ELS17 v Minister for Immigration and Border Protection

Case [2020] FCA 94

FEDERAL COURT OF AUSTRALIA

ELS17 v Minister for Immigration and Border Protection [2020] FCA 94

Appeal from: ELS17 & Anor v Minister for Immigration & Anor [2018] FCCA 1674
File number: QUD 462 of 2019
Judge: DERRINGTON J
Date of judgment: 13 February 2020
Catchwords: MIGRATION – extension of time – long delay in applying for an extension – no adequate explanation for delay – absence of merits
Legislation:

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

AXM15 v Minister for Immigration and Border Protection [2018] FCA 1186

CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101

ELS17 & Anor v Minister for Immigration & Anor [2018] FCCA 1674

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Date of hearing: 11 February 2020
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicants: The Applicants did not appear
Solicitor for the First Respondent: Ms K Reid of Clayton Utz

ORDERS

QUD 462 of 2019
BETWEEN:

ELS17

First Applicant

ELT17

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

DERRINGTON J

DATE OF ORDER:

13 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants are to pay the first respondent’s costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. The application before the Court is for an extension of time in which to appeal a decision of the Federal Circuit Court of Australia (FCC) given on 18 June 2018:  ELS17 & Anor v Minister for Immigration & Anor [2018] FCCA 1674. The first applicant is ELS17 and the second is his wife, ELT17. The FCC had dismissed their application for review of the decision of the Administrative Appeals Tribunal (the Tribunal) of 7 September 2017, which affirmed the decision of a delegate of the Minister made in May 2016 to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. Although the FCC’s decision was made on 18 June 2018, when the orders were pronounced, the written version of the primary judge’s ex tempore reasons did not become available until 18 October 2018. Nevertheless, no appeal was filed in relation to that decision within 28 days after the delivery of reasons: cf r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules). On 30 July 2019, the applicants filed an originating application seeking an extension of time in which to appeal. That application, however, does not contain the particulars required by the Rules; it is merely a signed copy of the pro forma document which is annexed to the Rules.  The only indication of the applicants’ complaints appears in the draft notice of appeal which identifies the intended…

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ELS17 v Minister for Immigration and Border Protection [2020] FCA 94
Case
[2020] FCA 94
Decision Date

CaseChat Overview and Summary

The case of ELS17 v Minister for Immigration and Border Protection involves Malaysian citizens who arrived in Australia in April 2013 on visitor visas but overstayed the expiry of those visas in July 2013. They applied for protection visas in May 2015, citing various reasons for their fear of returning to Malaysia, including forced participation in a cult and threats from cult members. The delegate of the Minister for Immigration and Border Protection refused their application on 30 May 2016, and the applicants appealed to the Administrative Appeals Tribunal (AAT). The AAT dismissed the appeal, finding the applicants' evidence lacking credibility and implausible, and concluded that the applicants did not have a well-founded fear of persecution if they returned to Malaysia.

The Federal Court was asked to review the AAT's decision, focusing on whether the AAT erred in its assessment of the applicants' evidence or in its application of the law. The court examined the AAT's reasoning and whether it was open to the AAT to reject the applicants' evidence as it did. The applicants argued that the AAT failed to consider certain evidence and did not properly assess the effectiveness of Malaysian law enforcement in protecting them. The court found that the applicants were given ample opportunity to comment on the AAT's concerns and that the AAT's rejection of the applicants' evidence was reasonable given the inconsistencies and lack of credibility. The court also determined that the alleged failure of the Malaysian Government to protect the applicants was not a valid ground for appeal, as the AAT did not accept the applicants' factual claims.

