DKW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1364
•6 August 2019
FEDERAL COURT OF AUSTRALIA
DKW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1364
Appeal from: Application for extension of time: DKW16 v Minister for Immigration [2019] FCCA 334 File number: NSD 511 of 2019 Judge: RARES J Date of judgment: 6 August 2019 Legislation: Migration Act 1958 (Cth) ss 424, 424A Cases cited: Jackamarra v Krakouer (1998) 195 CLR 516
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 6 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Solicitor for the Respondents: Ms S Given of HWL Ebsworth Lawyers ORDERS
NSD 511 of 2019 BETWEEN: DKW16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
6 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs.
3.The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
This is an application for an extension of time of 27 days for the applicant to file a notice of appeal against the decision of the Federal Circuit Court refusing him Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 17 October 2016 that affirmed the Minister’s delegate’s decision not to grant the applicant a protection visa: DKW16 v Minister for Immigration [2019] FCCA 334.
Background
The applicant was represented by a solicitor at the hearing before the Federal Circuit Court which reserved its decision. In his affidavit of 4 April 2019 the applicant said that he could no longer retain his solicitor after that hearing before the trial judge, because he could not afford further fees. He sought the extension of time on the basis that he believed his appeal had some merit. He included a draft notice of appeal. It essentially raised two grounds that, in substance, had been argued before the trial judge.
The applicant is a citizen of Fiji who claimed protection on a number of bases, only two of which are in issue on this application and are the subject of each respective proposed ground. The grounds are that his Honour erred in finding that the Tribunal:
·had not been required to make inquiries under s 424 of the Migration Act 1958 (Cth) in relation to a letter from Jeremaia Soko (the Soko letter) that the applicant provided to confirm his claims of his friendship with Mr Soko’s deceased son, Vilikesa, and the son’s subsequent arrest and torture by the Fijian Police and military authorities, leading to the son’s death in 2014;
·had not made a jurisdictional error about the nature of the amnesty that the applicant’s uncle had been given in respect of his role during the 2006 coup in Fiji causing the Tribunal to misapprehend the nature of the threat of harm to the applicant in circumstances where, he contended, his uncle, in fact, had not been given amnesty at all.
The first ground is, substantively, an amalgam of grounds 4 and 5 before the trial judge. They arose out of the applicant’s claims that he and his best friend, Vilikesa Soko, had been arrested and accused of robbery in Suva in 2010 or 2011, that he (the applicant) had also been accused of stealing a mobile telephone in October 2013, shortly before he came to Australia, and that his name was on police records so that authorities would know to look for or detain him when he returned to Fiji. He claimed to fear being threatened and treated in a like manner to that causing the death of Vilikesa Soko. According to country information from the Department of Foreign Affairs and Trade (DFAT) that the Tribunal accepted, Vilikesa Soko died as a result of being beaten while detained at a police station on suspicion of involvement in an armed robbery.
The second ground was, essentially, an amalgam of grounds 2 and 3 before the trial judge. The applicant had claimed before the Tribunal that his uncle had been “involved” in the 2006 coup, in the sense that he had opposed the coup. The applicant claimed to fear that he would be mistreated by reason of his uncle’s stance, the fact that the applicant’s name was now on a black list, and that he and his family had been the subject of adverse treatment in the years following the coup, including being prevented from receiving scholarships and being subjected to regular undeserved attention from police. His uncle subsequently left Fiji for South Africa before arriving in Australia, where he passed away in 2012.
Principles
An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
The Tribunal’s decision
The Tribunal did not accept that the applicant had a well-founded fear of being persecuted on account of his uncle or of threats from the military, having regard to the fact the Tribunal hearing was six years after the last coup. It found that there was no evidence that the applicant’s education had been restricted because of his uncle and, indeed, found that he had progressed through his high school years to attend one year of university, ceasing study because he could no longer support himself financially and had not sought government assistance. At the Tribunal hearing, he said that he was not worried about getting a scholarship, and never relied on the government.
The Tribunal accepted that, following the 2006 coup, the uncle had been detained and released after one week, but it also had regard to DFAT information about the then current situation in Fiji. It concluded that the likelihood of any individual being subjected to cruel, inhuman or degrading punishment was low, and accepted DFAT’s assessment that someone who was seen to have embarrassed the government or the security services would have a higher risk profile. However, it found that the applicant was not a high-profile public figure, and was not satisfied that he had a well-founded fear of being persecuted as a result of the general civil and political situation in Fiji.
The Tribunal dealt next with the applicant’s claims to fear harm at the hands of the police. It did not accept his evidence that he had been harassed during a period when he lived at his father’s home between 2010 and 2012, and did not accept that he had been accused of stealing a mobile telephone in October 2013.
After the hearing in the Tribunal, it wrote to the applicant under s 424A of the Act and invited him to comment, in writing, on particulars of adverse information in its letter. In his response, the applicant included the Soko letter. The Soko letter included the writer’s Fijian address. The Soko letter stated that Jeremaia Soko had known the applicant since his childhood as a close friend of his late son who had died in the hands of the police and military in 2014. He wrote that he did not wish any other father to endure the pain and loss he had and implored that the applicant be given protection in light of the current turbulent political situation in Fiji.
