MZAFR v Minister for Immigration and Border Protection
[2017] FCA 1016
•21 August 2017
FEDERAL COURT OF AUSTRALIA
MZAFR v Minister for Immigration and Border Protection [2017] FCA 1016
Appeal from: Application for extension of time: MZAFR v Minister for Immigration & Anor [2017] FCCA 430 File number(s): VID 400 of 2017 Judge(s): NORTH J Date of judgment: 21 August 2017 Cases cited: Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62 Date of hearing: 21 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ravi James Lawyers Counsel for the Respondents: Mr W Mosley Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 400 of 2017 BETWEEN: MZAFR
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
21 AUGUST 2017
THE COURT ORDERS THAT:
1.The time in which the Applicant is to file a notice of appeal is extended to 28 August 2017.
2.The notice of appeal be confined to the natural justice argument formulated in the Applicant's submissions dated 9 August 2017 and referred to by Counsel for the Applicant in Court this day.
3.Annexure "AA-1", being the transcript of proceedings of the Migration Review Tribunal, to the affidavit affirmed by Anuseehan Amirthalingam on 9 August 2017, be treated as confidential and may only be accessed by an order of a Judge of the Court.
4.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an application for an extension of time within which to appeal from the Federal Circuit Court to this Court. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 24 March 2017. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Protection (Class XA) visa.
This application was filed on 21 April 2017. The notice of appeal should have been filed on 14 April 2017. Thus the extension of time required is just seven days.
The applicant is a female Lebanese citizen of Sunni Muslim faith. She arrived in Australia on 5 August 2012.
The applicant claimed to have a well-founded fear of harm from an Alawite man with whom she had a relationship, and from whom she claimed to have suffered domestic violence. An element of the claim was an allegation that the applicant’s former partner had attacked her by choking her. She also claimed to have a well-founded fear of persecution because of her Sunni religion and her imputed and actual political opinion.
The Tribunal found that elements of the applicant’s claim were implausible, and concluded that the applicant did not face a real chance of persecution for any reason.
Before the Federal Circuit Court, the applicant’s grounds for review, other than ground three which was no longer pressed, were as follows:
1.The Tribunal committed a jurisdictional error of law by failing to discharge its statutory function to consider the Applicant’s primary claim of family violence inflicted upon her in accordance with the law by holding that it was "not strictly necessary to deal with the claim that the applicant fears domestic violence and that the state authorities will not protect her."
2.The Tribunal committed a jurisdictional error of law by failing to apply the correct "real chance" test enunciated in Chan by holding that the Applicant had to prove that she "would be subject to violence at the hands of Mr A", rather than to merely establish that there was a "real chance" that she would suffer domestic violence which would be tolerated by the State.
3.…
4.The Tribunal had committed a jurisdictional error of law by failing to accord the Applicant procedural fairness in that the Tribunal did not sufficiently challenge the Applicant’s claims of violence in a manner which indicated that her version of events was a "live issue” before the Tribunal.
The Federal Circuit Court rejected each of these grounds of review.
Before this Court, the applicant relies on two proposed grounds.
The first ground concerns the alleged failure of the then Refugee Review Tribunal to properly apply the “real chance” test required in determining whether there is a well-founded fear of persecution (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62).
The second proposed ground alleges that the Tribunal denied the applicant procedural fairness by failing to explicitly expose the issue of whether an alleged choking incident occurred or not.
There is no substance in the first proposed ground of appeal, and consequently, an extension of time for the purpose of agitating that matter should not be allowed.
In relation to the second proposed ground of appeal, the applicant’s position is arguable, even if not strong. The first respondent does not suggest that he would be prejudiced by the extension of time being allowed, and concedes that the delay, being a few days, should not be a barrier to an extension being granted.
In those circumstances, the application for an extension of time within which to appeal on the second proposed ground of appeal is allowed.
The applicant sought the costs of the application. The first respondent opposed an order for costs. Whether the applicant should have her costs of the application might be more clearly assessed after the hearing of the appeal and a detailed assessment of the strength, or otherwise, of the sole ground of appeal.
Consequently, the costs of this application are reserved for determination on the appeal.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 30 August 2017
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