DXW18 v Minister for Home Affairs
[2018] FCCA 3467
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DXW18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3467 |
| Catchwords: MIGRATION– Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal not to grant to him a protection visa because he did not appear at the scheduled hearing before it – applicant needed a 563 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for proposed substantive grounds – application for extension refused. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.348, 360, 362B, 363, 425, 426A, 426B, 438, 441A, 441B, 441C, 477 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Bechara v Bates [2018] FCA 460 BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 Sullivan v Department of Transport (1978) 20 ALR 323 |
| Applicant: | DXW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2112 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms S. He |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2112 of 2018
| DXW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a male citizen of Malaysia aged 42 years, having been born on 9 January 1976.
By Application filed in this Court on 31 July 2018, he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 563 days outside the 35 day time limit prescribed by s.477(1) to make his substantive application to this court; and
b)to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 March 2016 refusing to grant a Protection (Class XA) (Subclass 866) visa (Protection visa) to him.
Background
The Applicant arrived in Australia on an Electronic Travel Authority (Subclass 601) visa and applied for the Protection visa on 21 January 2016. In his Protection visa application form he stated that he spoke, read and wrote Chinese / Cantonese; that he spoke, read and wrote English; and that he spoke and wrote Malaysian.
Claims to Protection
In a Statement dated 20 January 2016 forming part of his Protection visa application, he claimed to be at risk of harm in Malaysia from the Malaysian government on the basis of his Chinese ethnicity. He claimed that ethnic Chinese were discriminated against blatantly and that after he had opened a shoe factory with friends in 2014, Government officers harassed them and asked for bribes which led to the closure of the factory. He claimed to fear that if he returned to Malaysia, he would face revenge from Government officers. He claimed that Malaysia blatantly discriminated against ethnic Chinese and tried to prevent them from becoming rich.
Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6] The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
In his Decision Record the Delegate summarised, first, the Applicant’s claim to protection by stating:
a)he is a Malaysian Chinese;
b)the Malaysian government always shows favour to local Malays;
c)Malaysia discriminates against ethnic Chinese;
d)he cooperated with friends to run a shoe factory. Local Government officers came to find troubles and harass them and wanted bribes;
e)he made a complaint but it did not work. After learning about the complaint, the Government officers frequently came to the factory to cause trouble. He lost all his money that he had invested in the shoe factory; and
f)ethnic Chinese could be beaten when walking on the street.
The Delegate then proceeded to state that he was satisfied, with respect to the Refugee’s Convention, that the Applicant was claiming fear of persecution for reasons of race. The Delegate thereafter in his Decision Record proceeded to consider country information and accepted that discrimination occurred in Malaysia in favour of ethnic Malays and the indigenous groups of the eastern starts of Sabah and Sarawak.
However, the country information, including a DFAT report published in December 2014, indicated that the Malaysian Constitution provided for equal protection under the law and prohibited discrimination against citizens based on race, gender, religion, descent or place of birth. The country information did not indicate that discrimination in favour of ethnic Malays amounted to persecution against Malays of Chinese ethnicity and that Malaysian Chinese constitute one of the largest overseas Chinese communities in the world and are the second largest ethnic group in Malaysia and that there were no laws or constitutional provisions that directly discriminated against them.
In the result, the Delegate was not satisfied that Australia owed protection obligations to the Applicant under either the Refugee’s Convention criterion or the complementary protection criterion and he refused to grant a Protection visa to the Applicant.
Decisions of Tribunal
The Applicant lodged his application for merits review with the Tribunal on 29 March 2016. He gave his email address for the purpose of correspondence and communications from the Department of the Minister (nominated email address).
