DRE16 v Minister for Immigration and Border Protection
[2018] FCA 494
•8 March 2018
FEDERAL COURT OF AUSTRALIA
DRE16 v Minister for Immigration and Border Protection [2018] FCA 494
Appeal from: Application for leave to appeal and extension of time: DRE16 v Minister for Immigration & Anor [2017] FCCA 2004
Application for extension of time: DRE16 v Minister for Immigration & Anor (No. 2) [2017] FCCA 2005
File number: NSD 1664 of 2017 Judge: RANGIAH J Date of judgment: 8 March 2018 Catchwords: MIGRATION – application for extension of time to file a notice of appeal – whether proposed appeal has prospects of success – application dismissed. Legislation: Migration Act1958 (Cth) ss 36(2)(a), 36(2)(aa) and 438
Migration Regulations 1994 (Cth)
Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 Date of hearing: 8 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1664 of 2017 BETWEEN: DRE16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
8 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an extension of time within which to file a notice of appeal is dismissed.
2.The applicant is to pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
RANGIAH:
The applicant has filed an application for an extension of time within which to file a notice of appeal.
The applicant seeks to appeal from two judgments of the Federal Circuit Court of Australia. The first was an interlocutory judgment given on 22 August 2017 refusing the applicant an adjournment. The applicant also requires leave to appeal from that judgment. The second was a judgment given on the same day dismissing the applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 4 November 2016 affirming a decision of a delegate of the first respondent refusing to grant the applicant a protection visa.
The application for an extension of time within which to file a notice of appeal was listed for hearing at 10.15 am today, but the applicant has failed to appear. The hearing was originally listed for 2.15 pm today, but by email sent on 1 March 2018, the Court’s registry notified the applicant that the time had been changed to 10.15 am. There was no response to that email from the applicant. At 5.40 pm (4.40 pm Queensland time) yesterday, the applicant sent an email to the Court saying:
I have received an email notification of change of time several days ago but found this now for some reason. Could you please vacate the day and rearrange hearing date and time since I cannot attend 10 am tomorrow. Thank you so much for your cooperation in advance.
My associate then sent an email to the applicant at 5.23 pm (Queensland time) as follows:
The judge hearing the matter tomorrow will be Justice Rangiah. His Honour has asked me to let you know that if you wish to apply for an adjournment you will have to appear at the hearing to do so. His Honour is prepared to allow you to appear by telephone to apply for an adjournment and argue your application for an extension of time.
If you wish to appear by telephone, please advise of your phone number as soon as possible so the Court can call you. You will receive a call ten minutes before the hearing starts.
If you do not appear the matter may proceed in your absence.
The applicant did not respond to the email and, as I have said, he has not appeared. I will proceed to determine the application in the applicant’s absence.
The applicant is a citizen of Japan. He was born in Singapore to a South Korean mother and a Japanese father. He acquired Japanese citizenship by birth. The applicant entered Australia on 6 February 2007 on a visitor visa. He held visitor and student visas until the end of 2012. After his last visa ceased, he made an application for a temporary work visa which was refused. On 20 October 2014, the applicant applied for a protection visa. On 5 August 2015, the delegate made a decision to refuse the grant of a protection visa.
On 7 July 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal recorded that:
Claims made at the Tribunal hearing on 28 October 2016
…
16. The applicant said he could not live in Japan as he has never been to school or worked there. He has only visited Japan briefly - mostly when he was a child. His last visit was in 2011 for only one week. He is illiterate in Japanese. He would not be able to be independent and would have difficulty finding employment because he is illiterate. He would also be discriminated against due to his Korean ethnicity. He acknowledged he has never experienced any harm in Japan. Although some of his father’s family reside there they would not assist him because they have made clear they do not find his Korean ethnicity acceptable.
17. The Tribunal put to the applicant independent country information that, although it would be possible or even likely that he would suffer social discrimination and discrimination in obtaining employment, there was no indication that there would be a real risk or real chance that he would suffer serious or significant harm. The applicant reiterated that he did not want to live in Japan as he did not wish to suffer discrimination and be unable to obtain suitable employment.
(Citations omitted.)
The Tribunal found as follows:
Delay in lodging the application
20. The Tribunal places significant weight on the length of time between when the applicant entered Australia and when he lodged the visa application. The Tribunal considers that if the applicant genuinely feared returning to Japan he would have sought protection in Australia sooner than he did. The applicant told the Tribunal that he only applied for protection when his application for a sponsored skilled visa was rejected by the Department and this decision was affirmed by the court. The Tribunal considers that the applicant did not seek protection sooner because he did not, and does not, actually fear suffering serious or significant harm in Japan.
