FEDERAL COURT OF AUSTRALIA

DYU16 v Minister for Immigration and Border Protection [2018] FCA 301

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file an application for leave to appeal is dismissed.

2.    The applicants 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

RANGIAH J:

1    The applicants have filed a notice of appeal purporting to appeal from a judgment of the Federal Circuit Court of Australia delivered on 30 May 2017.

2    By that judgment, the Federal Circuit Court summarily dismissed the applicants’ application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3    The Tribunal had affirmed the decision of the first respondent’s delegate to refuse to grant protection visas to the applicants.

4    As the judgment of the Federal Circuit Court was interlocutory, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires the applicants to obtain leave to appeal. Further, the applicants require an extension of time to seek leave to appeal because the application was not filed within 14 days after the date in which the judgment was pronounced as required by r 35.13 of the Federal Court Rules 2011 (Cth).

5    The applicants are unrepresented, I consider it appropriate to treat them as having made an oral application for an extension of time to seek leave to appeal under r 35.14 of the Federal Court Rules. As the merits of the proposed appeal are relevant to the success of that application, I will proceed to consider those merits.

6    The first applicant is a citizen of Bangladesh. The second applicant is a citizen of Indonesia. They are married to each other. The third applicant is their child, who was born in Australia. The first and second applicants arrived in Australia from Indonesia in about May 2013. The third applicant was born in November 2013.

7    On 17 June 2014, the applicants applied for protection visas. On 13 August 2015, the delegate decided to refuse to grant the applicants the visas. The applicants then applied to the Tribunal for review of the delegate’s decision.

8    Before the Tribunal, the first applicant claimed to fear harm in Bangladesh for the following reasons.

9    In 2000, a developer wanted to purchase the first applicant’s father’s house. When his father refused, the developer demolished the house with a bulldozer while seven members of the first applicant’s family were inside, killing them. The first applicant and some other family members were absent from the house at the time. The first applicant made a complaint to the police, but the police refused to take any action.

10    The first applicant claimed that he fears harm from the developer and from gang members led by the developer. Further, he claimed to fear harm because of his actual or imputed political opinion, as his family had been involved with a political party called Jamaat e Iislami (JI).

11    The Tribunal accepted that the bulldozer incident had occurred and that members of the applicant’s family had died at the hands of the developer. It accepted that the police failed to take any action when the applicant complained. However, the Tribunal found that as the event had occurred 16 years before, it was implausible that the developer would have any ongoing interest in the first applicant.

12    The Tribunal accepted that the first applicant and his family were JI supporters and that the first applicant may have had some political involvement, but found that he had not been involved in politics since 2000. The Tribunal also found that any political profile held by his family would have “diminished to the point of extinction” since the time when his father died.

13    The Tribunal found that the risk of harm to the first applicant from the developer, or as a result of his actual imputed political opinion if he returned to Bangladesh, to be remote. It also found that the risk of harm to the first applicant on the basis that he had left Bangladesh without a passport, or on the basis that he had been returned from Australia, to be remote.

14    The second applicant claimed to fear harm in Indonesia because she had been threatened by her uncle following a land dispute between the uncle and the second applicant’s father. The Tribunal found that the second applicant had fabricated her claim to fear harm in Indonesia. It also rejected her claim that she would be unable to subsist if she were returned to Indonesia.

15    The Tribunal found that the third applicant had an unexercised legal entitlement to citizenship of both Bangladesh and Indonesia. It found that the risk of harm to her in both countries was remote.

16    The Tribunal noted that a possible consequence of its decision was that the applicants may be returned to different countries due to their nationalities. The Tribunal found that any separation of family members would not constitute persecution for a Convention reason and also found that the separation of family members would not amount to significant harm within s 36(2A) of the Migration Act 1994 (Cth). The Tribunal found that the criteria in s 36(2) were not met and affirmed the decision of the delegate.

17    The applicants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The sole ground of review relied on by the applicants was that “The decision of the second respondent is affected by legal error”. This ground was expanded upon in submissions later made to the Federal Circuit Court.

18    Following a “show cause hearing”, the primary judge dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules on the basis that the application did not raise an arguable case for the relief claimed.

19    The primary judge stated that he was unable to discern any legal error in the approach of the Tribunal. His Honour said that the applicants’ submissions, when properly analysed, represented an impermissible attempt at reviewing the merits of the Tribunal’s decision. His Honour considered each of the specific errors alleged by the applicants and found that none of them were established. Accordingly, the application was dismissed with costs.

