DNH17 v Minister for Immigration & Anor
[2017] FCCA 2630
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNH17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2630 |
| MIGRATION – Decision by Administrative Appeals Tribunal. PRACTICE & PROCEDURE – 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 – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.417, 477 |
| Cases Cited: DNF17 v Minister for Immigration & Anor [2017] FCCA 2626 DNG17 v Minister for Immigration & Anor [2017] FCCA 2628 DNH17 v Minister for Immigration & Anor [2017] FCCA 2630 Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 SZNYE v Minister for immigration and Citizenship [2010] FCA 500 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 |
| Applicant: | DNH17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2486 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| Applicant appeared in person with an interpreter |
| Solicitor for the Respondents: | Mr Liam Dennis MinterEllison |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2486 of 2017
| DNH17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 21 November 2013.
The applicant is the son of the two applicants in proceeding DKX17 & Anor v Minister for Immigration & Anor [2017] FCCA 2627 (“DKX17”). The applicant is also the brother of the applicants in each of the proceedings DNG17 v Minister for Immigration & Anor [2017] FCCA 2628 (“DNG17”) and DNH17 v Minister for Immigration & Anor [2017] FCCA 2630 (“DNH17”). All of the applicants have made independent claims and have been the subject of individual decisions by the Tribunal, refusing them protection visas. The applicants in all the family’s proceedings are referred to collectively as The Applicants. The Applicants have all filed applications for judicial review of the Tribunal’s decisions in this Court.
The background of the matter, the applicant’s claims, and a summary of the Tribunal’s decision record are accurately summarised in paragraphs 3 to 13 of the first respondent’s submissions as follows:
“FACTUAL BACKGROUND
3. The applicant is a citizen of Fiji who arrived in Australia on 14 January 2006 as the holder of a Temporary Business Entry (Class UC) visa which was granted on the basis that he was a dependent of his father (CB 138). The applicant made an application for a protection visa which was received on 2 July 2012 (CB 1). That application was a combined application including the applicant's parents and sisters but he subsequently made a separate application for protection visa on 22 February 2013 (CB 107). On 28 March 2013, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a protection visa (CB 137).
4. The applicant sought review of the delegate's decision before the Refugee Review Tribunal (the Tribunal) by application dated 18 April 2013 (CB 155). The applicant appeared at a hearing before the Tribunal on 10 September 2013. The Tribunal made its decision on 21 November 2013, affirming the decision not to grant the applicant a protection visa (CB 187).
5. In accordance with the Tribunal's recommendation the matter was referred for Ministerial Intervention (CB 196: [70]; CB 201). By letter dated 13 July 2017, the applicant was notified that the Minister had decided that it would not be in the public interest to intervene (CB 208).
C THE APPLICANT'S CLAIMS
6. The applicant claimed to fear harm at the hands of indigenous Fijians on the basis of his Indian race and Hindu religion. The applicant also claimed to have nowhere to live and no source of income.
7. In support of those claims, the applicant recounted that his family lived on a farm which was leased from indigenous Fijians and his family had been victims of robbery, vandalism, assault, and harassment. In 2008, the family's lease on the farm expired after the applicant's father refused to pay a bribe and the lease was not renewed. Their family home was destroyed in flooding and they have nothing to go back to. On one occasion, indigenous Fijians assaulted the applicant and planned to set him on fire but he was able to escape.
D TRIBUNAL DECISION
8. The Tribunal accepted much of the applicant's account but rejected his claims because they did not give rise to a real chance of serious harm or a real risk of significant harm. The Tribunal found that the applicant and his family's evidence was consistent and credible (CB 190: [32]). The Tribunal accepted that the applicant and members of his family had been harassed and seriously assaulted. While the Tribunal noted the applicant's claim that he was targeted because of his Hindu religion, the Tribunal found that their motives related to his Indian race and their desire for his family's land (CB 191: [34], [36]).
9. While the Tribunal accepted the applicant had a subjective fear of harm (CB 191: [35]), the Tribunal found that the fear was not well-founded for the following reasons (CB 192: [41]):
(a) he would not return to Sabeto (CB 191: [37]);
(b) the landowners have already retaken his family's land (CB 191: [38]);
(c) country information suggests that the situation for Fijian Indians has improved (CB 191–192: [39]); and
(d) he was able to visit Fiji without incident (CB 192: [40]).
10. Having regard to country information, the Tribunal concluded the applicant would not face harm on account of his race (CB 193: [49]–[50]). Further, the Tribunal found the applicant would be able to 'practise his religion as he wishes' and the chance he would face persecution on account of his religion was 'remote' (CB 194: [55]).
11. The Tribunal found that there was a 'remote' chance that the applicant would face harm as a result of crime (CB 194–195: [57]). The Tribunal also found that any hardship the applicant experienced would not be 'directed at him…for a Convention reason' (CB 195: [60]). For those reasons, the Tribunal rejected the applicant’s claims and concluded he did not satisfy the refugee criterion (CB 195–196: [61]–[62], [71]).
