Cnu17 v Minister for Immigration and Border Protection
[2018] FCA 1301
•7 August 2018
FEDERAL COURT OF AUSTRALIA
CNU17 v Minister for Immigration and Border Protection [2018] FCA 1301
Appeal from: Application for extension of time: CNU17 v Minister for Immigration and Anor [2017] FCCA 2990 File number: QUD 733 of 2017 Judge: LOGAN J Date of judgment: 7 August 2018 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – whether prospects of success – evidence before the Tribunal which potentially corroborated applicant’s claim – Tribunal refused to receive that evidence – arguable case of jurisdictional error. Held – extension granted. Date of hearing: 7 August 2018 Date of last submissions: 7 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr E Mac Giolla Ri Solicitor for the Applicant: McKenzie Mitchell Solicitors Counsel for the Respondents: Ms S Forder Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
QUD 733 of 2017 BETWEEN: CNU17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
7 AUGUST 2018
THE COURT ORDERS THAT:
1.The time within which a notice of appeal against the judgment of the Federal Circuit Court delivered on 24 November 2017 may be filed, be extended to close of business on Friday 10 August 2018.
2.The costs of and incidental to the extension of time application be costs in the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The applicant has been found administratively not to be a Stateless person, but rather someone who, because of Vietnamese parentage, is, under Vietnamese law, a Vietnamese citizen, albeit someone whose birth has not been registered in Vietnam. The applicant was born in Australia after his parents arrived here by boat in 2013. He is an infant who acts via his mother. His mother’s evidence as to the fate of asylum seekers if returned to Vietnam was critical to the success or otherwise of the applicant’s claim for a protection visa. Of the members of his family, it is only his claim which was valid.
As it transpired, the Tribunal chose not to act upon the mother’s evidence. That was because of particular findings made in relation to credibility, but also, more importantly, because of a view reached by the Tribunal that authorities in Vietnam subjected those who have engaged in people smuggling to particular persecution, but not returned asylum seekers per se. They, the Tribunal found, might face brief detention and questioning, and a modest fine, but nothing further.
There was other evidence in relation to the fate of returnees before the Tribunal. There was also an endeavour on the part of the applicant to introduce into evidence what is termed in the draft notice of appeal the SBS article. The Tribunal’s reasons are noteworthy not just for an absence of any reference to this article, but also, for that matter, and with all due respect, lamentably, for an absence of any reference to any endeavour on the part of the applicant by his mother even to tender that article to the Tribunal. The contents which are said to be pertinent in the article are set out in para 9 of the applicant’s outline of submissions.
9.Although the article also concerned people smugglers with their families, SBS article had information that was relevant to consider of this issue, namely:
a.The sub-headline of the article states: “Three women who fled Vietnam, only to be sent back by the Australian Government, have again fled their homeland, as Vietnamese authorities “strictly punish” the ‘unauthorised exit of country’.”
b.On the second to last page of the article it is stated that: “Vietnamese state media said authorities there would be launching a new criminal investigation into the group for leaving the country without official permission.”
c.The final page of the article says:
“The 2016 “unauthorised exist of country” charges were handed down by a court in Binh Thuan province, despite assurances given to Australian immigration officials from Vietnam that the group would not face prosecution following their repatriation via HMAS Choules. The trial took place amidst allegations that local Communist Party authorities had intervened to make sure the asylum seekers were heavily punished.
“The La Gi Township Administration (local communist party) had instructed to punish heavily,” Vo An Don told SBS News and other media in interviews following the trial. “The fact that the Township Administration instructed the judicial authorities on the trial is completely against Vietnamese law.”
The underlining in that, is that of the applicant’s counsel.
It is put on behalf of the Minister, either that read in context the passages concerned do not relate to asylum seekers or, insofar as they may, that the Tribunal was already aware of the particular events by other evidence before it. That being so, it is put that there is no arguable case, because the result could have been no different in the Tribunal
But what the Tribunal did not have, and deliberately deprived itself of having, was the way in which the events concerned were reported by SBS. It is no part of a task in relation to the granting or otherwise of an extension of time to treat the extension application as if it were an appeal on the merits. The relevant considerations are whether there is an acceptable explanation in respect of the delay in the filing of a notice of appeal, and whether the prospective grounds of appeal enjoy sufficient prospect of success to warrant a granting of an extension. Of course, if it could be demonstrated that the grounds concerned were hopeless, no matter how compelling the explanation for delay may be, an extension would not be warranted. The two considerations interplay. Even if an explanation for delay is not particularly attractive or compelling, a case which shows arguable grounds may warrant the granting of an extension of time in the interests of justice.
Here, there is an explanation in respect of a delay and the filing of a notice of appeal, and that explanation is that error was made on the part of the applicant’s legal advisors as to the relevant time, and also that there was some delay in receiving assistance from counsel. It is not always the case that lapses on the part of the legal profession provide an acceptable explanation, but in this case, when one has regard additionally to the proposed grounds of appeal, there is a case for extension. The proposed grounds of appeal as set out in the draft notice are these:
1.The tribunal breached the hearing rule and denied the applicant procedural fairness by:
a.Not accepting documents from the applicant at the hearing on 5 May 2017.
b.Not raising with Mr Doan or Ms Chu whether the harassment suffered by the returned children they referred to in their evidence could not extend to the applicant because his parents were not people smuggling organisers.
2.The decision is irrational in the relevant sense because there was no basis for concluding that the applicant would be spared harassment at school because his parents had not been people smuggling organisers.
3.The Tribunal committed a factual and/or legal error of a jurisdictional nature in concluding that the harm that would be caused to the applicant by harassment at school would not amount to serious harm or significant harm.
The applicant abandoned Ground 2.
The third of these grounds is really dependent on the earlier two. That is because whilst, at para 145 of the Tribunal’s reasons, it is evident that a default position was considered by the Tribunal, that was not, in turn, addressed in the Federal Circuit Court. Further, if the applicant does succeed in relation to the other two grounds, it will be necessary for the Tribunal on a rehearing to confront afresh exactly what is the fate according to the Tribunal’s reasonable satisfaction of returned asylum seekers, and that in turn may influence conclusions in relation to the fate of those returnees who are children. So there is an interplay, factually, between the particular grounds.
It may be, on a full consideration on the hearing of an appeal, that a view promoted on behalf of the Minister that the SBS article, read as a whole and in context, is such that the references in it to particular prosecutions are references to prosecutions of people smugglers. But that is not the only view, arguably, one might take of what is said in the article. If one takes that other view, as seems to be arguable from the passages highlighted, there was material capable of corroborating an account given by the applicant’s mother, and the Tribunal rebuffed that. The Federal Circuit Court found an absence of jurisdictional error in that rebuffing. It is arguable, in my view, that to decline to receive potentially corroborative information is a transgression of the obligations which fall on the Tribunal in the conduct of a review. That being so, the case is one which warrants the granting of an extension. It is not necessary this afternoon to proceed as if the case were a determination of the merits of the appeal; only that there is an explanation which, if taken in conjunction with prospects, warrants the granting of an extension.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 24 August 2018
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