FTK18 v Minister for Immigration
[2020] FCCA 497
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FTK18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 497 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – application for extension of time – whether the Tribunal’s decision constitutes apprehended and/or actual bias – whether the Tribunal made adverse findings – whether the Tribunal complied with its procedural fairness obligations – whether the Tribunal committed jurisdictional error – no jurisdictional error made out – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 477, Part.7 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | FTK18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3073 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 29 January 2020 |
| Date of Last Submission: | 29 January 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr Gardner, Minter Ellison Lawyers |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $3737.00.
THE COURT NOTES:
No jurisdictional error was found in the proposed grounds of the application or in any other unarticulated claim.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3073 of 2018
| FTK18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a citizen of Nepal. The applicant left Nepal legally on 11 February 2009 and entered Australia on a student visa on 12 February 2009. On 11 April 2018, the applicant applied for a protection visa. A Delegate of the Minister for Immigration (“the Delegate”) on 19 June 2018, refused to grant the application for a protection visa.
The applicant then sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 5 September 2018, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The applicant now seeks review in this Court.
Preliminary Matter
The application to this Court was lodged in 2 November 2018. The applicant acknowledges that this is outside the prescribed 35-day time limit. The applicant seeks an extension of time for the lodgement of the application. While it appears the applicant was represented at one point of time, he is now unrepresented. The applicant was also being held in immigration detention. The applicant says he sought assistance from Legal Aid but this was not forthcoming. The applicant says he had difficulties in obtaining various documents.
The Administrative Appeals Tribunal
At paragraph 9 its decision, the Tribunal noted that it had before it the departmental file, which includes a copy of the Delegate’s decision record of 19 June 2018. Included within the Department file, at paragraph 11 of the Tribunal’s decision, were two letters related to the applicant’s medical treatment in Australia for opiate detoxification.
At paragraph 12 of the Tribunal’s decision outlines the applicant’s claims. They may be summarised as follows:
·He was born in Kathmandu in Nepal in 1983.
·He is Hindu by religion.
·In Australia, he commenced studying for a diploma in hairdressing and marketing.
·He also worked in a furniture company and in door-to-door sales of Telstra.
At paragraph 15 of its decision, the Tribunal notes that the applicant is of LGBTIQ persuasion. The applicant states he left Nepal to get an opportunity to live a good and normal life, as being gay in Nepal is hard. The applicant stated he experienced humiliation, disgrace and threats of being killed. The applicant claims that you are treated like a criminal for being gay in Nepal and treated as being cursed by God. The applicant claims, if he returns to Nepal, he will be tortured by people both physically and mentally and he will have to live his life with threats and hatred.
At paragraph 16 of its decision, the Tribunal notes that the applicant stated being gay in Nepal is a crime. The applicant claims that you are not treated as normal. The applicant says he was attacked with a heavy object on the back of his head when he was riding his bike. The applicant broke his leg and damaged his left hand. The applicant complained to the police, but nothing happened, as people are corrupt. The applicant said he cannot relocate geographically within Nepal, because it is a very small country.
At paragraph 17 of its decision, the Tribunal notes that the applicant states that people are waiting to harm him in Nepal because they think they think they lost a loved one because of him.
At paragraph 19 of its decision, the Tribunal outlined the claims of the applicant that his first sexual encounter with a gay man was in 2005. The applicant subsequently developed a relationship with that man, called LM. The assault on the applicant occurred after LM’s brother discovered that the applicant and LM were having a relationship. The applicant’s mother found out that LM’s family held the applicant responsible for LM overdosing. In June 2013, the applicant found out that LM had committed suicide and his mother and father had received threats from LM’s eldest brother to hire someone to kill the applicant. LM’s eldest brother blamed the applicant for LM’s suicide.
