Eih17 v Minister for Immigration

[2018] FCCA 1743

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1743

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application.

Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424AA, 438, 477

Applicant: EIH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2994 of 2017

Judgment of: Judge Driver

Hearing date: 29 June 2018

Delivered at: Sydney

Delivered on: 29 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2994 of 2017

EIH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 20 June 2018. 

3. The applicant is a male citizen of Malaysia. He arrived in Australia on 16 September 2015 as the holder of a subclass 601 Electronic Travel Authority visa.[1] The applicant applied for a protection visa on 14 June 2016.[2] His claims were set out in a statement annexed to the application.[3]

   [1] Court Book (CB) 52

   [2] CB 1-46

   [3] CB 42-43

4. The applicant claimed to fear harm due to opposition to the Malaysian government and their policies, and his involvement in protests against the government.  The statement outlined particular policies to which the applicant was opposed.

5. The application was refused by the delegate on 22 July 2016.[4]  The delegate found that the applicant had not provided any claims to have been a member of any political party, nor any examples of having been targeted by the government in the past.  On this basis the delegate was not satisfied that the applicant had a well-founded fear of persecution or that he faced a real risk of significant harm. 

   [4] CB 52-62

6. On 25 August 2016 a certificate and notification regarding the disclosure of information under s.438 of the Migration Act 1958 (Cth) (Migration Act) was prepared and placed on the applicant's Departmental file (the non-disclosure certificate/the certificate). The certificate covered folios 48 and 58 of the file, and stated that disclosure of these documents would be contrary to the public interest because they contain information relating to an internal working document and business affairs.

7. The applicant applied to the Tribunal for review of the delegate's decision on 19 August 2016.[5] 

   [5] CB 64-65

8. The applicant attended a hearing before the Tribunal on 3 May 2017.[6] 

   [6] CB 101-104

9. At the hearing the applicant claimed to fear harm in Malaysia as he was a member of an opposition political party, and had recruited members for this party, and that he had been threatened by members of the Malaysian National Party.[7]

   [7] CB 114 [19], 115 [24]

10. At the hearing, the Tribunal put information to the applicant pursuant to s.424AA of the Migration Act.[8] The information put to the applicant was that in his written statement the applicant had claimed to have made particular statements, which the Tribunal had found on the internet attributed to another person. The article was handed to the applicant, and the Tribunal put to him that his statement appeared to have been copied entirely from the article.

    [8] CB 114-115 [20]-[21]

11. The Tribunal made its decision on 3 May 2017, affirming the decision under review.[9]

    [9] CB 111-121

The decision of the Tribunal

1. The Tribunal noted at [9] the existence of the non-disclosure certificate on the Departmental file.  It expressed the view that the certificate was not valid, but that the documents covered by it were not relevant in any event.  There is no suggestion that the existence of the certificate was disclosed to the applicant.

2. Noting that the applicant's written statement was identical to the article it had located, the Tribunal found that the written claims were fabricated.[10]  The Tribunal noted that the applicant's claims at the Tribunal hearing bore no relationship to his written claims, and expressed concern as to his inability to name the party he claimed to have joined or to identify the people he claimed would seek to harm him.[11]  The Tribunal also expressed concern as to the delay between the applicant's subclass 601 visa ceasing in December 2015 and his applying for protection in June 2016.[12]

   [10] [34]

   [11] [35]

   [12] [36]

3. Based on the concerns summarised above, the Tribunal found that the applicant was an unreliable witness and did not accept any of his claims.[13]  The Tribunal rejected the applicant's written and oral claims in detail from [38] to [42].

   [13] [37]

The current proceedings

1. These proceedings began with a show cause application filed on 27 September 2017. That application was filed well outside the period prescribed by s.477(1) of the Migration Act. The applicant seeks an extension of time under s.477(2) of that Act.

2. The application is supported by a short affidavit with it which I received. 

3. I also have before me as evidence the court book filed on 21 December 2017 and the affidavit of Michelle Elizabeth Stone made on 12 February 2018, to which is exhibited a bundle of documents.  That affidavit relates to the purported non-disclosure certificate.

4. Only the Minister filed pre-hearing submissions in accordance with procedural orders made by a registrar. 

5. I invited oral submissions from the applicant this afternoon. He told me of his problems in Malaysia but was unable to point to any legal issue in relation to the Tribunal decision. He did not dispute that his delay in coming to court is significant but sought to explain that delay because of financial issues. However, he also told me that he not yet been charged any fee by the Court. It appears that he was somewhat apprehensive about commencing a court proceeding because of the risk of an adverse costs order.

6. The delay in this matter is approximately sixteen weeks, which I regard as significant.  I do not find the applicant’s explanation for the delay persuasive.  An apprehension concerning either an application fee or the risk of an adverse costs order is something confronting any litigant in this jurisdiction. 

7. The applicant has also referred generally to his health, but no details have been provided. 

8. I am not persuaded that the applicant has provided an adequate explanation for his delay in coming to Court.

9. Even if I had been so persuaded, there is, in my view, no merit in the proposed judicial review application.  The Minister deals with the proposed grounds in his submissions, which I agree with. 

10. The application raises four grounds of review.  Ground 4 contains the applicant's explanation for the delay of illness and financial difficulties, and does not allege any error on the part of the Tribunal.  Grounds 1, 2 and 3 are narrative in form and repeat the applicant's claims as made at the Tribunal hearing, and complain that these claims were not accepted by the Tribunal.  Plainly, these grounds go no higher than to seek impermissible merits review.  None of the applicant's grounds are capable of establishing any jurisdictional error on the part of the Tribunal. 

11. The Minister has also properly raised the issue concerning the purported non-disclosure certificate. The certificate is annexed to the affidavit of Ms Stone and is plainly, on its face, invalid. That invalidity was itself recognised by the Tribunal in its reasons at [9].[14] The Tribunal was correct.

    [14] CB 113

12. The Tribunal also states in that paragraph that the documents purportedly covered by the certificate are irrelevant to the review.  I have examined those documents, which were exhibited in a sealed envelope which I inspected this afternoon.  The documents were plainly irrelevant, and the Tribunal was correct.

13. There is therefore, in my view, no arguable case of jurisdictional error by the Tribunal either in relation to the non-disclosure certificate or anything else.

Conclusion

1. I am not persuaded that the interests of the administration of justice call for an extension of time in this case. I refuse that application pursuant to s.477(2) of the Migration Act. The consequence is that the application is incompetent for want of jurisdiction.

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       3 July 2018