DPB18 v Minister for Home Affairs

[2018] FCCA 2343

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPB18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2343

Catchwords:
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.36, 477

Cases cited:
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
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Applicant: DBP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1640 of 2018

Judgment of: Judge Emmett

Hearing date: 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

Applicant: Appeared in person with the assistance of a translator

Solicitors for the Respondents: Mr Max Gao
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1640 of 2017

DPB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 12 June 2018, the applicant filed an application in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal dated 15 August 2017 (“the Tribunal”). It was necessary for the applicant also to seek that time be extended to him to seek judicial review of that decision, in circumstances, where the application was filed some 9 months in excess of the mandatory timeframe of 35 days from the date of the Tribunal's decision.

2. Relevantly, pursuant to s.477(2) of the Migration Act 1958 (Cth) (“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 to the decision of the Tribunal.

3. The first respondent, in written submissions, accurately summarised the background, the applicant’s claims for protection and the Tribunal’s decision as follows:

   “ BACKGROUND

   3. The applicant is a citizen of Malaysia who arrived in Australia on 7 September 2016 as the holder of a visitor visa: Relevant Documents (RD) 20. On 1 December 2016, the applicant lodged an application for the Protection visa: RD 1. On 7 March 2017, the delegate refused the Protection visa application: RD 65. On 5 April 2017, the applicant sought review of the delegate's decision by the Tribunal: RD 81. On 20 July 2017, a Tribunal officer contacted the applicant verifying his email address: RD 87. On the same day, the applicant provided a new email address to the Tribunal for the purpose of receiving correspondence (nominated email address): RD 95.

   4. On 11 August 2017, the applicant appeared before the Tribunal to give evidence and present arguments: RD 100. On 15 August 2017, the Tribunal affirmed the decision under review: RD 182. That decision was sent by email to the applicant's nominated email address: RD 178.

   APPLICANT'S CLAIMS FOR PROTECTION

   5. In support of his Protection visa application, the applicant provided a statement in which he claimed that his hometown had been terrorised by pirates over the past decade and the Malaysian government did nothing to combat piracy. The applicant claimed that the mother of his friend was recently kidnapped by pirates and he heard that the local government embezzled the ransom paid by the hostage's family. He feared harm from the Malaysian government on the basis of his knowledge of the corruption: RD 37.

   6. At the hearing before the Tribunal, the applicant further claimed that he was assaulted and repeatedly harassed and threatened by a group of Filipino men, who accused him of humiliating their race after the applicant made comments on the kidnapping crisis. He tried to report the incidents to police but they refused to provide assistance. The police told him to shut up and watch his back: RD 186 at [19]−[21].

   TRIBUNAL DECISION

   7. The Tribunal accepted the applicant's claims made at the Tribunal hearing. The Tribunal noted the applicant's evidence that he had stopped publicly expressing opinion about the police's involvement in embezzling ransom, and found that the applicant would not attempt to expose any government scandals if he returned to Malaysia in circumstances where he had not done so in Australia. Although the Tribunal accepted that there were piracy activities in the applicant's hometown, it found that the risk of the applicant being personally targeted by kidnappers or other extremists was remote: RD 187 at [26]−[30].

   8. The Tribunal accepted that the applicant's aggressors may continue to harass him on his return and that the police may not provide adequate protection. However, the Tribunal found that the applicant could relocate to another part of Malaysia, and on the evidence before it, the Tribunal was not satisfied that the applicant's aggressors were actively searching for him or that they had the ability or resources to locate him in another part of Malaysia. In the circumstances, the Tribunal found that the applicant did not satisfy the Refugee Convention criterion in s 36(2)(a) of the Act: RD 188 at [34[34].

   9. For the same reasons, the Tribunal did not accept there was a real risk the applicant will be personally targeted by kidnappers or extremists. Although the Tribunal accepted the applicant might be the target of physical violence by non−state actors, it was reasonable for the applicant to relocate to another part of Malaysia. As such, the Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm: RD188 at [35]−[36].”

