DJS17 v Minister for Immigration

[2017] FCCA 1851

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJS17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1851

MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether injunction should be granted to prevent applicant’s removal from Australia – whether there is a serious question to be tried - whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time –  whether balance of convenience favours applicant - injunction refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 477

Case Cited:
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: DJS17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2382 of 2017

Judgment of: Judge Emmett

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

Applicant appeared via telephone from Villawood Immigration Detention Centre with the assistance of a Korean interpreter

Solicitor for the Respondents: Mr Andrew Keevers

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2382 of 2017

DJS17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The application before this Court, filed at 12:47pm today – although it did not come to the attention of my chambers until after 6pm tonight – is an application seeking an extension of time to rely on grounds in a substantive application, for judicial review of a decision of the Administrative Appeals Tribunal, dated 24 April 2017.  However, the information before me is to the effect that the applicant is to be deported at 7.45am tomorrow morning, 27 July 2017. I am also informed that the applicant was informed of this removal on 25 July.

2. A Notice of Intention to Remove from Australia was tendered by the first respondent.  That document is dated 25 July 2017, and it attaches a notice in respect of removal deportation costs, and information about the applicant’s baggage limits.  Those documents together are marked Exhibit 1R.

3. In the circumstances, I accept that the applicant’s application before me tonight is for an injunction to prevent his removal from Australia tomorrow, at 7.45am.  In those circumstances, I accept the submissions of the solicitor for the first respondent, that the relevant issues for the Court to consider are whether there is a serious question to be tried, whether damages are adequate, and the balance of convenience. 

4. In considering whether there is a serious question to be tried, I have regard to the relevant principles in extending time to an applicant to seek judicial review of a Tribunal’s decision.  In the case before this court, the application is some 59 days out of time.

5. The applicant has identified his explanation for that delay, as that he asked for an extension of time because he can provide evidence of his claims.  He has some documents on contract that he had signed, back in his country, in Korea, and he had asked his family to collect them and send them.  That explanation is entirely inadequate and unsatisfactory.  It demonstrates a misunderstanding on the part of the applicant, as to the relevance of documents that were not before the Tribunal at the time that it made its decision.

6. The principles relevant to consideration of whether to grant or dismiss an application for an extension of time are well-established.  They include the length of the delay, the presence or absence of prejudice to the respondent, the explanation for the delay, and the merits of the proposed appeal. 

7. The substantive grounds relied upon by the applicant are identified in the application as follows:

   “1. In the AAT decision, on paragraph 19 the Tribunal acknowledge that there were inconsistency in written and oral statement because of the translator. The translator spoke little Korean and the applicant spoke little English. So they gave little weight on his statement and considered the applicant’s claims. The Tribunal didn’t gave him the chance to provide a proper written statement with a Korean translator.

   2. The Tribunal acknowledged the translating problem but still took decision on the wrongly translated statements.”

   (Errors in original)

8. The grounds of the application were interpreted for the applicant, and he was asked to say whatever he wished in relation to the issue of why the Tribunal’s decision was wrong.  I understood the submissions being made on behalf of the applicant, to be consistent with those identified in the grounds of his application, namely that the Tribunal had had regard to inconsistencies in between the applicant’s written statement and the oral evidence given to the Tribunal, and had based its decision on the wrongly translated written statements.

9. The grounds themselves misunderstand the reasons provided by the Tribunal.  The Tribunal noted that the applicant’s statement that the person assisting him in making his statement may not have written down accurately what he said and, therefore, the Tribunal determined to place little weight on inconsistencies between the applicant’s written statement and its oral evidence at hearing.  Unlike the allegation by the applicant, in the grounds that the Tribunal made its decision on the wrongly translated statements, a fair reading of the Tribunal’s decision record does not bear that out.

10. The Tribunal identified, with particularity, the applicant’s claims, and explored those claims with him at the hearing.  The Tribunal noted matters that it put to the applicant, and the applicant’s responses.  The Tribunal also put to the applicant, independent country information about the availability of state protection against harm from loan sharks or illegal moneylenders, that being the crux of the applicant’s claimed fear in Korea. 

