Dwu16 v Minister for Immigration and Border Protection
[2018] FCA 1191
•10 August 2018
FEDERAL COURT OF AUSTRALIA
DWU16 v Minister for Immigration and Border Protection [2018] FCA 1191
Appeal from: Application for extension of time: DWU16 v Minister for Immigration & Anor [2018] FCCA 704 File number: NSD 597 of 2018 Judge: ROBERTSON J Date of judgment: 10 August 2018 Catchwords: MIGRATION – interlocutory order of the Federal Circuit Court of Australia dismissing application to that Court pursuant to r 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) – application for an extension of time – application for leave to appeal Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.03B(1)(a)
Federal Court Rules 2011 (Cth) r 35.13
Date of hearing: 9 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 597 of 2018 BETWEEN: DWU16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
10 AUGUST 2018
THE COURT ORDERS THAT:
1.Time be extended so as to permit the applicant’s application for leave to appeal to be filed on 16 April 2018.
2.The applicant’s application for leave to appeal be refused.
3.The applicant pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This is an application for an extension of time and leave to appeal filed in this Court on 16 April 2018.
The proceedings concern the decision of the Administrative Appeals Tribunal (Tribunal) dated 17 November 2016, affirming the decision not to grant the applicant a Protection visa.
The applicant was found by the Tribunal to be a citizen of Pakistan. The applicant had stated that he could not return to Pakistan because he feared he would be harmed by relatives, extremists and his fellow Pakistanis because he is gay. He also stated that in Australia he had had a number of relationships, including a current relationship.
The orders of the Federal Circuit Court of Australia were made on 23 March 2018. The primary judge, acting pursuant to r 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) dismissed an application to review the decision of the Tribunal due to the applicant’s failure to comply with the Court’s order, made on 8 September 2017, requiring that any application for an adjournment be supported by a medical opinion as to the fitness of the applicant to attend court.
The orders of the primary judge were interlocutory and an application for leave to appeal was required to be filed within 14 days after the making of the primary judge’s orders: see r 35.13 of the Federal Court Rules 2011 (Cth). The applicant requires an extension of time of some 11 days to bring this application for leave to appeal.
Grounds
The grounds of the applicant’s application to this Court are not particularised and are stated as follows:
1. The grounds of my appeal are;
a. jurisdictional error,
b. miscarriage of justice, and
c. the lacking of the FCC to take into account complete set of facts.
In the draft notice of appeal the following was added, as written:
Orders sought
1.The orders I seek is for the refusal of my Protection Visa to be overturned, as I have satisfied all requirements for grant.
2.Further to this, I seek costs for the financial and emotional toll that this refusal has placed me in.
The evidence
The applicant’s affidavit in support, filed 17 April 2018, did not provide any further explanation of the content of the application for an extension of time, application for leave to appeal or the proposed grounds of appeal. It stated:
1. I AM THE APPLICANT IN THE PROCEEDINGS
2.ALL THE INFORMATION IS CORRECT AND TRUE TO MY KNOWLEDGE
3.ANNEXURE HERETO AND MARKED "AB1"IS THE COPY OF AAT DECISION DATED
4.ANNEXURE HERETO AND MARKED "AB 2"IS THE COPY OF DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION'S NOTIFICATION AND DECISION RECORD
5.ANNEXURE HERETO AND MARKED "AB 3"IS THE COPY OF FEDERAL CIRCUIT COURT OF AUSTRALIA'S NOTIFICATION AND DECISION RECORD
It does not appear that all of this material was in fact annexed to this affidavit, although the reasons for judgment of the primary judge were so annexed.
There was however read on behalf of the first respondent, the Minister, an affidavit of Ms Charlotte Elizabeth Saunders, solicitor, affirmed 28 May 2018, which included as annexures copies of the written decision record of the Tribunal dated 17 November 2016 and the sealed orders of the primary judge dated 23 March 2018.
The decision of the Tribunal
The Tribunal said, at [12], that given the applicant’s inconsistent testimony in relation to when and why he became aware of his homosexuality, it did not accept that the applicant was gay. The Tribunal also took into account that the applicant entered Australia on 24 July 2007 on a student visa that ceased on 1 June 2011 but did not apply for a protection visa until 4 July 2014.