The court dismissed the appeal and ordered that the applicants pay the Minister's costs of the application. The Federal Court upheld the AAT's decision, finding no error in the AAT's assessment of the applicants' evidence or its application of the law.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants are to pay the first respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In the above circumstances, Ms Reid sought an order that the application for an extension of time in which to appeal be dismissed under r 35.33(1)(a)(i) of the Rules. Although in seeking such an order there is no requirement for the Minister to establish that the applicants have no merits to their proposed appeal, given the careful submissions which were filed on behalf of the Minister, it is not inappropriate to consider the substance of any possible appeal. Background The applicants are citizens of Malaysia. Relevantly, the applicants arrived in Australia on 29 April 2013 on UD-976 Visitor Visas, and remained in Australia unlawfully after the expiry of their visas on 29 July 2013. The evidence suggests they made their application for protection visas on 14 May 2015. A delegate of the Minister refused to grant the protection visas on 30 May 2016. On 8 June 2016, the applicants applied to the Tribunal for a review of that decision. The long delay between their arrival in this country and the making of the application raised significant concern for the Tribunal, and it is not unfair to say that, as the Tribunal found, the applicants were not able to provide any adequate explanation for that delay. At its highest, ELS17 said that they did not have money at the relevant times and subsequently learned that they might be entitled to refugee status. The application for the protection visa identified the following grounds on which the applicants relied:(1)The applicants were forced to join a cult;(2)The applicants will face harm and will be threatened and kidnapped if they return to Malaysia; and (3)ELS17 was forced to drink holy water and, if he did not do so, they (being members of the cult) threatened to hurt ELT17. Although ELS17 sought to fight back, he was unable to do so, after which they hit ELT17 and threatened her with a knife. There is no need to consider these grounds in detail as the applicants disavowed those claims at the Tribunal hearing. ELS17 said that he was unware of what grounds were put in the visa application which, he claims, had been prepared by his migration agent. The substance of the applicants’ claim to refugee status now appears from paragraph 27 of the Tribunal’s written reasons which provides:The Tribunal asked the applicant what harm he and his wife suffered in Malaysia. He stated that ‘they suffered from this so-called religious stuff’. He stated that having returned from [another country][in] December 2012 they went to a shopping centre to buy clothes. While they were there they met a neighbour from the village who they had not seen for a long time and had a chat. She said something about inviting them to have food together. She was very insistent. He was embarrassed to say no so they went along. They arrived at her home at around 5-6pm. By the time they got there they felt something was wrong. When they entered the room, about seven to eight people were reciting verses. He asked his neighbour what happened. She said sorry, she doesn’t know. They wanted to leave but those people stopped them from leaving. The Tribunal asked the applicant in what way they were stopped. He stated that they blocked the door and asked them to join the church. The people threatened to kill his family. These people said the end of the world will come soon and that the applicants should give them all their money and property. He stated that after one day the applicants told these people they need to go home so they offered their ID cards. After they gave their cards and contact details to them they were able to go home.The decision of the Tribunal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal rejected the factual substratum of that claim on the basis that it was not satisfied by the evidence adduced by the applicants. That evidence consisted of their oral testimony which the Tribunal concluded was not credible. This was based on its inherent implausibility and the significant inconsistencies in the applicants’ evidence. The Tribunal’s reasons identify that it put to each of the applicants its concerns as to the veracity and credibility of their evidence. Ultimately, it concluded that the evidence did not establish any grounds on which the applicants might have a real chance that they will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act, were they to return to Malaysia now, or in the reasonably foreseeable future. On that basis it was concluded that they did not have a well-founded fear of persecution. For similar reasons the Tribunal was not satisfied that there was a real risk that they will suffer significant harm if they returned to Malaysia now or in the reasonably foreseeable future such that there was no basis for granting a visa based on the complementary protection grounds.Decision of the FCC The primary judge considered at length the reasons of the Tribunal and its grounds for refusing to alter the delegate’s decision. His Honour observed that there were great discrepancies between the written application and the applicants’ oral evidence before the Tribunal. His Honour also assayed the vagueness of, and inconsistencies in, the version of events advanced by each applicant. Those inconsistencies included the length of time the husband and wife said they were held by their captors, the events which occurred over the duration of the captivity, how they came to be released, and what occurred when they subsequently encountered their erstwhile captors. Before the primary judge it was submitted that the Tribunal had ignored evidence which they had provided in support of their case and that they were not allowed to make further comment in relation to the Tribunal’s concerns. The primary judge held that such a submission was not supported by the facts as they were each offered numerous opportunities to comment on the concerns raised by the Tribunal and were given plenty of time to do so. It was also put that the Tribunal had failed to consider the efficacy of Malaysian law enforcement officers who might be called upon to protect the applicants. The primary judge found that, even if the alleged inadequacy of law enforcement had been evidenced before the Tribunal, given the Tribunal did not accept the applicants’ factual assertions regarding threats to the applicants’ wellbeing, there was no need for them to seek the protection of law enforcement officers. Consequently, he concluded that ground had no merit. The third ground relied upon before the primary judge was that the Malaysian Government would fail to provide the applicants with protection because they were Chinese Malaysian and this was not properly considered by the Tribunal. However, as the primary judge observed, that ground was irrelevant in circumstances where the factual assertions underpinning the claimed fear of persecution had not been accepted. In any event, no such claim had been advanced to the Tribunal.

Ratio Decidendi

Legal Principle Established

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