DJP16 v Minister for Immigration
[2017] FCCA 1343
•19 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJP16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1343 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for show cause application. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration v SZSNW [2014] FCAFC 145 MZZBM v Minister for Immigration & Anor [2013] FCCA 321 Re Commonwealth of Australia and Another; Ex parte Marks (2000) 177 ALR 491 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SBBA v Minister for Immigration [2003] FCAFC 90 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, (2013) 139 ALD 252 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 SZTSU v Minister for Immigration & Anor [2014] FCCA 1697 SZTZD v Minister for Immigration & Anor [2014] FCCA 2244 SZVZA v Minister for Immigration & Anor [2016] FCCA 1396 S58 of 2003 v Minister for Immigration [2004] FCA 451 Vu v Minister for Immigration [2008] FCAFC 59; (2008) 101 ALD 211 WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82 |
| Applicant: | DJP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3105 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
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 in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3105 of 2016
| DJP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 September 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The background facts related to the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of submissions filed on 8 June 2017.
The applicant is a female citizen of Pakistan[1] who claimed to fear harm because of her Christian religion, her association with the All Saints Church as an evangelist and because a “fatwa” was issued against her.[2]
[1] Court Book (CB) 73
[2] CB 28-30
The delegate refused to grant the visa application on 4 March 2015.[3] In doing so, the delegate referred to inconsistences in the applicant's evidence causing him to find that the applicant's claims were not credible.[4]
[3] CB 105
[4] CB 113
The applicant sought review by the Tribunal on 29 March 2015.[5] The applicant appeared before the Tribunal on 6 September 2016 with a friend “to provide moral support”.[6]
[5] CB125
[6] CB 141 and 163 at [3]
The Tribunal noted inconsistencies in the applicant's evidence regarding where she lived in Pakistan before coming to Australia.[7] In claims to the Minister’s Department the applicant stated that her pastor received and showed her threatening letters. In later evidence the applicant stated she received threatening letters.[8]
[7] CB 163 and 164 at [7]-[9]
[8] CB 164 at [11]
The Tribunal referred to the applicant's claim that she had been advised not to leave the house for her safety and she “took these words to heart” and never left the house; later the applicant stated that one day she was out shopping when she was accosted by a man with a knife.[9]
[9] CB 164 at [12]-[13]
The Tribunal put the inconsistencies in the evidence to the applicant at the hearing.[10] The Tribunal found that the applicant's responses did not explain the inconsistencies in her evidence. The Tribunal found the applicant's evidence at part of the hearing was completely improvised and the applicant was not able to explain what she meant.
[10] CB 168 at [35]
The Tribunal specifically noted concerns that the applicant claimed her outreach and secretarial work with the All Saints Church was the reason for the purported fatwa. The Tribunal did not accept that the applicant had been involved in the claimed secretarial work, which allegedly led to the fatwa.[11] The Tribunal was ultimately not satisfied the fatwa was ever issued.[12]
[11] CB 170 at [47]
[12] CB 170 at [47]
The Tribunal considered complementary protection and based on its previous findings, it was not satisfied that there was a real risk that the applicant would face significant harm if she were removed from Australia.[13]
[13] CB 172 at [60]-[67]
The present proceedings
These proceedings began with a show cause application filed on 11 November 2016. That application was filed 29 days after the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act) expired. It follows that the applicant requires and indeed seeks an extension of time for her application pursuant to s.477(2) of the Migration Act.
The grounds in the application are:
GROUND 1
1. As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the Tribunal') stated in paragraph 48, “I find her evidence about living and hiding in that period is not consistent, especially where she said in her original statement that she took to heart the advice to remain hidden indoors and in the next sentence talked about being out shopping for her daughter.” The Tribunal shows unreasonableness in its decision and assessing how about my living and hiding period is not consistent. I am consistent in my statement, the tribunal misunderstood my statement as I was hidden during that period however, I only go outside only in extreme circumstances in order to fulfil my daily needs.
GROUND 2
2. As part of the reason for rejecting the claim, the Tribunal stated in paragraph 53, “Because I find [the applicant] such as unreliable witness I give no weight to the photocopy documents she has provided in support of her claims about facing harm in Pakistan or to the various support letters from pastors and church elders.” The Tribunal again unreasonableness in its decision in this paragraph by saying me “such an unreliable witness” and not accepting photocopies of documents, if the tribunal has any doubt about documents than the tribunal can verify these documents through the Australian High Commission, without verification the tribunal cannot assume the these documents has no value and not give them any weight. I also would like to mention that the tribunal is very unreasonable by saying me such unreliable witness without proofing any inconsistency.
