FEDERAL COURT OF AUSTRALIA

SZQUB v Minister for Immigration and Citizenship [2012] FCA 471

THE COURT ORDERS THAT:

1.    Compliance with r 35.14 of the Federal Court Rules 2011 (Cth) be dispensed with.

2.    The application for an extension of time to appeal be treated as an application for extension of time and leave to appeal.

3.    The time for filing the application for leave to appeal be extended to 10 May 2012.

4.    The application for leave to appeal be dismissed.

5.    The applicants pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in r 39.32 the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicants are a single mother and her two children. They are Indian nationals, who arrived in Australia in March 2010. The first applicant claims to be the victim of prolonged violence and abuse at the hands of her husband, a heavy drinker, from which the state was unable or unwilling to protect her. In June 2010 she applied to the first respondent (“the Minister”) for protection visas for her and her children but her application was unsuccessful. The applicants applied to the second respondent (“the tribunal”) for a review of that decision but the tribunal affirmed it. They then applied to the Federal Magistrates Court for constitutional writs to quash the decision of the tribunal and have it reconsider their visa application. But when that application (“the substantive application”) was listed for directions, they failed to appear and, at the behest of the Minister, it was dismissed with costs. They later applied to have those orders set aside but the federal magistrate dismissed the application. Now they seek an extension of time to appeal that judgment.

The proceedings below

2    On 19 December 2011 the applicants filed an interlocutory application (known in the Federal Magistrates Court as an “application in a case”) seeking leave to prosecute their substantive application (and to proceed on an amended application). In effect, the interlocutory application sought to set aside the orders of 22 November 2011. The orders were made pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”). The Federal Magistrates Court had the power to set aside those orders as they were made in the absence of a party: FMC Rules, r 16.05(2)(a).

3    In the Federal Magistrates Court the applicants’ application to set aside the orders was supported by an affidavit sworn by their solicitor, Melvin Newman, on 19 December 2011. Mr Newman said that when the application (presumably the substantive application) had been filed he did not know the applicants (let alone the date of the directions hearing), that he was overseas at the time and that did not know anything about it until a week before he swore the affidavit, when he read a letter from the Minister’s solicitor seeking costs.

4    The federal magistrate accepted that Mr Newman was not personally at fault and that the application had not been brought to his attention. He said it seemed likely that the fault was with the migration agent with whom Mr Newman works. In any event, he said it did not appear that the applicants were personally at fault. He accepted that a reasonable explanation for their failure to appear had been given. But he refused the interlocutory application, in effect, because he did not consider that the applicants could show that the tribunal had fallen into jurisdictional error. For that reason, his Honour held, it was not in the interests of the administration of justice to reinstate the substantive application.

5    Unless the applicants could show that the tribunal fell into jurisdictional error, the substantive application would inevitably fail. That is because the tribunal’s decision was “a privative clause decision” within the meaning of s 474 of the Migration Act 1958 (Cth) (“Migration Act”). See Migration Act, s 476(1) and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

6    At the time the application in a case was filed, a proposed amended application was also filed. It contained two grounds:

(1)    The applicants, physically and mentally abused victims of a violent, drunkard husband and father sought asylum in Australia. The tribunal accepted the truth of their claims and the fact that despite several laws designed to stamp out domestic abuse of this kind (even allowing for the government's genuine desire to rid India of such cruel conduct) nevertheless, society's ingrained disdain for such matters led to the laws being generally neglected at best or ignored at worst.

(2)    As such the applicants formed part of an unprotected, abused social group in a patriarchal society ̶ much prevalent amongst the rural peasantry in India deserving of Australia's protection.

7    The federal magistrate considered the application in a case on the unstated premise that leave would be given to amend the substantive application. The grounds in the proposed amended application do not, however, appear to raise any question of jurisdictional error. Rather, they appear to quarrel with the merits of the tribunal’s decision. Nevertheless, his Honour did not dismiss the matter on this basis, apparently giving the applicants the benefit of the doubt. Rather, he examined the tribunal decision, expressed the view that the tribunal did not fall into jurisdictional error and concluded, in effect, that there was no prospect of the applicants establishing jurisdictional error.

8    The tribunal’s critical finding was that the first applicant did not have a well-founded fear of persecution in India because she had faced no serious harm from her husband since 2007, despite intermittent contact with him in the three years before she left the country. His Honour said that this finding was open to the tribunal.

