DOL17 v Minister for Immigration

[2018] FCCA 1870

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1870

Catchwords:

MIGRATION – Application for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) – no adequate explanation for delay – no reasonable prospects of success – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 5J, 5K, 5L, 5LA, 36, 424A, 441A, 441C, 476, 477, 499
Migration Regulations 1994 (Cth), Sch.2

Cases cited:
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Cultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZOCH v Minister for Immigration& Anor [2010] FMCA 300
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

Applicant: DOL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1720 of 2017

Judgment of: Judge Hartnett

Hearing date: 26 June 2018

Delivered at: Melbourne

Delivered on: 26 June 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Groves

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1720 of 2017

DOL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 7 August 2017 wherein the Applicant seeks an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) (‘the Act’) pursuant to s.477(2) of the Act.

2. In respect of the substantive application the Applicant sets out five grounds of application in respect of his proposed judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent to refuse to grant him a protection visa. 

3. Those grounds of application are as follows:-

   “(1)My point is that despite having attended in the hearing, it became Imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

   (2)The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   (3) The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   (4)The AAT has failed to investigate applicants claim, especially the grounds of persecution, in Malaysia.  Therefore, the Tribunal decision dated 22^nd May 2017 was effected by actual bias constituting judicial error.” 

4. The First Respondent seeks an order that the Court not grant an extension of time to the Applicant within which to file his judicial review application and otherwise seeks orders for dismissal of that application and, ultimately, the substantive application together with an order for costs. 

Background

1. The Applicant is a citizen of Malaysia.  He arrived in Australia on 3 May 2016 on a (Class UD) (subclass 601) visitor visa.  The Applicant’s ethnic group is Chinese, his religion Buddhist and his language Mandarin. 

2. On 27 June 2016 the Applicant applied for a protection (Class XA) visa (‘the visa’) in relation to which an associated bridging visa was granted. The Applicant claimed to fear harm from moneylenders. 

3. A summary of the protection claims of the Applicant are set out in page 55 of the Court Book, the contents of which are in evidence before the Court, and set out more fulsomely in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) of 19 May 2017 to which I shall return. 

4. On 14 September 2016 a delegate of the Minister (‘the delegate’) refused to grant the visa on the basis the Applicant did not satisfy either s.36(2)(a) or s.36(2)(aa) of the Act. The Applicant then lodged an application for review with the Tribunal on 26 September 2016, and he appeared before the Tribunal in response to an invitation to attend a hearing issued to the Applicant by the Tribunal by correspondence of 11 April 2017, on the 15 May 2017. At that hearing the Applicant attended on his own and was assisted by an interpreter fluent in the Mandarin and English languages. The Applicant was given an opportunity before the Tribunal to give evidence and present arguments in relation to the issues in his case.

Tribunal

1. In paragraph 10 of the Decision Record, the Tribunal noted that the Applicant presented his claims in his protection visa application, which the Tribunal had before it in the departmental file, and at his hearing on 15 May 2017. 

2. In paragraph 10 of the Decision Record, the Tribunal set out the statement made by the Applicant attached to his protection visa application.  It was, relevantly, as follows:-

   “… I have been finished my study in 1991.  I was doing job also and after mu study I started business … then I married.  At that time two children born in our life. 

   There was financial crisis in October 2011, that’s why I need money to continue my business.  I have borrowed 200 Thousand Ringgit Malaysian in January 2012 from one Chinese guy with interest, my friend introduce with one Chinese guy, his name is … I gave my land and house documents to … as security of his money, I gave 100 Thousand ringgit and interest back to him in April 2013, in Jul 2013 I went back to his house to give another 100 Thousand Ringgit and interest but he said, give me more money.  He refused to give back my documents and beat me, then I contact my friend.  I said help me to get back documents from … and also give back his 100 Thousand Ringgit and interest. My friend told me to contact him after 2 days, after 2 days I contacted my friend, he gave me same answer like … I requested to … to give my documents back, but he is not ready to give me my document back, because I gave him my land and house papers as security, its market value is more than 300 Thousand Ringgit, I need to give only 100 Thousand Ringgit back to him.

   After that I complained in police station opposite of … police wrote me complain, and police said come back after 2 days,  I went to police station after 2 days, police said give money back to … I said he want more money instead of 100 Thousand Ringgit.  Police said I can’t any help you in this case, after then I complain in another police station but they cannot give answer, one day I got called from … and he threaten me if you complain in police station I will kill you, after than I complained in police commissioner office but they couldn’t give any response.  One day I was working in my office at that time … and 5 peoples beaten me, and broken my office furniture’s, then I complained in criminal court against … but there is no any process in court.  I was depressed because of … threaten and harassment. 

