DCC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1403
•20 August 2019
FEDERAL COURT OF AUSTRALIA
DCC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1403
Appeal from: Application for an extension of time: DCC17 v Minister for Home Affairs & Anor [2019] FCCA 621 File number: SAD 57 of 2019 Judge: WHITE J Date of judgment: 20 August 2019 Catchwords: MIGRATION – application for an extension of time in which to appeal from the Federal Circuit Court judgment dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal concerning the Applicant’s application for a Protection visa – whether the Applicant’s proposed appeal had a reasonable prospect of success – application dismissed. Legislation: Federal Court Rules 2011 (Cth) Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Date of hearing: 20 August 2017 Date of last submissions: 20 August 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr A Chan Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice and did not appear ORDERS
SAD 57 of 2019 BETWEEN: DCC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
20 AUGUST 2019
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application for the extension of time is dismissed.
3.The Applicant is to pay the First Respondent’s costs of and incidental to the application for the extension of time fixed in the sum of $3,500.
4.When the transcript of this morning’s hearing is prepared, the designation given to the Applicant, DCC17, is to be used in each case in which his own name was used.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
Introduction
This judgment concerns an application for an extension of time in which to appeal from the judgment of the Federal Circuit Court (the FCC) delivered on 22 February 2019: DCC17 v Minister for Home Affairs & Anor [2019] FCCA 621. By that judgment, the FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) concerning the applicant’s application for a Protection visa.
The 21-day period for the commencement of an appeal against the FCC judgment fixed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR), as then in force, expired on 15 March 2019. The applicant did not commence an appeal within that period, but filed the present application four days later on 19 March 2019. Since March 2019, r 36.03 of the FCR has been amended to provide that the period within which an appeal must be commenced is 28 days, but that amendment did not apply in the applicant’s case.
Factual background
The applicant was unrepresented in this Court, as he was in the FCC proceedings. The applicant is a 24 year old citizen of Malaysia who arrived in Australia on 11 March 2016 on an Electronic Travel Authority 601 visa. On 9 September 2016, a delegate of the Minister refused to grant the applicant a Protection visa.
In support of his application for a Protection visa, the applicant had claimed that he was part of an activist anti-government group when he was a student in Malaysia; that he had been banned from studying by the former government of Malaysia; that he feared prosecution under the Malaysian Sedition Act; that he was concerned about the political, economic and social development of Malaysia; and that if returned to Malaysia, he will be imprisoned and unable to hide from the authorities.
On 3 July 2017, the Tribunal affirmed the delegate’s refusal of the visa. The Tribunal had several concerns about the applicant’s evidence and found that he was not a credible witness. It was not satisfied that the applicant met the refugee or complementary protection criteria.
With respect to the applicant’s credibility, the Tribunal said:
[47]The Tribunal has a number of concerns about the applicant's evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his experiences in Malaysia, his reasons for leaving Malaysia and his fears about returning to Malaysia in the future.
The Tribunal did accept that the applicant was dissatisfied with the economic situation in Malaysia and that this had motivated him to travel to Australia for work. It was not satisfied that the applicant was an anti-government political activist who was of interest to the Malaysian authorities. The Tribunal accepted the applicant’s account that he had been involved in a criminal assault in Malaysia and had been arrested by police. However, it found that the applicant was no longer of interest to the Malaysian authorities on that account, given that the proceedings in connection with the assault have since been concluded. Further, the Tribunal considered that the applicant’s ability to obtain lawfully a passport in February 2016 and travel from Malaysia to Australia without issue supported the conclusion that he was no longer of interest to Malaysian authorities.
The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm if he was returned to Malaysia and therefore was not satisfied that he was a person to whom Australia owes protection obligations.
In many respects, these findings seem to have been inevitable, having regard to certain passages in the Tribunal’s reasons, including:
[26]The Tribunal asked the applicant why he came to Australia. The applicant said he came to Australia to sightsee or to escape persecution. The applicant said he did not have trouble leaving Malaysia.
[27]The Tribunal asked the applicant why he lodged an application for a protection visa. The applicant said when he was in Australia he ran out of money and he heard from people he could apply for a protection visa.