GROUND 3
3. I submit that the Tribunal committed jurisdictional error in its consideration of claims relating to complementary claims with s36(2)(a) claim. The Tribunal has conflated the findings in the Convention nexus and adopted it as complementary protection claim. I submit that the Tribunal did not address the issue of complementary protection but relied on the claims in relation to the Convention rather that satisfying whether I am at risk of significant harm for the reasons such as being from the minority sect who are otherwise accepted to be at risk of harm. The Tribunal committed jurisdictional error when conflated the issues relating to complementary claims with s 36(2)(a) claim. The Tribunal failed to take into account all personal circumstances and erred in the application of “real risk” test.
The Tribunal failed to address whether I was in need of complementary protection and addresses the matters required by the sections relating to complementary protection. The Tribunal simply conflated its findings in respect of the applicant's protection visa claim.
The Tribunal is to assess other risks such as localised risks were taken into account and failed to assess relation to whole of Pakistan.
I submit that 'significant harm' for these purposes is defined in s36(2A), s5(l). A person will suffer significant harm if he or she will arbitrarily deprived of their life; or death penalty will be carried out on the person; or person will be subject to torture; or to cruel or inhumane treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhumane treatment or punishment', 'degrading treatment or punishment', 'torture', are further defined in s5(l) of the Act.
4. I strongly believe that I am a Refugee according to Convention. I have well-founded fear of being persecuted for Convention related reasons.
5. I strongly submit that I do not agree with the decision of the Tribunal. I strongly believe that if I go back to Pakistan under these circumstances, I will be killed.
6. I kindly request the Honourable Court to kindly set aside the AAT' s decision of dated 8 September 2016.
The application is supported by an affidavit filed with it. I received the affidavit in part as evidence and in part as a submission. Two medical documents are attached to the affidavit which I received, subject to relevance. It transpired during the course of oral argument that those certificates have some bearing on the assessment of the application for an extension of time and should, therefore, be received.
I also have before me as evidence, the court book filed on 18 April 2017. The applicant denied receipt of the court book, but did not object to its receipt in evidence. Exhibit R1 is a letter sent to the applicant at her nominated address for service and by email dated 8 June 2017. The letter provided the Minister’s outline of submissions and reminded the applicant of the need to attend court today. The applicant denied receipt of that letter and denied having seen previously the Minister’s submissions. The solicitor for the Minister presented her submissions in advance of the applicant being called upon.
The applicant failed to attend court when the matter was called at 2.15pm today. In addition, an attempt to contact her on her nominated mobile telephone number was unsuccessful. I dismissed the application with costs, but shortly after having done so, the applicant appeared. I thereupon vacated those orders and the hearing proceeded on the question of an extension of time.
I invited oral submissions from the applicant on the extension of the time issue. She referred to her fears of returning to Pakistan and in particular, her fears arising as a result of the bombing of her church in Pakistan. Those fears appear genuine. The applicant said that she forgets things and in relation to the legal proceedings, she has acted on the advice of the Salvation Army.
The principles concerning the grant or refusal of an extension of time are well known and are addressed by the Minister in his submissions. Those submissions were put to the applicant orally by the Minister’s solicitor and she has provided no effective response to them. I agree with the Minister’s submissions.
The factors that bear on the question of whether leave to extend time should be granted are well-established, and include consideration of the length of delay in lodging the application, the reasons for the delay, any prejudice to the other parties, and the prospects of success if leave was granted.[14]
[14] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, [46]-[48]; (2013) 139 ALD 252; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
The Tribunal's decision is dated 8 September 2016 and the application to this Court was filed on 11 November 2016. Accordingly, the last day any application could have been filed was 13 October 2016. Therefore, the application filed on 11 November 2016 is 29 days out of time.
1. I was in depression and unable to think and concentrate after refusal of my review application from Administrative Appeal Tribunal ("AAT"), I was on medication for depression and suffering from short term memory loss.
2. I was so stressed because of my financial situation and therefore unable to seek legal advice regarding further appeal to the Federal Circuit Court ("FCC") from AAT.
