ECV18 v Minister for Home Affairs
[2019] FCCA 2937
•8 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ECV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2937 |
| Catchwords: MIGRATION – Application for extension of time to file in the Federal Circuit Court – whether leave to file should be granted – whether it is necessary in the interests of the administration of justice to grant an extension of time. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A(1), 424A(3)(a) |
| Cases cited: CEV15 v Minister for Immigration and Border Protection [2017] FCA 976 |
| Applicant: | ECV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2378 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 8 October 2019 |
| Date of Last Submission: | 8 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 8 October 2019 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondents: | Mr Creedon |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application for an extension of time filed 6 August 2018 be refused and such order becomes operative from the date written Reasons are published.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.
The time for lodging any appeal be extended until 14 days after the publication of written Reasons.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2378 of 2018
| ECV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
On 6 August 2018, the applicant filed an application for an extension of time to apply for judicial review to the Federal Circuit Court. The applicant sought judicial review of the Second Respondent’s (‘Tribunal’) decision to affirm the decision of the delegate (‘Delegate’) of the First Respondent (‘the Minister’) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (‘the Visa’).
The impugned decision was made on 22 June 2018. The time for filing the application concluded on 27 July 2018. Consequently, the application made on 6 August 2018 was made 10 days out of time.
Background
The applicant is a 60 year old Malaysian citizen of Indian ethnicity.
He travelled to Australia on 7 June 2001 on a visitor visa and, after that visa expired, he remained in the Australian community for almost 17 years before he was detained on 15 February 2018.
On 7 March 2018, the applicant applied for the Visa, claiming that he had borrowed money from loan sharks and was unable to pay them back. He claimed that he feared returning because he would have to pay the loan sharks back or be killed. He claimed that the loan sharks had threatened and assaulted him and that he could not rely on the police for protection because they were involved with the loan sharks.
On 13 March 2018, the Delegate refused to grant the Visa and did not accept that the applicant owed money to any loan sharks.
On 14 April 2018, the applicant lodged an application to the Tribunal for a review of the Delegate’s decision.
On 4 June 2018, the applicant attended a hearing before the Tribunal.
On 22 June 2018, the Tribunal affirmed the Delegate’s decision not to grant the Visa.
The Tribunal’s decision
The Tribunal’s decision is a comprehensive one and records in detail the applicant’s claims made in his protection visa application. The decision record notes all the material that was provided to the Tribunal by way of written submission to the Tribunal on 1 June 2018, and at [14] sets out the evidence that was given to the Tribunal at the hearing conducted on 4 June 2018. The Tribunal makes reference to a hearing on 21 May 2018 at [14] of the Tribunal’s decision record, however, this seems to be an error in the decision record as pages 98 and 99 of the Court Book record the hearing having occurred on 4 June 2018 and on no other date.
The Tribunal accepted that the applicant had been unable to pay back money borrowed from loan sharks. At [8] of the Tribunal’s decision record, the Tribunal accepted that the applicant was physically assaulted by a loan shark on one occasion in May 2001. The applicant was found to have consistently maintained this claim and to have provided a reasonable level of detail about the event. It was found that available country information also indicates that, while infrequent, loan sharks may engage in physically violent acts to force debtors to make repayments.
The Tribunal did not accept claims that the loan sharks had visited the applicant’s family demanding repayment since he departed Malaysia in 2001. At [19] and [20] of the Tribunal’s decision record, the Tribunal sets out its reasons for doing so, which included that:
a)there was no reasonable explanation why the family would not inform the loan sharks the applicant was overseas;
b)there was no explanation why the loan sharks would continue to persist to visit his family for over 17 years, given the low value of the loan and attempts to recoup the loan were ineffectual;
c)there was no indication in the initial visa application that loan sharks had showed any interest in his family since he departed Australia;
d)the Tribunal did not accept the letter from the applicant’s sister as factual because it was at odds with the applicant’s evidence; and
e)it was unlikely that the sister had waited 17 years to inform the applicant of these visits and threats.
The letter is outlined at [20] of the Tribunal’s decision record and purports to be written by or for the applicant’s elder sister in April 2017. The letter raises concerns about the loan sharks visiting the family regarding the applicant’s debts.
At [23] of the Tribunal’s decision record, the Tribunal considered that the chances of any loan sharks maintaining any interest or awareness of the applicant’s debt after the time that had elapsed was remote.
At [24] of the Tribunal’s decision record, the Tribunal also noted that if repayment of the debts was demanded, the Tribunal could see no reason why the creditors would not wait the short time until July 2019 when the applicant would be able to access his retirement funds to pay off the loan.
The Tribunal concluded at [24] of the decision record, finding that if the applicant returned to Malaysia, the chance of serious or significant harm because of the debts was remote.
