Federal Court of Australia

DJY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1439

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the amount of $4,000.

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

REASONS FOR JUDGMENT

RAPER J:

1    The issue to be determined is whether to grant the applicant leave to extend time to appeal from orders of the then Federal Circuit Court of Australia dismissing his application for judicial review of an Administrative Appeals Tribunal decision affirming a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a visa.

2    Judgment was delivered by the primary judge on 12 August 2020. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the notice of appeal was required to be filed within 28 days after the primary judge’s judgment was pronounced or the order was made. Accordingly, the notice of appeal was to be filed by 9 September 2020. The application was filed on 10 September 2020, and was one day out of time. The applicant therefore requires leave to extend time to appeal.

3    When considering whether to grant an extension of time, relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice that arises from the grant of an extension and the merits of the proposed substantive application: see, eg, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].

4    For the following reasons, I refuse leave on the basis that there is no merit in the proposed grounds of appeal.

Background

5    At J[2]–[8], the primary judge set out the background to this matter as follows:

2    The applicant, a citizen of Malaysia, arrived in Australia on 24 August 2016 as the holder of an Electronic Travel Authority visa. On 14 November 2016, he lodged the application for the visa.

3    The applicant’s claims for protection were set out in his visa application form. In essence, he claimed that racist Malay gangsters threatened and assaulted him on repeated occasions due to his involvement in an “incident” that occurred on 13 May 1963 and his Chinese heritage. He claimed that they told him to leave Malaysia because of the “incident” in 1963. He also claimed that he had attempted to obtain assistance from the police but they did not help him.

4    On 21 February 2017, the delegate refused to grant the applicant the visa.

5    On 19 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

6    On 22 May 2017, the Tribunal wrote to the applicant indicating that it had considered the material before it but was unable to make a favourable decision on this information alone. In the circumstances, the Tribunal invited the applicant to appear before it at a hearing scheduled for 22 June 2017. The hearing invitation was sent to the nominated email address on the application for review and complied with the relevant legislative requirements because it:

a)    was sent to the applicant by email to the last email address provided to the Tribunal in connection with the review in accordance with s.441A(5)(b) of the Migration Act 1958 (Cth) (Migration Act);

b)    afforded the applicant a period in excess of the prescribed period of notice of the hearing as required by s.425A(3) of the Migration Act and Regulation 4.3 5D of the Migration Regulations 1994 (Cth) (Regulations);

c)    advised the applicant of the effect of S.426A (namely, the consequences of the failure of the applicant to appear before the Tribunal); and

d)    informed the applicant of the time, date and location of the hearing, as required by s.425(l) of the Migration Act.

7    The applicant did not respond to the hearing invitation, and did not attend the hearing on 22 June 2017.

8    On 27 June 2017, the Tribunal proceeded to make a decision on the review pursuant to s.426A(lA)(a) of the Migration Act without taking any further action to allow or enable the applicant to appear before it. The Tribunal affirmed the decision under review.

(Footnotes omitted.)

The primary judge’s decision

6    The applicant advanced three grounds of review before the primary judge (at J[14]):

1    Tribunal does not consider whether there existed any unfairness when immigration officer dealt with my application.

For example, Tribunal does not consider whether immigration officer dealt with my case fairly or disclosed to me information properly.

2    Tribunal does not properly consider discrimination against ethnic Chinese in Malaysia, although there is some evidence of positive discrimination in favour of Malays.

3    Tribunal does not properly consider whether I will suffer harm if I return to Malaysia based on wrong understanding of my situation.

7    In relation to the first ground, the primary judge noted that the Tribunal was conducting a de novo review, and was not required to assess the delegate’s reasoning. The consequence of this, his Honour observed, was that any defects or irregularities asserted to exist in the delegate’s decision would have been cured, as long as the Tribunal’s decision is not flawed, citing Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294; Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 139 FCR 344; and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; 143 FCR 314. His Honour found that there were no flaws in the Tribunal’s decision or processes and, as a result, held that this ground of review must fail: at J[17].

8    The primary judge dealt with grounds two and three together, and held that both failed at a factual level. His Honour found that the Tribunal had plainly considered the applicant’s claims that had been advanced in the material before it. His Honour also found that the Tribunal had expressly considered the applicant’s claims that he feared harm in Malaysia, including considering whether he faced discrimination generally as an ethnic Chinese person in Malaysia. However, the Tribunal had not been satisfied on the limited evidence from the applicant and by reference to country information that these claims gave rise to a real chance or risk of harm: at J[18].