12. In the context of complementary protection, the Tribunal made specific findings addressing the applicant's claims. The Tribunal made the following key findings:
(a) any financial hardship would not amount to significant harm (CB 196: [65]);
(b) for the reasons given in relation to the refugee criterion, the Tribunal did not accept the applicant would face significant harm at the hands of villagers from Sabeto (CB 196: [66]);
(c) any crime the applicant may face would not amount to significant harm (CB 196: [67]); and
(d) having regard to country information, the Tribunal did not accept the applicant would face significant harm as a Fijian Indian (CB 196: [68]).
13. For these reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion (CB 196: [69], [72]).”
On 4 August 2017, the applicant filed an application for judicial review of a decision of the Tribunal dated 21 November 2013, affirming a decision of a delegate of the first respondent (“the Delegate”) to refuse them protection visas. That application is some 1,318 days out of time.
Section 477 of the Act provides as follows:
“Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 -the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-the date of the oral decision; or
(d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review of the decision of the Tribunal.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:
“63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”
The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicants an extension of time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J).
The applicant was unrepresented this morning, although had the assistance of a Hindi interpreter.
The applicant’s application for an extension of time was opposed by the first respondent.
I explained to all The Applicants that the role of this Court is very different to that of the Tribunal and it is not for this Court to reconsider the applicants’ claims and to reach different findings and conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained that disagreements with findings and conclusions of the Tribunal rarely, by itself, established such a mistake. I explained that in considering whether time should be extended, of particular importance would be the explanation for the delay and the prospects of success of their substantive claims for relief.
On 20 September 2017 all The Applicants attended a directions hearing before me. On that occasion, all The Applicants were given leave to file and serve any further evidence and submissions in support. All The Applicants were also provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.
On 19 October 2017, the applicant filed a written submission as follows:
“I draw your attention to court book page 182 the tribunal refused us as applicant for protection visa but on page 199 of court book the tribunal referred our case to the department as it can be seen from page 201 in the court book. The member of the tribunal referred the matter and the department requested our family to undergo medical, police check, character check and everything went well until 13th of July 2017, when a shocking letter came from the department saying the matter does not meet public interest criteria. When we received the letter, the officer of department said that we can do federal court and we did so on 04/08/2017 which is within 28 days. Extension of time you honour should be allowed.”
(Errors in original)
I asked the applicant if there was anything further he wished to say by way of explanation for his delay or in support of his application generally. The explanation for the delay was that all The Applicants sought Ministerial intervention in respect of which they were not informed of the outcome until 13 July 2017.
It is well established that an applicant’s conduct in seeking Ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the Tribunal on grounds that may otherwise have been available under the Act (see M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).
However, it was open to the applicant to seek judicial review of the Tribunal’s decision record at the same time. In the circumstances, the seeking of Ministerial intervention is not a satisfactory explanation for the inordinate delay in excess of 1,300 days.
At the commencement of today’s hearing this morning, all The Applicants sought an adjournment in order to obtain legal advice. The applicant informed the Court that he had approached Justice Connect and Legal Aid two weeks ago on behalf of all The Applicants, but that they had not accepted an appointment in respect of any of The Applicants. There was no evidence of any other attempt by any of The Applicants to seek or obtain legal advice and the application for adjournment was refused.
None of The Applicants had anything to say in relation to the manner in which they say the Tribunal’s decision was affected by jurisdictional error and none is apparent on the face of the Tribunal’s decision record. The Tribunal’s decision record summarises, in each of its decisions, the claims made by the relevant applicant and considers those claims. The Tribunal also summarises various exchanges it had with each of the applicants. The Tribunal essentially accepted the applicant’s claims to fear harm and accepted that he has suffered intimidation, threats and violence amounting to persecution in the past and that he had a subjective fear of harm.
However, the Tribunal concluded that the fear expressed by the applicant was not well-founded and found that the chance the applicant would face serious harm amounting to persecution in Fiji was remote. The Tribunal found that the applicant did not have a well‑founded fear of being persecuted for a Convention reason in the reasonably foreseeable future, and neither were there substantial grounds for believing that as a necessary and foreseeable consequence of any of the applicant being removed from Australia to Fiji, there is a real risk that he would suffer significant harm as defined in the Act.
The Tribunal identified with great specificity the country information upon which it relied in reaching its conclusions. 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).
The Tribunal’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave.
There is no error apparent on the face of the Tribunal’s decision record or the conduct of its review, to suggest that its decision is affected by a jurisdictional error. The complaints of the applicant are more in the nature of disagreement with the conclusions, thereby seeking merits review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
In the circumstances, in considering whether it is in the interests of justice that time be extended to the applicant, I have regard to the fact that the applicant’s substantive application for judicial review of the Tribunal’s decision would appear to have no prospects of success or, at least, insufficient prospects such that any extension of time is likely to be an exercise in futility.
I accept that there is prejudice to the applicant in refusing to extend time to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions. The relevant principles are referred to in Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, in which McHugh J stated at [15]-[17] as follows:
“15. An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.
16. Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
17. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”
(Emphasis added)
In the circumstances, but particularly in light of the unsatisfactory explanation for the applicant’s delay, and the lack of prospects of success of the applicant’s application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice that time be extended to the applicant.
Accordingly, the applicant’s application for an extension of time to seek judicial review of the Tribunal’s decision should be refused with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 8 November 2017
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