Federal Court Rejects Protection Visa Appeal Due to Lack of Evidence

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

CNJ15 v [NAME] [2017] FCA 584 Appeal from: CJN15 v [NAME] [2016] FCCA 3033

File number: VID 1329 of 2016

Judge: NORTH J

Date of judgment: 25 May 2017

Date of hearing: 25 May 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 14

Counsel for the Applicant: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS VID 1329 of 2016

BETWEEN: [APPELLANT]15 Applicant

AND: [APPELLANT] FOR IMMIGRATION AND [NAME] PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGE: NORTH J DATE OF ORDER: 25 MAY 2017

THE COURT ORDERS THAT:

1. The application for an extension of time and leave to appeal is dismissed. 2. The applicant to pay the first respondent's costs agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 Before the Court is an application for an extension of time and leave to appeal from orders made by the Federal Circuit Court on 21 October 2016. The Federal Circuit Court dismissed an application for review of the decision of the Administrative Appeals Tribunal (the Tribunal), dated 28 October 2015, which affirmed a decision of a delegate of the first respondent, the [NAME], not to grant the applicant a protection visa. As the Federal Circuit Court exercised power under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the decision of the Federal Circuit Court is interlocutory and leave is required to appeal from that judgment. 2 Furthermore, the application for an extension of time was required because an application for leave to appeal had to be filed within 14 days: see r 35.13 of the Federal Court Rules 2011 (Cth). The application for leave to appeal was therefore required to be filed by 4 November 2016, but was, in fact, filed 10 days out of time, on 14 November 2016. 3 The applicant is a citizen of Malaysia, and is of Tamil ethnicity. He claimed, in his application to the Tribunal, that he fled Malaysia to escape a [NAME]'s debt andthat he would be discriminated against as a result of his Tamil ethnicity. The Tribunal did not accept that the incident regarding a debt to a [NAME] had occurred, because the applicant arrived in Australia in November 2011, and did not make an application for a protection visa until June 2014. The Tribunal also relied on the fact that the applicant did not attend an interview with the delegate of the first respondent. The Tribunal said that someone who feared serious harm and had to flee Malaysia would seek protection in Australia earlier than two and a half years after arriving and would be willing to provide information about those claims when invited to do so. The Tribunal accepted that there was some institutionalised discrimination in Malaysia, through affirmative action for indigenous Malays, but said that the applicant provided no details as to the type or level of discrimination he claimed that he faced. 4 The Tribunal, therefore, was not satisfied that any discrimination would reach the threshold of serious harm, as is required. For the same reasons, the Tribunal rejected any claim for complementary protection, under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). 5 The Tribunal made its decision in the absence of the applicant, who did not appear before the Tribunal. He had, however, returned the necessary document to indicate that neither he nor his representative would be attending the hearing. 6 The applicant then filed an application for review in the Federal Circuit Court. He relied on a single ground, extracted at [11] of the Federal Circuit Court's reasons for judgment as follows: The application before the Court states the following ground:- The Tribunal affirmed the delegate's decision. I provided evidence to support the claim that upon my return to my home country I will suffer harm in the hands of the offenders. I provided evidence to that regard. The [NAME] did not consider or take into account the evidence provided by me. The [NAME] erred in not giving consideration to the evidence provided by the Applicant. Accordingly the Tribunal has erred as a matter of law. 7 The Federal Circuit Court concluded as follows:

12. The Applicant provides no particularisation of his single ground of application. The only material placed before the Tribunal by the Applicant was the Applicant's claim as set out in the Applicant's protection visa application form. These were clearly considered by the Tribunal as set out in its Decision Record.

13. No issue arises with the Tribunal's exercise of its discretion under s.426A of the Act. The hearing invitation forwarded by the Tribunal to the Applicant which invited the Applicant to appear before it to give evidence and arguments in support of his application complied with the statutory and regulatory requirements. The Applicant consented to the Tribunal deciding the review without appearing before it and, pursuant to s.425(2)(b) of the Act, the Tribunal was no longer under any obligation to afford the Applicant a hearing opportunity once the response to hearing invitation had been received by it.

14. The Tribunal reached a decision on the evidence before it, that decision being open to the Tribunal on such evidence.

15. This application will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) and costs shall follow that event as set out in the Schedule scale of costs in the Federal Circuit Court Rules 2001 (Cth). 8 The application for leave to appeal and for an extension of time, filed in this Court on 14 November 2016, specified four grounds as follows:

1. The Learned Judge erred in law and/or in fact in dismissing the Migration Application on a show cause hearing when taking into account all facts and circumstances such as, but not limited to, that the Applicant was legally unrepresented, Migration law and applications are complex and complicated matters requiring specialised skills, the Applicant is a [NAME] and/or had little or limited understanding of court proceedings in Australia.

2. The Applicant was not afforded a reasonable opportunity to argue his case before the Court on 21 October 2016 in that the Learned Judge failed to afford the Applicant an opportunity to adequately and/or properly present his case to the Court and/or being unrepresented the Court had an obligation and/or duty to assist the Applicant in presenting his case or adjourning his application to enable him to get assistance to adequately and/or properly present his case to the Court.

3. The Learned Judge erred in law and/or in fact in making a summary determination of the issues at a show cause hearing. The Appellant should have been given the benefit of a full contested hearing.

4. The matters raised by the Appellant in his Migration Application required proper analysis of the complex migration law and evidence of the claims and were not appropriate to be determined in a show cause hearing. 9 The applicant appeared in Court on this application and was asked to explain the basis upon which he criticised the judgment of the Federal Circuit Court. He said that he had been living in Australia for five years. He said that he needed documents from the police, in Malaysia, to prove that he was facing trouble in Malaysia. He said that he had told the Federal Circuit Court judge that he needed an adjournment to obtain those documents. 10 The lawyer representing the first respondent indicated, from the bar table, that the record held by the Department of the hearing before the Federal Circuit Court judge did not include any reference to the applicant seeking time to obtain documents. Rather, that record indicated that the applicant sought an adjournment to allow for legal representation. 11 The application for an extension of time and leave to appeal cannot succeed unless the applicant can satisfy the Court that he has a reasonable chance of succeeding on the appeal. 12 There are other factors which are usually considered in such applications, but as the merits of the grounds of appeal are determinative in this case, it is unnecessary to refer to those other factors. 13 The applicant did not seek to argue any of the stated grounds. In any event, none of them could have succeeded in view of the fact that the applicant had not attended before the Tribunal. On the scanty material which the Tribunal had, it was entitled to come to the view that the applicant had not made out a claim for a protection visa or for complementary protection. The claim to need documents, made orally on the application, provides no basis for the extension of time or leave to appeal. The claim for documents was not made before the Tribunal, so it cannot be said that the Tribunal erred by not providing time for the applicant to find such documents. In any event, the claim to produce documents was made at a high level of generality. It is not evident what material would be available from the police which would substantiate a claim that the applicant had trouble with [NAME]. 14 Consequently, the application for an extension of time and leave to appeal is dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate: Dated: 25 May 2017