9    The primary judge noted that the Tribunal was not required to uncritically accept the applicant’s claims. His Honour found that the Tribunal’s rejection of his claims was an inevitable consequence of his non-attendance at the Tribunal hearing in circumstances where the Tribunal had written to him and indicated that it was unable to make a favourable decision on the material before it and had invited him to attend a hearing. The applicant’s claims had been properly considered, despite his non-attendance: at J[19]. The primary judge held that the applicant’s contentions had failed to establish any jurisdictional error in the Tribunal’s decision: at J[20].

10    At the hearing before the primary judge, the applicant also made submissions that he had been confused about the date of the Tribunal hearing, which his Honour held lacked credibility in the face of reminders that had been sent to him about the hearing date: at J[21]. His Honour held that the Tribunal had been entitled to proceed in the applicant’s absence and concluded that he had failed to establish that the Tribunal’s decision was affected by any jurisdictional error. As the Tribunal decision was a privative clause decision, the consequence of this finding was that his Honour dismissed the application: at J[22].

The application for leave to extend time to appeal

Delay and prejudice

11    The applicant explained the delay in the affidavit he filed in support of his application for an extension of time. He deposed that he “did not lodge [the] application in time, because [he] thought [he] had longer [sic] time to do that”. As the Minister conceded, the delay (of one day) is minor. There has been limited prejudice caused to the Minister by reason of the delay.

The merits of the proposed appeal

12    Rather, leave should be refused on the basis that the proposed grounds of appeal are without merit.

13    The applicant’s draft notice of appeal read as follows:

Jurisdictional errors were made.

1.    My claims were rejected based on unsubstantiated evidence.

2.    There existed wrong application of law considering I will be harmed if I return to Malaysia.

3.    There existed unfairness because I was not given an opportunity to go to court to explain my claims.

14    Each of these proposed grounds will be addressed in turn.

15    The first proposed ground does not identify any error on the part of the primary judge or any failure on his part to redress error arising from the Tribunal’s reasons. The applicant was asked at hearing to specify whether it was the primary judge’s or the Tribunal’s reasons to which this ground related and what the “unsubstantiated evidence” was. The applicant appeared to submit that it was the Tribunal’s reasons with which he took issue, however was unable to identify the “unsubstantiated evidence”.

16    To the extent that the ground relates to the Tribunal’s reasons, it is clear that the Tribunal considered the basis for the applicant’s claim for protection (as set out in his application) and had regard to the relevant country information. There is nothing on the face of those reasons which reveal error.

17    With respect to the second proposed ground, the applicant was unable to identify whether this ground related to Judge Driver’s decision or a failure of Judge Driver to find error within the Tribunal’s reasons in this respect. In addition, the applicant was unable to identify what comprised the wrong application of the law. Absent further explanation or particulars, the ground merely states that the applicant would face harm upon return and is without merit.

18    Proposed ground three appears to be incorrectly worded to the extent that it refers to the “court”. To the extent that there is a claim of unfairness on the basis of a denial of the opportunity to explain the applicant’s claims, it appears to arise from his non-attendance at the hearing before the Tribunal rather than the Court. The applicant agreed before me that he attended the hearing before the primary judge. The applicant submitted to this Court, in a vein similar to what he had submitted before the primary judge, that he was confused as to the hearing date before the Tribunal (he thought it was July rather than June) and that was why he did not attend the Tribunal hearing.

19    Of note, the primary judge had before him (which this Court does not) evidence that the applicant had received two SMS reminders about the hearing from the Tribunal on 15 and 21 June 2017: J[15]. The primary judge stated that the applicant was unable to explain why he made no response to the hearing invitation and found that the applicant’s assertion of confusion lacked credibility in the face of the two SMS hearing reminders sent to him. The applicant has articulated no basis as to error on the part of the primary judge in this regard.

Conclusion

20    For these reasons, leave should be refused on the basis that the proposed grounds of appeal are without merit.

Costs

21    The Minister has sought an order for the Court to fix costs payable by the applicant in the amount of $4,000.

22    This amount is almost half the amount that can be claimed in a Short Form Bill for an application involving a migration decision (being $7,965: Item 15.2 of Sch 3 to the Rules). Given the lack of complexity in this matter, it is my view that the amount sought is reasonable and “proportionate to the nature, including the complexity, of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 at [18]. Accordingly, I will make an order that the applicant pay the first respondent’s costs fixed in the amount of $4,000.

Associate:

Dated:    23 November 2023