20    The applicants’ proposed notice of appeal in this Court contains the following grounds:

1.     The Administrative Appeals Tribunals decision affected by jurisdictional error

Particulars

The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his and her own country of origin. we are not from the same country & our Daughter birth in Australia and my wife is pregnant The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions or the Migration Act 1958. The Tribunal denied the applicants procedural fairness by reaching conclusions that the applicants is not a credible witness and his and her claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicants had fear of persecution in his and her own country of residence,

2     The Administrative Appeal Tribunal made findings without evidence The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicants as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

Particulars

The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing

(Errors in the original.)

21    The applicants did not file any written submissions in support of their proposed grounds of appeal. The first applicant made oral submissions on his own behalf and on behalf of the second and third applicants with the assistance of an interpreter.

22    The applicants sought an adjournment of the matter for two years so that they could raise funds to retain a lawyer. The first applicant said they needed that amount of time because he has a broken leg which requires surgery and he will be unable to work until after he has the surgery. He has been given a waiting time of up to November 2018 for the surgery. He also says the third respondent requires medical treatment and he has been occupied with taking her to the hospital. The first respondent opposed the adjournment.

23    I refused the adjournment sought by the applicants on the basis that the delay would be excessive, and that it was far from certain that they would have the funds to retain a lawyer even after two years.

24    The first applicant made an oral submission that the interpreter who assisted him in an interview with the first respondent’s delegate in 2015 had failed to interpret his statements accurately. No such complaint was made before the Tribunal or the Federal Circuit Court. There is no evidence before the Court that the interpretation was flawed. In any event, the first applicant makes no complaint about the standard of interpretation before the Tribunal, and any defects must have been cured by the hearing before the Tribunal. Further, this is not a case where the Tribunal disbelieved the first applicant based on discrepancies between statements made in the departmental interview and those made before the Tribunal. To the contrary, the applicant’s evidence was accepted by the Tribunal. Therefore, even if the first applicant’s claim as to the poor standard of interpreting is correct, it made no difference to the outcome of the application to the Tribunal.

25    Turning to the proposed notice of appeal, the first particular asserts that the Tribunal failed to consider a claim or integer of the claims. However, the applicants have not identified any such claim or integer, and I cannot discern any claim or integer that was not considered.

26    The proposed grounds of appeal assert that the Tribunal failed to consider whether the applicants had a well-founded fear of persecution in the reasonably foreseeable future upon returning to their own countries of origin. However, it is apparent that the Tribunal expressly considered that matter.

27    The proposed grounds of appeal assert next that the Tribunal failed to consider that the first and second applicants are not from the same country, that the third applicant was born in Australia and that the second applicant was pregnant. The Tribunal expressly noted and dealt with the fact that the first and second applicants are citizens of different countries and that their daughter was born in Australia. It is not apparent that the Tribunal was informed that the second applicant was pregnant, but, in any event, that fact had no apparent relevance to the Tribunal’s decision.

28    The proposed grounds of appeal assert that the Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act. That ground is wholly unparticularised and cannot be accepted.

29    The proposed grounds of appeal assert that the Tribunal denied the applicants procedural fairness by reaching conclusions that the applicants were not credible witnesses and that their claims were implausible. The Tribunal found that the second applicant’s claims were implausible, but made no such finding in relation to the first applicant. The Tribunal’s decision record notes that it put to the second applicant information suggesting that her claims to fear harm were not credible, using the procedure described in s 424AA of the Migration Act. The Tribunal also put to the second applicant that people sometimes invent claims to improve the chances of obtaining a protection visa, and the second applicant responded that she was telling the truth. There was no denial of procedural fairness: see also s 422B of the Migration Act.

30    The proposed grounds of appeal then assert that the Tribunal made findings without evidence. The particular findings referred to are not identified. This ground cannot succeed.

31    The proposed grounds of appeal next assert that the Tribunal rejected the applicants’ evidence before the Tribunal and failed to believe the applicants, such failure constituting a breach of s 425 of the Migration Act. As I have said, the Tribunal only disbelieved the second applicant’s evidence. That finding was clearly open, the Tribunal noting that at her entry interview the only reasons nominated by the second applicant for coming to Australia were that she was poor and had no money, and that the claim that she feared harm from her uncle was not made until a substantial time later. Further, there was no apparent failure to comply with s 425 of the Migration Act.

32    In these circumstances, the proposed appeal cannot succeed. The application for an extension of time to file an application for leave to appeal must be dismissed.

33    The applicants should pay the first respondent’s costs of the application.

Associate:    

Dated:    16 March 2018