DDB16 v Minister for Immigration

[2018] FCCA 3437

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3437

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an extension of time under s 477 – protection visa – whether there was an adequate explanation for the delay – whether the Tribunal failed to ask the applicant a question – application for an extension of time is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Applicant: DDB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 518 of 2016

Judgment of: Judge Street

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Ladhams
Australian Government Solicitor

ORDERS

1. The application for an extension of time is dismissed under s 477 of the Migration Act 1958 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 518 of 2016

DDB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 September 2016, in substance affirming a decision of the delegate by refusing to grant the applicant a Protection (Class XD) visa.

2. The applicant is a citizen of Vietnam and his claims were assessed against that country. The applicant claimed to fear harm in summary by reason of being a practising Roman Catholic. 

3. On 21 January 2015, the delegate found the applicant failed to meet the criteria for the grant of the protection visa.

4. The applicant applied for review before the Tribunal. The applicant attended a hearing on 10 June 2016 and 10 August 2016 to give evidence and present arguments. The Tribunal also took into account submissions advanced on behalf of the applicant prior to the first hearing.

5. The Tribunal identified that the applicant’s wife and son were still living in his home village. The Tribunal raised with the applicant that he appeared to have been able to practice his faith freely in Vietnam. The Tribunal accepted that the applicant is a practicing Catholic from a particular province. The Tribunal was of the view that the applicant was able to properly understand the interpreter and observed that the applicant could understand and respond to the Tribunal’s questions and sought clarification when required. On the material before the Court, the applicant had a real and meaningful hearing before the Tribunal.

6. The Tribunal accepted that the applicant, on return to Vietnam, would regularly attend a particular church. The Tribunal found that the applicant had not been interrogated, detained or otherwise mistreated by Vietnamese because he encouraged young people to stand up for their rights when the authorities did the wrong thing, or because he organised activities for Catholic people, or because he, along with other Catholics, engaged in charitable acts to assist the wider community.

7. The Tribunal identified issues with the applicant’s evidence asserting he was beaten by the authorities when his son was baptised. The Tribunal also identified issues with the applicant’s assertion that he had been throwing rocks at speakers. The Tribunal also found the applicant had not adequately explained why he felt compelled to obtain a passport at a time when, according to his written claims, the authorities had not expressed any interest in him. 

8. The Tribunal referred to documents being purportedly summonses issued to the applicant and found they lacked probative value and could not overcome the concerns the Tribunal had identified in respect of the applicant’s claims to be of adverse interest to the Vietnamese authorities.

9. The Tribunal did not accept the applicant is now, or ever was of adverse interest to the Vietnamese authorities. The Tribunal did not accept the applicant was involved in throwing rocks at the Government loud speakers, or that because he was afraid of doing so, he obtained a passport, or that he was subsequently summoned to the local authorities, where he was interrogated, detained overnight and beaten before being released.  The Tribunal did not accept that the applicant was issued with a second summons. The Tribunal did not accept the applicant ever attracted adverse attention of the Vietnamese authorities for reasons related to his religious beliefs and activities, or his political beliefs and activities. The Tribunal found the applicant has never been beaten, arrested or detained by the authorities, and/or summoned by the local authorities as claimed. The Tribunal found at the time the applicant left Vietnam and travelled to Indonesia en route to Australia, he did not have any profile with the Vietnamese authorities, other than that of an ordinary citizen. 

10. The Tribunal did not accept the applicant has ever attracted the adverse attention of the Vietnamese authorities because of his religious activities.  The Tribunal found the applicant would be able to practice his religion without restriction if he returned to Vietnam. The Tribunal found the applicant would not be motivated to involve himself in the activities that will give rise to a real chance that he would attract adverse attention of the Vietnamese authorities. The Tribunal did not accept the applicant had been subjected to serious harm or significant harm in the past because of his Catholic faith. 

11. The Tribunal found the applicant would not involve himself in activities that conflict with Government policies or practices, not because he is afraid of the consequence of doing so, but because he has no genuine commitment to doing so.

