DGL16 v Minister for Immigration

[2017] FCCA 1776

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1776

Catchwords:

MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – application for extension of time – application for judicial review made 29 days outside of time – whether extension should be allowed in the interests of the administration of justice – whether grounds of application contain merit – no jurisdictional error on review of Tribunal’s decision – application for extension of time refused – application otherwise dismissed.

Legislation:

Migration Act 1958 (Cth), ss.195A, 200, 425, 477, 501(2)

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) (2004) 144 FCR 1; [2004] FCAFC 263

Tran v Minister for Immigration & Border Protection [2014] FCA 533

Applicant: DGL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 543 of 2016

Judgment of: Judge Smith

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Perth

Delivered on: 18 August 2017

REPRESENTATION

The applicant appeared in person by video link.

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. An application for an order under s.477(1) of the Migration Act 1958 (Cth) is refused.

2. The application is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY AND PERTH

PEG 543 of 2016

DGL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Vietnam who applied for a protection visa on 3 December 2015. On 1 June 2016, a delegate of the Minister for Immigration made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 29 August 2016, the Tribunal made a decision to affirm the delegate’s decision.

2. The applicant now seeks judicial review of the Tribunal’s decision. Such an application must be made within 35 days of the date of the decision: s.477(1) of the Migration Act1958 (Cth) (Act). That means that the application for review had to be made by 3 October 2016. The applicant did not file this application until 1 November 2016, 29 days out of time.

3. However, the Court may, by order, extend the 35 day period if[1]:

   [1] See s.477(2) of the Act.

   …

   (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.

4. There is no issue that the first of these conditions has been met. The issue for determination is, whether the Court is satisfied, that it is necessary in the interests of the administration of justice to make an order extending the period within which the applicant could make the application for judicial review. That is a question that must be determined on all the circumstances of the case. The applicant relies upon the following matters and the first respondent does not dispute that they are relevant:

   a)the extent of the delay;

   b)the reason for the delay;

   c)any prejudice to the respondent;

   d)the impact on the applicant if time is not extended;

   e)the interests of the public at large; and

   f)the merits of the proposed judicial review application.

5. The applicant contends that the delay is relatively brief. The delay was caused by the fact that the applicant has been in “immigration detention and suffered difficulty, delay and a lack of access to resources and assistance in preparation” of his application. He was unable to find a lawyer in time to assist with the application and was further delayed in accessing a Justice of the Peace to witness his affidavit while in detention. The applicant said that the conditions and resources in the immigration detention centre at Yongah Hill manifestly prejudice a person in preparation of an application for Court review of a decision. These matters were contended by the applicant in his amended application but not established by any admissible evidence.

6. The Minister submitted that the delay was significant, being nearly double the time prescribed and that the matters relied upon by the applicant to explain the delay were not a sufficient justification. The Minister relied in this respect on the decision of Tran v Minister for Immigration & Border Protection [2014] FCA 533 in which Wigney J said at [35]:

   This explanation for the 18 month delay is neither adequate nor satisfactory.  The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice.  The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].

7. While I accept that the lack of legal advice does not alone provide a sufficient excuse for the failure to lodge an application for review, all of the relevant circumstances must be taken into account. Relevantly, I accept that it may be that the fact that an applicant is in immigration detention, where the resources available to him or her are outside of his or her control, might justify some level of delay. As there was no question, even in the absence of direct evidence, that the applicant was in immigration detention, I take that fact into account in assessing whether or not, it would be necessary in the interests of the administration of justice to extend the period of 35 days.

8. The Minister does not suggest that there is any relevant prejudice he might suffer if an extension is granted. I accept that there will be some prejudice to the applicant if there is not an order made under s.477(2) of the Act. It is difficult to know precisely the extent of that prejudice, but it is likely to include the fact that the applicant will be returned to Vietnam, a country where he has not lived for a considerable period.

9. I also take into account the interest of the public at large, which is generally reflected in the fact that there is a time limit on making applications for judicial review of decisions made by the Tribunal.

10. While all of these matters are relevant and are taken into account, in my view the consideration with the most weight in the circumstances of this case, is the likelihood of the application succeeding in the event that the period for making the application is extended. The prospects of success must be considered at a reasonably high level, and the extent of those prospects is to be balanced against the period of delay which, in this case, is significant but not extensive.

11. In order to assess the prospects of success in these proceedings, it is necessary first to set out some background to the decision made by the Tribunal, including the claims made by the applicant in support of his application for a protection visa.

Background and claims

1. The applicant is a citizen of Vietnam whose father was a soldier serving for the South Vietnamese government. When the civil war ended and the Communist Party took over in April 1975 the applicant’s father was arrested and imprisoned. The applicant was cared for by his aunt and legally adopted by her. The applicant and his aunt escaped from Vietnam and arrived in Australia on 24 September 1992 on a class BF-200 (Refugee) visa.

