CYF17 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 806
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYF17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 806
File number(s): MLG 1557 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 5 September 2023 Catchwords: PRACTICE AND PROCEDURE – Application for extension of time.
MIGRATION – Review of Administrative Appeals Tribunal (“Tribunal”) decision – protection visa – persecution – refusal.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicants a postponement of its hearing – did not determine the matter according to law and denied the applicants a hearing.
Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 425, 426A, 474, 477
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420
Division: General Number of paragraphs: 29 Date of hearing: 30 August 2023 Place: Sydney For the Applicants: The first and second applicants appeared in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1557 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYF17
First Applicant
CYG17
Second Applicant
CYH17
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time within which to commence this proceeding be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The first applicant is a citizen of Malaysia who arrived in Australia on 30 October 2015. On 22 June 2016 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Malaysia because he had receiving threats from politicians who would “trouble” him because he had spoken to the government about corruption and political uprisings. The second and third applicants were included as dependents in this visa application, arriving to Australia separately on 24 March 2016. On 19 July 2016 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
The applicants’ application for judicial review was filed on 20 July 2017, outside the limitation period prescribed by s.477 of the Migration Act 1958 (Cth) (“Act”), and the applicants have applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the application for an extension of time within which to bring this proceeding will be dismissed.
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
…
The Tribunal’s decision was dated 20 April 2017 and so the applicants had until 25 May 2017 to commence this proceeding. As the application was not filed until 20 July 2017 it was brought out of time.
On 1 September 2021 this Court was renamed Federal Circuit and Family Court of Australia (Division 2).
APPLICATION IN WRITING CITING REASONS
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2) of the Act. The first of these is whether a written application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and relied on the grounds of the substantive application.
The initial criteria for the granting of an extension of time have therefore been satisfied.
INTERESTS OF THE ADMINISTRATION OF JUSTICE
The second question posed by s.477(2) of the Act is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicants have provided a satisfactory explanation for their delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. The Minister did not contend that the delay caused him any material prejudice but did submit that the absence of prejudice is insufficient on its own to warrant the extension of time.
Satisfactory explanation for delay
The applicants relevantly alleged in support of an extension of time:
…
(vi)The applicant did not have funds to lodge federal circuit court application and did not understand he could seek a waiver for application costs. He has borrowed the funds to lodge the application.
The Minister submitted that the claim of financial hardship was unparticularised and unsubstantiated and did not provide a satisfactory explanation for the delay in seeking judicial review. More importantly, although the applicants alleged circumstances which might have provided a satisfactory explanation for delay, the allegation was unsupported by evidence. There is, therefore, no proper basis to find that a satisfactory explanation for the delay in commencing the proceeding has been provided and I find accordingly.
Merits of Substantive Application
In relation to the question of the substantive application’s merits, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial.
Claims before the Department
In its decision, the Tribunal summarised the facts alleged in support of the first applicant’s claims for protection. As summarised by the Tribunal, the first applicant relevantly made the following claims in his application for a protection visa:
•He left Malaysia because he felt unsafe. A few months earlier he spoke to the political party in government in relation to the state of corruption and political uprisings.
•He has been receiving threats from politicians since then. They will trouble him if he speaks against the government. His friends have been threatened and killed. He fears the same thing may happen to him.
•People who speak against the political parties are arrested, interrogated, tortured and shot dead without coming to the attention of the media or social media.
•He cannot obtain State protection or relocate safely.
Circumstances leading up to the Tribunal hearing
On 20 March 2017 the Tribunal wrote to the applicants pursuant to s.425 of the Act to advise them that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to a hearing on 18 April 2017 to give oral evidence and present arguments. The applicants were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on the application without further notice.
At 12:55am on the day of the hearing Tribunal received an email from a Ms Al-Haouli, office manager of Sabelberg Morcos Lawyers, purporting to act for the applicants and requesting a postponement of the Tribunal hearing in order to prepare and lodge submissions. The Tribunal attempted to reach Sabelberg Morcos Lawyers and at 9:05am left a message with a receptionist that the Tribunal had considered and declined the adjournment request and the hearing would proceed as scheduled, although the representative could attend by telephone if a number was provided. A short time later, the Tribunal received a telephone call from a paralegal at the office of Sabelberg Morcos who advised that Ms Al-Haouli was overseas and that the applicants would not be attending the hearing. In an email at 11:06am that day the Tribunal advised Ms Al-Haouli that the applicants had had approximately one months’ notice of the hearing and, in its view, more than adequate time to organise representation. It also advised that if the applicants attended the hearing then their representatives would be given time after the hearing to provide written submissions.
The applicants did not appear before the Tribunal on the day and at the time they were scheduled to appear. The Tribunal marked its hearing record sheet “no show” and “1:30 18/04/2017”. In those circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicants to appear before it.
