Eqt18 v Minister for Home Affairs

[2019] FCCA 1274

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQT18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1274

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.36, 477

Cases cited:

EXU17 v Minister for Immigration [2018] FCA 1675

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

Perera v Minister for Immigration (1999) 92 FCR 6

SZOYU v Minister for Immigration [2012] FCA 936

SZTRY v Minister for Immigration [2015] FCAFC 86

Applicant: EQT18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2522 of 2018

Judgment of: Judge Driver

Hearing date: 14 May 2019

Delivered at: Sydney

Delivered on: 14 May 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H Gao of Australian Government  Solicitor

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and 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 2522 of 2018

EQT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 May 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The show cause application filed by the applicant on 7 September 2018 was filed about three months after the expiry of the appeal period prescribed under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time under s.477(2) of the Migration Act.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 May this year.   

3. The applicant is a citizen of Turkey, who arrived in Australia as the holder of a student visa on 24 August 2007.[1]  On 2 March 2015, he lodged an application for a protection visa. In support of that application, the applicant made the following claims:[2]

   a)he would be harmed in Turkey due to his Kurdish identity and his support for the pro-Kurdish political party, Democracy and Peace Party;

   b)he is a conscientious objector and he has outstanding compulsory military service in Turkey;

   c)he was detained and harmed by Turkish police on a number of occasions; and

   d)he would be seriously harmed in Turkey and he would not be able to relocate due to his political activities.

   [1] Relevant Documents (RD) 18, 20

   [2] RD 30-32

4. On 18 March 2015, the Minister’s Department received a “Form 1023 – Notification of incorrect answer(s)” (Form 1023) and a handwritten statement from the applicant.[3]  In the Form 1023, the applicant stated that he did not write the reasons for claiming protection contained in the protection visa application and that his real reasons were contained in his handwritten statement. In that statement, the applicant relevantly recounted his migration history in Australia and claimed that as he has been living in Australia for seven and half years, he has forgotten the Turkish way of life and adopted the Australian way of life. He further claimed that he would be unhappy if he returns to Turkey.

   [3] RD 65-71

5. On 28 April 2015, the applicant attended an interview with the delegate. On 6 August 2015, the delegate refused the protection visa. The delegate accepted that the applicant had resided in Australia for a considerable period of time and had largely adopted the Australian way of life, beliefs and culture. The delegate found that none of the matters raised by the applicant entitled him to a protection visa either under the refugee criterion or the complementary protection criterion in s.36(2)(a) and (aa) of the Migration Act.[4]

   [4] RD 83-91

6. On 24 August 2015, the applicant sought review of the delegate’s decision by the Tribunal.[5]  By letter dated 16 March 2018, the Tribunal requested the applicant to bring to the hearing the person whom he claimed to have helped him with his protection visa application.[6]

   [5] RD 92-98

   [6] RD 103

7. On 1 May 2018, the applicant appeared before the Tribunal to give evidence and present arguments.[7]  A Turkish interpreter was present by telephone.[8]  The applicant was not accompanied by anyone at the hearing. The applicant also provided a further handwritten statement to the Tribunal, in which he relevantly claimed to suffer from depression while he was in Turkey. The statement otherwise reiterated the claims made in his first handwritten statement.[9] 

   [7] RD 109-111

   [8] RD 109

   [9] RD 112-116

Tribunal decision

1. On 17 May 2018, the Tribunal affirmed the decision under review.[10]

   [10] RD 121

2. The Tribunal noted the applicant’s evidence regarding the person who purportedly prepared his protection visa application and his evidence that no one would harm him in Turkey.[11]

   [11] RD 123 at [9]-[13]

3. The Tribunal rejected the applicant’s claim of suffering from depression for want of evidence. The Tribunal found that as the applicant conceded he did not fear serious harm in Turkey, he did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act. For the same reason, the Tribunal found that he did not satisfy the complementary protection criterion in s.36(2)(aa) of the Migration Act.[12]

   [12] RD 124 at [14]-[21]

The current proceedings

1. In addition to the book of relevant documents filed on 29 November 2018, I have before me two affidavits filed by the applicant.  The first accompanied his show cause application and I received it as a submission.  The second annexed a number of documents including a transcript of the hearing conducted by the Tribunal which I received as evidence.  The body of the affidavit I received as a submission. 