The Tribunal did not accept that the applicant was best friends with Vilikesa Soko. It found that the applicant had not mentioned that friendship in his application for protection or during his interview with the delegate. It did not accept, particularly in light of the claims he had advanced concerning his uncle, his explanation that he had been told only to discuss his own circumstances with the delegate and not anything to do with his friend. The Tribunal placed little weight on the Soko letter, saying:
[G]iven its vague content relating to the circumstances of Vilikesa’s death and that it was recently obtained. While his telephone number is listed on his statement, the Tribunal has decided not to contact him, given that his identity could not be established over the telephone. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of being accused of stealing a mobile telephone. (emphasis added)
The Tribunal also did not accept that the applicant had been detained and accused of theft in 2010 to 2012 while living in his father’s house. It was, therefore, not satisfied that the applicant’s name was on any police records or that he would be threatened by the police were he to return to Fiji.
The trial judge’s reasons
The trial judge considered the argument put by the applicant’s solicitor in respect of the first ground based on Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, namely:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. [See authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391at [189], footnote 214]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (emphasis added)
The trial judge reasoned that there was nothing in the Soko letter that advanced the applicant’s case beyond establishing that the police and military in Fiji could be brutal and, by analogy, could be so again with the applicant were he to be returned to that country. He found that, apart from asserting the friendship between his son and the applicant, Jeremaia Soko did not give the Tribunal any details in his letter about the applicant’s actual circumstances.
His Honour made a curious observation that does not sit easily with the DFAT report that the Tribunal summarised that specifically referred to Vilikesa Soko, saying that:
[A]lso important is that the applicant was unable to show how the information about the details of police brutality to Jeremaia Soko’s son, could be easily ascertained.
He found that, as the Tribunal had recognised, simply contacting the apparent author of the Soko letter using the information in that letter would not establish that that person was, in fact, who he claimed to be.
His Honour also rejected the contention in ground 5 in the court below, which is related to the first ground of the proposed appeal, that the Tribunal’s decision not to further inquire into the subject matter of the Soko letter was irrational or unreasonable. His Honour said a conclusion of irrationality or unreasonableness is not made out simply because an applicant does not agree with the Tribunal’s findings.
Consideration
In his submissions to me today, the applicant claimed that there was a real risk that if he came into police custody in Fiji, he would be beaten just as his claimed friend had been. He claimed that the purpose of the letter was to demonstrate the risk to his safety and personal security, were he to be returned to Fiji. He also claimed that the police would arrest him arbitrarily or without reason and, in those situations, he would be at risk. The applicant accepted that there may be problems in being sure that one was contacting Jeremaia Soko merely by using the contact details in the Soko letter without corroborating that he, in fact, was its author. The applicant suggested that it would be possible, for example, to check with the Fiji Government about where the person who claimed to be the author of the letter was or to speak with that person on a telephone call or a Skype call or having other visual communication with him.
In my opinion, although his Honour erred in asserting that it could not be shown how information about details of police brutality to Vilikesa Soko could be easily ascertained, at the end of the day, his conclusion is unexceptionable that the Tribunal had not made a jurisdictional error in its decision not to contact the author of the letter because of the uncertainty of that person’s actual identity and the results of any such attempt.
In the circumstances, the Tribunal had no duty to enquire of the author of the letter: SZIAI 259 ALR at 436 [25]. Accordingly, the first proposed ground of appeal has no real prospect of success.
The applicant also claimed that he was at risk because of his uncle’s opposition to the coup. In argument before the trial judge, the applicant’s solicitor had contended that the Tribunal had misapprehended the nature of the amnesty granted in the 2013 Fijian Constitution which, the applicant claimed, was only for the benefit of persons who supported the coup and not those who were opposed to it.
The trial judge noted that the applicant had used the word “involvement”, when making his claims, to describe his uncle’s role in the coup, and that word corresponded to the way in which the Tribunal dealt with the matter. He found that, on a fair reading of the whole of the Tribunal’s decision record, it had not misunderstood the applicant’s claims or failed to consider them, because there was nothing before the Tribunal to suggest that the amnesty had been restricted only to supporters of the coup or military personnel, as the applicant sought to contend before the trial judge. The trial judge rejected the argument that the Tribunal’s use of the word “involvement” indicated that it had misunderstood his claim or should have understood that the amnesty in the Constitution only protected the supporters of the 2006 coup, not its opponents. In fact, the Tribunal found that the amnesty did protect the opponents, and therefore dismissed that argument.
His Honour also found that, when fairly read, the Tribunal had taken the view that the significance of any visit by the military to the applicant’s house in 2010 now had to be considered in light of the subsequent events and the passage of time, with the changing political and constitutional situation in Fiji. He found that the Tribunal had held that, as at the time of its decision, the situation in Fiji did not support a finding that the applicant was at risk of serious or significant harm on any basis claimed including the applicant’s family association with his uncle. I agree with his Honour’s reasons.
Conclusion
I am not able to see any error in the trial judge’s reasons (other than the immaterial one that I have identified) or in the Tribunal’s decision that would suggest that the applicant has a case with any prospect of succeeding on either of the two proposed grounds he seeks to raise. In those circumstances, there would be no purpose in granting the applicant an extension of time. The application must be dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 27 August 2019
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