11. In the findings and reasons section of its decision record the Tribunal again noted that it placed little weight on the differences in the applicant’s evidence between his written statement of 19 December 2016 and his evidence to the Tribunal.  However, the Tribunal found the applicant’s description of incidents of threats of harm that he claimed to have experienced, to be vague and found that he had embellished his claim to have moved four different locations within Korea, because loan sharks and moneylenders were after him.

12. The Tribunal noted the applicant’s claim, that if he was returned to South Korea, illegal moneylenders would harm him or kill him, because he had been unable to pay a substantial loan taken out by his father in 2007, using family registration papers to nominate the applicant as guarantor for the loan. The Tribunal accepted that it was possible the applicant had borrowed money himself, or had some kind of debt to moneylenders in South Korea, and that those moneylenders charged a high rate of interest and pursued him to repay the debt.  However, the Tribunal did not accept that the applicant was seriously harmed in Korea, and noted that he had not provided any supporting evidence, such as medical reports, of injury to that effect.

13. The Tribunal also noted the applicant told it that he was never hurt seriously, or so seriously that he could not work.  Further, he did not report the alleged assaults to the police or attempt to seek protection from the police or local authorities. 

14. The Tribunal also had regard to the applicant’s evidence, that he initially did not intend to stay in Australia permanently, but waited to see what would happen in Korea while he was away, before making a decision about when to return. The Tribunal had regard to the applicant’s request that he not be returned to South Korea until after November 2017, when he would be able to change his mobile phone business registration to a different location, suggesting that the applicant believed that he could safely relocate to another city or part of Korea.

15. The Tribunal noted that it put to the applicant that the Tribunal was satisfied that the South Korean government has legislation in place, which provides penalties for illegal moneylending and official corruption, and the government implemented the law effectively.  The Tribunal noted that the city of Seoul has a special law enforcing department to crack down efficiently on illegal lending, and assists victims of illegal lending.  The Tribunal found that, based on the information before it, it was satisfied that if the applicant genuinely feared serious harm from moneylenders, that it was both safe and reasonable for him to relocate to Seoul, where he could both avoid the harm he fears, and seek protection from the relevant authorities.

16. The Tribunal then concluded that it was not satisfied that there are substantial grounds that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk the applicant will suffer significant harm, and further concluded that the applicant did not meet either the refugee criterion in section 36(2)(a) or the complementary criterion in section 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and, accordingly, the Tribunal’s decision under review.

17. The Tribunal’s findings and conclusions would appear to be open to it on the evidence before it and on the reasons it gave.

18. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

19. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

20. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record, and none has been identified by the applicant. 

21. Section 477(2) of the Act allows the Court to extend time to an applicant, to bring an application for judicial review of a Tribunal’s decision, where the court is of the view that it is necessary, in the interests of justice, to do so. Having regard to the lack of prospects of the applicant, in demonstrating jurisdictional error in the Tribunal’s decision record, and the applicant’s totally unsatisfactory explanation for the 59 day delay in seeking judicial review of that decision record, in my view, an extension of time should not be granted to the applicant.

22. In those circumstances, there is no serious question to be tried.  Whilst I accept damages may not be adequate to address the detriment to the applicant, for the reasons above, the balance of convenience weighs in favour of the applicant being removed. Accordingly, to the extent that the applicant is seeking an injunction to prevent his removal tomorrow morning at 7:45am, that application is refused.

23. I should say, the applicant was unrepresented before the Court tonight, although had the assistance of a Korean interpreter provided by the Court. Both the Korean interpreter and the applicant had difficulty in communicating through the interpreter. The applicant then made a request that his roommate, who speaks English, be able to speak on his behalf.  The first respondent’s solicitor had no objection to that course and, accordingly, that roommate, whose name is Wanjang Kim, was invited to interpret for the applicant.

24. In the circumstances, I order the applicant pay the costs of the first responded, fixed in the amount of $600. I note that such sum is in accordance with the relevant costs schedule of this Court, and you have been unsuccessful, Mr. Applicant.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 7 August 2017