GOR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 302
•4 March 2020
FEDERAL COURT OF AUSTRALIA
GOR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 302
Appeal from: Application for extension of time: GOR18 v Minister for Immigration & Anor [2019] FCCA 2963 File number: QUD 577 of 2019 Judge: RANGIAH J Date of judgment: 4 March 2020 Catchwords: MIGRATION – application for extension of time to file notice of appeal – where attempts to file commenced within required time – whether appeal has prospects of success – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2) and 473DC
Federal Court Rules2011 (Cth) rr 2.25(3)(a) and 36.03(a)(i)
Date of hearing: 4 March 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr R Tien Solicitor for the Applicant: Legal Guru Pty Ltd Counsel for the First Respondent: Ms H Anderson Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 577 of 2019 BETWEEN: GOR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
4 MARCH 2020
THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal is dismissed.
2.The applicant pay the first respondent’s costs of the application
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
This is an application for an extension of time to file a notice of appeal against a judgment of the Federal Circuit Court delivered on 1 August 2019.
The applicant was required under rr 2.25(3)(a) and 36.03(a)(i) of the Federal Court Rules2011 (Cth) to file his notice of appeal by 4.30 pm on 29 August 2019. The applicant’s solicitors commenced their attempt to file the notice of appeal shortly before 4.30 pm on that day, but it was not filed until 4.31 pm. Accordingly, the notice of appeal was not filed within the required period. The applicant subsequently filed an application for an extension of time on 17 September 2019.
The applicant explains that he did not consult his solicitors until the afternoon of 29 August 2019. He says that after receiving the judgment of the Federal Circuit Court he felt depressed and uncertain about the future and helpless. He contacted a pro bono legal service on 27 September 2019, before seeing them two days later, on 29 August 2019. When they told him they could not assist him, he contacted a firm of solicitors which had previously assisted him. Those solicitors then attempted to file the notice of appeal within the required time.
I am not satisfied that the applicant has provided a reasonable explanation for his failure to file the notice of appeal within time. In particular, he has not adequately explained why he waited until 27 September 2019 to contact the pro bono legal service, and then until 29 August 2019 before contacting his present solicitors.
However, given that the applicant’s solicitors did commence their attempts to file the notice of appeal within the required time and the absence of prejudice to the first respondent, I consider that the question of an extension of time turns upon the prospects of success of the proposed appeal.
The applicant is a citizen of India who arrived by boat in Australia in 2013. On 26 October 2016, he lodged an application for a Safe Haven Enterprise visa. On 12 October 2018, the first respondent’s delegate refused to grant the visa. The application was then referred to the Immigration Assessment Authority (the Authority).
On 12 November 2018, the Authority affirmed the delegate’s decision. The Authority summarised the applicant’s claims as follows:
•He is from Punjab and of the Sikh religion.
•In December 2010 the applicant's cousin told the applicant a group of five or six young men in their early 20s from DAV College in Bathinda were teasing her and making sexual advances.
•A month later, the applicant approached these men outside the college and asked them to stop harassing his cousin. The men beat him with sticks and baseball bats until he was unconscious. Onlookers did not intervene.
•The applicant's cousin called the applicant's father who took him to a doctor Singh. The applicant was bruised and swollen over his whole body. A copy of the doctor's report showing his injuries was provided.
•The applicant's father complained to the college principal about the gang beating but the principal took the side of the students. The principal told the students of the complaint. The students threatened the applicant and told him they would kill him if he complained again. The applicant's parents did not go to the police as the parents of the boys were powerful and could have charged them with an offence.
•Two or three months later the applicant met the same people in the market and they threatened him saying they would kill him if he reported them. After this the applicant's father arranged for the applicant to leave India.
•The applicant left legally on his passport and flew to Malaysia and was there for two years, when he arranged for a people smuggler to take him to Australia.
•He will not be safe anywhere in India as the men will attempt to kill him. The attackers’r (sic) parents are powerful people and they would not be charged and they will be able to bribe the police and officials. The police will not protect the applicant against his aggressors.
•In submissions the agent noted that the men had continued to harass and torment the applicant's family in his absence. A medical certificate in relation to the applicant's mother dated 15 February 2013 shows injuries she sustained by these men. The attack was not reported to police. On 18 April 2013 the mother was admitted to a speciality hospital with heart problems exacerbated by the attack and on-going harassment and a copy of her hospital discharge was provided.
•It was submitted the applicant's father, BS, was attacked by the same men in April 2015 and a copy of a medical certificate was provided. That attack was reported and a copy of the letter to police in Bathinda was attached with the names of the attackers.
•At interview the applicant added that the boys continued to attack, harass, scare and threaten his parents. They were outside his parents' home six or seven months ago scaring them and also at the market.
The Authority found that the applicant’s evidence was not credible. It summarised its findings as follows:
11.Having listened to the applicant's interviews and evidence, for the reasons set out below, I find the applicant is not a credible witness. I consider, despite prompting and opportunities given by the delegate, the applicant provided a vague, piecemeal, and general account of his experiences which lacked detail. Further, I consider the applicant has added to his account in response to the delegate's concerns. Further, I consider the applicant's claims lacked credibility in key respects.
One of the reasons given by the Authority for finding that the applicant’s evidence was not credible was as follows:
23.Further, I note the applicant did not make any claims that his parents were beaten, attacked or harassed in his statutory declaration. While I accept he may elaborate his claims at interview, I find it difficult to believe that he would not mention this at all in his statement, particularly given he claimed it happened as frequently as every two or three months.