…
24.On the basis of this evidence, the Tribunal is satisfied that the applicant may suffer some social discrimination due to his perceived Korean ethnicity or mixed ethnicity. In addition, his ability to find employment is likely to be limited if he is removed to Japan. However, the Tribunal considers this is more likely to be as a result of his illiteracy in Japanese and lack of work experience in the field in which he is qualified, rather than for a Convention reason.
25.Section 91R(2) of the Migration Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
26.Taking into account the applicant’s oral evidence, his multi-lingual abilities, education, qualifications and the available country information, the Tribunal is not satisfied that there is a real chance that the applicant will suffer such significant economic hardship that it would threaten his capacity to subsist or that there is a real chance he would suffer a denial of a capacity to earn a livelihood of any kind if he is removed to Japan now or in the foreseeable future. The Tribunal is not satisfied that there is a real chance that the applicant will suffer ‘serious’ harm, having regard to the examples provided above.
27. Therefore, on the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if he is removed to Japan. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
28. The Tribunal also considered the applicant’s claims under the complementary provisions and has had regard to the PAM3 Refugee and Humanitarian - Complementary Protection Guidelines. The Tribunal accepts that the applicant will face difficulties as a Japanese citizen who has limited familiarity with Japanese mores and culture and who is functionally illiterate in Japanese. The Tribunal is not entirely satisfied that he would have no family support in Japan as he gave evidence that he has visited his father’s family in Japan a number of times, albeit briefly. Nevertheless, the Tribunal is prepared to give him the benefit of the doubt and accept he has very little family support in Japan. Consequently he may suffer some hardship as he tries to find accommodation, earn an income and familiarise himself with the culture and the written language. However, the Tribunal is not satisfied that these hardships, even taken into account cumulatively, will result in a real risk that he will suffer “significant harm” as it is exhaustively defined in subsection 36(2A) of the Act.
Accordingly, the Tribunal was not satisfied that the applicant met the criteria set out in ss 36(2)(a), 36(2)(aa) of the Migration Act1958 (Cth) and affirmed the delegate’s decision. The applicant then applied for review of the Tribunal’s decision to the Federal Circuit Court.
At the commencement of the hearing before the primary judge on 22 August 2017, a solicitor appeared for the applicant and sought an adjournment of the proceedings. The solicitor had only received instructions on the evening before and sought the adjournment in order to brief counsel to consider the applicant’s grounds and review the material. The solicitor considered that there was a potential issue in relation to a non-disclosure certificate issued by the first respondent pursuant to s 438 of the Act which was in evidence before the primary judge.
The primary judge refused to grant an adjournment. His Honour noted that the proceedings had been on foot for almost nine months and that the applicant had been aware of the hearing date since April 2017. His Honour considered that the respondent had ample opportunity to obtain representation earlier than the night before the hearing. The applicant had been given an opportunity to give evidence in support of his application and to explain the steps he had taken to obtain representation, but did not do so. His Honour was not satisfied that there was any basis to grant an adjournment because of a desire to explore the issue under s 438 of the Act. His Honour was not satisfied that a grant of an adjournment was in the interests of the administration of justice and, accordingly, refused the application.
Having dealt with the application for an adjournment, his Honour heard argument on the substantive application and gave an ex tempore judgment dismissing the application. His Honour said in his reasons:
Ground 1
18.In relation to ground 1, it is clear that the Tribunal took into account the applicant’s Korean ethnicity in relation to the applicant’s claims and made adverse findings dispositive of those claims that were open on the material before the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.
Grounds 2 and 3
19. In relation to grounds 2 and 3, the weight to be given to evidence was a matter for the Tribunal. Grounds 2 and 3 fail to make out any jurisdictional error.
Ground 4
20. Ground 4 in substance, seeks to take issue with the adverse findings made by the Tribunal. This Court does not have the power to revisit the merits. The adverse findings were open for the reasons given by the Tribunal which were rational and logical. Ground 4 fails to make out any jurisdictional error.
Ground 5
21. Ground 5 misconceives the reasoning of the Tribunal. The Tribunal in fact gave the applicant the benefit of the doubt in relation to having limited family support, but found that these hardships, even considered cumulatively, would not give rise to significant harm under s.36(2A) of the Migration Act. Accordingly, ground 5 fails to make out any jurisdictional error.
Ground 6
22. In relation to ground 6, the adverse findings by the Tribunal were the subject of reasoning that was rational and logical and based on the material before the Tribunal. No jurisdictional error is made out by ground 6.
Ground 7
23.Ground 7 in substance invites this Court to engage in an impermissible merits review in respect of which this, Court has no power. Ground 7 fails to make out any jurisdictional error.
s.438 Certificate
24. Consistent with the first respondent’s duties as a model litigant, the first respondent has drawn the Court’s attention to the issue of the certificate in the present case and the material, the subject of the certificate has been tendered.