4. The applicant was unrepresented before the Court this morning, although had the assistance of a Malaysian interpreter. 

5. I explained to the applicant that the Court did have power to extend time to him to seek judicial review if the Court were satisfied that it was necessary in the interests of justice to do so.

6. 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.

7. 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 (“Hunter Valley”); 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.”

8. 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 applicant an extension of time (see Hunter Valley at [21] per Wilcox J).

9. 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).

10. I also explained to the applicant that in relation to his application for an extension of time the two most important issues for the Court would be the explanation for his delay and the prospects of success of his application for judicial review. 

11. The explanation provided by the applicant on his initiating application for the extension of time is as follows:

    “My previous agent made a mistake to miss the time frame to appeal to Federal Circuit Court for me. I haven’t received any documents from AAT.”

12. I asked the applicant if there was anything further he wished to say by way of explanation and he said there was. As a result, the applicant was sworn in to give evidence. 

13. I asked the applicant what was his explanation for the delay. The applicant said that his migration agent had failed to help him with his appeal despite him having made several requests to his migration agent over the nine months before he filed his Application in this Court, but that he never received anything from his migration agent.

14. The applicant said that he finally went to the Registry of the Court and filed an application seeking judicial review of the Tribunal's decision.

15. Otherwise, I understand the applicant's evidence to be that he did not receive notification of the Tribunal's decision.

16. In a careful cross-examination, the solicitor for the first respondent took the applicant through the bundle of relevant documents tendered and marked Exhibit 1R and, in particular, a case note recorded in the Tribunal's records, dated 20 July 2017, as follows:

    “ID. 19831380 20/07/2017 02:07:00 PM

    Case Note [Actual Name Redacted]

    Contacted the applicant using the phone number [Actual Mobile Phone Number Redacted] from ICSE record as the email was bouncing back. He advised that he is no longer using the email address that he had provided to the tribunal. He said that his new email address is: [Actual Email Redacted]. I asked him to provide the new address and his contact number for our record in writing as soon as possible. He said he will send it soon. I told him that I was trying to send him a letter to invite him to a hearing on 11/8/2017. I told him that I’ll email the letter with the hearing details to his new email address today.”

17. The applicant said that he did not recognise the telephone number that was recorded in that memo. However, ultimately, the applicant conceded that it was his telephone number and had been given by him in his original visa application form. It was also the telephone number that he referred to in a further email sent by him to the Tribunal on 20 July 2017 identifying the same email address as provided by him to the Tribunal on 20 July 2017 and cited above.

18. That email would appear to be in response to the telephone conversation recorded above.

19. On 16 August 2017, the Tribunal sent a copy of its decision to the applicant’s email address as identified by the applicant on 20 July 2017.

20. The solicitor for the first respondent took the applicant through the documents that he had completed in relation to his visa application.  Those documents made clear that at no stage was the applicant represented by a migration agent. 

21. The applicant said that his migration agent allowed him to use her email address which is recorded at page 16 of Exhibit 1R. Plainly the applicant's visa application does not disclose that that is not his email address. In any event, and for the purposes of the application today, the applicant provided the email address with which the Tribunal corresponded on 20 July 2017, and to which it sent its decision on 16 August 2017.

22. The applicant did not impress me as a witness, and I place little weight on his assertion that he did not receive the Tribunal's decision record.  Even if the applicant had not received the Tribunal's decision record, it does not excuse the applicant's failure to make any contact with the Tribunal, or any other person, to inquire about the Tribunal's decision for a period of more than nine months. 

23. In all the circumstances, I find the applicant's explanation entirely unsatisfactory to explain the delay of 9 months.

24. I have also had regard to the prospects of success of the applicant's substantive application.

25. In considering the substantive grounds for judicial review I explained to the applicant that the only issue before the Court would be whether or not the decision of the Tribunal was made according to law. I explained that the role of this Court is very different to that of the Tribunal and it is not for this Court to reconsider the applicant’s 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.