The Tribunal sent a letter to the Applicant dated 27 October 2016 to his nominated email address which invited him to appear in a hearing before the Tribunal on 24 November 2016 at 9.30am and went on to advise him that if he was not able to attend the hearing, he needed to advise the Tribunal as soon as possible. It noted that any request to postpone a hearing must be made in writing as early as possible and give the reasons for making the request. It further noted that the Tribunal would only change the date of the hearing if satisfied that the Applicant had a very good reason for being granted an adjournment and if the Applicant did not obtain advice from the Tribunal that an adjournment had been granted, he had to assume that the hearing would go ahead. There was also included with this letter an information sheet which again reiterated that the Tribunal needed to be advised as soon as possible if the Applicant could not attend a scheduled hearing.
Unfortunately, the Applicant did not attend the hearing on 24 November 2016, and made no contact with the Tribunal before failing to appear, to advise that he would not be appearing, nor did he seek an adjournment. Accordingly, by its decision of 24 November 2016 the Tribunal dismissed the review application under s.426A(1A) of the Act.
The Tribunal, in its decision record of that date, noted that the Applicant had been invited to appear on 24 November 2016 under s.425 of the Act, but that he did not appear at the scheduled time and place and that, as no satisfactory reason for the non-appearance had been given, the Tribunal had decided to dismiss the application without further consideration.
The Applicant was on the same date, namely 24 November 2016, notified of the dismissal by email to the nominated email address and the Decision Record of that date was also sent. The letter informed him, importantly, that he had the right to apply to the Tribunal for reinstatement of his review application by 8 December 2016. Nothing was heard from the Applicant. The Applicant did not make an application to reinstate the review application. Accordingly, by its decision of 9 December 2016 the Tribunal confirmed its earlier decision of 24 November 2016 and this meant that the effect of the confirmation decision was that the Delegate’s decision under review was confirmed.
Grounds of Extension Application
The Grounds of the extension application are verbatim as follows:
1. The applicant did not receive the decision record from the Tribunal on time.
2. The applicant had limited knowledge in time length of making appeal.
3. The applicant had to seek application fee from friends and families.
At the directions hearing, being the first return date of the Application in this proceeding, I note that I specifically advised the Applicant that he was 19 months late in bringing his Application to this Court and that this was a very long period, which he needed to explain. I further noted that he needed to explain why he had not appeared at the Tribunal hearing on 24 November 2016 and that he may wish to give evidence about that.
In the result, the Applicant has not led any evidence at all explaining why he needs an extension of some 563 days, which is an extraordinarily long extension of time. He has not filed any affidavit explaining the position. This morning at the hearing he has spoken of a solicitor being involved, but his only identification of that solicitor is that he is a solicitor in Chinatown. The evidence before the Court indicates that he has never had a solicitor or any lawyer involved since the time his Protection visa application was filed.
In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.
Those factors include:
a) whether there has been a reasonable and adequate explanation for the Applicant’s delay and the extent of the delay;
b) whether there is any prejudice to the Minister; and
c) whether the Applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive Ground beyond “a reasonably impressionistic level”.
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17] The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18] As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17] In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
In my view, the Applicant has completely failed to give a reasonable or adequate explanation of his delay in approaching this Court. He also gave as a reason that he did not understand English and he was, thus, disadvantaged. However, thousands of applicants in this Court suffer from that disadvantage and manage to make their Applications in time, even when they do not have the benefit of a lawyer.
However, I now turn to the issue of whether or not there is any arguable basis for the Applicant’s proposed substantive Grounds.
Proposed Substantive Grounds
The Applicant’s proposed substantive Grounds are verbatim as follows:
1. AAT could not give me an opportunity to explain further.
I told AAT that I was persecuted by the Malaysian government for reporting corruption by the Malaysian government. My body and my mind were badly hurt. The AAT does not believe that I have been persecuted by the government in Malaysia. It didn’t give me a fair chance to explain. This is grossly unfair.
