DFN16 v Minister for Immigration and Border Protection

[2017] FCA 1474

FEDERAL COURT OF AUSTRALIA

DFN16 v Minister for Immigration and Border Protection [2017] FCA 1474

Appeal from:

Application for extension of time: DFN16 v Minister for Immigration and Border Protection [2017] FCCA 956

File number:

NSD 876 of 2017

Judge:

O'CALLAGHAN J

Date of judgment:

21 November 2017

Date of publication of reasons:

7 December 2017

Catchwords:

MIGRATION – application for an extension of time to seek leave to appeal from Federal Circuit Court of Australia – application for leave to appeal from Federal Circuit Court of Australia – whether the primary judge erred in not holding that the Administrative Appeals Tribunal erred – where applicant conceded before the primary judge that the Tribunal did not commit legal error – no appellable error identified – application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth), s 24(1)(A)

Migration Act 1958 (Cth), s 36(2)(a) and (aa)

Federal Court Rules 2011 (Cth), r 35.12(1)

Date of hearing:

21 November 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr J Pinder

Solicitor for the First Respondent: 

Minter Ellison

Counsel for the Second Respondent:

Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 876 of 2017

BETWEEN:

DFN16
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	21 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file an application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

O’CALLAGHAN J:

1. The applicant seeks an extension of time under r 35.14(1) of the Federal Court Rules 2011 (Cth) within which to file an application for leave to appeal against an order of a judge of the Federal Circuit Court of Australia (the FCCA), made on 11 May 2017, dismissing the applicant’s application for judicial review.  The primary judge dismissed that application under the relevant provision of the Federal Circuit Court Rules 2001 (Cth), because he held that the application did not raise an arguable case for the relief claimed.

2. The applicant is a citizen of Malaysia.  He arrived in Australia on 8 August 2015, on a tourist visa.  On 3 November 2015 the applicant applied for a Protection (Class XA) visa, claiming that he had taken out a series of loans from people described as loan sharks in Malaysia to meet expenses associated with his business, his home, his cars and his two families.  The applicant claimed that he was unable to repay the loans and was threatened, and, as a result, fled Malaysia, fearing that harm would come to him from the loan sharks.  On 27 January 2016 a delegate of the Minister, the first respondent, refused to grant to the applicant a Protection (Class XA) visa. 

3. On 18 February 2016 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.  The applicant appeared before the Tribunal in September 2016 and gave evidence and presented arguments in support of his application.  On 10 October 2016, the Tribunal affirmed the delegate’s decision.  In doing so, the Tribunal summarised the background to the applicant’s application for a Protection (Class XA) visa, summarised his protection claims and his evidence and discussed issues about the applicant’s identity and receiving country.  It is unnecessary to rehearse those matters here. 

4. The Tribunal found that the applicant “presented his claims in a piece-meal and sometimes-hesitant manner” and expressed “significant doubts as to whether the applicant is a person who entered risky deals with loan sharks and is consequently at risk of being pursued and punished by them”.  Those observations appear at [41] of the Tribunal’s reasons, as do the following observations about the specific inadequacies that the Tribunal regarded arose out of the evidence given by the applicant, namely:

   (1)His claims and evidence “contained numerous gaps and anomalies”. 

   (2)His “account of the total sum that he borrowed, the interest rate and his plans in Malaysia to repay it” was “uncertain”.

   (3)His evidence about the loan sharks’ efforts to recover any of the funds was “scant and unpersuasive”.

   (4)He did not leave Malaysia until about eight months after some flooding occurred, which, the applicant claimed, bankrupted his business, during which period the applicant made no repayments on the loans, and the loan sharks did not seriously threaten or punish him.

   (5)The claim that he will be pursued, if it is known that he had returned to his home town, together with a claim that his wife had returned to her home village, which is nearby, for her safety, suggested to the Tribunal that the applicant’s fears related to one location and not Malaysia as a whole.

   (6)While the Tribunal was puzzled by the applicant’s one-day trip to Thailand in July 2015, it drew no adverse conclusions or inferences from that fact, except to say that the applicant’s lack of candour and his willingness to return to Malaysia raised further questions about whether he needed protection.

   (7)There was an apparent incongruity between the applicant’s claimed fears and his failure to try to discharge some of the debts.

5. The Tribunal did accept that the applicant may have had financial problems in Malaysia, including in connection with his business, the floods in late 2014 and the fact that his families needed support.  The Tribunal also accepted that the applicant may have outstanding debts in Malaysia.  The Tribunal accepted that these issues, and the economic conditions in Malaysia, may have influenced the applicant’s decision to come to this country and seek protection. 

