DEM16 v Minister for Immigration & Anor

[2017] FCCA 805

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEM16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 805

Catchwords:
MIGRATION – Application for judicial review – extension of time required to commence proceedings – no grounds specified in the application to justify extension of time or to support the application more generally – application summarily dismissed.

Legislation:

Migration Act 1958, s.477(1)

Applicant: DEM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 991 of 2016

Judgment of: Judge Jarrett

Hearing date: 3 March 2017

Date of Last Submission: 3 March 2017

Delivered at: Brisbane

Delivered on: 3 March 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms A.J. Stoker

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entering a submitting appearance

ORDERS

1. The application filed on 25 October 2016 be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 991 of 2016

DEM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 28 April, 2016 the Administrative Appeals Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant a protection (class XA) visa. 

RECORDED:  NOT TRANSCRIBED

1. By his application to this Court filed on 25 October, 2016 the applicant seeks to have this Court review the decision of the Administrative Appeals Tribunal that was made on 28 April, 2016. 

2. There are time limits that apply for the making of such an application. Section 477(1) of the Migration Act1958 sets out that time limit. This application is out of time. Despite that, the applicant, in that part of the initiating application that he has filed to commence these proceedings that says, “Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?” ticked the “no” box.

3. However, the applicant needs an extension of time if this application is to succeed.  In his application, he specifies no grounds upon which the Court might extend time and he specifies no grounds upon which his application for review is prosecuted.  It is essentially a blank form.  The application follows a previous application made by this applicant to the Court for judicial review of the same decision of the Administrative Appeals Tribunal.  That previous application was made on 16 May, 2016.  That application was again blank in terms of the grounds of the application.

4. I have considered the content of the initial file, that is, the file that was commenced by the applicant on 16 May, 2016 (BRG43/2016) and the current application before me.  In neither of those applications has there been any specification at all of the grounds upon which the applicant might say that the decision of the Administrative Appeals Tribunal is wrong and that the Tribunal had committed jurisdictional error.  It is incumbent on the applicant, of course, to demonstrate that there is jurisdictional error on the part of the Tribunal before the Tribunal’s decision can be interfered with by this Court.

5. The first respondent argues that the present application ought to be summarily dismissed because it is an abuse of process.  The argument is that, having made one application to this Court on 16 May, 2016 and having decided not to proceed with it and to discontinue it by the filing of a notice of discontinuance, the applicant should not now be permitted to commence fresh proceedings in respect of the same justiciable controversy.  The application by the first respondent, in my view, must succeed.  It must succeed for these reasons. 

6. First, to the extent that the present application might be seen as an application to withdraw the notice of discontinuance in BRG435/2016, there is no explanation by or on behalf of the applicant as to the circumstances in which the notice of discontinuance was filed. There is in the present proceedings two affidavits by Helen Thomas filed on 28 February, 2017 and 3 March, 2017. In the second affidavit, Ms Thomas deposes to the applicant having “buckled to the pressure”, although she does not say what pressure, that was applied to the applicant, and he discontinued his initial proceedings.

7. But that is preceded by a statement that he had received legal advice about his initial application and that he acted on that advice.  In paragraph 5 of her affidavit, she says this:

   On 9 September 2016, Clayton Utz replied to O’Reilly & Lillicrap that they had received a notice of discontinuance filed at the Federal Circuit Court on 23 August.  Fearing further costs and told that his case was hopeless, [DEM16] buckled to advice to pull out of the proceedings.

8. That is to say it seems to me, he received advice that his case had no prospects and he accepted that advice and decided to discontinue the proceedings with a view to avoiding a costs order.  The advice that his application was hopeless was well given.  His application was hopeless.  It was hopeless because there were no grounds of review specified of in that application.  Moreover, having regard to the terms of the decision given by the AAT, it is of no surprise to see that he was given advice that his application was hopeless.