2. Between February 1994 and December 2011, the applicant was convicted of numerous criminal offences and served time in custody. He developed an addiction to drugs.

3. On 12 November 1998, the applicant was issued a warning under the criminal deportation provisions of the Act[2] on account of his criminal record. On 12 December 2002, the then Minister for Immigration[3] exercised his discretion to cancel the applicant’s visa under s.501(2) of the Act on account of the applicant’s substantive criminal history.

   [2] See s.200 of the Act.

   [3] The Hon. Phillip Ruddock.

4. From 25 July 2003 to 20 August 2007, the applicant was an unlawful non-citizen.

5. On 14 August 2007, the applicant was apprehended and taken into immigration detention. On 20 August 2007, the then Minister for Immigration[4] exercised his discretion under s.195A of the Act and granted the applicant a class BB subclass 155 visa. The applicant was subsequently released from immigration detention.

   [4] The Hon. Kevin Andrews.

6. On 14 October 2015, the Minister for Immigration and Border Protection[5] exercised his discretion to cancel the applicant’s visa under s.501(2) of the Act. On 3 December 2015, the applicant lodged an application for a protection visa.

   [5] The Hon. Peter Dutton.

7. In support of that application, the applicant claimed that he feared that he would be harmed upon return to Vietnam for the following reasons:

   a)his father was a soldier fighting the Vietnam’s military forces during the civil war;

   b)he is a practising Catholic;

   c)he has no family, emotional or social support in Vietnam;

   d)he is of Chinese ethnicity;

   e)he escaped from Vietnam in 1989 and was granted refugee status in Australia in 1992;

   f)is unable to obtain employment in Vietnam because he has little knowledge of the Vietnamese culture and language;

   g)he would be subjected to poverty and contagious disease due to poor living conditions in Vietnam; and

   h)he has a history of criminal offences in Australia.

8. On 1 June 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.

9. The applicant attended a hearing conducted by the Tribunal on 2 August 2016 and on 29 August 2016, the Tribunal made a decision to affirm the decision of the delegate.

Tribunal’s decision

1. The Tribunal did not accept that the applicant would face persecution for reason of his Chinese ethnicity because, in spite of some ethnic tension and discrimination, the Vietnamese authorities had the capability to prevent widespread and ongoing harassment. While anti-Chinese sentiment was widespread, it was typically rhetorical, rather than manifesting in any public form.

2. The Tribunal found that the applicant had no political profile, was not a political activist and would not be imputed with a political opinion because he had escaped from Vietnam, or because his father was a southern Vietnamese soldier who was imprisoned after the war. For those reasons, the Tribunal did not accept that there was a real chance that the applicant would face persecution for reason of any political opinion.

3. The Tribunal did not accept that the applicant faced any serious harm upon return to Vietnam for reason of his religion given that he had not expressed any subjective fear of such harm, or of being unable to practice his religion in Vietnam. It found that the applicant would be able to attend a registered Catholic Church and practice his religion in Vietnam without fear of persecution.

4. On the basis of country information, the Tribunal was not satisfied that the applicant faced a real risk of persecution or serious harm on account of his criminal convictions.

5. While the Tribunal accepted that the applicant was an undocumented Vietnamese national, it found that he could obtain new identity documents on return to Vietnam and obtain household registration there. Given that the applicant had not been involved in organising people smuggling and had no political interest, the Tribunal found that the applicant did not face a real chance of persecution for having departed Vietnam illegally and because he applied for asylum in Australia.

6. The Tribunal accepted that it would be difficult for the applicant to adapt to a new life in Vietnam having been brought up in Australia where he has a family, emotional and social support networks. However, it found that the applicant had family connections in Vietnam to provide him with a foundation while he looked for work and accommodation there. The Tribunal did not accept that he would be subjected to poverty or contagious disease due to poor living conditions in Vietnam.

7. On the basis of its findings of fact, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa, and so affirmed the decision of the delegate to refuse to grant the applicant a protection visa.

Consideration of the merits of the application

1. The amended application filed by the applicant contains three grounds. The first two grounds assert that the Tribunal failed to consider a claim made by the applicant. The third ground is that the Tribunal failed to “accord the Applicant a meaningful hearing”.

2. The claim the subject of the first ground arises out of the applicant’s previous addiction to drugs. The applicant says that the information concerning that addiction, gave rise to a claim that the applicant “may relapse into drug use in Vietnam due to the stress of a forced return” and that the Tribunal failed to consider whether treatment for addiction would be available in Vietnam. This claim is said to have arisen from the following matters:

   a)evidence showing that the applicant had suffered serious drug addiction including to heroin and had been treated with naltrexone for his addiction;

   b)evidence that the applicant has suffered an Adjustment Disorder and mental health issues, that he had been subject to serious trauma in terms of being a carer for a disabled child who then passed away, and that it was the trauma of his daughter’s death that caused his relapse into drug addiction;

   c)the applicant told the Tribunal that he felt that his “life will end” on any return to Vietnam and that fear was “eating up inside” him;

   d)the Tribunal knew that the applicant had a “history of criminal offending” which would be “disclosed to the Vietnamese authorities on a forced return and which would increase the Applicant’s adverse profile”.

