DNO17 v Minister for Immigration

[2018] FCCA 3517

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3517

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5J

Applicant: DNO17

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 422 of 2017

Judgment of: Judge Vasta

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the name of the First Respondent be amended to reflect “Minister for Immigration and Citizenship and Multicultural Affairs”.

2. That the application for an extension of time be dismissed.

3. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 422 of 2017

DNO17

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 24 March 2017 the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant and his three dependents protection visas.  The Applicant, his wife and his two children, now three children, had made application for protection visas because they claim that they may be persecuted if they went back to Pakistan.

2. The background of this matter is that the Applicant, who is a citizen of Pakistan, has actually been in Australia since 2005.  He arrived here on a student visa.  He returned to Pakistan on seven occasions before making an application for a protection visa on 15 March 2016. 

3. His wife and two daughters were included in the application as members of his family unit, but did not raise their own claims for protection.  At the time that the matter was before the AAT the Applicant’s wife was pregnant, 29 weeks pregnant.  She has since been delivered of child and that child is certainly over 12 months of age.

4. The Applicant had originally said that he had a land dispute with his brother and that there had been a serious fight.  Officials didn’t help because they had been bribed and his children have been threatened as a result.

5. The Applicant says that there are no longer any issues.  He said that he had claimed that he felt personally unsafe in Pakistan as a result of the family property settlement dispute that arose from disagreements relating to his and his brother’s late father’s state.  He said that he had received serious threats from kidnappers relating to his daughters.  He had thought that he would be unable to obtain state assistance to deal with these matters because police were corrupt and were able to be bribed by the perpetrators, and that he could not relocate safely to anywhere in Pakistan because he would not be safe and he lacked the financial resources to do so.

6. At the interview with the delegate, the Applicant had said that those matters had been resolved.  The AAT noted what was said in the record of the interview with the delegate, and that was that the Applicant said that his claims had sorted themselves out just a few months ago after he lodged his protection visa application.  He said that he was happy and settled in Australia and enjoyed living here.  All he needed was just a little time to become more financially secure and wind up his interests in Australia such as his job and start looking to secure a job in Pakistan. 

7. The delegate noted that the Applicant spoke in a relaxed and frank manner about his 11 years in Australia and that he considered it to be his home and had visited his own country infrequently and for short periods of time.  He said that he was very satisfied with his time in Australia.  It had enabled him to pay for his late brother’s children’s education, which was going to be a life lasting advantage for them.  He said he would like to stay a little longer so as to ensure his two young daughters have the best elementary education in English that he could extend to them.  He said that he was an upright, law abiding person, who appreciated what Australia had given him and how his years in Australia had shaped his personal values.

8. To the Tribunal the Applicant wrote this:

   I’m writing regarding review of my application for residency as it has great concern to myself and my family.  The reasons why I’m interested are stated as: 

   1) I am staying in Australia for last 11 years and have never had any convictions or criminal record and have paid my tax and everything relating to tax is clean and transparent with taxation department. 

   2) I am very used to live the way every one want to live over here. 

   (3) I have Australian education from diploma level to degree, which is clearly the evidence of my positivity and skill development.

   4) I am planning to study in UWA for further skill growth or to do the professional year if immigration will allow me to stay and study.

   5) I have find Australia is one of the country where I feel very safe and can invest on my kids for education and bright future. 

   6) I am still hopeful and looking forward for future perspective regarding positive decision. 

9. The Tribunal noted that none of those raised a concern regarding the refugee protection or any complementary protection for the purposes of the review function.  The Tribunal, when one reads the decision, almost went fishing for the Applicant to actually say something of a nature that would actually have the Tribunal having to look at the matters. 

10. The Tribunal raised the kidnapping aspect, and the Applicant repeated the statement that he no longer had any claims for protection, and the Tribunal then looked at the claims relating to official corruption and relocation.  Again, he said that he no longer had any claims and that he just simply wants to get on with a life before returning to Pakistan.  He was asked about treatment of returnees and again said that he had no specific problem, notwithstanding country information that was given to him and asked if he wished to comment. 

11. He was given an opportunity by the Tribunal to talk about his wife’s pregnancy, but he said that he had purchased an air flight ticket so that the wife could return to Pakistan on 15 March 2017, but ended up that she was going to stay in Australia during that time, so there was no reason why, certainly after the pregnancy, she could not travel.

12. As is evident, there is really no way that the Tribunal could have on that evidence ever have been satisfied that the Applicant faced a real chance of persecution for any of the reasons that are mentioned in s.5J of the Migration Act 1958 (Cth) either now or in the reasonably foreseeable future.

13. Again, with the assessment of the complementary protection claims, the same is true as well.  Accordingly, the Tribunal found that none of the Applicants satisfy the criterion for either refugee status or complementary protection.  Therefore, the Tribunal affirmed the decision not to grant the Applicants protection visas. 

