Din17 v Minister for Immigration
[2018] FCCA 1707
•28 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1707 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 65, 411, 415, 477 |
| Cases cited: AAJ17 v Minister for Immigration & Anor [2017] FCCA 2297 ACB17 v Minister for Immigration & Anor [2017] FCCA 1880 BHL16 v Minister for Immigration & Anor [2017] FCCA 1958 BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782 |
| Applicant: | DIN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2343 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2343 of 2017
| DIN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 15 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s legal submissions, filed on 20 June 2018.
The applicant, a female citizen of Malaysia, arrived in Australia on 10 April 2016 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa.[1]
[1] Court Book (CB) 25, 45
On 26 August 2016 the applicant applied for a protection visa.[2] The applicant claimed that:
a)she was well educated and aspired to visit Australia to explore “promising career opportunities”;[3]
b)she needed money to repay the bank loans she had taken out to pay for her education and was most worried about her name being blacklisted by the bank;[4]
c)she was with her younger sister and they decided to “migrate to Australia to get out of the tangle of economic life”;[5]
d)she did “not want to continue living in the shackles of bank debt, call and letters warning of bank”;[6] and
e)her steps were being tracked in order to settle the debt and this was very stressful and annoying, and consequently affecting her life and privacy.[7]
[2] CB 1–48
[3] CB 36
[4] CB 36
[5] CB 36
[6] CB 36
[7] CB 37
On 20 January 2017 the delegate refused to grant the applicant a protection visa.[8] The delegate acknowledged that, while the applicant may not want to return to Malaysia because of her poor financial situation, this did not amount to significant harm.[9] The delegate further noted that the applicant's claims were identical to those of her sister,[10] and was not satisfied that the applicant was owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[11]
[8] CB 49–57
[9] CB 57
[10] CB 57
[11] CB 56–57
On 23 January 2017 the applicant lodged electronically an application for review of the delegate's decision with the Tribunal, attaching a copy of the delegate's decision.[12] The applicant provided an email address and a street address.[13]
[12] CB 58–59
[13] CB 59
On 12 May 2017 the Tribunal sent the applicant an invitation to attend a hearing, scheduled for 14 June 2017.[14] The Tribunal sent this invitation to the applicant's email address.[15]
[14] CB 68–77
[15] CB 68
On 10 June 2017 the applicant responded by way of email to the Tribunal's hearing invitation and apologised for the delay in responding to the invitation, and further confirmed that she would be attending the scheduled hearing.[16]
[16] CB 78
On 14 June 2017 the applicant appeared at a hearing before the Tribunal, with the assistance of a Malay interpreter, to give evidence and present arguments relating to the issues in her case.[17]
[17] CB 79–82
On 16 June 2017 the Tribunal notified the applicant of its decision, dated 15 June 2017, affirming the decision not to grant the applicant a protection visa.[18] The Tribunal's decision record was sent to the applicant's email address.[19]
[18] CB 83–96
[19] CB 83
Tribunal decision
The Tribunal referred to the summary of claims and information provided by the applicant in her protection visa application,[20] and its discussions with the applicant at the hearing before it.[21]
[20] At [9], CB 89
[21] At [14]–[21], CB 90–91
The Tribunal found that the applicant had given her evidence in an honest and forthright manner, and that she was a credible witness.[22] The Tribunal accepted that the applicant had accumulated debt through a government student loan and was unable to maintain the required repayments, that debt collection proceedings were commenced, and that the applicant had come to Australia because of her financial difficulties.[23]
[22] At [23], CB 91
[23] At [24], CB 91–92
The Tribunal referred to the applicant having claimed that she felt her lack of opportunity to settle her debt amounted to significant harm for the purposes of meeting complementary protection criterion, however, ultimately found that this claim did not appear to fit the definition of serious harm.[24] For these reasons, and in light of country information,[25] the Tribunal was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Migration Act.[26] For the same reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion.[27]
[24] At [21], CB 91
[25] At [22], CB 91
[26] At [26], CB 92
[27] At [27]–[29], CB 92
The current proceedings
These proceedings began with a show cause application, filed on 25 July 2017. The applicant continues to rely upon that application.
The application was filed five days outside the time prescribed in s.477(1) of the Migration Act. The applicant seeks an extension of time under s.477(2). The applicant explains that although the Tribunal decision was sent to her by email on the day it was made, she had internet problems, and was out of work.
Given the short delay, and the applicant’s plausible explanation for that delay, I would have granted an extension of time if there was any legal merit in the application. Regrettably for her, there is no legal merit in it. The applicant herself conceded, in oral submissions, that the Tribunal decision is free from any legal mistake. The simple fact is that the applicant is an honest woman with money problems in Malaysia. The Tribunal accepted that, but found, as was open to it, that she could not satisfy the criteria for a protection visa.
I agree with the Minister’s submissions concerning the grounds in the proposed application.
Ground 1
The first ground contends that the Tribunal failed to apply the correct test under s.36(2A) of the Migration Act and “construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her return to Malaysia”. This is a template ground which has been raised in numerous other matters.[28]
[28] See for example AAJ17 v Minister for Immigration & Anor [2017] FCCA 2297; BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782; ACB17 v Minister for Immigration & Anor [2017] FCCA 1880; BHL16 v Minister for Immigration & Anor [2017] FCCA 1958
The Tribunal set out and applied the correct test and made findings that were open to it on the evidence before it.[29]
[29] At [3]–[7], [25]–[26], [27]–[29]
The Tribunal found that the applicant had given her evidence in an honest and forthright manner, and that she was a credible witness,[30] and accepted the applicant's claims that the applicant had accumulated debt through a government student loan and was unable to subsequently maintain the required repayments, that debt collection proceedings were commenced, and that the applicant had come to Australia because of her financial difficulties.[31]
[30] At [23], CB 91
[31] At [24], CB 91–92
The Tribunal correctly applied the test in considering whether the applicant satisfied the criteria under s.36(2)(a) and (aa) of the Migration Act, and this ground is without merit.
Ground 2
The second ground contends that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act. This ground is without substance and does not raise an arguable jurisdictional error. Further, this ground is also a template ground.[32]
[32] See for example BLH16; ACB17
The Tribunal was statutorily required to refuse to grant the applicant's protection visa application because it was not satisfied that the applicant met the prescribed criteria for the grant of the visa.[33] The Minister further submits that the Tribunal's conclusions that the prescribed criteria, s.36(2)(a) and (aa), were not met were reasonably open to it on the material before it and for the reasons it gave. The Tribunal had jurisdiction to review the delegate's decision, being a Part 7-reviewable decision under s.411 of the Migration Act, and reached a decision that was open to it in law. This ground would fail.
[33] Section 65(1) and s.415 of the Migration Act
Conclusion
In view of the lack of legal merit in the application, I refuse the extension of time, pursuant to s.477(2) of the Migration Act. The consequence is that the application is incompetent, for lack of jurisdiction.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs, in accordance with the Court scale as it applied when the application was filed. The applicant doubted her capacity to pay in the short term, but she did not oppose an order for costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 4 July 2018
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