[28]The Tribunal again asked the applicant to tell the Tribunal why he does not want to go back to Malaysia. The applicant said he is working and the salary in Australia is much better than in Malaysia. The Tribunal asked the applicant if he fears the government in Malaysia. The applicants said he fears the economy.
…
[31]After further questioning the applicant said he did not have any trouble in Malaysia because of his political activity.
…
[34]When invited to expand on his claims the applicant said he did not want to go back to Malaysia because he likes working in Australia and has a good salary compared to Sabah. He said he is a political activist but the real reason he travelled to Australia was to get a better salary so that he could support his family in Malaysia.
…
[58]The Tribunal finds that the applicant was motivated to travel to Australia to secure a better salary so that he could support his family in Malaysia. In this regard, the Tribunal accepts the applicant is dissatisfied with the economic situation in Malaysia. The Tribunal accepts the applicant may take part in protests in Malaysia to voice these concerns in the future. However having regard to the applicant's profile and the country information the Tribunal does not accept the applicant will face a real chance of serious harm if he does take part in registered protest activity in Malaysia in the future.
[59]The applicant has worked on his family's farm and as a gas pipe welder / cutter. The Tribunal finds that the applicant's skills and past work experience will place him in a strong position to obtain employment in Malaysia in the reasonably foreseeable future.
[60]In conclusion, the Tribunal has had regard to the applicant's evidence and country information and is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia in the foreseeable future because he is a political activist who took part in anti-government protests or because he was a follower of the SSKM. The Tribunal finds that the applicant's fear of persecution because of his actual or imputed political opinion is not well-founded.
Application to the FCC
In his application to the FCC, the applicant advanced a single ground which commenced with the quotation of [58]-[60] in the Tribunal’s decision, set out above, and then continued (verbatim):
Tribunal agree with the fact that I take part in the anti government protest but they say that the fear of prosecution is not well founded. Tribunal come to conclusion based on country information and newspaper reading. All cases are different to one another. If government take action on someone they do not do publicly. If I am harmed then it will not come in newspaper or police will say government did it. They get us in trouble through people and make it look street fight or robbers kill. Govement control everything so they know how to fix anti government people like me. Tribunal ade error as it only follow general country information this is very different to all people. lt has to be case by case. So Tribunal make jurisdictional error in decision.
The FCC Judge dismissed the application for judicial review saying:
[6]… In short, the applicant’s application failed because he was not believed. Having regard to the Tribunal’s discussion, it appears to me that that was an inexorable result of what the applicant himself had said to the Tribunal.
[7]In other words, there appears to me to be a proper basis for the Tribunal’s adverse credibility finding. In relation to the actual grounds of review set out in the application, essentially they take issue with the Tribunal’s conclusion but without attempting to point to jurisdictional error but, rather, disagreement with the conclusions. As I have already observed, I am satisfied that the conclusions that the Tribunal reached were open to it and possibly even unavoidable. The application does not, in its own terms, describe any recognised ground of jurisdictional error.
[8]I invited the applicant to make oral submissions about these matters but, while he was assisted by an interpreter, he did not appear to be able to formulate any relevant submissions. Accordingly, I dismiss the application.
Principles and approach
A number of matters may bear upon the exercise of the discretion to grant an extension of time. Principal among them are the length of the extension sought; the explanation for the appeal not having been commenced in time; the prejudice to the respondent if the extension of time is granted; the prejudice to the applicant if the extension of time is refused; and the interests of justice generally.
In the present case, the period of extension sought is short, being only four days. The applicant’s explanation for the delay is that he had been under the impression that he had had 28 days in which to lodge a Notice of Appeal, whereas r 36.03, as in force at the time, required the appeal to be commenced within 21 days. Counsel for the Minister did not contest the factual accuracy of that explanation but did dispute its adequacy. The Minister did not contend that he would suffer any material prejudice if the extension of time is allowed.
The critical matter therefore is the prejudice to the applicant if the extension is not allowed. This turns very much on the merit of the applicant’s proposed appeal.