2. AAT misunderstood my explanation totally.
For example, AAT asked me why I should apply for a protective visa, and I replied that it was because I wanted to stay in Australia. AAT misunderstood that I didn’t really want to apply for protection. In fact, my intention is to say that I want to stay in Australia to avoid the physical and mental persecution from the Malay government. The Malaysian government is highly corrupt and discriminates against the Chinese because I expose corruption. I need protection from the Australian government. But AAT doesn't understand that. This is a serious distortion of what I mean.
3. AAT did not fulfill their obligation to inform of me according to the law.
According to the United Nations Convention and the Refugee Convention. After AAT has rendered a ruling on my application, AAT shall inform me of the result according to law. My right to be informed is legally protected.
4. AAT believed that I would not be persecuted when I returned to Malaysia, but could not give any convincing evidence. The Malaysian government is autocratic and lawless. And the discrimination against Chinese people is serious. If I return to Malaysia, I will continue to suffer persecution and cannot live a normal life.
5. I did not receive the decision from AAT on time. When I knew AAT affirmed the decision not to grant me a protection visa, I felt it is a significant unfair and made determined to appeal. However, I had limited knowledge in time length of making appeal, and I had to seek application fee from my friends and families, which caused delay of submitting application to the court within a lawful period. Please forgive me and give me this opportunity.
I note at this point that the Applicant cannot fruitfully attack the confirmation decision of 9 December 2016, but only the earlier dismissal decision of the Tribunal of 24 November 2016. I grant leave to the Applicant to amend his Application to substitute for the date of the decision he seeks to set aside, namely the date of “24 November 2016” for “9 December 2016”, and dispense with the need for the Applicant to file and serve any formal Amended Application to that effect.
However, in my view, none of the proposed substantive Grounds have reasonable prospects for establishing that the decision of the Tribunal was affected by jurisdictional error. The Grounds, in fact, appear to be directed at the prior decision of the Delegate, which is not susceptible to review in this Court.
Consideration
Proposed Ground 1
This proposed Ground seems to be based on an assumption that there was actually a hearing on the substantive merits of the Applicant’s claims before the Tribunal, when that was not the case.
Further, proposed Ground 1 seems to invoke a merits review, which is not available in this Court and proposed Ground 1 would not be made out.
Ground 2
This proposed Ground also seems to be based on the assumption that there was a merits hearing before the Tribunal of his review application of the Delegate’s decision, which was not the case.
Further, it argues with the Delegate’s decision and seems to invoke a merits review, which is not available in this Court.
Proposed Ground 2 would not be made out.
Ground 3
This proposed Ground, again, seems to be based on there having been an actual hearing before the Tribunal, when in fact there was not.
Further and in any event, the Tribunal does not have any general obligation to advise an Applicant appearing before it of the law or to set out with any specificity the Refugee Convention criteria or the complementary protection criteria.
Proposed Ground 3 would not be made out.
Ground 4
This proposed Ground essentially argues with the factual findings of the Tribunal and its rejection of the Applicant’s claims. Further, the Tribunal was not required to “give any convincing evidence” with respect to its findings. The onus was upon the Applicant to make good his claims and as Heerey J said in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348, “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
Ground 5
It is not clear what this proposed Ground actually seeks to assert. It certainly does not appear to contain any meaningful assertion of jurisdictional error against the Tribunal in the circumstances of this case. It may have something to do with the extension application but, in any event, if it was regarded as going to the extension there is no evidence in support of the assertions in proposed Ground 5 and it would fail to establish jurisdictional error.
Accordingly, the five grounds would not, in my view, have reasonable prospects of establishing that the decision of the Tribunal to dismiss for non-appearance was affected by jurisdictional error.
A Further Matter – Legal Unreasonableness
However, further and in the Applicant’s favour, I have considered whether the dismissal by the Tribunal of the review application on 24 November 2016 was legally unreasonable.
I note that the exercise of a discretionary power of the kind given here, namely to dismiss, is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.363(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time.
Further, the Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is: fair, just, economical, informal and quick.
However, these discretionary powers to adjourn a hearing, to proceed with a hearing and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.348 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear to present evidence and give arguments pursuant to the invitation extended under s.360.
