FBU17 v Minister for Immigration

[2018] FCCA 1965

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1965

Catchwords:
MIGRATION – Application to extend time for applying for judicial review of decision made by the Administrative Appeals Tribunal – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) 425, 426A(1A)(a), 476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: FBU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3561 of 2017

Judgment of: Judge Manousaridis

Hearing date: 18 July 2018

Date of Last Submission: 18 July 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms A Zinn of Mills Oakley Lawyers

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act in relation to the decision made by the Administrative Appeals Tribunal on 08 August 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3561 of 2017

FBU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Administrative Appeals Tribunal (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 8 August 2017, but the applicant did not file his application with this Court until 20 November 2017.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order. 

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [1] [2013] FCA 1284 at [47]-[48]

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Course of hearing

1. At the hearing before me the applicant, who is not legally represented but who appeared with the assistance of an interpreter, appeared to know very little about the application he had filed with the Court. The applicant also said he had not received a copy of the Court Book, although he said that his friend may have received it. In those circumstances, I took the applicant through the documents contained in the Court Book, and I read out what appeared to be the more significant documents. The applicant acknowledged that he had received and sent emails contained in the Court Book. I also asked the grounds stated in the application to be interpreted to the applicant, and this occurred during the hearing.

Background

1. Before I set out the reasons the applicant gave for his delay in applying for judicial review of the Tribunal’s decision it will be necessary to refer to the contact details the applicant provided to the Tribunal; and there are two sets of contact details. The first are those he included in the form of application for review the applicant lodged with the Tribunal. In the section of the form headed “Correspondence details” the applicant included an email address in a box next to the words “Email” (applicant’s nominated email address).[6] It was to that email address that on 9 August 2017 the Tribunal sent its decision to affirm the delegate’s decision not to grant the applicant a Protection visa.[7]

   [6] CB66

   [7] CB92-96

2. On 15 November 2017 an individual sent an email to the “National Registry Mailbox” which attached a form titled “Appointment of Representative Appointment of Authorised Recipient – MR Division”, which was purportedly completed by the applicant; which purported to nominate the individual as the applicant’s authorised representative; and which listed an email address under the section of the form headed “Complete the details of your representative/authorised recipient” (representative’s nominated email address).[8] The email relevantly stated:[9]

   Please see the attachment, and the applicant did not receive his refuse letter [sic], so could you resend to this email.

   [8] CB97-98

   [9] CB97-98

3. There is in evidence an email that was sent to the representative’s nominated email address on 16 November 2017 (Email).[10] The header of the Email stated[11]:

   From:[Name of officer of Tribunal]

   Sent:Thu, 16 Nov 2017 23:52:41 + 0000

   To:[reference to representative’s nominated email address]

   SubjectRE: [applicant’s name] [SEC=UNCLASSIFIED]

   Attachments:     1706207 Decision Record.pdf; 1706207 Notification Letter.pdf

   [10] CB102

   [11] CB102

Explanation for Delay

1. I turn, then, to the reasons the applicant gave for his delay in commencing this proceeding. In the application he filed with the Court, under the heading “Grounds of application for extension of time”, the applicant stated the following (errors in original):

   At the time, the decision was sent by email, but I missed it. I did not get any notice from my agent.

2. At the hearing before me the applicant said that the applicant’s nominated email address was set up by a friend, but his friend did not inform the applicant of the receipt by email of the Tribunal’s decision. The applicant said he became aware of the Tribunal’s decision after he made an online enquiry of his visa status, when he discovered that his visa had ceased. He then contacted his friend who confirmed having received the Email. The applicant was unable to say when he became aware of the Tribunal’s decision. The applicant also said that he suffered an injury in August 2017, as a result of which he had forgotten about his application for judicial review. Further, in the grounds of application, the applicant says he “did not response the tribunal's decision in time, that is because I was ill and I was in serious financial difficulties, I had no chance to submit the application to the court on time. I hope I could be given a chance to submit the application to the court”.

3. I am prepared to accept as true what the applicant stated from the bar table and what he stated in the grounds of application. I do not accept, however, that these matters disclose an adequate explanation for the delay. As the Minister submitted, it was the applicant’s responsibility to ensure that he kept himself informed of the progress of his application for review.

Merits of claim

1. The starting point in considering the merits of the grounds stated in the application for judicial review filed with the Court is the claims for protection the applicant made in his application for a Protection visa.

Claims for protection

1. The applicant claimed he left Malaysia because he is a member of the group “BERSIH” and the government is tracking this group’s members; “BERSIH” is a group that advocates for “clean and fair election” and the Malaysian Minister for Home Affairs said “that Malaysians who are unhappy with the country political system should leave the country”; this statement was made after a series of street demonstrations where “many group prisoned”, “media hidden this sensitive issue” and “the police try to make break the rally of BERSIH” using tear gas and “asid [sic] water”; if the applicant were to return to Malaysia the police will jail him; his life is in danger and the “authorities will take action to who conspire with the members of BERSIH”; he does not know if he will be safe in jail; and the applicant cannot move to another part of Malaysia because it will make no difference as the “Malaysia authorities are government supporter” and they will find the applicant.[12]

   [12] CB32-35

Proceeding before Tribunal

1. On 1 July 2017 the Tribunal sent to the applicant’s nominated email address a letter inviting the applicant to appear before it on 8 August 2017 to give evidence and present arguments relating to the issues in his case.[13] The Tribunal sent the letter pursuant to s.425(1) of the Act which required the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The Tribunal’s letter requested the applicant to “read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form to confirm your attendance at the hearing”;[14] and stated that if the applicant were not to attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[15]

   [13] CB82-88

   [14] CB83

   [15] CB84

2. The applicant did not appear before the Tribunal at the scheduled hearing;[16] and there is no evidence the applicant otherwise attempted to contact the Tribunal about the scheduled hearing or about the review in general. In those circumstances the Tribunal decided to proceed in the manner provided for by s.426A(1A)(a) of the Act. That paragraph in effect provides that where an applicant is invited under s.425 of the Act to appear, but the applicant does not appear at the scheduled time and date, the Tribunal may “by statement made under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.