At [13], the Tribunal said it did not accept that the applicant had had relationships with men as claimed. The Tribunal was not satisfied that the applicant was gay as claimed or that he told his family he was gay or that they pressured him to change his sexual preferences. The Tribunal did not accept that the applicant’s family thought he was disgracing their family honour or that the applicant consulted a religious scholar regarding this.
At [14], the Tribunal did not accept that the applicant and another man the applicant claimed to have lived with for a time liked each other. Neither was the Tribunal satisfied that the applicant would be perceived to be homosexual now or in the reasonably foreseeable future.
For similar reasons the Tribunal rejected both the applicant’s Convention claims and his claims for complementary protection.
The reasons of the primary judge
In his short reasons, the primary judge set out order 3 that he had made on 8 September 2017, as follows:
There be no adjournment of the final hearing by reason of an asserted illness unless the applicant provides an opinion of a medical practitioner as to his unfitness to attend Court.
The primary judge said, at [7]:
… In view of the applicant’s default and the failure of the applicant to attend by telephone in order to address the circumstances, I have decided to dismiss the application on account of the applicant’s default. There is a strong impression which I glean from the circumstances in this case that the applicant is, in fact, toying with the Court through these asserted medical conditions.
Submissions
I have set out the draft notice of appeal at [6]-[7] above.
No written submissions were filed on behalf of the applicant.
In oral submissions, the applicant said, on the question of an extension of time, that he had no knowledge of how long he had to appeal and that was why he was late in filing the application in this Court.
As I understood it, the solicitor for the Minister accepted this explanation.
There being a reasonable explanation for the delay, I propose therefore to grant the application for an extension of time, of some 10 days, and to consider whether there is sufficient doubt as to the correctness of the judgment of the primary judge in the context of the application for leave to appeal.
On that question, the applicant submitted that the primary judge rejected his application even though he was actually sick when the hearing was before the Federal Circuit Court. He did not tell the doctor providing the certificate about the court hearing so the doctor was not aware of that fact. If the applicant had told the doctor, the applicant said, the doctor then might have mentioned it in the medical certificate. I took this submission as referring to both the doctors referred to at [4] and [5] of the reasons of the primary judge.
In relation to the decision of the Tribunal, the applicant submitted that although the Tribunal had said his evidence was inconsistent, he was very upset and had depression at the time so he could not concentrate. He was not in a position to tell the Tribunal the exact dates of the incidents which occurred in the past and that was why he was not believed as a credible witness. He was moving from one address to another and he was unable to produce exact addresses and he could not remember exactly what the timeframe was. He had to tell the Tribunal about addresses but that was four to five years before and he could not remember as he was changing the places he was living, for his safety. That was why the Tribunal said his evidence was vague and inconsistent and that was the main reason his application was rejected.
The Minister submitted there was no error in the exercise of jurisdiction by the primary judge. It was clearly open to the primary judge to dismiss the application under r 13.03B of the Federal Circuit Court Rules 2001 (Cth) in circumstances where the applicant was in default of the orders, having made a further request for an adjournment without providing medical evidence of his unfitness to attend court, and having not appeared at the hearing. The Minister also submitted that the grounds of the draft notice of appeal did not demonstrate any merit in the substantive appeal.
As to the decision of the Tribunal, the Minister submitted that there was no arguable ground in the draft notice of appeal and there was otherwise no doubt as to the consideration of the issues by the Tribunal. The Minister noted that the applicant both attended the hearing before the Tribunal and responded to a subsequent written notice under s 424A of the Migration Act.
Consideration
In my opinion, the applicant has not shown sufficient, or any, doubt as to the correctness of the judgment below to warrant review. The decision by the primary judge had as its basis not only what the applicant now accepts were deficient medical certificates but also the unsuccessful attempts to contact the applicant on the day of the hearing and his absence from the hearing.
For completeness, the applicant has not articulated any error, let alone jurisdictional error, on the part of the Tribunal. I note that the decision of the Tribunal turned on whether or not it believed the applicant. Because of discrepancies in important parts of that evidence, the Tribunal did not believe the applicant. Neither did the delegate. In the absence of the applicant pointing to any relevant error, it was open to the Tribunal to make that finding.
Conclusion and orders
The application for leave to appeal is dismissed, with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 10 August 2018
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