At paragraph 25 of its decision, the Tribunal noted documents which had been provided by the applicant, which were medical records from Nepal, together with two letters relating to his treatment in Australia for opiate detoxification. A copy of a document dated 10 June 2018, was also noted, which is described as being a copy of the applicant’s mother making reports or threats by LM’s family and a copy of a report to the police that the applicant was attacked and hit from behind, while riding his motorcycle by a gang of three to four persons, including a named person.
Paragraphs 34 to 37 of the Tribunal’s decision deal with country information related to the treatment of LGTBIQ people within Nepal. That information indicates that same-sex activity can still technically be prosecuted, though those laws are not currently generally implemented. The Tribunal accepted, however, independent country information that indicates there was still some harassment, discrimination and abuse of LGBTIQ persons within Nepal by authorities and society generally.
At paragraph 41 onwards of its decision, the Tribunal outlines the various accounts given by the applicant about his claim to have a partner, named Mr R, in Australia. The Tribunal noted that neither the applicant nor any witnesses were prepared to reveal the details of Mr R, including his contact details. This caused the Tribunal to be concerned about the applicant’s credibility in relation to his claims about being in a relationship with a Mr R. The Tribunal found, however, that the applicant identifies as a gay man and that he had a relationship with a person called Mr R in Australia some months before he was placed in immigration detention. The applicant was placed in detention because he had been illegally living within Australia because his visa had expired some years before.
However, at paragraph 44 onwards of its decision, the Tribunal does not accept as true, that the applicant had a relationship with a gay man in Nepal called LM. The Tribunal does not accept that LM had committed suicide and his family blamed the applicant, or that LM’s elder brother had threatened the applicant and his family. The Tribunal did not accept that the applicant was injured in Nepal because of the actions of LM’s brother, when the applicant was riding his motorcycle. The Tribunal found that this evidence was untruthful and was being put forward, to enable the applicant to get a protection visa to stay in Australia and bring his parents to Australia, which he told the Tribunal was his plan.
At paragraph 49 of its decision, the Tribunal considered the various documents submitted to both the Department and the Tribunal in support of the applicant’s claims. Given the Tribunal’s adverse findings about the applicant’s credibility and independent country information consulted by the Tribunal, in relation to the prevalence and availability of fraudulent documents within Nepal, the Tribunal concluded that these documents were not reliable, as to the evidence of the facts contained within them.
At paragraph 50 of its decision, the Tribunal considered the country information in relation to the situation for gay people and gay rights in Nepal. The Tribunal noted that it is much improved and reasonably progressive. The Tribunal found that, although the applicant may face some societal discrimination, harassment and negative community attitudes because of his sexual orientation, there is no a real chance or a real risk that the applicant would suffer serious harm or significant harm because he identifies as a gay man.
Accordingly, the Tribunal rejected the applicant’s claims in relation to him satisfying the requirements for a protection visa under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) or complementary protection under s.36(2)(aa) of the Act.
Grounds of Appeal
The grounds of appeal are as follows, verbatim:
1. The reasons they made for refusal are unsatisfactory.
2. Though like they already made the decision before starting to go through my application.
3. They cannot assume that all of my evidence are fraudulent or false without investigative.
4. They took my application as just an ordinary application as day-to-day job, but they should understand it is about my life. Who wants to live 10 years without meeting his own family? It hard for everyone.
5. They took almost 4 hrs phone call interview 5 ½ hrs interview at AAT just asking same questions for more than 10 times just to get something wrong spoken by me to reject which they did.
The applicant also asked the Court to go through his application and the decision made by the department, to see if it has been justified.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant did not require the assistance of an interpreter. Despite orders of the Court, no written submissions were filed with the Court to support his application. The applicant told the Court that he had participated in two interviews. The first went for three and a half hours by phone being his initial application for protection visa interview.
The applicant said that he spent another five and a half hours before the Tribunal but was there in person. The applicant said the Tribunal asked him the same questions, he felt exhausted and he may not have answered questions correctly because he felt so exhausted. The applicant was unable to get a recording of what he said to the Tribunal, as he was in detention at the time and he did not have anyone to guide him as to the application to the Court or the Tribunal.
