DNN18 v Minister for Home Affairs
[2018] FCCA 2926
•16 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNN18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2926 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Cases cited: Fareed v Minister for Immigration & Anor [2016] FCCA 1179 Re Commonwealth of Australia & Anor; Ex parte Marks (2000) 177 ALR 491 SZLIH v Minister for Immigration [2009] FCA 108 SZNYE v Minister for Immigration [2010] FCA 500 SZRUG v Minister for Immigration & Anor[2013] FCCA 142 SZSDA v Minister for Immigration [2012] FCA 1319 |
| Applicant: | DNN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1888 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 October 2018 |
| Delivered at: | Sydney, by videolink to Melbourne |
| Delivered on: | 16 October 2018 |
REPRESENTATION
| The Applicant appeared in person by videolink |
| Solicitors for the Respondents: | Ms K Underwood of Minter Ellison |
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, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1888 of 2018
| DNN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The show cause application was filed on 6 July 2018, nearly 12 months outside the period prescribed for such an application under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 October 2018.
The applicant is a female citizen of Malaysia.[1] The applicant arrived in Australia on 5 July 2012[2] and applied for a protection visa on 23 November 2015.[3] The applicant claimed to fear harm in Malaysia because she wanted to convert from Buddhism to Christianity. The applicant claimed that her family did not approve and wanted her to marry a devout Buddhist.[4]
[1] Court Book (CB) 62
[2] CB 124 at [2]
[3] CB 1
[4] CB 30
The delegate refused the application on 11 March 2016.[5] The delegate found the application to be vague, lacking in detail, and absent evidence.[6] The delegate was satisfied that, based on country information, the applicant did not face a real chance of persecution for reason of her religion.[7]
[5] CB 68
[6] CB 73
[7] CB 74
The applicant sought review of the delegate's decision by application to the Tribunal lodged on 30 March 2016.[8] The applicant attended a hearing before the Tribunal on 24 April 2017[9] at which dispositive issues were traversed.
[8] CB 76
[9] CB 114
On 23 June 2017, the Tribunal affirmed the decision under review, refusing to grant the applicant a protection visa.[10] The Tribunal did not accept that the applicant had genuinely converted to Christianity as claimed,[11] for the reasons it gave. The Tribunal found that the applicant had manufactured her religious claims in their entirety, causing the Tribunal to have grave concerns about the credibility of the remainder of her claims. Because the Tribunal did not accept that the applicant had converted to Christianity, it also rejected her claims to have come into conflict with her mother or former boyfriend for this reason.[12]
[10] CB 123
[11] At [23]
[12] At [24]
The Tribunal considered the applicant's claim that she would be forced to marry.[13] It did not accept that the applicant’s mother would force her to marry her former boyfriend because he was a Buddhist or for any other reason. The Tribunal found that while the applicant's mother may wish the applicant to marry her former boyfriend and her refusal to do so may have a negative effect on their relationship, the Tribunal did not accept on the evidence before it that the mother was able or even wished to force a marriage on her daughter.[14] The Tribunal considered that the applicant could return to Malaysia and find work and other accommodation in Kuala Lumpur if she did not wish to or was no longer able to continue to live with her mother. The Tribunal did not accept there was a real chance the applicant would be subjected to harm by her mother if she returned to Malaysia, now or in the reasonably foreseeable future.[15]
[13] From [25]
[14] At [27]
[15] At [29]
The Tribunal did not accept that if the applicant returned to Malaysia, her former boyfriend would try to find the applicant and harm her.[16] It further found that the applicant did not face a real chance of serious harm for reason of her Chinese ethnicity.[17] The Tribunal considered the complementary protection criterion and found that it did not accept the applicant faced a real risk of significant harm for the reasons claimed.[18]
[16] At [30]
[17] At [33]
[18] See [36]-[38]
The present proceedings
The grounds for the extension of time sought are paraphrased in the Minister’s submissions:
(a)The applicant was not represented by a solicitor and not aware of the time limit within which to seek judicial review. The applicant believes the Tribunal denied her procedural fairness and failed to discharge its statutory duty.
(b)The applicant satisfies the criteria for the grant of a Protection visa however the Tribunal did not consider this and therefore made legal and factual errors.
The grounds in the proposed judicial review application are:
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm upon my return to Malaysia because of her decision to convert to Christianity.
2.The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and thereby incorrectly dealt with the review application.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Migration Act.
(errors in original)
I have before me as evidence the applicant’s affidavit filed with her application. That deals with her claim for protection and the Tribunal decision, but does not address the issue of the extension of time. I also have before me as evidence the court book filed on 14 August 2018.
The applicant appeared today by videolink from Melbourne. She filed her application in Sydney, but sought a transfer of proceedings to Melbourne on the basis that she was living in Melbourne. The show cause application provided an address for service in Griffith, New South Wales. The applicant today provided a new address for service in Swan Hill, Victoria.
