FZU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 140
•11 February 2020
FEDERAL COURT OF AUSTRALIA
FZU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 140
Appeal from: Application for extension of time and leave to appeal: FZU18 v Minister for Home Affairs & Anor [2019] FCCA 2353 File number: NSD 1461 of 2019 Judge: JAGOT J Date of judgment: 11 February 2020 Catchwords: ADMINISTRATIVE LAW – procedural fairness –information provided by applicant
MIGRATION – consideration of status of applicant as a refugee and under complementary protection criteria – validity of non-disclosure certificate
PRACTICE AND PROCEDURE – application for extension of time – leave to appealLegislation: Federal Circuit Court Rules 2001 (Cth) rr 44.12(1)(a), 44.12(2)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424AA, 424A, 424A(2), 424A(3)(ba), 438
Date of hearing: 11 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative & Constitutional Law & Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 1461 of 2019 BETWEEN: FZU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
11 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
3.The applicant pay the costs of the first respondent as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
These reasons for judgment concern an application for an extension of time and leave to appeal against orders made by the Federal Circuit Court of Australia (the Federal Circuit Court) on 23 August 2019 dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the AAT).
The Federal Circuit Court summarily dismissed the applicant’s application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules). Such a decision is an interlocutory decision, as provided for in r 44.12(2) of the Federal Circuit Court Rules, and accordingly the applicant requires leave to appeal from the orders of the Federal Circuit Court.
The application for an extension of time and leave to appeal contains two grounds. Firstly, that the AAT failed to apply the correct test pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act). Secondly, that the AAT denied procedural fairness to the applicant. In its reasons for judgment in the matter, FZU18 v Minister for Home Affairs & Anor [2019] FCCA 2353, the Federal Circuit Court considered the same two grounds.
At [27] of its reasons for judgment, the Federal Circuit Court concluded that there was nothing in the reasons of the AAT to indicate that it applied the incorrect test or that it failed to distinguish between ss 36(2)(a) and 36(2)(aa) of the Migration Act. The Federal Circuit Court said at [27] that:
Rather, it is clear from the Tribunal’s reasons that it identified the correct legal principles and made separate findings on whether the applicant met the refugee and complementary protection criteria.
At [31] of its reasons for judgment, the Federal Circuit Court concluded that the evidence before it did not reveal any breach of the AAT’s procedural fairness obligations under Part 7 Division 4 of the Migration Act. The Federal Circuit Court also noted the existence of a certificate under s 438 of the Migration Act and the fact that the AAT had found the certificate to be invalid. At [35] and [36] of its reasons, the Federal Circuit Court concluded that no error arose from the manner in which the AAT dealt with the certificate and that the AAT had complied with its procedural fairness obligations by informing the applicant of the existence of the certificate, advising him that it believed the certificate to be invalid and the documents irrelevant, and allowing him an opportunity to comment. The Federal Circuit Court also noted at [36] that, in any event, the documents the subject of the certificate, objectively evaluated, could not have had any bearing on the AAT’s consideration of the applicant’s claims for protection.
As the Minister noted in his written submissions, the application for leave to appeal was filed four days out of time. The Minister noted that the considerations relevant to the grant of an extension of time include:
(1)the acceptability of the explanation for the delay;
(2)whether there would be any undue prejudice to the Minister if the court were to grant leave; and
(3)the merits of the substantial application.
The Minister’s submissions also noted that the relevant principles applicable to an application for leave to appeal are, first, whether, in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered, and, second, whether substantial injustice would result, if leave were refused, supposing the decision to be wrong. Accordingly, in this case, the reasonable arguability of the applicant’s contentions is the most relevant consideration in respect of both the application for an extension of time and the application for leave to appeal.
I have considered the reasons for judgment of the Federal Circuit Court and of the AAT.