However, in my view, the decision of the Tribunal to dismiss the application for review without any further consideration on 24 November 2016 was not legally unreasonable and did not “lack an evident or intelligible justification”.
In particular, also, because eo instanti it afforded the Applicant the opportunity to seek reinstatement within 14 days. The Tribunal had given to the Applicant more than sufficient opportunity to appear and argue his case.
The hearing date of 24 November 2016 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “One of the most important appointments in his life”. The Applicant was under a personal responsibility to attend in aid of his application for review, if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 at 372 [56] said in referring to proceedings before the then Migration Review Tribunal:
[56] What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
Even when offered the chance of reinstatement, the Applicant did nothing and remained totally unresponsive. He has never explained adequately, even in this Court at the hearing, why he did not seek to avail himself of the option of seeking reinstatement. In my view, the Tribunal simply could not administer its caseload if applicants could act in the way the Applicant has with respect to his application for review in this case. As Deane J pointed out in Sullivan v Department of Transport (1978) 20 ALR 323 at 343:
The tribunal has to give an applicant a reasonable opportunity to present his or her case but there is no obligation imposed upon the tribunal to engage in the impossible task of ensuring that a party takes the best advantage of the opportunity to which he or she is entitled.
In my view the Tribunal’s decision to dismiss the application for review was not “arbitrary” or “irrational” or “lacking an evident and intelligible justification”. The Tribunal had a “genuinely free discretion” and “decisional freedom” to make the decision which it did. In that regard, its decision did not fall outside the range of possible acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].
In my view, the Tribunal’s decision of 24 November 2016 was legally reasonable and not the subject of jurisdictional error and the decision of the Tribunal of 9 December 2016 was mandated by s.362B(1E).
Otherwise, I find that the Applicant was properly advised to attend the hearing before the Tribunal on 24 November 2016 by the s.360 letter of 27 October 2016.
I further find that:
a)the email that was sent to the nominated email address on 24 November 2016 was within the 14 day period of the date of the non-appearance decision as required by s.426B(5)(a) of the Act;
b)the Tribunal provided a copy of the statement of its non-appearance decision together with a statement describing the effect of s.426A(1B) – (1F) as required by s.426B(6);
c)the notification was sent to the nominated email address, being a method specified in s.441A: see s.426B(5)(b). As the Applicant was notified by email on 24 November 2016 he was taken to have received notification of the decision at the end of that day: see ss.441B(4) and 441C(5); and
d)the Applicant had 14 days after receiving notice of the non-appearance decision to apply to the Tribunal for a reinstatement of the application.
As no reinstatement application was received, the Tribunal notified the Applicant of its confirmation decision by a Written Statement dated 9 December 2016. The effect of this confirmation is that the decision under review is taken to be affirmed: see s.426A(1F) of the Act.
In my view, the Applicant has no reasonable prospects for success with respect to his proposed substantive grounds and there would be no utility in granting an extension of time for him to make his substantive application in this Court.
A Final Matter – s.438 Certificate
I finally deal with the s.438 Certificate issue which the Minister has raised as a model litigant. An assistant director of the Protection Processing Administration Department as a Delegate of the Minister certified, by the purported s.438 Certificate dated 1 April 2016, that information in certain folios ought not to be disclosed.
There have been a number of cases that have found that non-disclosure of such a Certificate, and the information covered by the Certificate, has caused procedural unfairness. However, in the circumstances of this case, this purported s.438 certificate was completely irrelevant and had no relationship or influence on the decision of the Tribunal to dismiss the application for review. Accordingly, the issue of the s.438 certificate could not have caused, in any way, any practical injustice or procedural unfairness in connection with the Applicant.
Conclusion
Accordingly, in the circumstances of this case there would be no utility in granting an extension of time and it would not be necessary in the interests of the administration of justice to do so and the Applicant’s Application in that regard is to be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 29 November 2018
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