FEDERAL COURT OF AUSTRALIA

AWI16 v Minister for Immigration and Border Protection [2018] FCA 284

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

The appeal

1    This is an appeal from a decision of the Federal Circuit Court of 25 August 2017. The appellant’s grounds of appeal are:

1.    The trial judge erred in considering the irreparable loss of the appellant due to his political affiliation with the Jatiyatabadi Jubodal, the youth wing of the Bangladesh Nationalist Party.

2.    The trial judge erred not to considering the that the appellant’s case adequately. Second Respondent made an error in respect to the political stand of the appellant was denied by the Second Respondent without any basis.

3.    The trial judge erred in considering the totality of the claim.

2    The appellant has not lodged written submissions in relation to the grounds of appeal.

3    The Minister for Immigration and Border Protection (the Minister) has filed a notice of objection to competency of the appeal (which it presses) and, in any event, submits that the grounds of appeal do not disclose any appealable error because they are vague and without sufficient particularisation. Further, the Minister submits that the grounds of appeal do nothing more than indicate the appellant’s “general unhappiness” and lack an understanding of the role of judicial review.

4    The appellant seeks the following orders:

1.    An order that appeal be allowed.

2.    Orders of Federal Circuity Court set aside.

3.    A writ of certiorari issue to remove to this Honourable Court and quash the decision of the Tribunal.

4.    A writ of mandamus issue directing the Tribunal to determine according to law and the appellant’s application before the Tribunal.

5.    An order that the respondent pay the appellant’s costs of the Appeal and the proceedings in the Federal Circuit Court.

6.    Such further or other order as the Court thinks fit.

(Errors in original.)

Background

5    The appellant is 29-year-old citizen of Bangladesh. He arrived in Australia on 26 April 2013 as an unauthorised maritime arrival from Indonesia. He applied for a protection visa on 8 July 2013 and attended an interview with the Department on 11 September 2013. His basis for claiming protection was that he was a Sunni Muslim who supported the Bangladesh National Party (BNP), of which he had been a member for seven years. The appellant claimed that in early 2013 he was caught by the opposing Awami League (AL) and blinded and beaten on the head, resulting in him losing consciousness and being taken to hospital. The appellant claimed that he also suffered additional injuries all over his body. Others had told him that the AL was going to kill him, so he stayed home for three months following his recovery. The appellant claimed that he decided to leave Bangladesh because he feared he would be beaten to death by the AL because of his support for the BNP.

6    The delegate refused the appellant’s application for a visa on the basis that she was not satisfied that the appellant was a person to whom Australia owed protection obligations under s 36 of the Migration Act 1958 (Cth) (the Act). The delegate doubted the appellant’s credibility and noted a number of inconsistencies between the appellant’s written statements at his entry interview, his statement of 24 June 2013 and his oral testimony before her at the interview. The delegate considered that the appellant had fabricated and embellished aspects of his claims with the intention of creating the profile of a refugee. The delegate did not accept the appellant’s version events relating to being caught by the AL, nor that he was or would be politically active if he returned to Bangladesh.

7    The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision on 1 October 2014 and appeared at a hearing on 8 February 2016. The Tribunal was also of the view that the claims made by the appellant were not credible and that they had been fabricated with a view to obtaining residency in Australia. The Tribunal in no way accepted the appellant’s evidence that he was actively involved in the BNP, nor that he had been targeted by the AL.

The Federal Circuit Court decision

8    The application to the Federal Circuit Court was made outside of the statutorily prescribed period in s 477(1) of the Act. As a result, the appellant required an extension of time under s 477(2) of 16 days to bring the substantive application.

9    The primary Judge was not satisfied that it was necessary in the interests of justice to make an order extending time and refused to make an order under s 477(2) of the Act. On two occasions the appellant sought adjournments, claiming that he was very ill, suffering from anxiety, depression suicidal thoughts, irritable bowel syndrome and insomnia. The primary Judge refused both adjournment applications.

10    The appellant’s alleged reason for his failure to file in the Federal Circuit Court within time was that he suffered from depression, which caused him to forget dates and deadlines. The primary Judge was unconvinced of this and noted that the appellant had not asserted that he was unaware of the 35-day time period or that his forgetfulness led to his non-compliance with the requirement in s 477(1).

11    The appellant had also filed his application for review within 11 days of receipt of the refusal of his Ministerial intervention request. The primary Judge noted that the appellant’s choice to pursue Ministerial intervention instead of other rights of review of the Tribunal could be seen as an implicit acceptance that the Tribunal’s decision could not properly be challenged, meaning that there was no satisfactory explanation for the delay: WZAVL v Minister for Immigration and Border Protection [2016] FCA 334 at [33].

12    The primary Judge nonetheless considered the appellant’s draft grounds of review, finding that they had no reasonable prospects of success. His Honour found that grounds 1 and 3, which related to the political situation, constituted impermissible attempts by the appellant to seek merits review in the Federal Circuit Court. In ground 2, the appellant alleged that he was unable to participate meaningfully in the Tribunal hearing because of his mental illness. His Honour found that this ground must fail because:

    the appellant had not tendered a transcript of the hearing to support this claim;

    there was no evidence that this was asserted by the appellant or his migration agent before the Tribunal member;

    the Tribunal was unaware of his alleged unfitness and therefore blameless: Minister for Immigration and Multicultural Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]; and

    in any event the record of the Tribunal’s decision evidenced that the appellant had meaningfully participated by giving evidence, presenting arguments and answering the Tribunal’s questions, such that the appellant had not discharged the onus of establishing that he was unfit to take part in that hearing.

13    Accordingly, the primary Judge refused to make the order sought under s 477(2) of the Act.

Competency of the appeal

14    In an amended notice of objection to competency filed on 2 March 2018 the Minister objects to the competency of the appeal on the following grounds :

1.    The proposed appeal seeks to challenge the judgment of Judge Dowdy, given on 25 August 2017, in AWI16 v Minister for Immigration and Border Protection [2017] FCCA 2001.

2.    The judgment of Judge Dowdy refused to make an order under subsection 477(2) of the Migration Act 1958 (Cth) (the Act), which was an interlocutory judgment (see BZAGD v Minister for Immigration and Border Protection [2016] FCA 670; BDQ16 v Minister for Immigration and Border Protection [2017] FCCA 703).

3.    Pursuant to paragraph 476A(3)(a) of the Act, no appeal can be brought from a judgment of the Federal Circuit Court refusing to make an order under subsection 477(2) of the Act.

15    Critically, section 476A (3) of the Act provides as follows:

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

16    The terms of ss 477(2) and 476A(3)(a) are unambiguous: see for example BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30]; SZQYP v Hannigan [2012] FCA 723 at [9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7], MZZTJ v Minister for Immigration and Border Protection [2014] FCA 920 at [50], Singhu v Minister for Immigration and Border Protection [2015] FCA 893 at [27], Dhaliwal v Minister for Immigration and Border Protection [2017] FCA 1274 at [2], Singh v Minister for Immigration and Border Protection [2017] FCA 1316 at [3].

17    I am satisfied that the decision of the Federal Circuit Court was a refusal to make an order under s 477(2) of the Act. It follows that the appeal is not competent.

18    The appropriate orders are that the appeal be dismissed, and the appellant pay the costs of the Minister to be taxed if not otherwise agreed.

Associate:

Dated:    9 March 2018