The First Respondent’s Submissions
The first respondent provided written submissions. However, in response to what the applicant had stated in Court, it was noted that the Tribunal gave the applicant the opportunity to provide written submissions by letter dated 27 August 2018. The applicant did have the opportunity to provide written submission but did not raise any issues in those submissions regarding the length of the hearing and the fact that he was exhausted. The applicant did however, provide some additional information from an organisation called the Blue Diamond Society.
In relation to the applicant’s request for an extension of time, the first respondent noted that the application for judicial review was made 23 days after the expiry of the statutory timeframe, under s.477(1) of the Act. The first respondent properly conceded that the Minister would not suffer any prejudice, if time were to be extended and that the delay of 23 days is relatively short. However, the first respondent submits that the applicant has not provided an adequate explanation for his delay. In relation to the applicant’s explanation that he did not receive a copy of the interview from his solicitor, the first respondent notes that there is no evidence to suggest the applicant was ever represented by a solicitor before the Department or the Tribunal.
Further, a request for a copy of the protection visa interview recording to be provided, is of no relevance to the applicant’s non-compliance with the time limit for applying for judicial review. The first respondent also submits that the proposed grounds of review have no reasonable prospects of success.
Grounds one and four are mere expressions of dissatisfaction with the Tribunal’s decision and fail to articulate or establish any jurisdictional error.
Ground two, taken at its highest, constitutes an accusation of apprehended or actual bias on the part of the Tribunal. There is no material to establish this claim.
The first respondent submits that it is well established that a claim of actual bias must be distinctly and clearly proven. The first respondent submits that the pleadings and evidence fall well below this standard. In relation to any allegation of apprehended bias, the first respondent contends that there is nothing before the Court that demonstrates that a fair-minded lay person, might think the Tribunal did not bring a fair and impartial mind to the making of its decision. No evidence has been filed or served to support the application of apprehended bias. The first respondent submits this ground must fail.
Ground three alleges that the Tribunal “assumed all of my evidence are fraudulent or fake”. The first respondent submits that, to the extent that the applicant takes issues with the Tribunal’s findings, regarding documentary evidence submitted to the Department or the Tribunal, the applicant’s characterisation of these findings is misconceived. Various documents were put to the Tribunal, including letters regarding the applicant’s treatment in Australia for opiate detoxification, hospital records, purported reports to the Metropolitan Police Circle in Kathmandu, letters from the Blue Diamond Society and a printout from social media pages.
The first respondent notes that, on the basis of the adverse findings about the applicant’s credibility and having regard to country information, the Tribunal found that some of these documents were not reliable evidence of the facts in them. The first respondent submits that these findings were open to the Tribunal on the evidence before it and this was not a finding that no rational or logical decision-maker could arrive at, or that the decision lacked an evident and intelligible justification.
To the extent that the applicant takes issues with the Tribunal’s adverse credibility findings, the first respondent submits that these findings were open on the material made in a procedurally fair manner. In ground five, the applicant expresses discontent with the way the Tribunal conducted its hearing. It is submitted that, at its highest, this appears to be an allegation the Tribunal did not comply with its procedural fairness obligations. The first respondent submits that there is nothing to suggest the applicant was denied a fair hearing, nor afforded a meaningful opportunity to give evidence. The applicant was invited to a hearing pursuant to s.425 of the Act, attended the hearing and provided evidence and arguments in relation to his application.
IThe Court also notes that the applicant was given an opportunity to make subsequent written submissions. The first respondent submits that there is no reasonable prospect of success of the appeal for the reasons outlined above and, accordingly, the application for an extension of time should be refused.
