FEDERAL COURT OF AUSTRALIA AIX15 v Minister for Immigration and Border Protection [2017] FCA 1017 Appeal from: Application for extension of time: AIX15 v Minister for Immigration & Anor [2016] FCCA 2841 File number: VID 434 of 2017 Judge: NORTH J Date of judgment: 21 August 2017 Legislation: Migration Act 1958 (Cth) s 426 Date of hearing: 21 August 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr A Solomon-Bridge Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondents: Ms J Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 434 of 2017 BETWEEN: AIX15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 21 AUGUST 2017 THE COURT ORDERS THAT: 1. The application for an extension of time within which to appeal is dismissed. 2. The applicant to pay the first respondent's costs of the application, as agreed or taxed. 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 within which to appeal from the Federal Circuit Court to this Court. On 2 December 2016, the Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 3 March 2015. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Protection (Class XA) visa. 2 This application was filed on 28 April 2017. The notice of appeal should have been filed on 23 December 2016. Thus the extension of time required is just over four months. The factors generally relevant to an application for an extension of time within which to appeal are any explanation for the delay, any prejudice to the opposing party and the strength of the argument on the proposed appeal. It is convenient to deal initially with the last factor. 3 The applicant is a citizen of Cambodia. She claimed that she lived with a former partner in Cambodia in a de facto relationship. The relationship was violent. She did not report the violence to the authorities because they would not protect her. She was disowned by her family as a result of the shame of de facto relationships in Cambodian society. The Tribunal described the essence of the claim as follows: 138. The applicant's claims revolve around her alleged de facto relationship with a man … who she claims became abusive and who she fears will harm or even kill her if she returns to Cambodia. She also claims to fear harm from her violent father because she has shamed the family by entering into a de facto relationship. 4 The applicant claimed to fear persecution by way of serious harm on the ground of her membership of a particular social group which was formulated in a number of different ways. 5 On 14 May 2013 the Tribunal held a hearing. The applicant was represented by a migration agent. In accordance with the applicant's request, the Tribunal heard oral evidence from, inter alia, a friend of the applicant, Ms Lim. The Tribunal recorded that evidence as follows: 71. The witness stated that she has known the applicant's parents since she was in Cambodia. She did not know the applicant was here but met her later and heard about her problems here and knows she has been through a harsh life. The witness came to Australia in 1979. Her husband was a teacher in the applicant [sic] home village. She stated that she feels sorry for the applicant's life and what she has been through and she will face many difficulties. 72. The Tribunal asked the witness if she would like to provide any information about the applicant's previous agents, as the representative indicated she would. The witness stated that she knows one of the applicant's previous agents; he was not a good agent. He was convicted and took money from people. Since she knows the applicant's problems and her previous agent Sokun Srey was not good, she feels quite sorry for her because she is disowned by the family and she has no one and no place to go. 73. The witness stated that she went back to Cambodia in April 2012. She did not see the applicant's family in person but talked to them on the phone. She stated that they disowned the applicant completely. The Tribunal asked if they said anything else about the applicant and she stated that they did not. 6 Following that hearing, the applicant sent further documents and submissions to the Tribunal, including a further statutory declaration made by Ms Lim declared on 3 February 2015. The statutory declaration stated that Ms Lim had visited the applicant's parents in Cambodia twice, and planned to visit again on a visit to Cambodia on 5 February 2015. She stated in that statutory declaration: 4. I wish to confirm that after speaking to her parents in the village, I believe [the applicant] cannot go back to Cambodia. She will face serious harm from her father. She is also risked [sic] of being harm [sic] by her former de facto partner whom she has escaped from Battambang. She does not have anyone to support her because she is a disgraced woman according to Cambodian tradition. She has been dishonoured family status/value, and her family has disowned her. She will not be able to survive in Cambodia with her current medical and psychological conditions. 