FEDERAL COURT OF AUSTRALIA

ADY17 v Minister for Home Affairs [2019] FCA 717

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs as assessed or agreed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant is a citizen of the Republic of India from the state of Punjab. He has been seeking a visa to stay in Australia for the past seven years. He arrived in this country on 29 September 2009 on a student visa. He sought an additional student visa in 2012. This was refused by a delegate of the first respondent (the “Minister”) who decided that the applicant had provided false and misleading information on his visa application. That decision was subsequently affirmed by the Migration Review Tribunal. The applicant then unsuccessfully applied both for a visa under the Regional Sponsored Migration Scheme and then for Ministerial intervention in relation to the refusal of the student visa. On 24 April 2015, he applied for a protection visa. This was refused on 14 December 2015. The applicant sought a review of that decision in the Administrative Appeals Tribunal (the “Tribunal”); the delegate’s decision was affirmed on 16 December 2016. The applicant then sought judicial review in the Federal Circuit Court of Australia. His application was dismissed on 26 October 2018. The applicant sought to appeal that decision to this Court, but he was late by about two weeks. He now seeks an extension of time. The Minister opposes that application.

Background

2    In his written application for the protection visa, the applicant made the following claims (as summarised by the primary judge):

i)    he had a fight with a group of shopkeepers as they had not paid their rent on time and for a few years they had not paid any rent to the applicant, and he will get attacked if he goes back to his area in India and he feels unsafe, unsecure and very scared because of this;

ii)    the authorities are not much help in disputes, they do not care for it, they are corrupt and it costs money if you want action taken, and he does not have much money to spend on that;

iii)    he has never lived elsewhere in India but he is scared “those people” will find him, and he was so scared that he chose to leave India; and

iv)    as his student visa has ended he has nowhere to go but back to India, he does not know anyone in another part of India, and he feels safe and secure in Australia so needs some protection.

(Court book references omitted.)

3    Before the Tribunal, generally speaking, these claims were rejected as mere assertions. The learned primary judge carefully summarised the Tribunal’s findings in the following terms at [4]:

In the Tribunal Decision the Tribunal:

a)    identified s.36(2)(a) and (aa) of the Migration Act and the necessary corresponding definitional provisions of the Migration Act, and explained the criteria that the applicant was required to satisfy in order to be granted a Protection Visa, and referred to the policy guidelines to be taken into account under Ministerial Direction No.56 by reason of s.499 of the Migration Act: CB 208 at [3]-[7];

b)    outlined the applicant’s history of visa applications, including the findings of the respective delegate and Migration Review Tribunal (as it then was) regarding the status of those visa applications, and noted in the period since his first visa in 2009 that the applicant had returned to India once in 2011 for a period of six weeks and also travelled to Bali for one day in 2012: CB 209 at [9]-[16];

c)    referred to the applicant being granted a series of Bridging E visas since May 2014, which were granted on the basis that he was making plans to depart Australia, but that he instead applied for the Protection Visa on 14 December 2015: CB 208 at [1]-[2] and 209 at [15];

d)    noted the scant and vague detail of the applicant’s claims for a Protection Visa, transcribing them verbatim at CB 209-210 at [18] (footnote omitted) as follows:

18.    In this applicant [sic], he set out his claims as follows:

Why did you leave [India]?

I left for my better future career. I came to Australia on student visa.

What do you fear may happen to you if you return to [India]?

I had dispute with the shop tenants which are on rent. They were dispute for non paying rent on time and from few years they haven’t paid any money to us. When I ask them to pay the rent then they started dispute over non payment for the rent.

Did you experience harm in [India]?

Yes. I had fight with a group of shopkeepers. They were dispute for non paying rent on time and form [sic] few years they haven’t paid any money to us.

Did you seek help with [India] after the harm?

No. I was so scared and threatened by that group and then I decided to leave the country. Now if I go back they can harm me again because we have home still in that area.

Did you move, or try to move, to another part of [India] to seek safety?

I moved to Australia since then. But now my visa is finishing and have to leave country. I have nowhere to go except India. I also don’t know anyone in my [sic] other part of country where I can live and stay. I feel secure in Australia and seeking help from Australia.

Do you think you will be harmed or mistreated if you return to [India]?

I can get attacked again if I go back to India in my area. I am scared and not feeling safe and secure to go back to India.

Do you think the authorities of that country can and will protect you if you go back?

Authorities are not much helpful in this type of disputes. They don’t care for this. The authorities are corrupt over there and took money to take any action and we don’t have that much money to spend on this.

Do you think you would be able to relocate within [India]?

I never lived and stayed any other part of in India. I am scared too if those people found me in India.

Application for an Extension of Time

4    Rule 36.05 of the Federal Court Rules 2011 (Cth) confers on this Court a power to extend the time within which to file a notice of appeal from the Federal Circuit Court. Such an application must be accompanied by, amongst other things, an affidavit setting out the facts relied upon and a draft notice of appeal.