   My children live alone after all problems and financial crisis, I was alone. I am tired because of … threaten me and broken my Restaurant furniture, police don’t take any action against …, … can do anything with me because he is very power full man,  I am alone and at that stage I can’t ability to fight with …, and I have also risk of my life.  Between all this problem I was decided I will go to Australia  I don’t have anything now.  I am so frustrated and pressurize. 

   Ups and downs in relationship are part of life.  Long time our relation was pretty much good but after I noticed some change in behavior of my wife.  Not paying much attention to it, after some week I had to move for some other place.  Before things turned sour, I thought my wife was completely normal. But during my stay in things turned out bad and we had number of verbal fights and misunderstandings.  To sort things out I even asked help from my friends and near ones.  It was and abrupt transition and things started getting worse. and one day I was came home and I Shaw she was not at home my children also not at home she was left me and I was called her but her mobile switch off I was find out every ware but I don’t know about her.  I was lost everything my family, my business everything. 

   I can’t even go back, if I did one of They will kill me.  I am so depressed that I feel like commit suicide sometimes but then there always Something that stop my family I have think about them as well.  I just don’t know what to do.  I did try to other ways so I don’t have to get protection visa but I could so finally I came to know Through my friend about it. which can be great use for us to survive and live peacefully where laws Are being followed by each and every one were everyone is treated equally.  I am not safe in life this I Won’t be able to survive a peace full life in Malaysia …”

   (Errors in original).

Findings

1. The Tribunal accepted, on the evidence before it, being a copy of the Applicant’s Malaysian passport, that Malaysia was the Applicant’s country of nationality or receiving country for the purposes of complementary protection. 

2. The Tribunal set out correctly, in paragraph 12 of the Decision Record, that the issues in the review were whether the Applicant had a well‑founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act, and if not, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to his receiving country of Malaysia, there was a real risk he would suffer significant harm.

3. The Tribunal set out the criteria for a protection visa in paragraphs 3 to 8 inclusive of the Decision Record, noting that such criteria were set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal noted s.5J(1) of the Act being that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country.

4. Additional requirements relating to a “well-founded fear of persecution” in circumstances in which a person will be taken not to have such a fear are set out in s.5J(2) to (6) and ss.5K to 5LA of the Act which the Tribunal extracted as an attachment to the Decision Record. The Tribunal noted the complementary protection criterion, additionally, and Ministerial Direction no.56 made under s.499 of the Act. The Tribunal noted it had taken into account the policy guidelines prepared by the Department, PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines, and relevant country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes to the extent that they were relevant to the decision under consideration by the Tribunal.

5. The Tribunal then proceeded to apply the necessary criteria to its consideration of the claims and evidence of the Applicant.  The Tribunal noted that it was aware of the importance of adopting a reasonable approach in the finding of credibility, noting the Federal Court of Australia Full Court decision in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, in particular Foster J’s comment at page 482:-

   “…care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” 

6. The Tribunal also noted the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 wherein Kirby J said at paragraph 39:-

   “First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over‑nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan.”

7. The Tribunal had considerable concerns about the Applicant’s credibility.  The Tribunal said at paragraph 17 of the Decision Record:-

   “The Tribunal does not accept the applicant’s claims regarding the money he borrowed and the subsequent problems he experienced as a result of borrowing this money, are credible based on the vague and unconvincing nature of his evidence regarding this alleged loan that he took for his business and the number of significant inconsistencies in his evidence in the hearing, as compared to his statement attached to his protection visa application, regarding important aspects of his claims.” 

8. The Tribunal, in particular, found the Applicant’s evidence about the details of his loans, how they were to be repaid and when to be repaid including, when the Applicant repaid a partial sum to be “unclear and unconvincing”. 

9. The Tribunal also found the Applicant’s evidence as to his previous assaults, attempted relocation and his residence in Malaysia to be inconsistent.  The Tribunal said, relevantly, in paragraph 22 of the Decision Record:-

   “The applicant claimed in the hearing after the alleged incident when he was beaten by 5-6 people, he went to another place to hide and arranged for his family to settle and then he left Malaysia, albeit over two years later.  The Tribunal asked the applicant where he went after this incident in August 2013.  He stated a little town in Kuantan, in Pahang. His evidence was that he had also relocated his wife and children to this private location in Kuantan away from Skudai. In contrast, however, the Tribunal notes at the beginning of the hearing the applicant confirmed he was living in Skudai, in Johor, up until he departed Malaysia to come to Australia.  His evidence was that he had lived with his family in Skudai since he was in Form 5 of school. The applicant also confirmed that his wife and two children are living in Skudai.  In the applicant’s protection visa application (the contents of which the applicant confirmed was correct) he claimed that he lived in Skudai from February 2006 until May 2016.  As such, the Tribunal finds the applicant has provided inconsistent evidence in respect to his residence in Malaysia, which raises serious doubts about the credibility of his claims.” 

