DKT18 v Minister for Immigration

[2019] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKT18 v Minister for Immigration & Anor [2019] FCCA 2485    

File number(s):

SYG 1832 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

4 September 2019

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Protection visa – whether to grant leave for the  extension of time to file the application – leave not granted – whether the Tribunal failed to consider relevant facts – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

 Migration Act 1958 (Cth) ss 425A, 426A, 441A

Migration Regulations 1994 (Cth) reg 4.35D

Cases cited:

SZQCZ v the Minister for Immigration and Citizenship (2012) FCA 91

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

SZTES v the Minister for Immigration and Border Protection (2015) FCA 719

Number of paragraphs:

15

Date of last submission/s:

4 September 2019

Date of hearing:

4 September 2019

Place:

Sydney

Solicitor for the Applicant:

The Applicant appeared in person.

ORDERS

SYG 1832 of 2018

BETWEEN:

DKT18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	4 SEPTEMBER 2019

THE COURT ORDERS THAT:

(1)The extension of time for an application to this Court is refused, and the application is dismissed.

(2)The Applicant pay the First Respondent’s costs fixed in the amount of $3667.00.

REASONS FOR JUDGMENT
(As revised from the Transcript)

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Malaysia.  The applicant lawfully departed Malaysia and arrived in Australia on a Visitor’s visa on 17 September 2016. The applicant applied for a Protection visa on 6 December 2016.  The applicant claimed to fear harm in Malaysia for reason of his Chinese ethnicity.  A delegate of the Minister for Home Affairs (“the delegate”) refused the visa application on 20 March 2017.  The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). 

2. By letter dated 15 August 2017 sent to the applicant’s nominated email address, which, from a perusal of the case book, appears to be his personal email address, the applicant was invited to attend a hearing at the Tribunal on 13 September 2017. The applicant did not appear. Nor did the applicant respond to the hearing invitation letter which was sent to him. No legal representative or other representative appeared on his behalf. Pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal determined to finalise the matter without taking any further action to enable the applicant to appear before it. 

3. The Tribunal rejected the claim that the applicant would suffer a real risk of harm if returned to Malaysia or that he met the complementary protection requirements. The Tribunal refused the application and affirmed the decision of the delegate that was under review.  That refusal was advised to the applicant by email, again to his stated email address, on 14 September 2017.  A letter accompanying the Tribunal’s decision included clear advice as to the 35-day time limit for the lodgement of an application for judicial review by this Court.  The application to this Court for judicial review was filed on 2 July 2018, some 257 days outside the 35-day time limit. 

   SHOULD AN EXTENSION OF TIME TO BE GRANTED

4. The following was articulated as the grounds that would justify an extension to the time limit for filing an application in this Court:

   Ground one

   My former lawyer did not inform me of the AAT hearing.  Therefore, I did not attend. Neither did my former lawyer inform me of the Administrative Appeals Tribunal decision.  I missed the hearing as scheduled, the timeframe for appeal in the Federal Circuit Court.

5. Foster J set out three relevant criteria to be considered in any extension of time application in this Court in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at paragraphs [46] to [47]. These are as follows: first whether or not there has been a reasonable and adequate explanation for the applicant’s delay.

6. In the Court’s view, there has been no such explanation.  No evidence has been filed in support of the application.  The Court is reasonably satisfied that all correspondence was forwarded directly to the applicant via his nominated email address.  The Court rejects the applicant’s assertion that he was unaware of the time and date of the Tribunal hearing, that he was unaware of the Tribunal decision and the timeframe for the lodgement of an application for judicial review with this Court. 

7. There is no evidence anywhere within the material before the Court of the involvement of a lawyer.  It is therefore difficult to accept the assertion that the reason for the delay was as a result of the default of an unnamed lawyer. 

8. The second criteria outlined by Foster J is whether or not there has been any prejudice to the first respondent.  Quite properly, it is conceded on behalf of first respondent that there is no prejudice. However, it is noted that the lack of prejudice alone does not warrant the granting of an extension of time; (see; SZQCZ v the Minister for Immigration and Citizenship (2012) FCA 91, at [19]).

9. The last consideration is whether the applicant’s case is sufficiently arguable to warrant an extension of time: (see; SZTES v the Minister for Immigration and Border Protection (2015) FCA 719, at [48]).

10. The applicant appeared before the Court today unrepresented but with the assistance of an Interpreter.  In Court, the applicant renewed the submission that the fault with the delay lay at the hands of a former lawyer.  The substantive grounds of appeal are as follows:

    Ground one

    The Tribunal made jurisdictional error when making its decision to dismiss my application.

    Ground two

    The Tribunal ignored the fact of a serious harm I would suffer from a Muslim group should I return to Malay.

    Ground three

    The Tribunal observed my claims were substantially lacking in detail in significant respects.  However, the Tribunal made jurisdictional error of ignoring the facts of material that I have presented to the Tribunal, specifically the information and documentation of the torture I have been through then when I was in my home town. 

11. Ground one cannot be made out. The Tribunal properly exercised its power to make a decision under s 426A of the Act without further action for the applicant to attend, given that it had extended to the applicant a written invitation to attend for a hearing. All procedural requirements under s 425(A)(1), s 441A(5)(b), s 425A(4) of the Act, and reg 4.35D(3)(b)(i) of the Migration Regulations 1994 (Cth) were complied with. There is no jurisdictional error by the Tribunal proceeding in the way that it did, given that the applicant failed to appear.

12. Grounds two and three assert that the Tribunal made jurisdictional error in ignoring the claims that the applicant would be at serious risk of harm from a Muslim group if he returned and did not take account of the torture that he had been through in his home town.  These claims were never before the Tribunal and have only been agitated in this Court.  The applicant’s personal statement of 8 November 2016 makes no reference to a Muslim group or torture. 

13. The applicant’s sole claim was based on his Chinese ethnicity:  (see; case book 67).  These new claims are not matters that the Court can take into account, as they were not before the Tribunal.  The Court is reasonably satisfied that the Tribunal did consider his claims based on the information that was before it.  This ground has no substance and cannot be sustained.

14. The Court has considered the decision of the Tribunal in some detail and is satisfied that there is no other ground of jurisdictional error which has not been agitated before this Court or is apparent from the decision record.

    CONCLUSION

15. Accordingly the application is dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       4 September 2019