7 In view of the long period since the first hearing, the Tribunal invited the applicant to a further hearing on 13 February 2015 to obtain an update and to discuss any issues not covered in the first hearing. The applicant was again represented by a migration agent. The Tribunal heard further evidence from the applicant and five other witnesses, two of whom the Tribunal contacted by phone. The Tribunal tried to contact Ms Lim in the course of the second hearing by phoning her in Cambodia but was unable to reach her. The approach of the Tribunal was as follows: 178. The tribunal has considered the evidence of Ms Lim including her recent statutory declaration which states that she visited the applicant's parents twice since the first hearing and confirming her previous evidence at the first tribunal hearing that the applicant's family have disowned her. Ms Lim's evidence at that first hearing was, however, vague and generalised. As noted above, she claimed to be unaware of the applicant's de facto relationship until after the applicant's most recent arrival in Australia. Her evidence about the applicant's family was vague and undetailed; although she claimed that she travelled back to Cambodia, she only spoke to the applicant's family on the phone and did not provide any details of that conversation apart from confirming that the applicant's family have disowned her. The tribunal attempted to contact Ms Lim during the second hearing but was unable to and therefore could not verify her claims of having spoken to the applicant's parents during her return trips to Cambodia or the details of what was said. While the tribunal accepts that Ms Lim may wish to help the applicant out of her good will, in light of these factors as well as other serious concerns it has with other aspects of the applicant's evidence, the tribunal gives little weight to Ms Lim's evidence. 8 The Tribunal outlined its consideration of the evidence of each of the numerous witnesses from both hearings and referred to the country information. That consideration was comprehensive and detailed. The scope of the material was unusually wide, particularly in view of the number of witnesses relied upon. Importantly, the Tribunal rejected the applicant's evidence on almost every factual issue and concluded that the applicant had not been in the de facto relationship which lay at the centre of her claim. 9 In the application for review before the Federal Circuit Court, the applicant argued that the Tribunal breached s 426 of the Migration Act 1958 (Cth) (the Act) because it elected not to obtain the evidence of Ms Lim. Section 426 provides as follows: (1) In the notice under section 425A, the Tribunal must notify the applicant: (a) that he or she is invited to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. 10 The Federal Circuit Court held that the Tribunal had not acted in breach of s 426 of the Act. The Federal Circuit Court said: 19. In relation to a submission to the effect that the Tribunal ought to have adjourned the hearing before it as a result of being unable to make contact with Ms Lim, I note that there is no evidence that the applicant requested that the Tribunal adjourn the hearing in order to make contact with Ms Lim, either at the hearing or following the second hearing. 11 The proposed grounds of appeal provide as follows: 1. The Federal Circuit Court erred in law by failing to find that the Second Respondent had committed jurisdictional error by: A. making a legally unreasonable decision not to obtain evidence from Ms Naree Lim; and/or B. failing to have regard, in the necessary sense, to the Appellant's request that the Second Respondent obtain oral evidence from Ms Naree Lim. 12 The applicant contended that the decision of the Tribunal not to receive Ms Lim's evidence at the second hearing was unreasonable and referred to a number of contextual factors. The applicant said that the Tribunal had originally agreed to hear her evidence, that it did not make a finding that Ms Lim's evidence could not have assisted the applicant, that the decision was not made until 18 days after the second hearing, that there had been a delay of over two years from the first hearing and that the Tribunal did not give any reasons for not proceeding with obtaining the evidence and there were other options for obtaining the evidence which could have been pursued. 13 The applicant argued that there was a clear balance in favour of obtaining the evidence which would have supported the applicant's case and there was virtually no disadvantage in attempting to do so. The applicant characterised the actions of the Tribunal having made a fresh decision not to obtain further evidence and argued that that decision was marked by unreasonableness in the sense of lacking an intelligible justification as a result of the contextual factors just outlined. 14 The Tribunal did not give reasons for its decision not to further obtain evidence from Ms Lim. The parties were content to argue the case on the basis that, in such circumstances, it was up to the Court to infer from the circumstances generally whether there was a reasonable justification for the decision made by the Tribunal. 15 A most important factor militating against the Tribunal having acted unreasonably is the fact that, at the conclusion of the hearing, there was no request for the Tribunal to continue to pursue obtaining the evidence of Ms Lim. The applicant was represented by an agent and it could be expected that, if the applicant had seen any merit in further pursuing the issue, that would have been raised with the Tribunal. 16 This was not a case in which the evidence not called might have made a difference to the result. Where that is so, there might be good reason for the Tribunal to pursue the calling of the witness, even when the first attempt had failed. But the credibility findings in this case were so comprehensive and the initial view formed by the Tribunal of Ms Lim's evidence so unhelpful to the applicant that there was no good reason to pursue the calling of Ms Lim. Her evidence on the first occasion, which had been given orally before the Tribunal and, therefore allowed the Tribunal to form a view of her, was said on the central issue to be lacking in detail. 17 The argument proposed to be advanced on the appeal has, in my view, no prospect of success. It is therefore unnecessary to consider the factors of prejudice or excuse. The application for an extension of time within which to appeal is dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 30 August 2017