The Tribunal also considered that Malaysia offered effective state protection and, if it was in error in relation to that, the applicant could relocate to Kuala Lumpur from the applicant’s home province of Penang. The Tribunal considered the practicability of the applicant relocating to Kuala Lumpur, referring to the applicant’s cooking skills and business skills which would allow him to find work in a city such as Kuala Lumpur. It also noted that his sister and daughter are also in Kuala Lumpur and that he would have family support there.
The Tribunal concluded in finding that it was not satisfied that the applicant met the criteria in either sections 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’) and affirmed the decision under review.
Grounds of review
The applicant has not filed an affidavit or submissions in relation to the explanation for the delay in filing the application, although the grounds of his application record the reasons for the delay in brief terms. He has told me this day that he sent the application by fax on 9 July 2018 and had not received a response and continued to send it. I do accept that the applicant was attempting to file the application. There is no basis on the material before me that the applicant is seeking to mislead the Court about those matters. He is vitally interested in his application and, in my view, there is an explanation for the delay.
Moving from that point, I then must consider whether there is really any benefit or utility in granting an extension of time in the circumstances of the application. The grounds of the application made by the applicant for judicial review are:
1. The AAT made a mistake by not giving me procedural fairness as it did not put adverse information to me for comment.
2. The AAT did not properly consider all my claims or evidence.
3. I have made an application for Victoria Legal Aid.
I accept that the applicant is in detention and the filing of material, preparation of affidavits or filing of particulars is difficult. He did tell the Court that he had sought legal advice, but there had been no ongoing advice and that he had not been able to engage solicitors to assist.
I spoke at length with the applicant, in the course of the hearing, to seek to ascertain what he meant by grounds 1 and 2. I have also read the decision and the supporting material which was before the Tribunal, in order to ascertain whether there is any arguable ground.
Consideration
Where an application for an extension of time is sought, there are a number of matters that the Court must consider. The Court must be satisfied that it is necessary in the interests of the administration of justice to make the order. In CEV15 v Minister for Immigration and Border Protection [2017] FCA 976, Perry J at [9] summarised the principles to be applied 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.
Ground 1 has no substance. It is not apparent what adverse action was considered by the Tribunal that was not put to the applicant. As the Minister submits, if the adverse action was information comprised in country information, section 424A(3)(a) excludes country information from the requirements of section 424A(1) of the Act.
Ground 2, similarly, has no substance. As I noted earlier, the Tribunal seemed to be at pains to list the claims put by the applicant. Having read the materials that were submitted on the applicant’s behalf, the summary of claims seems to be a comprehensive and detailed account of the claims that were made. These included claims that the applicant has said that he could not tell loan sharks and money lenders that he will pay them when he receives his retirement moneys in July 2019, because he will want the money immediately. He made similar comments to the Court today.
There is no error in the way that the Tribunal has conducted the hearing. The applicant has been accorded procedural fairness, and the applicant’s claims have been considered.
I note also that the decision was clearly not an easy one for the Tribunal to make, having regard to the particular circumstances of the applicant as relayed through his material. The Tribunal accepted that his partner had suffered, over a reasonably long period, from mental illness. The Tribunal accepted that the applicant had assisted her, and been with her as a supporter of hers through her illness. At [27] to [29] of the Tribunal’s decision record, the Tribunal stated as follows:
The applicant raised further issues about having formed a long term relationship with an Australian permanent resident of Malaysian nationality. He stated that his partner developed a serious mental illness some years ago and he has been her sole carer and support in Australia. He also stated that he convinced her to return to Malaysia after he was detained in immigration detention, because there was no one else to care for her in Australia. The applicant was not raising claims to fear harm in Malaysia because of his relationship but was presenting this information as a reason for the some of the financial difficulties he faced in Australia, and a further reason why he wanted to remain in Australia.
The Tribunal accepts the applicant’s statements about his relationship and partner. Movement Records confirm that the applicant’s partner is an Australian permanent resident and that she returned to Malaysia shortly after the applicant was put in detention.
The Tribunal has sympathy for the applicant’s and his partner’s situation and his concern for his partner’s future well-being. However the relationship and its special circumstances do not give rise to any chance of serious or significant harm to the applicant. If his partner was still resident in Australia the Tribunal would consider a recommendation to the Minister under s.417 of the Act, to allow the applicant to continue to care for his partner in Australia. However she is now living with her family in Malaysia. If the applicant returns to Malaysia he will be able to resume contact with her there. The Tribunal is not satisfied that the applicant faces any chance of harm in Malaysia because of his relationship with his partner.
I also express my sympathy for the applicant’s circumstances, having read the material he presented. All the people who spoke on his behalf (in the material filed with the Tribunal) spoke warmly of him, both in a personal way and in terms of his capacities as a chef, a businessperson and a carer.
However, I must apply the law. The decision of the Tribunal discloses no error, and there is no arguable case raised by the applicant such as would warrant the grant of an extension of time. For those reasons, the Court dismisses the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 15 October 2019
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