CPB16 v Minister for Immigration

[2017] FCCA 410

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 410

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 441A, 441C, 477

Cases cited:

Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v SCAR (2003) 128 FCR 553
Minister for Immigration v SZNVW (2010) 183 FCR 575
Minister for Immigration v Yusuf (2001) 206 CLR 323
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252

Applicant: CPB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2480 of 2016

Judgment of: Judge Driver

Hearing date: 6 March 2017

Delivered at: Sydney

Delivered on: 6 March 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2480 of 2016

CPB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 13 September 2016 which seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 May 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. As is noted in the application, it was filed outside the time prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant requests an extension of time pursuant to s.477(2). Background facts relating to this matter are set out in the Minister’s submissions filed on 27 February 2017.

2. The applicant is a male citizen from Pakistan who arrived in Australia on 4 June 2013 as the holder of a tourist visa. With the assistance of a migration agent, the applicant made an application for a protection visa on 28 August 2013[1].  In summary, the applicant claimed that from 2006 until 2013 he had owned a business manufacturing and trading apparel.

   [1] CB 1

3. The applicant claimed that he had been threatened and repeatedly assaulted by members of the Taliban because of his business. He claimed that his personal guard was killed after the applicant's family home was shot at, and his business partner had been abducted and murdered after they had failed to pay bribes[2].

   [2] CB 51 to 57

4. In support of his application, the applicant provided, among other documents, three documents which were purportedly translations of news articles dated August and September 2013 concerning an alleged attack on the applicant[3] and a Police First Information Report relation to an incident which occurred on 15 May 2013 and which was reported by the applicant on 26 August 2016[4].

   [3] CB 79 to 81

   [4] CB 101

5. The applicant attended an interview with a delegate of the Minister on 23 January 2014.

6. On 23 May 2014, the delegate refused the application on the basis that inconsistences in the applicant's evidence led it to find that the applicant's claims were not credible and not supported by current, unbiased country information[5].  

   [5] CB 110 to 123

7. The applicant sought review of the delegate's decision on 5 June 2014 and provided to the Tribunal a copy of the delegate's decision[6] and appointed his migration agent as his authorised recipient[7]. On 30 November 2015, the applicant's migration agent provided a submission to the Tribunal in which the applicant claimed to fear that he would be killed by the militant group Tanzeem-e-Taliban or its agents for his refusal to pay ransom and also because he reported the incidents to the police[8].

   [6] CB 124 to 139

   [7] CB 125

   [8] CB 150 to 154

8. The applicant appeared before the Tribunal on 4 December 2015 to give evidence and present arguments with the assistance of an Urdu interpreter[9].

   [9] CB 155 to 158.  The Tribunal's hearing record indicates that the applicant's agent was expected to attend the hearing to assist and was marked "on their way" at the commencement of the hearing (CB 155). 

9. During the course of the hearing, the Tribunal put to the applicant a number of instances where his evidence at the hearing had been inconsistent with the claims raised in his application and evidence given at his interview with the delegate. The applicant requested additional time to provide further comment. The Tribunal agreed to provide two weeks for the applicant to provide any further comment or response.  Despite that request, the applicant did not provide any further information, evidence or submissions to the Tribunal[10].

   [10] CB 172 at [27] and [28]

The Tribunal's decision

1. The Tribunal affirmed the delegate's decision on 26 May 2016.

2. While the Tribunal accepted that the applicant was a businessman in Faisalabad who operated a garment business, it did not accept the remainder of the applicant's claims regarding the reasons he left Pakistan and came to Australia in 2013. It considered that the applicant's evidence in support of these claims provided in his written application and oral evidence to the delegate and the Tribunal contained a number of significant differences, inconsistences and contradictions, which considered cumulatively, led the Tribunal to have serious doubts about the reliability and credibility of his claims regarding his past experiences in Pakistan[11].

   [11] CB 174 at [40]

3. The Tribunal went on to consider whether there is a real chance or real risk that the applicant would face harm on the basis of his status as a businessman. However, having considered the applicant's claims individually and on a cumulative basis, the Tribunal was not satisfied that there was a real chance or real risk that the applicant would face persecution or significant harm on the basis of his refusal to pay money to individuals associated with the Taliban, for reporting individuals to the police or as a businessman vulnerable to extortion[12].