14. That decision having been given on 24 March 2017 meant that the Applicant had 35 days from 24 March to come to this Court.  He came to this Court on 3 August 2017.  That is some 97 days after the 35 day period had expired.  As such, this is an application for extension of time. 

15. It is trite to say that there are three areas that the Court looks at in deciding whether to exercise its discretion to extend the time.  Firstly, there is what prejudice does the Minister suffer?  Secondly is, what is the excuse for filing so late?  And, thirdly, is there sufficient merit in the claim to warrant the court looking at the matter?

16. To take the first matter first, even though the Minister has talked about prejudice in that the Minister was looking at the finality of proceedings and so on, I do not find that there is any great prejudice that would be afforded to the Minister if the application for extension of time were to be granted.

17. The second aspect, in the originating application the Applicant said that his grounds for application for extension of time were: 

    1. The Applicant has been pursuing Ministerial Intervention;

    2. The Applicant did not obtain legal advice in relation to judicial review as a venue available. 

    3. The Applicant obtained legal advice in relation to judicial review only in June 2017. 

18. It is trite to say that pursuing Ministerial intervention is simply not a valid excuse as to why matters aren’t filed on time.  It may be so that he was pursuing Ministerial intervention, but that is no true excuse.

19. As to the obtaining of legal advice as a venue available, that, again, is simply no excuse.  The Applicant said to me here during the hearing that he was able to get some legal advice that said, “Look, we will go and try for the Ministerial matter,” and then when that was not successful, “Well, look, we can set things up for the court and we can draft things, but then you have to do it yourself”.  It seems to me that that is certainly insufficient to warrant an excuse as to why it is that the Applicant has filed so late. 

20. The third aspect in relation to the discretion is whether or not there is sufficient merit in the claim to warrant the Court at least considering the matter.  To this point the Applicant in the application has given four grounds.  They are:

    1. The Minister failed to give sufficient weight to the Applicant’s evidence regarding his concerns for his own and his family’s safety, in the event that they relocated to Pakistan.

    2. The Minister failed to consider the seriousness of the threats to the Applicant, his wife and their children in the event they returned to Pakistan.  The Applicant presented concerns that the Applicant, his wife and children would be vulnerable and unable to seek protection and assistance from Pakistani police due to corruption and bribery.

    3. The Minister failed to consider the best interests of the Applicant’s children by failing to sufficiently investigate the Applicant’s concerns that his children will face a real and imminent risk of being kidnapped if they are removed to Pakistan.

    4. Inferences that the children will be safe in the event of their relocation to Pakistan cannot be drawn from the movements of the Applicant, his wife and children, between Australia and Pakistan.

21. As the Applicant said to me, it is obvious that someone else drew those up because they had absolutely no regard to either the decision of the delegate or nor the decision of the AAT.  It is as if whoever drew up those grounds has totally ignored everything that the Applicant has said to both the delegate and the AAT. 

22. Even though these grounds keep talking about “the Minister”, if it were that the Applicant were actually talking about “the Minister”, then I would have no jurisdiction.  I have therefore acted as if the grounds pertain to “the AAT” where it is that they say “the Minister”.

23. But even looking at the AAT, it is quite erroneous to say that the AAT failed to give sufficient weight to the Applicant’s evidence.  The Applicant’s evidence was that there was no problem with him returning to Pakistan.  In fact, the AAT almost had to try and get a response out of him so that they could actually investigate a claim that might arise on a refugee investigation.

24. The second ground and the third ground are really quite mischievous.  The AAT did not fail to consider any of these things because the AAT considered exactly what it was that the Applicant had said in this case. 

25. And, lastly, the AAT was quite entitled to draw inferences about the children from what it was that the Applicant himself said to the Tribunal.  On the evidence before the Tribunal there was simply no possible way that the Tribunal could have been satisfied that the Applicant had met either the refugee criteria or the complementary protection criteria. 

26. In the course of this hearing the Applicant said to me that he cannot say that the AAT is in error.  He simply said that he has three children, that his eldest children are in a school environment, and he, like any father, worries about his children and their future.  He said that he has been here for 13 years and is of good character.  All of that really is not in issue at all. 

27. And one could well understand any father looking at the future of his children and wondering whether Australia or Pakistan would be best to bring them up.  It would be of little wonder that any father would choose Australia over Pakistan.  All of that may be so, but it doesn’t help in deciding whether or not the criteria for a protection visa has actually been met. 

28. There is then very little merit in the application itself.  Coupled with the unmeritorious excuse for lateness, it is my view that the only justifiable conclusion that this Court can make is that the Applicant has failed to show why it is that this Court should extend the time for filing of the application. 

29. Therefore, I refuse the application for extension, which obviously means that any application is not even before the court so it cannot be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019