The Tribunal’s decision and reasons
The Act relevantly provides:
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
…
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
…
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the first applicant was a refugee as defined by s.5H of the Act or that the first applicant is a person to whom Australia has protection obligations under ss.36(2)(a) or 36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
(a)the applicants’ claims had been “made in the most general terms and... are unsubstantiated”. As the applicants did not attend the Tribunal hearing when invited, the Tribunal was unable to seek further information and details regarding:
(i)when, why and to whom in the governing political party the first applicant spoke;
(ii)what threats were made, when and by whom and how the first applicant responded to them;
(iii)how and why the first applicant believed he would be “troubled” for speaking against the government;
(iv)who the first applicant’s murdered friends were and why he considered himself at risk of the same thing happening to him;
(v)why there was a nine month delay between the first applicant’s arrival in Australia and his application for protection; and
(vi)why the first applicant remained in Australia as an unlawful non-citizen after his visa expired on 30 January 2016 at risk of deportation to Malaysia;
(b)the Tribunal was not satisfied on the limited evidence before it that the first applicant had suffered any harm in Malaysia, was of adverse interest to any Malaysian authority or that there was a real chance he would be at risk of serious or significant harm if he returned to Malaysia now or in the reasonably foreseeable future; and
(c)the Tribunal was not satisfied that the first applicant had a well-founded fear of persecution for reasons of his political opinion, or any other reason as required by s.5J(1)(a) of the Act or that his circumstances engaged Australia’s complementary protection obligations.
Merits of application for judicial review
The applicants alleged in the application commencing this proceeding:
(i) The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. The decision was affirmed on 20th April 2017 where the tribunal affirmed the decision
(ii) The applicant engaged a representative a day prior to the scheduled hearing. The representative asked for an adjournment in order to study the file and prepare submissions.
(iii) The request for adjournment was denied and the member proceeded with the hearing without the applicant and representative.
(iv) The tribunal has made errors in administration and has not determined the case according to law.
(v) The tribunal failed to give the applicant an opportunity to state his case. The tribunal therefore failed to exercise its jurisdiction according to law.
...
The extension of time application was heard together with argument on the substantive application. At the hearing the applicants were invited to put to the Court everything they wanted to say in support of the application for judicial review. After addressing the Court on difficulties they had encountered in Australia, they had no submissions to make on whether the Tribunal’s decision was affected by jurisdictional error. Nor had they filed any written submissions on that or any other topic. They made no case for jurisdictional error beyond what was alleged in the initiating application.
The application raises three issues. The first is whether the Tribunal erred in the exercise of discretion when refusing to delay its hearing. The second is whether the Tribunal failed to determine the case “according to law”. The third is whether, by proceeding to determine the review without hearing from the applicants, the Tribunal denied them procedural fairness.
In relation to the first issue, the Tribunal expressed its conclusion in the following terms, which reflect what was advised to the applicants’ representatives on the day appointed for the Tribunal hearing:
On 18 April 2017, the Tribunal received an email from Latifa AI-Haouli, Office Manager, Sabelberg Morcos Lawyers, indicating that they had been instructed to act for the applicants and requesting a postponement of the hearing to enable them to prepare and lodge submissions to the Tribunal. The Tribunal considered this request and declined it. The applicants applied for review to the Tribunal on 13 August 2016 and have had over eight months to organize representation before the Tribunal. They were notified of the hearing date on 20 March 2017 and have had almost a month to prepare for the hearing.
Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly provided at the time of the Tribunal’s review:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Having regard to that objective, it is not apparent from the reasons of the Tribunal just quoted that it exercised its power unreasonably in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420 at 444–445 [131]–[138].
In relation to the second issue, the Tribunal’s decision was based on a lack of evidence that might have persuaded it that the applicants satisfied the criteria for the grant of the visas they sought. In the absence of such evidence it was well open to the Tribunal to find itself unsatisfied that those criteria had been met.
The third issue involves s.426A of the Act which, at the time of the Tribunal’s decision, relevantly provided:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application
…
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled
The Tribunal’s obligations to the applicant under the natural justice hearing rule were set out in pt.7 of div.4 of the Act, in which s.426A is found. The Tribunal relevantly complied with those obligations by inviting the applicants to a hearing in accordance with s.425 of the Act, a step which, upon the applicants’ absence from the Tribunal hearing, enlivened the Tribunal’s power under s.426A(1A)(a) to make a decision without taking further action to allow the applicants to appear before it. Having decided, in a manner that did not involve a miscarriage of discretion, to proceed to determine the review, the Tribunal then did no more than lawfully exercise the power that, in the circumstances, s.426A of the Act provided.
It is not apparent that any of the applicants’ allegations have reasonable prospects of success.
CONCLUSION
In circumstances where a satisfactory explanation for the late commencement of the proceeding has not been made out and the allegations of jurisdictional error lack merit sufficient to justify their consideration at a trial, I am not satisfied that it is necessary in the interests of the administration of justice to extend the time within which this proceeding may be brought.
Consequently, the application for an extension of time will be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 September 2023
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