26. The applicant confirmed that he continued to rely on the two grounds identified in his initiating application as follows:

    “1. The AAT made jurisdictional error to refuse to grant the protection visa to me.

    2. The Tribunal ignored the fact what I face to after I return to my home country.”

27. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of the grounds.

28. The applicant declined to say anything in support of either ground, or in support of his application generally. Neither ground was otherwise supported by particulars, written or oral submissions. 

29. Ground 1 is a bare assertion that does not disclose any error capable of review by this Court. I invited the applicant to explain what he meant by that ground, and as stated above, the applicant declined to say anything. 

30. In relation to Ground 2, again the applicant was invited to say whatever he wished in support and declined to say anything further.

31. A fair reading of the Tribunal's decision record does not support the applicant's assertion that the Tribunal ignored what the applicant may face if he returned to his home country. 

32. The Tribunal identified the applicant's written claims in support of his protection visa about threats from pirates in Malaysia. The Tribunal accepted claims made by the applicant at the hearing, for the first time, that he was threatened by a group of men of southern Filipino ethnicity and, that on 2 August 2016, he tried to report a physical assault from those persons but the police had refused to assist him.

33. In relation to his written claims, the Tribunal rejected that the applicant would be at risk in Malaysia for seeking to expose scandals involving embezzlement on the basis that it was satisfied that the applicant would not seek to do so.

34. The Tribunal also considered the applicant's claim in relation to a risk of kidnapping from pirates and found that the chance or risk of the applicant being personally targeted by kidnappers or extremists to be remote.

35. However, the Tribunal did accept that the applicant's aggressors, being the group of men of southern Filipino ethnicity, may continue to harass and/or physically harm him if he returned to his local area, and that the police may not provide him with adequate protection. However, based on country information before it, and based on evidence from the applicant himself, the Tribunal was ultimately satisfied that it was both reasonable and practical for the applicant to relocate within Malaysia.

36. The Tribunal noted that the applicant had substantial work experience in varied roles in Malaysia and Singapore and had shown himself to be capable of living in new locations as evidenced by his work experience in Singapore and his travels to Australia.

37. The Tribunal noted that the country information before it did not indicate that pirates or other extremists were an active and substantial issue in all of Malaysia and noted a Department of Foreign Affairs and Trade report that indicated that Malaysians can, and do, freely relocate internally.

38. In particular, the Tribunal took into account that the applicant has family in Sandakan, but that on his evidence, he has lived in Singapore for 10 years. As stated above, the applicant has varied work experience which would assist him to obtain employment and support himself and his family elsewhere in Malaysia.

39. The Tribunal discussed these issues with the applicant and noted his response that the aggressors from his local area would continue to look for him. However, the Tribunal was not satisfied that there was a real risk that they would continue to do so. 

40. Ultimately, the Tribunal found that the applicant did not satisfy the protection criterion in either section 36(2)(a) or 36(2)(aa) of the Act, and accordingly, affirmed the decision under review.

41. It would appear that the Tribunal's findings were open to it on the evidence material before it and for the reasons it gave. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis, or unreasonableness and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

42. In the circumstances, if time was extended to the applicant to seek judicial review, in my view, the prospect of success of the applicant's application for judicial review are such as to render such an extension of time an exercise in futility. A fair reading of the Tribunal's decision record does not suggest that the Tribunal's decision is affected by jurisdictional error, and the applicant has not identified any such error.

43. The grounds upon which the applicant relies have no reasonable prospects of success. For that reason, coupled with the totally unsatisfactory explanation by the applicant for his delay, it is not necessary in the interests of justice to extend time to the applicant.

44. I accept that although the first respondent may not be prejudiced if time was extended to the applicant, there is a public interest in finality to administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [17] per McHugh J), and the absence of prejudice is, in itself, insufficient to warrant an extension of time.

45. Accordingly, the applicant's application for an extension of time, filed on 12 June 2018, is refused with costs

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 31 August 2018