   [12] CB 178 at [58] and [62]

Application to the Federal Circuit Court

1. By an application to show cause filed in this Court on 13 September 2016 the applicant seeks an extension of time in which to seek judicial review of the Tribunal's decision and raises the following three grounds (without amendment):

   1.The Tribunal did not correctly interpret law relating to the applicant's protection claims, namely s. 36(2)(a) and s.36(2)(aa) of the Migration Act 1958;

   Particulars

   The applicant submits that the Tribunal did not appropriately consider whether there is a real chance that he will be persecuted if he returns to Pakistan. He submits that the Tribunal took the decision that he will not be persecuted in Pakistan by merely refusing to accept evidence he presented and/or not recognising him as a credible witness. In doing so, the Tribunal failed to take into account evidence that were related significantly to establishing elements of sections 36(2)(a) and 36(2)(aa). This relates to injuries the applicant suffered, and those who were close to him such his guard, and partner in business, damage to his house and business, threats made to him and his family members both physically and verbally. This resulted in an error of law.

   2.The applicant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations. Therefore, the applicant submits that there was procedural unfairness during the decision making process of the Tribunal which resulted in the breach of rules of natural justice.

   3.In considering Ground 2 above, the applicant pleads that the Tribunal did not exercise jurisdiction vested in it appropriately and misconceived its authority incurring a jurisdictional error.

2. The application is supported by a short affidavit filed with it which I received. 

3. I also have before me as evidence the court book filed on 22 December 2016. 

4. Only the Minister prepared written submissions in accordance with procedural orders made by me on 7 December 2016.  Those were read to the applicant before I came on the bench today. 

5. As noted, the applicant requires an extension of time in order to bring his proceedings. The Court may grant an extension of time if it is satisfied that it is necessary in the interests of the administration of justice to make the order[13].

   [13] Migration Act, s.477(2)(b)

6. In SZRIQ v Federal Magistrates Court of Australia[14] Foster J explained the matters relevant to an application under s.477(2) as follows[15]:

   There are no particular criteria specified in s 477 which must be satisfied as part of the concept of "the interests of the administration of justice …". The matters which might be taken into account by the [Court] are at large although they must logically and sensibly relate to the interests of the administration of justice.

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors including:

   (a)Whether there has been a reasonable and adequate explanation for the applicant's delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [14] (2013) 139 ALD 252

   [15] At [46]-[47]

Reasons for the delay

1. In his application to the Court, the applicant provides the following explanation as to why his application is out of time, and why an extension should be granted (without amendment):

   The applicant was unwell for a lengthy period of time. During this time his phone connection was cancelled and his migration agent could not contact him to inform of the decision of the Tribunal. When the applicant contacted his agent time has already lapsed. The applicant believes there were errors in the decision of the Administrative Appeals Tribunal which require judicial review to be corrected. The applicant believes there will be a miscarriage of justice if his matter cannot be heard in this court.

2. In support of his application for an extension of time, the applicant has annexed to his affidavit of 7 September 2016 a medical certificate dated 1 September 2016. The medical certificate states that the applicant was “sick during this period 15^th June to 1^st July 2016”.

3. The Minister submits that the reasons given by the applicant do not sufficiently explain his delay in filing his application with the Court. In respect of the applicant's claim that he was “unwell for a lengthy period of time”, the Minister notes that the period covered by the medical certificate provided by the applicant post-dates the Tribunal's decision by three weeks and the date of the certificate post-dates the Tribunal's decision by three months. The certificate does not provide any detail as to the nature of the applicant's illness, and only covers a period of two weeks, rather than a “lengthy period of time”.  There is also no medical evidence on the Tribunal's file that supports the applicant's claim of a “lengthy illness”.

4. The applicant was not required for cross-examination on his affidavit.  I explained to the applicant the issues bearing upon an extension of time decision and invited oral submissions from him.  In making those submissions, the applicant augmented the bare details set out in the application and the affidavit.  I have no reason to doubt the material facts referred to by the applicant in the course of making those submissions. 

5. In essence, the applicant says that in May 2016 he moved from Sydney to Brisbane.  His mobile phone was disconnected at around the same time.  For this reason, he lost contact with his migration agent who had represented him before the Tribunal.  When the applicant eventually restored contact with his agent at some unspecified time, but possibly in August 2016, he found out about the Tribunal decision.  He determined at that time to seek an extension of time for judicial review.  For that purpose, he approached Dr Muhammed Yahya Khan in Queensland for a medical certificate to verify asserted illness.  That certificate is annexed to the applicant’s affidavit.  The certificate is noteworthy for the facts that it refers to a period of illness some three months before the certificate was issued.  Secondly, it does not specify what the illness was.  The applicant told me that he was tired and depressed and was also suffering the effects of a broken leg.  He also told me that he had sought a certificate for a more extensive period from Dr Khan but the doctor had refused to issue it.  On its face, the certificate verifies that the applicant suffered from some unspecified sickness for a period of about two weeks between 15 June and 1 July 2016. 