   [16] CB89-93

Tribunal’s reasons

1. The Tribunal noted it was not required to accept uncritically any and all the allegations made by the applicant; and that the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reasons claimed.[17] After considering the applicant’s claims the Tribunal found the applicant had not provided sufficient evidence to satisfy the Tribunal that he held a political opinion; or that even if he did that he had engaged in any political activities; or that he would even wish to engage in any political activities in Malaysia.[18]

   [17] CB95-96, [7]

   [18] CB96, [7]

2. The Tribunal referred to a number of principles that had been developed for the purpose of considering refugee protection claims and complementary protection claims, which included that it remained for an applicant to satisfy the Tribunal that all statutory elements for the grant of a Protection visa are made out, that the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the decision maker to establish the facts; and that a decision maker is not required to make an applicant’s case for him or her.[19]

   [19] CB96, [8]

3. Based on the claims made by the applicant the Tribunal was not satisfied all the statutory elements for the grant of a Protection visa are made out and it did not accept the applicant satisfied s.36(2)(a) or (aa) of the Act.[20]

   [20] CB96, [9]-[12]

Grounds of application

1. The applicant’s grounds of application are as follows (errors in original):[21]

   [21] The text of the grounds is in upper case.

   The tribunal thought I did not provide sufficient evidence for my political opinion, regarding this point I stated clearly in my statement. AAT thought I did not engaged in any political activities or I wish to engage in any political activities in Malaysia, if there were during that period, I am sure I will engage in political activities. I am really worried about suffering persecution if I returned to Malaysia, but how could I approve my mental fear? AAT did not give me direction or hint about providing evidence.

   I was unable to attend AAT hearing because I was sick, I had no other choice.

   I have been in very poor health for a long time and need to see the doctor on a regular basis, I also need to take medicine to alleviate the pain and suffering. I did not think that I felt my head splitting and had to stay in bed, until my landlord found me and sent to the hospital immediately and I could pick up back to life. Under such a situation, I could not remember to attend AAT hearing and I also could not inform AAT that I was ill and unable to attend the hearing.

   I did not response the tribunal's decision in time, that is because I was ill and I was in serious financial difficulties, I had no chance to submit the application to the court on time. I hope I could be given a chance to submit the application to the court.

2. The applicant made no submissions to me in relation to any of these grounds.

3. The four paragraphs that constitute grounds make three claims. The first claim is directed to the Tribunal’s finding that the applicant had not provided sufficient evidence to satisfy the Tribunal that he held a political opinion; or that even if he did that he had engaged in any political activities; or that he would even wish to engage in any political activities in Malaysia. The claim goes no further than expressing disagreement with the Tribunal’s finding. That discloses no arguable case of jurisdictional error; and there is no arguable basis that it was not reasonably open to the Tribunal to make that finding in circumstances where the applicant did not respond to the Tribunal’s invitation that he appear before it to give evidence and present arguments.

4. The second claim is that the Tribunal did not give to the applicant any “direction or hint about providing evidence”. That is not arguable. The letter dated 19 June 2017 which the Tribunal sent to the applicant stated that the Tribunal had considered the material before it, but it was unable to make a favourable decision on the information that was before it. The Tribunal then invited the applicant to appear before it “to give evidence and present arguments relating to the issues in your case”.

5. The third claim is directed to the reasons why the applicant did not respond to the Tribunal’s invitation that he appear before it to give evidence and present arguments. Two reasons are given: the applicant did not attend because he was sick; and he was in serious financial difficulties. None of these matters raise any arguable case of jurisdictional error. First, there is no evidence that the applicant was sick; or that if he were sick, his condition was such as to have prevented him from appearing before the Tribunal or at least inform the Tribunal that he was not in a position to attend the scheduled hearing; or that he was facing financial difficulties. Even if the applicant had identified evidence to support these claims, there is no evidence the Tribunal was aware of these difficulties. In those circumstances, the Tribunal cannot have made any jurisdictional error by not taking into account difficulties the applicant claimed he suffered, but which he did not communicate to the Tribunal.

6. Although not raised as a ground, it is appropriate that I should note that I have considered whether there is an arguable case of unreasonableness in the Tribunal’s exercise of the power conferred by s.426A(1A)(a). There is no arguable basis for claiming that the Tribunal’s decision to exercise that power in the circumstances of this case was not within the range of decisions a reasonable Tribunal would have taken, given the subject matter, scope, and purpose of s.426A(1A)(a) of the Act, and the facts as they were known to the Tribunal.

Conclusion and disposition

1. Given my findings that the ground stated in the application discloses no arguable case that the Tribunal made any jurisdictional error, I am not satisfied that it would be necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act. I propose to order that the application for an extension of time be dismissed.

2. At the hearing before me, Ms Zinn, who appeared on behalf of the Minister, informed me that if the applicant were to fail in his application, the Minister would be seeking an order for costs, and that those costs be set in the amount of $3,667. After I explained to the applicant that the rule a court usually applies is that the winning party is entitled to an order for costs against the losing party, the applicant said he agreed. I took that to be a submission by the applicant that he wished to say nothing on the question of costs. In my opinion there is no reason why the usual order as to costs should not apply. I propose, therefore, to order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $3,667.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 27 July 2018