3. I would like to request the Honourable Court to grant me extension under compelling and compassionate circumstances.
4. I would like request the Court to grant me extension in interests of the administration of justice because my claim for protection has reasonable prospects of success and the decision of the tribunal has jurisdictional error.
In support of those grounds, the applicant relies on an affidavit affirmed 10 November 2016, which annexes a medical certificate and a letter of support from a psychologist.
The medical certificate is dated two years prior to the Tribunal decision and the letter of support from a psychologist is addressed to the Tribunal. Neither of these documents sufficiently explains the applicant's delay in filing her judicial review application.
The applicant applied for Ministerial intervention on 18 October 2016, following the Tribunal's decision.[15] As the applicant was able to apply for Ministerial intervention, her health should not have been a hindrance in her application for judicial review.
[15] CB 175
Further, it is generally accepted that seeking Ministerial intervention is not a satisfactory explanation for failing to lodge judicial review proceedings, but is indicative of a conscious choice to challenge an adverse Tribunal decision by alternative means.[16]
[16] see, for example, S58 of 2003 v Minister for Immigration [2004] FCA 451; Vu v Minister for Immigration [2008] FCAFC 59; (2008) 101 ALD 211
To the extent the applicant relies on a lack of funds as contributing to the delay in commencing proceedings, it is well established that this is not an acceptable reason in and of itself.[17] The applicant has not explained what, if any, steps she took to obtain funds, nor approach the Court for information about the availability of a fee waiver.[18]
[17] see MZZBM v Minister for Immigration & Anor [2013] FCCA 321 at [27]; SZTSU v Minister for Immigration & Anor [2014] FCCA 1697 at [23]-[24]; SZTDM v Minister for Immigration & Anor (No 2) [2013] FCCA 2060 at [12]
[18] see SZTDM (supra)
Further, a failure to obtain favourable legal advice should not be considered a ground for extending time.[19] While there is apparently no prejudice to the Minister if an extension of time were granted, extensions have not been granted in similar circumstances where the merits of the substantive applications meant that it was not in the interests of the administration of justice to extend time.[20]
[19] see Re Commonwealth of Australia and Another; Ex parte Marks (2000) 177 ALR 491
[20] SZVZA v Minister for Immigration & Anor [2016] FCCA 1396 and SZTZD v Minister for Immigration & Anor [2014] FCCA 2244
In short, the applicant is unable to offer a persuasive explanation for her delay in coming to court.
For that reason, an extension of time should be refused unless the proposed application raises a legal issue of sufficient force as to overcome that difficulty. On the contrary, however, the grounds in the application appear doomed to fail. Those grounds are addressed in the Minister’s submissions. I agree with those submissions save that I do not agree with the unqualified proposition that legal unreasonableness is not available as a ground of review in relation to non-discretionary fact-finding.[21]
[21] See Minister for Immigration v SZSNW [2014] FCAFC 145 and SZSFS v Minister for Immigration [2015] FCA 534 at [30].
Ground 1
Ground 1 is an attempt to engage the Court in impermissible merits review. Further, an issue on review would be that the finding challenged by the applicant is not in relation to the Tribunal's exercise of discretion.
In any event the Tribunal's credibility finding was open to it on the evidence before it and does not disclose any error.[22]
[22] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423
Ground 2
With respect to Ground 2, the finding challenged by the applicant is again not in relation to the Tribunal's exercise of discretion. In any event, the weight and cogency of evidence is a matter for the Tribunal.[23]
[23] SBBA v Minister for Immigration [2003] FCAFC 90 at [15]
Insofar as the applicant claims the Tribunal failed to make an inquiry, it is well established that a Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence.[24] The Tribunal's credibility finding was open to it on the evidence before it and does not disclose any error.[25]
[24] Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] per Keane CJ
[25] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423
Ground 3
With respect to Ground 3, the Tribunal correctly set out the complementary protection criterion, from [60] of its reasons, and having rejected the factual basis of the applicant's claims to fear harm, the Tribunal was not satisfied that as a necessary and foreseeable consequence of being removed from Australia to Pakistan, that there was a real risk the applicant would suffer significant harm.
Findings with respect to the complementary protection criterion may be informed by previous findings of fact provided they are not tied to Refugees Convention concepts.[26]
[26] WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82 at [46], citing SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32] - [35]
I conclude that the application for an extension of time should be refused pursuant to s.477(2) of the Migration Act and I so order.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refuse to make a costs order.
I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 June 2017
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