10. The Tribunal also noted that the Applicant confirmed at the hearing that he and his wife were still married and in contact.  The Tribunal noted the inconsistency with the evidence given by the Applicant at the hearing, and his statement attached to his protection visa application. 

11. The Tribunal, throughout the Tribunal hearing, put to the Applicant its concerns as to the inconsistencies in his evidence and concerns as to his evidence generally, for comment by the Applicant.  The Tribunal noted in its Decision Record where it found the responses of the Applicant to be lacking and to not diminish the Tribunal’s “serious doubts about the credibility of his claims.” 

12. The Tribunal then went on to note many of those “deficiencies and numerous inconsistencies”[1] in the Applicant’s evidence, finding the Applicant not to be a witness of truth and finding his claims for protection to be not credible.  The Tribunal found that the Applicant did not borrow money from a loan shark company or a Chinese male named Mr X or from Mr Y for his business.  The Tribunal did not accept the Applicant was required to pay any additional loan to either the loan company or Mr Y when he allegedly sought to recover his land documents or that he was beaten when he refused to pay. The Tribunal did not accept that the Applicant went to the police once, or more than once, and that this resulted in people coming to his workplace and beating him and/or destroying his office furniture.

    [1] Decision Record, paragraph 25.

13. The Tribunal did not accept that if the Applicant returns to Malaysia he faces a real chance of serious harm, including being bashed to death from the loan shark company or Mr X or Mr Y or anyone else associated with these people. The Tribunal was not satisfied the Applicant had a well-founded fear of persecution, as required by s.5J of the Act, and found the Applicant was not a refugee within the meaning of s.5H nor, based on its findings and reasons as set out in its Decision Record, did the Tribunal find there were grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk the Applicant would suffer significant harm from a loan company or X or Y or anyone else in relation to money the Applicant allegedly borrowed and still owes them.

14. The Tribunal was not satisfied the Applicant met the alternative provisions in s.36(2)(aa) of the Act. Having concluded the Applicant did not meet the refugee criterion in s.36(2)(a) or the alternative criterion in s.36(2)(aa) the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under either s.36(2)(a) or s.36(2)(aa) and thus affirmed the decision of the delegate not to grant the protection visa.

Extension of time consideration

1. The Applicant applied to the Court for judicial review of the Tribunal decision on 7 August 2017. The time limit for applications for review to the Court is 35 days which meant that the Applicant needed to lodge his application by 24 June 2017 (s.477(1) of the Act). Accordingly, the Applicant requires the Court to grant him an extension of time.

2. Section 477(2) of the Act governs the Court’s consideration of this matter. That is as follows:-

   “(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.”

Is there any reasonable or adequate explanation for the delay?

1. The Applicant has failed to provide the Court with any reasonable or adequate explanation for his delay. 

2. In support of his application for an extension of time the Applicant stated that:-

   “I appeal to Hon.Federal Magistrate to consider my application because I Can’t receive my AAT decision I was normally check my visa on VEVO that time I was seen my visa was finished and I was called to Administrative Appeal Tribunal and they send me decision by email so please consider my court appeal.” 

1. This of itself does not adequately explain or explain at all, really, the Applicant’s reason for his delay. 

2. As submitted by the First Respondent, in his change of contact details form lodged on 15 May 2017, the Applicant nominated an email address as his email address. He expressly agreed to the Tribunal sending all correspondence by email to that address. The Tribunal notified the Applicant of its decision by email of 22 May 2017 despatched to the last email address provided to the Tribunal by the Applicant in accordance with s.441A(5)(e) of the Act. Pursuant to s.441C the Applicant is taken to have received the Tribunal decision at the end of the day on 22 May 2017 (the day on which it was transmitted).

3. Additionally, as appears in the evidence which is before the Court as contained in the Court Book filed on behalf of the First Respondent and at page 88, the Applicant appears to have acknowledged receipt of the decision by at least 29 May 2017, when he called the Tribunal to inquire about how to pay (the fee) as “he received his decision”.  The Applicant was not able to advise the Court as to the accuracy or otherwise of that file note in the materials as contained in the Court Book, indicating to the Court that he could not remember. 