3. The applicant also relies upon the fact that a similar claim was considered by the Tribunal differently constituted, in what the applicant said were “analogous circumstances”. I do not think that that is relevant to the merits of this claim. The fact that a different decision-maker considers a particular possibility when assessing the risk of harm in the future, has no impact whatsoever on the obligation of another decision-maker to do the same. That question must be determined by considering whether the claim was either made expressly by the applicant (which in this case it was not) or is apparent on the face of the material before the Tribunal and does not depend for its exposure on constructive or creative activity by the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) (2004) 144 FCR 1 at [58]; [2004] FCAFC 263.

4. While I agree with the applicant that, taken in isolation, the material relied upon by him in the particulars to this ground might suggest that the applicant could possibly relapse into drug addiction if he were to be returned to Vietnam, I do not think that this ground is reasonably arguable when regard is had to other material before the Tribunal.

5. First, even though the applicant gave evidence about his relapse into drug addiction after the death of his first child, he never mentioned it in connection with the stress that he might suffer upon return to Vietnam. Secondly, that possibility seems to be inconsistent with the evidence that the applicant gave at the hearing. When he was asked about his health by the Tribunal, the applicant explained that he was “pretty healthy” and that nothing was wrong with him. He said that he had Hepatitis C and if he kept himself “healthy, eating good, exercise, keep myself healthy” that it should not be a problem. Further, the Tribunal directly asked him whether he considers himself to be “drug-free” and the applicant said that he was.

6. The difficulty for the applicant is not simply in the fact that he did not raise this claim expressly. It is that, in order for the claim to have any prospects of succeeding, the Tribunal would have had to set to one side the applicant’s own evidence that he was now resolved of his drug issues. That means, in my view that the Tribunal would have to be creative in order to expose this claim. In those circumstances, I do not consider it reasonably arguable for the purposes of the present issue that the Tribunal was obliged to consider the claim.

7. The second claim that the applicant says the Tribunal ought to have considered was that his “mental health may deteriorate in Vietnam to the degree that he would be unable to subsist”. In this respect, the applicant also argues that the Tribunal ought to have considered whether treatment for the applicant’s addiction would be available in Vietnam.

8. This ground faces the same difficulties as the first ground faces. In addition, while there was some reference in the material before the Tribunal to the applicant having an adjustment disorder and having sought treatment for depression, there was simply nothing to suggest that similar treatment might not be available in Vietnam. For those reasons, I do not consider that it is reasonably arguable that the Tribunal was required to consider this claim.

9. The argument that the applicant was denied a meaningful hearing is based upon the following:

   a)the hearing of the claims by the Tribunal concluded in 73 minutes;

   b)the Tribunal was sitting in Adelaide, the applicant gave evidence by video link from Perth, the applicant’s witness and his representative were located in Sydney and attended by telephone, and the interpreter was in South Australia; and

   c)the Tribunal failed to consider the applicant’s “mental health issues and how this might affect his ability or capacity to participate in the hearing, particularly given the manner in which the hearing was held”.

10. None of these matters, separately or taken together, is capable of establishing, without more, that the hearing conducted by the Tribunal was not meaningful. The length of the hearing itself is not determinative, because it must be considered along with the other circumstances in the case, including the fact that the applicant did not give evidence through an interpreter.

11. The location of each of the participants in the hearing is also not determinative. While it is possible that video link and telephone communications can be less effective than face-to-face communication that is not necessarily the case and, once again, depends upon the precise circumstances in each case.

12. Similarly, the fact that the applicant had been diagnosed with a mental condition and may have suffered depression does not, of itself, mean that the applicant does not have a meaningful hearing as required by s.425 of the Act.

13. More must be shown in each case that the mere possibility that a single circumstance, or the combination of two or three circumstances, might have affected the opportunity given to the applicant to give evidence and present arguments in relation to the issues that arose in relation to the decision under review.

14. Further, the transcript of the hearing was in evidence and reveals that no complaint was made by the applicant, or his representative, about the way in which the hearing was conducted by the Tribunal. In particular, on a quick reading of the transcript it discloses that no evident difficulty arose because of the circumstances relied upon by the applicant, or at all.

1. For each of those reasons, I consider the third ground in the amended application has no reasonable prospects of success.

Conclusion

1. Taking all of the considerations referred to above into account, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the period under s.477(1) of the Act.

2. I refuse to make an order extending the period under s.477(1) of the Act and otherwise dismiss the application.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     18 August 2017