The grounds of appeal in the applicant’s draft Notice of Appeal are as follows:
1.On 11 March 2016, I came to Australia holding Subclass 601visa and applied for Protection visa on 13 May 2016, which was later, refused by the delegate because he found that I did not have a political profile in Malaysia so as to attract adverse attention.
2.I then applied to the Tribunal for review unsuccessfully and later had success with Federal Circuit Court.
3.I have expressed concern over the political, economic and social development of Malaysia. Malaysia is corrupt, has a very bad image today and is undemocratic.
4.I was a student of a public institution, an active student activist and protestor. I attended protests against corrupt government and when it was interrupted, protestors were locked. I was banned from studying and was blackmailed because of my struggle to dismantle cases of IMBD and corruption.
5.It was then I decided to leave the country to save myself came to Australia before something worse happened. But the Tribunal and the Court did not accept that I would face a real chance of serious harm from any involvement in such activity because I have low profile and country information that suggested only high-profile activists were ever arrested. Now if returned to Malaysia I would be imprisoned. The authorities would find me anywhere as they are powerful and have thousands of agencies working for them to find people like me.
6.They either kidnap people never to be found again or create an accidental scene to pose natural death or any other scenario to keep themselves safe. And if you are on their target list, they will hunt you from anywhere in Malaysia to be killed. It is then their prestige issue. All these factors have never been highlighted in any reports or articles written in regard to the matter.
7.But these kind of killings and cases never get documented anywhere and hence the tribunal and the Court missed such information from the country information sources and hence made an error in judging the case accurately. I am not disagreeing with the Tribunal’s factual findings about country information but here by making an attempt to draw the courts attention through appeal on the missing or ignored facts of my case.
8.All these factors have never been highlighted in any reports or articles written in regards to the matter.
9.Therefore, to save my life, this is my humble request to the court to accept my appeal application against the decision made in court on 22/02/2019.
As is apparent, these are not grounds of appeal of a conventional kind. Paragraphs [1]-[3] state matters of background only. Paragraphs [4], [5] and [6] contain assertions as to the basis for the applicant’s underlying claim for protection but do not identify any error by the FCC Judge. It is pertinent that in [6] the applicant accepted that the matters on which he relied for his claim for protection “have never been highlighted in any reports or articles written in regard to the matter”. This was confirmed in paragraph [8]. That is, the applicant relied on matters which he acknowledged have never been publicly reported.
By [7], the applicant does assert error, namely, that both the Tribunal and the FCC Judge had “missed” information. However, he also said that he did not disagree with the Tribunal’s factual findings based on the country information.
In these circumstances, the applicant’s complaint seems to be that the Tribunal and the FCC Judge failed to have regard to information which has not been documented anywhere and, apart from the applicant’s own assertions, had not been placed before the Tribunal.
The assessment of the evidence and the weight to be attached to the matters advanced by the applicant was a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. As the applicant had been found not to be a credible witness, it is hardly surprising that the Tribunal determined not to attach any weight to his unsupported and unverified claims.
In his oral submissions today, the applicant repeated many of the same matters on which he had relied in the Tribunal. I explained to the applicant that it was not the function of the FCC, and it is not the function of this Court, to determine whether he should be granted a Protection visa. Instead, it was necessary for him to point to arguable error in the judgment of the FCC. The applicant’s submissions did not identify any such matter.
The applicant also submitted that he wished to have the extra time in order to be able to stay in Australia to earn money with which to support his family, referring to the personal circumstances of his father and brother, and in order to raise money to pay legal fees. Even taking those purposes at face value, they are not proper reasons for the Court to grant the extension of time, which the applicant seeks.
In the circumstances, it cannot be said that the applicant’s proposed grounds of appeal have any merit or that there is any reasonable prospect of his proposed appeal being allowed. On the basis of the material reviewed earlier, the dismissal of the application for judicial review appears to have been inevitable.
Conclusion
In these circumstances, the applicant will not suffer prejudice if the extension of time is refused. It would not be appropriate for the Court to grant an extension of time for an appeal which does not have any reasonable prospect of success. In short, the applicant has not shown a proper basis for the grant of an extension of time. Accordingly, his application is dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 28 August 2019