4. The Applicant also indicated in oral submissions to the Court that the reason for his delay was:-

   “The money I paid, it will automatically be extended and when I learned about it, it had already expired.” 

5. There is no evidence before the Court that the Applicant made any reasonable inquiries or took any reasonable action in relation to his judicial review application.[2] Indeed, the Applicant has placed no evidence before the Court to adequately explain his delay in the filing of his application.

   [2] SZOCH v Minister for Immigration& Anor [2010] FMCA 300, 43.

Prejudice to the Minister

1. The Minister does not submit that he would suffer any prejudice that could not be ameliorated by a costs order if the Applicant were to be granted the extension. 

Substantive case for judicial review not sufficiently arguable

1. The Minister submits the time should not be extended because the application for judicial review is not arguable, or reasonably arguable or sufficiently arguable, nor does it have “reasonable prospects of success.”[3]

   [3] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, 63; SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442, 41.

2. The Applicant provides four grounds in support of his substantive application for judicial review.  The Minister submits none of the Applicant’s grounds disclose an arguable case. 

3. The Court finds that none of the Applicant’s grounds disclose an arguable case. Nor is there an adequate explanation for the Applicant’s delay in filing his application. The Court concludes that the application for an extension of time should be refused. The reasons in respect of the substantive grounds and their failure to disclose an arguable case follow.  The Court notes that whilst the Applicant filed no written submissions as earlier ordered, and did not amend his application to particularise any of his grounds so as to make them meaningful, the Applicant was given an opportunity to make oral submissions in relation to each one of the four grounds this day.  His commencing submission was, “I want to stay in Australia.”  A further submission was, “I owe money.  I can’t go back.”  Otherwise, in respect of any particularisation of any of the grounds of review, the Applicant indicated that he could not particularise any ground and that he could not remember why he inserted such ground.  His main complaint was that the Tribunal did not believe him, and he was critical of the decision for that reason. 

Ground one

1. The Applicant provided no particulars in support of this ground. There was no failure on the part of the Tribunal to provide information in writing to the Applicant. The Tribunal did not fail to comply with s.424A of the Act. As submitted by the First Respondent, it is well-established that information, for the purpose of s.424A, does not include the “existence of doubts, inconsistencies or the absence of evidence.”[4]  

   [4] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 18.

Ground two

1. This ground discloses no jurisdictional error.  The Tribunal was not satisfied on the evidence before it and for the reasons which it gave, being reasons given in some detail, that the Applicant met the requirements for the grant of the visa.  The Tribunal gave extensive consideration to each and every one of the claims made by the Applicant and engaged in a constructive dialogue with the Applicant as to those matters which concerned the Tribunal about the claims, in particular, the inconsistent nature of the material put before the Tribunal by the Applicant.  The conclusion reached by the Tribunal was clearly open to it on the totality of the evidence before it.

Ground three

1. The Tribunal’s decision turned on an assessment of the Applicant’s credibility, an assessment clearly within the fact-finding role of the Tribunal. The Tribunal correctly identified the law and then applied the correct legal tests in determining whether the Applicant satisfied either of the relevant criteria for the grant of the visa, being s.36(2)(a) or s.36(2)(aa) of the Act. The ground is misconceived.

Ground four

1. A claim that a decision is affected by actual bias is a serious claim and must be supported by evidentiary material. The Applicant’s claim that the Tribunal’s decision was affected by actual bias cannot succeed and is not arguable.  Further, the Applicant’s claim that the Tribunal failed to investigate his claims is equally not supported by the evidence and is not arguable. 

2. As is often said in relation to the allegation of bias, such an allegation must be distinctly made and clearly proved.[5] There is no particularisation in support of this ground, nor is there any evidence that would lead to any findings of actual or perceived bias. 

   [5] Minister for Immigration and Cultural Affairs v Jia (2001) 205 CLR 507, 69.

3. It is not the role of the Tribunal to make out the Applicant’s case for him.[6]  Whilst it is accepted that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could constitute jurisdictional error,[7] this is not the case in these circumstances.  There is no critical, obvious and/or easily ascertainable fact which the Tribunal should have independently investigated. 

   [6] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70.

   [7] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, 25.

4. None of the grounds of judicial review raised by the Applicant are arguable.  None of the grounds have “reasonable prospects of success.”[8] Accordingly, the application for an extension of time shall be dismissed and costs should follow that event.

   [8] MZABP v Minister for Immigration and Border Protection (2015) FCA 1391, 63; SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442, 41.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  13 July 2018