6. However, the Tribunal did not accept that the applicant had borrowed money from loan sharks.  It did not accept that he had failed to meet repayments.  It did not accept that he was subject to threats, harassment or harm, and it did not accept the applicant had fled Malaysia to escape harm from loan sharks or other criminals. 

7. It follows that the Tribunal rejected, in its entirety, the factual basis of the applicant’s claims to fear harm in Malaysia because of the outstanding debts owed to loan sharks. 

8. In respect of the refugee criterion, the Tribunal further found that, even if his claims were accepted, there was no Convention nexus as required by s 5J(1) of the Migration Act 1958 (Cth) (the Act).  In respect of the complementary protection criterion, the Tribunal found that there was no real risk that the applicant would be subjected to significant harm because of any outstanding debts he had in Malaysia.

9. The application for judicial review before the FCCA contended for three grounds, which were stated as follows (errors in original):

   1.The decision is effected by an error of law.  [Of course I read “effected” as meaning “affected”.]

   2.The decision was made on my application without solid proofs.

   3.It is requested to sent my application to Administrative appeal tribunal for reconsideration.  

10. Although the directions made by the FCCA permitted him to do so, the applicant did not file any amended application, any evidence or any written submissions in support of his case in that Court.  The applicant did appear at the show cause hearing before the primary judge on 11 May 2017, with the assistance of an interpreter, representing himself, as he does in this matter today before me.  At that hearing, the applicant quite candidly submitted that there were no errors in the Tribunal’s decision and that he was seeking the Court’s assistance to permit him to remain in Australia for financial reasons.  On 11 May 2017, the primary judge dismissed the application for judicial review on the basis that it did not raise an arguable case for the relief claimed.  In light of the applicant’s candid concession, to which I have referred, that is hardly surprising. 

11. In this Court, as I have mentioned, the applicant seeks an extension of time within which to file his application for leave to appeal. That is necessary, because it was late-filed. The applicant also requires leave to appeal, because the judgment of the FCCA was interlocutory: see s 24(1)(A) of the Federal Court of Australia Act 1976 (Cth) . The Minister opposes the application for an extension of time, because:

    (1)the applicant has not provided an adequate explanation for the delay; and

    (2)more substantively, the Minister contends that the proposed appeal is wholly without merit.

12. In my view, both these submissions must be accepted.  I do not propose to deal separately with the question of whether an acceptable or adequate explanation for the application for an extension of time itself has been given because, in circumstances where the Court finds, as I do find, that the proposed appeal is wholly without merit, it is unnecessary to do so.

13. The draft notice of appeal pleads two grounds, which are reproduced here as they are written: 

    1.The FM failed to consider that the Tribunal acted manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The Hon. Judge Driver dismissed the application without considering the legal and factual errors contained in the decision of AAT.

14. It is obvious enough that the reference to “FM” is intended to be a reference to the learned primary judge. Presumably, the reference to FM is a reference to a federal magistrate, as they were once known. The Minister submitted that the grounds are obviously “template grounds”. There may be some merit in that submission, but as I said to counsel representing the Minister today, the fact that a submission is in template form is no reason in and of itself that it may not have merit in a particular case. However, and more importantly, as the Minister submits, the first ground which I have outlined was not raised before the primary judge, and the applicant has made no submission about how the Tribunal ignored aspects of the harm that he claimed. Further s 91R of the Act, which is referred to in ground 1 of the draft notice of appeal, had no application to the applicant, because he applied for a protection visa after that section was repealed.

15. As to the second ground of appeal, the Minister submits, and I agree, that it is a general and unparticularised assertion of error, and it cannot possibly succeed.  Although the applicant is to be commended for his candidness before the primary judge, when the applicant told the primary judge that he accepted that the Tribunal did not make any legal errors and that he simply wanted assistance in order to remain in Australia, that is no basis upon which this Court is able to intervene or to provide the assistance that the applicant wishes to receive.  On the contrary, the acceptance of those matters by the applicant means that his case is, as the Minister submitted, even if it were permitted to be made, bound to fail.  For those reasons the application must be dismissed. 

16. The Court accordingly orders that:

    (1)The application for an extension of time within which to file an application for leave to appeal be dismissed.

    (2)The applicant pay the first respondent’s costs, as agreed or assessed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan.

Associate:

Dated:        7 December 2017