Consideration
Four matters need to be considered when considering an application for an extension of time (see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] – [349] per Wilcox J (“Hunter Valley Developments Pty Limited v Cohen”). They are, firstly, the extent of the delay. In this case, 23 days. Second, the explanation for the delay. The applicant asserts that he was waiting for a copy of a recording from his solicitor of his protection visa interview. The applicant was in immigration detention at the time. The applicant, quite frankly, concedes that he is responsible for any delay.
Thirdly, any prejudice that the first respondent might suffer because of the delay. The Court notes that the first respondent has quite properly conceded that the Minister will not suffer any prejudice, if time were to be extended.
Finally, the merits of the proposed application. The Court proposes to deal with the merits of the proposed application because they are relevant as to whether or not, an extension should be granted.
In relation to the grounds of the application, the Court is reasonably satisfied that grounds one and four, do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions.
The complaints, such as they are, simply invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J). The Court agrees that ground two appears to allege apprehended and/or actual bias on the part of the Tribunal. A claim of bias is serious and requires evidence, such as transcript of the Tribunal hearing, in order to back up such a claim. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision.
Similarly, the mere fact that the Tribunal makes an adverse finding in respect of the applicant, does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task with other than an open mind, open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
The Court agrees with the submission of the first respondent that the absence of any evidence to support the allegation of apprehended bias and the Tribunal’s reasons, given that the Tribunal’s reasons demonstrate that it considered all of the evidence before it, including the applicant’s claims in relation to independent country information, no claim of bias, either actual or apprehended, can be made out.
In relation to ground three, the applicant alleges the Tribunal assumed that all of his evidence was either fraudulent or fake. The Court is satisfied the Tribunal did consider various documents submitted by the applicant to both it and the Department. It had regard to independent country information regarding the prevalence of document fraud in Nepal. The Tribunal considered in its findings it made regard in the applicant’s overall credibility and found the documents were not reliable evidence of the facts in them. The Court is satisfied this was a finding that was open to the Tribunal and this finding is not subject to any legal unreasonableness.
The Court is satisfied the credit findings the Tribunal made were sound, as they were:
Open to the Tribunal on the material, were based on rational grounds, and were arrived at on the consideration of the matters that were logically probative of the issue of credibility
(See Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547).
The Court agrees with the first respondent’s submissions that the credibility findings were based on the applicant’s oral evidence, which the Tribunal assessed to be confused, inconsistent and implausible. The first respondent also noted the applicant’s concession that he had given false evidence to the Delegate.
Ground three reveals no jurisdictional error.
In relation to ground five, which expresses discontent at the way the Tribunal conducted the hearing, the Court is satisfied that all procedural fairness requirements under Division 4 of Part 7 of the Act were complied with. The applicant was able to attend the hearing, give evidence and present arguments. The applicant was afforded the sufficient opportunity to make his case. The applicant was invited to provide subsequent witness submissions, an opportunity that he took up. If anything, this ground, to my mind, simply invites impermissible merits review on the part of the Court.
Accordingly, the Court is not satisfied that any of the grounds of appeal are meritorious.
Conclusion
Whilst the Court is satisfied that the extent of the delay in the lodgement of the application for review is not such of itself that would prevent an application for an extension of time being granted. The Court does not consider that the applicant explanation, however, is particularly probative or supportive. The Court takes into account however, the applicant was in immigration detention and this may have impacted on his capacity to lodge an application for review, by this Court in a timely manner. This of itself would not prevent an extension being granted.
IThe Court notes it has been conceded that the Minister will not suffer any great prejudice by an extension being granted.The final matter relates to the merits of the application itself and whether or not they have reasonable prospects of success. The Court has indicated, upon review of those grounds, it does not believe that the application has a reasonable prospect of success and that the grounds are unmeritorious.
In these circumstances, having considered the proposed grounds of appeal in some detail, the Court is not satisfied that the fourth requirement under Hunter Valley Developments Pty Limited v Cohen has been made out.
Accordingly, the application for an extension of time is refused based on the fact that the Court is not satisfied that the application has merit.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 20 March 2020
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