2. At the outset of today’s hearing, the applicant sought an adjournment in order to obtain legal assistance.  He told me that he had been actively seeking legal assistance, and while he had, to date, not been successful, he felt at a disadvantage without legal representation.  I refused the application for an adjournment on the basis that the applicant had already had sufficient time to arrange whatever legal representation he wished.  The applicant handed up a statement of his submissions for the purposes of today’s hearing.  He also made extensive oral submissions in support of it. 

3. Central to those submissions is the proposition that the Tribunal overlooked an element or integer of his claims which had never been withdrawn.  That element or integer is the applicant’s obligation to undertake military service in Turkey.  The applicant concedes that while he withdrew the claims for protection that were made on his behalf, but which were not his claims, the obligation to perform military service remained and was identified in answer to question 29 on the protection application form.[13] 

   [13] CB 12

4. There are a number of responses to those assertions.  The first, as pointed out by the Minister’s solicitor, is that an obligation to perform military service is not, of itself, a basis for a claim of protection.  Such an obligation may be if the applicant is a conscientious objector.  The applicant had claimed to be a conscientious objector, but the Tribunal was entitled to conclude, from the notification of incorrect answers,[14] the statement of claims made in substitution[15] and the applicant’s answers to questions at the Tribunal hearing as appearing in the transcript, that the conscientious objector claim had been withdrawn.[16] 

   [14] appearing at RD 70 and 71

   [15] reproduced at RD 65-67

   [16] further, it is surprising that the applicant did not raise with the Tribunal the delegate’s silence about the claim if the applicant thought it important

5. This bears materially on the exercise of the Court’s discretion under s.477(2). The Minister’s submissions deal with general principles concerning an extension of time at [12] to [18]. I accept those submissions.

6. The issue before the Court in an application made under s.477(2) of the Migration Act is whether it is “necessary in the interests of the administration of justice” to extend time.[17]  Some of the relevant considerations the Court should take into account in determining whether to exercise its discretion under that section include:

   a)any prejudice to the other party (the Minister in this matter) if an extension of time is granted;

   b)the length of delay and the explanations for that delay; and

   c)the merits of the substantive application.[18]

   [17] see s.477(2)(b) and EXU17 v Minister for Immigration [2018] FCA 1675

   [18] see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; cf EXU17

7. The prospects of success of the substantive application in a case such as this should be determinative, that is, if the prospects of the substantive application are “hopeless or very low”, an extension of time should be refused.[19]

   [19] EXU17 at [51]

Prejudice to the Minister

1. Although the Minister is not prejudiced if time is extended to the applicant allowing him to seek judicial review of the Tribunal’s decision, the absence of prejudice is, in itself, insufficient to warrant the extension of time.[20]

   [20] see SZTRY v Minister for Immigration [2015] FCAFC 86 at [6]

Length of delay and explanation for that delay

1. In the present case, the length of delay is approximately three months, which is significant. The applicant’s explanation for that delay is twofold. First, he asserts that his housemate misplaced the letter from the Tribunal notifying the applicant of the Tribunal’s decision. Secondly, he claimed that he suffered psychological problems because the decision was negative and he did not know what to do.[21]

   [21] see [7] of applicant’s affidavit sworn on 7 September 2018

2. There is no objective evidence before the Court to suggest either that the applicant’s housemate had misplaced the letter from the Tribunal notifying the applicant of the Tribunal’s decision, or that he was suffering from psychological problems. Further, as the applicant repeatedly acknowledged, he had previously sought merits review and judicial review of the refusal of his application for a student visa.[22] As such, it is reasonable to assume that he was familiar with the review process.

   [22] see RD 113; affidavit page 2 at [8]-[16]

3. Further, the applicant has been living in Australia for more than a decade and completed a year of English studies.[23]  It is reasonable to expect the applicant to have some proficiency in English. The letter accompanying the Tribunal’s decision clearly set out the procedure under which the applicant could seek review of the Tribunal’s decision.[24]

   [23] RD 65, 113

   [24] RD 117-120

4. Having regard to the length of the delay, the applicant’s personal circumstances and the evidence before the Court, the applicant’s explanation for his delay in seeking judicial review of the Tribunal’s decision is not adequate.

Merit of the application

1. The real issue in this case, however, is whether there is any legal merit in the show cause application which calls for an extension of time in the interests of the administration of justice.  In my view, there is not.  The applicant clings tenaciously to the proposition that there was a military service claim which survived the abandonment of his other claims.  While I accept his proposition that his apparent military service obligation remained, notwithstanding the abandonment of his claims, that was not a claim in itself or an integer of the claim once it was uncoupled from the conscientious objector claim. 

