FFN17 v Minister for Immigration, Citizenship, and Multicultural Affairs
[2023] FedCFamC2G 976
•8 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFN17 v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 976
File number(s): MLG 2599 of 2017 Judgment of: JUDGE STREET Date of judgment: 8 August 2023 Catchwords: MIGRATION – APPLICATION FOR EXTENSION OF TIME – dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 8 August 2023 Place: Sydney Applicant: Appeared in person Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
MLG 2599 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
Respondent
AND: ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is corrected as sought in paragraph 31 of the Minister’s submissions.
2.The application for an extension of time under section 477 is dismissed.
3.The court orders the applicant to pay the first respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT 8 AUGUST 2023
JUDGE STREET
This is an application for a constitutional writ in respect of a decision of the AAT made on 20 April 2017, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Malaysia and lodged an application for a protection visa on 7 March 2016.
On 16 May 2016, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. The applicant then lodged an application for review to the Tribunal and the applicant was invited to, and attended a hearing, before the Tribunal. The Tribunal affirmed the delegate’s decision that the applicant did not meet the criteria under the Refugee Convention, or in relation to complementary protection.
The applicant arrived in Australia on a UD 601 Visitor Visa on 12 January 2016. In summary, the applicant claimed to fear harm, by reason of getting a 15-year-old girl pregnant. The applicant claimed that the family was angry and wanted to make a police report and alleged that the family did, in fact, lodge a police report, and that if he returns to Malaysia he will be imprisoned for not less than five years and not more than 20 years; and liable to whipping.
The applicant lodged the application for review to this Court on 30 November 2017, which was 189 days outside the time period for pursuing the application. The application met the criteria of section 477(2)(a) of the Migration Act 1958 (Cth) in the sense of seeking an order for an extension of time, and the issue before the Court is whether it is necessary in the interest in the administration of justice to extend time under 477(2)(b) of the Migration Act 1958 (Cth).
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and that the Court would consider whether the applicant’s explanation for the delay was satisfactory and whether the grounds in the applicant’s application identified a sufficiently arguable case, at an impressionistic level, to warrant an extension of time.
The applicant, in his affidavit, identified that someone had helped him pursue his application for a protection visa. The applicant said that he had never met the person and that he had paid them to bring the case before this Court after the Tribunal decision, and that he could not then contact the person; and it was not until he went to the Court in November that he discovered no application had been put on in this Court. The applicant alleged he had been unsuccessful in contacting the agent.
The applicant orally submitted that he had had two different agents to assist him in his protection application and said to the Court that he had been scammed, in relation to the application to this Court. The grounds in the substantive application are as follows:
(1)The tribunal made an error, because it only asked the applicant about the claims in the applicant’s written statement, which had been prepared for the applicant by friends and the Tribunal did not ask if the applicant had any other reason to fear returning to Malaysia.
(2)The Tribunal unreasonable found that the applicant’s claims were not believable because the information that the applicant provided the Tribunal was inconsistent with the applicant’s claims to the Department even though the applicant told the Tribunal that they did not write the claims to the Department themselves.
The applicant’s oral submissions did not advance the grounds identified in the substantive application and, in substance, the applicant’s submissions invited impermissible merits review. Nothing said by the applicant identified a reasonably arguable case of relevant error by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. The Tribunal, in its reasons, identified the background to the application for review and set out the relevant law. The Tribunal summarised the claims in the applicant’s application for protection. The Tribunal concluded that the delegate’s decision should be affirmed.
The Tribunal identified in paragraph 14 that it had asked the applicant why he left Malaysia and why he feared returning there now. That introduction by the Tribunal is consistent with the invitation to hearing notice that informed the applicant the Tribunal was unable to make a favourable decision on the information before it, and which invited the applicant to attend the Tribunal to give evidence and present arguments in relation to the issues in his case.
The Tribunal’s reasons identified the applicant recounting where he allegedly met the girl that fell pregnant and alleged discussion in relation to her situation when she discovered she was pregnant. The applicant referred to information in relation to underage sex in Malaysia, and the applicant alleged his brother had beaten him and he ran away from home. The applicant alleged he was told by his sister he should go to Australia for three or four years to wait for the situation to blow over.
The tribunal identified a number of concerns in relation to the applicant’s core claims. First, the Tribunal identified inconsistencies between the applicant’s oral evidence and the written claims. Secondly, the Tribunal identified the oral evidence was internally inconsistent and changed during the course of the hearing in significant respects. Thirdly, the Tribunal identified the situation of the applicant continuing to live at the family home, contrary to his alleged claims. Further, the Tribunal found the applicant’s oral evidence to be vague and lacking in detail in key respects, including the name and age of his former girlfriend. The Tribunal identified having serious credibility concerns about the applicant’s core claims. The Tribunal did not accept that the applicant had a relationship with a 15 year old girl in Malaysia who fell pregnant.
The Tribunal did not accept the applicant would be charged for having had underage sex. The Tribunal was not satisfied the applicant has a well-founded fear of persecution, and found the applicant is not a refugee within the meaning of section 5H of the Migration Act 1958 (Cth). The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Malaysia, there is a real risk the applicant will suffer harm. The Tribunal found the applicant did not meet the complementary criteria and affirmed the decision under review.
Whilst the Court accepts that it is possible the applicant may have had assistance in relation to his protection visa, although not apparent before the tribunal, the applicant informed the court that the email address used in respect of the invitation to attend hearing and notice of the decision was his email address. In these circumstances, the applicant’s explanation about being scammed does not provide a satisfactory explanation for the failure to commence proceedings within a 35-day period.
The sending of the Tribunal’s decision, on the face of the material, was to the correct email address provided by the applicant and is supported by the applicant’s explanation to this Court that that was an email that he used. The delay of almost six months is substantial and the Court does not accept the applicant has a satisfactory explanation for that delay.
In relation to the second consideration, the Court accepts the first respondent’s submissions that, at an impressionistic level, there is an insufficient prospect of success in respect of the two grounds in the substantive application. In relation to the first ground, both the hearing invitation and the substance of the Tribunal’s reasons in paragraph 14 are inconsistent with the applicant’s assertion that he wasn’t asked about his reasons for fear of returning to Malaysia. The Court is also aware the applicant was sent the oral recording of the hearing and did not put on any evidence before this court to support the assertion of confinement by the Tribunal. Accordingly, the Court is not satisfied that ground 1 identifies a sufficiently arguable case to warrant an extension of time.
In relation to ground 2, the Tribunal identified four different logical and rational aspects of the applicant’s claims and evidence in making adverse credibility findings. The adverse credibility findings, on their face, cannot be said to lack an evident and intelligible justification. The Tribunal did not make adverse credibility findings just on the basis of inconsistencies. The Court finds that ground 2 lacks a sufficient prospect of success to warrant an extension of time. The Court is not satisfied that it is necessary, in the interests of administration of justice, to make an order extending time under section 477 of the Migration Act 1958 (Cth) in this case.
Accordingly, it is for these reasons that the Court makes the above orders.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 27 November 2023
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