9    The tribunal then went on to refer to the evidence of the first applicant that the police had intervened on a number of occasions when they had been called by her father-in-law, noting that she, herself, had never contacted the police “as her father-in-law looked after this”. Having regard to the willingness of the police to intervene in this situation and in view of country information concerning legislation enacted in 2006 aimed at protecting women against domestic violence, the tribunal went on to find that the first applicant had access to adequate and effective protection from the Indian authorities against any threat of harm at the hands of her husband. Finally, the tribunal accepted that discrimination against divorced or separated women was a continuing problem in India but did not accept that the social stigma or isolation the first applicant might face amounted to persecution under the Convention or serious harm within s 91R of the Migration Act or that she could not seek assistance from her parents or their extended family.

10    In the light of the tribunal’s critical finding, his Honour observed that it was not necessary for the tribunal to make any other finding, in particular, about state protection or whether the applicant fell into a particular social group. Still, his Honour said that the tribunal was entitled to have regard to the particular facts of the case before it, which may “run counter to the general circumstances appearing from country information”. He also rejected the proposition that the tribunal failed to consider the [first] applicant’s claims by reference to the Convention nexus of membership of a particular social group but noted, once again, that it was not necessary for the tribunal to make the connection, having regard to its principal finding that the first applicant did not have a well-founded fear of future harm.

The application in this Court

11    The application for an extension of time to appeal is supported by another affidavit sworn by Mr Newman. In it Mr Newman states that on 29 February 2012 he attended the Court Registry to file the notice of appeal only to be told that the filing fee was $3,007. He said he had not expected that the fee would be so large and was therefore obliged to seek instructions to file an application for the fee to be waived but it was not until the following day that he obtained them. The application for an extension of time was filed that day. Mr Newman asserted that it was one day outside the time prescribed under the Federal Court Rules 2011 (Cth) (“the Rules”) for the filing of a notice of appeal (see r 36.03).

12    The affidavit also attaches a draft notice of appeal. It ostensibly lists two grounds of appeal, but in fact there is only one. The second purported ground is no more than an attempt to summarise what happened in the court below. The single ground reads:

The Appellants are a single mother and her two infant children from India. The mother suffered violence and abuse from her husband over many years causing her to flee from the matrimonial home and to seek asylum in Australia. In circumstances where a timely application in a case for judicial review of a decision of the Refugee Review Tribunal's was filed but through administrative mishap at the offices of the appellants' legal representative the (first) directions hearing was overlooked, the court below having available to it a range of penalties chose to strike out the application.

13    There are two fundamental problems with the application.

14    First, it is misconceived. The applicants were never entitled to appeal as of right. The judgment of the federal magistrate was interlocutory (see Bienstein v Bienstein (2003) 195 ALR 225 at [25]; SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 at [2]–[3]; SZGPK v Minister for Immigration and Citizenship [2009] FCA 953 at [5]). So they required leave to appeal: Federal Court of Australia Act 1976 (Cth) (“the Act”) s 24(1A). No application for leave to appeal has been filed.

15    Applications for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made or on or before a date fixed for that purpose by the court from which leave to appeal is sought: r 35.13 of the Rules. There is no evidence that the Federal Magistrates Court had fixed a date for that purpose. An application for leave to appeal should therefore have been filed by 22 February 2012. The application for extension of time to appeal should have been an application for extension of time for leave to appeal and an application for leave to appeal (see r 35.14 and form 118) and I propose to treat it as such. The Minister consents to an order dispensing with the need to comply with r 35.14 and I will make an order to that effect.

16    The second problem with the application is more significant. At the hearing Mr Newman conceded that the draft notice of appeal did not identify any error in the federal magistrate’s decision. To succeed on any appeal, however, the applicants would have to show appealable error: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [25]. Undeterred, Mr Newman argued that leave should be granted to enable the applicants to run an appeal based on an unarticulated ground, a case which was not run in the court below, and which, as will be seen, does not enjoy any reasonable prospect of success.

The applicants’ case

17    In his written submissions in support of the present application Mr Newman put two substantive arguments. First, he argues that these days all that was required was a telephone call, email or fax to alert the applicants’ legal representative and it was therefore “unduly harsh and unjust” for the proceeding to be dismissed and the proceeding then not reinstated, particularly where the claim before the tribunal was that the tribunal misinterpreted the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (collectively, “the Convention”) and where the life of a single mother and her infant children could be “thrown in jeopardy”. He submits that, whilst the unamended review application made “ridiculous claims of bias and a failure to appreciate the gravity of an ‘unstated situation’” and was therefore “well short” of what a court was entitled to expect, the amended application “attempted to crystallize the jurisdictional error” and a quick reading of the tribunal’s decision would have revealed “the potential legal issue for determination”. Secondly, Mr Newman submits that the decision to dismiss the substantive application “cannot be said to be a fair application of the liberal principles” in the objects clause of the FMC Rules. Apart from pointing out what usually happens at a first directions hearing, he did not elaborate on this submission either in writing or orally.