5    The law relating to a determination of whether to grant an extension of time is well settled. The considerations to be assessed include the extent of the delay, any prejudice the respondent might suffer because of the delay, the explanation for the delay and the merits of the proposed appeal: see Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. A court should consider the prospects of success at a reasonably impressionistic level: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].

6    Here the applicant filed an affidavit and a draft notice of appeal. They relevantly provide as follows:

Case History

1.    I Came to Australia as a holder of Student Visa (Class TU) on 29th September 2009. My visa was due to expire on 15 March 2012.

2.    In Feb 2012 I applied for the subsequent student visa and unfortunately my application was refused by Department of Immigration and Border Protection.

3.    After that I applied for the Merit Review of the case with Migration Review Tribunal and my appeal was denied by Tribunal.

4.    Afterwards, I asked for a request for Ministerial Intervention, and my request was declined by Minister of Immigration and Border Protection.

5.    Later I applied for Protection Visa on 14th December 2015 and the visa application was refused by Department of Immigration and Border Protection.

6.    After the refusal of Protection Visa, I applied for a review of decision with Refugee Review Tribunal and decision was affirmed by Tribunal.

7.    I own commercial property back in my home country and after my father has passed away the properties were rented and that was the sole source for myself and my family.

8.    After some time, tenants stopped paying rent and when I approach them to pay rent they denied, and the issue was raised to a significant dispute.

9.    When I visited my home country last time in 2011, the issue become more severe and ended up in a fight.

10.    The issue become so severe that I have to leave home and came back to Australia.

Error in Judgement

11.    In point 35 of the decision maker considered that all these events are pre- dated to my arrival in Australia, but all these events were dated during my last visit to India.

12.    I would like to state that I fulfil the criteria for Protection visa as set out in s 36 of the Migration Act and Schedule 2 of the Migration Regulation 1994.

13.    The decision maker has not correctly assessed nature of events.

Reason for Extension of time

14.    I was facing acute financial hardship & I could not afford a lawyer, due to which I could not lodge my lodgement within time frame.

15.    Due to financial hardship I was suffering from depression and anxiety and could not concentrate thus leading to late lodgement.

16.    I would like to request to grant me an extension of time to present my case with all relevant documents.

Save for the last three paragraphs concerning the application for an extension of time, the proposed grounds of appeal are the same as the grounds of review relied upon in the Federal Circuit Court.

Disposition

7    The Minister did not really complain about the length of the delay or, properly, about any prejudice he might suffer. Rather, he opposed the extension of time because he submitted that the explanation for the delay was unacceptable and because any appeal lacked sufficient prospects of success.

8    As to the explanation for delay, it was submitted that the fact that the applicant was not legally represented was not a proper explanation and that no medical evidence had been adduced to show that he was, as claimed, suffering from depression and anxiety. Before me, the applicant, who was not legally represented, also submitted that he was unaware of the time limit, however, as the Minister correctly submitted, that is no excuse: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9].

9    I also agree with the Minister that a lack of legal representation in and of itself is not a proper excuse: see Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]. However, it nonetheless is a matter to which I can have regard, along with the other reasons relied upon for the delay. Here, they include “depression and anxiety”. To the extent that the Minister submitted that there was no evidence before me about those matters, I respectfully reject that contention. The evidence took the form of an affidavit which the applicant had affirmed. That evidence was not challenged. In that respect, the common law has never required testimony to be corroborated as a condition of its admission into evidence. In my view, given that the applicant was not represented and given his difficulties with the English language, the explanation given for the short delay was credible and for that reason acceptable.

10    However, I otherwise agree with the Minister that the proposed appeal lacks sufficient prospects of success.

11    Grounds one to ten may be set aside as they contain a recitation of procedural facts and then a repeat of matters which the Tribunal did not accept as facts. No ground relating to how the Tribunal might have erred at law in reaching these conclusions of fact on the evidence before it was ever articulated.

12    Ground 11 complains that the Tribunal made a mistake in its understanding of the applicant’s claims at [35] of the reasons for decision. The error at [35], it was said, was that the Tribunal had considered that a fight with Indian shopkeepers had taken place before 2009 rather than in 2011 as claimed. This was addressed by the learned primary judge, if I may say so comprehensively, at [31] of the judgment below as follows:

The Court makes the following observations:

a)    it was a finding of fact for the Tribunal to make regarding the dispute with the shopkeepers, including when that dispute occurred, and the Tribunal, on the material it had before it made the finding the applicant experienced difficulty with shopkeepers in 2009. There is no error of law, including jurisdictional error, in the Tribunal making a wrong finding of fact: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [52]-[54] per Black CJ, French and Selway JJ;

b)    based on the information in the applicant’s Protection Visa application, the dispute with shopkeepers in India over unpaid rent did commence prior to his arrival in Australia in 2009. This is based on the applicant’s responses referring to the dispute going back “a few years”, and when asked if he tried to move to another part of India to seek safety the applicant’s response was that he had moved to Australia since those disputes: “I moved to Australia since then”: CB 79. Therefore there does not appear to be any error on the Tribunal’s part in its assessment of the relevant period over which the events that form the basis of the applicant’s claims took place;

c)    the period of the dispute with the shopkeepers was considered by the Tribunal to assess the applicant’s credibility. The applicant applied for the Protection Visa more than five years after he arrived in Australia in circumstances where at least some of the events giving rise to the applicant’s claim pre-dated that arrival. The applicant only applied for the Protection Visa after he had exhausted other visa options: CB 213 at [39]-[40]. The Tribunal did not accept that the applicant could not have applied for the Protection Visa earlier: CB 213 at [40], and, accordingly it was open to the Tribunal to make adverse credibility findings against the applicant;

d)    even if the Tribunal made an error as to the time of the event the applicant claimed to fear harm as a result of (but in the Court’s view no such error was made: see [31(e)] below), it is nothing but an example of misconceiving the applicant’s evidence: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ, and not of the Tribunal misconceiving the applicant’s claims, as the Tribunal still assessed the applicant’s claim of having a fear of harm from “shopkeepers” and did not accept the claim;

e)    it is not open to the Court on a judicial review application to consider material which the applicant did not put into evidence before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. Because the applicant failed to attend the interview with the Delegate, failed to make any written submission to the Tribunal, and failed to attend the Tribunal Hearing, the only material before the Tribunal on which it could base the Tribunal Decision was the applicant’s claims as set out at [4(d)] above. Those claims do not assert that the relevant events occurred in 2011, and are indeed remarkable for their lack of any detail as to the dates of the relevant events. The Court considers the assertion now made by the applicant (that the relevant events occurred in 2011) to be new material which it cannot consider on judicial review;

f)    the applicant had an opportunity to put more material, or indicate to the Tribunal he wished to put more material, before the Tribunal regarding the timing of relevant events prior to the Tribunal Hearing, in the form of a written submission or documentary evidence which he was invited to provide to the Tribunal prior to the Tribunal Hearing: CB 181-184, but did not do so. Even if one accepts the events the subject of the applicant’s claim for protection occurred in 2011, there is still a delay, significant in the Court’s view, of four years in applying for the Protection Visa, during which time the applicant was in Australia. There is no error in the Tribunal rejecting an applicant’s claims as the claims were not made at the first opportunity, or where there was a delay in seeking protection: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J, provided the Tribunal, as it plainly did in this case, exercises care before doing so and considers the material it has before it in support of the applicant’s case: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [30] per Lee and Moore JJ; and

g)    finally, the Court must not engage in an overzealous review of the Tribunal Decision, rather it must read the Tribunal Decision as a whole: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ. When reading the Tribunal Decision in its entirety it is clear the Tribunal did not reject the applicant’s claim solely because the harm he alleged occurred prior to 2009, rather the Tribunal rejected the claim based on previous findings of adverse credibility by the Delegate and the Migration Review Tribunal in previous visa application refusals, the history of visa applications the applicant had made to remain in Australia, the vagueness and paucity of the claims suggesting he feared harm, and his lack of participation in the review process to reinforce his claim, which were all indicative of the applicant not subjectively fearing “harm from shopkeepers”, or anyone else, because of events occurring more than six years ago, or for any other reason”: CB 214 at [48].

13    The Minister’s written submissions supported the foregoing reasons. I respectfully agree with that submission. Before me, the applicant described an incident which he said took place in India when he returned there in 2011. The dispute with the shopkeepers over unpaid rent was now said to include threats to kill. The applicant submitted that the local police would not protect him. It is unnecessary for me to consider this alleged incident any further. That is because this specific event was not put before the Tribunal. Generally speaking, fresh evidence is not admissible in judicial review proceedings or appeals therefrom: see MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J. It follows that this ground, based as it is on a new allegation, is bound to fail.

14    As for proposed Ground 12, I agree with the learned primary judge that it is not a ground for review — nor a ground of appeal — but an asserted legal conclusion. Before me, the applicant accepted that he had not sufficiently proven the incident said to have taken place in India with the shopkeepers, but that was because he had had no legal representation. Now he says he has the means of getting a lawyer and will get the necessary proof. Again, and with respect, this proposed ground of appeal is bound to fail as it relies upon the production of fresh evidence.

15    Proposed Ground 13 was that the decision-maker had not correctly assessed the nature of events. When I asked the applicant which events had not been properly assessed, he could not identify any. Examining the reasons of the Tribunal, I am not satisfied that any events were not properly assessed. Findings were made that were open to be made. It follows that this proposed ground of appeal lacks sufficient merit.

16    For all of these reasons, I am not satisfied that the applicant’s proposed grounds of appeal disclose a case which has reasonable prospects of success. Instead, in my view, the grounds are not sufficiently arguable to merit an extension of time. Accordingly, and notwithstanding my acceptance of the reason given for delay, the application for an extension of time is refused with costs as assessed or agreed.

Associate:

Dated:    4 June 2019