9. The decision of the Administrative Appeals Tribunal was focused upon the credit of the applicant.  Put shortly, the AAT did not believe the accounts of events upon which he based his claim to fear persecution should he return to his home country.  The AAT might be right about that or it might be wrong, but there is nothing that this Court can do about the findings of credit – generally speaking – that the Administrative Appeals Tribunal has made.  It is for the Tribunal to find the facts, not this Court.  The role of this Court is very limited.  It is limited to ascertaining whether there has been jurisdictional error in the decision of the primary tribunal.  That is a task which, again generally speaking, focusses upon the procedural aspects of the Tribunal hearing.

10. I have read and reread the decision of the Tribunal in this case.  I can discern no jurisdictional error in the Tribunal’s decision.  It is said on behalf of the applicant, by Ms Thomas in her affidavit, that there are reasons why the applicant’s evidence might have appeared less than credible.  If that is so, it was for the applicant to put those reasons before the Tribunal.  It is simply too late to put them before this Court.  It is not something about which this Court can do anything and this Court cannot accept evidence about medical conditions and the like, as is sought now to be led in this case.

11. In any event, the medical opinion that is sought to be relied on and annexed to the affidavit of Ms Thomas of 28 February, 2017 does not make out the assertions that she sets out in her affidavit.  It is said in that affidavit that:

    [DEM16] has displayed intensive distress at exposure to cues of the traumatic event in [country redacted].  He displays efforts to avoid thoughts, feelings or activities associated with the traumatic event.  His inability to recall important details of the event, as per clause 24 on page 5 of eight of the Administrative Appeals Tribunal case number 1419767 decision, was seen by the tribunal as a lack of credibility of [DEM16] as a witness, but they are also indicative of signs of mental illness following a traumatic event.

12. Ms Thomas says she organised for the applicant to be medically assessed by a general practitioner and she purports to attach a copy of the report of that assessment.  The annexure is not a report of an assessment.  It is a referral.  Be that as it may, the letter says this:

    This young man has changed from a happy, hardworking, productive and involved member of society to a withdrawn, anxious individual since he has been advised his application for TPV has been rejected.

13. It is clear from that medical report that whatever now afflicts the applicant has come on since he was refused his temporary protection visa, not before.  To the extent that it is said that any of those things – that he was withdrawn and is anxious, for example, or depressed to draw on other paragraphs in that report – provide an explanation for his appearance in the AAT, the medical report does not support the contention at all. 

14. This case is similar to many others in the sense that it is not until an application for a protection visa comes to this Court on a judicial review application that effort is put into demonstrating that the grounds upon which the applicant relies for the grant of a protection visa exist.  As should be apparent by now, to attempt to do that in this Court is of no benefit.  This Court does not deal with the merits of the visa application.  The place for doing that is before the Tribunal, and those that devote their resources to assisting people who are applying for protection visas ought to devote their resources to that stage of the process rather than this.  There is no point, again, generally speaking, putting further evidence before the Court about the claims for protection made by the applicant before the Administrative Appeals Tribunal.

15. To the extent that the current application might be seen as an application to extend time within which to commence these proceedings, there are two difficulties.  The first is that there is really no explanation for the delay in commencing the proceedings, especially in light of the earlier proceedings and the subsequent decision to discontinue them, but, more importantly perhaps, for the reasons I have already expressed, the application has no merit.  It would be of no benefit to anybody to persist with this application in this Court.

ORDERS DELIVERED

1. The application was dismissed for the reasons I have already expressed.  Ordinarily costs follow the event, except where there are circumstances that would suggest that the Court ought not apply that general principle.  The applicant says that he was unaware that his initial proceedings were discontinued.  I find that difficult to believe for two reasons.  First, he told me earlier that he had made an application for ministerial intervention because that is what his friends told him to do.  He could only do that if his prior proceedings were not still on foot.  Otherwise there would be no point.  Secondly, he recommenced these proceedings on 25 October, 2016 so he must have known that the previous proceedings had ended. 

2. In any event, neither of those things, even if they are true, amount to special circumstances sufficient to displace the usual rule.  Costs should follow the event.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  26 April 2017