Should the application for extension of time be granted?

18    The Court’s discretion is in terms unfettered. But it must be exercised judicially and in the way that best promotes the overarching purpose of the Act and Rules, namely the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. See FCA Act, s 37M(3). The starting point is that the Rules have prescribed a time limit. There should therefore be a satisfactory explanation for the delay. Any prejudice to the other party or parties is relevant, but the absence of prejudice is not decisive. Cf. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9. The ultimate question is whether the justice of the case warrants the exercise the discretion in the applicants’ favour. Dickson v Whiddett [2001] FCA 585 at [34]. To this end the merits of the proposed appeal are relevant. But only up to a point. See Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98. As the application for extension of time was heard concurrently with the application for leave to appeal, the issue of merits should be approached by reference to the principles that apply to applications for leave to appeal. It is therefore necessary to consider whether the judgment below is attended with sufficient doubt to warrant its reconsideration and substantial injustice would result if leave were refused and the judgment was wrong. Generally speaking, unless these matters are established, leave will not be granted. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

19    The Minister submits that the explanation for the delay was inadequate. He notes that it only explained the delay between 29 February to 1 March 2012 and not the delay from 22 February 2012. But the explanation can be inferred. It is that Mr Newman did not realise that leave to appeal was required and the time in which the application for leave must be filed is a week shorter than the period for the appeal. I am content to proceed on the basis that the applicants have provided a satisfactory explanation. There is no suggestion that the respondents are prejudiced by the delay. The difficulty for the applicants is with the merits of the proposed appeal. In the circumstances, I would grant the applicants an extension of time, but for the following reasons, I would refuse leave to appeal.

20    The applicants are entitled to make a further application in the Federal Magistrates Court to set aside the orders of 22 November 2011 and have the matter restored: cf. Bienstein at 230. For this reason the argument that substantial injustice would result if leave to appeal were refused is not strong. That said, it is extremely doubtful that that Court would entertain another such application without good cause. The applicants could also apply to the Minister requesting that he exercise his personal discretion under s 417 of the Migration Act to substitute the tribunal’s decision for a more favourable decision, but given the Minister’s attitude thus far, it is very unlikely that he would accede to such a request. I am therefore prepared to assume that substantial injustice would result from the refusal of leave. I am not, however, persuaded that the judgment below is attended with sufficient doubt to warrant its reconsideration.

21    This case is concerned with the exercise of a judicial discretion. On any appeal the applicants would have to show that the discretion miscarried because of an error of the kind referred to in House v The King (1936) 55 CLR 499 at 504–5. Mr Newman does not suggest that the federal magistrate applied the wrong test. His Honour’s approach was entirely orthodox. See, for example, SZIDH v Minister for Immigration and Citizenship [2007] FCA 369 per Jessup J at [5]–[6]. Nor does he argue that his Honour took into account irrelevant considerations, failed to take into account material considerations or mistook the facts. In substance, his argument must therefore be that the decision is “unreasonable or plainly unjust”. If this is so, then the inference may be open that “in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House at 505). It is true, as Mr Newman submits, that the Court could have contacted “the applicants’ legal representative” but it had no obligation to do so. The obligation is on the parties to comply with the Court orders. The course the federal magistrate took was open to him. As the proceeding was listed for directions only and not for hearing, it may seem harsh. But the question whether leave should be granted does not depend on whether the discretion under r 13.03C(1)(c) to dismiss the proceeding for default of appearance should not have been exercised, as the submissions imply. It is whether there is error in the exercise of the discretion under r 16.05(2)(a) to set the earlier orders aside. The fact that the Court could have tried to contact the applicants’ lawyer does not demonstrate any error in the exercise of the discretion. Further, it was plainly relevant to the question of whether the orders should be set aside to consider whether the substantive application had any prospect of succeeding. There is no utility in setting aside an order dismissing an application when a dismissal is the inevitable outcome. So to succeed the applicants have to show that there is sufficient doubt attending the federal magistrate’s conclusions on the question of jurisdictional error. As Mr Newman concedes, neither the proposed grounds of appeal nor the written submissions identify error of any kind in the federal magistrate’s decision.

22    It was at this point that Mr Newman foreshadowed a new argument. When pressed to identify the error, he said that (contrary to the federal magistrate’s opinion) the tribunal did fall into jurisdictional error because it ignored relevant material (relying on Craig v South Australia (1995) 184 CLR 163 at 179 and Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR 323 at 351). When pressed to identify what that material was, he submitted:

She obtained nil assistance from her own family. The assistance she obtained was from her father-in-law. Her father-in-law, and indeed her mother-in-law, had died. The father-in-law was able to make approaches to the police and every now and again the police would come round and if they could find him, as she put it, beat him up. But her protector was dead. She lived in her protector’s home. One can assume under I suppose traditional laws of inheritance that house, the property, would have passed to her protector’s children. One of those children was her cruel husband.