The Authority also considered medical certificates provided by the applicant. The Authority’s finding was as follows:
29.The medical certificates from Dr Peter's clinic are in respect of the applicant on 21 December 2010, the applicant's mother on 15 February 2013 and his father on 21 November 2015. They are all by Dr Parmender Singh. The certificates describe similar injuries in all of them. For instance, swollen eyes in all of them; dark circles or headache, red face or cheeks or left hand inflamed in two of the certificates. The certificates all stated they are to visit for five days and list eight or nine medications. The 2010 certificate notes it is issued on 30 September 2016 on the basis of an old record.
30.While I note the claim is the same doctor wrote the certificates, I consider it is odd that the certificates appear so similar in terms of their symptoms and treatment and advice to visit for five days, given they relate to three different incidents and over a five year period. Further, I find it difficult to believe that if the applicant had been beaten with baseball bats until he was unconscious that his injuries and treatment were similar to his parents' injuries three and five years later. Further, I find it difficult to believe that he would not have required more treatment and possibly an admission given the claimed severity of his injuries.
31.Further, the 2010 certificate in respect of the applicant does not mention he was unconscious. Rather it states he was crying in pain. Further, it does not refer to any head injury, which is not consistent with the applicant's claims that he was beaten until he was unconscious. Further, while the applicant claimed he suffered internal injuries, the certificate does not refer to any internal injuries.
32.Further, the applicant's mother's Max hospital discharge summary did not mention the applicant's mother's previous injuries in her medical history, which is odd given the injuries were said to have been inflicted only two months before.
33.Given the prevalence of fraudulent documents as discussed in the DFAT report in the referred material and given my concerns about the certificates, I place no weight on the medical certificates.
The Authority concluded that the applicant was not a refugee within s 5H(1) of the Migration Act 1958 (Cth) (the Act). It held that he did not satisfy the refugee criterion in s 36(2)(a). Further, the Authority held that he did not satisfy the complementary protection criterion in s 36(2)(aa). Accordingly, the Authority affirmed the delegate’s decision.
The applicant then applied to the Federal Circuit Court for review of the Authority’s decision. The applicant relied upon the following grounds:
1.The Second Respondent did not take into account all relevant considerations, which was an error of law,
2.The Second Respondent took into account irrelevant considerations, which was an error of law.
As to the first ground, the applicant argued that the Authority had relied upon country information to reject the medical certificates, but submitted that the country information did not specifically deal with medical certificates. The applicant argued that the Authority did not consider the medical certificates themselves and had thereby failed to consider relevant material. The primary judge held that the applicant had misstated the Authority’s findings. The Authority had considered more than the country information. It had specifically considered the medical certificates themselves but had placed no weight upon them.
The applicant also argued that it was legally unreasonable for the Authority to fail to verify the genuineness of the medical certificates by contacting the doctor or the clinic. The primary judge held that, having given reasons as to why the medical certificate was not genuine, it was not legally unreasonable for the Authority to not exercise the power under s 473DC(1) of the Act to seek further information.
As to the applicant’s second ground, he argued that it was unreasonable for the Authority to decide that the applicant was not a credible witness on the basis that he had not mentioned in his statutory declaration that his parents had been beaten, harassed or attacked. The primary judge observed that this was only one of many factors that the Authority had taken into account in finding that the applicant was not a credible witness. His Honour held that the Authority had not made any error in taking into account the content of the statutory declaration.
The Federal Circuit Court rejected the applicant’s grounds and dismissed the application.
In the proposed appeal, the applicant intends to rely upon the same grounds as before the Federal Circuit Court. However, he proposes to argue the first ground somewhat differently to the way it was argued before the Federal Circuit Court. The applicant submits that the Authority should have exercised its power under s 473DC(1) to obtain further information from the doctor, and that as it did not do so, it did not take into account information that may have been relevant.
However, the applicant’s argument ignores s 473DC(2) which provides:
473DCGetting new information
…
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
The Authority was satisfied that the medical certificates were not genuine for the reasons it gave. It was under no obligation to go further and get further information as to the genuineness or otherwise of the certificates. It was not legally unreasonable for the Authority to fail to get further information from the doctor, nor can it be said that the Authority disqualified itself from taking into account all potentially relevant information by failing to obtain that information in circumstances where it was under no legal obligation to do so. The proposed first ground cannot succeed.
The applicant submits in support of the proposed second ground, that it was irrelevant that the applicant’s statutory declaration did not mention the attack on his parents, because he later provided evidence that they had been attacked. The logic of the applicant’s submission is not apparent. It was clearly open to the Authority to reason that the applicant’s evidence that his parents had been attacked was recently fabricated on the basis that it would otherwise have been mentioned in the statutory declaration.
The applicant also argues that the Authority should have asked the applicant to explain the discrepancy between the statutory declaration and the later information he provided about the attack on his parents. The argument appears to be that the Authority should also have sought this information under s 473DC(2) of the Act. I cannot see that it was legally unreasonable for the Authority to fail to obtain such information, nor that there is any other basis upon which the Authority was required to obtain such information in view of s 473DC(2) of the Act. The proposed second ground cannot succeed.
I consider that the applicant has not demonstrated that his proposed grounds of appeal have any reasonable prospects of success. In these circumstances, the application for an extension of time should be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 March 2020
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