In her show cause application, the applicant had also requested a Bahasa Malaysia interpreter. However, more recently, the applicant requested a Mandarin interpreter, who was provided for today’s videolink hearing.
I asked the applicant about the reasons for her delay in coming to court. She told me that she did not receive the Tribunal decision. I drew to her attention that a copy of the decision was annexed to the affidavit filed with her show cause application. She told me that that copy had been obtained on her behalf by a friend recently; in other words, in about June this year.
I also asked the applicant about her receipt, or non-receipt, of the email sent by the Tribunal on 26 June 2017, which enclosed a copy of the decision. The email was sent to the email address provided by the applicant in her review application to the Tribunal. The applicant told me that the email address was not hers, but was that of a friend who had been assisting her at that time. It appears, however, that the friend has left the country, which might explain why the friend did not inform the applicant of receipt of the email and the enclosed decision.
Those events do not, however, in my mind provide a sufficient explanation for the delay, in that it was open to the applicant at any time to check the status of her review application with the Tribunal.
In her show cause application, the applicant asserts a lack of legal assistance and a lack of knowledge about time limits. The applicant was, however, assisted by at least two friends, who provided means of communication with the Tribunal and, it would seem, advice as to what to do.
I do not find the applicant’s explanation for her delay in coming to court at all persuasive. That, in itself, supports a conclusion that the interests of the administration of justice do not call for an extension of time.
Having questioned the applicant on her views as to what is wrong with the Tribunal decision, I am also of the view that her show cause application, if heard, would fail. The applicant simply disagrees with the Tribunal’s decision. Her concern is with the outcome and the rejection of her claims. The applicant has not advanced any coherent proposed legal argument.
In other respects, I agree with the Minister’s submissions concerning the request for an extension of time.
Pursuant to s. 477(1) of the Migration Act, the applicant was required to make her application for review of the Tribunal decision within 35 days of the date of the Tribunal decision, that is by 28 July 2017. The application before the Court was not filed until 6 July 2018. It is therefore nearly one year outside of the 35 day period permitted by the Migration Act.
23.Section 477(2) provides that the Court may order that the period be extended, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order. Rule 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) provides that, relevantly, such an application must be supported by an affidavit explaining the delay and showing why it is in the interests of the administration of justice that an extension be allowed. No such affidavit has been filed in these proceedings.
A non-exhaustive list of factors relevant to this Court's exercise of discretion to extend time include:
a)the extent of any delay;
b)the reasons for such delay;
c)prejudice to the respondents;
d)impact on the applicant should time not be extended;
e)interests of the public at large;
f)merits of the proposed substantive application; and
g)the general discretion of the Court.
See, for example, SZRUG v Minister for Immigration & Anor[19] at [8] per Judge Nicholls (and the cases there cited).
[19] [2013] FCCA 142
A delay of the magnitude in the present case weighs against the grant of an extension of time. In Re Commonwealth of Australia & Anor; Ex parte Marks (2000),[20] McHugh J stated[21] that “a case would need to be exceptional before the time for commencing proceedings was enlarged by many months”. Although she denies receipt of it, the Tribunal's decision was sent by email to the applicant,[22] together with a brochure informing the applicant that she could seek judicial review by the Court and must do so within 35 days of the date of the Tribunal's decision.[23]
[20] 177 ALR 491
[21] At [13]
[22] CB 118
[23] CB 121
With respect to the grounds of applicant's application to extend time, ignorance of the statutory time limit and a lack of representation are not adequate explanations for the delay in commencing proceedings.[24] The other matters identified by the grounds of the application to extend time appear to concern the alleged merit of the substantive application for judicial review and will be addressed accordingly.
[24] See SZLIH v Minister for Immigration [2009] FCA 108 at [33]; SZSDA v Minister for Immigration [2012] FCA 1319 at [38]; Fareed v Minister for Immigration & Anor [2016] FCCA 1179 at [23] and SZNYE v Minister for Immigration [2010] FCA 500 at [9]
Further, the substantive application lacks any prospect of success. The Tribunal complied with its obligations pursuant to Division 4 of Part 7 of the Migration Act. It correctly applied the relevant law, including with respect to complementary protection, and made factual findings reasonably open to it for the reasons given. The Tribunal's decision demonstrates that it considered and rejected the entirety of the applicant's claims to fear harm.
Conclusion
I conclude that the interests of the administration of justice do not call for the granting of an extension of time. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale, as it applied when the application was filed. The applicant submitted that the amount of costs sought was unreasonable and should be reduced. She also claimed impecuniosity and requested the opportunity to pay over time. Impecuniosity is not a reason for the Court to refrain from making a costs order. If made, the order establishes a debt, and it is open to the applicant to negotiate terms for payment with the Minister’s Department. I am satisfied that the costs sought have been reasonably and properly incurred.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 October 2018
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