The only ground agitated in the present application is proposed Ground 1, which is expressed as follows:
(1)The learned primary judge erred in not finding that the Tribunal failed to deal with an integer of a claim, that is that the applicant personally and publicly condemned the Fijian leader and embarrassed him while he was in Sydney and therefore will be persecuted if he returns to Fiji
Particulars
(a)The country information shows that anyone personally verbally attacking Commodore Bainimarama or the Attorney General Mr. Khaiyam are liable to persecution.
(b)See Transcript of 19/05/17 Pg 39 ln27–31. Someone who is seen to have embarrassed the government or security services would have a higher risk profile.
(c)When Mr. Bainimarama was visiting Sydney the main applicant (‘applicant’) called out to him “You’re a murderer. You murder people.” See 7/07/15 transcript Pg 36 ln 35–36 to Pg 38 ln 20. He is liable to persecution. See also page 45 ln 24 – 32.
(d)See 19/05/17 transcript Pg 22 ln 1-8
MR WITNESS: So we are so thankful that (indistinct) is a lot of Fijian people who are there and so some of them from (indistinct) and when we were trying to approach the door, the police – there is a lot of Australian police and they stop us from there and they push us back. We put up banners and we call out that he is a murderer. Why Australian government allow him to enter Australia because he’s a criminal? And I think the media was there taking pictures and photos like that.
(e)See [52] for the Tribunal’s finding.
The Minister submitted that this ground is without merit. First, this ground was not a ground of judicial review raised before the Federal Circuit Court, with the consequence that leave would be required to raise it now. Secondly, the very matter raised by proposed Ground 1 was considered by the Tribunal. However, the Tribunal was not satisfied that the first applicant’s claimed political activity in Australia gave rise to a relevant risk profile.
In the course of oral argument, I was taken to various paragraphs in the Tribunal’s Decision Record and various passages from the transcript of the hearing before it, which took place over two days. The first applicant gave evidence that he attended a protest when Prime Minister Bainimarama visited Australia in 2014. At this protest the first applicant, who was outside a hall with others where the Prime Minister was speaking, called out “You’re a murderer. You murder people”. A witness who was at the same protest gave evidence that others were also calling out the same accusation: see Particular (d) quoted at [13] above.
The applicants drew attention to country information before the Tribunal that stated that the likelihood of an individual being subject to cruel, inhuman or degrading treatment or punishment is low, although someone who is seen to have embarrassed the government or security services would have a higher risk profile. The applicants also drew attention to country information before the Tribunal which stated that most commentators are circumspect in any public criticism of Prime Minister Bainimarama. The full passage (which comes from a Department of Foreign Affairs and Trade report dated 14 April 2015) should, however, be noted. It is extracted at [54] of the Decision Record:
3.70Fiji’s constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
…
3.73 In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.
3.74 However, some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions means that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy. Examples and further information on the risks to specific groups are given below.
At [31] of the Decision Record, the Tribunal referred to the evidence given by the first applicant of his political activities in Australia:
31.The applicant told me that he has continued his political activities in Australia. These include protesting when Prime Minister Bainimarama visited Australia last year. The applicant was prevented from entering venues at Green Valley and at Canterbury where Prime Minister Bainimarama was speaking. He also told me that some people have been writing over to him saying that Fiji is not good for him.
At [52] of the Decision Record, the Tribunal said:
52.I accept and find that the applicant has continued some low level political activity in Australia, including attending two protests when Prime Minister Bainimarama visited Australia last year.
The applicants submitted that this passage from the Decision Record “leaves the most important aspect of the claim out, that is the [first] applicant condemned Mr Bainimarama openly and [in] public in the presence of the media”. This is the basis on which the applicants contend that the Tribunal failed to deal with an integer of the claim.
The Minister drew attention to all the country information quoted by the Tribunal in its Decision Record, which related to the public expression of political opinions and also opposition by political parties. The Minister also drew attention to the fact that the first applicant never claimed to be a public figure or a leader in an opposition political organisation. The first applicant claimed to have been a member of SDL in Fiji and to have attended protests in Australia on two occasions. Although the Tribunal accepted these claims, it did not accept that the first applicant was a high profile member. At [51] of the Decision Record, the Tribunal found:
51.Giving the applicant the benefit of the doubt I find and accept he was a low level or ordinary member of the SDL in Fiji. I do not accept or find that he was a high profile member, a committee member or in any way involved in the SDL’s organisation.
I have already quoted the Tribunal’s findings as to the first applicant’s political activities in Australia: see [18] above.
The Minister submitted that the fact that the first applicant called Prime Minister Bainimarama a “murderer” at a protest attended by others who were also shouting the same thing did not elevate his political profile to one of the categories identified in the country information on which the Tribunal relied. The Minister also submitted that the Tribunal’s acceptance of the first applicant’s political activities in Australia (see [31] and [51]-[52] of the Decision Record) shows that the Tribunal did not fail to consider an integer of his claims and that the Tribunal’s conclusion that these activities were low level subsumed an acceptance of the particular circumstances of the protests that the first applicant had attended.
CONCLUSION
I accept the Minister’s submissions. Having read the relevant passages of the transcript of the Tribunal hearing, in conjunction with the Tribunal’s reasons as stated in the Decision Record, I think it is plain beyond reasonable argument that the Tribunal must have had in mind and accepted the evidence before it of the first applicant’s political activities in Australia (including his conduct when protesting) when it concluded that this activity was “low level”. The Tribunal then gauged the degree of that activity against the country information it had, and found that it was not satisfied that if the first applicant were to return to Fiji there is a real chance of serious harm because of that activity. Apart from any other objection, the allegation that the Tribunal failed to consider an integer of the claim has insufficient prospects of success to permit it to be raised now as a ground of appeal.
CONCLUSION AND DISPOSITION
For these reasons, the applicants’ application for an extension of time within which to bring an appeal to this Court, based on Ground 1 of the proposed notice of appeal, should be refused. The applicants are to pay the Minister’s costs of the application.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 6 March 2018
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