25. The first respondent accepts that this Court is bound by the decision in MZAFZ v Minister for Immigration and Citizenship (2016) 243 FCR 1 to find that the certificate under s.438 was invalid. The Court has looked at the material to the subject of the certificate. That material was not referred to and the Court finds, has not been relied upon by the Tribunal in the conduct of the review.
26. The material on its face, is plainly irrelevant to the subject matter of the review and did not give rise to any practical injustice to the applicant. The Court is satisfied that the failure to disclose the existence of the certificate and the documents the subject of the certificate could not possibly have affected the outcome of the review. No jurisdictional error is made out by reason of the failure to disclose the existence of the certificate, or the documents the subject of the certificate.
27. Further, this is a case where the Court is satisfied that there could not possibly have been any impact on the applicant in the conduct of the review by reason of the failure to disclose the certificate and the documents the subject of the certificate, and accordingly, if any relevant legal error were found, relief would be refused on discretionary grounds.
Accordingly, his Honour dismissed the application with costs.
The factors relevant to an application for an extension of time within which to appeal include the explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the proposed appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 at 348-349.
The application was filed about two weeks late. There is no intelligible explanation for the delay given in the evidence. The first respondent does not assert that he suffers any prejudice. In this case the merits of the proposed appeal will be the decisive factor.
The applicant has filed an affidavit which sets out his proposed grounds of appeal as follows:
3.I have been declined by MRT and Federal Circuit Court (hereinafter called “FCC”), which I am of the view that decision is erroneous and insufficient FCC, MRT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness
4. FCC and MRT has failed to serve the documents in proper manner
5. FCC, MRT and DIBP have failed to do correspondences incorrectly and insufficientl
6. FCC AND THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING MY CASE PROPERLY AND ADEQUATELY
7. The FCC and Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application
8. In this respect, FCC and the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.
9. FCC AND THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING ME THE OPPORTUNITY TO PROPERLY CONSIDER MY LEGAL POSITION, GIVEN MY LIMITATION IN THE LEGAL SYSTEM
10. FCC AND THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT’S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECCESSARILY LIMITED AND CONSTRITED AND WHICH FITTED THE TRIBUNAL MEMBER’S PERSONAL VIEW RATHER THAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW
11. FCC AND The Tribunal Member therefore regarded the Applicant’s as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness
12. FCC AND The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances
13. Had FCC AND the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review
14. I believe that I would be eligible to be granted for previous application.
15. I respectfully submit that FCC and MRT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest case
(Errors, punctuation and formatting as in the original.)
The applicant has not filed any written submissions in support of his proposed grounds.
Grounds 3, 4, 5, 6, 7, 8, 9, 12 and 15 each seem to allege that the Tribunal and the Federal Circuit Court denied the applicant natural justice or procedural fairness. The applicant alleges that the Tribunal and the Federal Circuit Court failed to provide or serve documents, or failed to provide them in a proper manner. The applicant has not identified what documents or correspondence was not served or not served properly. While he asserts that the Federal Circuit Court and the Tribunal failed to take into consideration procedural errors made by the Department of Immigration and Border Protection in assessing his application, he has not identified what those errors were and, in any event, it is not clear how any such errors could impact upon the decisions of the Tribunal and the Court.
To the extent that the applicant’s complaint of denial of natural justice or procedural fairness is that he was refused an adjournment in the Federal Circuit Court, he has not identified any error on the part of the primary judge. It was open to his Honour to refuse an adjournment in the absence of an explanation for why he could not have engaged a lawyer at an earlier time. No error can be discerned in his Honour’s ruling refusing the adjournment.
Ground 10 asserts that the Tribunal and the Federal Circuit Court took a view of the Migration Act and Migration Regulations 1994 (Cth) that was unnecessarily limited and constricted and which fitted the Tribunal member’s personal views. To the extent that the applicant asserts that there was misconstruction of statutory provisions, the provisions are not identified, and nor are the asserted errors. In these circumstances the ground cannot succeed.
Grounds 11, 13 and 14 assert that the Tribunal and Federal Circuit Court failed to consider or give proper consideration to the applicant’s personal circumstances. No such error is discernible from the reasons given by the Tribunal or the Court. In each case, the particular facts and circumstances of the applicant’s case were considered, as were the claims and arguments raised by the applicant. The Federal Circuit Court was, of course, required to accept the facts as found by the Tribunal in the absence of some jurisdictional error concerning the Tribunal’s findings of fact.
In my view, the applicant has not demonstrated any prospects of success in his proposed appeal, therefore the application must be refused with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 April 2018
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