23    The argument was based on the tribunal’s failure to advert to the death of the father-in-law in that part of the decision record in which it set out its “findings and reasons”.

24    Mr Newman concedes that this point had not been argued before the federal magistrate. In these circumstances he would need leave to raise them on appeal. The Full Court observed in VAUX v Minister for Immigration [2004] FCAFC 158 at [48] that:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is not real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

25    Here, although there is no real prejudice to the respondent in permitting the new proposed ground to be agitated, Mr Newman offered no explanation for the failure to argue the point below and, as I will shortly indicate, it lacks merit. Consequently, it is unlikely that a Full Court would grant leave to the applicants to argue the only matter upon which they now seek to rely to impugn the federal magistrate’s judgment.

26    I am not satisfied that the proposed ground has merit for the following reasons.

27    First, the tribunal did refer in the decision record to the fact that the first applicant’s father-in-law was dead. It noted that he had died before she had come to Australia. In those circumstances, although it did not refer to the fact when explaining its reasons, one would not readily infer that it ignored it. The need to avoid an over-zealous scrutiny of the tribunal’s decisions (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) must be kept in mind. That said, I accept that merely adverting to something in the course of relating the evidence does not necessarily mean that the tribunal considered it: SZOVB v Minister for Immigration and Multicultural and Indigenous Affairs (2011) 125 ALD 38 (“SZOVB”) at [43].

28    Still, the references in Craig and Yusuf to ignoring relevant material are not to be taken as support for a principle that a tribunal will fall into jurisdictional error if it fails to refer in its reasons to a piece of evidence or to take into account all relevant evidence. The submission overlooks the critical qualifying words in Craig. It is not enough that the tribunal ignored relevant material unless in so doing the exercise of the tribunal’s power was affected. The relevant passage bears repeating:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error …

(Emphasis added)

29    Buchanan J emphasised the importance of the qualifying words in his judgment in SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885 at [42]–[44].

30    As Allsop J explained in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] (citations omitted):

Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. "Relevant" for this purpose means that the decision-maker is bound by the statute or by law to take this into account ...

31    The material in question does not fall into this category and Mr Newman advanced no argument in support of the proposition that it did.

32    Secondly, there is a difference between failing to consider a component integer of a refugee claim and failing to take into account evidence which, if accepted, might have resulted in a different finding of fact. The former gives rise to jurisdictional error, the latter usually not: SZOVB at [37] and the cases referred to there. Whether or not a failure to consider a piece of evidence amounts to a failure to consider an integer of an applicant’s claim depends on whether that evidence was the only or the overwhelming evidence relating to that integer or whether by itself or coupled with other evidence, direct or circumstantial, it would or might have affected the result: SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]–[33]. Here, this material was not the only or the overwhelming evidence relating to an integer of the applicants’ claim. And it could not be shown that the material could have affected the result. Although the tribunal did refer to the death of the father-in-law, Mr Newman was unable to point to any evidence to indicate when he died. The tribunal’s decision record, which is the only material before the Court touching on what was said at the tribunal hearing, does not suggest that the first applicant indicated that her decision to leave India had anything to do with the death of her father-in-law. Without evidence to show, for example, that he had died shortly before the applicants left India or that his death prompted the applicants to flee, it is difficult to understand what the relevance of his death was, let alone whether it might have affected the result of the tribunal hearing. Contrary to the applicants argument, it is not to the point that the first applicant had lived in the father-in-law’s home, that the father-in-law had called the police on several occasions about the violent husband or that he had said he would look after the problem, unless there was also evidence that she fled the country because the father-in-law was no longer available to enlist the protection of the state and that that protection would not otherwise have been available.

33    Finally, I should say that I reject the submission that the federal magistrate’s decision was not in accordance with the objects of the FMC Rules. The objects of the FMC Rules are set out in r 1.03. There is nothing in them to support the applicants’ submission. Subclause (1) provides that the object of the Rules is to assist the just, efficient and economical resolution of proceedings.

34    The course the federal magistrate took conformed to this object.

35    For these reasons I am not satisfied that the judgment of the federal magistrate is attended with sufficient doubt to warrant the grant of leave or that the foreshadowed appeal has any reasonable prospects of success. It follows that the application for leave to appeal should be dismissed with costs.

Associate:

Dated:    10 May 2012