2. The Minister’s submissions, otherwise, deal adequately with the applicant’s proposed grounds. 

3. Ground 1 is as follows:

   The decision was affected by jurisdictional error in that the Tribunal failed to consider all my claims as an interpreter was not made available in person at the Tribunal and the interpreter which assisted through a telephone conversation had trouble communicating with me.

4. The fact that the interpreter was not available in person, without more, does not amount to jurisdictional error.  The transcript suggests that the applicant was able to participate in the hearing with the assistance of the interpreter.  At the outset of the hearing, the applicant was informed that if he had any problems with the interpreter he should let the Tribunal know.[25]  The applicant did not raise any issues about the interpreter at the hearing, or at all. Although there were few occasions where the interpreter sought clarification from the Tribunal,[26] this does not support the applicant’s contention that he had trouble communicating with the interpreter or that he could not understand the Tribunal’s questions.

   [25] see affidavit, page 27

   [26] see affidavit, pages 28-30

5. To the extent that the applicant is asserting the standard of interpretation is poor, it is well settled that the standard of interpretation is not one of perfection.[27]  The onus is on the applicant to demonstrate that the departure from the standard of interpretation related to a matter of significance to his claims and there was a sufficient connection between the inadequate translation and the Tribunal’s decision.[28]  There is no evidence before the Court from a professional translator to suggest that the standard of interpretation at the hearing was poor.

   [27] see SZOYU v Minister for Immigration [2012] FCA 936 at [30]

   [28] see SZOYU at [31] and Perera v Minister for Immigration (1999) 92 FCR 6 at [45]

6. Insofar as the applicant is asserting that he misunderstood the Tribunal’s questions about the type of harm he would face in Turkey,[29] such a contention would be rejected for the following reasons. First, the transcript shows that the applicant confirmed with the Tribunal member that his “true claims” were those contained in the statement that he gave to the Tribunal.[30]  That statement made clear that the applicant did not fear any harm in Turkey and that he wished to remain in Australia because he preferred the Australian lifestyle.  Secondly, the applicant was asked by the Tribunal, on two occasions, about the harm that he would face in Turkey.[31]  He gave evidence that he would not be harmed by any person in Turkey and stated that he made a mistake from the beginning in applying for a protection visa. The applicant’s answers to those questions are, prima facie, consistent with the applicant’s claims contained in his handwritten statements. In those circumstances, it was open to the Tribunal to find that he did not fear harm in Turkey for any reason.[32]

   [29] see affidavit, pages 3-4 at [34]-[40]

   [30] see affidavit, page 31

   [31] see affidavit, pages 32-33

   [32] [11]-[13], [17]

7. Ground 1 therefore has no reasonable prospects of success.

8. Ground 2 is as follows:

   The decision was affected by jurisdictional error in that the Tribunal did not consider the fact that I had military obligations in Turkey and I was a conscientious objector and would be subject to persecution for my unwillingness to undertake military duty.  

9. It is not disputed that the Tribunal did not consider the applicant’s claim that he had outstanding military obligations in Turkey. This claim was first recorded in the applicant’s protection visa application in answer to question 91 of Form 866B. That question was under the heading “Your reasons for claiming protection”.[33]

   [33] see RD 30

10. In the Form 1023 received by the Minister’s Department on 18 March 2015, the applicant notified the Minister’s Department that he had provided incorrect information in connection with his protection visa application and the information which was incorrect was “reason of Application Protection visa (Class XA)”.  In the handwritten statement received by the Minister’s Department on the same day, which contained, according to the applicant, his real reasons for applying for the protection visa, the applicant did not mention that he feared harm in Turkey on the basis that he has outstanding military obligations in Turkey or that he would be harmed on the basis of him being a conscientious objector.

11. Further, this claim was not raised by the applicant in his second handwritten statement, which he confirmed contained his “true claims”.[34]  It is clear from the transcript that the applicant also did not raise any concerns orally regarding his purported military obligations in Turkey at the Tribunal hearing. As such, the Tribunal was entitled to proceed on the basis that this claim had been abandoned by the applicant.

    [34] see affidavit, page 31

12. I conclude that the interests of the administration of justice do not require the granting of an extension of time.  I refuse that application with the consequence that the show cause application is incompetent. 

13. I will order that, pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.

14. 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 told me that while he has no particular objection to the amount which appears reasonable, he pointed out that he has no work rights and may require time to pay.  That is a matter that could be raised with the Minister’s Department.

15. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and 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-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 May 2019