12. The Tribunal found the applicant does not face a real chance of persecution now or in the reasonably foreseeable future on account of his religion or his actual or imputed political opinion. The Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there is a real risk the applicant would suffer significant harm for reasons relating to religion or his actual or imputed political opinion. 

13. The Tribunal found that the applicant would not attract adverse attention of Vietnamese authorities because he sought asylum abroad. The Tribunal found the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he were to return to Vietnam as a failed asylum seeker.

14. The Tribunal was satisfied there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk you would suffer significant harm for any of the reasons or a combination  of those reasons. 

15. It was in those circumstances, the Tribunal was not satisfied the applicant met the criterion under s 36(2)(a) and s 36(2)(aa) of the Act, and pursuant to the statutory regime affirmed the delegate’s decision by substituting the decision to refuse to grant the applicant a Protection (Class XD) visa. 

16. These proceedings were commenced on 17 October 2016, three days outside the 35 day period required under s 477 of the Act. The application that had been filed by the applicant was incomplete as the applicant had not ticked “yes” to the request for an extension of time. The applicant, at the bar table, ticked the “yes” box identifying that the applicant was seeking an extension of time. 

17. The grounds of the application for the extension of time have provision for specification of why the applicant considers it is necessary and in the interests of justice to extend time. The applicant’s application is to be read as a whole. Underneath that entry, there appears “Grounds of  application”, and there is an alleged ground 1 which is as follows:

    1. The AAT made a jurisdictional error in finding that the applicant did not satisfy s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958.

18. On the face of the application no ticked by the applicant which has been marked Exhibit A, there is a ground identified that on a fair reading, meets the requirements of s 477(2)(a) of the Act.   

19. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under s 477 of the Act, and the applicant confirmed he understood the nature of the hearing as explained by the Court.

20. From the bar table, the applicant explained the delay was due to communications with his lawyer. The first respondent does not oppose the application for an extension of time and does not suggest the explanation is inadequate. The first respondent sought to advance an argument that there was a continuing procedural defect with the application that had been completed by the applicant. For the reasons I have earlier given, that construction of the application by the first respondent that is marked Exhibit A is misconceived. Exhibit A must be read as a whole. There is identified a ground. That ground is capable of being read as a ground in support of the requirements of s 477(2)(a) of the Act. Whether regarded as responsive or not, it is still information in the application that meets the requirements of s 477(2)(a) of the Act. 

21. The Court must be satisfied in respect of any order that it is appropriate to make the order. On the face of the application, the ground identified and particularised for the reasons given is incapable of making out any arguable case of jurisdictional error to make necessary an extension of time in the interests of the administration of justice. 

22. From the bar table, the applicant indicated that there was an alleged question that he wanted to be asked by the Tribunal that he was not asked. The applicant also submitted that he had an answer to give to the Tribunal but that he did not get the chance to provide that answer. The applicant submitted that he did not get the chance to respond to the question about what would happen if he had to go back to Vietnam.  There is no evidence to support that proposition from the applicant, and the applicant’s assertion, in that regard, is inconsistent with the material in the Court book. 

23. It is apparent from the material in the Court book that the applicant has expressly addressed in his application for protection why it was he said he did not want to go back to Vietnam. An adverse finding in that regard was made by the delegate, and it is apparent on the face of the Tribunal’s reasons that the Tribunal considered the applicant’s claims, evidence and submissions, and made adverse findings that were open to the Tribunal for the reasons given by the Tribunal. The proposed ground 1 does not identify any arguable case of jurisdictional error, whereby the Court is satisfied it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

24. Insofar as the applicant’s affidavit suggested a failure to consider all of the applicant’s evidence, the applicant did not identify any evidence that was not considered by the Tribunal, and it is not apparent on the face of the material before the Court that there is any arguable case of relevant error by the Tribunal in respect of the consideration of the applicant’s claims and evidence. Nothing said by the applicant identified an arguable case of relevant error by the Tribunal. On the material before the Court, notwithstanding the limited delay, the Court is not satisfied there is any arguable case of jurisdictional error and the Court in all the circumstances is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

25. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 March 2019