6. As was pointed by the Minister’s solicitor in her oral submissions, that coincides with the last two weeks of the prescribed period for the making of an application to the Court.  I accept that the applicant was unwell for that two week period.  However, that does not of itself explain the 75 day delay in the applicant coming to court.  The court book discloses that the applicant attended a hearing before the Tribunal on 4 December 2015.  It is unclear whether the applicant’s agent also appeared, although the hearing sheet indicates that the agent intended to.  

7. At the end of the Tribunal hearing, the applicant requested further time to submit documents.  He was granted two weeks.  That should have indicated that a decision might have been anticipated any time from Christmas 2015 onwards.  There is no evidence of any attempted contact between the applicant and his migration agent at any stage between Christmas 2015 and around August 2016.  The circumstances support an inference that the applicant was not particularly interested in the Tribunal decision, until he found out about it in about August 2016. 

8. For completeness, the Minister notes the Tribunal's case note dated 31 August 2016 indicating that the applicant's migration agent had contacted the Tribunal on that day querying the method of notification of the Tribunal's decision[16]. As the authorised recipient, the applicant's migration agent was notified of the Tribunal's decision by facsimile on 26 May 2016[17], in compliance with s.441A of the Migration Act. The Tribunal's transaction report clearly shows that the Tribunal's decision was faxed to the number provided by the applicant's migration agent in the applicant's application for review[18]. Pursuant to s.441C(5) of the Migration Act, the applicant is therefore taken to have received the decision on 26 May 2016.

   [16] CB 182

   [17] CB 159

   [18] CB 159

9. In my view, the applicant’s sickness and his difficulties in communication with his agent do not provide a satisfactory explanation for the delay, which is not insignificant.  I conclude that the applicant has not advanced a persuasive explanation for his delay in coming to court.   

10. Even if I were persuaded that a satisfactory explanation for the delay had been advanced, I would still refuse an extension of time on the basis that no serious issue for trial has been raised. 

11. The grounds in the application are too general to convey anything meaningful.  The particulars to the first ground are not connected to the Tribunal’s reasons for its decision.  The applicant in his oral submissions was not in a position to advance anything further other than to refer to his claims for protection.  The Minister’s submissions, which I agree with, support a conclusion that there is no arguable case of jurisdictional error.   

12. The applicant seeks to raise three grounds in relation to his substantive application. All three grounds are without merit and misconstrue the relevant sections of the Migration Act.

13. At its highest, the first ground of the application seeks impermissible merits review by challenging the credibility findings made by the Tribunal in respect of the applicant.  The Tribunal's credibility findings do not disclose any error, and were open on the material and evidence before the Tribunal[19]. The Tribunal's reasons were logical, rational and not arbitrary or capricious[20].

    [19] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]

    [20] Minister for Immigration v Eshetu (1999) 197 CLR 611 at [136], [145] and [154]; Minister for Immigration v Yusuf (2001) 206 CLR 323 at [80] - [83]

14. Further, the factual findings and conclusions that the Tribunal reached by the Tribunal were open to it on the evidence before it, and the Tribunal clearly considered the applicant's evidence and claims referred to in Ground 1[21].

    [21] see CB 177 at [55]

15. With respect to Grounds 2 and 3, these grounds are wholly unparticularised and incapable of a meaningful response. Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with[22]. The Tribunal complied with its statutory obligations pursuant the Division. 

    [22] Section 422B

16. With respect to s.424A, this is not a matter in which the Tribunal's s.424A obligations were enlivened and therefore the Tribunal was not required to issue an invitation pursuant to s.424A.

17. In relation to s.425, the applicant was invited to, and attended, a hearing before the Tribunal on 4 December 2016. The duration of the hearing was over three hours. At the hearing, the Tribunal discussed the issues that were dispositive to the review[23]. The Tribunal traversed the evidence with the applicant, including putting to the applicant matters that might cause the Tribunal to conclude that the applicant was not a person to whom Australia has protection obligations[24].    

    [23] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]

    [24] see, for example, (CB 169 and 170 at [16]-[24]

18. On the basis of the material on its file, the Tribunal complied with s.425 of the Migration Act by giving the applicant a “real and meaningful” opportunity to participate in the hearing and give evidence in support of his application[25]. The Tribunal complied with its obligations pursuant to s.424AA[26].

    [25] cf. Minister for Immigration v SCAR (2003) 128 FCR 553; Minster for Immigration v SZNVW (2010) 183 FCR 575

    [26] see CB 171 at [25] to [27]

19. For these reasons, the interests of the administration of justice do not call for an extension of time.  I therefore refuse that application, with the consequence that the show cause application is incompetent. 

20. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.

21. In consequence of the refusal of an extension of time, the Minister seeks an order for costs fixed in the sum of $3,606.  That is the amount prescribed under the Court Rules for an interlocutory hearing.  The applicant was concerned to know the consequences of a costs order but did not oppose the making of a costs order. 

22. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 March 2017