In relation to the first ground on which the applicant relies, it is apparent from the AAT’s reasons that it gave separate and distinct consideration to the status of the applicant as a refugee or not and the complementary protection criteria. In these circumstances, it cannot be said that the AAT erred by, as the applicant would have it, failing to disaggregate the statutory formula under s 36(2)(aa) of the Migration Act. It is true that the AAT referred to its findings of fact in respect of the protection visa criteria in its consideration of the complementary protection criteria but, consistent with the conclusions of the Federal Circuit Court, I do not consider it to be reasonably arguable that the AAT erred in so referring.
In relation to ground 2 of the application, as the Minister submitted, the ground involves a bare assertion of a failure to afford the applicant procedural fairness. In common with the Federal Circuit Court’s reasons for judgment, I can see no basis for this assertion.
On 10 February 2020, the appellant filed and served an outline of written submissions which the Minister addressed orally in reply. These written submissions reiterated the contention that the AAT failed to disaggregate the statutory formula under s 36(2)(aa) of the Migration Act. In support of this submission it was contended that it ought to be concluded that the AAT had disregarded the activities of the applicant in Australia because the AAT had formed the view that the applicant’s primary motive was to strengthen his claim to be a refugee and that the AAT then applied this finding in the context of the complementary protection criteria.
It is true that the AAT considered the applicant’s activities in Australia and concluded that his primary, although not his sole, reason for those activities was to strengthen his claim to be a refugee. The AAT was entitled to consider these findings in the context of the complementary protection criteria and did not err in its assessment of those criteria.
In his written submissions the applicant also contended that the AAT had failed to take into consideration Ministerial Direction No 56 (the Direction) which the AAT was required to take into account. However, the AAT’s reasons for decision at [5] refer to a summary of the relevant law as set out in Attachment A. In Attachment A to the AAT’s reasons for decision there is a heading titled, “Mandatory considerations” and underneath that heading the AAT refers to the Direction and the matters which the Direction required the AAT to take into account. In these circumstances, it would not be inferred that the AAT failed to comply with the Direction or failed to consider the matters required to be taken into account under the Direction.
In his written submissions the applicant also contended that the AAT failed to comply with s 424A or s 424AA of the Migration Act by failing to provide the applicant with information, being the date he arrived in Australia and the date he applied for a protection visa. According to the applicant, he did not give this information to the AAT and, as a result, the AAT should have put this information to the applicant during the hearing. Section 424AA of the Migration Act concerns the AAT orally giving the applicant particulars of any information that the AAT considers would be the reason, or part of the reason, for affirming the decision that is under review. Accordingly, the relevant provision is s 424A which requires the AAT to give to the applicant particulars of information that the AAT considers would be the reason or part of the reason for affirming the decision that is under review by any of the methods specified in s 424A(2) of the Migration Act.
The Minister tendered the applicant’s protection visa application. The protection visa application was submitted by the applicant to the Department of Immigration and Border Protection (the Department) under cover of a letter dated 7 September 2015. In answer to question 47 in the protection visa application form, the applicant identified the date of his arrival in Australia as 9 September 2014. The Minister submitted, and I accept, that it follows that s 424A(3)(ba) of the Migration Act applies to this information as it is information that the applicant gave during the process that led to the decision under review other than such information that was provided orally by the applicant to the Department. For these reasons, this ground of challenge to the AAT’s decision is also not reasonably arguable.
The Minister also submitted, and I accept, that the applicant would need leave to raise the new grounds identified in his written submissions as, excluding the argument relating to s 36(2)(aa) of the Migration Act, none of these arguments had been raised before the Federal Circuit Court. While I accept that the delay of four days in filing the application for leave to appeal is a relatively short period of time, I am not persuaded that any of the grounds of challenge to the AAT’s decision have sufficient merit to warrant the grant of an extension of time nor that the judgment of the Federal Circuit Court is attended by sufficient doubt to warrant it being reconsidered.
Neither the grounds put to the Federal Circuit Court, nor raised for the first time in the applicant’s written submissions persuade me that there is any real doubt about the correctness of the Federal Circuit Court’s conclusion that the applicant had not established an arguable case for jurisdictional error by the AAT. In these circumstances, the application for extension of time and leave to appeal must be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 17 February 2020
1