Federal Court Dismisses Leave to Appeal in Visa Case

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

APG16 v [NAME] [2018] FCA 831 Appeal from: Application for leave to appeal: APG16 v Minister for Immigration & Anor [2017] FCCA 2846

File number: VID 1166 of 2017

Judge: RANGIAH J

Date of judgment: 17 May 2018

Catchwords: MIGRATION – Protection Visa – application for leave to appeal from Federal Circuit Court's refusal of extension of time – proposed appeal would be incompetent – application dismissed

Legislation: Migration Act 1958 (Cth) ss 36, 476 and 477

Date of hearing: 17 May 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS VID 1166 of 2017

BETWEEN: [APPELLANT]16 Applicant

AND: [NAME] First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGE: RANGIAH J DATE OF ORDER: 17 MAY 2018

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The applicant pay the first respondent's costs in the sum of $1756.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

RANGIAH J: 1 This is an application for leave to appeal against a judgment of the Federal Circuit Court of Australia delivered on 13 October 2017. 2 The primary judge dismissed the applicant's application for an extension of time to bring an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had decided to affirm the decision of a [NAME] to refuse the applicant a Protection Visa. 3 Section 477(1) of the Migration Act 1958 (Cth) (the Act) provides a time limit of 35 days for an application to the Federal Circuit Court for a remedy in that Court's original jurisdiction under s 476 in relation to a migration decision. As the applicant was outside that period, he applied for an extension of time under s 477(2). That was the application that was dismissed by the Federal Circuit Court. 4 Section 476A(3)(a) of the Act provides that an appeal may not be brought to the Federal Court of Australia from a judgment of the Federal Circuit Court that makes or refuses to make an order under s 477(2). Therefore, the applicant's proposed appeal would be incompetent. That matter alone is sufficient to require the refusal of the application for leave to appeal. For completeness, I will consider the merits of the proposed appeal. 5 The applicant is a citizen of Malaysia who arrived in Australia in April 2014. On 17 July 2015, he applied for a Protection Visa. On 27 October 2015, a [NAME] refused to grant the applicant a protection visa. 6 The applicant then applied for review to the Tribunal and, on 8 February 2016, the Tribunal affirmed the delegate's decision. 7 Before the Tribunal, the applicant claimed to have borrowed money from a [NAME] in Malaysia. He was unable to pay the money back and the [NAME] threatened to kill him. The police had been bribed and refused to help him. He was assaulted by the [NAME]. He claimed to fear that he would be harmed and tortured if he were to return to Malaysia. 8 The Tribunal noted a number of inconsistencies in the applicant's account and considered that his evidence was vague and implausible. It considered that the 14 month delay between the applicant arriving in Australia and claiming protection suggested that his claims were not true. The Tribunal did not accept that the applicant's claims were credible. It was not satisfied that the criteria in ss 36(2)(a) and (aa) of the Act were met and affirmed the delegate's decision. 9 The Federal Circuit Court dismissed the application for an extension of time on the basis that the applicant had not shown an arguable case in his proposed application for review of the Tribunal's decision. The primary judge considered that the applicant was merely seeking impermissible merits review and had not attempted to demonstrate jurisdictional error. 10 The applicant has not appeared at the hearing of his application. In his application, the applicant has set out a number of lengthy grounds of review. The grounds are somewhat garbled and difficult to understand. However, each of them asserts that the applicant will be in danger in Malaysia. This is said to be because the applicant is of Chinese background and that he has received threats from the [NAME] because he is Buddhist and because his assailant is politically connected. 11 Although the applicant uses the language of jurisdictional error at times, when properly analysed the applicant merely seeks to raise new claims not raised before the Tribunal. He also asserts that the Tribunal ought to have found that he was credible and that his claims were true. The grounds do not, in truth, assert jurisdictional error. Therefore, even if the Court had jurisdiction to entertain an appeal against the judgment of the primary judge, the applicant could not ultimately succeed in demonstrating jurisdictional error on the part of the Tribunal. 12 The application for leave to appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate: Dated: 6 June 2018